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Sia v Numu [2018] PGNC 19; N7106 (16 February 2018)

N7106


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 77 OF 2017


IN THE MATTER OF A DISPUTED RETURN FOR THE EASTERN HIGHLANDS PROVINCIAL ELECTORATE


BETWEEN
SIMON BINTANGOR SIA
Petitioner


AND
PETER NUMU
First Respondent


AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent


Goroka: Anis J
2018: 12, 13 & 16 February


ELECTION PETITION – Objection to competency - section 208(a) of the Organic Law on National and Local Level Government Elections - claim of want of sufficient pleading to the allegations of undue influence and attempted undue influence


Facts


The petitioner was the third runner up in the 2017 National General Elections for the regional seat of Eastern Highlands Province. He filed a petition to challenge the validity of the election of the first respondent who has been elected as the Governor for the province. The second respondent thereafter filed an objection to competency of the petition. The objection was heard at the start of the trial of the election petition on 12 February 2018.


Held


  1. Section 208(a) of the Organic Law on National and Local Level Government Elections does not require detailed pleading of facts or detailed grounds to be inserted into a petition except as expressly stated therein which is that a petitioner is simply required to set out the facts relied on to invalidate the election or return.
  2. A Court of Disputed Returns is a special Court unlike a Criminal or a general Civil Court and as such, to demand strict compliance with pleading of facts to show the elements of an offence(s) or with pleadings generally, as if it is a Criminal or a general Civil Court, is misconceived.
  3. The petitioner has sufficiently pleaded the facts in his petition to allege undue influence and attempted undue influence.
  4. The second respondent's notice of objection to competency of the petition was refused with cost.

Cases cited:


Ginson Goheyu Saonu v. Bod Dadae (2004) SC 763
Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99
Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572
Thompson v. Pokasui [1988] PNGLR 210
Steven Pirika Kamma v John Itanu (2007) N3246
Philip Kikala v. Electoral Commission of PNG (2013) SC 1295


Counsel:


Mr Tom Sirae, for the Petitioner
Mr Andrew Kongri, for the First Respondent
Mr Wellington Kaum, for the Second Respondent


RULING


16th February, 2018


1. ANIS J: This is my ruling in relation to an objection to competency application filed by the second respondent. The first respondent supported the application. The petitioner objected which was why a hearing was held at the start of the trial date for the petition, which began on 12 February 2018.


2. I heard submissions, both oral and written, from counsel for the three (3) parties to the proceeding. The hearing took almost a full day on 12 February 2018. I reserved my ruling thereafter and adjourned to rule on the application.


3. This is my ruling.


Background


4. The petitioner is the third runner up to the Governor's post for the Eastern Highlands Provincial Electorate in the 2017 General Election. The first respondent was declared as the winner and is the present Governor for Eastern Highlands.


5. On 13 September 2017, the petitioner filed his petition. He alleges undue influence and attempted undue influence under section 215(1) of the Organic Law on National and Local Level Government Elections (OLNLLGE). His main relief is that he wants this Court to declare the first respondent's election void.


Present status


6. I am being asked to consider the second respondent's objection to competency application. It was filed on 23 November 2017. The objection is based on alleged lack of sufficient pleading and clarity in the facts that support the grounds of the petition. In summary, the second respondent alleges in the objection to competency that because the pleaded facts in the petition are insufficient, vague and confusing, they fall short of the mandatory requirements required under section 210 of the OLNLLGE. Section 210 refers to sections 208 and 209 of the OLNLLGE and says that, Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.


7. For this case, the only contentious provision under sections 208 and 209, which was argued by the parties at the hearing, is section 208(a) of the OLNLLGE. It reads and I quote: A petition shall (a) set out the facts relied on to invalidate the election or return;....”


8. Counsel for the parties presented their arguments, which were centred around section 208(a). They argued whether the supporting facts in the petition sufficiently covered the grounds alleged in the petition, namely, alleged undue influence and attempted undue influence.


Issues


9. To me, I think the main issue is simply this: Whether the petitioner has sufficiently pleaded the facts as required under section 208(a) of the OLNLLGE to allege undue influence or attempted undue influence.


Section 208(a) and related provisions


10. Section 208(a) of the OLNLLGE was discussed at some length at the hearing. I prefer to address that first in my ruling. I must say at the outset that because section 208(a) is express, I will be guided by it more than say the case law. The petitioner's counsel, in his submission, drew the Court's attention to section 208(a) as well as to Form 1 of the Election Petition Rules 2017 (EPR 2017). This has drawn arguments by the parties.


11. Before I dwell more into the arguments covering the main issue, let me look at section 208. It reads:


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).


12. There is no express provision under section 208, which states that the petitioner shall separately plead the petition grounds in the petition. Sub-rule (a) is express and states that the petitioner shall set out the facts relied on to invalidate the election or return. Sub-rule (b) expressly requires the petitioner to plead the relief the petitioner intends to seek, and so forth right down to sub-rule (e) of section 208. I turn to Form 1 of the EPR 2017. I state in part its content as follows:


A: THE PETITIONER petitions the National Court against the election or return of the first respondent as the successful candidate for the (insert name of electorate) electorate.

B: THE FACTS relied on to invalidate the return of the first respondent are set out as follows:

(set out the facts in numbered paragraphs)

C: THE GROUNDS upon which the petitioner relies are:

(set out the grounds in numbered paragraphs)

D: THE RELIEF to which the petitioner claims to be entitled is:

(specify the relief sought in numbered paragraphs)

.....


13. It makes perfect legal sense that the grounds of a petition are relevant and therefore that they may be pleaded separately. I cannot see any arguments that could possibly suggest otherwise, that is, of the need to also plead or clarify the ground(s) in a petition. And I do acknowledge that the EPR 2017 is drafted and, on the subject matter, expounded so as to comply with the general requirements of the law and rules concerning pleadings. The overall reason of course is to give due notice to the other parties as well as to the Court, of the reason(s) a petitioner would propose to argue at the hearing of the petition at trial.


14. But having said that, let me re-iterate that section 208(a) does not expressly require a petitioner to plead the grounds separately. The strict compliance or observance of the OLNLLGE is, in my view, clearly stated by the Supreme Court in the case of Ginson Goheyu Saonu v. Bod Dadae (2004) SC 763. The Supreme Court held and I quote:


Whilst the respondents have referred to other legislations and the prescribed forms in those legislations, we consider that election petitions come under a special jurisdiction. An election petition is not an ordinary civil matter that can adopt legal forms in other legislations. That is why in election petitions trials, provisions of the National Court Rules are not relevant or applicable: See Delba Biri v. Bill Ginbogl Ninkama & Ors (supra). The Organic Law is the only constitutional law which regulates the conduct of elections and any subsequent challenge to a return. The requisite of a petition are provided for in s.208 so the Courts should not read what was not intended by the legislature into other provisions of the Organic Law. (Underlining mine)


15. If one looks at what the Supreme Court has said above and revisits section 208(a) which states, A petition shall (a) set out the facts relied on to invalidate the election or return, I think that is all this Court needs to be satisfied of, that is, "facts relied on to invalidate the election". Notice that the Organic Law itself [i.e., section 208(a)] does not use the term "reasonable facts" or imply that grounds are to be pleaded as well in a petition. Section 208(a) does not also say that facts that are to be relied upon must be precise so that they match the grounds of the petition or say that the pleaded facts must align with the elements of an alleged offence(s). All these additional so-called prerequisites [i.e., of what must be included under section 208(a)] have over the years been applied by case law but which are, with respect and in my view, outside the requirements of section 208(a). Section 208(a) appears to have been "overdressed" or "weaponized" so to speak, as evident in the case law now. Consequently, many election petitions fail before they reach hearing stages.


16. Courts in the earlier years, in my view, were careful in their decisions not to offend or go beyond the confines of section 208(a). Let me give examples. The late Chief Justice Sir Mari Kapi who was then the Deputy Chief Justice said in the Supreme Court case of Application by Ludwig Patrick Shulze; Review Pursuant to Constitution s155(2)(b) (1998) SC572 and I read:


The law relating to pleading the facts for purposes of s 208 (a) is settled and the requirement is that a petitioner must plead the material facts which gives rise to a ground. The pleading of the ground itself is not sufficient. Facts giving rise to the ground must be pleaded (see Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99). (Underlining mine)


17. The next example of course is the Supreme Court's decision in Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99. Again, the late Chief Justice Sir Mari Kapi who was Deputy Chief Justice then went on to elaborate further by stating at page 101 and I quote:


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 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 grounds upon which a 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 or return may be invalidated. (Underlining mine)


18. Justice Bredmeyer, I think best summarises or captures the original idea behind the OLNLLGE and its provisions including the application of section 208(a), section 212 and section 217. His Honour stated in the Supreme Court in Thompson v. Pokasui [1988] PNGLR 210 and I quote:


The court's powers on hearing an election petition are contained in s 206-212 of the Organic Law on National Elections (Ch No 1). The powers enumerated in s 212 are not exhaustive but there is no mention in that section of particulars. Neither is there any general power stating that in hearing an election petition the court shall have all the powers, or shall follow the same procedures, as in hearing a civil suit. Contrast this with the position in England where the Representation of the People Act 1949 (UK), which is the equivalent of our Organic Law on National Elections, specifically provides that the High Court has the same powers, jurisdiction and authority with respect to an election petition and the proceedings on it as if the petition were an ordinary action within its jurisdiction (s 137 (3) of the Act quoted in Halsbury's Laws of England (4th ed), Vol 15, par 871, p 474). The result is that in England particulars are normally immediately requested when the allegations in a petition are quite general, and further particulars can be ordered by the court (Halsbury, par 877, p 477). (Underlining mine)


19. The English Courts, under their equivalent provisions as sections 208(a) and 212, had permitted brief pleading of facts or facts that do not have proper particulars in petitions, to be amended under their equivalent provision as section 212 of the OLNLLGE. In my view, this is yet another example of the basic requirement of what is required to be pleaded under section 208(a) of the OLNLLGE, that is, A petition shall (a) set out the facts relied on to invalidate the election or return, without the 'additional dressings' to it. Here in this jurisdiction, we now have a separate Election Petition Court Track for election matters. The Court's power under section 212 is broad. For example, I can refer to sub-sections (2) and (3) of section 212 which says:


(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.


20. Now, moving on, I must say that I share the same view expressed on point by Justice Kandakasi in the National Court case of Steven Pirika Kamma v John Itanu (2007) N3246. His Honour expressed his concern concerning the Court's rigid application of section 208(a) whereby it has seen or ensured dismissal of many election petition matters at the objection stage without affording petitioners their rights to present their petitions on their merits. His Honour said and I quote:


13. The decision in Holloway v. Ivarato (supra) and many other subsequent Supreme and National Court judgments have consistently endorsed and applied these principles. The learned Counsel for the parties drew to my attention some of the cases. In the case of Mathias Injape v. Biri Kimisopa (supra) and Ludger Mond v. Jeffery Nape (supra), I merely went along with the way in which these principles have been strictly applied and the trend that has come to be established without carefully looking at the foundation for the trend. I have since become aware and have concerns over the correctness and appropriateness of that trend because of the adverse effects the trend has been having on election petitions and an elector’s right to challenge an election result, which is a right, granted by a Constitutional law. As I have observed in a number of election petition cases this year during directions and pre-trial conferences, the application of these principles have become more and stricter to the point that objections to competencies have become far too highly technical and in some cases purely nit-picking to say the least. In the process, the Courts at the instance of lawyers have effectively built into s. 208 additional requirements in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court to be “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.”


14. The unfortunate end result of this trend and approach has been a ready defeat of many good and meritorious election petitions at the very door steps of justice. That has happened in a number of otherwise clear cases of bribery or illegal practices and errors or omissions and irregularities seriously questioning the integrity and the eventual outcome of elections. Consequently ordinary citizens of PNG who are concerned over the integrity of the election process and the duty of the Courts to inquire into any allegations of foul play and remedy them are left to marvel at why and how the Court can prevent a petition getting to a proper hearing and a determination on its “substantial merits”. It is this kind of practice which only lawyers and the Courts have become familiar with and can understand that adds to a lack of respect for the integrity of the election process and the Court system because of the system’s failure to properly scrutinize the election process when faced with an allegation of illegal practices or, errors or omission or, irregularities and remedy them.


15. I am firmly of the view that, we have come to this result because of two important failures of lawyers and their clients as well as the Courts. First, we have failed to give any due and proper consideration to the intention of Parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of s. 217 of the Organic Law. Secondly, we have failed to have a closer look at the particular wording in s.208 and s. 210 from which this trend has originated.


16. With the assistance of all lawyers before me, for which I am grateful, I have had the benefit of reading and considering the judgment of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dadae (supra). Having done so, I am pleased that at last the Supreme Court has addressed my concerns and has fortified my observations and concerns regarding the first failure. I agree unreservedly with what the Supreme Court said in these two cases and adopt them as my own.


17. In the first case, the Supreme Court endorsed the observations of Hinchliffe J., in his unreported judgment in the case of EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) in this way:


"We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, when commenting on another National Court decision that had been relied on and referred to him:


With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard." (Underlining ours.)


18. After unreservedly and respectfully agreeing with and endorsing those sentiments and concerns of his Honour, the Supreme Court added:


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


An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter.”

(Underlining mine)


21. I endorse these views as my own. Let me now look at the other relevant section of the OLNLLGE, that is, section 217. It reads:


217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

(Underlining is mine)


22. Can this Court invoke section 217 at the objection to competency hearing stage? The answer to that is "yes". I refer to the Supreme Court case of Philip Kikala v. Electoral Commission of PNG (2013) SC 1295. The Supreme Court stated at paragraphs 18 to 23 and I quote:


18. In determining whether a petition is competent and whether the Court has jurisdiction, it is our view that the fourth provision of the Organic Law we have just mentioned, Section 217, should also be considered. Section 217 (real justice to be observed) states:


The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.


19. For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:


It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.


20. With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.


21. The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:


With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.


22. In Jimson Sauk v Don Pomb Polye (2004) SC769, the Court (Sakora J, Sevua J, Gavara-Nanu J) urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency:


"We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama ... is as aptly described by Hinchliffe J in another election case, Benias Peri v Nane Petrus Thomas EP 73 of 2003 20.04.04 unreported, when commenting on another National Court decision that had been relied on and referred to him:


With all respect to the trial Judge, it seems to me that his requirements to satisfy s 208(a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard.


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


23. We also note that in more recent times the National Court has in some cases taken Section 217 into account when determining objections to competency, eg Steven Pirika Kamma v John Itanu (2007) N3246 (Kandakasi J) and Peter Charles Yama v Anton Yagama (2012) N4928 (Cannings J).


23. I fully endorse and apply the said decision above herein.


24. In summary, my finding is that section 208(a) of the OLNLLGE is express. I find that the provision should be read as it is without regard to any additional phrase(s), or words or implications whatsoever that may, if added to, alter or affect its meaning. I find that case law has in turn changed or twisted the true nature and spirit of section 208(a) of the OLNLLGE. I find that the origin and application of the OLNLLGE and section 208(a) together with its related provisions including sections 212 and 217 were explained well by Justice Bredmeyer in the Supreme Court case of Thompson v. Pokasui (supra). What I get with all these is that pleading of facts under section 208(a) should be general to cover not necessarily strictly the grounds of a petition but the intended or proposed grounds, to possibly invalidate an election or a return. The Court of Disputed Returns which is the National Court in my view should refrain from or exercise restraints when dealing with objections to competency applications that are primarily based on section 208(a) unless of course if the pleaded facts are incontestably bad. I would add that National Courts that are constituted under the OLNLLGE, should be prepared to accept at times badly pleaded facts in petitions provided the petitions generally comply with the basic requirements under section 208(a). The National Court should, upon receiving petitions that are filed that require further pleadings of the facts or particulars, exercise its powers under sections 212 or 217 and direct a party to correct such deficiencies, that is, instead of dismissing them right away.


Words and Phrases and Section 102


25. I note that I have referred to the petitioner's grounds of appeal above in my judgment. They are undue influence and attempted undue influence. These grounds are also expressly set out under section 215(1) of the OLNLLGE. The section reads, (1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.


26. The real contest here relates to the pleaded facts in the petition. For me to address that, I think it is necessary that I begin by considering the term "undue influence". What does it mean? I notice that case law on the subject matter tend to be quick in pointing to section 102 of the Criminal Code Act Chapter 262 (Criminal Code) when it comes to dealing with the ground undue influence. I note that counsel for the parties also took the same approach at the hearing of the objection, that is, they made references to and presented extensive submissions in regard to the application of section 102 of the Criminal Code Act. But before I look at section 102, let me consider other sources that define "undue influence".


27. The United Kingdom Electoral Commission in its July 2012 Factsheet Summary of electoral offences defined "undue influence" as follows:


A person is guilty of undue influence if they directly or indirectly make use of or threaten to make use of force, violence or restraint, or inflict or threaten to inflict injury, damage or harm in order to induce or compel that person to vote or refrain from voting.


A person may also be guilty of undue influence if they impede or prevent any voter from freely exercising their right to vote - even where the attempt is unsuccessful.


Undue influence doesn't exclusively relate to physical access to the polling station. For example, a leaflet that threatens to make use of force in order to induce a voter to vote in a particular way could also be undue influence.


28. The Black's Law Dictionary Ninth Edition By Brian A Garner (2009) define "undue influence" to mean and I quote:


The improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.


29. It also defines the word "undue" to mean excessive or unwarranted.


30. I also refer to the word "induce" or "inducement". The New International Webster's Comprehensive Dictionary of the English Language, 2004 Edition, defines the word induce as follows: "To lead on to a specific action, belief, etc., by persuasion or influence; prevail on." The Black's Law Dictionary Ninth Edition, By Brian A Garner (2009) defines the word induce under inducement to mean, "The act or process of enticing or persuading another person to take a certain course of action".


31. Words and Phrases Legally Defined, Supplement 1983, Second Edition by John B. Saunders, defines the word inducement and I quote at page 150:

Australia - Inducement (in s.410 of the Crimes Act 1900 (N.S.W.) is used in its ordinary sense of persuasion aimed at producing some willing action, as opposed to compulsion by force or fear of force to produce some unwilling action. It is not necessary that the prisoner should have been pressed to confess guilt and it has been held that it is sufficient to exclude the statement if he were pressed to say anything whatever: R v. Thompson, [1893] UKLawRpKQB 74; [1893] 2 Q.B. 12, R v. Bodsworth, [1968] 2 N.S.W.R. 132, per cur., at p. 138.
32. And finally, I refer to section 102 of the Criminal Code. It reads:


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.


The pleaded facts


33. Let me now address the facts as they are pleaded in the petition. The petitioner cites four (4) purported factual scenarios or cases as he calls them, where he relies on to say that the first respondent had, on each of those sets of facts, committed undue influence or attempted undue influence.


34. I have considered the four (4) pleaded sets of facts in the petition. I note that in all the four (4) pleaded sets of facts, they each allege a public speech that was said to have been made by the first respondent together with the viewing of a video footage, which was said to record speeches and information, which were purportedly distributed by the first respondent. Each set of facts in the petition plead the names of the electors who were said to have witnessed the speeches on the three (3) various occasions. I said three (3) occasions because one of the speeches was repeatedly pleaded because the electors who had attended and had witnessed it were different persons.


35. The petitioner pleads as follows:


Case 1


  1. On 15th of June 2017, at Nonambaro village, Waterbung (Warabum) in the Eastern Highlands Province, at about 5pm, the First Respondent was making a campaign speech, surrounded by a group of people.
  2. Donald Tom Kalimin, an elector at Negekundilo, Watabung LLG, ward 4, Daulo Open Electorate, attended the First Respondent’s campaign speech and heard the First Respondent utter the following statements in and amongst his speech, in pidgin language;
  3. Donald Tom Kalimin also continuously viewed the video footage produced by the First Respondent at Banana Block, at a settlement area in Goroka town, together with a Roger Inne Auwo, an elector at Gahuku Rural ward 3, Goroka Open Electorate, and a Kenneth Manman, an elector at Banana Block ward 5 Goroka Urban, Open Electorate, which was continuously screened outside a video (movie) house outside the residential area of a Andrew Tony. The video footage was dubbed the “Peter Numu CD” by Donald Tom Kalimin and other persons who viewed it. The screening of the “Peter Numu CD” went on continuously for a period of two (2) weeks from about the 12th of June 2017 onwards before polling took place.
  4. After hearing the speeches of the First Respondent on 15th June 2017 and viewing the ‘Peter Numu DC’ at Banana Block, Donald Tom Kalimin was influenced and believed the First Respondent’s statements that contained in the video footage, particularly the first Respondent words;

“ol lain kam go lo Australia ino gutpla lain...ol dangerous lain blo wokim bom.....tintin blo ole m blo terrorists attack....”(this people going to Australia are not good people...they are dangerous people who build bomb....they think about terrorist attack.....)


and other words and statements contained therein and to the effect that terrorists coming into Papua New Guinea through the asylum seekers agreement between Australia and Papua New Guinea would commit terror acts against Papua New Guineans. The named electors also believed and were influenced by the First Respondent when he said he burnt the Australian flag, and that the government introduced the death penalty law to kill Papua New Guineans. Donald Tom Kalimin was influenced by such statements and words of the First Respondent, and thereby was induced, in his choice of voting.


  1. Roger Inne Auwo and Kenneth Manman were also influenced by statements of the First Respondent, after viewing the First Respondent’s video footage at Banana Block and were also induced, in their choice of voting.

Case 2


  1. On the 13th of June 2017, at the National Park in Goroka town, between 10am and 11.30am, the First Respondent was making a campaign speech, in a campaign rally. More than 2,000 people were there awaiting the arrival of the Prime Minister Peter O’Neill on that day and attended to the First Respondent’s campaign speech while waiting.
  2. Abraham Rolu, an elector at Mt Michael LLG ward 7 in the Lufa Open electorate, and Jerry Kokore, also an elector at Kafetina LLG Tebenofi ward 10, in the Henganofi Open Electorate, were together at the National Park and attended the First Respondent’s campaign rally. They heard the following words and statements uttered by the First Respondent in a mixture of pidgin and English languages, words and phrases to the effect of;
  3. On the 20th June 2017, Abraham Rolu obtained a copy of the video footage produced by the First Respondent, from a Nelson Buva and viewed the video footage, with his wife, Stephanie Rolu, also an elector, his children and some students, at their residence in Roza village, Kamaliki, Goroka in the evening of 20th Jun 2017.
  4. Abraham Rolu viewed and heard the First Respondent say words and statements to the effect of asylum seekers being allowed in Papua New Guinea and the words;

“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die...).


and other statements made by the First Respondent in the video footage.


  1. After hearing the speeches of the First Respondent on the 13th June 2017 and viewing, the First Respondent’s video footage on the 20th of June 2017, Abraham Rolu was influenced by the First Respondent’s statements that; terrorists were allowed into Papua New Guinea and would commit terror acts against Papua New Guineans; the First Respondent did burn the Australian flag, the government introduced the death penalty law which will see ordinary citizens being killed and believed that the First Respondent, if voted, will prevent these things from taking place. Abraham Rolu was thereby, induced, in his choice of voting.
  2. On 17th June 2017, at Kafetina, Henganofi District, Jerry Kokore, obtained a copy of the First Respondent’s video footage, which was widely distributed in the Eastern Highlands Province, and viewed the video footage at his house, with his family consisting of brothers and cousins.
  3. Jerry Kokore was also influenced by the statements of the First Respondent, to the effect that terrorists were allowed into Papua New Guinea and would commit terror acts against Papua New Guineans; that the First Respondent did burn the Australian flag, that the government introduced the death penalty law which will effectively see ordinary citizens being killed and thereby believed that the First Respondent, if voted, will prevent these things from taking place. Jerry Kokore was induced in his choice of voting.

Case 3


  1. On the 3rd of May 2017, at Lopi market, Goroka, Joseph Aginime, an elector at Fayantina LLG ward 1, Henganofi Open Electorate, was informed by his friend, a Wato Avinaga, also an elector at Keakasa village, East Okapa LLG, Okapa Open electorate, that he (Wato) had a video footage of a candidate (First Respondent) for the Eastern Highlands Provincial seat. Joseph Aginime asked Wato Aviniga to give him a copy of the video footage of which Wato Aviniga transferred the footage from his mobile phone to Joseph Aginime’s mobile phone.
  2. Joseph Aginime viewed the footage several times on his phone, together with a John Miamel, also an elector at Goroka Urban ward 5, Goroka Open Electorate, and Wato Avinaga, at Lopi market, Goroka, and heard the First Respondent’s words and statement, amongst others to the effect that;

“ol lain ol kam go lo Australia ino gutpla lain...ol dangerious lain blo wokim bom.....tintin blo ol em blo terrorist attack.....ol bai salim ol bom nambaut n blowim house...meri pikinini bai dai....” (these people who are going to Australia are not good people...they are dangerous people of making bombs.....they think about terrorist attack....they will send bombs about and blow up houses...women and children will die...).


That terrorists were allowed into Papua New Guinea and would commit r terror acts against Papua New Guineans; that the First Respondent did burn the asylum seekers agreement with Australia and the Australian flag because of the threat of terrorism in Papua New Guinea; and that the government introduced the death penalty law, which allowed ordinary citizens to be killed. The First Respondent described himself as the leader who fought against these things, upon which Joseph Aginime believed the statements and words of the First Respondent and fearful of what could take place especially about the asylum seekers, thereby, was induce in his choice of voting.


  1. John Miamel also believed the First Respondent‘s words and statements viewed from his video footage and thereby, was induced in his choice of voting.

Case 4

  1. On the 13th of June 2017, at the National Park in Goroka town, between 10am and 11.30am, the First Respondent was making a campaign speech, in a campaign rally.
  2. Moses Kahamo Hetegae, an elector at Gahuku LLG rural ward 4, Goroka Open Electorate, was informed by a Benzie Filele Hupa, also an elector at Gahuku LLG rural ward 3, Goroka Open Electorate, of the First Respondent conducting a campaign rally at the National Park.
  3. Earlier, on the 6th of May 2017, Moses Kahamo Hetegae had viewed the video footage of the First Respondent on a phone belonging to a Krisen Negio, and was intrigued about what was said by the First Respondent, therefore decided to see and hear from the First Respondent in person.
  4. Moses Kahamo Hetegae and Benzie Filele Hupa both attended the First Respondent’s campaign rally and heard the following words and statements uttered by the First Respondent in a mixture of pidgin and English language, to the effect of;
  5. After hearing the speeches of the First Respondent on the 13th June 2017 and viewing the First Respondent’s video footage on the 6th of May 2017, Moses Kahamo Hetegae was skeptical of the statements and did not believe the First Respondent’s statements to the effect that, amongst others; terrorists were allowed into Papua New Guinea and would commit terror acts against Papua New Guineans; that the First Respondent did burn the Australian flag; that the government introduced the death penalty law and ordinary citizens will be killed.
  6. Benzie Filele Hupa was influenced by the First Respondents words and statements about the asylum seekers, believing such statements to be true and thereby, was induced in his choice of voting.
  7. By virtue of section 215(1) of the OLNLGE, each and every one of the cases of the illegal acts of undue influence and attempted undue influence, as pleaded above, if proven, should void the election of the First Respondent.

36. In regard to the petition grounds, the petitioner pleads two (2) grounds, that is, undue influence and attempted undue influence under section 215(1) of the OLNLLGE. To restate them all in full here is not necessary.


37. The petitioner has also pleaded under his grounds of petition the relevant provision of the Criminal Code, which he seeks to rely on at the hearing to allege undue influence, that is, section 102. Let me restate it here:


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.


38. I have considered the petitioner's four (4) pleaded facts. I have also considered the grounds of the petition. And I have also considered the submissions by the parties. The first thing I wish to clarify at the outset is this. This is not a criminal proceeding but rather proceeding filed at the Court of Disputed Returns, which is governed by the OLNLLGE. It is also not a normal civil proceeding. This Court's power is governed by the provisions under the OLNLLGE and I make particular reference to section 217. This Court has a unique and a wider power to exercise real justice. As expressly stated in section 217, this Court has an obligation to and shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. In my view, the application of section 217, which is supported by Supreme and National Court decisions including the case of Philip Kikala v. Electoral Commission of PNG (supra), should now (apart from the basis requirement stated in section 208(a) of the OLNLLGE) enable this Court not to insist, at the first instance, strict requirements such as detailed pleading of facts, detailed pleading of the grounds of the petition so that they match the facts, or to plead the facts in a detailed manner to reveal the elements of the offence(s) the petitioner intends to allege.


39. With that and based on my ruling on section 208(a) above in my judgment, I ask myself this. Do the pleaded facts herein meet the requirement of section 208(a)? I would answer in the affirmative. The petitioner is required, in his petition, to set out the facts relied on to invalidate the election or return. In my view, he has sufficiently pleaded the facts which is in accordance with the requirement under section 208(a) of the OLNLLGE.


40. I note that a primary element or consideration in relation to the ground "undue influence" under section 215(1) is inducement. It is not necessary at this stage that the petition should identify which of the two (2) instances of inducement he will allege against the first respondent or for the petition to state detailed factual basis in regard to the allegations. In my view, these are matters for trial. I also note the various definitions of inducement as I have stated above in my judgment. A petitioner, like in this case, would be required at trial to adduce evidence:


(i) that would lead on to a specific action, belief, etc., by persuasion or influence; or

(ii) to establish the act or process of enticing or persuading another person to take a certain course of action; or

(iii) to show persuasion that is aimed at producing some willing action, as opposed to compulsion by force or fear of force to produce some unwilling action, or both.


Notice of Objection


41. I refer to the second respondent's notice of objection. It has stated two (2) grounds of objection. I note that as for the second ground, the second respondent repeats its reasons stated in the first ground.


42. The second respondent's submission is divided into two (2). The first relates to the purported speeches alleged by the petitioner in the petition. The second respondent submits that the alleged speeches were (i) mere campaign rhetoric, (ii) they were made to the world at large and (iii) that the allegations do not fall within the ambit of section 102 of the Criminal Code.


43. In regard to the second part of the second respondent's argument, that is, the petitioner's purported claim of video or CD footage which was alleged to have been distributed in line with the first respondent's purported speeches, the second respondent submits that (i) the purported video footage was insufficiently pleaded, (ii) that it was not made to anyone, (iii) that it was viewed by voters on their own free will and (iv) that the allegation was misconceived.


44. In regard to the first ground, I say this. The three (3) allegations namely mere campaign rhetoric, made to the world at large and the allegations do not fall within the ambit of section 102 of the Criminal Code, are matters for trial, which should be left for that purpose. And I emphasis again that this Court is not presiding as a normal Criminal Court. It is a special Civil Court established under the OLNLLGE. Given its wide powers particularly under section 217 of the OLNLLGE, to require strict prosecution or compliances under the Criminal Code provisions on named allegations as if this was a Criminal Court proceeding itself is misconceived.


45. I dismiss the first part of the second respondent's submissions.


46. In regard to the second part of the second respondent's submissions, I say this. Firstly, I repeat what I have stated above in regard to the first part of the second respondent's submissions. Secondly, the purported video in my view is sufficiently pleaded in the petitioner's petition. If the matter proceeds to trial, the video may be used as evidence and if tendered, it may be viewed by the Court to ascertain the allegations. The second submission that it was not made to anyone is, in my view, again a matter for argument at trial and after the video footage is viewed. It is premature to raise the argument now. In regard to the second respondent's claim that it was viewed voluntarily, again the argument should be reserved for trial. The pleaded facts indicate that the first respondent had on various occasions announced or encouraged people at his rally to view the video. So, in my view, this may have to be properly argued at the hearing. I also refer to the definition of undue influence stated above. For example, one of them says and I quote undue influence doesn't exclusively relate to physical access to the polling station. For example, a leaflet that threatens to make use of force in order to induce a voter to vote in a particular way could also be undue influence. Adducing of evidence to for example connect the first respondent to the distribution of or to the video footage would be a matter for trial for the petitioner to establish.


47. In regard to the second respondent's claim misconceived, I say this. The pleaded alleged video is not baseless or misconceived. Publication of news letters or leaflets or video footage are means which an act of inducement may be proven. It is also misconceived, in my view, to say that the video footage is not a form of inducement recognised by section 102 of the Criminal Code. Based on my ruling above, this Court may be guided by the provisions of section 102, but, unlike a Criminal Court, it has no obligation to treat or prosecute the offence of undue influence like what a prosecutor would do or what a Criminal Court would require, in a Criminal Court proceeding. The allegation also raises questions on whether the creation and distribution of the video footage may constitute illegal practice. Again, these are matters for trial.


48. I dismiss the second part of the second respondent's argument.


49. This leaves me with the submissions of the first respondent. The first respondent presented arguments in support of the objection. I have read counsel's submission. The objection is made based on insufficiency of pleadings in relation to the four (4) pleaded facts in the petition and the grounds. The first respondent submits that the pleadings were insufficient; that they fell short of the requirements under section 208(a) of the OLNLLGE and of the requirements under section 102 of the Criminal Code.


50. I note that I have addressed sufficiency of pleadings, compliance with section 208(a) and section 102 of the Criminal Code above in my judgement.


51. As such, I dismiss the submissions of the first respondent.


Summary


52. I refuse to dismiss the petitioner's petition and therefore dismiss the notice of objection to competency filed on 23 November 2017.


53. This matter should now be set down for hearing with new trial dates to be allocated.


Costs


54. I will award cost to the petitioner on a party/party basis which may be taxed if not agreed.


THE ORDERS OF THE COURT


55. I make the following orders:


  1. The second respondent's notice objection to competency is dismissed.
  2. The respondents shall pay the petitioner's costs of the application which may be taxed if not agreed.
  3. The matter to immediately proceed to trial on dates to be set at the next mention.
  4. Time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.

The Court orders accordingly.


_________________________________________________________
Sirae & Co Lawyers: Lawyers for the Petitioner
Kongri Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent


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