N4929

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 57 0F 2012

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

SAMSON MALCOLM KULI
Petitioner

V

JAMES APAMIA, RETURNING OFFICER
First Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Second Respondent

ANTON YAGAMA
Third Respondent

Madang: Cannings J
2012: 13, 14 December

ELECTIONS – petitions – objection to competency of petition – whether grounds relied on in petition adequately pleaded facts and grounds relied on and complied with other requirements: Organic Law on National and Local-level Government Elections, Section 208.

The respondents to an election petition objected to the competency of the petition on the grounds generally that the petition was incompetent as it was filed outside the 40-day period after the date of declaration of the result and failed to plead the date of declaration of the result with certainty, and specifically that each of the six grounds in the petition was defective for failing to plead material facts or failing to plead the effect of the alleged errors or omissions in counting on the result of the election.

Held:

(1)	A petition alleging errors or omissions by election officers must per force of Section 208(a) of the Organic Law "set out the facts relied on to invalidate the election or return", which means it is necessary to plead not only the alleged errors and omissions but also that they did "affect the result of the election" (as required by Section 218(1) of the Organic Law).

(2)	Here, the petition adequately set out the facts relied on to invalidate the election, including adequately pleading that the result of the election was affected by the errors and omissions pleaded.

(3)	The objection to competency was dismissed. Accordingly the petition will proceed to trial on all grounds.

Cases cited

The following cases are cited in the judgment:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1998] PNGLR 99
Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769
Paias Wingti v Kala Rawali (2008) N3285
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348

OBJECTION

This is a ruling on an objection to competency of an election petition.

Terminology and dates

In this judgment:

•	'the Organic Law' refers to the Organic Law on National and Local-level Government Elections;

•	dates refer to the year 2012 unless otherwise indicated.

Counsel

R Diweni, for the petitioner
H Nii, for the first & second respondents
P Kuman, for the third respondent

14 December, 2012

1. CANNINGS J: This is a ruling on an objection to the competency of an election petition. The petition was filed by an unsuccessful candidate Samson Malcolm Kuli disputing the election of third respondent Anton Yagama as member for Usino-Bundi Open in the 2012 general election. The petition is based on six grounds which allege various errors and omissions in the conduct of the counting by election officials. The respondents to the petition are the person who declared the result of the poll, James Apamia (first respondent), the Electoral Commissioner Andrew Trawen (second respondent) and the successful candidate and sitting member, Anton Yagama (third respondent).

2. The first and second respondents filed a notice of objection to competency which relies on two grounds. The first is a general one, consisting of two sub-grounds. Ground 1.1 alleges that the petition was filed outside the 40-day period after the date of declaration of the result set by Section 208(e) of the Organic Law. Ground 1.2 alleges that the petition is defective as it does not plead with certainty the date of declaration of the result. The second ground in the notice of objection consists of six sub-grounds, which correspond to the six grounds of the petition. Each sub-ground argues that the corresponding ground of the petition is defective. I will deal with the grounds of objection in this order:

1	General objection re filing outside 40 days (ground 1.1 of notice of objection)

2	General objection re failure to plead declaration date (ground 1.2 of notice)

3	Specific objection re ground A of the petition

4	Specific objection re ground B of the petition

5	Specific objection re ground C of the petition

6	Specific objection re ground D of the petition

7	Specific objection re ground E of the petition

8	Specific objection re ground F of the petition.

1	GENERAL OBJECTION RE FILING OUTSIDE 40 DAYS

3. Mr Nii submits that the petition was filed outside the 40-day period after the declaration of the result stipulated by Section 208(e) of the Organic Law. I reject this submission as the petition pleads (in its preamble) that the declaration was made on 28 July. The date 40 days after that is 6 September. The petition was filed on 31 August, well within time. This ground of objection is dismissed.

2	GENERAL OBJECTION RE FAILURE TO PLEAD DECLARATION DATE

4. Mr Nii submits that the petition fails to plead the actual date of declaration. The argument is centred on the preamble to the petition, which states that the returning officer for Usino-Bundi, Steven Biko, "never completed the scrutiny and was purportedly replaced by the first respondent, who declared the third respondent the winner of the election on 28 July 2012. This date is to be ascertained for purposes of time limitation to bring this petition under the Organic Law". This is argued to be incomplete and defective and fails to state the material facts.

5. The requirements of a valid petition are prescribed by Section 208 (requisites of petition) of the Organic Law, which states:

A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and

(b)	specify the relief to which the petitioner claims to be entitled; and

(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d)	be attested by two witnesses whose occupations and addresses are stated; and

(e)	be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

6. I agree with Mr Nii that it is necessary in view of the Supreme Court decisions in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1998] PNGLR 99 that the requirements of Section 208 of the Organic Law be strictly complied with and that the facts relied on by the petitioner be clearly set out. I also agree that the date of declaration of the result is one of the facts that should be pleaded in the petition in order to meet the requirements of Section 208(a) and I am satisfied that the date has been pleaded. This ground of objection is dismissed.

3	SPECIFIC OBJECTION RE GROUND A OF PETITION

7. Ground A of the petition alleges generally that the returning officer Mr Biko lost control of the counting once it proceeded into the elimination phase and that the counting was effectively controlled by election officials and scrutineers from the Bundi area, particularly scrutineers for Mr Yagama and another candidate, Peter Yama.

8. Specific allegations are made regarding elimination Nos 36, 37 and 38: it is alleged that the petitioner's scrutineers were threatened and intimidated and that one particular ballot box, No 106055, was set aside and the ballot papers in it not counted contrary to a written direction from the Electoral Commissioner. As to elimination No 38, it is alleged that with three candidates remaining, on 26 July a fight broke out in the counting centre and that Mr Biko fearing for his life and the safety of many of the counting officials refused to complete the scrutiny, declared a failed election and fled the counting centre. All scrutineers left and the next day the first respondent Mr Apamia (who had been the returning officer for the Madang Open seat) resumed the counting, without the petitioner's scrutineers being informed, and elimination resulted in the declaration of Mr Yagama as the successful candidate.

9. The respondents assert that this ground fails to plead material facts and fails to plead the actual number of votes affected by the alleged errors and omissions and illegal practices and fails to demonstrate how they affected the result of the election. Mr Nii submitted that if it is alleged that electoral officials were guilty of errors or omissions, the petition must meet the requirements of Section 218(1) of the Organic Law, which says that only errors and omissions that actually affect the result of an election can vitiate the election. Section 218(1) (immaterial errors not to vitiate election) states:

… an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election. [Emphasis added.]

10. I uphold that submission. A petition alleging errors or omissions by election officers must perforce of Section 208(a) of the Organic Law "set out the facts relied on to invalidate the election or return", which means it is necessary to plead not only the errors and omissions but also that they did "affect the result of the election" (as required by Section 218(1) of the Organic Law). A nexus or causal connection must be pleaded between the errors and omissions and the result of the election. As Injia J, as he then was, stated in Sai-Sail Beseoh v Yuntivi Bao (2003) N2348:

Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.

11. However, I do not agree that it is necessary for the court to consider each ground of a petition and require that it support the conclusion that the errors or omissions alleged within it actually affected the result of the election. As I indicated in Paias Wingti v Kala Rawali (2008) N3285 the court should not microscopically consider each ground of a petition and require that it support the conclusion that the errors or omissions alleged within it actually affected the result of the election. The court must consider a ground in the context of the whole petition.

12. This ground contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. Ground A is connected with ground F, which pleads that 23,487 ballot papers were not properly scrutinised and that the "end result is that the integrity of the election results has been greatly undermined". This ground of objection is dismissed.

4	SPECIFIC OBJECTION RE GROUND B OF PETITION

13. Ground B of the petition alleges that errors were made by the returning officer in not counting the ballot papers in the contentious ballot box No 106055, which contained 1,473 votes as he acted contrary to a direction from the second respondent. It is pleaded that the returning officer acted contrary to Sections 153A and 172(1) of the Organic Law.

14. The respondents assert that this ground fails to plead or demonstrate how the result of the election was affected by the returning officer not counting 1,473 votes given that the difference between the winning candidate and the runner up was 2,141 votes. It is also argued that ground B is defective as it does not plead particulars of the Electoral Commissioner's direction (eg the date and the terms of the alleged direction) and does not plead that the votes in the contentious ballot box were lawfully cast.

15. As to the argument that there were not enough ballot papers in the ballot box to affect the result of the election I reiterate that it is not incumbent on a petitioner to plead that each of the grounds of the petition affected the result. It is the combined effect of the alleged errors or omissions that is the important factor.

16. This ground of the petition contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. Ground B is connected with ground F, which pleads that 23,487 ballot papers were not properly scrutinised and that the "end result is that the integrity of the election results has been greatly undermined". This ground of objection is dismissed.

5	SPECIFIC OBJECTION RE GROUND C OF PETITION

17. Ground C of the petition alleges generally that the petitioner's and other candidate's votes were unlawfully and deliberately allocated to the third respondent and that this was allowed to happen because of threats and intimidation at the counting centre. It is alleged that there was no proper scrutiny during the 37th and 38th eliminations and that an undisclosed number of the petitioner's votes were allocated to the third respondent.

18. The respondents assert that this ground fails to plead material facts and fails to plead the actual number of votes affected by the alleged errors and omissions and illegal practices and fails to demonstrate how they affected the result of the election.

19. As to the argument that the pleadings are too vague and do not specify the number of ballot papers involved, I reiterate that it is not incumbent on a petitioner to plead that each of the grounds of the petition affected the result. It is the combined effect of the alleged errors or omissions that is the important factor.

20. This ground of the petition contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. Ground C is connected with ground F, which pleads that 23,487 ballot papers were not properly scrutinised and that the "end result is that the integrity of the election results has been greatly undermined". This ground of objection is dismissed.

6	SPECIFIC OBJECTION RE GROUND D OF PETITION

21. Ground D of the petition alleges that during the 37th elimination ballot papers containing votes of eliminated candidates were allocated to the third respondent and another candidate Peter Yama without the petitioner's scrutineers having the opportunity to scrutinise them.

22. The respondents assert that this is a very vague ground as it does not plead or demonstrate any error of law and does not plead the number of votes affected by the alleged errors or omissions and fails to demonstrate how they affected the result of the election.

23. As to the argument that the pleadings are too vague and do not specify the number of ballot papers involved, I reiterate that it is not incumbent on a petitioner to plead that each of the grounds of the petition affected the result. It is the combined effect of the alleged errors or omissions that is the important factor.

24. This ground of the petition contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. Ground D is connected with ground F, which pleads that 23,487 ballot papers were not properly scrutinised and that the "end result is that the integrity of the election results has been greatly undermined". This ground of objection is dismissed.

7	SPECIFIC OBJECTION RE GROUND E OF PETITION

25. Ground E of the petition alleges an un-rectified error in the counting of 236 votes at the 37th elimination, when candidate James Taidius was eliminated. It is alleged that the total of 3,949 votes exceeded the total number of votes obtained by Mr Taidius by 236.

26. The respondents assert that this ground is confusing, vague and unclear as it does not plead how the other candidates' total votes were affected; and it does not plead the effect of the alleged error on the result of the election.

27. As to the argument that the pleadings are too vague and do not specify the number of ballot papers involved, I reiterate that it is not incumbent on a petitioner to plead that each of the grounds of the petition affected the result. It is the combined effect of the alleged errors or omissions that is the important factor.

28. This ground of the petition contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. Ground C is connected with ground F, which pleads that 23,487 ballot papers were not properly scrutinised and that the "end result is that the integrity of the election results has been greatly undermined". This ground of objection is dismissed.

8	SPECIFIC OBJECTION RE GROUND F OF PETITION

29. Ground F of the petition alleges generally that the returning officer "completely lost control of scrutiny during the elimination count" and in particular starting from the 37th elimination. It is further alleged that the process of scrutiny was "rigged due to threats and assault by scrutineers" and that "the end result is that the integrity of the election results has been greatly undermined".

30. The respondents assert that this ground is confusing, vague and unclear and fails to plead the actual number of votes affected by the alleged errors and omissions and illegal practices and fails to demonstrate how they affected the result of the election. It is argued that of the preceding grounds only two grounds specify the number of votes involved, but if the votes in those two grounds (grounds B, 1,473 + ground E, 236) are added, their sum (1,473 + 236 = 1,709) is still less than the winning margin of 2,141 votes.

31. As to the argument that the pleadings are too vague and do not specify a sufficient number of ballot papers involved, I reiterate that it is not incumbent on a petitioner to plead that each of the grounds of the petition affected the result. It is the combined effect of the alleged errors or omissions that is the important factor. Some of the grounds of the petition allege errors or omissions that necessarily involve an unspecified number of votes. The allegations are serious and will need to be proven by the petitioner. This ground of objection is dismissed.

CONCLUSION

32. When considering the matters raised by the respondents I have been mindful of the need for the National Court to exercise caution when deciding whether to dismiss a petition. The view has been expressed by the Supreme Court recently that perhaps an overly strict approach has been taken in the past. A number of petitions have been dismissed at the preliminary stage, leaving substantial complaints and allegations about the conduct of elections un-answered. For example, in Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769, the Supreme Court (Sakora J, Sevua J, Gavara-Nanu J) said:

Because of the frequent nit-picking, technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

33. I have taken those views into account, while at the same time being mindful of my obligation to apply the prevailing law which, as emphasised by Mr Nii, is still as expressed by the Supreme Court in Biri v Ninkama: that an election petition must comply strictly with the requirements of Section 208 of the Organic Law.

34. None of the grounds of objection have been sustained. The petition will proceed to trial.

ORDER

(1)	The objection to competency is dismissed.

(2)	The petition shall proceed to trial in accordance with directions of the Court.

(3)	The question of costs is reserved pending submissions by the parties.

Ruling accordingly.
_________________________________________________
Diweni Lawyers: Lawyers for the Petitioner
Harvey Nii Lawyers: Lawyers for the 1st & 2nd Respondents
Kuman Lawyers: Lawyers for the 3rd Respondent