N8259
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 79 OF 2017

IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

PASTOR BERNARD PETER M KAKU
Petitioner

V

WILLIAM POWI, MEMBER FOR SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Berrigan J
2020: 11th March, 3rd April

ELECTION PETITION – objection to competency of petition – whether grounds relied on in petition adequately pleaded facts in compliance with s208(a) of the Organic Law on National and Local-level Government Elections.

The Second Respondent, the Electoral Commission, objected to the competency of an election petition on the basis that the petition was in breach of s208(a) of the Organic Law on National and Local-level Government Elections in that it failed to adequately set out the facts relied upon to invalidate the election.

Held:

(1)	A petition alleging errors or omissions by election officers must pursuant to Section 208(a) of the Organic Law clearly “set out the facts relied on to invalidate the election or return”.  Applying s218(1) of the Organic Law the petition must both clearly identify the error or omission by electoral officers relied upon and demonstrate how that error or omission affected the result of the election. 

(2)	Grounds 1, 2 and 3 were withdrawn and struck out.

(3)	Grounds 5, 7, 8 and 9 failed to adequately demonstrate how the alleged errors would have affected the result of the election and were accordingly struck out. 

(4)	Grounds 4 and 6 adequately pleaded the facts relied upon to invalidate the election, including adequately pleading that the result of the election was likely to be or was affected by the errors or omissions pleaded.

(5)	The petition will proceed to trial on Grounds 4 and 6.

Cases Cited

Amet v Yama (2010) SC1064
Delba Biri v Bill Ninkama [1982] PNGLR 342 
Electoral Commission v Kaku (2019) SC1866 
Holloway v Ivarato [1988] PNGLR 99 
Kikala v Electoral Commission (2013) N4960.
Kikala v Electoral Commission (2013) SC1295
Kopaol v Embel (2003) SC727
Potape v Undialu (2018) SC1680 
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
Tulapi v Lagea (2013) N5235 
Yama v Yagama (2013) N4928  

References cited

Sections 168, 175, 208, 212, 218, of the Organic Law on National and Local-level Government Elections (the Organic Law) 

Counsel

R Diweni, for the Petitioner
A Baniyamai, for the First Respondent
H Nii, for the Second Respondent

26th March, 2020

1.	BERRIGAN J: This is a ruling on a notice of objection to competency by the Second Respondent, the Electoral Commission, of an election petition. The petition, consisting of nine grounds of challenge, was filed by unsuccessful candidate Pastor Bernard Peter M Kaku, disputing the election of the first respondent,William Powi, as member for Southern Highlands Provincial Electorate in the 2017 general election. 

BACKGROUND AND PRELIMINARY ISSUE 

2.	By way of background I note that two notices of objection to competency were filed in respect of the petition. The first was filed by the First Respondent on 24 November 2017 and the second separate objection was filed by the Electoral Commission on 22 February 2018.  Both objections were heard before another judge in the National Court on 11 February 2019.  On 18 February 2019 the National Court delivered a decision striking out all but Grounds 4 and 6 of the petition.  Both the First and Second Respondents filed applications seeking leave to review that decision.

3.	On 16 August 2019 the Chief Justice, Sir Gibbs Salika, struck out the First Respondent’s application for leave but granted the Second Respondent leave to review, which it did.  The Electoral Commission’s application for review went before the Supreme Court on 17 October 2019.  The Supreme Court handed down its decision in Electoral Commission v Kaku (2019) SC1866 on 30 October 2019.  It upheld the review and remitted the hearing of the Electoral Commission’s objection to competency to the National Court for re-hearing before another judge.  That is the matter now before me.

4.	At the hearing of the Electoral Commission’s objection to competency, the Petitioner raised a preliminary issue.  He submitted that this Court was bound by the earlier decision of the National Court with respect to the First Respondent’s objection to competency, such that it was confined to hearing only argument on Grounds 4 and 6 and/or it must automatically dismiss the other grounds of the objection to competency.  In response the Electoral Commission argued that the Court was obliged to hear the entire notice of objection to competency and that if the Court was in any doubt about the Supreme Court’s orders in this regard it should refer the matter to the Supreme Court for clarification and/or directions.

5.	I ruled that this Court was bound to hear the entirety of the Electoral Commission’s notice of objection to competency for the following reasons.  Firstly, even assuming that the notices of objection of each of the First and Second Respondents were in similar terms, they remain separate and distinct. Secondly, the decision of the National Court on the First Respondent’s notice of objection to competency whilst arguably persuasive on similar issues is not binding on me.Thirdly and critically, the Supreme Court ruling in my view is very clear and is binding on me.  

6.	The Supreme Court found that, in breach of its right to natural justice, there was no hearing and no decision by the National Court on the Electoral Commission’s objection to competency.  At [30] and [31] Kandakasi DCJ said (emphasis mine):

“Having dismissed Pr. Kaku’s argument I turn to submissions of the Commission and Hon. Powi. As earlier noted, the Commission with the support of Hon. Powi is asking for a dismissal of the petition based on the grounds of its objection. In the alternative, it is asking for a declaration of a mistrial of the trial in the Court below and an order for a rehearing of its Objection before a different Judge. I am disinclined to granting the first relief. Strictly speaking, this relief cannot be granted without first considering the merits or demerits of each of the grounds for the Commission’s Objection. The National Court which is the primary decision maker has to first make a decision on merits or otherwise of each of the grounds of the Objection. Unless and until that is done, this Court cannot in the guise of judicial review delve into the substantive merits or otherwise of each of the grounds of the Objection.
A relief that can easily be granted is the one asking for a declaration of a mistrial of the trial now stayed before the National Court and order a rehearing of the Commission’s Objection. Such a relief is dictated by s. 210 of the Organic Law as discussed in the foregoing. Simply put, no trial on Pr. Kaku’s petition could be mounted until all objections to its competency has been determined on their merits. As already noted, of the two objections filed in the petition in this case, the learned trial Judge determine only one of them on its merits. The other, either remains to be determined or was determine without the provision of any reason. Hence, until the remaining Objection is determine(d) on its merits, no trial on the petition is legally possible and or permissible. However, a trial was conducted contrary to the provisions of s. 210 of the Organic Law. Accordingly, I would order the trial a mistrial and further order a rehearing and a determination of the Commission’s Objection first. If the petition survives the Objection, only will a trial on the petition be appropriate and could properly and legally proceed.”
7.	Similarly, at [64] Anis J said, and here I emphasise that he specifically considered the submission by the Petitioner that the objections to competency were similar (emphasis added):
“Finally, I refer to consideration 10. The first respondent alleges that the two objections were quite similar. As such, the first respondent submits that to ask for a rehearing would in fact be to have a second bite at the cherry. I find the argument baseless. Firstly and again, this Court’s role is to review the decision-making process and not the decision itself. In this case, the applicant is not asking this Court to determine the merits of its objection, like what the trial Court had done in relation to the objection application of the second respondent. Rather, the applicant is asking this Court to consider whether the trial Court, by its decision of 18 February 2019, failed to afford the applicant with natural justice. Secondly, we note that the principles of natural justice shall apply regardless of any similarities that may be alleged in relation to the two objections. Having said that, may I make this remark. I would have accepted this argument by the first respondent had the trial Court in its decision indicated that both applications were similar and that on that basis, that it was sufficient for it to make one finding that would apply to both objections. However, nothing of that sort was evident in the transcript or in the actual decision of the Court.”
8.	Moreover, the Supreme Court at [72] unanimously upheld the review, declared the hearing of the Electoral Commission’s objection to competency on 11 February 2019 a mistrial and remitted the matter back to the National Court for rehearing.  There is no ambiguity in those orders.

9.	Whilst it is not in dispute that the decision of the learned National Court judge on the First Respondent’s objection to competency remains on foot, that is a separate matter from that now before me.  Accordingly, I proceeded to hear submissions on all grounds of the Electoral Commission’s notice of objection to competency.

OBJECTION

10.	The Electoral Commission raises one main ground of objection, that the pleading is in breach of s208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections (the Organic Law) in that it does not adequately set out the facts relied on to invalidate the election. The objection is supported by the First Respondent.

11.	Section 208(a) provides that “a petition shall set out the facts relied on to invalidate the election or return”. 

12.	It is well established since the decisions of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99 that the requirements of s 208 of the Organic Law must be strictly complied with.  

13.	Section 208 (requisites of petition) states (emphasis mine):

“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).”

14.	Objection is taken both generally to the petition and specifically in respect of each ground of the petition on the basis of s 208(a).  The objections are not concisely put and in some cases are repetitious.  No objection to the competency of the notice of objection was taken, however, and I did not raise the issue of my own volition at the time of the hearing.  As such the parties have not had the opportunity to address me on this point.  In the circumstances I make it clear that I have considered all of the objections raised in the notice of objection to competency in reaching my decision.

15.	The Electoral Commission’s general objections may be summarised as follows: 

(1)	The petition in its entirety is contradictory, repetitious and confusing, and contains alternative pleadings, which are prohibited by law; 
(2)	Grounds 2 and 3 contain allegations that are contradictory to Grounds 4, 5 and 6;
(3)	Grounds 4 and 5 contain alternative pleadings; and
(4)	Ground 7 is contradictory, repetitious and confusing.

16.	I will return to each of the general objections below.  

17.	Turning now to the specific objections raised by the Electoral Commission.  

GROUNDS 1, 2 AND 3 OF THE PETITION 

18.	Further to his submissions filed 6 March 2020, Grounds 1, 2 and 3 of the petition were abandoned by the Petitioner at the hearing on competency and are struck out accordingly.

19.	Section 212(1)(i) of the Organic Law provides that a Court may dismiss or uphold a petition in whole or in part.  There are numerous instances where one or more grounds in a petition have survived when others have been struck out. See for example Kikala v Electoral Commission (2013) SC1295.

GROUND 4 OF THE PETITION

20.	This ground alleges (verbatim, emphasis added):

“4:     Newly appointed PRO Steven Gore Kaupa, failed to complete and determine the result of the SHP Electorate by scrutiny and irregularly and prematurely declared the First Respondent thereby breaching Sections 142 and 168(1) of the Organic Law.

Facts supporting ground

4.1	Prior to declaring the First Respondent as member elect for SHP Electorate, for the Second time on 27th September 2017, the PRO Steven Gore Kaupa failed to allow for a second count to be held when he knew or ought to have known that after completion of quality checks on all primary votes for SHP Electorate conducted under his own supervision at the Rebiamul YC Hall in Mount Hagen from 21st August to 26th August 2017, no candidate had gone past the absolute majority of 50 percent plus one (50% + 1).

4.2According to the Electoral Commissioner’s tally board figures on 26 August 2017 and noted by the Petitioner’s scrutineer and counting checks, the primary votes stood at 378,530.  The absolute majority of 50% plus one was set at 189,266.

4.3	The First Respondent was the leading candidate with 105,840 votes whilst Joseph Kobol was trailing second on 79,052 votes at the conclusion of quality checks.

4.4	The Petitioner was running fourth with 35,268 votes.

4.5	The First Respondent had not reached the absolute majority of 189,266 votes to be eligible to be declared.

4.6	PRO Steven Gore Kaupa did not allow the scrutineers to scrutinise the method used to arrive at a decision to declare the First Respondent especially when no candidate had gone past the absolute majority at the completion of quality checks.

4.7	The First Respondent was leading the count with 105,840 votes but was still short of 83,426 votes to reach the absolute majority set at the end of the quality checks.  The First Respondent had only mustered 27.96% of the total allowable votes and that was not sufficient to be declared a member-elect under the LPV system.

4.8	Clearly, the First Respondent had not reached the absolute majority at any stage of the counting process and his declaration as member-elect by PRO Steven Gore Kaupa was done erroneously and against the electoral laws governing the LPV system used in the country.

4.9	The First Respondent had only collected 27.96% of the total allowable votes whilst the other 24 candidates had 72.04% of the total allowable votes.  The number of votes that remains with the other candidates would make a significant difference when these votes are reallocated during the elimination process.

4.10PRO Steven Gore Kaupa failed to proceed with elimination of candidates after quality checks were completed on 26 August 2017 and determine if a candidate had reached the absolute majority threshold at any stage of the elimination process before making a declaration and returning the writ to the Second Respondent.

4.11The failure by PRO Steven Gore Kaupa to proceed to elimination as required under Section 168 of the Organic Law has affected the result of the election for the SHP Electorate especially when a substantial number of preferential votes still remain and are yet to be distributed amongst the candidates before a candidate reaches the absolute majority and became eligible to be declared as the successful candidate for the SHP Electorate.

4.12The Second Respondent through his servant and agent namely PRO Steven Gore Kaupa made an error or omission which affected the result of the election.”

21.	In its notice of objection the Commission complains that Grounds 4 and 5 are alternatives to each other, which it submits is expressly forbidden.  

22.	In addition, whilst the Electoral Commission made a general objection in its notice to the petition on the basis that it is “contradictory, repetitious and confusing”, it raised for the first time in oral submission an argument, supported by the First Respondent, that the facts contained in paragraphs 4.2 to 4.5 in support of Ground 4are contradictory to paragraphs 15, 51 and 52 of the petition.

a)	Ground 4 is contradictory to paragraphs 15, 51 and 52 of the petition

23.	I will deal firstly with the latter submission.

24.	Paragraphs 15, 51 and 52 are part of the background facts contained in Section B of the petition and are in the following terms:

“15At the conclusion of Count 462 under the scrutiny of PRO Jacob Kurap, the Second Respondent’s Tally Board and also as noted by the Petitioner’s scrutineer, Mathias Ank, the votes distributed amongst the candidates were as follows:”

Here a table shows the tally as at 26 July 2017 for each of the candidates, together with the number of total formal ballot papers of 305,506 and the absolute majority figure of 152,753 +1.

“51On 27th September 2017, the PRO Steven Gore Kaupa declared William Powi as member-elect for the SHP Electorate at Port Moresby, National Capital District and returned a photocopied version of the Writ to the Electoral Commissioner, Patilias Gamato.

52 The declaration was made based on the tally calculations from counts 1 to 462, which tally calculations were initially relied on by PRO Jacob Kurap to declare the First Respondent on 28th July 2017 but the declaration was rejected by the Second Respondent.”

25.	It is submitted that it is unclear what results are being relied upon at Ground 4, and that it must be assumed that there is reliance on the figures set out at paragraph 15, which are contradictory to the figures set out under Ground 4. 

26.	I reject these submissions.  There is no confusion.  Ground 4 and the facts upon which it relies are expressed in a sufficiently clear, concise and coherent way.  

27.	In summary, the complaint raised at Ground 4 is that despite the fact that according to the count on 26 August 2017 no candidate had reached absolute majority, PRO Steven Gore Kaupa failed to go on to conduct the scrutiny required under s 168 of the Organic Law before declaring the First Respondent the successful candidate.

28.	Section 168 (scrutiny of votes in elections) provides that (emphasis added):
“(1) Subject to this section and the Regulations, the result of an election shall be determined by scrutiny in the following manner:–
(a) the Returning Officer shall ascertain the total number of first preference votes given for each candidate;
(b) the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, is elected;
(c) if no candidate has received an absolute majority of votes, a second count shall be held;
(d) on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the order of the voter’s preference;
(e) where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter’s preference shall be repeated until one candidate has received an absolute majority of votes;
(f) the candidate who has received an absolute majority if the votes is elected;
(g) if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary;
(h) if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;
(i) if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary;
(j) if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.
(2) Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an excluded candidate, that ballot-paper –
(a) shall be deemed to be exhausted; and
(b) shall be excluded from that count and on any subsequent count; and
(c) shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.
(3)The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.
(4) In this section, “ an absolute majority of votes ”in relation to any count, means a greater number than one-half of the whole number of ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under subsection (2)).”
29.	A petition alleging errors or omissions by election officers must plead not only the errors and omissions but also meet the requirements of s 218(1) of the Organic Law: Amet v Yama (2010) SC1064.

30.	Section 218(1) (immaterial errors not to vitiate election) provides (emphasis mine):

“… 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.”

31.	Thus a causal connection must be asserted between the errors and omissions and the result of the election: Yama v Yagama (2013) N4928.  Per  Injia J, as he then was  in Sai-Sailon Beseoh v Yuntivi Bao (2003) N2348 (emphasis added):

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

32.	The procedure mandated by s 168 of the Organic Law, if not followed would,for the reasons stated in Ground 4 of the petition, clearly affect the result of the election.

33.	Ground 4 sets out both the error alleged and the causal connection between that error and the result of the election.  

34.	I also reject the submission that Ground 4 is contradictory to paragraphs 15, 51 and 52 of the base or background facts contained in Section B of the petition.    

35.	In summary, the base facts state that ballot papers were initially distributed to 648 polling teams for the SHP Electorate.  Further, that at the conclusion of count 462 on 26 July 2017, PRO Jacob Kurap abandoned counting and declared the First Respondent member elect for the SHP Electorate, and returned a photocopied version of the Writ to the Second Respondent.  It is not in dispute, however, that the base facts correctly record that the Electoral Commissioner refused to accept the Writ returned to him on 28 July 2017.

36.	Furthermore, the base facts set out at paragraphs 23 to 40, that PRO Jacob Kurap was replaced by PRO Michael Ariando, who recounted boxes 463 to 564 and confirmed the tallies.  He subsequently resigned and was replaced by PRO Steven Gore Kaupa.  On 26 August PRO Steven Gore Kaupa conducted a quality check of all boxes from count 1 to 564.  A table of the progressive tally for each candidate following that quality check is set out at paragraph 40, together with the revised absolute majority figure of 189265 + 1.  This is consistent with the facts set out under Ground 4, above.  

37.	The petition goes on to state at paragraphs 44 to 52 that the Electoral Commissioner directed PRO Steven Gore Kaupa not to declare a winner until a further 84 boxes, which had been disputed and locked up at Mendi Police Station by PRO Jacob Kurap, had been counted.  PRO Steven Gore Kaupa then called a meeting with candidates, most of whom attended, and provided them with the tally after count 564.  At that meeting the candidates stressed that the further 84 boxes which had been disputed and locked up at Mendi Police Station by the former PRO Kurap should not be counted.  

38.	What is alleged at paragraphs 51 and 52 is that on 27 September 2017 PRO Steven Gore Kaupa went on to declare the First Respondent the winner.  And further, that he did so based on the tally calculations of 26 July 2017.

39.	The Petitioner must allege the facts as he understands them to have occurred.  The alleged fact that PRO Steven Gore Kaupa declared the result based on the figures contained in the tally of 28 July 2017 does not alter the complaint under Ground 4 that he failed to conduct the process required under s 168 following the final tallies of 27 August 2017, and that the failure to do so would have affected the result of the election declared on 27 September 2017.  If anything, it compounds the alleged error.

b)	Ground 4 is an alternative to Ground 5

40.	In its notice of objection the Commission complains that Grounds 4 and 5 are alternatives to each other, which it submits is “expressly forbidden”, and that as such both should be automatically struck out.

41.	The Electoral Commission fails to identify any provision which expressly provides that a petition may not plead alternative grounds.  There is no such provision and no such express prohibition.

42.	Nor do the authorities relied upon by the Electoral Commission support this view.  

43.	It is very well established that a petition must clearly plead both the legal grounds and the facts in support of those grounds.  Per Injia CJ, in Tulapi v Lagea (2013) N5235 Injia CJ at [18] (emphasis mine):

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

44.	There is no objection, however, to the pleading of alternative grounds,  provided the alternatives are not contradictory and/or confusing:  Potape v Undialu (2018) SC1680 applying Kikala v Electoral Commission(2013) N4960.

45.	This must necessarily follow.  The Electoral Commission appears to be submitting that a petitioner is restricted to challenging an election on the basis of one error or omission, or one illegal practice only.  That is clearly misconceived.  It is possible to envisage situations where in any one election a number of errors are made by electoral officials, any of which, if established, would affect the result.  

46.	It is only when the alternatives proposed are inherently contradictory that the Court is placed in the impermissible position of selecting which of the conflicting grounds should proceed,thus offending against the rule requiring amendment within the forty day  period:  Kopaol v Embel (2003) SC727.

47.	Such a situation is demonstrated by the pleadings in Kopaol v Embel (supra)(emphasis mine): 

“On one hand the Respondent was accusing the electoral officials of not conducting polling at Mt Bosavi LLG area which is a complaint of official irregularity or error or omission under section 218, on the other Respondent contradicted himself saying there was polling in the area but in some polling places the electoral officials committed illegal acts by stuffing ballot boxes with illegally marked ballot papers.”

It was in that context that the Supreme Court said that: 

“a petition cannot be pleaded in the alternative as in an ordinary civil case.  In this case either there was polling in Mt Bosavi LLG or there was none at all. The Respondent could not have it both ways.”  

48.	It is apparent that the alternative grounds, and indeed the alleged facts underpinning them, in that case were patently contradictory.  

49.	As above, what is essential is that a ground clearly set out both the alleged error or omission, and how that alleged error or omission would have affected the result.  Ground 4 adequately states the facts relied upon to invalidate the election in compliance with s 208 of the Organic Law.

50.	Furthermore, for the reasons stated below, Ground 5 is not contradictory to Ground 4.

51.	Ground 4 of the petition is competent.

GROUND 5

52.	Ground 5 of the petition complains that “Alternatively, the PRO Steven Gore Kaupa failed to publicly declare the result of the SHP Electorate and the name of the First Respondent as required by s 175(1)(a) of the Organic Law”.

53.	Section 175(Return of the Writs) relevantly provides that (emphasis added):
“(1) Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained–
(a) at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and
(b) by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.
(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result: –
(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and
(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.
(2) Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and return the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be.”
54.	The Electoral Commission submits that the ground is objectionable merely because it begins with the words “Alternatively”.  For the reasons stated above, I reject this submission.

55.	The Electoral Commission further submits that Ground 5 is premised on the basis that the Petitioner accepts that the result had been properly ascertained in accordance with law, and that it is therefore confusing and, whilst not articulated in these express terms, contradictory to Ground 4.  

56.	I don’t accept this submission. It is clear from the facts alleged in support of Ground 5 that the objection is taken on the basis that the declaration was made in secret and whilst the Petitioner and other candidates were still in the process of pursuing their concerns with the Second Respondent, not that the result had been properly ascertained.

57.	The critical issue with respect to this ground, however, is that whilst the failure to announce publicly the result may well have been in breach of s 175 of the Organic Law, there is nothing to suggest, and the Petitioner has failed to plead, that the failure would have affected the outcome of the election.  It follows that the ground is incompetent and is struck out.  

GROUND 6 

58.	Ground 6 complains that:

“6Inappropriate and erroneous application of Section 175(1A) of the Organic Law when declaring the First Respondent as the member elect for SHP Electorate on 27th September 2017 on the basis of “special circumstances”. 

59.	The Electoral Commission submits that Ground 6 pleads the law only, and that: “when reading the petition from the start to this paragraph, there are no background or supporting facts stating the alleged direction of the electoral commissioner given on the 8th September 2017.  Therefore, which direction is the petitioner referring to?  What is the direction about? What does the direction direct the PRO Steven Gore Kaupa to do?  Was the direction made pursuant to section 175(1A) of the Organic Law?  How is that direction necessary to ground to this ground of the petition?”

60.	I reject this objection.  The specific facts pleaded in support of the ground are set out at paragraphs 6.1 to 6.5 (repeated).

61.	In particular 6.4 states:

“6.4 The Electoral Commissioner did not withdraw his direction given to PRO Steven Gore Kaupa on 8 September 2017 and so PRO Steven Gore Kaupa did not have powers by virtue of Section 175(1A)(a) of the Organic Law to declare the result of the election for the SHP Electorate.”

62.	As discussed above, Section B of the petition sets out a number of background facts.  The complaint the Commission is essentially making is that the date of the direction by the Electoral Commissioner identified in paragraph 6.4, namely 8th September 2017, conflicts with the date identified in paragraph 43, namely 5th September:

“43 On 5th September, the Electoral Commissioner directed the PRO Steven Gore Kaupa not to declare a winner until the remaining 84 ballot boxes disputed and set aside by former PRO Jacob Kurap and left at Mendi Police Station are counted.”

63.	In my view the specific date of the direction by the Commissioner is not material.  What is material is that the Commissioner directed PRO Steven Gore Kaupa that no declaration was to be made until counting was completed, and that PRO Kaupa went on to declare the result in contravention of that direction, and without power under s 175(1A)(b)of the Organic Law (which provides that the Commission may declare the result in “special circumstances”, “based on information concerning scrutiny and other information”). As above, s 175(1A)(a) provides that unless the direction is withdrawn, any result declared is invalid. Furthermore, the declaration when counting was not complete would clearly have affected the outcome of the election.

64.	The alleged facts are set out with sufficient clarity to constitute the ground on which the election might be invalidated. If established the alleged error would affect the outcome of the election.

65.	Ground 6 is competent.

GROUND 7

66.	Ground 7 alleges that the First Respondent was declared despite not having reached the absolute majority in breach of s 168 of the Organic Law.  

67.	This is a repetition of Ground 4 and relies on the same facts.  It is accordingly struck out for being incompetent.

GROUND 8  

68.	Ground 8 complains that the Electoral Commission erred in accepting the writ returned by PRO Steven Gore Kaupa on 27 September 2017 when the result of the election had not been ascertained through scrutiny as required under ss 147, 168 and 175 of the Organic Law.

69.	On the face of the ground, it is not the acceptance of the writ that would have affected the outcome of the election but the lack of scrutiny underpinning the result which was reflected in the writ.

70.	In the circumstances the ground fails to establish how the error or omission would have affected the outcome of the election. Accordingly this ground is incompetent and is struck out.

GROUND 9

71.	Ground 9 complains that the Electoral Commission gave erroneous advice to the Governor General when returning the writ for the SHP Electorate.

72.	For similar reasons this ground is misconceived and is dismissed for being incompetent.  The provision of advice to the Governor General would not of itself have affected the outcome of the election.

GENERAL OBJECTIONS

73.	Returning to the general objections.

74.	I reject the submission that the petition in its entirety is contradictory, repetitious and confusing, and contains alternative pleadings, which are prohibited by law.  In my view this blanket objection is without merit.  I have dealt with the issue of alternative pleadings above.  Furthermore, the facts pleaded are sufficiently clear and concise.  The petition sets out in Section B in chronological order the facts alleged, with further detail provided under the specific grounds in each case. 

75.	The objection that Grounds 2 and 3 contains allegations that are contradictory to Grounds 4, 5 and 6 is redundant in view of the fact that Grounds 2 and 3 have been withdrawn.

76.	As above, the objection that Grounds 4 and 5 contain alternative pleadings is dismissed. 

77.	I refer to my decision regarding Ground 7 above.

FAILURE TO COMPLY WITH FORM 1 OF THE ELECTION PETITION RULES

78.	Finally, the First Respondent raised the alleged failure of the Petitioner to comply with Form 1 of the Election Petition Rules during the course of oral submissions in support of the Electoral Commission.  I don’t intend to consider the objection for a number of reasons.  First of all it was not a ground contained in the Electoral Commission’s notice of objection which was remitted for hearing, and was not raised by the Commission in either its oral or written submissions.  Furthermore, the Petitioner objected on the basis that the issue was being raised without notice.  Moreover, having raised it, the First Respondent went on to submit that he was not seeking to have the Court dismiss the petition on that basis at this stage but, as I understand it,was effectively flagging the issue of competency, which he submitted could be raised at any time.  That may well be but the Petitioner should be given an adequate opportunity to respond. 

CONCLUSION

79.	Grounds 1, 2, 3, 5, 7, 8 and 9 of the petition are struck out.

80.	Grounds 4 and 6 remain and the petition will proceed to trial on those grounds.

81.	The question of costs of the hearing of the objection 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.

82.	I note that the National Court’s decision with respect to the First Respondent’s notice of objection to competency remains on foot but that the hearing of the petition pursuant to that ruling has since been stayed by the Supreme Court as part of its orders in Electoral Commission v Kaku (supra).  Accordingly, I refer thepetition to the Election Petition Track Administrator for directions.

ORDER

(1)	Grounds 1, 2 and 3 are withdrawn and struck out.

(2)	The Second Respondent’s objections to the competency of Grounds 5, 7, 8 and 9 are sustained, and those grounds are struck out. 

(3)	The Second Respondent’s objections to the competency of Grounds 4 and 6 of the petition are refused, and those grounds remain.

(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 Grounds 4 and 6.

(6)	The petition is referred to the Judge Administrator Election Petition Track for directions.

Ruling accordingly.
_____________________________________________________________
Diwenis Lawyers:  Lawyers for the Petitioner		
Baniyamai Lawyers:  Lawyers for the First Respondent 	
Harvey Nii Lawyers: Lawyers for the Second Respondent