N4993

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

E.P. NO. 88 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURN FOR THE HENGANOFI OPEN SEAT IN THE EASTERN HIGHLANDS PROVINCE

BETWEEN:

TERRY KAJONA OKEVA
Petitioner

AND:

ROBERT ATIYAFA
First Respondent

AND:

ANDREW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Goroka: Kariko, J
2013: 21st - 23rd January

ELECTION PETITION – Objection to competency – Ground of insufficiency of facts pleaded – Petition alleging undue influence – Facts must constitute the alleged ground – Facts must cover elements of the offence – Facts must be relevant – s.208(a), s.210, Organic Law on National and Local Level Government Elections; s. 102, Criminal Code. 

ELECTION PETITION – Objection to competency – Ground of improper attestation of petition – Attested by witnesses - Meaning of – Signature of witness not genuine – s. 208(d), s.210, Organic Law on National and Local Level Government Elections. 

Facts:

An objection to the competency of the election petition was filed based on s.208(a) and (d) of the Organic Law on National and Local Level Government Elections claiming:

(a)	the requisite facts constituting the grounds of undue influence to invalidate the election return were not properly pleaded; and

(b)	the petition was not properly attested to. 

Held:

(1)	The facts contemplated bys.208 (a) of the Organic Law on National and Local Level Government Elections must be material or relevant facts which would constitute a ground upon which an election return may be invalidated. 

(2)	Where the offence of undue influence is alleged, all the constituent elements of the offence must be pleaded in the grounds of a petition.

(3)	In s.102 of the Criminal Code "by any such means" is a reference to "by force or fraud"

(4)	The offence of undue influence involves an element of force, threat or fraud to influence an elector from exercising his free will in relation to voting at elections. 

(5)	Where the purported signature of a witness is not the witness' signature, the petition is not properly attested to as required under s.208(d) of the Organic Law on National and Local Level Government Elections.

(6)	The petition is incompetent.

Cases cited:

Delba Biri v. Bill Ninkama [1982] PNGLR 342
Sir Barry Holloway v. Aita Ivarato and Electoral Commission [988] PNGLR 99
Neville Bourne v. Manasseh Voeto (1977) PNGLR 298
Charles Luta Miru v David Basua (1977) N1628
Ludger Mond v Jeffrey Nape (2003) N2318
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064
Ekip v Wimb (2012) N4899
EP 18 of 2012: Philip Kilala v Electoral Commission & Nixon Mangape (2013) Unreported and Unnumbered Judgement dated 18th January 2013
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720

Counsel:

Mr T Sirae, for the petitioner
Mr S Javati, for the first respondent 
Ms C Lari, for the second & third respondents 

23rd January, 2013

1.	KARIKO, J: Terry Kajona Okeva, a losing candidate in the last national general elections for the Henganofi Open Electorate in the Eastern Highlands Province filed this election petition pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election return for the electorate which was won by Robert Atiyafa. 

The petition

2.	The petition by Mr Okeva alleges that Mr Atiyafa committed undue influence and this Court should accordingly declare Mr Atiyafa's election as void. 

3.	These allegations relate to two events that occurred on 5th July 2012 at Kofionka and Karinte villages, both in the Henganofi District. 

4.	In the first incident, the petitioner states that at about 3pm on that day Mr Atiyafa drove into Kofionka village in his Land Cruiser and distributed a number of food items "to approximately 30 – 40 people, most of them electors". He also presented K200 cash to an elector named Koni Seu who shared it amongst the electors present. At the time, Mr Atiyafa asked these electors to give their second and third preference votes to him during the elections. 

5.	In relation to the second incident, the petitioner claims that at about 3.45pm on the same day, Mr Atiyafa drove into Karinte village in his Land Cruiser and again presented some food items and K250 cash "to the 45 to 50 people present there, most of them electors". The money was received by an elector named Steven Negeya while the food items were distributed by a Hesa Hefimo and others. Again, Mr Atiyafa asked the electors that were present to give their second and third preference votes to him during the elections. 

Objection to competency

6.	Mr Atiyafa filed a Notice of Objection to Competency setting out seven grounds of objection. These grounds (not including Ground 5 which was abandoned during submissions) may be summarised as follows:

(1)	The petition fails to comply with the requirements of s.208(a) of the Organic Law by incorrectly stating the polling dates; and

(2)	The petition fails to comply with the requirements of s.208(a) of the Organic Law by not setting out sufficient facts that constitute the grounds of undue influence to vitiate the election return; and 

(3)	The petition does not comply with the requirements of s.208(d) of the Organic Law in that it was not properly attested to.

7.	Mr Atiyafa then relies on s.210 of the Organic Law to have the election petition dismissed.

The issues

8.	The questions for my determination are:

(1)	Does the petition comply with s.208(a) of the Organic Law?

(2)	Was s.208(d) of the Organic Law complied with?

The Law

9.	The relevant provisions of the Organic Law read:

208.	REQUISITES OF PETITION.

A petition shall –

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

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

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.

10.	The parties agree that the law as established by a long line of case authorities beginning with the seminal case of Delba Biri v. Bill Ninkama [1982] PNGLR 342 is that if a petitioner fails to strictly comply with the mandatory requirements of s.208 and s.209 of the Organic Law, the petition cannot proceed to trial in accordance with s.210 of the Organic Law and must be dismissed.

Dates of polling

11.	The first ground of Mr Atiyafa's objection concerning s.208 (a) is that the petition wrongly states a fact namely the dates of polling for the Henganofi Open Electorate. Rather than 11th and 12th July 2012, the petition states 7th and 8th July 2012. The petitioner conceded to this error. 

12.	The law as to what are "the facts" contemplated by s.208 (a) is well-settled. Kapi, DCJ (with whom Los and Hinchliffe JJ agreed) in Sir Barry Holloway v. Aita Ivarato and Electoral Commission [988] PNGLR 99 at 101, said this of the requirements of s. 208(a): 

The requirement of s.208(a) of the Organic Law is to set out the facts which constitute grounds upon which an election or return may be declared invalid. Setting out grounds upon 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 the petitioner relies. 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.

This statement of law has been endorsed by many cases since.

13.	The grounds challenging the election return are claims of undue influence alleged to have been committed by Mr Atiyafa on 5th July 2012. Following the decision of the Supreme Court in Sir Barry Holloway v. Aita Ivarato and Electoral Commission (supra), I do not consider the polling dates to be "material or relevant facts" to the grounds of undue influence raised by the petitioner to invalidate the election return. The relevant date is when the offences of undue influence are said to have been committed, and that is 5th July 2012.

14.	I therefore dismiss this ground of objection. 

Undue influence

15.	The next objection to competency concerning s.208(a) is the argument that the petitioner has not pleaded sufficient facts constituting the relevant elements of the offence of undue influence.

16.	A good starting point in discussing the electoral offence of undue influence is the case of Neville Bourne v. Manasseh Voeto (1977) PNGLR 298 where Frost, CJ held that it is proper to refer to the offence of undue influence under s.102 of the Criminal Code for a meaning of what amounts to undue influence. 

17.	Section 102 of the Criminal Code states:

102.	Undue influence.

A person who—

(a)	uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i)	in order to induce him to vote or refrain from voting at an election; or
(ii)	on account of his having voted or refrained from voting at an election; or

(b)	by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

18.	Since the case of Neville Bourne v Manesseh Voeto (supra), many cases have confirmed that if illegal practices (electoral and Criminal Code offences) such as undue influence are alleged, all the constituent elements of the offences must be pleaded in the grounds of a petition according to s.208 (a). See for example, Charles Luta Miru v David Basua (1977) N1628; Ludger Mond v Jeffrey Nape (2003) N2318; and Sir Arnold Amet v Peter Charles Yama (2010) SC 1064.

19.	 Mr Javati for the first respondent stressed that the offence of undue influence involves force, threat or fraud and the facts set out in the petition do not cover any of these matters. But Mr Sirae for the petitioner suggested the first respondent was "nit-picking" and countered that in any case all the relevant facts constituting the elements of undue influence are pleaded, such as time and place, names of relevant witnesses, the actions of Mr Atiyafa and his intentions. 

20.	Mr Sirae acknowledged that there are various ways the offence of undue influence may be committed pursuant to s.102 of the Criminal Code but added that force, threat or fraud are not necessary especially when one refers to the second part of s.102 (b) which states that the offence is committed when a person "by any such means compels or induces an elector to vote or refrain from voting at an election". Mr Sirae interpreted "by any such means" to mean "by any conduct" and explained that his client relies on this interpretation.

21.	The word "such" in the context of s.102(b) means of the type mentioned earlier. When one reads the whole of s.102(b) it is clear that "any such means" is a reference to "by force or fraud" earlier stated in the sub-section. If it was intended that the second part of s.102(b) cover any conduct then one would have expected the legislators to clearly say this, and simply state "any means" rather than "any such means". 

22.	I agree with the proposition by Kandakasi, J in Charles Luta Miru v David Basua (supra) that the offence of undue influence involves an element of force, threat or fraud to influence an elector from exercising his free will in relation to voting at elections. As there was a concession by the petitioner that no facts have been pleaded in the petition suggesting force, threats or fraud, then clearly an essential element of the offence of undue influence has not been pleaded. Accordingly I find the requirements of s.208(a) of the Organic Law are not met by the petition.

23.	Even on Mr Sirae's interpretation, facts must be pleaded that an elector was compelled or induced to vote or refrain from voting, and this petition contains no such facts. 

24.	Another essential element of the offence of undue influence is that it must be committed upon an elector. In my view, that element has not been established by the facts pleaded in the petition. While there is reference to electors in a general way, the law requires that the electors alleged to have been unduly influenced must be named in the petition; Charles Luta Miru v David Basua (supra). For this reason, I again find the requirements of s.208(a) of the Organic Law have not been complied with.

Attestation of the petition

25.	Mr Atiyafa's final objection to competency of the petition is founded on a claim that the petition was not properly attested to pursuant to s.208(d) of the Organic Law. 

26.	He alleges that the signature of one of the witnesses attesting to the petition, one Koni Seu (a villager from Kofionka Village, Henganofi) cannot be genuine and appears a forgery. This assertion is based on the argument that there is an affidavit filed in this proceeding of one Koni Seu (a villager from Kofionka village, Henganofi) which shows the deponent's signature to be very different from the attestation signature.

27.	In response, Mr Okeva did not challenge the assertion except that his counsel argued the issue was one for determination at the hearing of the petition. Counsel for the Electoral Commission seemed to support this but I cannot agree with this submission. The issue of competency is a question concerning the court's jurisdiction to hear the proceeding and the dictate of s.210 of the Organic Law requires that any competency questions regarding compliance with either s.208 or s.209 of the Organic Law must be first determined before the petition may proceed to trial. Evidence, oral or by way of affidavit, could have been presented by the petitioner in response to this ground of objection raising s.208(d), but this opportunity was not taken up. 

28.	A query arose whether I could have regard to the affidavit of Koni Seu which was filed as evidence for the trial proper. I am of the view that any document filed in respect of a proceeding may be considered by the Court in relation to any matter arising out of or in relation to the proceeding. In the circumstances, I have had regard to the subject affidavit but only for the limited purposes of verifying the details of the deponent and comparing the signature of the deponent to that of the attesting witness Koni Seu.

29.	Having looked at the affidavit, it is confirmed that the deponent Koni Seu and the witness to the petition Koni Seu, are stated to be villagers from Kofionka village, Henganofi. While one would properly assume that they are one and the same person, it is very obvious, even from a mere glance, that the two signatures are totally different. The signature on the affidavit consists of a printed name that appears to have been written by a young child or a person who is unable to write properly, while the signature on the petition is a formal signature written in cursive or running-writing. In fact, this latter signature appears quite similar to that of one Hesa Tafimo of Karinte village who also deposed to an affidavit filed as evidence for the hearing of the petition. 

30.	In all the circumstances, and taking particular note that Mr Okeva did not offer any explanation in answer to this major discrepancy and the serious allegation by Mr Atiyafa, I am left in no doubt that the purported signature of the witness Koni Seu attesting to the petition is not his signature. This suggests that some dishonesty or fraud was involved in the attestation.

31.	It is only very recently that the Courts by virtue of two National Court decisions have explained and defined what is meant in s.208(d) whereby a petition is required to "be attested by two witnesses". Although these cases did not concern the same issue now before me, the discussions concerning the requirements of s.208(d) are instructive.

32.	In Ekip v Wimb (2012) N4899, after noting the ordinary meaning of the word "attest" and then discussing the scheme of election petitions, their special nature and the strict requirements for compliance, Kandakasi, J came to the conclusion that:

... the attesting witness under s. 208(d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position to verify, confirm, substantiate, testify, certify, prove or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return or someone who is eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts. 

33.	His Honour's interpretation was approved by Makail, J in EP 18 of 2012: Philip Kilala v Electoral Commission & Nixon Mangape (2013) Unreported and Unnumbered Judgement dated 18th January 2013. I too endorse the interpretation and for the reasons explained by their Honours.

34.	In his discussions in EP 18 of 2012: Philip Kilala v Electoral Commission & Nixon Mangape (supra), where the petition was attested to by staff from the law firm acting for the petitioner, Makail, J observed that the purpose of requiring two witnesses to attest to the petition "... is to ensure that the petition that is filed is genuine and not one that is fabricated and filed purposely to undermine the leadership and representation of the successful candidate as the member –elect of the electorate in Parliament." Similar remarks were expressed by the Supreme Court in Paru Aihi v Sir Moi Avei (No 2) (2003) SC720, where four of the five Judges in explaining the meaning of the term "occupation" in s.208(d) of the Organic Law stated: 

The purpose of the requirement in s.208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process.
(My underlining)

35.	Having concluded that the signature purporting to be that of Koni Seu attesting to the petition is not his signature, the petition was therefore not properly attested to. The petition cannot be said to be genuine and I consequently find that the requirements of s.208(d) of the Organic Law have not been properly satisfied.

Conclusion

36.	My finding that the petition fails to meet s.208(a) and (d) of the Organic Law renders this election petition incompetent. Accordingly, I order that:

(1)	The first respondent's objection to competency is upheld.

(2)	This election petition is dismissed.

(3)	The petitioner shall pay the respondents' costs of and incidental to this proceeding.

(4)	The security deposit of K5,000 shall be shared equally between the respondents and is to be applied towards settlement of the respondents' costs.

______________________________________________________

Sirae & Co: Lawyers for the petitioner
Javati Lawyers: Lawyers for the first respondent
Niugini Legal Practice: Lawyers for the second & third respondents