N10237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 27 OF 2022

IN THE MATTER OF DISPUTED RETURN OFR THE ANGORAM OPEN ELECTORATE

BETWEEN
WESLEY YANUM
- Petitioner-

AND:
SALIO WAIPO
- First Respondent-

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Second Respondent-

Wewak: Dowa J
2023:  24th April & 9th May

ELECTION PETITION –– objection to competency of petition –failing to meet requirements of section 208 of OLNLLGE- pleading facts – principles of law – grounds of petition – errors and omissions – allegation of failure by the Electoral Commissioner and Returning Officer to perform their statutory function and duty during the scrutiny process under the Organic Law, s. 153A - whether material or relevant facts are pleaded in the petition-petition dismissed.

Cases Cited:
Delba Biri v Bill Ninkama [1982] PNGLR 342
William Hagahuno -v- Johnson Tuke [2020] PGSC 105; SC2018
Biri v Re Bill Ninkama, Electoral Commission, Bande, and Palumea [1982] PGLawRp 342
Holloway -v- Ivotor [1988] PNGLR 99
Olmi v Kuman [2002] PGNC 40; N2310 
Tulapi -v- Lagea [2013] N5235
Karo -v- Kidu [1997] PNGLR 28
Ludger Mond -v- Jeffrey Nape (2003) N2318
Undialu -v- Potape [2020] PGSC 71; SC1981
Manase -v- Polye (2008) N3341
Robert Kopaol v Philimon Embel and others (2003) SC727
Luke Alfred Manase v Don Pomb Polye (2009) N3718
James Yoka Ekip v Gordon Wimb and others (2012) N4899

Counsel:
S. Ranewa, for the Petitioners
T. Waisi, for the First Respondent
L. Tangua, for the Second Respondent

RULING ON COMPETENCY OF ELECTION PETITION

9th May, 2023

1.	DOWA J:	This is a ruling on the First Respondent’s objection to competency on the petition filed by the Petitioner.

Facts

2.	The Petitioner is a candidate for Angoram Open in the 2022 National Elections.  He came second with 14,719 votes while the First Respondent was declared winner who scored 18,774 votes.

3.	The Petitioner filed the petition on 6th September 2022 challenging the election of the First Respondent.  The First Respondent filed a Notice of Objection to Competency on various grounds.  The objection to competency was heard on 24th April 2023, and the ruling was reserved which I now deliver.

Preliminary Application by Second Respondent

4.	At the commencement of the hearing, Mr Tangua, counsel for the Second Respondent made a preliminary application under Rule 22 of the Election Petition (Miscellaneous Amendments) Rules 2022 for the dispensation of Rule 12 for the Second Respondent to file and serve its own Objection to Competency of the petition.  After hearing arguments from all parties, I refused to grant leave because a) the reasons offered were not satisfactory b) the application was not made promptly (after seven months since the filing of petition) and c) it was likely to cause a delay in the hearing of the petition.

Petition Grounds

5.	The Petitioner pleads three grounds of errors and omissions principally under section 218 of the Organic Law on National and Local-Level Government Elections (OLNLLGE) to void the election result; The three grounds are:

(1)	Failure by the Electoral Commissioner and Returning Officer to respond to objection for scrutiny of Ballot-papers under section 153A of the OLNLLGE.

(2)	Scrutiny conducted in secrecy without the presence for Petitioner and other candidates.

(3)	Failure by the Returning Officer (RO) and Assistant Returning Officers (ARO) to set aside tampered ballot – boxes from scrutiny.

Objection to the competency of the petition

6.	The First Respondent objects to the competency of the petition on the following grounds:

a)	Failing to plead relevant and material facts as required section 208 (a) of the Organic Law.

b)	For pleading evidence and making submissions in the petition. 

c)	Failing to plead how the alleged errors or omissions under section 215 (3) and 218 of the OLNLLGE affected the election results.

d)	Failing to state the occupation of the First Attesting Witness contrary to section 208 (d) of the Organic Law.
 
Applicable Principles

7.	Section 206 of the OLNLLGE gives jurisdiction to the National Court to hear election petitions.  Section 210 of the OLNLLGE, provides that no proceedings shall be heard on an election petition unless the requirements of sections 208 and 209 are complied with. Section 208 is set out below:

              “208.	REQUISITES OF PETITION.
      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 courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”

8.	The application of section 208 has been a subject of numerous judicial pronouncements in this jurisdiction.  It has been held in Delba Biri –v- Bill Ninkama (1982) PNGLR 342 that the requirements of section 208 go to the jurisdiction of the Court of Disputed Returns and therefore are to be strictly complied with.  The Supreme Court, at page 344 of the judgment, reasoned that:

“… The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections, it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with.

…. it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

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

9.	The strict approach in Delba Biri –v- Bill Ninkama has been followed and applied in many other decisions by the Supreme and National Court until the recent five (5) men bench Supreme Court decision in William Hagahuno -v- Johnson Tuke (2020) SC2018. In Hagahuno v Tuke, the Court held that in deciding whether a petition meets the requirements of section 208 of the Organic Law, the National Court must have a fair and liberal approach without regard to legal forms and technicalities. The relevant part of the head notes to the judgment reads:
“Held:
(1)	In deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s 217 of the Organic Law on National and Local-Level Government Elections, which dictates that the National Court “shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.

(2)	Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the country.”

10.      The Supreme Court decision in Hagahuno, however, has not removed the obligations of a petitioner from meeting the requirements of section 208.The law is settled in respect of meeting the requirements of section 208 (a).  That is, the facts relied on to invalidate the election must be pleaded clearly and with particularity.  They must be material and relevant to constitute a ground upon which an election may be invalidated and not the evidence. Refer:  Biri -v- Ninkama, Holloway -v- Ivotor (1988) PNGLR 99, Olmi -v- Kuman (2002) N2319 and other cases.

11.     In respect of allegations made under section 215 (3) (illegal practices) and 218 (errors or omissions by electoral officers), the law is also settled; and that is, the petition must set out facts in a clear and concise manner that the alleged illegal practices or errors and or omissions complained of are likely to affect or have affected the result of the election. Refer:  Tulapi -v- Lagen (2013) N5235, Karo -v- Kidu (1997) PNGLR 28, Ludger Mond -v- Jeffrey Nape (2003) N2318, Undialu -v- Potape & Manase -v- Polye (2008) N3341.

Issues

12.   The issues for determination are:

a)	Whether the petition pleads material facts meeting the requirements of section 208 (a) of the OLNLLGE.

b)	Whether the petition pleads sufficient facts to show how the alleged errors and or omissions of the electoral officers affected the results of the election for the purposes of section 218 of the OLNLLGE. 

c)	Whether the word “academia” sufficiently describes the occupation of the first attesting witness of the petition for the purposes of section 208 (d) of the OLNLLGE.

The Petition

13.    The petition has 28 pages.  It has four parts, Part A   is the Introduction, Part B is the Facts, Part C contains the Grounds and Part D has the Reliefs. 

PART B – FACTS

14.    The facts relied on in the petition are at pages 2 to 6.  It contains 30 paragraphs:  Paragraphs 1-10, contains basic information about the 2022 National Elections as it applies to Angoram Open Electorate.  It sets out the facts on candidates, issue of writs, appointment of Returning Officer (AR) and Assistant Returning Officers (ARO), the commencement of polling and scrutiny.

15.   Paragraph 11-18 of the petition pleads that the Petitioner and other candidates raised issues concerning the integrity and scrutiny of boxes under Teams 41, 42, 49, 59, 61, 62, 63,64, 65, 66 and 86 for various reasons including complaints of extra ballots, tampering, illegal polling, ballot stuffing and failures to present polling returns by Presiding Officers at scrutiny.

16.     I reproduce paragraphs 11 to 13 of the Petition for easy reference:

“11. 	During the primary count, the scrutineers for the petitioner and other candidates raised issues in relation to scrutiny of the ballot papers for certain ballot boxes. The table below provides brief summary of the issues raised.”

TEAM	LLG	SUMMARY OF ISSUES RAISED	
41	Angoram/Middle Sepik	Disputed because there were 62 extra ballot papers in the three ballot boxes that team 41 conducted polling.	
			
42	Angoram/Middle Sepik	Disputed because, the ballot box was brought to the counting place on the first instance, and then brought back to another place without the tag, kept it there for (3) days and then brought to the polling place again purportedly conducted polling.	
49	Angram/Middle Sepik	Disputed because the polling was not conducted at the registered polling place but rather, at the houseman for the first respondent (Kambrok).	
59	Karawari LLG	Disputed because only three people voted but the ballot boxes counted were more.	
61	Keram LLG	Disputed because failure by the RO or ARO to call for the Presiding Officer (PO) to present the Polling Returns.	
62	Keram LLG	Disputed because failure by the RO or ARO to call for the PO to present the Polling Returns.	
63	Keram LLG	Disputed because failure by the RO or ARO to call for the PO to present the Polling Returns.	
64	Keram LLG	Disputed because failure by the RO or ARO to call for the PO to present the Polling Returns.	
65	Keram LLG	Disputed because failure by the RO or ARO to call for the PO to present the Polling Returns.	
66	Keram LLG	Disputed because failure by the RO or ARO to call for the PO to present the Polling Returns.	
86	Yuat LLG	Disputed because the PO for the Team, presented three different figures for the returns of allowable ballot papers.	

12.	Despite the serious issues raised, the RO and the AROs refused or ignored to respond and continued to suppress the scrutineers for the petitioner and the other candidates inside the counting room.

13.	As a result, on the 20th July 2022, the petitioner and other candidates withdrew their scrutineers from the counting center and demanded the RO and AROs to address the above issues first before the counting resumes.”

17.     I note, the primary facts and other material matters giving rise to the complaints of each of the team and ballot boxes are not set out in the petition except for just one line stating a brief reason for the objection. In my view, the following facts, for example, should have been pleaded but are not set out:

a)	the primary facts giving rise to the objections for each of the box,

b)	the registered number of electors on the Roll of Electors or Common Roll,

c)	the number of ballot papers issued to each box,

d)	the number of ballot papers cast/marked,

e)	the total number of votes collected by the first Respondent from the disputed boxes,

f)	the total number of votes affected by the alleged errors and omissions,

g)	for the purposes of section 218, whether the errors and omissions affected the election result.  

18.    During the hearing, I raised this issue of lack of material facts with counsel for the Petitioner.  Counsel submitted that it is not necessary to plead the facts of what transpired at the polling.  He submitted that the allegations in the petition are mainly based on breach of statutory duty under section 153A and is sufficient for the purposes of section 218 of the OLNLLGE.  In my view, it is necessary to clearly set out the facts and reasons for objection to scrutiny. The facts pleaded in paragraph 11 fall short of meeting the basic requirements of section 208(a).

19.     Paragraphs 12 -17 of the petition sets out the brief facts concerning the complaints the Petitioner and other candidates made to the Returning Officer and the Assistant Returning Officers, and a response from the Returning Officer which was considered unsatisfactory.  Paragraph 18 states the scrutineers for the Petitioner and other candidates refused to attend the counting room. Apart from stating general complaints, there are no specific and concise pleading of facts setting out detail reasons for the objections and the process used by the Petitioner and the other candidates disputing the scrutiny of those ballot boxes.

20.    Paragraph 20 pleads that the first Respondent and the Petitioner were amongst the top three candidates on the tally after the primary count of ballots.

21.     Paragraphs 20-23, relates to a complaint concerning the ballot box for Team 55 (Karawari LLG).  The facts pleaded are too brief and do not set out the nature of complaint. After perusing the entire petition, I note some facts concerning this ballot box are set out at pages 22 to 23 and 28 of the petition. However, the facts pleaded do not show who collected the votes in that box and how it would have affected the results. 

22.     Paragraphs 24-27 pleads that the Returning Officer and Assistant Returning Officers continued the scrutiny starting with the elimination till declaration in secrecy and without the presence of the scrutineers for the Petitioner and the other candidates. The petition pleads the electoral officers breached section 151 of the OLNLLGE by not inviting the Petitioner’s scrutineers for the continuation of counting and proceeded without them. 

23.     Section 151 reads: 

“151.	CONDUCT OF SCRUTINY.
The scrutiny shall be conducted as follows:–
(a)	it shall commence as soon as voting in the electorate is    completed;
(b)	any scrutineers duly appointed under Section 150 and any persons approved by the officer conducting the scrutiny, may be present;
(c)	all the proceedings at the scrutiny shall be open to the inspection of the scrutineers;
(d)	the scrutiny may be adjourned from time to time as necessary until the counting of the votes is complete”.

24.    Section 151 is clear. It makes provision for scrutineers to be present at the scrutiny. However, it is not mandatory for them to be present all times during scrutiny. They don’t have to be invited and where they chose to be present, it then becomes obligatory on the part of the electoral officers to make provision for that. A refusal of entry of a scrutineer or the conducting of scrutiny in secrecy may then amount to a possible breach of section 151 of the OLNLLGE.

25.     Turning to the present case, the facts pleaded conflicts or is inconsistent with facts pleaded in paragraphs 13 and 18 wherein the Petitioner and other candidates withdrew their scrutineers and refused to attend scrutiny after the primary count. There is no concise pleading with particularity that the scrutineers were refused entry into the counting centre after their voluntary withdrawal. 

26.      In my view, the facts pleaded in paragraph 1-30 at pages 2-6 of the petition are too brief and confusing.  They do not set out details or particulars of the complaints for each of the ballot box disputed.  The facts do not set out basic and material facts, like the number of ballots cast and allowed for scrutiny despite objections and the number of votes collected by each candidate especially, the first Respondent from the disputed boxes or affected boxes.

27.    I am mindful that the Court should take a liberal approach in determining whether the petition met the requirements of section 208(a) of the OLNLLGE by applying a subjective test under section 217 of the Organic Law to be guided by substantive merits and good conscience of this case without regard to legal forms and technicalities as per the decision of Hagahuno -v- Tuke (supra).

28.     However, in my view, the facts pleaded in this Part, standing alone and on their own, are insufficient.  I will proceed to consider other facts and grounds in the petition to establish a connection and determine its sufficiency.

Part C. Grounds

29.     Part C of the petition contains the grounds which are, divided into three parts.

Ground one: Errors and Omissions committed by the Electoral Commission and the Returning Officer in failing to respond to objections for scrutiny.

30.     The first ground, relates to Errors and Omissions, committed by the Electoral Commission and the Returning Officer in failing to respond to the objections for scrutiny of ballot papers pursuant to section 153A of the OLNLLGE, and section 90 of the Electoral Law (National Elections) Regulation.

31.    This ground contains 12 paragraphs.  Paragraphs 2 and 3 contains a reproduction of two letters dated 20th July 2022 and 25th July 2022 issued by the Petitioner and the other candidates to the Electoral Commissioner and the Returning Officer.  The reproduced letters commence at page 7 to 18 of the petition.  The letters contain detail complaints and queries made to Mr Simon Sinai, the Electoral Commissioner, to respond.  The Petitioner alleges that the Electoral Commissioner who also assumed the functions under section 153A of the Organic Law failed to respond which amounted to a breach of statutory duty.

32.     Mr. Ranewa, counsel for the Petitioner, submits that the reproduction of the two letters in the petition was to demonstrate the seriousness of the matters raised in those letters because of the failure by the Returning officer to adequately respond to the objections raised by the candidates including the Petitioner.  The matters pleaded in paragraphs 1-12 are in addition to and to supplement the facts pleaded in Part B (paragraphs 11-24 of Part B, pages 2-6 of the petition).

33.     Mr. Waisi, counsel for the First Respondent, supported by Mr. Tangua, counsel for the Second Respondent, submits that the pleadings in paragraphs 1-12 contain evidentiary material which offends the pleading requirements under section 208(a) of the OLNLLGE.

34.      In my view, the reproduction of the two letters containing 12 pages contravenes section 208(a) of the OLNLLGE.  The two letters are evidentiary matters, and they are lengthy and winding.  The law is settled in the case, Holloway -v- Ivarato (1988) PNGLR 99, and Hagahuno -v- Tuke (supra), that facts which must be pleaded under section 208(a) of the OLNLLG are material or relevant facts which constitute a ground upon which the election might be invalidated but not the evidence by which it or they might be proved.

35.     In Hagahuno -v- Tuke, Manuhu J, said this at paragraphs 160-162 of the judgment:
“160.	The third observation I make is that the challenging aspect of pleadings has always been the identification of the essential or material facts and Section 208(a) of the Organic Law does not offer much assistance to the petitioners in their endeavour to identify and plead the essential or material facts. Section 208(a) states:
“A petition shall –
(a)	set out the facts relied on to invalidate the election or return....”. (My emphasis).

161. However, case law attempted to define the term ‘facts’. In Barry Holloway v. Aita Ivarato and Electoral Commission [1988-89] PNGLR 99 the Supreme Court observed thus:
“The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated”. (My emphasis).

162. The Supreme Court further observed:
“In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.” 
What I observed above in relation to pleading of facts and what must be pleaded to constitute facts is reinforced by the Supreme Court decision in the Holloway case (supra). That is, the facts must not be long-winded but brief and must be essential or material to the ground of bribery. Further, they must not be evidence.”
       
36.    Turing to the present case, I note paragraphs 2 to 3 contains evidence. It is long -winded having more than 12 pages. Should the Court allow the evidentiary facts in the reproduced letters to become part of the pleading in the petition. In my view that would be unprecedented. It would make it difficult to defend and offends section 208(a). It is liable to be struck out and is therefore struck out.
 
37.    Moving on, I note paragraphs 4 to 12 contain pleadings and submissions of the law under section 153A of OLNLLGE and section 90 of the Regulations.  Pleading the law to establish a ground in the petition, though not necessary, is permissible provided there is clear facts pleaded supporting the ground. In the present case, there is no clear pleading of facts to show how the alleged errors and omissions affected the results of the election.

38.    After thoroughly studying the pleadings on the first ground of the errors and omissions, from pages 6-20 of the petition, it is clear to me that, apart from stating the law which imposes a statutory obligation on the Electoral Commission and its officers, the pleadings contain evidence and submissions.  The pleadings fail to demonstrate how the election results are affected.  This ground cannot stand alone on its own.  It must be read in conjunction with other parts of the pleadings to survive.

Ground Two: Scrutiny conducted in secrecy.

39.     The Second ground of Errors and Omissions is contained in pages 20-21 of the petition.  It contains 8 paragraphs.  It is to be read and applied in conjunction with Part B-Facts- (at pages 2-6, paragraphs 1-30). The petition alleges that scrutiny was conducted in secrecy without the presence of scrutineers of the Petitioner and other candidates. It pleads that after the Returning Officer failed to favourably respond to their petition regarding the scrutiny, the candidates withdrew their scrutineers from the counting centre and when counting resumed the scrutineers were not allowed or invited to attend scrutiny.  It is alleged that it is a breach of section 151 of the OLNLLGE.

40.     The first Respondent objects to the competency of this ground on the basis that:

i.	The pleadings are general, vague, and ambiguous and fail to plead the material facts.

ii.	The pleadings contain submissions in law.

iii.	The pleadings fail to show how the alleged errors and omissions of the electoral officers affected the results of the elections. 

41.     I have perused the pleadings carefully and note that the pleadings are similar or identical to the facts pleaded in Part B-Facts at pages 2-6, paragraphs 1-30. I also note submissions of counsel are the same and repeat of what was submitted earlier.

42.     In my view the pleadings are general complaints against the electoral officers for failing to adequately address the grievances of the candidates regarding the conduct of scrutiny. The complaints would be in respect of objections raised against the scrutiny of the ballot boxes listed at paragrah11 at pages 3 to 4 and those listed at page 25 of the petition. I reiterate what I said earlier at paragraph 25 of my judgment that the pleadings are not clear whether the scrutineers who voluntarily withdrew from scrutiny were denied entry into the counting centre when it resumed. How and when were they refused entry. If scrutiny was done secretly as alleged, how was this carried out. There are no details of dates, venues, names of officers who refused entry, venues of secluded places where scrutiny was conducted in secret and actions or inactions done by the electoral officers denying the scrutineers from attending. 

43.      Finally, apart from stating the law, the petition fails to plead facts in clear and concise terms how the alleged errors or omissions committed, by the electoral officers, affected the results of the elections as envisaged by section 218 of the OLNLLGE.  It is arguable that the consideration of the issue of whether the election results were affected should be left to be decided after the trial and assessment of evidence. However, it is a relevant issue to be considered even at the competency stage as allowed under section 208 (a) so that poorly pleaded petitions do not go past the competency test.

Third Ground. Failure to set aside tampered ballot boxes.

44.     The third ground alleges the Returning Officer and the Assistant Returning Officers failed to set aside the following four tampered ballot boxes from scrutiny:

a)	Team 41 – Angoram/middle Sepik LLG 
b)	Team 55 – Karawari LLG                        
c)	Team 59 – Kararau LLG 
d)	Team 86 – Yuat LLG 

45.	    The details of the complaint are at pages 22 to 25 of the petition.

46.     The Respondents submit that the pleadings are too brief and general in nature.  There are no specific facts and details pleaded for each of the boxes concerned.  The Respondents submit further that the petition fails to plead how the alleged errors and omissions of the electoral officers affected the result as envisaged by section 218 of the OLNLLGE.

47.     Counsel for the Petitioner maintains his submission that the facts pleaded are sufficient. They are to be read together and in conjunction with the facts pleaded at paragraphs 11-23 under Part B of the petition. Counsel submits that the grounds are premised on the basis that the electoral officers made errors and omissions in excluding tampered ballot boxes from scrutiny and as such they have breached their statutory duty under section 153A of the OLNLLGE. He submits further that the petition has clearly pleaded at page 25 that the errors and omissions did affect the results of the elections for the purposes of section 218.

48.      I will consider the pleadings in respect of each of the Team/ballot boxes to determine if they meet the competency test.  

Team 41-Angoram/Middle Sepik

49.     The petition pleads that the allowable votes in box 41 is 1372. When the box was presented for scrutiny, there were 62 extra votes. The scrutineers objected to the count as the integrity of the ballot box was compromised. Despite the objections, the box was admitted for scrutiny.

50.      I have examined the pleadings and note that the facts pleaded are general. It seems the petition attempts to establish a ground under section 153A of the OLNLLGE for failing to set aside the box which appears to have been tampered with because of the extra votes discovered during scrutiny. However, the pleadings fail to set out the details of the objections. Was it done in writing before scrutiny and what would be the reason for that, and what was wrong about the Returning Officer’s decision for admitting the box for scrutiny especially where there seems to be no complaints about the box before scrutiny. It seems the discovery of the 62 extra votes would come about only after the admission of the box for scrutiny. There is no pleading of the number of the electors on the Roll of Electors to appreciate the complaint of extra ballot papers.

51.     Further, the pleadings did not set out number facts as to how the alleged errors and omissions committed by the officers of the Electoral Commission affected the result of the election as envisaged by section 218 (1) of the OLNLLGE. There is no pleading, for example, as to the erroneous counting of the votes in this box which affected the final election results either on its own or in combination with other disputed boxes. 

52.     The only relevant pleading is at page 25 which states that the errors and omissions committed by the electoral officials in failing to reject the four boxes did affect the results of the election. Despite the assertion at- page 25, I find the pleadings insufficient. 

Team 55 (KarawariLLG)

53.     The petition alleges Team 55 box contains ballot papers for three villages. The box was tendered for scrutiny and the primary votes were cast for candidate Professor Kenneth Sumbuk. The box was then taken to Wewak together with the regional ballot boxes. It was returned the next day for the elimination process. The Returning Officer proceeded with the elimination despite objection by the scrutineers. The petition pleads at paragraph 4 that the second and third preference votes were likely manipulated and tampered with in favour of the first Respondent.

54.      I have perused the pleading on this box and note that the facts are just general allegations. There are no precise and relevant facts to show why and how the box was disputed after the counting of the primary votes. There are no details showing the process involved in objecting to the count of the ballots during elimination. Who did the objection and what was wrong with the decision of the Returning Officer in allowing the ballots to be counted during the eliminations. The pleading contains a general assumption that the second and third votes were manipulated and tampered with in favour of the first Respondent from the result after the count. However, there is no details of how this was done especially after the votes have gone past scrutiny and the primary votes were counted and considered valid votes. There is no pleading of the number on the Roll of Electors for this ward.There is no pleading of facts showing the number of votes collected by the first Respondent. There is no pleading showing how the alleged errors and omissions from the count of this box affected the election results either on its own or in conjunction or combination with the other affected boxes.

Team 59 (Karawari LLG)

55.     The petition alleges Team 59 conducted polling for Wards 17 (Malamata), 18 (Kotkot) and 29 (Bisorio). Three persons namely Joseph Adam Inara, Livai Tes and Mr. Ki announced that they were running out of time, and they cannot wait for the electors to vote. They forcefully marked the ballot papers, and the voters did not vote. Out of the 839 allowable ballot papers, the first Respondent received 797 votes. The scrutineers objected to the count of the box, but the Returning Officer and his assistants did not exclude the affected box from counting.

56.     Counsel for the first Respondent submits that this ground is confusing and contains alternative pleadings which is not permitted in election petitions as they make it difficult to defend. He relies on the cases Robert Kopaol v Philimon Embel and others (2003) SC727, Luke Alfred Manase v Don Pomb Polye (2009) N3718 and James Yoka Ekip v Gordon Wimb and others (2012) N4899 in support of his submissions.

57.     In my view there is no alternative pleading. However, the pleadings are poorly structured. It seems the allegations are two-fold. First, there is an allegation of illegal marking of the ballot papers by the three named persons and secondly, a failure by the Returning Officer to exclude the box from counting. It is not clear whether the grounds relied on are for the illegal practice under section 215(3) or for the errors and omissions under section 218. 

58.      Although it is not expressly stated, the main complaint seems to be that the electoral officers failed in their duty to exclude from scrutiny the ballot box that allegedly contained illegal votes.

59.     That said, I note the pleadings nevertheless fall short of meeting the requirements of section 208 (a). The pleadings fail to show how the receipt of the 797 votes out of the 839 allowable ballot-papers by the first Respondent affected the election result as envisaged by sections 215(3) and 218 of the OLNLLGE. The pleading of number facts is necessary especially for an election conducted under the LPV system. I will say more on this in the later part of my ruling.

Team 86 (Yuat LLG)

60.    Team 86 conducted polling at Ward 13(Mensuat) and Ward 14(Yambimbit). The petition alleges that when the box was presented for scrutiny, the Presiding Officer’s polling returns contained three different figures for the allowable ballot papers which the presiding officer failed provide an explanation. The scrutineers disputed the box, but the electoral officers failed to exclude the box from counting.

61.    The pleadings are insufficient. The petition fails to plead basic facts like the number of registered electors for Wards 13 and 14, the number of valid and allowable ballot papers presented for counting, the names of candidates and the number of votes collected by each of the candidates from the box. There is no pleading as to who made the objections and what was wrong with the decision to count the box especially where there seems to be no complaints from the polling. 

62.     Much worse, the petition fails to plead how the alleged errors and omissions of the electoral officers in respect of this box affected the results of the election.

Is there sufficient pleading to show the Election Result were affected by the alleged Errors and Omissions?

63.     At page 25, the petition pleads that the alleged illegal practices and errors and omissions did affect the results of the election. I reproduce the relevant part of the pleading hereunder:

“THE ABOVE ILLEGAL PRACTICES DID AFFECT THE RESULTS OF THE ELECTION

1.	The above errors and omissions affected number of ballot boxes and papers.

•	Team 41 (Angoram/Middle Sepik LLG) – 1372 ballot papers.
•	Team 55 (Karawari LLG) – 1259 ballot papers.
•	Team 59 (Karawari LLG) – 839 ballot papers.
•	Team 86 (Yuat LLG) – 1186 ballot papers.

2.	As to the errors and omissions in relation to the scrutiny, the entire ballot boxes that went through the process of scrutiny were done without observations.

3.	Though unnecessary for the purposes of the Order sought for recount, the above errors and omissions infact affected the results of the entire election.

4.	Consequently, these errors and omissions are sufficient to void the election of the first respondent under section 218 (1) of the OLNLLGE.”

64.     The subtitle and the final statement in paragraph 4 suggest that the pleadings in page 25 is the conclusion of all matters pleaded in the entire petition. It is to be read, understood, and applied together or in conjunction with the facts pleaded in Part B and the Grounds in Part C of the petition. It attempts to demonstrate that the errors and omissions were made by the electoral officers in failing to exclude and proceeded to count illegal or tampered boxes despite objections and such errors or omissions affected the result of the election.

65.    The issue for consideration is, therefore, whether there are sufficient facts pleaded in the petition that support the conclusion that the alleged errors and omissions made by the electoral officers under section 153A affected the result of the election as envisaged by section 218.

66.    The relevant or necessary facts to be pleaded in respect of errors made during scrutiny are those described in the cases; James Yoka Ekip v Gordon Wimb(supra) and Kombe v Naguri and others (2017) N7130. 

67.     In Ekip v Wimb, Kanakasi J (as he then was) stated this at paragraphs 35 to 36 of the judgment:

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

36.	Moreover, where a petition is grounded on alleged errors and omissions and or illegal practices, the statement of facts must apart from stating the facts revealing an error, omission, irregularity or illegal practice in terms of what I have stated above, include a statement that the winning candidate had knowledge and authorized the facts set out in the petition. The petition must also state or show how the matters complained of affected the election result and how it is just that the duly elected winner be declared not so elected”

68.      In Kombe v Naguri, Yagi J summarised the relevant facts to be pleaded when dealing with allegations under section 153A of the Organic Law at paragraphs 36 to 37:  

“36. Under this provision (s. 153A), there are a number of procedures or steps that a Returning Officer is required to observe or follow in properly dealing with a complaint during the scrutiny process. These steps have been elaborated upon by the Court in a number of cases beginning with Paias Wingti v. Kala Rawali & Others (2008) N3286 and followed more recently by Pila Niningi (supra) and Soro Marepo Eoe v. Mark Ivi Maipakai & Others (2013) N5066. According to these cases there is a need for specific pleading in respect to allegations based on s.153A of the Organic Law. This has been clearly explained by Chief Justice Injia in the Pila Niningi case (supra) which I have referred to earlier.
37.	The pleading must state concisely all such facts as to –
Matters specified in subsections (1), (2) and (3) of s. 153A that would include matters such as refusal to admit ballot papers for scrutiny, whether the ballot papers were lawfully casted, whether the ballot papers were tampered with, whether the integrity of the ballot papers were compromised, whether the grounds of objections were reduced into writing, whether responses from scrutineers are in writing, whether the Returning Officer or the Polling Official are available at the scrutiny, how the procedure was applied and reasons why the petitioner is aggrieved by the decision.”
Team 41 (Angoram/Middle Sepik LLG)-1372.

69.     The pleading states 1,372 ballot papers from Team 41 were affected. The facts pleaded in support said nothing illegal about the box except for 62 extra ballot papers. It is clear the box has gone past scrutiny as the issue of extra ballot papers surfaced after the count of the ballots. There is no pleading about the number of electors on the Roll of Electors to appreciate the allegation of extra ballot papers. 

70.     I repeat what I said in paragraphs 50 to 51 of the judgement that the facts pleaded alleging errors and omissions under section 153A in respect of this box are insufficient to amount to a ground for the purposes of section 218 of the Organic Law. 

Team 55 (Karawari LLG)
 
71.    The pleading states 1,259 ballot papers from Team 55 were affected. However, there are no material facts pleaded to show how the votes were affected especially after the box has gone past scrutiny and the primary votes were counted and recorded in favour of a candidate. The petition contains a general assumption that the second and third preference votes were tampered with and manipulated in favour of the first Respondent. Again, there is no pleading of facts on this allegation. There is no pleading to show how the second and third preference votes from that box was distributed. For example, there is no facts pleaded to show the number of votes collected by the first Respondent. 

72.     I repeat what I said in paragraphs 53 to 54 of the judgement that the facts pleaded in respect of errors or omissions under section 153A are insufficient to amount to a ground under section 218 of the Organic Law.
   
Team 59 (Karawari LLG)

73.     The petition alleges 839 votes from Team/Box 59 are affected. I have already discussed the sufficiency of the pleadings in paragraphs 57 to 59 and find that the pleadings are insufficient. The first Respondent is alleged to have collected 797 illegal votes from this box. There is no pleading to show how the 839 votes affected the results of the election results.

     	Team 86 (Yuat LLG)

74.      The petition alleges 1186 ballot-papers from Team 86 were affected. It alleges that the integrity of the ballots was compromised as the Presiding Officer failed to state the correct number of the allowable ballot-papers in his polling returns. I adopt what I stated in paragraphs 61 to 62 and find that the pleading is insufficient. Except for the Presiding Officer’s alleged blunder in the returns, there is no pleading as to the validity of the ballots. There is no pleading facts showing the registered number of electors on the Roll of Electors to appreciate any impropriety during the polling. I repeat what I said earlier that the facts pleaded in respect of errors and omissions under section 153A are insufficient to amount to a ground under section 218 of the Organic Law.

75.    I find the petition failed to plead the total number of votes casted for each of the four polling teams, the total number of votes scored by the first Respondent and others from the four polling places ,total number of votes from the four polling teams which were affected by the alleged errors and omissions and how the results were affected, that is the votes affected by the alleged errors and omissions exceeded the winning margin. 

76.    I acknowledge the submissions of the Petitioner that the number of votes affected from the four boxes is 4,656. Taking 4,656 away from the winning margin of 4,055 votes between the first Respondent and the Petitioner there is a difference of 101, enough to affect the results. I note his calculation is based on the first-past-the post- voting system. Even then the facts pleaded do not clearly state that the affected votes were erroneously collected by the first Respondent to have such an effect.

Limited Preferential Voting system (LPV).

77.     The voting method used in the 2022 National Elections was the Limited Preferential Voting system (LPV). For the petition to succeed in setting aside an election on the grounds of illegal practice or errors and omissions committed by the electoral officials, the pleadings must, apart from stating the errors and omissions, clearly state how the election results are affected. The facts required to be pleaded are:
          
(i)	At the end of the final exclusion, state the total allowable votes, the votes collected by the surviving candidates, the votes distributed and the exhausted ballot -papers,

(ii)	The absolute majority required (50%+1) at the final exclusion to win the election.

(iii)	The winning margin and the First Respondent’s scores or votes collected, above and beyond the absolute majority. 

(iv)	The total number of votes affected by illegality or errors and omissions.

(v)	And state in clear and precise terms how the results were affected, that is the votes affected by the alleged errors and omissions exceeded the winning margin.

78.    In the present case, the petition failed to plead the material facts as outlined above even after combing all the facts and allegations in totality.  I remind myself that the Petitioner should not be prematurely driven from the judgment seat. On the same token, the Respondents should not be called to defend a petition that is poorly drafted. This is no reflection on the present counsel who took over from the previous lawyers. That said, it is my considered view that the pleadings are insufficient to meet the basic requirements of section 208(a). The pleadings contain general assertions, evidence, and statement and submissions of law. The facts pleaded are not properly structured and are convoluted making it difficult to follow. For this and the reasons given in my judgment, I find the petition incompetent.

Failure to state the occupation of the first attesting witness.

79.     The final contention by the First Respondent is that the petition fails to set out the occupation of the first attesting witness as required by section 208(d) of the Organic Law. The first attesting witness is Professor Kenneth Sumbuk. He stated his occupation as “Academic”. The Respondents argue that the word “Academic” is not an occupation. The Oxford dictionary defines the word as an educator who works at a college or University. I am not satisfied that the petition failed to state the occupation of the first attesting witness as alleged. 

Conclusion

80.    In the end I find the petition incompetent and uphold the First Respondent’s application and dismiss the petition with cost to the Respondents.

Orders

81.     The Court orders that:

1)	The First Respondent’s application for objection to competency of the petition is upheld.

2)	The entire petition is dismissed for being incompetent.

3)	The Registrar shall pay the security deposit to the Respondents in equal portions.

4)	The Petitioner shall pay the Respondents’ cost to be taxed if not agreed.

5)	Time be abridged.
_______________________________________________________________
Kawat Lawyers: Lawyer for the Petitioner
Waisi Lawyers: Lawyer for the First Respondent
Tangua Lawyers: Lawyer for the Second Respondent