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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 25 OF 2017
IN THE MATTER OF A DISPUTED RETURN FOR THE
HAGEN OPEN ELECTORATE
JAMES PUK
Petitioner
V
WILLIAM DUMA
First Respondent
PATILIAS GAMATO, ELECTORAL COMMISSIONER
OF PAPUA NEW GUINEA
Second Respondent
Waigani: Cannings J
2018: 24, 30 October
ELECTIONS – petitions – objections to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(a): whether facts relied on to invalidate the election adequately set out.
The respondents to an election petition objected to competency of the petition, which consisted of seven grounds of challenge, five relating to alleged illegal practices committed by supporters of the first respondent (the successful candidate) and agents and servants of the second respondent (the Electoral Commission), based on Section 215 of the Organic Law on National and Local-level Government Elections, and two relating to alleged errors and omissions by agents and servants of the second respondent, based on Section 218 of the Organic Law. The grounds of objection to competency of the petition fell into four categories: (1) general objection to the form and content of the petition, as being non-compliant with the form prescribed by the Election Petition Rules 2017, and not being signed by the petitioner in accordance with Section 208(c) of the Organic Law; (2) specific objections to each of grounds 1 to 5 of the petition, as (a) being vague and confusing, (b) failing to clarify whether it is a ground of challenge based on Section 215 or Section 218 of the Organic Law; (c) failing to plead the basis of the allegation that the illegal practices were committed with the knowledge and authority of the first respondent (as required by Section 215(3)); and (d) failing to plead that it was “just that the candidate should be declared not to be duly elected or that the election should be declared void” (as required by Section 215(3)), all of which meant that the petition was in breach of Section 208(a) of the Organic Law; (3) specific objection to ground 6 of the petition, for (a) failing to plead details of the circumstances of the objections made to the returning officer; (b) cross-referring to grounds 1 to 5 in a vague and insufficient manner; (c) being bad for duplicity; (d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions, which meant that the petition was in breach of Section 208(a) of the Organic Law; (4) specific objection to ground 7 of the petition, for (a) failing to plead necessary facts to support the allegation that polling at the polling places alleged to have generated lawfully cast ballots in 28 ballot boxes had been conducted properly; (b) failing to connect alleged facts to particular alleged errors or omissions; (c) failing to allege that all presiding officers responsible for the 28 ballot boxes were not consulted prior to the returning officer’s decision not to admit the contents of any of those ballot boxes to scrutiny; (d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions, which meant that the petition was in breach of Section 208(a) of the Organic Law.
Held:
(1) Re category 1 objections: refused. Though the form and content of the petition failed in a number of respects to comply with the prescribed form and content, the form and content were substantially compliant with the Rules.
(2) Re category 2 objections: sustained. All sub-grounds of objection were sustained, resulting in grounds 1 to 5 of the petition being struck out.
(3) Re category 3 objections: in effect, sustained. Two sub-grounds of objection were refused, but two were sustained. Those two sub-grounds went to the competency of ground 6 of the petition, which failed to comply with Section 208(a) of the Organic Law. Ground 6 of the petition was struck out.
(4) Re category 4 objections: refused. All sub-grounds of objection were refused. Ground 7 of the petition adequately sets out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.
(5) In summary: six grounds (Nos 1 to 6) of the petition were struck out. One (No 7) remains. The petition will proceed to trial on ground No 7. The parties were ordered to bear their own costs as none fully succeeded.
Cases cited
The following cases are cited in the judgment:
Amet v Yama (2010) SC1064
Boito v Kipefa (2018) N7354
Fairweather v Singirok (2013) SC1293
Ijape v Kimisopa (2003) N2344
Kandiu v Parkop (2015) SC1437
Kumbakor v Sungi (2012) N5002
Lus v Kapris (2003) N2326
Mune v Agiru (1998) SC590
Palme v Pok (2018) N7214
Waranaka v Maru (2018) N7346
OBJECTIONS
This is a ruling on objections to competency of an election petition.
Counsel
L A Jurth, for the Petitioner
H Nii, for the First Respondent
J Kolo, for the Second Respondent
30th October, 2018
1. CANNINGS J: This is a ruling on objections to competency of an election petition. The petition, consisting of seven grounds of challenge, was filed by unsuccessful candidate James Puk (the petitioner) disputing the election of first respondent William Duma as member for Hagen Open in the 2017 general election. The petitioner seeks declarations that the first respondent was not duly elected and that the election is absolutely void and an order for a by-election. In the alternative he seeks an order for a recount.
GROUNDS OF THE PETITION
2. The seven grounds of the petition are not numbered in a straightforward way. I have decided to number the grounds as 1 to 7 and cross-refer the number of each ground to the actual number and description of it in the petition.
Grounds 1 to 5: illegal practices
These grounds are set out in part B of the petition, headed “ILLEGAL PRACTICES COMMITTED BY THE FIRST RESPONDENT’S SUPPORTERS AND AGENTS AND SERVANTS OF THE SECOND RESPONDENT” (pages 4 to 13 of the petition).
3. The grounds are introduced by this statement:
The petitioner alleges that the first respondent and/or supporters as well as polling officials being agents and servants of the second respondent have contravened Sections 130 to 139 inclusive and 178(1)(f), (g) and (h), 190 and 191(8), (9), (10) and (14) of the Organic Law on National and Local-level Government Elections (herein referred to as the “Organic Law”) and Sections 102, 109, 110 and 111 of the Criminal Code Act (“the Code”) in that:
4. Each of the five grounds then alleges that there were illegal practices committed at a particular polling place by the first respondent’s supporters and by agents and servants of the second respondent, resulting in no polling actually taking place, yet the returning officer counted the first preference votes illegally cast for the first respondent, resulting in the first respondent being allocated the vast majority of first preference votes at the five polling places, contained in nine ballot boxes, yielding the first respondent a total of 14,695 votes. It is further alleged that these illegal practices resulted in the polling process at each of the five polling places being ‘hijacked by agents and servants of the first respondent and second respondent and this was all carried out within the knowledge and authority of the first respondent’ and that the result of the election was likely to be affected within the meaning of Section 215(3) of the Organic Law.
5. The precise descriptions given in the petition to grounds 1 to 5, are as follows:
Grounds 6 and 7: errors and omissions
6. These two grounds are set out in part C of the petition, headed “ERRORS AND OMISSIONS BY AGENTS AND SERVANTS OF THE SECOND RESPONDENT” (pages 13 to 26 of the petition).
7. Ground 6 alleges that that the returning officer committed serious errors or omissions by “not carrying out proper scrutiny of ballot boxes where illegal practices occurred”, resulting in 14,695 ballot papers (which gave the first preference vote to the first respondent) affected by illegal practices (the same ballot papers the subject of grounds 1 to 5) being counted. Ground 6 concludes (after setting out the details of the allegations) by stating:
11. Consequently by allowing these 14,695 ballot papers to be counted ... and not complying with the procedures outlined in Section 90 of the Regulations and Sections 151(c), 153A, 154 of the Organic Law, the returning officer committed an error and omission within the meaning of Section 218 of the Organic Law.
12. 14,695 ballot papers were affected by this error or omission by the returning officer being a servant of the second respondent. The winning margin is 854 ballots and consequently the results of the election are likely to be affected and will be affected by the error or omission.
8. The precise description given in the petition to this ground is:
9. Ground 7 alleges that that the returning officer committed serious errors or omissions by “not admitting 28 ballot boxes for scrutiny”, resulting in 18,803 lawfully cast ballot papers not being counted. Ground 7 concludes (after setting out the details of the allegations) by stating:
36. Consequently 18,803 votes have not been counted from these polling places without valid reasons by the returning officer and the result of the elections are likely to be affected.
37. The winning margin is 854 ballot papers. 18,803 ballot papers were not counted when the 28 ballot papers were unilaterally set aside in contravention of Sections 151(c), 153A, 154 of the Organic Law, and Section 89 of the Regulations. The results of the election as a consequence of this error and omission will and is likely to affect the results of the election for Hagen Open electorate within the meaning of Section 218 of the Organic Law.
10. The precise description given in the petition to this ground is as follows:
Summary of grounds of challenge in the petition
11. It is alleged in grounds 1 to 5 that illegal practices resulted in the first respondent unlawfully getting 14,695 votes, and that the result of the election was likely to be affected, warranting a declaration under Section 215(3) of the Organic Law that the first respondent was not duly elected and that the election is void.
12. Section 215(3) (voiding election for illegal practices) states:
The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
13. It is alleged in ground 6 that errors and omissions by agents and servants of the second respondent resulted in 14,695 first preference votes (the same 14,695 votes the subject of grounds 1 to 5) being counted for the first respondent, and that those errors and omissions affected the result of the election, warranting an order under Section 218 of the Organic Law that the election be “avoided”.
14. It is alleged in ground 7 that errors and omissions by agents and servants of the second respondent resulted in 18,803 lawfully cast ballot papers (the contents of 28 ballot boxes) not being counted, and that those errors and omissions affected the result of the election, warranting an order under Section 218 of the Organic Law that the election be “avoided”.
15. Section 218 (immaterial errors not to vitiate election) states:
(1) Subject to Subsection (2), an election shall not be avoided on account 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.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
GROUNDS OF OBJECTION TO COMPETENCY OF PETITION
16. Each respondent filed a notice of objection to competency in October-November 2017. They filed supplementary notices of objection to competency (containing grounds of objection based on the form and content of the petition), with leave of the Court, in August 2018.
17. The notices are expressed in different ways but the grounds of objection overlap to a large extent and in submissions counsel for the first and second respondents, adopted and supported the grounds and submissions of each other.
18. The overarching objection is that the petition does not meet the requirements of Section 208 (requisites of petition) of the Organic Law, which states:
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).
19. The respondents rely almost entirely on Section 208(a) and argue that the petition does not sufficiently set out the facts relied on to invalidate the election. The exception is in one of the sub-grounds of objection concerning the form and content of the petition, where the allegation is that the petition does not comply with Section 208(c).
20. The grounds of objection to competency of the petition fall into the following four categories:
(1) General objection to the form and content of the petition, for:
being non-compliant with the form prescribed by the Election Petition Rules 2017, made by the Judges under Section 212(2) of the Organic Law, and in particular the petition was not signed by the petitioner in accordance with Section 208(c) of the Organic Law; all of which means that the petition is in breach of Section 208(a) of the Organic Law, warranting dismissal of the entire petition for this reason alone.
(2) Specific objections to each of grounds 1 to 5 of the petition, for:
(a) being vague and convoluted (not specifying which illegal practices were committed and by whom);
(b) failing to clarify whether it is a ground of challenge based on Section 215 or Section 218 of the Organic Law;
(c) failing to plead the basis of the allegation that the illegal practices were committed with the knowledge and authority of the first respondent (as required by Section 215(3));
(d) failing to plead that it was “just that the candidate should be declared not to be duly elected or that the election should be declared void” (as required by Section 215(3));
all of which means that the petition is in breach of Section 208(a) of the Organic Law.
(3) Specific objection to ground 6 of the petition, for:
(a) failing to plead details of the circumstances of the objections made to the returning officer;
(b) cross-referring to grounds 1 to 5 in a vague and insufficient manner;
(c) being bad for duplicity;
(d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions;
all of which means that the petition is in breach of Section 208(a) of the Organic Law.
(4) Specific objection to ground 7 of the petition, for:
(a) failing to plead necessary facts to support the allegation that polling at the polling places alleged to have generated lawfully cast ballots in 28 ballot boxes had been conducted properly;
(b) failing to connect alleged facts to particular alleged errors or omissions;
(c) failing to allege that all presiding officers responsible for the 28 ballot boxes were not consulted prior to the returning officer’s decision not to admit the contents of any of those ballot boxes to scrutiny;
(d) failing to adequately plead how the result of the election would be affected by the alleged errors or omissions;
all of which means that the petition is in breach of Section 208(a) of the Organic Law.
METHOD
21. I will deal with each of the four categories of grounds of objection in turn. Within each category, I will set out and determine, in turn, each of the sub-grounds of objection and indicate whether the sub-ground of objection is sustained or refused.
22. At the end of each category of grounds of objection I will indicate whether that category of grounds of objection is sustained or refused, and to what extent it is sustained or refused, and what effect this has on the petition and the grounds of challenge in the petition.
CATEGORY 1 GROUNDS OF OBJECTION: GENERAL OBJECTION TO THE FORM AND CONTENT OF THE PETITION
23. The respondents argue that the petition is non-compliant with the form prescribed by the Election Petition Rules 2017, made by the Judges under Section 212(2) of the Organic Law, and in particular that the petition was not signed by the petitioner in accordance with Section 208(c) of the Organic Law; all of which means that the petition is in breach of Section 208(a) of the Organic Law, warranting dismissal of the entire petition for this reason alone.
24. Specifically the respondents argue that the petition is non-compliant in four respects:
(a) it does not set out the facts and grounds separately;
(b) the word “PETITION” does not appear in the designated area;
(c) the second respondent is incorrectly named;
(d) it does not specify whether the petitioner was a candidate or a person qualified to vote at the election.
25. Rule No 4 of the Rules states:
The petition shall be in accordance with Form 1.
26. Form 1 is set out in Schedule 2 to the Rules as follows:
In the National Court of Justice EP No ...... of ..........
at ... (insert place of filing)
PETITION
IN THE MATTER OF A DISPUTED RETURN
FOR THE ......................... ELECTORATE
(insert name of petitioner)
PETITIONER
And
(insert name of successful candidate)
FIRST RESPONDENT
ELECTORAL COMMISSION
SECOND RESPONDENT
(add other respondents if leave granted by the Court)
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)
SIGNED BY: (petitioner to sign his or her signature)
..........................................................
PETITIONER (being a candidate at the election in dispute or by a person who was qualified to vote at the election, in accordance with Section 208(c) of the Organic Law), on ......................................... (insert date on which petition signs the petition) at ............................ (insert place at which the petition is signed)
IN THE PRESENCE OF:
FIRST ATTESTING WITNESS:
I, ............................. (insert name of first attesting witness), ............................ (insert occupation of first attesting witness), of ................................. (insert address of first attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
...................................................
(signature of first attesting witness)
SECOND ATTESTING WITNESS:
I, ............................. (insert name of second attesting witness), ............................ (insert occupation of second attesting witness), of ................................. (insert address of second attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
...................................................
(signature of second attesting witness)
THE PETITIONER’S ADDRESS FOR SERVICE IS: ....................................
(state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town)
NOTICE BY THE REGISTRAR
ALL PARTIES TO THE PETITION TAKE NOTICE THAT THE FIRST DIRECTIONS HEARING FOR THIS PETITION WILL BE HELD AT WAIGANI ON ....................... (insert date) at ............... (insert time).
................................
REGISTRAR
27. A comparison of the actual petition filed with Form 1 of the Rules reveals that the arguments of the respondents about non-compliance are valid.
(a) As to the layout of the petition, it is set out as follows:
“A: THE PETITIONER petitions the National Court against the election or return of the first respondent as the successful candidate for the Hagen Open electorate in the 2017 national general elections.”
“B & C: THE FACTS & GROUNDS relied on to invalidate the return of the first respondent are set out as follows:”
28. The petition within this part of the petition (pages 1 to 27) sets out the facts and grounds under three headings:
“D. “REMEDIES” (page 27 of the petition).
29. I agree with the respondents’ argument that the clear requirement of Form 1 is that facts and grounds be stated separately, and that the petition conflates the two and is non-compliant with the Rules.
(b) As to the word “PETITION” not appearing in the designated area, it will be observed that according to Form 1 the word “PETITION” is to appear below the file reference (EP No 25 of 2017, in this case) and above the following words:
IN THE MATTER OF A DISPUTED RETURN
FOR THE ......................... ELECTORATE
(insert name of petitioner)
PETITIONER
And
(insert name of successful candidate)
FIRST RESPONDENT
ELECTORAL COMMISSION
SECOND RESPONDENT
(add other respondents if leave granted by the Court)
30. In the present case the word “PETITION” appears below the description of the proceedings and parties and above part A, preamble “THE PETITIONER petitions the National Court ...” It is in the wrong place. This is another respect in which the petition filed is non-compliant with the Rules.
(c) As to the naming of the second respondent, it is clear that Form 1 requires that the second respondent be named simply as “ELECTORAL COMMISSION”.
31. This is consistent with Rule No 3 (respondents) of the Rules, which states:
A petition filed pursuant to Section 206 of the Organic Law, shall:
(a) state the name of the successful candidate as the first respondent;
(b) specify the Electoral Commission as the second respondent; and
(c) name no other respondent except with leave of the Court.
32. The actual petition filed names the second respondent as follows:
PATILIAS GAMATO, Electoral
Commissioner of Papua New Guinea
33. The naming of the second respondent is clearly erroneous. This is another respect in which the petition filed is non-compliant with the Rules.
(d) As to the description given of the petitioner in the signature panel towards the end of the petition, he has signed it as follows:
JAMES PUK
Petitioner on 30 August 2017 at Section 52, Allotment 17 Varahe
Road, Gordons, National Capital District
34. I agree with the respondents that in the signature panel the petitioner ought to have stated, in accordance with the signature panel in Form 1, that he was a candidate at the election in dispute and/or a person who was qualified to vote at the election. He did not describe himself in those terms. 35. This is another respect in which the petition filed is non-compliant with the Rules. However, it is noted that in other parts of the petition, the petitioner made it clear that he was a candidate. For example under “A. BACKGROUND” (which comes after the heading B & C: THE FACTS AND GROUNDS ...”), paragraph 1 states:
The petitioner JAMES PUK of PO Box 1315 Mt Hagen, Western Highlands Province, was a candidate in the election of the Member of Parliament for the Hagen Open electorate in the 2017 National General Elections (“the elections”).
Consequences of non-compliance
36. I uphold the respondents’ contention that the petition is non-compliant with the Rules in the four respects contended for. Does this mean that the petition is incompetent and not properly before the Court and should be dismissed, without further ado?
37. According to the decision of Pitpit J in Palme v Pok (2018) N7214 the answer would be yes. In that case his Honour found that the actual petition filed was non-compliant with Form 1 of the 2017 Rules in three respects:
38. His Honour held that the combined effect of the non-compliance was that the petition was incompetent, not properly before the court and had to be dismissed:
32. I find that when combined, these various instances of failure or non-compliance collectively amounts to such a degree that bring it beyond the exercise of any judicial discretionary parlance except the preclusion in s 210 of the Organic Law. This being the conclusion of this court, I accordingly uphold the objection to competency of ground number 1 of the First Respondent and as this ground being the foundational threshold ground, I would order the dismissal of the entire Petition accordingly.
33. The effect of the decision of the court is that there being no petition properly before this court in accordance with the law, it is therefore not necessary to consider the remaining grounds of the objections to Competency by the Respondents.
39. I am not bound to adopt his Honour’s reasoning as it was expressed in a decision of the National Court. However I have considered it closely, of course, and if I took that approach here the whole petition would be dismissed. But I respectfully disagree with that approach. I don’t think that it should be a simple matter of identifying a non-compliant petition and concluding that it is incompetent and ought to be dismissed. If a petition is non-compliant, the nature and extent of the non-compliance should be examined in order to make a proper assessment of whether it is fair and just that the petition ought to be dismissed. I think there should be, and is, an element of discretion involved, at least in the case of a non-compliant form, for these reasons:
The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.
Summary
40. I am not persuaded that the petition’s non-compliance with the Rules is a matter that, in this particular case, having regard to the nature and extent of the non-compliance, is a matter that renders this petition incompetent or puts it beyond the jurisdiction of the Court. Objection 1 is wholly refused and has no effect on the petition.
CATEGORY 2 GROUNDS OF OBJECTION: SPECIFIC OBJECTIONS TO EACH OF GROUNDS 1 TO 5 OF THE PETITION
41. The respondents argue that each of grounds 1 to 5 of the petition is incompetent as it fails to adequately set out the facts relied on to invalidate the election, thereby contravening Section 208(a) of the Organic Law. Four sub-grounds of objection are raised. They apply to each of grounds 1 to 5 of the petition.
(a) Each ground is vague and confusing, as it does not specify which illegal practices were committed and by whom.
42. To test this proposition, I first summarise ground 1 of the petition. It is that on the day of polling, 8 July 2017, at the gazetted polling place of Hagen Technical College at Kerebug Ward 4, no proper polling took place. All electors who turned up to cast their votes were locked out and deprived of their right to vote. Polling officials were present but they marked 1,550 ballot papers themselves and hijacked the polling. When the votes for this polling place were counted on 14 and 15 July 2017 the presiding officers were unidentifiable. Scrutineers for all candidates except the first respondent objected to any votes from the ballot box (No EC-013056) from this polling place being counted. The objections were shut down and the ballot papers in the ballot box were counted: the first respondent secured 1,484 first preference votes out of the total ballot papers counted, 1,550.
43. Ground 1 of the petition (which was mixed together with ground 2, which contained similar allegations) concluded:
21. There was no polling at both Kerebug Ward 4 gazetted polling places and instead the polling process was hijacked by agents and servants of the first and second respondent and this was all carried out with the knowledge and authority of the first respondent.
22. 3,100 ballot papers were affected by this illegal practice. The winning margin is 854 ballots and consequently the results of the election are likely to be affected within the meaning of Section 215(3) of the Organic Law.
44. I agree with the respondents’ observation that ground 1 of the petition does not expressly or with particularity allege the breach of any particular illegal practice by any particular person. The only way a reader of the petition will gain an idea of what might be being alleged is the general introduction to each of grounds 1 to 5 of the petition (cited above), which states:
The petitioner alleges that the first respondent and/or supporters as well as polling officials being agents and servants of the second respondent have contravened Sections 130 to 139 inclusive and 178(1)(f), (g) and (h), 190 and 191(8), (9), (10) and (14) of the Organic Law on National and Local-level Government Elections (herein referred to as the “Organic Law”) and Sections 102, 109, 110 and 111 of the Criminal Code Act (“the Code”) in that:
45. As Mr Nii for the first respondent highlighted in his submission, the way that ground 1 of the petition is drafted means that the respondents have to sift through a raft of legislative provisions and speculate about what illegal practices have allegedly been committed and by whom. Mr Nii provided a helpful summary of the disparate subject matter of the provisions:
Organic Law
Section 130 – polling
Section 131 – elections at which electors are entitled to vote
Section 132 – where voters may vote
Section 133 – persons claiming to vote to give name and other particulars
Section 134 – questions to be put to voter
Section 135 – certain errors not to forfeit votes
Section 136 – right of elector to receive ballot paper
Section 137 – list of voters to be marked on issue of ballot paper
Section 138 – votes to be marked in private
Section 139 – method of marking ballot paper
Section 178(1)(f) – illegal practices
Section 178(1)(g) – illegal practices
Section 178(1)(h) – illegal practices
Section 190 – making marks on ballot papers
Section 191(8) – electoral offences
Section 191(9) – electoral offences
Section 191(10) – electoral offences
Section 191(14) – electoral offences.
Criminal Code
Section 102 – undue influence
Section 109 – electors attempting to violate secrecy of voting etc
Section 110 – stuffing ballot boxes
Section 111 – offences by presiding officers at elections.
46. I uphold the objection that ground 1 is incompetent as it fails to link the alleged facts to any particular illegal practice and it fails to allege who in particular committed each illegal practice. The same objection is sustained in relation to to each of grounds 2, 3, 4 and 5 of the petition, which are drafted in the same way as ground 1. They are equally vague and lacking in detail and incompetent. Sub-ground of objection (a) is sustained.
(b) Each ground fails to clarify whether it is a ground of challenge based on Section 215 or Section 218 of the Organic Law.
47. The respondents argue that although grounds 1 to 5 of the petition do not mention Section 218 of the Organic Law and do not contend that the result of the election should be avoided under Section 218, each ground is intrinsically confusing as amongst the bundle of provisions referred to in the opening statement to grounds 1 to 5 (cited above), there are a number of provisions of the Organic Law that do not involve any “illegal practice”, as such.
48. agree with the respondents. An illegal practice, for the purposes of Section 215 of the Organic Law, is a practice that is illegal and is sanctioned by a criminal penalty, ie an offence (Mune v Agiru (1998) SC590). I uphold this sub-ground of objection.
(c) Each ground fails to plead the basis of the allegation that the illegal practices were committed with the knowledge and authority of the first respondent.
49. I refer again to ground 1 of the petition, which alleges, after setting out the alleged illegal practices, that “this was all carried out within the knowledge and authority of the first respondent”. A similar allegation is made at the end of each of grounds 2 to 5 of the petition.
50. The problem is, as pointed out by the respondents, there are few facts alleged that provide the basis for the proposition that the illegal practices were carried out with the first respondent’s knowledge or authority.
51. Mr Jurth for the petitioner submitted that it is made clear at the beginning of the petition under “BACKGROUND” that the petitioner is alleging that the returning officer was improperly appointed as he was the Hagen District Administrator and a strong supporter and a close confidant of the first respondent. But even if those allegations are factually true, does it follow that the first respondent had knowledge of the illegal practices alleged in grounds 1 to 5 of the petition and/or that he authorised such practices? No, not necessarily.
52. I uphold the respondents’ argument that some specific facts had to be alleged, from which, at least, a reasonable inference could be drawn that the illegal practices were in fact committed with the first respondent’s knowledge or authority (Amet v Yama (2010) SC1064, Lus v Kapris (2003) N2326, Boito v Kipefa (2018) N7354). No such specific facts were alleged. I uphold this sub-ground of objection.
(d) Each ground fails to plead that it was “just that the candidate should be declared not to be duly elected or that the election should be declared void”.
53. The respondents argue that each of grounds 1 to 5 of the petition is incompetent as it fails to plead that it was “just that the candidate should be declared not to be duly elected or that the election should be declared void”. This argument is based on the particular wording of Section 215(3) of the Organic Law, which provides:
The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. [Emphasis added.]
54. It has been pointed out in a number of Supreme Court cases including Amet v Yama (2010) SC1064 and Fairweather v Singirok (2013) SC1293 that if a petition does not allege, or fails adequately to allege, that an illegal practice was committed by a person other than the successful candidate without the candidate’s knowledge or authority, it is necessary to plead the two matters in the proviso at the end of Section 215(3):
55. I have already determined that the petition fails (because of the absence of supporting factual allegations) to adequately allege that the illegal practices were committed with the knowledge or authority of the first respondent. It was therefore necessary to plead the two matters in the proviso at the end of Section 215(3).
56. The first was pleaded in each of grounds 1 to 5 of the petition. The second was not pleaded in any of them. I uphold the respondents’ argument that this is a fatal defect in each of these grounds. I uphold this sub-ground of objection.
Summary
57. All sub-grounds of objection are sustained. Objection 2 results in all of grounds 1 to 5 of the petition being struck out.
CATEGORY 3 GROUNDS OF OBJECTION: SPECIFIC OBJECTION TO GROUND 6 OF THE PETITION
58. The respondents argue that ground 6 of the petition is incompetent as it fails to adequately set out the facts relied on to invalidate the election, thereby contravening Section 208(a) of the Organic Law. Four sub-grounds of objection are raised.
(a) Failure to plead details of the circumstances of the objections made to the returning officer.
59. The respondents argue that because this ground of the petition is predicated on the argument that the returning officer failed to carry out a “proper scrutiny” of ballot boxes, by unlawfully dealing with and ignoring “valid objections” to the votes in the nine ballot boxes being counted, it was incumbent on the petitioner to plead details of the circumstances of the objections made, in particular by providing:
60. I uphold the respondents’ argument that such particulars were required in order to put the respondents, in particular the second respondent, in a position that they would know the case against them in preparing for a trial of this ground of the petition. I uphold this sub-ground of objection.
(b) Cross-referring to grounds 1 to 5 in a vague and insufficient manner.
61. The respondents argue that because ground 6 is so closely connected with grounds 1 to 5 (in that the alleged illegal practices in grounds 1 to 5 are suggested to have provided good grounds for the objections made to the returning officer as to counting the nine ballot boxes the subject of grounds 1 to 5), ground 6 cannot survive if grounds 1 to 5 are struck out. They argue that ground 6 cannot survive by itself, as it gives very few details of why the scrutineers’ objections to the returning officer were soundly based.
62. I uphold the respondents’ arguments. I generally support the approach taken to interpretation and application of the grounds of a petition outlined by Kandakasi J in Ijape v Kimisopa (2003) N2344 and Waranaka v Maru (2018) N7346: each ground of a petition should be capable of standing alone and contain or at least refer to a particular set of facts in a clear and concise manner, so that if some grounds of the petition are struck out, each remaining ground must be capable of standing alone.
63. Here the underlying facts to support ground 6 are found in grounds 1 to 5, which have been struck out. The cross-referencing in ground 6 to the facts alleged in grounds 1 to 5, is vague and insufficient, leaving ground 6 with an inadequate factual basis. I uphold this sub-ground of objection.
(c) Being bad for duplicity.
64. The respondents argue that ground 6 is largely a rehash of grounds 1 to 5 and therefore it is bad for duplicity.
65. I am not persuaded by this argument. Conceivably the factual basis for a ground of illegal practice under Section 215(3) of the Organic Law can provide the same factual basis for a ground of error or omission under Section 218. I do not agree that a petitioner cannot use the same facts to argue a ground of challenge under both Section 215(3) and Section 218. I do not consider that ground 6 is incompetent due to the attempt to rely on the same grounds alleged under grounds 1 to 5. I dismiss this sub-ground of objection.
(d) Failure to adequately plead how the result of the election would be affected by the alleged errors or omissions.
66. The respondents argue that the petitioner has failed to plead, as required by Section 218(1) of the Organic Law, how the result of the election was affected by the alleged errors and omissions. I consider that the answer to the argument lies in the concluding paragraphs of ground 6 of the petition:
11. Consequently by allowing these 14,695 ballot papers to be counted ... and not complying with the procedures outlined in Section 90 of the Regulations and Sections 151(c), 153A, 154 of the Organic Law, the returning officer committed an error and omission within the meaning of Section 218 of the Organic Law.
12. 14,695 ballot papers were affected by this error or omission by the returning officer being a servant of the second respondent. The winning margin is 854 ballots and consequently the results of the election are likely to be affected and will be affected by the error or omission.
67. That in my view was an adequate allegation of fact. I dismiss this sub-ground of objection.
Summary
68. Two sub-grounds of objection are refused, but two are sustained. Those two sub-grounds go to the competency of ground 6 of the petition, which fails to comply with Section 208(a) of the Organic Law. The whole of ground 6 of the petition is struck out.
CATEGORY 4 GROUNDS OF OBJECTION: SPECIFIC OBJECTION TO GROUND 7 OF THE PETITION
69. The respondents argue that ground 7 of the petition is incompetent as it fails to adequately set out the facts relied on to invalidate the election, thereby contravening Section 208(a) of the Organic Law. Four sub-grounds of objection are raised.
(a) Failing to plead necessary facts to support the allegation that polling at the polling places alleged to have generated 18,803 lawfully cast ballots, in 28 ballot boxes, had been conducted properly.
70. The respondents argue that:
71. I am not persuaded by any of these arguments. I don’t see how the description of the ballot boxes etc is confusing. The details are very specific. The connection between the two tables is obvious. The second table indicates that there is in relation to each of the ballot boxes described in the first table, a witness who will say that in relation to that ballot box at that polling place, proper polling took place.
72. As Mr Jurth, for the petitioner, pointed out, legal documents and especially election petitions can always be improved if the drafter is given more time. The court must be conscious of the fact that petitions need to be drafted, settled and filed (following a quick investigation of the allegations) rather quickly after the election. Rarely will they be drafted perfectly.
73. The court should be slow to allow respondents to play dumb, and pretend – on the pretext that the petition is confusing and convoluted – that they don’t understand the factual allegations made by the petitioner.
74. In this instance I think the respondents are playing dumb. This ought not to be permitted. The facts necessary to support the allegation, that polling at the polling places that generated 18,803 ballot papers was conducted properly, have been adequately stated. This sub-ground of objection is refused.
(b) Failing to connect alleged facts to particular alleged errors or omissions.
75. The respondents argue that the petition’s manner of ‘lumped up’ pleading and especially the use of the two tables meant that no specific errors or omissions were pleaded. They rely on the decision of the Supreme Court in Kandiu v Parkop (2015) SC1437, in which the Court was not impressed by the use of tables to explain the alleged errors and omissions of polling officials. The Court stated:
We can see the point Mr Kandiu [the petitioner] is trying to make in paragraph 54 of the petition. There is more than one instance of errors or omissions committed by the electoral officials and they are not confined to one polling booth. They are widespread. These are very serious allegations Mr. Kandiu makes against the electoral officials. It is, thus, incumbent on him to plead sufficient material facts to back his assertions. The pleading at paragraph 54 is an example of what we would term as a “lump sum pleading”. This is because instances of errors or omissions are lumped together in one paragraph. Then the details of names of polling booths, number of ballot-papers issued per polling booth, number of votes cast and number of unused ballot-papers are pleaded in a table form. In our view, this style of pleading is not ideal and should be discouraged because it does not specify the errors or omissions. The base facts constituting the errors or omissions are missing.
76. I am mindful of the Supreme Court’s words of caution about the use of tables. However I don’t think that the tables in this ground of the petition make it difficult to appreciate the alleged errors or omissions, as the alleged errors did not occur at different places and different times and they were not of different types. The facts of this case can therefore be distinguished from those in Kandiu v Parkop. The alleged errors or omissions were made at one place (the counting centre) by one person (the returning officer) on one occasion, 22 July 2017, the day of declaration of the poll.
77. There is no material failure to connect alleged facts with alleged errors or omissions. This sub-ground of objection is refused.
(c) Failing to allege that all presiding officers responsible for the 28 ballot boxes were not consulted prior to the returning officer’s decision not to admit the contents of any of those ballot boxes to scrutiny.
78. The respondents argue that insufficient facts are given as to which presiding officers were not consulted by the returning officer prior to his decision to reject the 28 ballot boxes. It is argued that the petition only expressly alleges that seven named presiding officers were not consulted, which gives rise to the inference that the 21 others were in fact consulted and that the ballot boxes pertaining to the polling places for which they were responsible were rejected on proper grounds after consultation.
79. I am unimpressed by this argument. The kernel of ground 7 is clear: that proper polling took place at 28 polling places, which yielded 18,803 votes from 28 ballot boxes, which were rejected by the returning officer unlawfully, without good reason and that by rejecting those boxes and those votes he made errors or omissions.
80. The question of how many of the presiding officers were or were not consulted by the returning officer is a matter of evidence. This sub-ground of objection is refused.
(d) Failing to adequately plead how the result of the election would be affected by the alleged errors or omissions (as required by Section 218).
81. The respondents argue that the petitioner has failed to plead, as required by Section 218(1) of the Organic Law, how the result of the election was affected by the alleged errors and omissions. I think the answer to the argument lies in the concluding paragraphs of ground 7 of the petition:
36. Consequently 18,803 votes have not been counted from these polling places without valid reasons by the returning officer and the result of the elections are likely to be affected.
37. The winning margin is 854 ballot papers. 18,803 ballot papers were not counted when the 28 ballot boxes were unilaterally set aside in contravention of Sections 151(c), 153A, 154 of the Organic Law and Section 89 of the Regulation. The results of the election as a consequence of this error and omission will and is likely to affect the results of the election for Hagen Open electorate within the meaning of Section 218 of the Organic Law.
82. That in my view was an adequate allegation of fact. I dismiss this sub-ground of objection.
Summary
83. All sub-grounds of objection are refused. Objection 4 has no effect on the petition. Ground 7 of the petition adequately sets out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.
CONCLUSION
84. Six grounds of the petition are struck out: grounds 1, 2, 3, 4, 5 and 6. One remains: ground 7. The petition will proceed to trial on that ground.
85. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the parties bear their own costs as none has fully succeeded.
ORDER
(1) The respondents’ objections to the competency of the whole of the petition, on the grounds set out in the supplementary notices of objection, regarding the form and content of the petition, are refused.
(2) The respondents’ objections to the competency of grounds 1 to 6 of the petition (described in the petition as grounds “B1(a) Kerebug Ward 4 (Urban) (a)(i) Illegal Practice No 1 – Kerebug Ward 4 (Urban), Technical College Polling Place, Kerebug Village”; “B1(a) Kerebug Ward 4 (Urban) (a)(i) Illegal Practice No 2 – Kerebug Ward 4 (Urban), Housing Commission Polling Place, Kerebug Village”; “B1(b) Gomis (b) Illegal Practice No 2 – Gomis, Team 194”; “B1(c) Koglamp Ward 8, (c) Illegal Practice No 3 – Koglamp Ward 8 – Hagen Rural LLG”; “B(d) Kilam Ward No 33 (d) Illegal Practices No 4 – Kilam Ward No 33”; and “C(i) Not Carrying Out Proper Scrutiny of Ballot Boxes where Illegal Practices Occurred”), are sustained, and those grounds of the petition are struck out.
(3) The respondents’ objections to the competency of ground 7 of the petition (described in the petition as ground “C(ii) Particulars of Errors or Omissions in not Admitting Twenty-Eight (28) Ballot Boxes for Scrutiny”) are refused, and that ground remains.
(4) The parties will bear their own costs pertaining to the hearing of the objections to competency.
(5) The petition shall proceed to trial on ground 7 of the petition (described in the petition as ground “C(ii) Particulars of Errors or Omissions in not Admitting Twenty-Eight (28) Ballot Boxes for Scrutiny”) in accordance with directions of the Court.
Ruling accordingly.
____________________________________________________________
Mel & Henry Lawyers: Lawyers for the Petitioner
Harvey Nii Lawyers: Lawyers for the First Respondent
Kolo & Associates Lawyers: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2018/432.html