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Kulang v Onglo [2018] PGNC 228; N7307 (8 June 2018)


N7307


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 76 OF 2017


IN THE MATTER OF A DISPUTED RETURN FOR
KUNDIAWA GEMBOGL ELECTORAE


BETWEEN
TOBIAS KULANG
Petitioner


AND
WILLIAM GOGL ONGLO
First Respondent


AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent


Kundiawa: Auka J
2018: 3 & 4 April and 8 June


ELECTION PETITION – Objection to Competency – Facts to invalidate an election – Strict requirement of statute – Material & relevant facts to be pleaded with sufficient detail – No Speculative, vague assumption facts – Failure to plead adequate facts amounts to incompetency of Petition – Section 208 (a) Organic Law on National & Local Level Government Elections – S.210 Dismissal of Petition.


Cases Cited
Papua New Guinea Cases


Amaiu v Maki (2003) N2364
Amet v Yama (2010) SC 1064
Bernard Vogae v Greg Mongi (1999) N1635
Beseoh v Bao (2003) N2348
Daniel Kapi v The Electoral Commission (2003) N2327
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ekip v Wimb (2012) N4899
Holloway v Ivarato Anor [1989] PNGLR 99
Joel Pawa v Robert Nagle [1992] PNGLR 563
Luke Alfred Manase v Don Pomp Polye (2009) N3718
Ludger Mond v Jeffery Nape (2003) N2318
Mathias Karani v Yawa Silupa (2003) N2385
Niggints v Tokam (1993) PNGLR 66
Nomane v Mori (2013) SC 1242
Olim v Kuman (2002) N2310
Pauu v Nagle [1992] PNGLR 256
Peipul v Niningi (1998) SC 580
Pila Niningi v Electoral Commission (2013) N5322
Raymond Agonia v Albert Karo (1992) PNGLR 463
Robert Kopaol v Philemon Embel (222) SC 727
Robert Kopaol v Philemon Embel (2008) N3319
Thomas Negints v Electoral Commission (1992) N1072
Tulapi v Lagea (2013) N5235
Vagi Mae v Jack Genia & Electoral Commission [192] N1105


Counsel:


Mr. Nemo Yalo, for the Petitioner
Mr. Camillus M. Gagma, for the First Respondent
Mr Harvey Nii, for the Second Respondent


8th June, 2018


  1. AUKA J: BACKGROUND: The result for the 2017 election for the Kundiawa Gembogl Open Electorate in the Simbu Province was declared on 3rd August, 2017. The election was won by the First Respondent by polling 15, 499 votes. The runner up Wagi Merimba polled 12, 798 votes, Peter Kama, the second runner-up polled 10, 977 votes. The petitioner herein was the third runner-up polling 9, 385 votes
  2. The physical difference of votes scored between the First Respondent and the runner-up is 2, 701 votes. The difference of votes between the Petitioner and the First Respondent is 6, 114 votes.
  3. The Petitioner filed his Petition on the 12th September, 2017 challenging the result of the election pursuant to Section 206, 208 and Section 153 A(4) of the Organic Law on National and Local Level Government Elections (the ‘Organic Law”).
  4. The Petitioner set out the facts in relation to Errors and Omissions from paragraphs 13 to 67 of the Petition. The Petition further set out one (1) other ground which is Error and Omissions on the part of the Second Respondent (Electoral Commission) which are set out under Part C, paragraph 1 to 10 of the Petition. The allegations in relation to errors and omissions from paragraphs 13 to 67 of the Petition are mumbled up or jumbled up with all allegations all mixed up. In my view there are too many allegations all in one ground and so on. In my view all allegations should be prepared separately so that it is easier to follow.
  5. The First Respondent objected to the Competency of the Petition by way of an amended Notice of Objection filed on 22nd November, 2017. The First Respondent in the Notice of Objection to Competency sets out twenty-eight (28) grounds of objection and places them into four (4) main grounds:
    1. Insufficiency facts (Speculative, vague, ambiguous and assumptions) under S. 208 (a) of the Organic Law;
    2. Use of word “Voters” and “electors” under S.3 (1) and S.123 of the Organic Law;
    1. Attestation of petition by witnesses under S.208 (d) of the Organic Law and;
      1. Petition filed outside of 40 days period, S. 208 (e) of the Organic law
  6. The Second Respondent by Notice of Objection filed on 28th November, 2017 objected to the Competency of the Petition.
  7. On 3rd and 4th April, 2017 I heard submissions both oral and written on the Objection to Competency of the Petition and adjourned to give my ruling on a later date.
  8. There are other grounds of objection raised by the First Respondent which have not been considered until the determination of this particular ground under S. 208 (a) of the Organic Law. If the Petition survives, the balance of the grounds will be fixed for decision on a later date.
  9. This is my ruling on the objection to the Competency of the Petition.

10. Section 210 of the Organic Law on National and Local Level Government Election provides for objection to Competency in an Election Petition.


11. Section 210 of the Organic Law states that proceeding shall not be heard on a petition unless the requirement of sections 208 and 209 are complied with “Section 209 requires the payment of a Security deposit of K5, 000. 00 at the time of filing of the petition.


12. Section 208 sets out the requisites for a Petition. It states –

“A Petition shall:


  1. Set out the facts relied on to invalidate the election or return, and;
  2. Specify the relief of which the petitioner claims to be entitled; and
  1. Be signed by a Candidate at the election in dispute or by a person who was qualified to vote at the election; and
  1. be attested by two witnesses whose occupations and addresses are stated; and
  2. 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 declarations of the election in accordance with “Section 175 (1) (a)”.

13. Because the word used at the outset is “Shall” as opposed to “May”, it is mandatory invoking strict compliance.


14. There are host of cases that invokes strict compliance of section 208 (a). If not complied with will end the Petition there and then.


15. The Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342, when ruling on a reference concerning Section 208, held that if a petition does not comply with all of the requirements of S. 208 of the Organic Law, then there can be no proceedings on the petition because of S. 210. All this ruling has been the basis for Objection to Competency of petitions in many election petitions.


16. The Supreme Court recently in Amet v Yama (2010) SC1064 fully endorsed the Law on Section 208 of the Organic Law established by and since Biri v Ninkama (supra) in the following terms-


“ 32. It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the electoral process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of the allegations relied on. This is the underlying principle of Law behind S. 208 of the Organic Law as averted to by the Supreme Court stated in Delba Biri v Bill Ninkama [1982] PNGLR 342 at p.345.


“.... The Statute has clearly expressed its intention that a petition must

strictly comply with S.208. It is not difficult to see why. An election

Petition is not an ordinary cause..... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefers. This is a scared right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.


In our opinion it is beyond argument that if a petition does not comply with all of the requirements of S.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of S. 210.


35 These provisions dictate that the petitioner must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent because of s.210: Delba Biri v Bill Ninkama (supra)


36 As to what facts ought to be set out under s. 208 and the rationale, the Supreme Court in Holloway v Ivarato Anor [1988] PNGLR, 99 held:


“ The facts which must be set out under S.2018 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved”.


39. Those approved authorities statements of the Supreme Court do not only confirm the mandatory compliance with the organic law, it also states the underlying need for that compliance”.


17. In Joel Pawa v Robert Nagle [1992] PNGLR 563, at 564 Woods J said that a clear statement of the relevant facts relied upon to prove errors and Omissions must be stated in no uncertain terms:


“ It is not the role of the Court to draw possible conclusions or infer possible situations. The Court requires clear evidence of Errors and Omissions, we cannot just assume there may be a possibility of Errors and Omissions”


18. In the case of Mathias Karani v Yawa Silupa (2003) N2385 His Honour Justice Sawong said and I quote;

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

(a) The error or omission Complained of:
(b) The error or omission was committed or made by the Electoral Officer; and
(c) The error or omission “did affect the result of the election”
  1. In relation to the pleading of errors and omissions under S. 218 of the Organic Law, His Honour Injia J (as he then was) in Beseoh v Bao (2003) N2348 said;

“Section 218 (1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice”.


  1. Having referred to some of the rulings and endorsements on the Legal requirements on Section 208 of the Organic Law, I go on to deal with the Objections to the Petition raised by the First and the Second Respondents in their respective notices of objection to Competency.
  2. The Petition is mainly on challenging the decision of the Assistant Returning Officer in rejecting the two (2) ballot boxes from Ward 3 and Ward 6 of Mitnande LLG for the Kundiawa Gembogl Open electorate from Scrutiny under S153A of the Organic Law without good reasons.
  3. The Allegation was that the two (2) ballot boxes were from Ward 3 and Ward 6 of the Mitnande LLG containing a total of 2, 363 votes. The Petitioner claims that he has a strong support base from those two (2) Council Wards. He further claims that in the event that those two (2) boxes containing 2363 ballot papers were counted, he would have scored 89% of the total votes in those 2 boxes, being 2, 103 votes. He further claimed that if the 2, 103 were added to his tally at the primary count, then the order of elimination would have changed, in that he would have run second to the First Respondent at the end of the primary count, and that he had in strong chance of receiving more votes after the elimination of the Candidates below him in that changed scenario, elevating him to the top and eventually win the election.
  4. Under Part C of the Petition, the Petition alleges that the rejection of the 2 ballot boxes containing 2, 363 votes by the Assistant Returning Officer was:
  5. The Petition under Part C also alleges other errors and omissions by counting officials at the counting centre (grounds 5 to 10 of the Petition).
  6. The Petition pleads that the rejection of the 2 disputed ballot boxes from Scrutiny (ground 1 to 4) and or the general errors and omissions (ground 5 to 10) affected the results of the election.
  7. The question asked here is do each of the grounds of the petition plead relevant and material facts?
  8. Ground1: Ground 1 of the petition alleges that rejection of the 2 ballot boxes containing 2, 363 votes by the Returning officer was in breach of Section 153A of the Organic Law.
  9. The Petition pleads that the 2 boxes were rejected without good reasons, as:
  10. The Petition states that 10 Scrutineers (named) of various candidates objected to the admittance to Scrutiny of the 2 boxes by letter dated 16th July 2017. It does not state the reasons for the objections except that the bases for the dispute expressed in the said letter is not the same as the reason expressed on 10th July, 2017 by the same scrutineers (paragraph 15 of Petition).
  11. The Respondents objected to these grounds of the petition (paragraph 13, 14, 15, 16, 17 of the Petition) on the basis that it fails to plead adequate facts as required by Section 208 (c) of the Organic Law. The following are the reasons.
  12. Section 153A of the Organic Law requires the Returning officer to make a decision or decisions regarding the fate of the ballot boxes when the ballot boxes are objected to from Scrutiny. In making his decision the Returning Officer is required to consider all the statements before him. In this case the Returning Officer seemed to have done that; he took into account the statements from the 10 scrutineers in favour of those objecting, and the 2 presiding officers in favour of admitting the ballot boxes to Scrutiny, and made a decision to refuse the 2 boxes from Scrutiny. The Returning officers decision is final. A person aggrieved by the Returning officers decision under this provision can only challenge it in Court by way of a petition under S. 206 of the Organic Law.
  13. The Petitioner challenging the Assistant Returning officers decision as done here, must set out facts. It must state among other things, how the polling regarding the ballot 2 boxes were conducted. It must through the pleadings, demonstrate that the polling in the 2 areas was done lawfully, other than simply pleading among others that the 2 presiding officers for the 2 ballot boxes gave clearance. That does not amount to pleading of facts. The Petition must plead base facts.
  14. In the case of Vagi Mae v Jack Genia and Electoral Commission (1992) N1105, His Honour Sheelan J said:

“Section 208 (a) stipulates that particulars of facts must be given: that is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded”.


  1. In the case of Olim v Kuman (2002) N2310 His Honour Jalina J commenting on the Law established in Biri v Ninkama (Supra), said:

“If the petitioner is serious about it then “facts” that he relies on to overturn that election must go beyond a mere statement or assertion that certain things were done by or to electoral officials or by or on behalf of the winning candidate and with his knowledge and consent which affected or were likely to have affected the result”.


  1. The requirement to plead facts, especially for the purpose of Section 153A of the Organic Law is clearly stated by Injia CJ, in his judgement in Pila Niningi v Electoral Commission (2013) N5322, where His Honour said:

35. In order for this Court to review the Ro’s decision to reject or admit a Ballot box from the scrutiny, the Petitioner must, in the Petition, plead the matters set out in S.153A (1), (2) & (3); occupied with a clear and concise statement as to what is wrong with the RO’s decision. Those are relevant and material facts required to be pleaded in a Petition by OLNE, s 208 (a) read in conjunction with s.153A. The conduct of polling and conduct of scrutiny of votes are two distinct and separate processes and activities that take place at different times, different places and with different electoral officials assigned to those tasks. Polling officials are not counting officials and they are not required and do not get to participate at the counting except when they are required under s.153A and Regulation, s.90 (6). It is wrong and a grave mistake for a petitioner or for anyone to assume, or for this Court to be expected to assume that counting officials are or ought to be areas of what transpired at the polling place and events leading up to the time the ballot box is produced for scrutiny at the counting centre, by not pleading the essential and material facts concerning those matters.


  1. In the Petition, the petitioner pleads what happened at the time of polling with respect to the Lumbi and Yaria Boxes and how those ballot boxes were mysteriously produced for scrutiny at the counting centre. The pleading in paragraph 41 of the Petition that the actions of Mr. Francis Akol in admitting to scrutiny the Lumbi and Yaria ballot boxes earlier rejected by Mr. Tipora breached s.153A does not cure the deficiency in the pleadings with regard to the failure to adhere to the procedure under s. 153A (1) – (3) and S. 90 of the Regulations by either Mr Tipora and Mr Akol and to some extent by Mr. Kundapen and the EC. The pleadings in paragraph 42 (a)(iv) and (b)(4) that the ballot boxes were admitted to scrutiny despite strong objection from Mr Niningi’s scrutineer Mr Kevin Paka also do not satisfy the requirements of s153A and s 190 of the Regulations. The pleading that Mr Tipora wrote to EC and candidates stating the decision that he had made also does not satisfy those requirements because the content of the letter is not pleaded to show how the decision-making process that he followed and his reasons for decision. It is clear to me from the pleadings that because the events which transpired at Lumbi and Yaria polling places and the controversy surrounding those two ballot boxes at the scrutiny attracted so much publicity, it has been assumed that the counting officials, scrutineers and candidates are well aware of or ought to be aware of those matters such that there is no need to plead those facts for purposes of s153 and s 90 of the Regulations. It has also been left to this Court to assume or infer those matters and read those matters into the petition. As Mr Kenedy argued, such matters should be inferred from reading the pleadings in the petition as a whole; or that they go to the details and those can be addressed at the trial through evidence or submissions. In my view, these omissions are critical and fatal omissions in the pleadings. They are material and essential facts that without their express pleadings in the petition, the grounds in the petition that Mr. Francis Akol wrongfully and in breach of s 153A admitted the Lumbi and Yaria ballot boxes for scrutiny; and, Mr Kundapen wrongfully included them in the vote tally when he made the declaration, are not supported by factual pleadings. The Court has no authority to fill in missing essential facts and their inter-dependence on each other, to make out a case pleading-wise, for the petitioner. I am satisfied that there is no pleading or insufficient pleadings of essential and material facts as required to be pleaded under s 208 (a) to support a ground for voiding the election under s153A and s90 of the Regulations and s.218.
  2. It is to be noted that when ballot boxes were rejected from scrutiny, it was not sufficient to merely allege that the 2 respective presiding officers from the 2 LLG Wards gave their clearances so the ballot boxes from those 2 LLG Wards are good to be admitted to Scrutiny. The Petition should have pleaded relevant base facts to demonstrate that there was proper, Legal polling in those 2 LLG Wards.
  3. Moreover, in Support of the Contention that polling in respect of the 2 ballot boxes was done lawfully and therefore the Returning officer’s decision to reject the 2 ballot boxes from being admitted to scrutiny was done in error, the Petition ought to have pleaded or stated the following facts-
  4. The above approach was followed by His Honour Kandakasi J, in Ekip v Wimb (2012) N4899 where the Petitioner there made similar allegations of errors and omissions against the Electoral Commission through the Returning Officer for rejecting certain number of ballot boxes from scrutiny without good reasons because he alleged that there was proper polling in those areas. The Petition did not plead any background fact but simply stated that there was “proper polling” for the purposes of pursuing the grounds or error and omission.
  5. In dismissing the Petition on the Respondent’s objection to Competency His Honour said-

“ Indeed s.208 and s210 of the Organic Law on Elections could be seen as the filtering process through which meritorious and sustainable allegations or allegations which have clarity around them with the relevant and material fact relied upon sufficiency stated, can be allowed to proceed to a hearing while unmeritorious and unsustainable allegations or allegation which lack clarity and completeness around the relevant and material facts relied upon can be prevented from proceeding to a hearing”.


  1. As to the nature of the facts to be pleaded, His Honour went on to say:

“35. Then as to what kind of Specifics that must be stated to meet the requirement to “set out the facts relied on” under s.208 (a) I note that they include facts which describe what happened or should have occurred but did not which form the foundation for a ground for a petition. Such specifics include the total number of votes casted, disputed and or secured by a winning candidate, the runner up and other candidates, names of people responsible for the matters complained of, when and where the events, be it errors, omissions or illegal practices have occurred and a description of the conduct, error, omission or illegal practice complained of. Statement of facts in general terms without the relevant and necessary details of the kind just mentioned which give a complete story would fail to meet the requirements of s.208 (a). For it is not the role of the Court to draw possible conclusions or infer possible situations. This is the case because, unlike any other matter that goes to the National Court, election petition falls in a special jurisdiction, in which each ground stated in a petition is a separate issue for trial.


  1. I find that the Petition in this current case had not pleaded facts in the manner referred to above to demonstrate that polling was done lawfully in those 2 areas and that the decision by the Assistant Returning officer in refusing to admit the 2 concerned ballot boxes from scrutiny was done in error.
  2. In the circumstances the Acting Returning officer was justified in making the decision he did.
  3. Therefore ground 1 of the Petition is dismissed for not pleading adequate facts pursuant to section 208 (a) of the Organic Law.
  4. Grounds 2 and 3 of the Petition
  5. Ground 2 of the Petition alleges that the Assistant Returning officer committed an error or omission in breach of section 19 (1) and (71) of the Organic Law when he defied Electoral Commission’s direction by letter dated 22nd July, 2017 to admit the 2 ballot boxes to Scrutiny (ground 2 of Petition).
  6. Ground 3 of the Petition alleges that the Assistance Returning officer breached s.19 (1) and (7) of the Organic Law when he defied directions from the Electoral Commission by letter dated 26th July, 2017 for him to conclude the 2 boxes in the Count (ground 3 of petition).

47. Paragraphs 26 and 30 of the Petition plead facts to the 2 Letters.


48. Paragraph 26 of the Petition states:


“On 22nd July 2017 Mr Patilias Gamato wrote a Letter to Mr Robert Lafanama the ARO responding to the email from Tom Sine dated 19th July, 2017. Mr. Gamato directed that the two disputed ballot boxes from Mitnande LLG be admitted for counting of the ballots therein.


49. Paragraph 30 of the petition states-

“On 26th July, 2017 Mr Patilias Gemato wrote to Kimbu and Associates in relation to proceedings OS (EP) No. 20 of 2017. He directed that the two ballot boxes subject of the disputed (ie: Wards 3 and 6) be admitted for counting of the ballots in accordance with his earlier direction of 22July, 2017 to the ARO Mr Robert Lafanama. Mr Gamato expressly stated in his letter: “A declaration of a member of a member elect for his electorate shall not be completed if the votes casted in those two boxes... are not admitted before the quality check and elimination process commences”


50. Section 19 of the Organic Law States-


19. Returning Officers


(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning officer for each electorate, who shall be charged with the duty of giving effect to this law within or for his electorate, subject to any directions of the Electoral Commission.
(2) ..........
(3) ..........
(4) ..........
(5) ..........
(6) ..........
(7) A direction from the Electoral Commission to a returning officer not to make a declaration of result shall bind the returning officer and if the Returning officer or any other Electoral officer makes a declaration despite the direction, that declaration is invalid.


51. It must be stated that the requirement by Law for the Returning officer to comply with directions issued by the Electoral Commission and Sections 19 (1) and (7) of the Organic Law does not have the Legal force and effect where the direction is not lawful or not good or valid. Robert Kopaol v Philemon Embel (2008) N3319 per Salika J.


52. In Daniel Kapi v The Electoral Commissioner (2003) N2327. His Honour Gavara – Nanu J, said-


“In Peter Ipu Peipul v Pila Niningi and Electoral Commission – SC 580, the Supreme Court held that the directions referred to in S.19 relate to the general duties of the Returning officers. The direction given in the instant case was in respect of such a duty, but I am of the view that there is always a qualification that any direction given under S.19 must be lawful and for good reasons.


53. Direction issues by the Electoral Commission cannot overcome the counting of votes in a ballot box which has been tempered with; Amaiu v Maki (2003) N2364, Peipul v Niningi (1998) SC 580.


54. In Niningi v Electoral Commission. His Honour Injia CJ said-


“..................The Pleading that Mr Tipora write to EC and candidates stating the decision that he had made also does not satisfy those requirements because the content of the letter is not pleaded to show the decision making process that he followed and his reasons for decision.


55. Under the circumstances, it is necessary for the petition to have pleaded the content of the Direction letters to show the decision-making process that he followed and the reasons for the decision.


56. In the absence of pleading facts setting out the reasons for decision, the presumption is that there were no good reason by the Commissioner in the exercise of his powers under s.19 (1) and 19 (7) of the Organic Law; Niggints v Tokam [1993] PNGLR 66. Therefore I rule that the directions referred to via the Electoral Commissioners letter of 22nd July, 2017 (paragraph 26 of petition) and 26th July, 2017 (paragraph 30 of petition) invalid.


57. I rule that grounds 2 and 3 of the Petition is dismissed for not pleading sufficient and relevant facts.


58. Paragraph 25 of the Petition states that on 19th July, 2017 Mr. Tom Sine, the Simbu Provincial Election Manager, sent an email to electoral Commissioner seeking his advice on the two disputed ballot boxes. There is not mention whether the Returning officer was copied the email or whether he was aware of Mr Tom Sine’s email to the Commissioner.

59. Under Section 91 (1) of the Organic Law only the Returning officer is empowered to conduct elections, subject to the directions of the Electoral Commissioner.

60. The Electoral Manager is not empowered by law to conduct elections including scrutiny. Thus, in what capacity he wrote to the Commissioner and the content of his email is not pleaded.

61. If the legal capacity in which the Election Manager derived powers to concern himself with the disputes in the scrutiny of the 2 ballot boxes is not pleaded then it is assumed that he did not have the lawful mandate in the first place to involve himself in the decision making process under Section 153A of the Organic Law including writing to the Commissioner. Therefore the email written by him was without lawful authority. It therefore follows that any responses or direction given by the Commissioner based on a flawed procedure would taint the legitimacy of the directions.

62. Also if the Returning officer was not copied the email, and was not aware of the Communication between the Election Manager and the Electoral Commissioner regarding the fate of the 2 disputed ballot boxes, any direction given by the Electoral Commission to the Returning officer is not a valid direction.

63. The Petitioner in paragraph 27 pleads that the petitioner obtained an urgent ex-parte order from the National Court on 22nd July, 2017 which restrained the Returning officer and others from conducting scrutiny of the ballots “until a written decision on the disputed of the two ballot boxes were given by the Electoral Commissioner” The matter adjourned to the 26th July, 2017.

64. The “written decision” by the Electoral Commissioner came in the form of the letters dated 26th July 2017 to Kimbu & Associates. In the letter the Electoral Commissioner expressly stated that “A declaration of a member for this electorate shall not be completed if the votes casted in the two boxes are not admitted before the quality check and elimination process commences”.

65. When the legal proceeding returned to Court on the 26th July, 2017 the Court made an Order, directing the Electoral Commissioner and Ms Kimbu of Kimbu & Associate to undertake that scrutiny of the votes to proceed as per the Electoral Commissioners letters of 22nd July, 2017 to the Assistant Returning officer and 26th July, 2017 to Kimbu & Associates.

66. It is clear that the Petition does not state whether the actual letter of 26th July, 2017 from the Commissioners to Kimbu and Associates was served on the Assistant Returning officer. The Assistant Returning officer cannot be said to have defied directions of the Commissioner because the letter of 26th July, 2017 was not addressed to him and the said letter was not served on him.

67. Therefore that letter from the Commissioner to Kimbu Lawyers of 26th July, 2017 was not a valid direction to the Returning officer and as such he was not required to comply.

68. Therefore I find that grounds 2 and 3 of the Petition are not competent in view of the Petition not pleading material facts to demonstrate that the directions were valid and lawful. These grounds are struck down.

69. It is noted in paragraph 11 of the petition that the Petition has pleaded that “the Electoral Commissioner had accepted the return of the Writ on 29th April, 2017. So if there were any defiance on the part of the Assistant Returning officer, the Electoral Commission in accepting the Writ shows that any misconduct or defiance committed by the Assistant Returning officer has been formally ratified by the Electoral Commissioner. And as such the Petitioner has nothing to complain about.

70. Therefore I repeat that grounds 2 and 3 of the Petition don’t survive and fails.

71. The allegation made under ground 4 of the Petition is that the Returning officer breached a National Court Order which temporarily restrained him from proceeding with the scrutiny.

72. The National Court has no power to give directions on the conduct of the elections. It’s the task of the Electoral Commission to conduct elections. Thomas Negints v Electoral Commissioner (1992) N1072 by Woods J.

73. Therefore I find that a breach of the Court Order cannot constitute an error or omission, or illegal practice forming a basis for an election petition under s.206 of the Organic Law.

74. Moreover, the National Court Order by Consent of Parties on 26th July, 2017 relied on by the Petitioner was ruled by the Supreme Court in SCA (EP) 112 of 2017 to be extinguished and disolved.

75. Therefore I find grounds 4 of the Petition misconceived and not sustainable.

76. I have carefully read grounds 5, 6, 7, 8,9 and 10 of the Petition and I find that these grounds pleads general allegation without facts. These grounds do not plead any number of votes as having been affected by the alleged errors and omissions at all.

77. In Election Petition cases, figures are material in demonstrating the Likelihood of the result being affected. Also it is necessary to plead how the errors and omission on the part of election officials are material as such that the result of the election was likely to be affected: Bernard Vogae v. Greg Mongi (1997) N1635, Ludger Mond v Jeffery Nape (2003) N2318.

78. In the case of Tulapi v Lagea (2013) N5235 His Honour Injia CJ said-

“The Court will not hesitate to strike down grounds in a petition and factual allegations in support thereof that lack essential facts; are pleaded in misguided, imprecise, vague and duplications manner that in the end lack substances. The Court will also not allow a petitioner to advance general and alternative factual pleadings or legal grounds in a petition, hoping to search for answers to specific facts and grounds to make out a case in the course of the trial proper”

79. In this case the Petition has not alleged the number of votes to have been affected by errors and omissions under grounds 5 to 10. The Petition has not pleaded the numbers. The Court cannot substitute or assume facts. It is not role of the Court to draw possible conclusion or infer possible situations; Joel Paua v Robert Nagle [1992] PNGLR 563.

80. Moreover, grounds 5 to 10 has not pleaded the statutory duty or the relevant statutory provisions that are alleged to have been breached by the electoral officials. It is for the petitioner to identify and plead the relevant statutory provision relied upon; Nomane v Mori (2013) SC 1242, Amet v Yama (2010) SC1064, Tulapi v Lagea (2013) N5235.

81. The Petition has failed to plead relevant facts under grounds 5 to 10 and as such these grounds are dismissed for not pleading facts as required under S. 208 (a) of the Organic Law.

82. The Petitioner in his allegations claims that he would have received 89% of the votes in the hypothetical scenario pleaded between paragraphs 49 to 66 of the petition. However there is no guarantee that he would have received that percentage of votes. These are mere speculation and contrary to section 208 (a) of the Organic Law.

83. The Petition under paragraphs 37 to 48 pleads base facts for the grounds of errors and omissions pleaded at grounds 5 to 10 but the petition have generalised the allegations, and is speculative, in that it fails to plead facts. It does not plea the names of the persons who are alleged to have committed the errors. It does not plead the dates or the stages of the Counts when those errors were committed. It does not plead the total number of votes affected by those errors and it fails to demonstrate through the pleadings how the results are affected by these alleged errors and omissions.

84. Therefore paragraphs 37 to 48 of the Petition are struck down.

85. The Respondents have objected to Paragraphs 49 to 58 of the petition as those allegations are speculative, vague and ambiguous and as such are not facts that would invalidate the election or return for purposes of section 208 (a) of the Organic Law. All these allegations do not demonstrate facts that would show how the votes or ballot papers would have been affected for purposes of s.218 (1) of the Organic Law. How is the 2012 General Election Scrutiny results of votes claimed to have been acquired by the Petitioner relevant to the 2017 General Election tally of votes for purpose of Section 218 (1) of the Organic Law.

86. The Comparative analysis of 2012 and 2017 General Elections Scrutiny results of votes are merely based on assumptions and speculations. Those allegations are not facts for purposes of s.215 (3) of the Organic Law and are not errors or omissions under s.218 (1) of the Organic Law. The Petition has not pleaded facts on which count or stage of scrutiny and by how much at those intervals was the votes or marked ballot papers were said to be affected.

87. Therefore paragraphs 49 to 58 of the Petition are struck down.

88. The Respondent have also objected to paragraphs 59 to 66 of the Petition as allegations are speculative, vague, ambiguous and assumptions and as such cannot be facts that would invalidate the election or return for purposes of section 208 (a) of the Organic Law. All these paragraphs do not demonstrate facts that would show how the votes or ballot papers would have been affected for purposes of s.218 (1) of the Organic Law. These pleading are in breach of the express requirement under s.208 (a) of the Organic Law to plea facts.

89. Therefore paragraphs 59 to 66 of the Petition are struck down.

90. The Respondents have also objects to paragraph 67 of the Petition as it is speculative, vague and ambiguous and as such cannot be facts that would invalidate the election or return for purposes of s. 208 (a) of the Organic Law. That paragraph failed to specify whether the ARO failed his statutory duties under s.153A of the Organic Law and s.90 of the Regulations which constituted an error or omission for purposes of s.218 (1) of the Organic Law. Therefore paragraph 67 of the Petition struck down.

91. In the end I rule that each of the grounds in the petitions have failed to plead relevant and material facts.

92. The next question to ask is does the petitions, through the pleadings, demonstrate that the result was affected?
Section 218 (1) of the Organic Law states that:


“...an election shall not be avoided on the accounts of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of , or an omission by, an officer which did not affect the result of the election”.

93. It is repeated that when pleading errors and omissions as a ground for vitiating an election return in an election petition under s.218 (1) of the Organic Law, it is necessary to plead not only the alleged error and omission but demonstrate through the pleading how the result of the election was affected by the alleged errors and omissions. Pleading one without another is not sufficient. Amet v Yama (2010) SC 1064.

94. The result of the election referred to is the final result at the time of declaration, stating the total number of votes collected by the winning candidate and the runner up to demonstrate the winning margin or the difference of votes between the winning candidate and the runner-up among other things; Ludger Mond v Jeffery Nape (2003) N2318 per Kandakasi J.

95. In the case of Luke Alfred Manase v Don Pomb Polye (2009) N3718. His Honour Justice Lay (as he then was) held that the results obtained by the winning candidate and the petitioner and the calculation of how the grounds pleaded affect the results, should be pleaded.

96. In the present case, the Petitioner was not the runner up. He was the third runner up. He scored 9, 385 votes 6, 114 less votes than the First Respondent, the winning candidate.

97. The winning candidate scored 15, 499 votes. The runner up scored 12, 798 votes.

98. The difference of votes between the First Respondent and the runner-up is 2, 701 votes.

99. The votes alleged to have been affected by the errors and omissions is 2, 363 votes.

100. The 2, 363 votes allegedly affected by errors and omissions is less than the 2, 701 votes, the difference of votes received by the winning candidate from the runner-up at the time of declaration of results.

101. It is crystal clear, that the results have not been affected.

102. If the petition pleads that the Order of elimination will be changed, and ultimately, the result will be affected, then he should have demonstrated through the pleading by pleading of facts.

103. In this case the Petition only has pleaded inferences and possibilities of what could have been, if the 2363 ballot papers in the 2 disputed ballot boxes were counted.

104. It has to be noted that the Court in an election petition does not sit to determine whether the possible scenarios will affect the result.

105. The Supreme Court in the case of Robert Kopal v Philemon Embel (223) SC 727 when commenting on the requirement to plead facts under section 208 (a) of the Organic Law, fully approved a statement of Principle in Raymond Agonia v Albert Karo [1992] PNGLR 463, where His Honour Justice Sheehan said-

“Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not open forum for unspecified Complainants where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that if proved, will result in an election being set aside”.
106. It is important that when pleading facts, those facts must not be inadequate leaving the court to draw possible conclusions or infer possible situations or assume there may be possibility of errors and omissions; Pau v Nagle [1992] PNGLR 563 or Speculate; Amet v Yama (2010) SC 1064.


107. The final matter to decide is whether the results have been affected by the Omission of 2, 363 ballot papers given that the winning margin is 2, 701 votes.


108. I find that the result of the election is not affected and rule that the entire petition based on errors and omissions is dismissed for not pleading adequate facts pursuant to Section 208 and Section 10 of the Organic Law.


109. Accordingly I make the following orders;


  1. The First and Second Respondents Objections to Competency are upheld.
  2. The whole of EP 76 of 2017 dismissed in its entity on the ground of incompetence.
  3. The Petitioner shall pay the costs of the First and Second Respondents including that of the Competency application if not agreed to be taxed.
  4. The Security deposit of K5000. 00 held by the Registrar shall be paid and divided equally between the respondents.
  5. If follows that the petition must be terminated here and there will not be any need to consider the other grounds of the objections.

____________________________________________________________
Nemo Yalo Lawyers: Lawyers for the Petitioner
Gagma Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent


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