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Kubak v Trawen [2012] PGNC 286; N4992 (15 November 2012)

N4992


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


E.P. NO. 2 OF 2012


BETWEEN:


NORBERT KUBAK
Petitioner


AND:


ANDREW TRAWEN, ELECTORAL COMMISSIONER, ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent


AND:


EKONIA WALOM, Returning Officer for Gazelle Open Electorate
Second Respondent


AND:


THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent


AND:


MALAKAI TABAR
Fourth Respondent


Kokopo: Kariko, J
2012: 12th, 13th & 15th November


ELECTION PETITION – Objection to competency – Objection filed out of time – Whether Objection may be heard – Exercise of discretion – National Court Practice Direction (Election Petitions) No. 2 of 2012; Rule 17, National Court Election Petition Rules; s.210, Organic Law on National and Local Level Government Elections


ELECTION PETITION – Appearance by counsel – Whether different counsel but from same law firm permitted to appear – s. 222, Organic Law on National and Local Level Government Elections


ELECTION PETITION – Objection to competency – Requirement to plead facts upon which the election could be invalidated – s. 208(a), Organic Law on National and Local Level Government Elections


Facts:


An objection to the competency of the election petition based on s. 208(a) of the Organic Law on National and Local Level Government Elections was raised and filed outside the time limit prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012.


Held:


(1) An objection to the competency of the election petition outside the prescribed time limit may still be heard as:

(2) Section 222 of the Organic Law on National and Local Level Government Elections does not require consent or leave of the Court each time there is a change in counsel from the same law firm or legal practice.

(3) Section 208(a) of the Organic Law on National and Local Level Government Elections requires the relevant and material facts pleaded in the petition to sufficiently and clearly indicate to the other parties as to what is alleged and to sufficiently inform the Court of the issues involved.

(4) If illegal practices (electoral and Criminal Code offences) are alleged all the constituent elements of the offences must be pleaded in the grounds of a petition according to s. 208(a).

(5) The petition is incompetent for failing to meet the requirements of s. 208(a).

Cases cited:


Peri v. Agiwa (1998) unreported and unnumbered (SCR 13 of 1998)
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Mathias Karani v. Yawa Silupa (2004) N2517
Barry Holloway v. Aita Ivarato and Electoral Commission [988] PNGLR 99
Mathias Ijape v. Bire Kimisopa and Electoral Commission (2003) N2344
Dick Mune v. Anderson Agiru & Ors (1998) SC 590
Neville Bourne v. Manasseh Voeto (1977) PNGLR 298
Mathias Karani v. Yawa Silupa (2003) N2385
Martin Thompson v. James Pokasui [1988] PNGLR 210


Counsel:


Mr W Donald, for the petitioner
Mr T Kuma, for the first, second & third respondents
Ms G J Sheppard, for the fourth respondent


15th November 2012


  1. KARIKO, J: This election petition was filed pursuant to s. 206 of the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election and return of the Gazelle Open Electorate in the recent national general elections.
  2. At the commencement of this trial on Monday morning, counsel for the fourth respondent sought to make a verbal application challenging the petition on the basis that it did not comply with s. 208(a) of the Organic Law. After hearing from counsel who agreed that the application was in effect an objection to competency of the petition, I exercised my discretion allowing the application to be made notwithstanding that no formal motion had been filed within the time period prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012 (Practice Direction 2/12) being "within 21 days of service of the petition".
  3. My ruling was based on the following:
  4. The Court then adjourned to the afternoon during which time a formal objection to competency (the Application) was filed and served. On resumption, the petitioner asked for a day's adjournment to properly prepare his response to the Application, which I readily granted.
  5. The first, second and third respondents (collectively, the Electoral Commission) endorsed the fourth respondent's submissions in support of the Application which was of course opposed by the petitioner. I found all the submissions concise and most helpful, and I now give my ruling.

Late application


  1. Mr Donald repeated and in strong terms, his client's objection to the Application firstly arguing that to allow the Application to be heard after the respondents had failed to raise any competency issue earlier and within the prescribed time-limit, amounted to a gross abuse of process. Counsel quoted the following remarks by the Supreme Court in Peri v. Agiwa (1998) unreported and unnumbered (SCR 13 of 1998) that emphasized the need for speedy disposition of election petitions:

It has been expressed countless times that election petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on the speedy disposition of election petitions so that the wishes of the majority expressed in the election returns are respected.


  1. I agree with the remarks and I am mindful that Practice Direction 2/12 is in line with the sentiments expressed in this statement of the Supreme Court. Amongst other things, the Practice Direction requires early notice of any objection to competency. This is obviously to allow the petitioner to prepare his response to the notice well before the trial and in this way avoid adjournments due to want of service or short-service. The aim then is to save election petition trials from being dragged out by interlocutory applications normally experienced in the ordinary civil law proceeding.
  2. However, I still hold the view that I should entertain this late objection to competency firstly because Rule 17 allows the Court to dispense with strict compliance with the Rules (which includes Practice Directions that are issued under the Rules). This discretionary power should of course be exercised properly and on judicial grounds. In this case, I consider being:

to hear the application even at this late stage.


  1. Section 210 provides:

210. NO PROCEEDING UNLESS REQUISITES COMPLIED WITH.


Proceedings shall not be heard on a petition unless the requirements of s.208 and 209 are complied with.


  1. There are a long line of case authorities that have held that if a Petitioner fails to strictly comply with the mandatory requirements of s.208 and s.209, the petition must be dismissed at the preliminary stage: see for example Delba Biri v. Bill Ninkama [1982] PNGLR 342.
  2. The Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 in dealing with an appeal arising from an election petition and on the question of whether competency of the petition could be argued on appeal when it was not raised at the trial held that the issue of competency relates to jurisdiction and often concerns the validity of the proceedings and this can be raised at any stage of the proceedings. This proposition stems from the Court's inherent jurisdiction to control its own procedures and processes.
  3. I also accept the submission by the respondents that neither the failure by the respondents through counsel to raise any competency issue during the pre-trial process nor the failure to comply with Practice Direction 2/12 can validate an otherwise incompetent petition. Section 210 which is a provision of an Organic Law must take precedence over a Practice Direction.
  4. I endorse the views of Kirriwom, J in Mathias Karani v. Yawa Silupa (2004) N2517 where his Honour held that "a petition that is structurally defective by its pleading is bad at the outset and no amount of evidence is going to correct it without being able to amend the pleadings which the law does not allow so the defect remains incurable, hence the petition remains incompetent and must be dismissed". Clearly, it makes no sense proceeding to trial if the Court sees merit in an objection to competency notwithstanding the objection being raised late. If the objection succeeds, that is the end of the matter and much time and money is saved.
  5. Rule 17, s.210 and the court's inherent jurisdiction should not automatically warrant hearing of an objection to competency filed out of time. I consider that a notice of objection must still be filed and served. The petitioner should be allowed reasonable time to prepare his response, and the objection heard only after the Court is satisfied upon a cursory perusal of the notice and the petition that the objection has merit and is arguable.
  6. In taking this position, I do not suggest that non-compliance with the Practice Direction 2/12 should be condoned or encouraged. The inconvenience caused to the petitioner by a late application permitted in the circumstances I have proposed, may be compensated by an appropriate order for costs.
  7. Based on the foregoing, the objection to hearing of the Application is denied.

Appearance by counsel


  1. In opposing the Application, Mr Donald also challenged the propriety of Mr Sheppard replacing Ms Christine Copland as counsel for the fourth respondent at this hearing. Mr Donald referred to s. 222(2) of the Organic Law which simply states that no more than one counsel may appear for a party.
  2. Both Mr Sheppard and Ms Copland are employed by the law firm of Young & Williams. When this case was first called, Mr Shepherd announced his appearance and informed the Court that Ms Copland (who was robed and sitting just behind him) was only in court to assist him. I then instructed that in the circumstances Ms Copland need not robe and Ms Copland has obliged since then.
  3. The enactment of s. 222 of the Organic Law envisaged that a petitioner who is a non lawyer may draft a petition and argue his own case before the Court. Pursuant to s. 222(1) where a party engages legal representation, the other parties must agree to or the Court grants leave for the representation. In practice, nearly all parties in national election petitions have legal counsel. The necessary consent or leave is often assumed in these circumstances. But once a law firm is engaged by a party it was never nor is it intended by s. 222 that consent or leave is required each time there is a change in counsel from the same law firm or legal practice.
  4. I do not find any breach of s. 222 nor do I consider that there has been an abuse of process where Mr Sheppard has raised the objection when previous counsel did not.

Objection to competency


  1. The objection to competency is essentially based on the ground that the petitioner has not complied with the requirements of s. 208(a) of the Organic Law which reads:

208. REQUISITES OF PETITION.


A petition shall –


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


  1. There is a body of case law that stress that this provision is mandatory and must be strictly complied with and that a petitioner must set out facts which he relies on to invalidate the election or return. Failure to do so renders a petition incompetent: Delba Biri v Bill Ninkama (supra) has already been cited as an example.
  2. As to what are "the facts" contemplated by s. 208(a), again the law is well-settled. Reference is made to the often cited case of Sir Barry Holloway v. Aita Ivarato and Electoral Commission [988] PNGLR 99 at 101, where Kapi, DCJ said this of the requirements of s. 208(a):

The facts which must be set out under s. 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election return maybe invalidated. In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved.


The petition


  1. The present petition suggests that there were irregularities, illegal practices and errors and omissions committed by the Electoral Commission through its officials in the conduct of the scrutiny and counting of the votes.
  2. The petition is divided into several parts as follows:
    1. Background facts
    2. Facts relied upon to invalidate the election results
    1. General allegations by way of irregularities and illegal practices and errors and omissions by the scrutiny officials during the scrutiny of the ballot papers
    1. Legal grounds
    2. The relief and orders sought by the petitioner
  3. The objection to competency mainly challenges parts A, B, C and D. In discussing these contents of the petition, I consider it helpful to reproduce them in full in this judgement.

The petition – Part A


  1. Part A is set out as follows:
    1. BACKGROUND FACTS
    1. The Petitioner Norbert Kubak of Toboina Village, Reimber/Livuan LLG, Gazelle District, East New Britain Province was a candidate who contested to be a Member of Parliament for the Gazelle Open Electorate in the 2012 National General Elections ("the elections").
    2. The First Respondent is appointed under Section 5 subsections 2 and 3 of the Organic Law on National and local Level Government consolidated into the Organic Law on National and local Level Government Elections (Amendment Law) 2006 )"the Organic Law) and is responsible for all the matters relating to the conduct of National and Local Level Government Elections.
    3. The Second Respondent Ekonia Walom is the Returning Officer for the Gazelle Electorate who was appointed by the First Respondent pursuant to Section 18 of the Organic Law on National and Local Level Governments consolidated into the Organic Law on National and Local Level Government Elections (Amendment Law) 2006 for the purpose of overseeing the conduct of the 2012 National General Elections in the said Gazelle Open Electorate in accordance with the relevant Organic Law.
    4. In the said capacity the First Respondent is vicariously liable for the actions and omissions of the Second Respondent including irregularities, illegal practices, errors and omissions.
    5. The Third Respondent is a State entity or institution established under Section 5 sub section 1 of Organic Law on National and Local Level Governments consolidated into the Organic Law on National and Local Level Government Elections (Amendment Law) 2006 and is responsible through the First Respondent for all matters relating to the conduct and administration of National and Local Level Government Elections in Papua New Guinea.
    6. The Fourth Respondent was also a candidate for the Gazelle Open Electorate in the 2012 National General Elections and was declared the winning candidate by the Returning Officer, Ekonia Walom on 20th July 2012 at 8.00 pm.
    7. Writs for the 2012 National General Elections for the Gazelle Open Electorate were issued on 18th May 2012 Nominations of candidates were opened on the same date and closed at 4.06pm on 27th May 2012. Polling for the Gazelle Open Electorate and all other electorates in East New Britain Province commenced on 23rd June 2012 and ended on Saturday 29th June 2012.
    8. The elections was conducted under the limited Preferential Voting system where electors cast votes for their preferred candidates in order of preference with the first candidate, followed by the Second candidate then the third candidate. In all 24 candidates contested for the Gazelle Open Electorate including the Petitioner.
    9. Counting for the first preference votes commenced at Kairak Resource Centre at Vudal University on 8th July 2012 at about 11.00 am and ended on 14th July 2012 at 4.00 pm. Counting was conducted by the Second Respondent and counting officials he engaged for the purpose.
    10. At the end of counting for the first preferential votes on 16th July 2012 the Petitioner polled 5667 votes to lead the count with a difference of 2 votes while the Fourth Respondent was second with 5665 votes. None of the candidates votes added up to the absolute majority of 50% plus 1 which at that time was 16,649 votes to be declared the winner.
    11. The Second Respondent together with counting officials he engaged on behalf of the First and Third Respondents for the purpose of conducting scrutiny of the votes counted then conducted quality checks on the ballot papers for the first preferential votes that had been counted.
    12. Upon completion of the quality checks counting of the second preferential votes and elimination of candidates with the lowest number of votes commenced on 17th July 2012 at Kairak Resource Centre at Vudal University at 11.00 am.
    13. The Petitioner led with the highest number of votes from elimination count one till elimination count 21 polling the following votes in chronology; 6515, 6539, 6574, 6605, 6631, 6689, 6698, 6765, 6818, 6908, 6977, 7109, 7201, 7383, 7477, 7590, 7832, 8131, 8425 and 8576. The Fourth Respondent followed closely with the following votes in chronology; 6446, 6468, 6480, 6510, 6542, 6576, 6602, 6706, 6791, 6849, 6929, 7007, 7122, 7266, 7333, 7429, 7621, 8016, 8335 and 8445.
    14. At the end of elimination count 21 the Petitioner was leading with a difference of 131 votes on 8576 votes while the Fourth Respondent was on 8445 votes. The third candidate Sinai Brown who was to be the next candidate to be eliminated was on 6,350 votes. When votes for Sinai Brown were distributed the Petitioner received 729 votes and polled 9678 total votes while the Fourth Respondent received 1034 votes and polled 9791 total votes to lead for the first time in the elimination counts by 113 votes and was declared the winner by the First Respondent at 8.00 pm on Friday 20th July 2012.
  2. It is obvious that Part A simply sets out background facts. The parties are introduced and then the process for the elections in the Gazelle Open Electorate is described in summary form from issue of the writ, polling and voting, counting and onto the declaration.
  3. Later in Part D, the petitioner makes a very general statement that the facts under Part A constitute irregularities, illegal practices and errors or omissions committed by officials of the Electoral Commission contrary to certain statutory provisions. However it is not stated which fact or facts constitute what breach or breaches of the law. As it is, the parties and indeed this Court are left to work out or guess the answers. In this regard I adopt the following statement of his Honour Kandakasi, J in Mathias Ijape v. Bire Kimisopa and Electoral Commission (2003) N2344 at p.41:

... a petitioner is under an obligation to set out the facts he relies upon to invalidate an election, with precision and clarity. He must not leave the Court and the respondents to the petition guessing as to what is being alleged. Where a petition relies on a breach of a statutory or constitutional duty, that provision must be set out besides the alleged facts. A petition could stand on either one or more grounds. As such, each ground of a petition must be clearly pleaded together with any relevant provision of a statute or the Constitution by setting out the facts relied on. (My underlining)


  1. Section 208(a) requires the relevant and material facts pleaded in the petition to sufficiently and clearly indicate to the other parties as to what is alleged and to sufficiently inform the Court of the issues involved.
  2. To my mind, Part A (even in conjunction with Part D) cannot be read as constituting a ground or grounds upon which the election or return maybe invalidated. The facts here are just what the heading says they are – background facts. Clearly they are not the facts contemplated by s. 208(a)

The petition – Part B


  1. Part B purportedly sets out the "Facts relied upon to invalidate the election results":

B. FACTS RELIED UPONTO INVALIDATE THE ELECTION RESULTS


  1. Before the commencement of counting the Second Respondent organized two (2) meetings with the campaign managers and scrutineers of candidates to inform them about how the scrutiny of the votes were to be held. The first meeting took place on Friday 06th July 2012 at Vuvu Secondary School Hall while the second meeting took place on Saturday 07th July 2012 at Navunaram Community Hall with the campaign managers and scrutineers of candidates to inform them about how the scrutiny of the votes were to be held. These meetings were attended by the campaign manager for the Petitioner Mr Enos Tamtu and scruitneers namely Robert Masap, Martha Masap, Fidelis Talil, Vicky Talil Emil ToVua, Harris Willie and George Timari.
  2. At the said meetings or briefings the First Respondent told those present including the campaign manager Enos Tamtu and the Petitioner's scrutineers that during counting if informal votes were discovered after quality checks had been done the ballot box from which such informal votes were discovered would be re checked again. The Second Respondent did not state that such votes would be treated as exhausted votes.
  3. At the said meetings the Second Respondent did not state that as elimination process came to a close third preferential votes in favour of the candidates remaining from the votes of the candidates eliminated would be counted also.
  4. During the counting of the first preferential votes from count 1 to count 35 all the scruitneers including the scrutineers of the Petitioner were seated on chairs some 5 metres away fro the table on which the ballot papers were to be sorted out. The table on which the ballot papers were to be sorted out into the respective candidates' trays and the informal trays was surrounded by up to 10 counting officials. The ballot papers were sorted out by these counting officials with their backs to the scrutineers for the candidates. None of the scrutineers including the scrutineers of the Petitioner were able to see how the ballot papers were sorted out into the respective candidates' trays.
  5. At the start of Count 4 of the first preferential vote Fidelis Talil, scrutineer for the Petitioner asked to be present at the table where the ballot papers were been sorted out but the Second Respondent and hi agents refused to allow him and all other scrutineers to be present citing the reason that there was inadequate space for the sorters and the scrutineers of the candidates. The Second Respondent only allow the scrutineers for the candidates including the scrutineers for the Petitioner to be present during the counting of the ballot papers for their respective candidates and informal votes after the papers had been placed in the respective trays on another table by the Second Respondents' Agents.
  6. The Second Respondent allowed only 2 scrutineers for each candidate to be present in the Counting room during counting of the first preference votes whereas up to 10 counting officials were present throughout. The counting of votes was done very fast that it was difficult if not impossible for the Petitioners' scrutineers and other Candidates' scrutineers to keep a proper and realistic scrutiny of the votes counted.
  7. When the counting for the Second Preferential Votes and Elimination of Candidates with lowest votes began on 17th July 2012 at 11.00 am the Second Respondent and his Officers, Servants and Agents continued to sort out the papers of the remaining Candidates who were seated 5 metres away at the back. The Scrutineers including the Scrutineers of the Petitioner were not able to see and not able to know how the exhausted votes were determined or to see and know that all the votes of the Petitioner were properly sorted out and placed in his tray.
  8. Up to 10 Counting Officials took part in the sorting out of the Ballot papers during the entire first preferential Vote Counts or primary count and Elimination Counts. All of these Counting Officials did the sorting out at the same time with their backs to the Scrutineers of the Candidates remaining.
  9. During the entire period of Elimination Counts from Count 1 to Count 22 when the exhausted votes were being counted, up to 6 Counting Officials did the counting. They all counted at the same time. Because everyone was counting at the same time it was difficult for one Scrutineer per Candidate to keep a proper scrutiny of the exhausted votes been counted.
  10. The counting of the live votes also proceeded at a fast pace. Two officials counted the votes for each Candidate in the presence of one Scrutineer for the Candidate. The counting of the votes of all the Candidates took place at the same time in like manner. The Scrutineers of each Candidate was not able to see and not able to know whether the Ballot papers in the other Candidates' tray were indeed the papers containing that Candidates' votes.
  11. During Elimination Count 1 on First Day of Elimination when the votes for Paul Villie were been distributed a ballot paper containing an informal vote was discovered despite quality checks having been done earlier. This was sorted out by the Second Respondent declaring the ballot paper to be exhausted paper.
  12. On the Second Day of Elimination during Count 4 when the votes for Candidate Mark Andrews were been distributed another Informal Ballot paper was discovered. A Scrutineer for Candidate John Sambie asked for a recount of the Ballot Box and was supported by Scrutineer for the Petitioner Fidelis Talil. The Second Respondent then called the Campaign Managers of all the remaining Candidates and met with them. At the meeting he reached agreement with them that if any other informal votes were discovered the votes would be treated as exhausted votes. This agreement was contradictory to what he had earlier told the Campaign Manages and Scrutineers that the Ballot Box from which any informal votes were discovered would be re-checked or re-counted.
  13. During Elimination Count 20 which took place at 4:00 pm when votes for Candidate Andrew Kusak were been distributed it was discovered that the Ballot papers were 1 less than the Candidates vote. Instead of re-checking or re-counting the Ballot box the Second Respondent told the Scrutineers to decide whether to re-check the Ballot papers or to treat the Ballot papers as exhausted. This was contrary to what the Second Respondent told the Campaign Managers and Scrutineers prior to commencement of counting. The Scrutineers who were tired at that time which was evident to the Second Defendant opted that the vote be treated as exhausted vote. The Second Respondent did not have to ask the Scrutineers whether to recount the Ballot box but simply order a recount since the votes distributed were 586 votes while there 2,613 exhausted votes with a large vote difference of 2,027 votes.
  14. In Count 10 of the Primary Count Fidelis Talil saw Counting Officials put 6 Ballot papers for the Petitioner as containing informal votes and insisted that the ballot papers be rechecked and when rechecked they were found to be good Ballot papers. The Petitioner collected 849 votes and moved up to the First Place from the Third Place.
  15. In Count 12 of the First Preferential Counts Scrutineers Vicky Talil and Fidelis Talil for the Petitioner noticed that up to 12 Counting Officials were counting the Petitioners' Ballot papers very fast and all at the same time. The papers were spread out making it difficult to keep a proper scruitiny of the papers. This caused Fidelis Talil to argue with the Counting Officials asking them to bring the papers together and to count slowly. The votes been counted were from the areas of Rakanda, Toboina, Raluan No. 3 and VolaVolo 1 and 2 which are stronghold area of the Petitioner. Because of the intervention by Talil Fidelis the votes were counted properly where the Petitioner received 706 votes to maintain his lead on 3,984 votes.
  16. As the Elimination Counts of Second and Third Preferences votes progressed between elimination counts 18 to 21 on 30th July 2012 the Second Respondent together with the Counting Officials he engaged committed irregularities, illegal practices, errors and omissions in the sorting of the Ballot papers for the Candidates remaining and the determination of exhausted Ballot papers without scrutiny by the Scrutineers of the Candidates remaining.
  17. In the same period the Second Respondent and his Agents and Servants also committed irregularities, illegal practices, errors and omissions during the counting of the exhausted votes without scrutiny by the Scrutineers of the Candidates still in the race including the Scrutineers of the Petitioner.
  18. The Second Respondent and his Agents and Servants also committed irregularities, illegal practices, errors and omissions by preventing additional Scruitneers of the Petition from entering the counting area to be involved in the counting of the exhausted votes which had suddenly increased in number and were been counted by 6 Counting Officials in the presence of just one Scrutineer. The Second Respondent instructed Police at the entrance of the Counting room to only allow 2 Scrutineers for each Candidate into the Counting room.
  19. The Second Respondent and his Agents and Servants further committed irregularities, illegal practices, errors and omissions by putting figures onto the Board that were inconsistent with the votes distributed to the Candidates.
  20. Between Elimination Counts 17 to 22 the pace of the sorting out of the Ballot papers and the counting of the exhausted papers gained moment and progressed at a faster pace. The sorting out of the Ballot papers to determine which papers were live papers and which were exhausted papers were done without any scrutiny at all by the Petitioner's Scrutineers or other Candidates' Scrutineers.
  21. In the final Elimination at Count 22 when Candidate Sinai Brown's votes were distributed between the Petitioner and the Fourth Respondent none of the Petitioners Scrutineers were present to scrutinize the sorting out of the Ballot papers between the 2 remaining Candidates and the determination of exhausted papers.
  22. The Petitioner's Scrutineer Robert Masap was there at Elimination Count 22 but only witnessed the counting of the exhausted Ballot papers midway through the count having had to first scrutinize the counting of the live votes for the Petitioner. He was not allowed to go through all the 4,192 exhausted Ballot papers carefully. His request for a thorough recheck of the exhausted Ballot papers was ignored by the Second Respondent and his Agents and Servants. The Second Respondent retreated into the back room while his agents and servants took no notice and walked off the counting area and consequently there was no recheck as requested.
  23. The Candidate eliminated Sinai Brown prior to his elimination had to his name 6,350 votes. Out of these votes 2,066 votes were second and third preferential votes which the Candidate collected from candidates eliminated up to Henry Urai. However the Second Respondent and his Agents and Servants posted on the main board the figure 1,763 been the second and third preference votes collected by the Candidate. This meant that there was a difference of 154 unaccounted votes. The Second Respondent and his agents and servants did not re check the ballot box of Henry Urai and did nothing else with 154 un accounted votes before proceeding to the Elimination Count 22.
  24. At the conclusion of elimination count 22 at about 5.30pm on 20th July 2012 but before declaring the Fourth Respondent as the winner the Second Respondent and his Agents and Servants committed irregularities, illegal practices, errors and omissions by deliberately denying, refusing and or neglecting a request by the Petitioner's Scrutineer Robert Masap to recheck the 4,192 exhausted votes of Sinai Brown. The Second Respondent and his agents and servants further committed irregularities, illegal practices, errors and omissions by failing to properly complete the scrutiny of the ballot papers distributed between the Petitioner and the Fourth Respondent from the Ballot Box of Sinai Brown at elimination count 22 before posting the distributed votes on the board and did not properly add up the figures to determine the total allowable votes, the total exhausted votes ad the absolute majority required to declare a winner.
  25. The Second Respondent and his Agents and Servants completed the Elimination Count 22 within less than an hour unlike all of the previous eliminations.
  26. Elimination Counts 1 to 17 took place between Tuesday 17th July 2012 and Thursday 19th July 2012 commencing at 3.00 pm on Tuesday 17th July 2012 and ending at 8.00 pm the same day. Then recommencing on Wednesday 18th July 2012 at 10.00 am and ending at 6.00 pm the same day. Continuing on Thursday 19th July 2012 commencing at 10.00 am and ending at 6.00 pm the same day.
  27. Between Elimination Count 1 to 17 the Second Respondent was assisted by Assistant Returning Officer Nicholas Baroro. However at the end of Elimination Count 17 the Fourth Respondent sent text message to the mobile phone of the Second Respondent asking the Second Respondent to stand down the Assistant Returning Officer Nicholas Baroro.
  28. The next day, Friday 20th July 2012 when Elimination Counts 18 to 22 took place Assistant Returning Officer Nicholas Baroro was not part of the counting as had been requested by the Fourth Respondent.
  29. During the entire sorting out and counting of the ballot papers at both the counting of first preferential votes and the eliminations counting officials counted ballot papers like bank tellers counting bank notes and in doing so prevented or denied the Petitioner's scrutineers and all other scrutineers from properly scrutinizing the ballot papers placed in the respective Candidates' trays.
  30. The ballot returns for the Gazelle Open Electorate were not provided by the First and Second Respondents at the commencement of counting to verify and authorize the ballots returned by the different polling teams in the Gazelle Open Electorate. By reason of this failure the Poling and Counting Officials were able to cover up the irregularities, illegal practices and errors and or omissions at the Counting Centre.
  31. The petitioner does not state in any of the 30 paragraphs that the facts individually or in combination amount to an irregularity, illegal practice or error and omission.
  32. Section 215 of the Organic Law deals with "illegal practices" which Injia. J (as he then was) interpreted in Dick Mune v Anderson Agiru & Ors (1998) SC 590 to mean electoral criminal offences (which one finds under Part XVII of the Organic Law in addition to the election-related offences created by the Criminal Code). His Honour further held that mere breach of statutory duty under the Organic Law by electoral officials amounts to an "error or omission" referred to in s. 218 of the Organic Law. I agree with these interpretations. While there is no reference to the term "irregularity" in either s. 215 or s. 218, my view is that this term also refers to a breach of statutory duty under the Organic Law by electoral officials.
  33. In Mune v. Agiru & Ors (supra) it was also decided that an election result should be set aside:
  34. In Neville Bourne v. Manasseh Voeto (1977) PNGLR 298, Frost, CJ observed:

There are two types of cases which comes before this Court under the Disputed elections provisions of the Organic Law and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of these corrupt or illegal practices including undue influence.


  1. Sawong, J in Mathias Karani v Yawa Silupa (2003) N2385 held that:

Any allegations in a petition alleging illegal practises must plead material facts to show the following:


(a) The illegal practise;
(b) The illegal practise was either committed by the successful candidate or committed by another person but with the successful candidate's knowledge or authority;
(c) The result is likely to be affected by the illegal practise;
(d) It would be just that the candidate should be declared not duly elected or the election be declared void;

......................................................


Allegations in petitions founded on errors or omissions must provide facts to show the following;


(a) The error or omission complained of;
(b) The error or omission was committed or made by the electoral officer; and
(c) The error or omission "did affect the result of the election".
  1. Since the case of Neville Bourne v Manesseh Voeto (supra), the law requires that if illegal practices (electoral and Criminal Code offences) are alleged all the constituent elements of the offences must be pleaded in the grounds of a petition according to s 208 (a).
  2. Based on the above principles, I can only conclude that under Part B of the petition, the petitioner has not properly pleaded the facts that are required by s. 208(a). It is difficult to understand from most paragraphs what illegal practice, irregularity and error or omission is being alleged. Where the facts are meant to indicate an illegal practice, it is not asserted as such, the essential elements of the offences are not pleaded nor is it claimed that this affected the election result or that it is just that the candidate should be declared not duly elected or the election be declared void. Similarly, where the facts are intended to show an irregularity, error or omission, it is not pleaded as such nor is it claimed that this affected the election result.
  3. "Facts" 4-10,15, 20, 21 and 29 indicate a complaint that the scrutiny of the counting was not conducted properly. It would appear that a breach of s. 151(c) of the Organic Law is being alleged – that the counting was not "open to the inspection of the scrutineers". Although this is not pleaded, there is no requirement to plead the law: Dick Mune v. Anderson Agiru & Ors (supra). But the facts are not sufficient. Did the scrutineers ask or attempt to improve their position to properly witness the counting and did the officials deny them? Where it is stated that the scrutineers were not present, why was this? Was it due to and error or omission of the electoral officials? And what were these errors or omissions? The allegations also do not state whether all these affected the result of the election.
  4. The other allegations in this Part B are not clear or sufficient for the respondents to properly answer, and for this Court to properly understand the issues involved. More clarity and particulars are needed and if further particulars are required to properly understand the grounds of the petition, the petitioner has not complied with s. 208(a); Martin Thompson v James Pokasui [1988] PNGLR 210.

The petition – Part C


  1. Part C of the petition reads:
    1. GENERAL ALLEGATIONS BY WAY OF IRREGULARTIES AND ILLEGAL PRACTICES AND ERRORS AND OR OMISSIONS BY THE SCRUTINY OFFICIALS DURING THE SCRUTINY OF THE BALLOT PAPERS
    1. The Petitioner disputes the election result of Gazelle Open Seat on the grounds of irregularities, illegal practices and errors and or omissions during the scrutiny of the votes and the counting process of Kairak Resource Centre at Vudal University by the Electoral Officers and Officials appointed by the First and Second Respondents.
    2. The illegal actions and or omissions of the Electoral Officers and Petitioner took place at the Counting Centre which amounted to irregularities, illegal practices and errors and or omissions during the counting and scrutiny of the First Preferential Votes and the elimination process.
    3. The Petitioner further disputes the result of the election on the basis that the irregularities, illegal practices and errors and or omissions committed by the First and Second Respondents, their Officers, Servants and Agents at Kairak Resource Centre Vudal University were such that these irregularities, illegal practices and errors and or omissions were sufficient to affect the result of the Gazelle Open Seat in the 2012 National Elections.
    4. Further, had these irregularities, illegal practices and errors and or omissions not been committed the Petitioner's total votes would have been higher than that of the Fourth Respondent and this would have resulted in the Petitioner been declared the duly member for the Gazelle Open Electorate Seat in the National Parliament.
    5. The Petitioner claims that those irregularities, illegal practices and errors and or omissions on the part of the First and the Second Respondents, their Officers, Servants and Agents with the knowledge and authorization of the said First and Second Respondents are illegal and irregular acts contrary to Section 147, 149, 150, 151(c), 153A (1)(a) and (b), 191(8) and (14) and 154 of the Organic Law on National and Local Level Government Elections (Amendment) Law 2006 and Section 110 and 111 of the Criminal Code Act, Chapter 262 and Section 50(1)(c) and (d) of the PNG Constitution.
    6. Those irregularities, illegal practices and errors and or omissions on the part of the First and Second Respondents, their Officers, Servants and Agents have duly affected the counting and the scruitiny of all ballot papers resulting in the Fourth Respondent been declared as the duly elected member for Gazelle Open Electorate.
  2. This Part lists alleged irregularities, illegal practices and errors and or omissions committed by the Electoral Commission through its officials. The allegations are very general in nature suggesting breaches of the law, but there are no supporting facts to these allegations. Again I find these general allegations in Part C (even if read with Part D which makes reference to Part C) do not meet the requirements of s. 208(a).

The petition – Part D


  1. Part D of the petition then reads:
    1. LEGAL GROUNDS
    1. Irregularities, Illegal Practices and Errors and or Omissions by the First and Second Respondents

The Facts as stated in –


(i) Paragraph A sub paragraph 1 to 14
(ii) Paragraph B sub paragraph 1 to 30
(iii) Paragraph C sub paragraph 1 to 6

are:-


(a) Factual irregularities, illegal practices and errors and or omissions on the part of the Officers, Servants and Agents of the First and Second Respondents. Such irregularities, illegal practices and errors and or omissions were either committed deliberately or by way of negligence or recklessness on the part of the Officers, Servants and Agents of the First and Second Respondents thereby encouraging such foul play;

(b) Deliberate interference with the scrutineers line of duty by the First and Second Respondents, their Officers, Servants and Agents so that corrupt and foul play could not be detected, are irregularities, illegal practices, errors and or omissions amounting to breaches of Sections 147, 150, 151(b) and (c), 152, 153A(2) and 154 (roles of scrutineer(s) of the Organic Law on National and Local Level Government Elections consolidated to Organic Law on National and Local Level Government Elections (Amendment) Law 2006.;

(c) Breaches of Section 191 relating to offences 8 and 4 of the Organic Law on National and Local Level Government Elections consolidated to Organic Law on National and Local Level Government Elections (Amendment) Law 2006;

(d) Breaches of Sections 110 and 111 of the Criminal Code Act Chapter 262; and

(e) In breach of Section 50(1)(c), and (d) of the Constitution.
  1. This Part merely states in very general terms that all the "Facts" comprising Parts A, B and C constitute breaches of the law (including the Organic Law, the Criminal Code and the Constitution) without specifying which fact or facts constitute what particular breach or breaches of the law. As I earlier discussed, the pleadings in the petition cannot be allowed to have the opposing party guessing as to the grounds raised by the allegations and the Court left unclear as to the relevant issues, as this would be contrary to s. 208(a).

Conclusion


  1. In the end I find that Parts A, B, C and D either separately or jointly (in any combination) and therefore this election petition fails to meet the requirements of s. 208(a) of the Organic Law.

Costs


As earlier noted, non-compliance with the Rules including Practice Directions should be neither condoned nor encouraged. While costs normally follow the event and I have ruled in his favour, I consider the fourth respondent should be penalised for the Application which he raised very late. The other respondents should similarly pay for supporting the Application.


Orders


  1. The formal orders of this Court are:

_________________________________________________________


Donald & Co: Lawyers for the Petitioner
Kimbu & Associates: Lawyers for the First, second and third Respondents
Young & Williams: Lawyers for the fourth Respondent

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