N10457
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 93 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
MADANG PROVINCIAL ELECTORATE

JERRY SINGIROK
Petitioner

V

RAMSEY PARIWA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Madang: Cannings J
2023: 17th, 18th, 19th, 23rd August

ELECTIONS – petitions – objection to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether petition adequately sets out facts relied on to invalidate election due to errors or omissions by electoral officers  – s 218 (immaterial errors not to invalidate election) – s 217 (real justice to be observed) – whether s 217 applies when determining objections to competency of petition.  

The first respondent to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) objected to competency of the petition, which consisted of two grounds of challenge. Ground 1 (part C1 of the petition) alleged errors and omissions by the Electoral Commission during polling which affected the outcome of the election for the purposes of s 218(1) of the Organic Law on National and Local-level Government Elections. Ground 2 (part C2) alleged errors and omissions by the Electoral Commission during counting which affected the outcome of the election for the purposes of s 218(1) of the Organic Law. The eight grounds of objection set out in the notice of objection were: (a)30 of the 81 paragraphs of the petition pleaded opinions, arguments, conclusions and submissions, not facts as required by s 208(a) of the Organic Law; (b) the petition failed to plead sufficient facts, by failing to plead the names of electoral officers who allegedly committed errors or omissions and that the errors or omissions affected the result of the election; (c) the petition did not name the scrutineers involved in the allegations raised by the petition; (d) part B of the petition (facts relied on to invalidate the return of the first respondent) offends s 208(a) of the Organic Law by failing to provide sufficient details of numbers of ballot papers, dates of quality control checks, source of figures and being contradictory and citing irrelevant provisions of the Organic Law; (e) part C1 of the petition (ground 1 of the petition) offended s 208(a) of the Organic Law by failing to state the number of votes affected by the alleged errors and omissions and not naming those who replaced the electoral officers referred to; (f) part C2 of the petition (ground 2 of the petition) offended s 208(a) of the Organic Law by inadequately pleading how 4,000 votes allegedly unlawfully allocated to the first respondent affected the result of the election, given that the first respondent’s winning margin was 44,760 and by pleading incorrect and irrelevant provisions of the Organic Law; (g) pleading relief not able to be granted: this ground was abandoned; and (h) the petition was so confusing, convoluted and repetitive it was hard to figure out where the facts stop and the grounds start, and the petition contains submissions and pleads evidence contrary to s 208(a) of the Organic Law. The second respondent supported the objection to competency. The petitioner opposed it. The Court heard the parties on the objection to competency. 

Held:

(1)	The grounds of objection to competency were determined as follows: (a)the complaint that 30 of the 81 paragraphs of the petition pleaded opinions, arguments, conclusions and submissions was trivial and did not demonstrate any failure to plead material facts; (b) the petition pleaded sufficient facts and pleaded that the alleged errors or omissions affected the result of the election and pleaded how that happened; (c) the complaint that the petition failed to name scrutineers was trivial as the names of the scrutineers were adequately stated; (d) the complaint that part B of the petition offended s 208(a) of the Organic Law was trivial and amounted to an unreasonable request for intricate details of the plaintiff’s case; (e) part C1 of the petition (ground 1 of the petition) adequately stated the number of votes affected by the alleged errors and omissions and adequately referred to unauthorised persons who replaced the electoral officers referred to; (f) part C2 of the petition adequately pleaded how 4,000 votes allegedly unlawfully allocated to the first respondent affected the result of the election by pleading that if those votes had not been counted the first respondent’s votes would not have reached the absolute majority + 1 figure required for him to be declared elected without further counting; (g) abandoned; and (h) the petition was not so confusing and convoluted that it failed to meet the requirements of s 208(a) of the Organic Law. 

(2)	All grounds of the objection to competency were refused. The objection to competency was wholly refused, with costs ordered against the first respondent. 

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Beseoh v Bao (2003) N2348
Hagahuno v Tuke (2020) SC2018
Holloway v Ivarato [1988] PNGLR 99
Karo v Kidu [1997] PNGLR 28
Kikala v Electoral Commission (2013) SC1295
Mune v Agiru (1998) SC590

Counsel

B S Lai, for the Petitioner
M Kombri, for the First Respondent
T Sua, for the Second Respondent

23rd August 2023

1.     CANNINGS J: This is a ruling on an objection to competency of an election petition. The petition was filed by unsuccessful candidate Jerry Singirok (the petitioner) disputing the election of first respondent Ramsey Pariwa as member for Madang Provincial in the 2022 general election. The Electoral Commission is second respondent.

2.    The petition contains two grounds of challenge:

Ground 1 (part C1 of the petition, paragraphs 25 to 37) alleges errors and omissions by the Electoral Commission during polling which affected the outcome of the election for the purposes of s 218(1) of the Organic Law on National and Local-level Government Elections. 

It is alleged that illegal polling took place in the Kovon Local-level Government area of Middle Ramu District due to the duly appointed polling teams 136, 137, 138 and 139 including their gazetted presiding officers being replaced unlawfully by a candidate in the Middle Ramu Open election, Harwai Kamdaru (who was ultimately the successful candidate).

It is further alleged that a direction from the Electoral Commissioner to the Middle Ramu returning officer to set aside three ballot boxes from Kovon LLG area was ignored, resulting in 3,487 votes from that area being included in the counting of votes for the provincial seat. 

It is further alleged that the first respondent benefited from the votes he collected from the disputed ballot boxes that were not set side, but counted and added to his tally. 

Ground 2 (part C2 of the petition, paragraphs 38 to 81) alleges errors and omissions by the Electoral Commission during counting which affected the outcome of the election for the purposes of s 218(1) of the Organic Law. It is alleged that three irregularities occurred:

(1) Scrutiny of ballot papers took place without the physical presence of scrutineers from 12 to 14 August 2022 contrary to ss 151, 168 and 169 of the Organic Law and that during that period 4,000 votes for the first respondent were discovered by the returning officer, Sponsa Navi, and added to the first respondent’s tally, taking him to 109,888 votes and resulting in him being declared the successful candidate by virtue of securing more than the required figure of an absolute majority plus one. 

(2) In that period of the allegedly unlawful scrutiny the number of live votes changed substantially from 285,781 votes to 281,777 votes and the number of informal votes changed substantially from 26,974 to 28,737 and the returning officer unlawfully refused a request for a recount of the number of informal votes. 

(3) During the conduct of the scrutiny from 9 to 18 August 2022 the counting of primary votes was done at the six district counting centres without the form 66A tally sheets being provided and this resulted in unverified data being sent to the Electoral Commission’s website and the elimination process being conducted contrary to the Organic Law. 

OBJECTION TO COMPETENCY

3.    The first respondent filed his notice of objection to competency on 13 October 2022. It has not been amended. His objection is supported by the second respondent and opposed by the petitioner. 

4.    Eight grounds of objection are set out in the notice of objection: 

(a) 30 of the 81 paragraphs of the petition plead opinions, arguments, conclusions and submissions, not facts as required by s 208(a) of the Organic Law (part A of the notice of objection); 

(b) the petition fails to plead sufficient facts, by failing to plead the names of electoral officers who allegedly committed errors or omissions and that the errors or omissions affected the result of the election (part B of the notice of objection); 

(c) the petition does not name the scrutineers involved in the allegations raised by the petition (part C of the notice of objection); 

(d) part B of the petition (facts relied on to invalidate the return of the first respondent) offends s 208(a) of the Organic Law by failing to provide sufficient details of numbers of ballot papers, dates of quality control checks, source of figures and being contradictory and citing irrelevant provisions of the Organic Law (part D of the notice of objection);

(e) part C1 of the petition (ground 1 of the petition) offends s 208(a) of the Organic Law by failing to state the number of votes affected by the alleged errors and omissions and not naming those who replaced the electoral officers referred to (part E of the notice of objection); 

(f) part C2 of the petition (ground 2 of the petition) offends s 208(a) of the Organic Law by inadequately pleading how 4,000 votes allegedly unlawfully allocated to the first respondent affected the result of the election, given that the first respondent’s winning margin was 44,760 and pleads incorrect and irrelevant provisions of the Organic Law (part F of the notice of objection); 

(g) the petition pleads relief not able to be granted: this ground was abandoned; and 

(h) the petition is so confusing, convoluted and repetitive it is hard to figure out where the facts stop and the grounds start, and the petition contains submissions and pleads evidence contrary to s 208(a) of the Organic Law (part H of the notice of objection).

PRINCIPLES

5.    All grounds of objection are based expressly or impliedly on the argument that the petition does not comply with s 208(a) of the Organic Law. 

6.    Section 208 (requisites of petition) states:

A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

7.    There are some general principles that apply to this sort of objection to a petition:

•	Section 208(a), by requiring that a petition “set out the facts relied on to invalidate the election or return”, requires that the alleged facts be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition. 

•	The ground of the petition is required to set out the basic factual allegations that will allow the respondents and the Court to appreciate the petitioner’s case. The petition is not required to set out the evidence by which the allegations will be proven (Holloway v Ivarato [1988] PNGLR 99, Mune v Agiru (1998) SC590, Karo v Kidu [1997] PNGLR 28).

•	A ground in a petition will meet those requirements when it identifies the facts alleged to invalidate the election in terms of the Organic Law. It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on. 

•	If errors or omissions are relied on, the petition will plead, in terms of s 218 of the Organic Law, that the errors or omissions affected the result of the election and plead how the result was affected. Section 218 (immaterial errors not to vitiate elections) of the Organic Law states: 

… 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.

•	Section 218(1) has two parts. First, the petition must allege that a delay in the declaration of nominations, the polling, declaration of the poll or return of the writ has occurred or – as is alleged in this case – an error or an omission by an officer has occurred. Secondly the petition must allege that the delay, absence, error or omission has affected the result of the election. Injia J as he then was explained this in Beseoh v Bao (2003) N2348:

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.

The Supreme Court in Amet v Yama [2010] 2 PNGLR 87 emphasised the importance of pleading both that the result of the election was affected and how it was affected. 

•	Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed. 

•	Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency (Kikala v Electoral Commission (2013) SC1295, Hagahuno v Tuke (2020) SC2018). 

DETERMINATION OF GROUNDS OF OBJECTION

8.    I will now assess and determine each ground of objection. 

(a)	Pleading opinions, arguments, conclusions and submissions, not facts 

9.    The complaint that 30 of the 81 paragraphs of the petition pleaded opinions, arguments, conclusions and submissions is trivial. The petition was drafted in accordance with rule 4 and form 1 of the Election Petition Rules 2017. It was required to set out in separate parts the facts relied on to invalidate the return of the first respondent and the grounds upon which the petitioner relies. It complied with those requirements. It is inevitable that in complying with the requirement to state grounds, as distinct from facts, a petition will contain some opinions, arguments, conclusions and submissions. The inclusion of such material in a petition does not demonstrate any failure to plead material facts. Ground of objection (a) is refused.

(b) Failing to plead the names of electoral officers and the errors or omissions affected the result of the election

10.    The petition pleads sufficient facts in sufficient detail and pleads that the alleged errors or omissions affected the result of the election and pleaded how that happened. Ground of objection (b) is refused.

(c) Not naming scrutineers 

11.    The complaint that the petition fails to name scrutineers is trivial. The names of the petitioner’s scrutineers were adequately stated. Ground of objection (c) is refused.

(d) Failing to provide sufficient details of numbers of ballot papers, dates of quality control checks, source of figures etc

12.    This ground of objection is a complaint regarding the level of detail in part B of the petition (facts relied on to invalidate the return of the first respondent). It amounts to an unreasonable request for intricate details of the petitioner’s case. 

13.     I find that part B (paragraphs 1 to 24 of the petition) does not offend against s 208(a) of the Organic Law. It provides sufficient detail of numbers of ballot papers, dates of quality control checks and the source of figures. The question of whether some of the facts pleaded are contradictory is a contentious matter that can be resolved during trial. Likewise the argument that irrelevant provisions of the Organic Law are pleaded is a question of law that can be resolved during trial. Ground of objection (d) is refused.

(e) Failing to state number of votes affected by the alleged errors and not naming those who replaced the gazetted electoral officers 

14.     Ground 1 of the petition adequately states the number of votes affected by the alleged errors and omissions (paragraph 34 of the petition pleads the number as 3,487) and adequately refers to unauthorised persons who replaced the electoral officers referred to. The question of the names of the unauthorised persons is irrelevant. The argument made in this ground of the petition is that unauthorised persons conducted the polling – it does not matter what their names were – and that the Commissioner’s direction not to count 3,487 ballot papers was ignored. The argument is adequately pleaded. Ground of objection (e) is refused.

(f) Inadequately pleading in ground 2 (part C2) of the petition how 4,000 votes affected the result of the election

15.     Ground 2 of the petition adequately pleads how 4,000 votes allegedly unlawfully allocated to the first respondent affected the result of the election. It is clearly pleaded that if those votes had not been counted the first respondent’s votes would not have reached the absolute majority + 1 figure required for him to be declared elected without further counting. Ground 2 of the petition states the petitioner’s case clearly, in a way that puts the respondents on notice of the case to be met. It adequately pleads how the result was affected. It meets the requirements of pleading articulated by the Supreme Court in Amet v Yama [2010] 2 PNGLR 87. Ground of objection (f) is refused.

(g) Pleading relief not able to be granted

16.     This ground of objection was abandoned.

(h) Petition is confusing, convoluted and repetitive 

17.    The petition is not so confusing and convoluted that it fails to meet the requirements of s 208(a) of the Organic Law. Though the petition is repetitive in many places and is not a model of clarity, it is drafted in a manner that complies substantially with the Election Petition Rules 2017. It pleads facts in a sufficiently detailed and comprehensible way to put the respondents on notice as to the case that must be met and pleads facts that, if proven, would  support the relief sought in the petition. To dismiss a petition simply because it is repetitive, verbose and long-winded would be to act contrary to s 217 of the Organic Law, which is a factor that must be taken into account when determining this objection to competency. Ground of objection (h) is refused.

CONCLUSION

18.     All grounds of objection are refused. The objection to competency is therefore refused.

19.     The question of costs of the hearing of the objection is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the first respondent pay the petitioner’s costs of the objection to competency. 

ORDER

(1)	The first respondent’s objection to competency of the petition, filed by notice of objection on 13 October 2022, is wholly refused. 

(2)	The first respondent shall pay the petitioner’s costs of the objection to competency on a party-party basis, which shall if not agreed be taxed. 

(3)	The petition will proceed to trial in accordance with directions of the Court. 

_____________________________________________________________
B S Lai Lawyers:				 Lawyers for the Petitioner
Kombri & Associates Lawyers: 	 Lawyers for the First Respondent 
Sua & Sons Lawyers:			 Lawyers for the Second Respondent