N4947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 06 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND
IN THE MATTER OF DISPUTED RETURNS FOR THE MANUS PROVINCIAL ELECTORATE

BETWEEN

MICHAEL T. SAPAU
Petitioner

AND

PARKOP POSANGAT
Returning Officer, Manus Provincial Electorate
First Respondent

AND

ANDREW TRAWEN
Commissioner, Papua New Guinea Electoral Commission
Second Respondent

AND

PAPUA NEW GUINEA ELECTORAL COMMISSION
Third Respondent

AND

CHARLIE BENJAMIN
Fourth Respondent

Lorengau: Sawong, J.
2013: 07th & 08th January

ELECTION PETITIONS – Practice and Procedure – objection to competency – grounds of – insufficiency of pleadings – Allegations of bribery – Allegations of illegal practices during conduct of elections – Allegations of errors and omissions – Pleading of relevant or material facts – Organic Law on National and Local-level Government Elections – Sections 208, 215, 218 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Case Cited

Arnold Amet v. Peter Yama [2010] SC 1064
Papol v. Temo & Electoral Comm [1981] PNGLR 178
Biri v. Ninkama [1982] PNGLR 342
Holloway v, Ivarato & Another [1988] PNGLR 99
Kopaol v. Embel [2003] SC 727
Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463
Francis Koimanrea v. Alois Summunda [2003] N 2421
Ludger Mond v. Jeffrey Nape [2003] N 2318
Simon Sawanga v. Gordon Winus & Electoral Commission
Ephraim Apelis v. Sir Julius Chan [1998] SC 573
Beseoh v. Bao [2003] N 2348

Counsel
 
L. Yandaken, for the Petitioner
J. Kolkia, for the First, Second and Third Respondents
N. Kiuk, for the Fourth Respondent

RULING

08th January, 2013

1. SAWONG J: Introduction: This was an Election Petition by the Petitioner who was the runner up in the Manus Provincial Electorate in the 2012 General Elections. The winner for the said electorate is Charlie Benjamin, the fourth Respondent in these proceeding. 

2. The Petitioner has challenged the return of Mr. Benjamin on two basic grounds – first that the electoral officials committed errors, omissions or illegal practices in the conduct of the elections. The second category of grounds alleged various acts of bribery alleged to have been committed by either, Mr. Benjamin or his agents and/or supporters on various dates and at various locations in the Manus Province.

3. The Proceedings were set down for trial to commence on 7th January 2013. At the commencement of the trial, Counsels for the Respondents indicated that they would make oral competency applications. Mr. Yandaken, for the Petitioner raised some matters, not relating to the competency issue. I then adjourned the matter to 1:30pm in the afternoon to hear the Competency Applications. Counsels have made submissions. This ruling relates to those applications.

4. It is settled law on election petitions, that a Respondent to a petition or the Court may by its own volition raise the competency of any ground in a petition.

5. The competency issue is a jurisdictional issue, for instance it may be raised that a particular ground in a petition did not plead the necessary relevant facts or that it did not plead the necessary elements, for instance an act of bribery. A competency issue is not concerned with the merits of the petition.

6. The issue of Competency concerns the validity of the proceedings and may be raised at any stages of the proceedings. see Sir Arnold Amet v. Peter Yama [ 2010 ] SC 1064.

7. Competency issues arise at these initial stages because of the requirements of s. 208, 209 and 210 of the Organic Law on National and Local Level Government Elections ("the Organic Law).

8. Section 208 of the Organic Law sets out the pre requisites of an Election Petition. It reads: 

"S. 208 Requisites of Election Petition.

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's 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;

9. The Petitioner must comply with each of the five (5) pre requisites. If a petitioner does not comply with any of these 5 requisites, the petitioner cannot proceed any further. This is so because of the effect of s. 210 of the Organic Law. Section 210 of the Organic Law prohibits a petition from being heard unless the requirements of s. 208 and s. 209 of the Organic Law have been fully met. See Papol v. Temo & Electoral Commission [1981] PNGLR 178, Biri v. Ninkama [1982] PNGLR 342.

10. Section 208 (a) of the Organic Law is very important. It requires a petitioner to "set out the facts relied on to invalidate an election". This provision has been discussed and analysed in many National and Supreme Court decisions.

11. As to what constitutes "facts" that ought to be pleaded in a petition for the purposes of s. 208 (a) of the Organic Law, the Courts have set out clearly what facts need to be pleaded. In Holloway v, Ivarato & Another [1988] PNGLR 99, the Supreme Court said:

"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 or return may be invalidated, but not the evidence by which it or they might be proved. The purpose of pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved".

12. In Review, Pursuant to Constitution S. 155 (2)(b); Kopaol v. Embel [2003] SC 727, the Supreme Court approved the following passage by Sheehan J, in his decision in Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463 where he said:

"Any aggrieved person has the right to bring a petition shall enjoy a election for breaches of the electoral process. But an election petition does not inaugurate some general enquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where after all parties have aired this dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific changes that, if proved, will result in an election being set aside".

13. Similar sentiments have been expressed by the Supreme Court in Sir Arnold Amet v. Peter Yama [2010] SC 1064.

14. The next relevant provision to consider for the present purposes is s.215 (3) of the Organic Law. It reads:

"215 VOIDING ELECTION FOR ILLEGAL PRACTISES

(1)	…..

(2)	…..

(3)	The National Court shall not declare that a person returned as elected was not duly elected or declare an election void -

(a)	On the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b)	On the ground of an illegal practice other than bribery or undue influence or attempted bribery or under influence;

unless the Court is satisfied that the result of the election was likely to be affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void".

15. Where the allegations or ground or grounds relied upon alleges illegal practices, under s. 215 (3)(a) of the Organic Law, the ground or grounds must plead that the act or acts constituting the illegal act or acts and must also plead that act or acts relied upon was likely to affect the results of the elections. Further, it would be helpful to plead the number of votes received by the winner and the runner-up to determine whether or not the result was likely to be effected. Sir Arnold Amet v. Peter Yama (supra).

16. The Supreme Court in Arnold Amet v. Peter Yama (supra) said that where a petition pleads allegations of illegal practice under s. 215 (3), the Petitioner must plead –

(i)	That the indictment or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes secured by the winner and the runner-up to determine whether or not the results was or would have been affected.

(ii)	It is just that the winning candidate be declared not to be duly elected or election be declared void.

See also Francis Koimanrea v. Alois Summunda [2003] N 2421, Ludger Mond v. Jeffrey Nape [2003] N 2318.

17. Where the ground or grounds relied on is founded on bribery or undue influence, the grounds must not only set the relevant facts constituting the allegations of bribery or undue influence. The ground, must in addition set out the name of person alleged to have been bribed, there must also be allegations that this money, that property or that gift was offered by the successful candidate and that the reason it was given or offered was yet named election to vote or not to vote or interfere unlawfully, as the case may be, in the free voting of an election, per Sheehan, J in Agonia v. Karo & Electoral Commission [1992] PNGLR 463.

18. I now turn to consider the submissions made by each of the parties. The Petition has three parts. These may be conveniently described as follows:

1.	PART A - Background.

2.	PART B - Errors & Omissions of Returning Officer & Electoral Officials.

3.	PART C - Bribery and or Undue Influence.

PART A - BACKGROUND

19. Part A comprises of paragraphs 1 – 11. The critical paragraphs are paragraphs 9, 10 & 11.

20. Paragraph 9 is an allegation against the First Respondent. It alleges that the First Respondent was unduly influenced by the Fourth Respondent and one Jacob Pomat because of their political connections.

21. Paragraph 10 contains an allegation of undue influence by the First Respondent over one Julian Simohen who was engaged as a counting official.

22. Paragraph 11 alleges bribery and polling irregularities alleged to have been committed by First & Fourth Respondents.

23. Mr. Kiuk for the Respondent submits that Part A of the Petition is confusing and ambiguous. He submits that paragraphs 9, 10 & 11 are substantive grounds as they contain serious allegations of bribery, undue influences, assumption of errors or omissions and official irregularities. However, he submits that these grounds are poorly pleaded and that each of these grounds, i.e. paragraphs 9, 10 & 11 have not pleaded the relevant facts. He submitted that all these grounds are incompetent and should be dismissed.

24. Mr. Kolkia did not make any submissions in relation to this part of the petition. Mr. Yandaken for the Petitioner submitted that these paragraphs were part of the background.

25. Paragraphs 1-5, of Part A are really introductory parts. Paragraphs 6 - 8 set out the background to the General Elections in Manus Province. Paragraphs 1 – 8 inclusive, do not contain any allegation and these could not be regarded as grounds for a Petition.

26. In relation to paragraphs 9, 10 & 11 of Part A of the Petition, I accept the submissions by Fourth Respondent. Paragraphs 9 & 10 raise allegations of undue influence, yet they do not state the name of the elector who was unduly influenced, nor does it state the elements of undue influence. Undue influence is a criminal offence under s. 102 of the Criminal Code. The Petitioner has failed to plead the relevant facts in these paragraphs. These are incompetent and are dismissed.

27. In respect of paragraph 11, the allegations of bribery and polling irregularities are alleged. But there are no relevant facts of bribery been pleaded. For instance no named elector has been named, it does not state the element of intention to induce someone to vote or not to vote. In addition this ground is convoluted and confusing.

28. Furthermore, this ground is grounded on alleged illegal practice. That being the case the ground must state or show how the matter complained of affected the election result and how it is just that the duly elected winner be declared not elected. see Simon Sawanga v. Gordon Winus & Electoral Commission, EP No. 10 & 17 of 2012) 20 and 21 November, 2012.

29. Indeed the Petitioner has failed to plead relevant material facts. In the circumstances this ground is incompetent and is dismissed.

PART B

30. I now turn to consider the grounds pleaded in Part B of the Petition. This part relates to allegations of errors or omissions alleged to have been committed by the Returning Officer and electoral officials. This part has two parts. The first part is the introductory part.

31. The first part of Part B is introduced with these words:

"The allegation and or grounds of this Petition generally includes deliberate errors and omissions and/or malpractice, committed by the First Respondent and with the aid of Presiding Officers and Counting Officials during polling and scrutiny of votes at the Counting Centre at the Sahat Hall".

32. Mr. Kiuk submits that this ground is incompetent in that no further facts are pleaded to show what the errors, omissions or malpractice were committed, no names of presiding or counting officers are stated, no dates are set out to show when these alleged errors, omissions or malpractice were committed. 

Mr. Kiuk has also submitted that the opening paragraph is not a ground at all for the same reasons.

Mr. Yandaken submitted that this opening paragraph should be read together with the rest of the grounds in Part B.

33. It is trite that each ground pleaded in a petition ought to be treated separately. In this case, this paragraph does not set out relevant facts, to show what were errors, omissions or malpractice committed. It also does not set out what errors or omissions or malpractices were committed. No names of polling officials are stated and where and when these omissions, errors or malpractices were committed. Accordingly, this ground is incompetent and is dismissed.

34. The second part of Part B pleads 17 grounds. Those are set out under the heading:

PART B: OFFICIAL IRREGULARITIES & OF ERRORS & OMISSIONS IN THE COUNTING ROOM

35. There are a total of 17 grounds pleaded under this heading. The grounds are, to some extent confusing and at times hard to understand. But Mr. Kiuk in his written submissions has put these in a logical grouping and I will use that in my ruling. Thus the grounds may be grouped as follows:

(a)	Grounds 1 & 2. These are related and relate to allegations that the total number of votes casted for Manus Open Seat and the Manus Regional Seat did not match. The total votes, for Manus Provincial Seat was 24,126 and for Manus Open Seat 24,098, a difference of 28 votes.

(b)	Further that these figures did not correspond to the figure of 23,871 as announced by the First Respondent in Radio Manus.

(c)	Ground 3 is separate ground. It relates to the appointment of Julian Simohen as a counting official by the First Respondent. It is alleged that she is a cousin sister of the Fourth Respondent and his supporter. She is alleged to have recorded the tallies whilst the First Respondent was conducting counting for the Regional Seat.

(d)	Grounds 4 & 5 are related. It relate to the allegation that the Fourth Respondent manipulated all the counting process. It is alleged that during this period of counting 1000 ballot papers were found to be informal and that out of that, 823 votes were not signed by the Presiding Officer. From these 823 votes, it is alleged that 680 of these informal votes were for the petitioner.

(e)	Grounds 6, 7 & 8 relates to alleged 15 ghost names added to candidate Elizah Pokarop's votes.

(f)	Grounds 9, 10, 11 & 12 relates to audit and results of the audit conducted by two electoral officers who came from Port Moresby.

(g)	Grounds 13 & 14 relates to six blue ballot paper butts found near the counting centre at Sahat Hall.

(h)	Ground 15 relates to an alleged tampering of ballot box 18.

(i)	Ground 16 relates to hasty declaration of the Fourth Respondent by the First Respondent.

(j)	Ground 17 is a summary of the above grounds.

36. Section 218 of the Organic Law is the relevant provision relating to this part. It reads:

"218. In material errors not to vitiate election.

(1)	Subject to subsection (2), an election shall not be avoided on account of a delay in 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 or an omission by an officer which did not affect the result of the election.

(2)	….."

Subsection (2) is not relevant for the present purposes.

37. This provision has been considered in several cases. In Ephraim Apelis v. Sir Julius Chan [1998] SC 573, the Supreme Court whilst defining the scope and audit of s.218 said:

"We find that s. 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of poll or the return of writ".

38. Subsequently, Injia, J (as he then was) in Beseoh v. Bao [2003] N 2348 amplified this scope. He said:

"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 or 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."

39. Before I deal with the submissions and the rest of the grounds, I wish to deal with ground 4 & 5 first. I do so because Mr. Yandaken in his submission, informed the Court that the word, "Fourth Defendant" appearing in the first line in ground 4 was a mistake. He told the Court that what was intended was to name the First Respondent and he sought to have an amendment made. I refused to allow an amendment, because it is outside the 40 day time limit. That meant that the grounds in particular ground 4 remains as it is. In view of the submission by Mr. Yandaken, I strike out ground 4. As ground 5 is found in ground 4, which has been struck out, it cannot stand. It is therefore, dismissed as well.

40. Turning now to the rest of the grounds and the submissions. I treat the grounds as I have grouped them.

41. Mr. Kiuk submitted that the remaining grounds either taken individually or collectively are poorly pleaded and do not state all relevant facts as required by s.208 (a) of the Organic Law. He submitted that these grounds raise allegations of official errors, omissions or irregularities, during polling, counting and during the conduct of the elections, each ground should plead that the errors, omissions or irregularity affected the results of the election.

42. Mr. Kolkia submitted that grounds 1 & 2 are general observations, they were not facts and they could not be grounds to invalidate the elections.

43. Mr. Yandaken submit that these grounds are competent and should remain. They should be read together and treated as one ground.

44. Insofar, as these grounds; ie grounds 1 & 2 are concerned, I am of the view that these grounds are not grounds at all. Even if, I am wrong on this point, these grounds do not plead, what is the error, omissions or irregularity and how they affect the results of the election. Material facts have not been pleaded. These are dismissed.

45. As to ground 3, Mr. Kolkia submitted that this ground raises an allegation of irregularity or an error. He submitted this ground also did not plead how the appointment of this official affected the results of the election. Mr. Yandaken submitted that this ground is competent and should be allowed to proceed to trial.

46. I have carefully considered the pleadings in ground 3. I have also considered carefully each of the submissions on this ground. In my view, this ground does not state material or relevant facts, for instance it does not plead how the appointment of this particular officer is likely to affect the results of the election. It is incompetent and is dismissed.

47. In relation to grounds 6, 7 & 8, having considered each of the grounds and having considered the respective submissions, these grounds cannot remain. These grounds relate to alleged official errors, omissions or irregularities. As such they were required to plead from the said error, or omissions or irregularity which affected the results of the election. These have not been pleaded. Consequently these grounds are incompetent and are dismissed.

48. Grounds 9, 10, 11 & 12 relates to the audit conducted by the two officers who came from Port Moresby. These grounds do not allege any errors or omissions or irregularity by the audit officers. These are observations of what these two officers did. These grounds could not by any stretch of imagination be said to be grounds of a petition. Even if they are treated as such which they are not, an essential fact has not been pleaded. That is, it is not pleaded how the audit is likely to affect the results of the election. These grounds are incompetent and are dismissed.

49. Grounds 13 & 14 relates to the discovering of 6 ballot paper butts outside the counting room. Mr. Kolkia submitted these grounds raise serious allegations of errors or irregularities by other polling officials and others, such as security personnel. He submitted that the Petitioner has failed to plead relevant facts, such as names of polling officials, security personnel etc who had done what & where & when these acts, omissions, errors or irregularities occurred. Furthermore, these grounds do not plead whether this irregularities or errors were likely to affect the results of the elections.

50. Mr. Yandaken submitted that this ground should not be taken in isolation but should be read together with the other allegations. He submitted that these grounds are competent.

51. I accept the submission by Mr. Kiuk & Mr. Kolkia. The Petitioner has failed to plead material facts. He has not named any electoral officials, who committed what irregularity or error. He has also not pleaded if these errors or irregularities were likely to affect the results of the election. For these reasons, I find that these grounds are incompetent. They are dismissed.

52. Ground 15 relates to an allegation of tampering of Ballot Box 18. Here, the allegations were that the outer seals and inner seals of Ballot Box 18 were broken during its transportation from Pobuna LLG polling area. At the counting centre, disputes were raised for the ballot papers from that box not to be counted. However, the Returning Officer allowed it to be counted.

53. The problem with this ground is that, whilst there were suspicions about its contents, the Petitioner has not pleaded material facts. For instance, it has not pleaded whether the counting of the ballot papers from this box was likely to affect the results and how that was. As it is, it is incompetent. The Court is not interested in suspicions, but facts. Consequently, this ground is dismissed.

54. Ground 16 relates to an early declaration of the Fourth Respondent as winner by the First Respondent. It is an allegation in the nature of an error or irregularity committed by an electoral official. That being the case, the petition is required to plead relevant facts of the error or omissions or irregularity by the electoral official. He is also required to plead whether this error, omission or irregularity was likely to have affected the results of the election. Hence, the several aspects of the facts have not been pleaded. This ground is therefore incompetent and is dismissed.

55. Ground 17 is grounded as on grounds 4, 5, 6, 7, 8 & 9. These grounds have been dismissed as being incompetent. It follows that ground 17 cannot stand alone. It too is dismissed.

PART C

56. There are two parts in this part of the petition. There are 4 grounds. Ground 1 relates to bribery and ground 2 – 4 relates to undue influence. I have already set out in the earlier part of this ruling the requirements of the law, in relation to grounds founded on bribery, undue influence etc.

57. Nevertheless, it is helpful to restate here. I can do no better than to adopt what Sheehan, J said in Agonia v. Albert Karo (supra), where he said:

"because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all relevant material facts to establish such an offence. That indicates the necessity to spell out in clear terms the elements of that offence. In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that this may, that property or that gift was offered by the successful candidate, and that the reason that it was or offered was to get the named person (elector) to vote or not to vote, or to interfere unlawfully, as the case may be, in the free voting of an election."

58. I propose to grounds 2 - 4, first for reasons that will become obvious. Grounds 2 – 4 relate to allegations of undue influence allegedly committed by supporters of the Fourth Respondent.

59. Ground 2 alleges that on 28th June 2012, during polling at Nilan village, a Galden Bolerak, a known supporter of the Fourth Respondent gave out food to people there and told them that the food came from the Fourth Respondent and the people should eat and drink and vote the Fourth Respondent.

60. This ground does not state material facts. For instance, it does state names of the people who were given these food. There are no facts stating that these named person were electors or eligible to vote. It is incompetent and is dismissed.

61. In relation to grounds 3 & 4, I adopt the same reasons as set out above. I therefore strike out these grounds as being incompetent.

62. Turning now to ground 1, the ground pleads that the Fourth Respondent gave K50.00 to an elector, one Willy Lawrence, on 24th June 2012 at Sori village and told Willy Lawrence to vote him, the Fourth Respondent. In respect of this ground, I am satisfied this ground has been properly pleaded. In my view, all relevant material facts are pleaded. Accordingly, this ground is competent and will proceed to trial.

63. In summarizing them, the following grounds are dismissed as being incompetent, namely:

1.	PART A - Grounds 9, 10 & 11.

2.	PART B - From the opening paragraph, in paragraph 3 and grounds 1 – 17 inclusive.

3.	PART C - Grounds 2 – 4 inclusive.

64. Ground 1 in Part C of the Petition is to proceed to trial.

_____________________________---___________________________
Yandaken Lawyers: Lawyer for the Petitioner 
Kimbu Lawyers: Lawyer for the First, Second & Third Respondents 
Nikuma Lawyers: Lawyer for the 4th Respondent