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Tabar v Wong [2018] PGNC 77; N7121 (17 January 2018)

N7121
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 11 OF 2017

BETWEEN
MALAKAI TABAR
Petitioner

AND
HON. JELTA WONG
First Respondent

AND
PATILIAS GAMATO
in his capacity as the ELECTORAL COMMISSIONER
Second Respondent

Kokopo: Makail, J
2018: 15^th & 17^th January

ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts pleaded in the petition – Breach of constitutional provisions – Nomination of candidate – Lack of name on common roll of electorate – Allegations of bribery, undue influence and errors or omissions at counting – Whether facts pleaded identify elements of offence of bribery – Whether there are facts showing results likely to be affected as a result of errors or omissions by electoral officials – Organic Law on National and Local-level Government Elections – Sections 55, 64, 82 - 92, 208 (a), 215 & 218 – Criminal Code – Section 103

ELECTION PETITION – Objection to competency of petition – Attestation of petition – Attesting witness – Witness to alleged facts or otherwise – Differing judicial views by Supreme Court on question of proper attesting witness – Organic Law on National and Local-level Government Elections – Sections 208 (d)

Cases cited:

Billy Jababa v. Iambakey Okuk [1983] PNGLR 69
Francis Kikin Siune v. Bari Palma & Electoral Commission (2017) N7039
Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242
Ludwig Schulze v. Arthur Somare (1997) N1798
Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295 Riddler Kimave v. Poevare Tore & 2 Ors (2013) SC1303
Sandy Talita v. Peter Ipatas & Electoral Commission (2016) SC1603
Tony Waterupu Aimo v. Ezekiel Anisi & Electoral Commission (2012) N4870

Counsel:

Mr. J. Holingu, for Petitioner
Mr. M. Nale, for First Respondent
Mr. L. Okil, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

17^th January, 2018

1. MAKAIL, J: This is a petition disputing the election of the first respondent as member for Gazelle Open electorate in East New Britain Province. Before it can be tried, its competency has been challenged.
   

Grounds of Objection

2. The competency challenge is based on two notices of objection to competency filed by the respondents on 26^th September and 3^rd November 2017 respectively.
   
3. Both objections are based on insufficient facts pleaded in the petition. The respondents alleged that the petition fails to satisfy one of the requisites of a petition under Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”).
   
4. Secondly, it is not a valid ground to allege that the first respondent did not lawfully enrol as an elector in Gazelle Open electorate, thus disqualified from nominating as a candidate under Sections 50 and 103 of the Constitution.
   
5. Finally, a further ground was belatedly raised by the first respondent in relation to invalid attesting witnesses to the petition. By this ground, it is alleged that the attesting witnesses failed to verify any or some of the alleged facts in the petition.
   

Invalid Attesting Witnesses

6. I deal first with the final ground. It is common ground between the parties that there are two different judicial views on the question of proper witness to attest a petition.
   
7. There is one view that any person can attest to a petition, as long as, sufficient details of their address and occupation is stated. This is the view expressed by the Supreme Court in Jim Nomane v. Wera Mori & Electoral Commission (2013) SC1242, Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295 and Riddler Kimave v. Poevare Tore & 2 Ors (2013) SC1303.
   
8. The other view is that, an attesting witness to a petition should be able to attest to the signing of the petition and to the facts pleaded in the petition. Recently the Supreme Court in Sandy Talita v. Peter Ipatas & Electoral Commission (2016) SC1603 held this view.
   
9. This view is based on the reasoning that a person who attests to the petition must be someone who lives within the locality of where the petition originates. And the determination of the question of a witness’s personal knowledge and locality is a question of fact and that extrinsic evidence can be called to prove it.
   
10. It is also common ground between the parties that the two attesting witnesses identified as Robert Pau and Arthur Malakai have addresses at Section 480, Allotment 112, Rainbow Heights, National Capital District.
    
11. The contention by the first respondent based on the view expressed by the Supreme Court in Sandy Talita case is that it can be inferred that the attestation of the petition by the two witnesses is invalid because they were not based in the locality where the petition originated when they signed it. In other words, they witnessed by signing the petition in Port Moresby and that location is outside the electorate, the subject of the petition.
    
12. It is further contended that given the differing judicial opinion on the question and as the Sandy Talita case is a recent decision of the Supreme Court, it is binding on this Court and should be applied. This ground alone is sufficient for the Court to find the petition incompetent and dismiss it.
    
13. The last point of the first respondent’s submission is incorrect. As a matter of judicial precedence, all decisions of law by the Supreme Court are binding on the National Court: Schedule 2.9 (1) of the Constitution. (Subordination of courts).
    
14. Given this, both views are binding on the Court. Both views are also well grounded and sound. They are views of an equal number of Justices of the Supreme Court, namely three-member-bench. The question will need a Supreme Court comprising of more than this number to settle it.
    
15. Until the question is settled by a Supreme Court comprising of a higher number of Justices, the Court should be slow to dismiss the petition on this ground alone.
    
16. For, if the Supreme Court in Sandy Talita held that it can be inferred that the attestation of the petition by the two witnesses is invalid because their addresses suggests that they were not based in the locality where the petition originated when they signed it, the converse is open to find.
    
17. It can be equally argued that a person can attest to a petition at a location outside the locality where the petition originates but may use and state an address within the locality of the petition.
    
18. As the Supreme Court in Sandy Talita further observed, the only way for the Court to conclusively determine the validity of the attestation of a petition by a witness is to call for extrinsic evidence. Either the defence should have called witnesses to confirm that the two witnesses who attested the petition did so at a location outside Gazelle Open electorate or the two witnesses should have been called to verify their statement in the petition on the subject question.
    
19. Neither was done in this case. This being the case, the inference that the two witnesses who attested the petition may have done so from within the locality of the petition is a possibility, and cannot be ruled out. I am not satisfied that the petition should be dismissed where such a finding is inconclusive. This ground of objection is dismissed.
    

Breach of Constitutional Provisions

20. I turn to the ground on breach of constitutional provisions. The allegations of fact are set out at paras. B5 to B7 and C1(a) to C1(f) of the petition. The allegation is that the first respondent was not registered as an elector on the Common Roll for Gazelle Open electorate when he nominated for Gazelle Open electorate. It was after he nominated.
    
21. At the same time, he was registered as an elector in two other electorates; first, Lae Open electorate and second, Kokopo Open electorate. He did not have his name removed or cancelled in the other two electorates prior to nominating for Gazelle Open electorate. In the end, he has his name registered on Common Rolls of three different electorates.
    
22. What he did was in breach of the requirement to enrol on the Common Roll of an electorate, and to nominate to stand for public office and vote in an election under Sections 50 and 103 (3) (a) of the Constitution and Sections 55 and 64, and Sections 82 to 92 of Part XI of the Organic Law.
    
23. It was quite difficult to work out precisely what the petitioner is alleging because the facts as pleaded are so convoluted and vague. As a result, in submissions, clarification was sought from counsel for the petitioner and it took a while for me to work out exactly what the allegation constituting the ground to void the election of the first respondent was. It came down to this, the petitioner challenges the first respondent’s qualification to nominate for the Gazelle Open electorate.
    
24. This was confirmed by counsel for the petitioner. According to counsel, the allegation that the first respondent was not registered as an elector on the Common Roll for Gazelle Open electorate prior to nomination. Thus, he is not entitled to vote in the elections and disqualified from nominating by virtue of Section 103 (3) (a) of the Constitution.
    
25. He said this is a stand-alone ground and the allegation that the first respondent was also registered on the Common Rolls for the other two electorates further support this ground. If proved, it can void the election of the first respondent without further proof that the breach affected the result of the election.
    
26. There is a difference between a right to vote and stand for public office under Section 50 of the Constitution, qualifications for and disqualifications from membership under Section 103 of the Constitution, enrolment of an elector and nomination of a person under the various provisions of the Organic Law and Regulations.
    
27. Section 50 of the Constitution states:
    

“50. Right to vote and stand for public office.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or

(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”

28. Section 50 confers on every citizen, whether single or dual, a right to vote and stand for public office. But it is not an absolute right; it is qualified. Its breach alone does not constitute a ground to void an election. As it is a qualified right, the qualifications and disqualifications to stand for public office are provided under Section 103 of the Constitution.
    
29. Section 103 states:
    

“103. Qualifications for and disqualifications from membership.

(1) A member of the Parliament must be not less than 25 years of age.

(2) A candidate for election to the parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.

(3) A person is not qualified to be, or to remain, a member of the Parliament if—

(a) he is not entitled to vote in elections to the Parliament; or

(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or

(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or

(d) he is adjudged insolvent under any law; or

(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or

(f) he is otherwise disqualified under this Constitution.

(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—

(a) the end of any statutory period allowed for appeals against the conviction or sentence; or

(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.

(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.

(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.

(7) In this section—

"appeal" includes any form of judicial appeal or judicial review;

"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.”

30. Where a citizen meets the qualifications or is not disqualified under Section 103, he is qualified to stand for public office. One of the qualifications is that, he must be not less than 25 years of age. This is sometimes referred to as the age requirement. Where a citizen nominates to stand for public office prior to attaining the age of 25 years, and is elected, his election may be voided on account of him being under the age requirement, hence disqualified by operation of law: The case of Tony Waterupu Aimo v. Ezekiel Anisi & Electoral Commission (2012) N4870 is an example.
    
31. Residential qualification is another. Amongst others, he must have been born in the electorate for which he intends to nominate. The case of Ludwig Schulze v. Arthur Somare (1997) N1798 is an example of a candidate failing to meet the residential qualification and was disqualified. Being not entitled to vote in elections to the Parliament is another, so as being of unsound mind or under sentenced of death or imprisonment for a period of more than nine months.
    
32. A person is also disqualified if he is adjudicated insolvent: see Francis Kikin Siune v. Bari Palma & Electoral Commission (2017) N7039 where a petition disputing the member for Kerowagi Open electorate on this ground was dismissed because the order adjudging the member insolvent was stayed by the Supreme Court.
    
33. An enrolment is a requirement for a person who intends to vote to comply with. The process of enrolment is prescribed by Part VII (Sections 52 to 70) of the Organic Law. By Section 52(2), “All persons whose names are on the Roll for an electorate shall, subject to this law and to the provisions of any other law in force, vote at the elections of a member for the electorate.......”
    
34. A nomination is a requirement for a person who intends to stand for public office to comply with. The process of nomination is prescribed by Part XI (Sections 83 to 96) of the Organic Law.
    
35. By Section 85, a nomination must be in a prescribed form and by section 86, amongst others, nomination of members may be made to the Presiding Officer for the electorate. And section 87 provides for the requisites for nomination. This is where the nomination of a person is screened and if accepted, the persons can stand for public office and be elected.
    
36. Where an objection is made by anyone, or the Electoral Commission on its own motion believes, that a person who has nominated is not qualified to be a Member of Parliament, the Electoral Commission may reject the nomination: Section 87(2) (Emphasis added).
    
37. The reference to the word “qualified” in this Sub-section refers to the qualifications and disqualifications prescribed by Section 103 of the Constitution. In other words, acceptance of a person’s nomination to stand for public office is not based on him being registered as an elector on the Common Roll for not more than one electorate but the qualifications and disqualifations under Section 103 of the Constitution.
    
38. This is where the pleadings are lacking or insufficient. There are no facts pleaded to show which one of the qualifications or disqualifications under Section 103 of the Constitution is relied upon by the petitioner to void the elections of the first respondent. For example, it is not pleaded that the first respondent was disqualified from nominating for Gazelle Open electorate on residential ground, that is, he was not born in the electorate or lived in the electorate for the time duration allowed by law. The facts as they stand, assumed that the first respondent was not qualified to nominate for the electorate.
    
39. For this reason alone, this allegation on breach of Constitutional provisions is incompetent and struck out.
    
40. Even if the petitioner’s case is based on failure by the second respondent to cancel or remove the name of the first respondent from the Common Rolls for the other two electorates prior to accepting his nomination, it also suffers from the same deficiencies.
    
41. Section 55 of the Organic Law which is one of the provisions relied upon by the petitioner provides for claims for enrolment. Sub-section (1) provides that “.........a person who (a) has resided on the area of an electorate for a period of not less than six months immediately preceding the date of his enrolment; or (b) is nominated for an electorate for which he is not enrolled and was either born in the electorate or lived in the electorate for five years at any time, is entitled to have his name placed on the Roll for that electorate.”
    
42. By this provision, the petitioner is required to plead facts to show whether the first respondent has resided in the electorate for not less than six months prior to his enrolment or either born in the electorate or lived in the electorate for five years prior to having his name placed on the Roll for Gazelle Open electorate. Only then can he alleged that the first respondent failed to meet the requirements under Section 55 and that the second respondent erred in accepting his nomination when he was still a registered elector in the other two electorates.
    
43. Without those facts, it must be assumed that the special provisions for certain nomination under Section 64 of the Organic Law applies in this case. Section 64 states.
    

“64. Special provisions for certain nominations.

(1) Notwithstanding anything in this Law but subject to this section, where a person who is entitled to do so has nominated for an electorate other than the electorate for which he is enrolled:—

(a) the Returning Officer for the electorate for which he nominates shall place his name on the Roll for that electorate and notify the Returning Officer for the electorate for which he is enrolled who shall remove his name from the Roll for that electorate; and

(b) if the nomination is withdrawn, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall (unless he has in the meantime nominated for some other electorate) restore his name to the Roll for that other electorate; and

(c) if he fails to be elected, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate; and

(d) if he is elected and later ceases to be the member for the electorate, the Returning Officer for the electorate for which he was the member shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate unless he has ceased to be eligible for enrolment in that electorate and has been enrolled in another electorate.

(2) Where a person who is entitled to do so nominates for an electorate and his name is not already on a Roll for the electorate he nominates, on the acceptance of his nomination for the electorate, the person shall be deemed to be on the Roll and he shall so nominate and vote in the electorate.”

44. This provision permits a person whose name is on the Roll in one electorate to nominate in another. If that happens, the Returning Officer shall place his name on the Roll for the other electorate remove his name from the Roll of the first electorate.
    
45. Moreover, by Sub-section (2), where a person’s name is not already on the Roll for the electorate where he nominates, his nomination can be accepted and it will be deemed to be on the Roll and he can nominate and vote in the electorate.
    
46. It occurs after the fulfilment of the requisites for nomination under Section 87, one of which is the residential qualification, that is, the person must have been born in the electorate to which he intended to nominate. See discussion at [35] to [37] above.
    
47. The case of Billy Jababa v. Iambakey Okuk [1983] PNGLR 69 prompted an amendment to the Organic Law to avoid the risk of persons intending to stand for public office being denied the opportunity to exercise that right. The end product of that is Section 64.
    
48. In the end, if a person nominates for an electorate and his name is not already on the Roll for that electorate and his nomination is accepted, he is deemed to be on the Roll for that electorate and can nominate and vote in that electorate.
    
49. In this case, in given the lack of facts in relation to the first respondent’s qualifications and disqualifications to nominate, based on Section 64 of the Organic Law, the allegation that the first respondent “is not qualified to be or remain a member of Parliament if he is not entitled to votes in elections to the Parliament” pursuant to Section 103 (3) (a) of the Constitution is misconceived and must fail.
    
50. The entire allegation on breach of Constitutional breach is not only lacking in material facts but also misconceived. It is incompetent and struck out.
    

Bribery and Undue Influence

51. The facts constituting the allegations of bribery and undue influence are set out at paras. B8, B9 and C2 of the petition.
    
52. At the outset, it must be stated that during submissions, the petitioner abandoned the allegations in relation to undue influence. Very briefly, the allegations are, the first respondent unduly influenced voters by give cash of K100.00 to them and telling them to vote for him. Secondly, he unduly influenced counting officials at the counting centre by buying lunch and talking to them. It follows that, a reference to these instances of undue influence at paras. B8, B9 and C2 of the petition are abandoned and will not be considered.
    
53. Bribery is a criminal offence under Section 103 of the Criminal Code. Section 103 states:
    

“103. Bribery

A person who-

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person, any property or benefit of any kind-

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity as an elector; or

(ii) on account of any person acting or joining in a procession during an election: or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”

54. To prove bribery, material facts of the elements of the offence of bribery under Section 103 must be pleaded. They are:

(a) A person;
(b) Gives, confers, procures;
(c) Any property or benefit of any kind;
(e) To another person;
(f) (i) For doing or not doing anything, or to do or not to do

anything, by an elector at an election in the capacity as an elector; or

(ii) on account of any person acting or joining in a procession during an election: or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

55. They do not have to be pleaded in the exact terms but the facts must identify them. The material facts must include when and where the alleged bribery occurred.
    
56. As the offence of bribery is allegedly committed during election, there are two additional requirements under Section 215 of the Organic Law. Section 215 states:
    

“215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void

(2) ...........

(3) 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 a 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.”

57. They are:
    

(a) The offence was committed by a candidate; or

(b) If not, by a person other than the candidate with the candidate’s knowledge or authority.

58. Where a petition discloses this basic information commonly referred to as material facts, it is competent.
    
59. In this case the allegation is that the first respondent bribed persons to vote for him by giving them money. First, the facts identify the first respondent as the offender. Second, the identity of the person allegedly bribed as one August Punion.
    
60. Third, the type of property or gift given, conferred or procured is also disclosed. It is K100.00. Finally, the element of inducement of a person is present. The giving or conferring of K100.00 to August Punion with expressed words that “yupla baim kaikai na putim mi namba wan” (In English “Buy food for yourselves and give me your primary vote”) discloses and satisfies the fourth element of bribery.
    
61. The additional material facts are the date and place of the commission of the offence. Here, the date and place are given. They are Saturday 22^nd April 2017 at about 9:00 am at Tagitagi No. 1 Village, Toma, Vunadirdir Local Level Government, Gazelle District, East New Britain Province. It even gives the exact location of the alleged crime scene; that is, the late Balsius Midir’s house and other persons who were with Mr. Punion at that time and place, namely Henry Minalom and Lawrence Gogome.
    
62. The provision of these facts renders the contention by the respondents that the petition fails to plead the name of the polling location or ward and that if it is a gazetted one, unnecessary and amounts to nit-picking. Moreover, it is requiring the petitioner to plead evidence rather than facts. Those finer details are matters for evidence at trial.
    
63. Putting those to one side and armed with the available information, the defence team should be able to cross check with Mr. Punion, Mr. Minalom and Mr. Gogome to verify the allegation. If the position of these persons lean towards the allegation, it is open to the defence to locate any eyewitnesses to the alleged offence to come forth and verify if the allegation is true.
    
64. The defence raised a further matter. The respondents contended a further material fact is missing and that is that, the petition does not state that the person allegedly bribed was an elector. They submitted that, it is a material fact and must be pleaded because it is the only way they will know whether the subject person is an elector. Any reference to a voter in the pleadings is insufficient and should be rejected because it is not defined in the Organic Law.
    
65. The correct term used is “elector” because it is defined and adopted by Section 3 of the Organic Law as “.....a person whose name appears on a Roll as an elector”.
    
66. There is no contest to this submission. However, the term “voters” is pleaded. It can be found at paras. B8 and C2 of the petition. Without getting too technical about it, I accept that the terms “elector” or “voter” refers to or is intended to convey the same meaning; that a person to vote or cast a vote. Whether that person’s name is on the Common Roll is a matter for evidence at trial.
    
67. I am satisfied the facts are sufficient to constitute bribery. This ground of the petition is competent and will proceed to trial.
    

Errors or omissions at Counting

68. The allegations of errors or omissions at counting are set out at paras. B10(a) and (b), B11 and C3(a) and (b)(i) to (v) of the petition.
    
69. Summarising the allegations of fact pleaded in the paragraphs referred to above, first the alleged error or omission is that the Returining Officer for Gazelle Open electorate, Mr. Peter Lapim was not present at the counting room when the results of the final count at the fifteenth elimination was announced.
    
70. Second, the announcement of the results was performed by the Assistant Returning Officer, Mr. Bernard Tulia without the supervision of the Returning Officer. Third, in announcing the number of votes collected by the petitioner and the first respondent at the final count and fifteenth elimination, the Assistant Returning Officer announced the number of votes collected by the petitioner as 716, thereby giving a progressive total of 8,969.
    
71. However, he failed to announce the progressive total votes for the first respondent when he announced the number of votes collected by the first respondent as 1,116.
    
72. After 10 minutes, the Assistant Returning Officer announced another figure of 1,450 as the number of votes collected by the first respondent at the fifteenth and final count but failed to announce the progressive total votes for the first respondent.
    
73. Finally, after 5 minutes, the Assistant Returning Officer repeated it. This time, he announced the figure of 1,647 as the number of votes collected by the first respondent at the fifteenth and final count but not the progressive total votes for the first respondent.
    
74. The absolute majority is stated as 8,899. The petitioner’s progressive total vote of 8969 is stated and would have taken his total votes over and above the absolute majority and should he have been declared winner. On the other hand, the first respondent’s progressive total vote is unknown.
    
75. The allegation is that, what the Assistant Returning Officer did is contrary to or in breach of the “usual practice” at the counting venue and constituted an error or omission by the Assistant Returning Officer.
    
76. These facts identify the purported failure by the Returning Officer and Assistant Returning Officer to observe a “usual practice” at the counting room which purportedly resulted in the result of the election likely to be affected.
    
77. However, they fail to identify first the functions of these officers, including whether one of the functions of the Returning Officer is to be present at the final count and elimination and he had no power of delegation to Assistant Returning Officer when he is absent.
    
78. They also fail to identify the procedure for counting and if it is a requirement for any of these officers who is present to announce not more than once, the results of the number of votes collected by each candidate and further their progressive total votes until the final elimination and count.
    
79. Further, if the results of the number of votes collected by each candidate were announced more than once, the reasons for that, and if no reasons were given, it must state so and must be unequivocal and “without good reasons” as pleaded is contradictory and vague.
    
80. On the other hand, the facts pleaded are based on the assumption that one of the functions of the Returning Officer is to be present at the counting centre at all times and where he is absent, the Assistant Returning Officer is not authorised to perform his functions.
    
81. It is also assumed that there is a “usual practice” at the counting venue to announce once, the number of votes collected by each candidate at each elimination and count and further, the progressive total votes of each candidate including the final elimination and count.
    
82. Thus, the pleading that at the last and final count after the elimination of Mr Nobert Kubak, the Assistant Returning Officer, Mr. Bernard Tulia announced three different figures for the first respondent is contrary to the “usual practice” in the counting room is unsupported by the primary facts which are material to support the facts identifying the alleged failure or breach by the Assistant Returning Officer.
    
83. It is an assumption leading to a conclusion that errors or omissions were made by the Assistant Returning Officer at that stage of the counting process which affected the result of the election and that it is just that the first respondent should be declared not to be duly elected or that the election be declared void.
    
84. Finally, they assumed that the Returning Officer or Assistant Returning Officer, as the case may be, must give reasons for the announcement of figures if the announcement of the results is more than once.
    
85. These deficiencies are pointed out to emphasise the need to comply with the requirements under Section 218 of the Organic Law; that mere errors or omissions or speculations are not sufficient to affect the result of the election. There must be something more than that; that they are serious and grave to enliven the discretion under this provision.
    
86. I am not satisfied that there are sufficient material facts to constitute errors or omissions at counting. The objection is upheld and this ground of the petition is struck out.
    

Conclusion

87. Two out of three allegations in the petition have been struck out as being incompetent. The reminder will proceed to trial.
    

Order

88. The orders are:
    

1. The objections to competency are upheld in part.

2. The allegations constituting the grounds on breach of Constitutional provisions and errors or omissions at counting are incompetent and struck out.
   
3. The allegation constituting the ground on bribery is competent and will proceed to trial forthwith.
   

4. Costs of the objections shall be in the petition.

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Holingu Lawyers: Lawyers for Petitioner
Jema Lawyers: Lawyers for First Respondent
Kimbu & Associates Lawyers : Lawyers for Second Respondent