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Gore v Amuli [2018] PGNC 91; N7153 (21 February 2018)

N7153

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 47 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (AMENDED) LAW 2006

AND

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE SOHE OPEN ELECTORATE IN THE 2017NATIONAL GENERAL ELECTIONS
BETWEEN:

DELILAH PUEKA GORE
Petitioner

AND:
HENRY JONS AMULI
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent
Popondetta: Geita J
2018: 19^th & 21^st February

ELECTION PETITIONS – Objection to competency of petition - Pleadings of material facts in an Election Petition – Requirements of s. 208 (a) (b) of the Organic Law on National and Local Level Government Elections - whether facts relied on to invalidate the election adequately set out.

ELECTION PETITIONS – Elements concerning errors of or omissions by electoral officials need to be set out – Need to set out relevant material facts – s. 218 Organic Law on National and Local Level Government Elections.

Held:

(1) Most, if not all elements concerning errors or omissions alleged, together with supporting material facts sufficiently pleaded.

(2) The facts set out in respect of all grounds except for para.78 grounds of the petition were adequate. As a result both objections were dismissed.

Cases Cited:
N5676">Abal v Ganim [2014] PGNC 32; N5676
Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PNGLR 342
Holloway v Ivarato and Electoral Commission [1988-89] PGLR 99
N2385">Karani v Silupa [2003] PGNC 103; N2385
N2318">Mond v Nape [2003] PGNC 149; N2318
Mond v Okoro, Tualir, and Electoral Commission; Re Sinasina [1992] PNGLR 501
N1635">Mongi v Vogae [1997] PGNC 140; N1635

Sauk v Poyle [2004] PNGLR 23

Counsel
Desmond Kipa and Rose Kelly, for the Petitioner
Brendan Lai, for the First Respondent
Joppo Simbala, for the Second Respondent

OBJECTIONS TO COMPETENCY

21^st February, 2018
1. GEITA J: This is a ruling on two objections to competency of an election petition. The Petitioner Delilah Pueka Gore was a candidate in the 2017 General Elections for the Sohe Open Electorate Seat. On 25 July 2017, the First Respondent, Henry Jons Amuli was declared as Member for Sohe Open Electorate, having polled a total of 7713 votes and the Petitioner a total of 7524, with a losing margin of 189 votes.

2. Just prior to receiving submissions the Petitioner applied for and was allowed leave to make application to amend para. 22 and para. 54 of the Petition to some minor typographical errors viz the year 2018 incorrectly inserted to be amended to read 2017. All Counsels were heard and the court ruled in the Petitioners favour for such amendments to be made on the strength of Section 217 OLNLLGE. (real justice to be observed.) Furthermore the typographical errors were considered to be cosmetic and none of the Respondents prejudiced.

3. The First Respondent and The Second Respondent rely on their respective grounds of objections pursuant to section 208 (a) (b) of the Organic Law on National and Local Level Government Elections 2007 viz for failing to comply with mandatory requirements as dictated and Section 215 (3) (b) Organic Law on National and Local Level Government Elections 2007. From here on I will refer to the Organic Law in the acronym, OLNLLGE. Both Respondents were heard separately followed by the Petitioner.

4. At the outset the First Respondent abandoned grounds 1 (a) (b) and grounds D (a) (b) (c) (d) of the challenge. Ground 1 (c) is retained viz:

“That paragraph 84 of the Petition fails to expressly plead the relevant provision of the Organic Law on National and Local-Level Government Elections that empowers the Court to declare that the return of the First Respondent was absolutely void. The said paragraph fails to expressly plead Section 215 (3)(b) of the Organic Law on National and Local-Level Government Elections and further plead the phrase "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". The above are material facts that the Petitioner has failed to set under paragraph 84 or anywhere else in the Petition as such the Petition is incompetent and should be struck out in its entirety for being in breach of Section 208 (a) of the Organic Law on National and Local Level Government Elections.”

5. The Laws

Section 208. Requisites of Petition

A petition shall –

1. set out the facts relied on to invalidate the election or return; and
   
2. specify the relief to which the petitioner claims to be entitled; and
   

100. be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
     

4. 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).

Section 218. Immaterial errors not to vitiate election

(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.

6. The Petitioner alleges five instances of errors and omissions against the electoral officials which affected the result of the election for Sohe Open Electorate as pleaded in the Petition from para. 52 to 77. The sixth ground: Breach of Section 170 OLLLGE in para .78 is abandoned.

7. I will now go through the grounds alleged in the Petition in the order they were presented and make determinations after hearing respective objections.

Ground 1: Errors and Omissions

• Scrutineers were unable to Scrutiny Ballot Papers para. 52 – 53.
• Scrutineers, including the Petitioner’s scrutineer Gill Pueka were told to stay three meters away from the counting table, such distance prevented the scrutineers from clearly scrutineer or observes ballot papers as they were counted and distributed as well as those marked as exhausted.
• As a result votes were not properly checked and verified when distributed

It is therefore claimed that Section 151 (c) OLNLLGE was breached.

Objections

8. The First Respondent has taken issue with the manner and form in which the Petitioner has grouped all the relevant provisions alleged to be breached in the form presented in para. 84 viz;
   

“The actions of Mr. Baurima and the selected counting officials amounted to manipulation, errors or omissions and were in contravention of the cited provisions of the Sections 151, 168, 169 and 170 of the Organic Law on National and Local Level Government Elections and Section 50(1) (d) of the Constitution.”

• That para. 84 of the petition failed to expressly plead the relevant provision of OLNLLGE that empowers the Court to declare that the return of the First Respondent was absolutely void.
• That para. 84 of the petition failed to expressly plead Section 215 (3) (b) OLNLLGE.
• And further plead the phrase “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”
• The above are material facts that the Petitioner has failed to set out under para.84 or anywhere else in the Petition as such the Petition is incompetent and should be struck out in its entirety for being in breach of Section 208 (a) OLNLLGE.
  

9. Mr. Lai for the First Respondent conceded that the thrust of the petition was not against his client, but rather, against the Second Respondent. Generally, there were no direct allegations or challenge against the First Respondent. As to those objections abandoned, they would amount to nitpicking according to Mr. Lai, therefore abandoned. He had reliance on case authority in Don Poyle v Jimson Sauk [2004] PNGLR 23.
   
10. The First Respondent alleges that the Petitioner has failed to comply with the

Mandatory requirements under Section 208 (a) and (b) of the Organic Law as the
Petition filed on 1^st September, 2017 does not set out the facts (material facts)
capable of being relied on, by the Petitioner, to invalidate the election or return of
the First Respondent as the duly elected Member for the Sohe Open Electorate in the
2017 National General Elections. The Petition also does not correctly specify the relief that the Petitioner is entitled to. Section 210 of the Organic Law stipulates expressly that:

"Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."

11. The seminal decisions of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR that the requirements of Section 208 of the OLNLLGE must be complied with and that the respondents have a right to object to its competency were relied on by the First Respondent.
    
12. The thrust of First Respondents submissions is premised on the Petitioner’s failure to plead Section 215 (3) (b) OLNLLGE which is considered irrelevant by the Petitioner. They argue that all allegations or errors and omissions concern the Second Respondents, its servants and or agents only. The First Respondent argue that the Petition in its present form attempts to show errors and omissions committed by the Assistant Returning Officer Mr. Terence Baurima together with six other electoral officials, personally chosen to assist him and link their collective activities to the First Respondent. I am not persuaded that, that was what the Petitioner intended in her pleadings. Clearly they were targeted at the Second Respondent as such this line of argument is rejected.
    
13. The Second Respondent’s grounds of objection were centered on the Petitioner’s allegation of breach of Section 170 OLNLLGE. (re-count of Ballot papers) contained in para.78 of the Petition. During submissions Mr. Kipa confirmed his client’s position that para. 78 in the Petition formally abandoned. It follows that the Second Respondent is relieved of this contention and therefore submitted that he had nothing to offer in response.
    
14. Mr. Simbala however supported and endorsed the grounds of objection advanced by the First Respondent. He submitted that the entire allegation in the petition was without merit and the pleadings were confusing, ambiguous lacking in clarity in material aspects. He argued that the petition was insufficiently pleaded for the purposes of Section 208 (a) OLNLLGE. Furthermore he argued that the pleadings failed to demonstrate how the result of the election was affected by the alleged errors and omissions for the purpose of Section 218 (1) OLNLLGE.
    

Petitioner’s Response

15. Mr. Kipa submitted that the whole of the petition was pleaded under Section 218 OLNLLGE and not under Section 215 OLNLLGE and it was erroneous on the part of the Respondents to invite court to infer that, since the Petitioner has failed to plead under Section 215 OLNLLGC such petition be ruled incompetent. He argued that the Petition has correctly and adequately passed the competency test as envisaged by Section 218 (1) OLNLLGE by meeting all elements concerning errors and omissions. As a result the court should hear the merits of the matter. (Karani v Silupa [2003] PGNC 103, Greg Mongi v Bernard Vogae & Ors (1997).N1635; LudgerMond v Jeffrey Nape (2003) N2318. And in the most recent case of Abel v Ganim [2014] PGNC 32; N5676 (16 July 2014).
    
16. As to the pleading of facts and not the evidence in this Petition, it is apparent that the Respondents in their grounds of objections now require the Petitioner to plead the evidence, which is contrary to the spirit of Section 208 (a) OLNLLGE. The law is settled in our jurisdiction. (Ludger Luker Mond v Karenga Ben Okoro and Ors [1992] PNGLR 501, Holloway v Ivarato). This can be seen in paras. 9, 12-17, 19, 5,29,33,35. 37 and 38 in the Notice of Objections filed by the Second Respondent. In this instance the allegations only concern errors and omissions of the Second Respondent. There is no allegation made against the First Respondent, hence there is no basis to plead Section 215 (3) (b) OLNLLGE, Mr. Kipa argued. I am more inclined to agree with Mr. Kipa’s argument. Evidentiary facts and law need not be pleaded in Petitions. This grounds of objection is considered misconceived and should be dismissed.
    

Court

17. The objection against Ground 1 in my view is too general in nature, and fails to address the breach alleged. This is understandable in light of all allegations of breaches of the Organic Law directed against the Second Respondent and therefore errors and omissions by its servants and/or employees during the counting and scrutiny of the votes and distribution of the ballot papers during the elimination process. I dismiss those objections. I am satisfied that the facts pleaded in para. 52 – 53 constitute good pleadings and should not be struck out.
    

Ground 2: Irregularities at Exclusion # 9 para 54 -61

• On 23 July 2017 the 9^th exclusion process commenced with ballot papers separated into live and exhausted lots upon Mr. Baurima’s instructions,
• Mr. Gill Pueka raised verbal dispute on lack of checks and verification by scrutineers before the ballot papers were stored away’
• Mr. Baurima shouted angrily at Mr. Pueka and said time cannot be wasted by getting the scrutineers to verify exhausted ballot papers
• From then onwards counting officials continued to exhaust ballot papers without any verification.
• Similar verbal objections raised by other scrutineers in the manner counting officials were exhausting ballot papers, unverified were not heeded by Mr. Baurima, saying that it would cause hindrances to the counting process’
• Further any disputes should be taken to the court of disputed returns.
  

18. It is therefore claimed that the Second Respondent through its electoral officers contravened Section 169 (a) (b) (c) OLNLLGE.
    

Objections

19. The First Respondent’s objections to this ground would be the same as those stated in Ground 1. Similarly the Second Respondents objects to this ground would be the same as those stated in Ground 1.
    

Court

20. The objection in my view is too general in nature and fails to address the breach alleged so I dismiss those objections. I am satisfied that the facts pleaded in para. 54 – 61 constitute good pleadings and should not be struck out.
    

Ground 3: Irregularities at Exclusion # 29 para 62 – 63 and
Ground 4: Irregularities at Exclusion # 39 para 64 – 66 also claim that the Second Respondent through its electoral officers contravened Section 169(a) (b) (c) OLNLLGE.

Objections

21. The First Respondent’s objections to this ground would be the same as those stated in Ground 1. Similarly the Second Respondent’s objections to this ground would be the same as those stated in Ground 1.
    

Court

22. The objection in my view is too general in nature and fails to address the breach alleged so I dismiss those objections. I am satisfied that the facts pleaded in para. 62 – 63 and para. 64 -66 constitute good pleadings and should not be struck out.
    

Ground 5: Irregularities at Exclusion # 40 para 67 – 77

• The final 40^th exclusion of Paulinius Uhena commenced and concluded within 30 minutes.
• Stanley Mackenzie Mado was given 266 2^nd preference votes that were for the Petitioner but was forced by Mr. Baurina to put into the First Respondent’s tray and counted.
• At the final exclusion the First Respondent collected only 300 votes but when 266 second preference votes belonging to the Petitioner were added to his tray he scored 566 votes and was eventually declared winner.
• If the Petitioner’s 266 2^nd preference votes were counted for her, she would have passed the absolute majority and would have been declared the member for Sohe.
  

23. It is therefore claimed that the failure by Mr. Baurima to distribute the 266 2^nd preference votes in the tray of the Petitioner and count resulted in contravention of Section 168(1) (d) (e) and 169(a) (b) (c) of the OLNLLGE and Section 50(1) of the Constitution.
    

Objections

24. The First Respondent’s objections to this ground would be the same as those stated in Ground 1. Similarly, the Second Respondents objects to this ground would be the same as those stated in Ground 1.
    

Court

25. The objections in my view are too general in nature and fails to address the breach alleged so I dismiss those objections. Furthermore the Petitioner’s claim that Mr. Baurima’s failure to distribute 266 votes belonging to the Petitioner resulting in her defeat are questions of evidence and can be adequately addressed at trial. It follows that I am satisfied that the facts pleaded in para. 66 – 67 constitute good pleadings and should not be struck out.
    
26. Similarly I am satisfied that the whole of the Petition is founded on errors of or omissions by electoral officials and most, if not, all elements required to be made out under Section 218 OLNLLGE, clearly and sufficiently pleaded. The Petitioner only need to plead the relevant material facts needed to prove or establish the grounds or errors or omissions. The Petitioner has done that in my considered view. (Karani v Silupa) supra.
    

Conclusion

27. Now that the First and Second Respondent’s objection to competency is dismissed this Petition will proceed to trial with exception of para.78 in the Petition which was abandoned. In the exercise of my discretion as to costs under Rule 19 (1) of the Election Petition Rules 2017 I order that costs follow the event. The Respondents will pay the Petitioner’s cost of the objection irrespective of the outcome of the trial.
    

Order

(1). The First Respondent’s objection to competency of the petition is dismissed.

(2). The Second Respondent’s objection to competency of the petition is dismissed.

(3). The Respondents shall pay the Petitioner’s cost of each objection on a party-party basis, irrespective of the outcome of the trial, which shall, if not agreed, be taxed.

(4). The Petition shall proceed to trial in accordance with directions of the Court.

Ruling accordingly.
_________________________________________________________________
Twivey Lawyers : Lawyers for the Petitioner
B.S Lai Lawyers : Lawyers for the First Respondent
Harvey Nii Lawyers : Lawyers for the Second Respondent