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Kikala v Electoral Commission of Papua New Guinea [2013] PGNC 15; N4960 (18 January 2013)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 18 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 LAIGAP-PORGERA OPEN ELECTORATE

BETWEEN

PHILIP KIKALA
Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

NIXON KOEKA MANGAPE
Second Respondent

Wabag: Makail, J
2013: 07th, 08th & 18th January

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficiency of pleadings – Allegations of bribery – Allegations of illegal practices during polling – Allegations of errors and omissions – Pleading of relevant or material facts – Alternative pleadings – Whether permissible – Permissible if not contradictory or confusing – Organic Law on National and Local-level Government Elections – Sections 208(a), 210, 215, 217 & 218 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Attestation of petition – Meaning of attest – Purpose of – Failure of – Petition incompetent – Organic Law on National and Local-level Government Elections – Sections 208(d) & 210 – National Court Election Petition Rules, 2002 (as amended) – Rule 15.

Cases cited:

Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718
Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727
James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899
Jeffrey Turia -v- Gabriel Nelson (2008) SC949
Iambakey Okuk -v- John Nilkare [1983] PNGLR 28
In Re Moresby North East Election Petition (No 2), Patterson Lowa -v- Goasa Damena [1977] PNGLR 448
Kevin Masive -v- Iambakey Okuk & Johannes Kenderop [1985] PNGLR 263
David Lambu -v- Peter Ipatas (1997) N1701
Delba Biri -v- Bill Ninkama [1982] PNGLR 342
Jimson Sauk -v- Don Pomb Polye (2004) SC769
Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763
Barry Holloway -v- Aita Iwarato & Electoral Commission [1988] PNGLR 99
Sir Arnold Amet -v- Peter Charles Yama & Electoral Commission (2010) SC1064
In the matter of Re Lufa Open Electorate; Komane Asano Wasaenge -v- Mathias Karani & Electoral Commission (1997) N1617
Raymond Agonia -v- Electoral Commission & Albert Karo [1992] PNGLR 463
Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th December 2012)
Albert Karo -v- Lady Carol Kidu [1997] PNGLR 28
Charles Luta Miru -v- David Basua (1997) N1628
Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385
Re Ben Semri (2003) SC723
Paias Wingti -v- Rawali & Electoral Commission (2008) N3285
Ben Micah -v- Ian Ling-Stuckey & Electoral Commission (1998) N1791
John Wemin Mili -v- Simon Philip Gaima [1997] PNGLR 645
Dick Mune -v- Anderson Agiru(1998) SC590
Ludger Mond -v- Jeffrey Nape (2003) N2318
Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635
Alfred Manase -v- Don Pomb Polye and the Electoral Commission (2008) N3534
Francis Koimanrea -v- Electoral Commission & Paul Tiensten (2003) N2421

Text & References

Oxford Advanced Learner's Dictionary, 7th ed, 2007, Oxford University Press, London

Counsel:

Mr J Kennedy, for Petitioner
Mr H Viogo, for First Respondent
Mr P Mawa, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

18th January, 2013

1. MAKAIL J: I have delayed the ruling on two objections to competency filed by the respondents because parties have raised numerous compelling arguments which needed proper consideration. Counsel for each party prepared detailed written submissions and spoke to them at length during the hearing. The written submissions and oral arguments have greatly assisted me in my deliberation and I thank each counsel for his assistance. The objections challenge the competency of the petition by the petitioner who is disputing the election of the second respondent as member-elect for Laigap-Porgera Open Electorate following the 2012 General Election.

Background

2. The second respondent Honourable Nixon Koeka Mangape was declared member-elect on 27th July 2012 after he polled a total of 35,804 votes defeating the petitioner who polled a total of 30,648 votes. On 14th August 2012, the petitioner filed this petition. The petition raises five main grounds:

2.1. Ground 8.1- The second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament.

2.2. Ground 8.2 - The second respondent was occupying a public office as chairman of Porgera Development Authority ("PDA") and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament.

2.3. Ground 8.3 - Bribery.

2.4. Ground 8.4 - Illegal practices during polling.

2.5. Ground 8.5 - Errors and omissions on the part of the first
respondent.

3. The respondents bring the objections to competency pursuant to section 210 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and Rule 15 of the National Court Election Petitions Rules, 2002 (as amended) ("EP Rules").

Grounds of Objection

4. The grounds of the objections can be summarised into four main grounds:

4.1. Name of second respondent on common roll.

4.2. Holding of public office without resigning.

4.3. Insufficient facts, lack of clarity and alternative pleadings of the petition.

4.4. Attestation of petition by witnesses.

5. The respondents raise specific objections in relation to the allegations of bribery, illegal practices, errors and omissions and submit that the facts are inadequate, lack clarity and contradictory. In general, they object and submit that the allegations of fact raising all the grounds are also pleaded in the alterative and alternative pleadings are not permitted in election petition cases. I propose to deal with each ground of objection by starting with the general ground of objection first. This is the ground on alternative pleadings.

Alternative pleadings

6. The ground on alternative pleadings is a general one as it applies to all of the grounds of the petition. The respondents object to the petition because the petitioner has pleaded each ground of the petition in the alternative. For example, in the first ground of the petition, he alleges that the second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament. In the alternative, he alleges that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. In the further alternative, he alleges bribery. In the further alternative, he alleges illegal practices during polling and in the final alternative, errors and omissions against the first respondent.

7. Relying on the cases of Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2009) N3718, Robert Kopaol -v- Philemon Embel & Electoral Commission (2003) SC727 and recently James Yoka Ekip & Simon Sanagke -v- Gordon Wimb & Electoral Commission (2012) N4899, the respondents submit that alternative pleadings are not permitted. The reason being, they confuse the respondents in the defence of the petition. Thus, it is incumbent on the petitioner to elect which ground of the petition he intends to pursue against the respondents. He cannot have it both ways. As he has drafted and presented his grounds of the petition in the alternative, they are incompetent and must be struck out in their entirety.

8. The petitioner submits that this ground of objection was not pleaded in the notices of objection to competency. Thus, he was not given notice that the respondents would be objecting to the petition on this ground, hence has been prejudiced. In the alternative, he submits that while the starting sentence of each ground begins with the words "Further to or in the alternative", they are not contradictory or confusing. Each ground of the petition is plain and clear and if read on its own or with the other grounds, it is reasonable to expect that the respondents will know what to meet at trial.

9. While I accept that the respondents did not put the petitioner on notice that they would be objecting on this ground, I note at the hearing, his counsel ably made submissions on this ground. Thus, I am not satisfied that the petitioner has been prejudiced by the late notice and I will consider this ground. Without descending into a consideration on whether the facts supporting each ground of the petition are sufficient but simply taking each ground on face value, this ground can be disposed off fairly quickly.

10. The three cases relied upon by the respondents suggest that a petitioner is not permitted to plead grounds of a petition in the alternative. However, I am unable to find in the Organic Law on Elections or the EP Rules, a provision prohibiting alternative pleadings in the petition. Neither do the cases relied upon by the respondents cite any law prohibiting alternative pleadings in an election petition. Indeed, in submissions, the respondents conceded that there appears to be no law prohibiting alternative pleadings in election petitions. The above cited cases suggest that alternative pleadings are not permitted because they may be contradictory or confusing. I am of the view that as there is no law prohibiting alternative pleadings, pleading alternative grounds of a petition is permitted as long as they do not contradict each other or are not confusing. For this reason, I would dismiss this ground.

11. If I am wrong on this point, taking the pleading of the grounds in the petition as they are and appreciating that each ground begins with the words "Further to or in the alternative", I am not satisfied that the pleading of each ground is contradictory to the other or are confusing such that the respondents are prejudiced in their defence of the petition. In my view, the words "Further to or in the alternative", does not change the substance of each ground. Each ground is plain and clear and it can reasonably be expected that the respondents will know what to meet at trial. In any case, the words "Further to" means what it say. It is adding a further ground to an earlier ground or grounds that the petitioner would be relying on in the petition.

12. For example, if he fails to prove that the second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a member of Parliament, then he can rely on the further ground that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. Same reasoning is given for the other grounds. Thus, I fail to see how these grounds are contradictory or confusing. For these further reasons, I dismiss this ground.

Name of second respondent on common roll.

13. Next, the respondents seek to strike out the first ground of the petition because it is misconceived and therefore, incompetent. They submit that if the second respondent's name is not on the common roll for the Laigap-Porgera Open Electorate, it does not mean that he is not a registered voter, hence disqualified from nominating and contesting the election. They submit that by virtue of sections 64(2) and 131(2) of the Organic Law on Elections, he is a registered voter and eligible to nominate and contest the election. These provisions of the Organic Law on Elections should put to rest the debate.

14. In reply, the petitioner submits that this ground of objection is misconceived because it is not a jurisdictional ground under any of the "requisites" of a petition under sections 208 or 209 of the Organic Law on Elections. He relies on the Supreme Court decision in Jeffrey Turia -v- Gabriel Nelson (2008) SC949 where the Supreme Court held, inter-alia, that a proper ground of objection to competency is one that draws the Court's attention to a question of jurisdiction.

15. In the alternative, he submits that it is a proper ground in law and one for trial because it raises the question of eligibility or qualification of the second respondent to nominate and contest the election. This ground is the same as the grounds on age and residential qualifications of a candidate under section 103 of the Constitution as was considered by the Court in Iambakey Okuk -v- John Nilkare [1983] PNGLR 28 where the Court said:

"In my opinion, it is not conceivable that Parliament in adopting the Constitution could have contemplated that a man could be a candidate and stand for national elections when it was known that when he came to take his seat, he would not be qualified. It must follow from s. 103 of the Constitution that if the candidate is not twenty-five when he comes to take his seat, that he was not qualified to stand in the first place."

16. As to the residential qualification, the Court said:

"If the candidate were declared disqualified on the basis of lack of residential qualification, then he was disqualified to be a member ab initio, and it followed that he was not qualified to be nominated as a candidate....... It would follow from such a declaration that the nomination was invalid at the outset."

17. Finally, he submits that the provisions of the Organic Law on Elections, sections 64 and 131 are conflicting. They appear to have been amended by Parliament sometimes in 2006 and favour the respondents but there is no evidence of certification by the Speaker of the National Parliament to verify that these provisions were amended and are in force. He has a copy of the Organic Law on Elections that does not have the purported amendments. The conflict in provisions of the Organic Law on Elections is further reason for this ground of the petition to go to trial.

18. I note in submissions, parties accepted that the question of qualification of a candidate to nominate and contest election can be raised in an election petition. There is also authority for this proposition: In Re Moresby North East Election Petition (No 2), Patterson Lowa -v- Goasa Damena [1977] PNGLR 448 and Kevin Masive -v- Iambakey Okuk & Johannes Kenderop [1985] PNGLR 263. Thus, the issue is properly before the Court for determination.

19. I uphold the first part of the petitioner's submissions. It is clear that the ground of objection does not draw the Court's attention to the question of jurisdiction: Jeffrey Turia's case (supra). It goes to the merits of the ground of the petition; the question of qualification. In other words, the petitioner is saying the second respondent is disqualified from nominating and contesting the election because he is not a registered voter and the second respondent is saying, he is entitled to do so. These competing arguments raise a triable issue for proper consideration at trial. The parties' further submissions including the one on the application of the correct provisions (sections 64 and 131) of the Organic Law on Elections can be raisedat that time. Thus, I need not consider them. This ground is dismissed.

Holding of public office without resigning.

20. The respondents seek to strike out the second ground of the petition because it is misconceived and therefore, incompetent. The petitioner alleges that the second respondent was occupying a public office as chairman of PDA and did not resign prior to nominating and as such was not qualified to nominate and be elected as a member of Parliament. They submit that this is not a ground in law that is capable of or can invalidate an election result. It has nothing to do with the qualification requirements of a candidate under section 103 of the Constitution. At the highest, it raises a leadership issue but that is a matter that can be dealt with by the Ombudsman Commission at its own time and separately from an election petition. They cite section 9 (Engaging in other paid employment) of the Organic Law on Duties and Responsibilities of Leadership and the case of David Lambu -v- Peter Ipatas (1997) N1701 to support their submissions.

21. The petitioner repeats and adopts his submissions in relation to the ground on failure by the second respondent to have name on the common roll. Again, I uphold the first part of the petitioner's submissions. It is clear that the ground of objection does not draw the Court's attention to the question of jurisdiction: Jeffrey Turia's case (supra). It goes to the merits of the ground of the petition; the question of qualification. From the respondents' submissions, it is clear that they are contending that the ground has no merit, is frivolous and vexatious. But it must not be confused with the question of competency. The case of David Lambu (supra) can be distinguished. It appears the Court struck out a similar ground when it was raised in a "preliminary application." In this case, it is raised in an objection to competency. For these reasons, this ground is dismissed.

Insufficient facts and lack of clarity of pleadings in the petition.

22. The next ground is in relation to insufficiency of facts or lack of clarity of pleadings in the petition. The parties took no issue with the principle that a petition will not proceed to trial if the mandatory requirement of section 208(a) Organic Law on Elections is not met or complied with. Section 208 states:

"208. Requisites of 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 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)." (Emphasis added).

23. The second respondent submits that the Supreme Court has taken two positions when determining whether a petition is in compliance with the mandatory requirement of section 208(a). The first is a strict one as in the case of Delba Biri -v- Bill Ninkama [1982] PNGLR 342 and the other is a liberal one as in Jimson Sauk -v- Don Pomb Polye (2004) SC769 and Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763. The petitioner after distinguishing the latter two cases from the case of Delba Biri (supra), generally accepts the position that Delba Biri's case (supra) is still the authority for the proposition that the petitioner must strictly comply with the mandatory requirements of sections 208 and 209 (supra).

24. I accept the petitioner's submission. I am not satisfied that there is a distinction in the way the Supreme Court and the National Court has applied section 208(a) (supra). The Supreme Court in the cases of Jimson Sauk and Ginson Goheyu Soanu did not water down the strict requirement of section 208(a) (supra) and these two cases can be distinguished on their facts because they dealt with the application of section 206 of the Organic Law on Elections and not section 208(a). The Supreme Court held in each case that section 206 (supra) is not a "requisite" of a petition under section 208 (supra) such that failure to comply with it renders a petition incompetent. I agree with Kandakasi, J in his recent decision in James Yoka Ekip (supra) at 10 when the same kind of submission was made by counsel for the Returning Officer for Hagen Open Electorate and after referring to the cases of Jimson Sauk and Ginson Goheyu Soanu said:

"Contrary to the submissions of learned counsel for the First Respondent, Mr. Kongiri, I note that the Supreme Court in the Jimson Sauk and Ginson Saonu cases did not water down the need to meet the strict requirements of s. 208, 209 and 210 of the Organic Law on Elections."

25. Section 208(a) (supra) only requires the petitioner to state the facts he relies upon to invalidate an election or return. However, case laws require the facts supporting the allegations to be made with clarity and sufficiency and not mere allegations. Many of them have been cited by counsel for the parties in their respective submissions and they take no issue with this principle of law.

26. Some of the cases are Delba Biri (supra), Barry Holloway -v- Aita Iwarato & Electoral Commission [1988] PNGLR 99, Sir Arnold Amet -v- Peter Charles Yama & Electoral Commission (2010) SC1064, In the matter of Re Lufa Open Electorate; Komane Asano Wasaenge -v- Mathias Karani & Electoral Commission (1997) N1617, Raymond Agonia -v- Electoral Commission & Albert Karo [1992] PNGLR 463 and Tom Nunue -v- Bire Kimisopa & Electoral Commission: EP No 53 of 2012 (Unnumbered & Unreported Judgment of 04th December 2012).

27. Restating how a petitioner must plead the grounds of the petition to invalidate an election or return, in Barry Holloway's case (supra), the Supreme Court said:

"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208 (a) of the Organic Law. The facts set out under s 208 (a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies."

28. As to what constitutes "facts", 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."

29. And how the facts must be set out, the Supreme Court said:

"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."

30. Further emphasising the need to plead facts, in Albert Karo -v- Lady Carol Kidu [1997] PNGLR 28, his Honour Injia, J (as he then was) whilst affirming the principle in Barry Holloway's case (supra) said:

"In my view, clause 6 breaches the "facts only and not the evidence" rule laid down by the Supreme Court in Holloway v Ivarato. The purpose of pleading only the relevant or material facts and not the evidence which constitute a ground is to indicate clearly to the Court and the opposing party the precise issues. To plead evidentiary materials in a vague and piece-meal manner as the present Petitioner has done in clause 6 is to leave the Court and the Respondents guessing as to what the precise factual allegations are. This results in the Court having to waste precious time reading through pages of evidence, which in this case runs for two (2) pages. It is not intended by OLNE S. 208 (a) and S. 210 that the Court should waste time reading through the material and working out for itself the precise relevant or material facts which may be buried in a load of evidence in a petition."

Bribery

31. I turn to the ground on bribery. All the parties accept that an allegation of bribery or attempted bribery against a successful candidate is, in fact, a charge that an election should be overturned because a criminal offence under section 103 of the Criminal Code has been committed. In Raymond Agonia's case (supra), Sheehan, J said at 469:

".......... because "an election petition is a very serious thing," because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes 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, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."

32. See also Charles Luta Miru -v- David Basua (1997) N1628 and in Mathias Karani -v- Yawa Silupa & Electoral Commission (2003) N2385, Sawong, J stated this in relation to pleading bribery or undue influence:

"The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of s. 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s. 103 of the Criminal Code. Anything short of that will offend against s. 208(a) and therefore will be fatal. See Bourne v Voeto [1977] PNGLR, Palme v Mel [1988] 808, Agonia v Karo [1992] PNGLR 463, Charles Luta Miru v David Basua and Others [1997] N1628, Ludger Mond v Jeffery Nape (14 January 2003), Miria Ikupu v Sir Mekere Morauta (19 December 2002) EP 05/02, Moses Murray v Sir Michael Somare & Others EP 36/2002, Francis Ali v Frank Oru & Others (EP 37/02).

In Ikupu v Morauta and Murray v Somare (supra), the allegations in the petitions were grounded on bribery. But in either case the petitioner failed to plead one essential element of the offence of bribery - that an elector was bribed. The petition referred to "eligible voter" or named a person without saying whether he was an "elector". In either case the Court struck down all the allegations for that reason."

33. But the parties differ in relation to how the facts supporting the allegation of bribery are to be pleaded. Relying on the above cited cases, the respondents contend that the facts must be specific and must set out the details of malpractice, where, when and what they are. The facts are incomplete because one important material fact that is missing is the location where the second respondent is said to have bribed these persons. There are also no facts setting out the nexus between the PDA and the second respondent and the persons allegedly bribed are not electors. There are no facts setting out the nexus between the persons who received the money and the other electors.

34. The petitioner in response firstly submits that the respondents have ventured outside the grounds of objection in the notices of objection and that has caught him by surprise and given him insufficient time to respond to them. Such conduct by the respondents, he submits amounts to trial by ambush and is completely prejudicial to his defence of the objections. In the alternative, he submits that in the Statement of Agreed and Disputed Facts and Legal Issues for Trial, the second respondent conceded that cheque payments, the subject of the allegations of bribery were made. He relies on the case of Re Ben Semri (2003) SC723 to support this submission.

35. In the further alternative, he submits he has sufficiently and adequately pleaded the relevant or material facts on bribery in each case. The location is the Bank South Pacific Limited ("BSP Bank"). When each person presented the cheque for payment and received cash, that is where the alleged act of bribery took place in each case. He relies on the case of Paias Wingti -v- Rawali & Electoral Commission (2008) N3285, a decision by Cannings, J and submits that the facts are very clear and the respondents can reasonably make out what he is alleging and the issues involved. "They should not pretend that they do not understand the case they have to meet and come to court and be permitted to play dumb."

36. In any case, location is not a material fact and if he has not clearly pleaded it, it does not significantly prejudice the respondents in their defence of the petition because at the very least, it is reasonable to work out that the payments were made at BSP Bank when the cheque payments were made. He has sufficiently pleaded the material facts and they also establish the basic elements of the offence of bribery under section 103 of the Criminal Code. These are:

(a) a person;

(b) gives, confers or procures, promises or offers to give or confer or procure;

(d) to any person.

37. While I accept that the respondents have ventured outside the grounds of objection in their notices of objection, the petitioner has not shown to my satisfaction that he has been prejudiced by the lack of or insufficient notice. Indeed, again, I note at the hearing, his counsel ably made submissions in response to this ground. Thus, I am not satisfied that he has and will be prejudiced if I consider this ground.

38. The issue is whether the facts pleaded in support of each ground of bribery are sufficient, adequate and clear. First, I am not satisfied that I should rely on the Statement of Agreed and Disputed Facts and Legal Issues for Trial in addition to the petition to determine which facts are not disputed by the respondents. An objection to competency is restricted to the petition: sections 208 & 209 (supra). A Statement of Agreed and Disputed Facts and Legal Issues for Trial is derived from evidence, in most cases, from the affidavits filed by the parties in the proceedings. In my view, it is not a pleading and not even part of a pleading. It is a statement of each party's case incorporated into one document for purposes of trial. Thus, if I were to consider the facts set out in the Statement of Agreed and Disputed Facts and Legal Issues for Trial, I would be embarking on a trial without first giving the parties an opportunity to call evidence.

39. The case Re Ben Semri relied upon by the petitioner is inapplicable. It can be distinguished on its facts. That was a case where one of the issues was whether the inner and the outer seals of a ballot box were removed. It was conceded at trial in the National Court and in submissions on review in the Supreme Court by parties that the inner and the outer seals of the ballot box were removed. The Supreme Court held that it was not open to the applicant to dispute that fact once it was conceded. In this case, although the petition is fixed for trial, it is still at the competency stage because of objections raised by the respondents. The Court is therefore not at the stage of receiving evidence, hence it is not open to consider the Statement of Agreed and Disputed Facts and Legal Issues for Trial which purportedly contains undisputed facts in relation to the nexus between the PDA and the second respondent and the money allegedly used to bribed the 9 named persons. For these reasons, I will not consider it.

40. Notwithstanding the above finding, parties have accepted that the petitioner has pleaded 9 instances of bribery. In bribery cases, a petitioner must plead specific or details of malpractice. That is, what the allegations of bribery are, including where, when, name of person allegedly bribed, number of persons allegedly bribed, nature of the property or gift, and the reason that it is was given or offered to get the person bribed to vote in favour of the successful candidate or not to vote for the petitioner or another candidate, as the case may be. The reason being as correctly acknowledged by the parties, an allegation of bribery or even attempted bribery against a successful candidate is, in fact, a charge that an election should be overturned because a criminal offence under section 103 of the Criminal Code has been committed. The cases of Raymond Agonia and Mathias Karani stand for this proposition.

41. Unlike ordinary civil litigation, each ground of a petition is a triable issue on its own and is capable of determining the success or demise of a petition: Ben Micah -v- Ian Ling-Stuckey & Electoral Commission (1998) N1791. It is also open to read the petition as a whole: John Wemin Mili -v- Simon Philip Gaima [1997] PNGLR 645 and Dick Mune -v- Anderson Agiru (1998) SC590.

42. Reading the petition as a whole from paragraph 8.2 inclusive of subparagraphs 8.2.1 - 8.2.4 and paragraph 8.3 inclusive of sub-paragraphs 8.3.1 - 8.3.11, I note that it sets out facts in relation to the nexus between the PDA and the second respondent and the persons allegedly bribed. It names these persons. It also states the number as 9 and out of 9, 7 are electors. The allegations are that the second respondent held the position of Chairman of PDA and did not resign to nominate and contest the election. As Chairman, he "caused" money in various sums from the PDA bank account at BSP Bank to bribe these named persons to vote for him and to be "biased" towards him and solicit votes for him from other electors in the 9 polling areas.

43. The Court has differing views in relation to whether date of the alleged bribery is an essential material fact that must be pleaded in the petition. I am of the view it is essential to plead it because it enables the respondents to know exactly when the alleged bribery took place and will be in a position to identify and locate the witnesses to testify at trial. In the present case, the dates the petitioner relies on are the dates when the cheques were presented for payment at the BSP Bank. In my view, the information is sufficient.

44. The other material fact is the location of the alleged bribery. In my view, it is not sufficient to plead that the alleged bribery took place at the BSP Bank because it was the place where the cheque was presented in return for cash. This information is too vague and will not assist the respondents to identify and locate the witnesses to testify at trial. For all we know is that the recipients of the cheques presented them at the bank but as to where they received them, we do not know. Further, in relation to other electors, we do not know where the recipients gave the money to them. This leads me to the next material fact which is, my view, missing in the petition.

45. There are no facts setting out the intention as required by section 103(a)(i) of the Criminal Code. Intention is a subjective matter and in order to establish it, there must be facts setting it out clearly. Thus, when the cheque payments were made, what where the words allegedly made or uttered by the second respondent to the recipients of the cheques for the petitioner to draw the conclusion and plead that "the payments were made with the intention to procure the recipients' votes and also to induce them to be biased and solicit votes for him." These facts are not set out in each ground of the petition. In my view, while there are facts establishing the nexus between the PDA, the second respondent and persons allegedly bribed, it is not sufficient to establish the intention.

46. In the cases of James Mark (para 8.3.5), Susan Takili (para 8.3.6), Samson Aipit (para 8.3.7) and Grayson Apakali (para 8.3.8), while these persons are electors and the cheque payments were made to induce them to favour the second respondent and further solicit votes for him, there is no nexus in the pleadings between them and the other electors that they used the money to bribe the electors to vote for the second respondent. In other words, there are no facts establishing that the second respondent gave the cash to induce these persons (the named persons) to attempt to obtain votes from third persons. By merely using the words "the alleged payments were made with the intention of procuring the recipients (sic) votes and to be biased towards the Second Respondent and further solicit votes for the Second Respondent", in my view lacks the element of inducement of the second person (named persons), an element of the bribery as set out in section 103(a)(iii) of the Criminal Code. It is also a conclusion of fact not supported by facts in the pleadings.

47. Emphasising the insufficiency of pleadings, how do we know that the cash that these 9 persons received from the bank were used to solicit votes for the second respondent at polling at the named polling areas? All we know is that the petitioner has in each case named the place or area of responsibility each of these 9 named persons took charge. For example, for Ben Penale, the location is Tipinini No 1 Polling Area, for Councillor Ruben Nalepe, Kulapi, Lupilama and Panadaka Polling Areas, for Councillor Palo Wape, Kairik No 1 Polling Area, for Councillor Jack Yanjol, Kairik No 2 Polling Area, for James Mark, Paiam-Suyan (Lukale) Polling Area, for Susan Takili, Paiam Town Polling Area, for Samson Aipit, Yanzakali Polling Area (comprising of Upper Maipage and Lower Maipage), for Grayson Apakali, Apalaka No 1 Polling Area and for Martin Kelei, the entire electorate as he is the Rural Police Commander. But in my view, this information is insufficient.

48. I find the pleadings are insufficient and lack clarity in each case. For these reasons, all grounds alleging bribery are struck out.

Illegal Practices at Polling

49. The next ground is illegal practices at polling. The petition pleads illegal practices at 13 different polling locations. In objecting to these grounds, the respondents refer to section 215(3) of the Organic Law on Elections which provides for illegal practices and rely on Mathias Karani's case (supra) and Ludger Mond -v- Jeffrey Nape (2003) N2318 and submit that any allegations in a petition alleging illegal practices must plead material facts to show the following:

(a) the illegal practice;

(b) the illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate's knowledge or authority;

(d) it would be just that the candidate should be declared not duly elected or the election be declared void.

50. They emphasise that the petitioner must clearly plead the facts in relation to how the illegal practice is likely to affect the result of the election and rely on the cases of Mathias Karani, Ludger Mond (supra) and Greg Mongi -v- Bernard Vogae & Electoral Commission (1997) N1635. They submit that while there are some statements on the nature of illegal practice in each case, first, the petitioner has failed to plead if the illegal practice was committed by the second respondent or committed by another person but with the second respondent's knowledge or authority. Secondly, he has failed to plead that as a result of the illegal act, the result is likely to be affected.

51. In addition, they submit that the pleadings are confusing because the petitioner alleges illegal practices and at the same time alleges errors and omissions. The allegations on illegal practices are distinct and separate from allegations of errors and omissions and they should not be lumped together. This is because the test for proving allegations of illegal practice is different from proof of errors and omissions. The former is whether the result is likely to be affected by the illegal practice (section 215) and the latter is whether the result was affected (section 218). Finally, they submit the petitioner alleges in the alternative errors and omissions and the allegations contradict the allegations of illegal practices.

52. The petitioner in response repeated his earlier submission that the respondents did not give notice in their objections that they would object on this ground. As a result, he was caught by surprise when they objected on this ground and this has prejudiced him. In his alternative submission, he submits that the respondents' complaint about the lack of particulars in relation to the names of persons who marked the ballot papers in favour of the second respondent is without merit because it is impossible for the petitioner to know such facts when such illegal practices occur in secret either behind closed doors or in hiding. He relies on Paias Wingti's case (supra), where the Court held that the petitioner cannot reasonably be expected to know exactly by how many votes the third respondent's tally was inflated in that case. Further, the Court held that the names of the electoral officials allegedly involved in an illegal practice are agents or servants of the Electoral Commission and as such, it is reasonable to expect the Returning Officer and Electoral Commission to know their names.

53. In his further alternative submission, he submits that the case of James Yoka Ekip (supra) can be distinguished on its facts. It was a case where two petitions for the Hagen Open Electoral were consolidated. In one petition, the petitioner accepted the decision of the Returning Officer to reject 21 ballot boxes for scrutiny while in the second petition, the petitioner rejected it. The Court held that the grounds of the contradictory and dismissed them in their entirety.

54. For the same reasons I have given in relation to the preceding grounds, I am not satisfied that he has and will be prejudiced if I consider this ground. In relation to pleading relevant or material facts relevant to allegations of illegal practices at polling, in Tom Nunue's case (supra), Gauli, AJ noted that the pleading in the petition showed that the electoral officials conducted the polling in a manner that appeared contrary to or not in compliance with section 136(1) of the Organic Law on Elections. The presiding officer signed a number of ballot papers and gave them to one John West, a supporter of the candidate John Aaron who marked them out on behalf of the other voters instead of giving a ballot paper to each individual eligible voter to mark it. The presiding officer repeated in the same manner to an unknown supporter of the first respondent. His Honour held that the petition failed to comply with the requirements of section 208(a) (supra) because it did not specifically identify the unknown supporter of the first respondent by name, sex, age and address.

55. I have perused each ground and address them as follows:

(a) Illegal polling at Taiapoko Polling Area.

The allegation of illegal polling is that there was no polling at Taiapoko Polling Area because the polling team comprising of the presiding officer Mr Sam Nicky, Assistant Presiding Officer Pastor Solomon Pikopol, Polling Clerk Jeffrina Ipulu, Door Keeper Isara Pore, Ballot Box Guard Gideon Agamas and Councillor for Taiapoko Mr Lepos Yawauri were dropped off by helicopter at Mandopa. Despite that, the second respondent polled 602 first preference votes out of 611 ballot papers. The second respondent polled this number of votes because Mr Nicky, Mr Pore and Mr Yawauri marked the ballot papers in his favour during the night.

However, the petitioner does not plead that what these persons did was with the knowledge or authority of the second respondent as required by section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

(b) Illegal polling at Politika Polling Area.

The allegation of illegal polling is even though that a polling team was sent to Politika Polling Area comprising of the presiding officer Mr Aken Puluku who is also the Deputy Chairman of PDA, Assistant Presiding Officer Francis Tapuko, Polling Clerk Peter Yanden, Door Keeper Felix Aken and Ballot Box Guard Nopiawe Amo by helicopter, no polling took place on that day. Despite that, the second respondent polled 802 first preference votes out of 1,091 ballot papers. The second respondent polled this number of votes because ballot papers were marked in his favour during the night.
It may well be that Mr Puluku is the Deputy Chairman of PDA and may be in a conflict of interest situation but it is not sufficient. There must be facts set out that the illegal polling was with the knowledge or authority of the second respondent as required by section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

The allegation of illegal polling is that there was no polling at Suyan No 2 (Yaparepp) Polling Area because the polling team comprising of the some unnamed electoral officials did not conduct one. Despite that, the second respondent polled 802 first preference votes out of 1,091 ballot papers. The second respondent polled this number of votes because ballot papers were marked in his favour during the night.

(d) Illegal polling at Kumbipera/Ayoko Polling Area.