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Timothy v Haiveta [2023] PGNC 322; N10463 (1 September 2023)

N10463


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 49 OF 2022 (IECMS)


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


BETWEEN:
ELIZAH TIMOTHY
Petitioner


AND:
CHRISTOPHER SESEVE HAIVETA
First Respondent


AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Kerema, Waigani: Toliken J
2023: 2nd & 3rd August, 1st September

ELECTION PETITION – Objection to competency – Requisites of petition -Allegations of bribery and polling and counting irregularities - whether competent –Organic Law on National and Local-Level Government Elections, ss 208, 209, 210, 215, 217, 218; Criminal Code, s 103.

ELECTION PETITION – Objection to competency – Standing or locus standi – whether petitioner was qualified to vote, contest and petition against the result – use of term eligible voter – whether same as elector – meaning of term elector - Constitution ss 50, 103, Schedule 1.5, Organic Law on National and Local-Level Government Elections, s 3, 52, 87, 89, 134, 135, 214.

ELECTION PETITION – Objections to competency – whether security deposit filed at same time petition was filed – whether objection to competency of objection to competency is competent - Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022), Rules 5, 7, 8. 12.


Cases Cited:


The following cases are cited in the judgment:
Lowa v Akipe [1992] PNGLR 399
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Amet v Yama (2010) SC1064
Yama v Yagama (2012) N4928
Kubak v Trawen (2012) N4992
Hagahuno v Tuke (2020) SC2018
Delba Biri v Bill Ninkama [1982] PNGLR 342
Elemi v Sir Ano Pala and Electoral Commission (2023) N10112
Wararu v Maru (2023) N10358
Daniel Don Kapi v Takai Kapi (1998) SC548
Jimson Sauk Papaki v Don Pomb Pullie Polye (1999) SC644
Korry v Wei (2012) N4878
Banasi v Orme (2023) N10163
Paru Aihi v Peter Isoaimo (2013) SC1278
Yagama v Uguro (2018) N7135)
Yagama v Uguro (2018) SC1682
Kikala v Electoral Commission (2013) SC1295


Counsel:
F Baundo, for the Petitioner
G Manda, for the First Respondent
C Mara with S Dewe, for the Second Respondent

JUDGMENT

01st September 2023

  1. TOLIKEN J: INTRODUCTION: The Petitioner (Elizah Timothy) filed a petition against the declaration of the First Respondent (Christopher Seseve Haiveta) as Member for the Gulf Provincial Seat in the 2022 General Elections. The Electoral Commission is the Second Respondent.
  2. The petition was filed through IECMS on 09th September 2022. It was served on the respondents by way of publication in the National Newspaper (a mode of service prescribed by Rule 8 of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022) (the Election Petition Rules hereafter) on Thursday 22 September 2022.
  3. The Petitioner alleged illegal practices through several instances of alleged bribery by the First Respondent, and polling and counting irregularities, errors, and omissions by the Second Respondent pursuant to Section103 of the Criminal Code (the Code) and Section 218 of the Organic Law on National and Local-Level Government Elections (the Organic Law) respectively.
  4. Pursuant to Rule 12 of the Election Petition Rules the respondents filed separate objections to competency – the First Respondent on 11 October 2022 (Doc. #9) and the Second Respondent on 13 October 2022 (Doc.#13) which with leave of the Court was amended and filed on 0-1 May 2023 (Doc. # 104)

PRELIMINARY MATTERS

  1. I pause here briefly to consider preliminary matters which I think appropriate to address at this juncture. These are certain interlocutory motions which were separately filed by the respondents apart from their Notices of Objection to Competency.
  2. On 24 March 2023 the Second Respondent filed a Notice of Motion (Doc # 85) to dismiss the Petition for lack of standing or locus standi on the basis that the Petitioner was neither an elector nor qualified to be a candidate for the electorate. The Motion was refused by Yagi J, on 19 April 2022. However, his Honour granted leave for the Second Respondent to amend its notice of objection. The Second Respondent thereafter filed its Amended Notice of Objection to Competency on 01 May 2023. (Doc. # 104). The Amended Notice of Objection to Competency added lack of standing on the part of the Petitioner in addition to the original grounds of objection.
  3. The First Respondent, in the meantime, also filed a similar Notice of Motion (Doc. #97) on 21 April 2023 seeking to dismiss the petition on similar grounds – lack of standing. However, on 24 April 2023, he filed a Notice to Withdraw the Notice of Motion filed on 21 April 2023. (Doc. # 99) On 26 April 2023 Justice Yagi granted leave to the First Respondent to withdraw his Notice of Motion of 21 April 2023 (Doc. # 103)
  4. Interestingly, the First Respondent also filed another Notice of Motion (Doc. # 100) on the same day he filed the notice of withdrawal of his motion of 21 April 2023 essentially seeking the same orders as those sought in the motion that was subsequently withdrawn. This new Notice of Motion was never moved before the Judge Administrator Yagi J.
  5. Mr. Manda of Counsel for the First Respondent, sought to move the motion on Wednesday 02 August 2023 when the matter came before me in Kerema. I did not then appreciate nor was it brought to my attention that the Motion filed on 21 April 2023 had been withdrawn with leave and that a subsequent motion (Doc. # 100) on very similar terms had been filed and remained on foot.
  6. Being of the view that the First Respondent’s Motion would serve no utility after Yagi J had refused the Second Respondent’s earlier motion, I ruled that the Notice of Motion by the First Respondent to dismiss the petition summarily for want of standing, be withdrawn and I granted him leave to join the Second Resspondent during arguments on this issue.
  7. Whether it was by design or inadvertence on the part of Mr. Manda, it was rather mischievous to say the least for counsel not to appraise the Court of the fact that the motion he sought to move before me was seeking the very same relief which he successfully sought leave to withdraw before Yagi J. The Notice of Motion he filed on 24 April 2023 - the very same day he filed to withdraw the Notice of Motion dated 21 March 2023 - was an absolute abuse of process. And counsel carried through his scheme to mislead the Court by seeking to have a second bite at the cherry so to speak by moving that motion before me.
  8. For what it’s worth, what Mr. Manda ought to have done was to get instructions from his client to withdraw the Notice of Motion filed on 24 April 2023 and amend the Notice of Objection to Competency as the Second Respondent did. He did not do that and instead let the Motion stand, abusing the process of Court.
  9. This should, in ordinary circumstances, evoke the wrath by Court. I will let this pass, but counsel need to be reminded of their duty to assist the Court and not mislead it, as was the case here. The best I can do is to award costs against the First Respondent.
  10. Now back to the immediate task at hand.

THE PETITION

  1. The Petitioner advanced seven grounds to challenge the validity of the First Respondent’s election. Six are instances of alleged bribery by the First Respondent and/or his agents, and one ground for alleged polling and counting irregularities, errors, and omissions by the Second Respondent.
  2. The six alleged instances of bribery pleaded are –
  3. The alleged irregularities, errors and omissions alleged against the Commission all lumped together and convoluted but can be summarized as follows –
(h) Sorting and counting officials were tribesmen of the First Respondent from Moripi, Mailovera and Toaripi.
(i) An attempt by the Returning Officer to skip counting for Kaintiba LLG and Kotidanga which accounted for Counts 30 -70 and jump to Kikori Open Electorate with the intention of ensuring that the First Respondent maintained his lead and quickly reach the absolute majority plus one.
  1. The above are my summation of an otherwise convoluted and poorly structured pleading.

OBJECTIONS TO COMPETENCY

  1. Except for the objection in the Commission’s Amended Notice of Objection to Competency challenging Mr. Timothy’s standing or locus standi, the other objections (8 in all) raised by the respondents are in exact identical terms. They are –
    1. The facts pleaded under paragraphs 1- 4 of the Petition lack necessary and sufficient facts thereby offending Section 208 (a) of the Organic Law wherein the Petitioner did not clearly state as to when the First Respondent member-elect for Gulf Regional seat for the purpose of compliance with Section 208 (e) of the Organic Law.
    2. The material facts pleaded in paragraphs 5 – 30 of the Petition failed to plead necessary and sufficient facts to constitute the allegations made, thereby offending Section 208 (a) of the Organic Law.
    3. The allegations of bribery under Ground C1 paragraphs (a) – 33 of the Petition fails to plead necessary and sufficient facts to constitute the alleged bribery by the First Respondent, thereby offending Section 208 (a) of the Organic Law wherein –
      1. It failed to plead whether the recipient of the alleged bribe actually took part in casting his vote for the First Respondent’s victory.
      2. It failed to demonstrate how the election for the Gulf Regional Seat would be affected by the alleged bribery.
  2. The allegation of bribery contained under Ground C2 paragraphs (a) – 34 of the Petition fails to plead necessary and sufficient facts to constitute the alleged bribery by the agents of the First Respondent, thereby offending Section 208 (a) of the Organic Law wherein –
    1. It failed to demonstrate that the alleged bribery was done with the knowledge and authority of the First Respondent.
    2. It failed to plead whether the recipient of the allege bribe was an elector that actually took part in casting his vote for the First Respondent’s victory.
    1. It failed to demonstrate how the election for the Gulf Regional Seat would be affected by the alleged bribery.
  3. The allegation of bribery contained under C2 paragraph (a) – 35 of the petition is convoluted and ambiguous as it fails to plead necessary and sufficient facts to constitute the alleged bribery by the First Respondent as incumbent Governor of Gulf Province, thereby offending Section 208 (a) of the Organic Law, wherein –
    1. It failed to c clearly demonstrate how financial assistance from the Gulf Provincial Government to carry out elections in Gulf Province amounts to bribery.
    2. It failed to plead whether the recipients of the alleged bribe were electors that actually took part in casting their votes for the First Respondent’s victory.
    1. It failed to demonstrate how the election for Gulf Regional Seat would be affected by the alleged bribery.
  4. The allegation of bribery with food stuff contained in Ground C3 paragraphs (a) – 36 of the Petition fails to plead necessary and sufficient facts to constitute the alleged bribery by agents of the First Respondent, thereby offending Section 208 (a) of the Organic Law, wherein –
    1. It failed to demonstrate that the alleged bribery was done with the knowledge and authority of the First Respondent.
    2. It failed to plead whether the recipients of the alleged bribery actually took part in casting their votes for the Gulf Regional Seat that resulted in the First Respondent’s victory.
    1. It failed to demonstrate how the election for Gulf Regional Seat would be affected by the alleged bribery.
  5. The allegations contained under Ground C4 paragraphs (a) and (b) of the Petition are convoluted and ambiguous as it fails to plead necessary and sufficient facts to constitute the alleged polling and counting irregularities, errors and/or omissions by agents of the Second Respondent, thereby offending Section 208 (a) of the Organic Law, wherein –
    1. the issues raised in paragraphs 6 – 11 and 23 and 24 of the Petition were not objected to in writing at the time of the alleged act, therefore cannot be raised as a ground to dispute the election of the First Respondent in a Court of Disputed Returns.
    2. the issues raised in paragraphs 27 – 30 of the Petition are convoluted, speculative and do not clearly demonstrate how the election of the First Respondent would be affected by the alleged acts.
  6. The Security for costs was filed on 12 September 2022, three days after the Petition was filed thereby offending Section 209 of the Organic Law. The Petition being filed on 9 September 2022 and the Notice of Payment for Security deposit being filed on 12 September confirms that the Petition was filed without the Security Deposit thus in breach of Section 209 of the Organic Law.
  7. The additional ground of objection by the Commission in its Amended Notice of Objection is couched in the following terms –
    1. ... the Petitioner lacks necessary standing to challenge the First Respondent’s election on the basis that his name, namely Elizah Timothy, is not registered as a voter nor an elector in any ... Electorate in Gulf Province, which renders the entire Petition void ab initio.

ISSUES

  1. Apart from the issues raised in the respondents’ objections to competency, during arguments the Petitioner argued, inter alia, that the Objections to Competency were themselves incompetent because they were filed a day after the expiry of 21 days allowed by Rule 12 of the Election Petition Rules for filing of objections to competency.
  2. No formal objection to the competency of these objections was filed. The Rules are silent on the matter. This raises the issue of whether the Petitioner’s objection can be entertained. Given the clear stipulation under section 217 of the Organic Law for the Court to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, I see no good reason not to hear the Petitioner on this point. Hence an additional issue arises - whether the Objections to Competency were filed out of time and therefore incompetent themselves.
  3. The following issues therefore fall to be determined and I shall deal with them in the order they are presented here –
    1. Whether the Security Deposit was filed at the same time the Petition was filed.
    2. Whether the Objections to Competency were filed out of time and therefore incompetent.
    3. Whether the Petitioner had standing to challenge the election of the First Respondent.
    4. Whether the Petitioner pleaded sufficient and necessary facts to constitute the several instances of bribery alleged against the First Respondent and/or his agents.
    5. Whether the Petitioner has pleaded necessary and sufficient facts to constitute the alleged polling and counting irregularities, errors and/or omissions by agents of the Second Respondent.

THE LAW ON OBJECTIONS TO COMPETENCY

  1. On objections to competency generally, the law is settled that a competency challenge raises the issue of the court’s jurisdiction to deal with a matter before it. The issue may be raised by the parties or by the Court itself on its own motion. The issue may be raised at any time of the proceedings. (Lowa v Akipe [1992] PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Amet v Yama (2010) Sc 1064; Yama v Yagama (2012) SC4928; Kubak v Trawen (2012) N4992)
  2. In respect of election petitions objections to competency are founded on s 208 (Requisites of election), s 209 (Deposit as security for costs) and s 210 (No proceedings unless requisites are complied with).
  3. These provisions relevantly provide –
  4. 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).

  1. DEPOSIT AS SECURITY FOR COSTS.

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

  1. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

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

  1. In hearing petitions, the court is, however, enjoined by s 217 of the Organic Law which provides that it should be guided by the substantial merits and good conscience of each case without having regard to legal forms, technicalities, or the rules of evidence. The provision provides –
  2. REAL JUSTICE TO BE OBSERVED.

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.

  1. There is a plethora of case authorities that have made pronouncements on importance of s 217 of the Organic Law as well as the approach to which the National Court should deal with election petition. I do not intend to belabour us by citing these cases except to quote from the head notes what the five men Bench of the Supreme Court said in Hagahuno v Tuke (2020) SC2018 (Kandakasi DCJ, Kirriwom, Mogish, Manuhu, Makail JJ) said. The justices there 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.

(3) The National Court erred in law by taking a strict and legalistic approach to the requirements of statement of occupation by an attesting witness for the purposes of s 208(d) of the Organic Law. “Self-employed” is an adequate statement of occupation.

(4) As to the facts that are to be stated in support of allegations of bribery, it is necessary only that the petition state the essential elements of the offence, including the date of commission of the alleged offence of bribery, the name of the offender, the name of the person bribed, that the person bribed was an elector, that the bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate, and that the winning candidate was in fact a candidate at the time of the alleged offence. Here the petition stated the necessary details, sufficient to put the respondents on notice what the allegations were, and result in a fair trial.


  1. I am therefore mindful of these pronouncements when determining the objections to the competency of this petition before me. I now turn to the issues.

ISSUE 1: WHETHER PAYMENT OF SECURITY DEPOSIT WAS PAID AT SAME TIME PETITION WAS FILED

30. Section 209 of the Organic Law provides for the deposit of K5,000.00 by a petitioner as security for cost at the time of fling of the petition. It relevantly provides –

209. Deposit as security for costs

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

  1. So, did the Petitioner deposit with the Registrar of the National Court a security deposit of K5,000.00 at the time he filed this petition?
  2. The respondents have no issue with the fact that the petition was filed within time on 09 September 2022. However, they averred and argued that the Security Deposit was filed on 12 September 2022, 3 days after the Petition was filed, thereby rendering the Petition incompetent, and therefore should be dismissed. They rely on the Notice of Payment of Security Deposit (Doc. # 3) dated 12 September 2022 issued under the hand of Deputy Registrar of the National Court Mr. Baka Bina. That, they argued, is conclusive evidence that the Security Deposit was filed in breach of s 209 of the Organic Law.
  3. The Petitioner argued that the Security Deposit was deposited into the Registrar’s Trust Account on 9 September 2022 at the same time the petition was filed or uploaded through IECMS. He relies on the affidavit of counsel Mr. Baundo sworn on 28 July 2022 and handed up in Court (Doc.# 106). Mr. Baundo deposed that the Filing Fee was paid on 25 August 2022 well before the Petition was filed on 9 September 2022. On 9 September 2022 he filed the Petition through IECMS. He attached copies of the Filing Fee (K1000.00) as well a copy of BSP Electronic Transfer Receipt for the deposit or payment of K5,000.00 as security for costs into the Registrar’s Trust Account. The deposit was done on 09/09/2022 2.33PM. (Annex, BF-3) After uploading these onto IECMS he attended the National Court Registry and physically filed the Petition, filling in the filing date himself. He, however, did not date the Filing Fee and Security Deposit receipts at the same time. This was done by Mr, Baka Bina on 12 September 2022. Mr. Baundo therefore submitted that this objection should be dismissed as the security deposit was clearly deposited with the Registrar at the date the Petition was filed.
  4. I have heard the submissions from counsel and perused the evidence adduced before me. I accept that the Petition was uploaded onto IECMS by Mr. Baundo of Counsel for the Petitioner on 9 September 2022 together with receipts for the Filing Fee and Security Deposit. I accept that after uploading Mr. Baundo attended the National Court Registry on the same day and physically filed the Petition together with the said receipts but managed only to date the Petition but not the receipts. I accept that Deputy Registrar of the National Court Mr. Baka Bina dated the receipts and issued a Notice of Payment of Security Deposit three days later 12 September 2022.
  5. Can it therefore be said, as the respondents argue, that the Security Deposit was not filed with the Petition on 9 September 2022 but 3 days later on 12 September 2022?
  6. A cursory perusal of the Notice of Payment issued by Mr. Bina would have saved us all the trouble of having to argue this objection unnecessarily. The document itself bears witness to when the security for costs was paid. It pertinently reads –

I ... Baka Bina Deputy Registrar of the National Court

Certify that:

  1. Security Deposit of K5,000.00 was paid into National Court Registrar’s Trust Account No. 1000583618 at BSP on 09th September 2022 and the copy of the receipt was presented to me on the 9th September 2022 being the date the Petition was filed.

Dated 12.09.22

Signed

Deputy Registrar

  1. That aside, s 209 does not speak specifically about “filing” per se though that can be implied. Rather it says that the Security Deposit shall be “deposited” with the Registrar at the time a petition is filed. It does not prescribe the mode of payment. That is prescribed by Rule 7 of the Election Petition Rules (the Rules) which relevantly provides that –
    1. Security for costs

The security deposit required by section 209 of the Organic Law shall be paid in cash or by bank cheque into the National Court Registrar’s Trust Account at the appropriate bank and evidence of the deposit shall be filed with the petition.”

  1. Of course, if payment was other than by cash or cheque, for instance a direct bank deposit, the deposit slip or other form of bank receipt must be produced at the date of filing of the petition. Apart from giving effect to s 209 of the Organic Law, Rule 7 also reinforces Rule 5 (Filing) which provides that –
    1. Filing

A petition shall be filed together with the official receipt or stamped bank deposit slip [as] evidence of payment of the filing fee and security deposit.

  1. It appears to me that Rules 5 and 7 did not envisage the advancement of technology and its concomitant effect on modern banking through, for instance internet or mobile phone banking, or EFTPOS facilities, where businesses and individuals can do their banking from the comfort of their offices and homes without having to attend physically at their banks. Receipts of transaction are now computer generated online by banks and are instantaneously printed (and authenticated as well) at the click of a button. There is no need for customers to physically visit their banks to have their receipts stamped. The Judiciary is embarking on transitioning into e-Courts spurred by the introduction of IECMS and the soon-to-be open state of the art courthouse in Waigani. Therefore, there will come a time very soon when court fees will exclusively be paid through facilities such as EFTPOS at the court registries and internet banking. This is already happening in other government institutions such as the Department of Treasury, Department of Lands & Physical Planning, Internal Revenue Commission, and Investment Promotion Authority to name but a few.
  2. That said, the combined intention and practical effect of Rules 5 and 7 is that petitioners are provided the mode by which they can make payments for filing fees and security deposits be it be cash, bank cheque or direct deposit through Internet Banking and/or EFTPOS facilities.
  3. In the present case, the security deposit was paid directly into the Registrar’s Trust Account, through what I understand to be Internet Banking and the electronic receipt of the deposit was printed and filed with the petition by Mr. Baundo on 9 September 2022. The Notice of Payment by Mr. Bina on 12 September 2022 was merely to acknowledge and certify that the Petitioner had paid the security for costs and presented evidence of payment at the time the Petition was filed in compliance with s 209 of the Organic Law.
  4. This objection has no merit and is dismissed with costs to the Petitioner.

ISSUE 2: RESPONDENTS’ OBJECTION TO COMPETENCY – WHETHER COMPETENT

  1. Are the Notices of Objection to Competency incompetent for being filed outside of the 21 days after service of the Petition as provided under Rule 12? The Petitioner argues that they were filed a day after the expiry date and are therefore incompetent.
  2. The respondents did not argue this point during submissions. But even if they did, arguments on this issue would have served no purpose because of the following pertinent facts –
  3. Clearly the Respondents filed their objections within the stipulated period.
  4. The Petitioner’s challenge to the competency of the objections by the respondents is therefore without merit and misconceived. In any event, any challenge to the respondents’ objections to competency at this stage, particularly the Second Respondent’s, is an abuse of process as the Commission was granted leave to amend its objection. Any objections by the Petitioner ought to have been raised there and then before leave was granted.
  5. Again, I reiterate what this court and the Supreme Court have consistently held – that an objection to competency, whilst an issue going to jurisdiction, may be made at any time during the trial by a respondent or sua sponte by the court. (Amet v Yama (supra); Yama v Yagama (supar.) N4928; Kubak v Trawen (supra.); Elemi v Sir Ano Pala and Electoral Commission (2023) N10112; Wararu v Maru (2023) N10358.
  6. Rule 16 fortifies this settled position in law. It relevantly provides –

16. Trial

The court shall deal with the petition and any objections to the competency of the petition at the trial of the petition.

  1. The Objection by the Petitioner to the competency of the respondents’ objections to the competency of the petition is without merit and misconceived. It is therefore dismissed.

ISSUE 3: WHETHER THE PETITIONER HAS STANDING

  1. The Second Respondent averred and argued that the Petitioner does not have the standing or locus standi to bring this Petition because he is not a registered voter for any of the Electorates for Gulf Province. His name does not appear on the Common Roll and by virtue of sections 50 (2) and 103 (3)(a) of the Constitution, as regulated by Section 87 (1)(a) of the Organic Law, he therefore has no standing or capacity to challenge the election of the First Respondent. In other words, he is not qualified to contest, vote or even dispute the election of the First Respondent.
  2. It is Ms. Mara’s submission that the Petitioner’s name Elizah Timothy is not registered in the Roll for Kwaiyu Village Ward 6, Kotidanga LLG, Kerema District as he claims in his affidavit dated 2nd December 2022. (Doc. #. 73)
  3. Counsel does not state either in her written submission or oral submissions what evidence she relies on for the Second Respondent’s assertion that the Petitioner is not a registered voter or elector. If an affidavit deposing to this issue was filed, it was not tendered into evidence or at the very least referenced in counsel’s submissions. Counsel cannot expect the Court to dig through the numerous affidavits filed by the parties to find any evidence to support her submissions. The very least she ought to have done was tender the relevant affidavit or refer to it in submissions. She did not do that.
  4. Interestingly, her friend Mr. Manda referenced an affidavit deposed to by one Desmond Goka and filed by the Second Respondent (sworn on 24 March 2022 and filed on even date (Doc. # 86)) which I will come to in a bit.
  5. Mr. Manda (with leave of the Court as mentioned above) supported the Second Respondent’s objection and submissions. Counsel essentially reiterated Ms. Mara’s submission that the Petitioner was not an elector – he did not have his name on the Roll for the Kaintiba LLG. He relied on Mr. Goka’s affidavit, which Mr. Baundo did not raise any serious objection to. Given the stipulation under s 217 of the Organic Law I did not think that this procedural slip or oversight would be prejudicial to the Petitioner. In any event, the Petitioner did argue the issue fully as well as provide evidence that he was a registered voter as we will presently see.
  6. Mr. Goka deposed that he was the Assistant Returning Officer (ARO) for Central Kerema during the 2022 National Elections. Upon receiving complaints from the First Respondent that the Petitioner was not an elector for the area, he checked the Roll for his alleged birthplace, Kaintiba, and ascertained that he was not registered in the Common Roll for Kaintiba District. He annexed a copy of the Common Roll. (Annexure DG1)
  7. He also ascertained from the Petitioner’s Nomination Form that he stated he was born in Kaintiba LLG on 11 October 1972. (Annexure DG2) And having checked the Petitioner’s eligibility to nominate as a candidate for the Gulf Regional Seat, he established that the petitioner was not residentially qualified as he had not lived in Kaintiba for six months before the election. The Petitioner also nominated as “Elijah Timothy.”
  8. He further checked the Roll for other Districts in the province and noted that in the Kotidanga LLG, Ward 6, Kwaiyu Village, a person by the name of Elizah Timothy was listed. That person was, however, born on 1st January 1971. Mr. Goka therefore concluded that the Elizah Timothy from Kwaiyu Village, Ward 6 is another person not the Petitioner. He annexed a certified copy of the Roll for Kotidanga LLG. (Annexure DG3)
  9. Mr. Manda argued that the Petitioner was not an elector and cannot be a candidate for the seat in question for the following reasons –
  10. The Petitioner therefore lacks standing because his name does not appear on the common roll for Kaintiba which is his place of residence as he stated in his Nomination Form counsel submitted.
  11. In his reply on this issue Mr. Baundo relied on the followings –
  12. The Petitioner’s affidavit sworn and filed on 3 April 2023 (Doc. #90) was in response to Mr. Desmond Goka’s affidavit Doc. # 86 which I have referred to above already. He then filed the supplementary affidavit (Doc. # 95) on 13 July 2023.
  13. The Petitioner’s Affidavit, Document # 107 was specifically in response in Response to the Second Respondent’s Amended Notice of Objection to Competency sworn and filed on 28 July 2023.
  14. Much of the evidence deposed thereto is repetitious but can be summed up as follows; the Petitioner is from Kwaiyu Village, Ward 6, Kotidanga LLG, Kerema, Gulf Province. His parents are still both alive and living with him. His father Yavepago Timothy is a retired Pastor whose name appears on the 2022 common roll for Kwaiyu Village, Ward 6, Kotidanga LLG.
  15. The Petitioner nominated for the Gulf Provincial Seat in Kerema Town before Mr. Poivare Tore the Returning Officer for the Gulf Regional Seat on 20th May 2022 by filling in the prescribed form, Form 23. Mr. Tore confirmed his voter eligibility status from his records and accepted his nomination. Furthermore, the Assistant Returning Officer (ARO) for Kotidanga LLG, Mr. Smith Mea and the ARO for Kaintiba LLG Mr. Paul Kuno had no issues with his residency qualification and eligibility to vote or contest the election.
  16. He has contested in the 2002, 2007, 2012, 2017 and 2022 elections and had had no issues with his name missing from the Roll or duplicated, changed, or altered. He does not have two names. His name as appears on the Roll under Kwaiyu Village, Ward 6, Kotidanga LLG is Timothy Elizah, Kerema District, Gulf Province. His Voter # is 246 and Elector ID is 80054928. His surname Timothy appears first followed by his given name Elizah the Roll. In this petition, however, his first or given name Elizah appears in front of his surname Timothy. This is consistent with his Bachelor of Education Degree Certificate, BSP SME Visa Card and Westpac Cheque Book, copies of which he annexed to his affidavit (Doc. # 95)
  17. The Petitioner responded to Mr. Goka’s evidence regarding his date of birth, saying that his correct date of birth is as shown in his Nomination Form (Form 23) which 11 October 1972. He disputes Mr. Goka’s evidence that his date of birth was 01 January 1971 and says that it is the duty of the Second Respondent to correct any discrepancy in the Roll when periodically updating the Roll.
  18. The Petitioner was supported by Mr. Killau Paul who filed an affidavit (sworn 11 April 2023 and filed 13 April 2023, Doc. # 94) in response to Mr. Goka’s affidavit. Mr. Paul deposed that he was the Presiding Officer for Team 30 which conducted polling at Kwaiyu and Komako Wards, Kotidanga LLG, in the 2022 General Elections. He is aware and knows without an iota of doubt that the Petitioner is a Gulf man from Kwaiyu Village where he has a home and family and is a registered eligible voter there. As the Presiding Officer he allowed the Petitioner to cast his vote under his name Timothy Elizah (surname followed by given name). He deposed also that he was under instructions from the Commission to use the 2017 Common Roll to Supplement the 2022 Roll. The Petitioner’s name was on both Rolls.
  19. The Petitioner’s unnumbered Affidavit sworn and filed on 28 July 2023 in response to the First Respondent’s Notice of Motion dated 24 April 2023 (Doc. #100) substantially repeats what he said earlier. I had summarily ordered the withdrawal of the said motion at the beginning of hearing hence any submission or affidavits in support or against this motion will serve no useful purpose.
  20. Mr. Baundo submitted that this ground of objection should be dismissed because the Petitioner has clearly shown that he was a registered voter or elector. The fact that he spelt his name first name Elizah with a “J” in his nomination form as opposed to how the name appears in the Roll (i.e., with a “Z”) is of no consequence as there is no doubt that he is the one and same person referenced there to.
  21. Counsel said that the respondents are nit-picking which offends the Supreme Court’s ruling in Hagahuno v Tuke (supra.)
  22. From the evidence before me on this issue I find the following pertinent facts –
  23. So, did the Petition have the necessary standing to vote and/or contest the Gulf Regional Seat in the 2022 General Elections to enable him to dispute the election of the First Respondent?
  24. The resolution of this issues rests not so much on the correctness of the Roll in so far as it pertains to the name under which the Petitioner enrolled and later cast his vote. Section 214 of the Organic Law provides that the Court shall not enquire into the correctness of a Roll. The provision says –

214. Inquiries by the court

The National Court shall enquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may enquire into the identity of persons and whether their vote was improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not enquire into the correctness of a Roll. (Underlining mine)

  1. There is no dispute that this Court cannot enquire into whether a Roll is correct, accurate or not, but the Court is not restricted from inquiring into the identity of persons and the propriety of allowing or not allowing them to vote.
  2. Hence, the real issue here, if you like, is the identification of the Petitioner and whether or not he is the one and same person whose name appears as “Timothy Eilzah” on the Roll for Kwaiyu Village, and whether he admission to cast his vote was proper.

Right to Vote and stand for Public Office

  1. The foundation for the right of citizens to vote and stand for public elective office is section 50 of the Constitution. Subsection (1) of s 50 provide the express limitations imposed by the Constitution that “every citizen who is of full capacity and has reached voting age ... has the right and shall be given a reasonable opportunity to take part in the conduct of public affairs, either directly or through freely chosen representatives, and to vote for, and to be elected to, elective public office at genuine, periodic, free elections, and to hold public office and to exercise public functions.”
  2. The provision specially disqualifies those under sentence of death or imprisoned for a period of more than nine months, or been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes related to the right to vote and stand for public office.
  3. Subjection (2) then relevantly provides that –

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


(Underlining supplied)

  1. Section 103 of the Constitution reinforces the primary right under s 50 of the Constitution to vote and stand for public office and the disqualifications therein provided. Section 103 (3)(a) is of particular relevance to the issue before us. It says -

103. Qualifications for and disqualifications from membership.

(1) ...
(2) ...
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) ...

...

  1. Constitutional Amendment No. 24 -Electoral Reforms of 2002 (certified on 25.06.2002) repealed subsection 3(d) of s 103 by adding that a person is not qualified to be or to remain a member of Parliament if he is adjudged insolvent under any law or has been convicted under any law of an indictable offence after the coming into effect of that amendment.
  2. Pursuant to s 50 (2) of the Constitution, the Organic Law regulates the conduct of National and Local-Level Government elections. It provides, among others, for Electoral Rolls, enrolment, qualifications, and disqualification for enrolment to vote, Issue of Writs, polling places and nominations, scrutiny of the vote and so forth. Part XI of the Organic Law provides for nominations. Section 87 of the Organic Law provides for the requisites for nomination. Subsection (1) (a) and (2) of s 87 are of relevance to the issue under consideration. They provide –

....

(2) Where in relation to a nomination, objection is made by anyone, or the Electoral Commission on its own motion believes, that a person who has nominated is not qualified to be a Member of Parliament, the Electoral Commission may reject the nomination.
  1. Section 89 then addresses formal defects in respect of nominations in the following terms –

89. Formal defects

No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nomination, or the electronic advice of it, as the case may be, is satisfied that the provisions of this Law have been substantially complied with.

  1. The right to vote and to stand for public office is not an absolute right. Rather it is qualified by the Constitution itself and the Organic Law as we have seen. At the very minimum, for a citizen to exercise his or her right to vote and/or stand for public elective office, he must meet the Constitutional qualifications under sections 50 and 103 of the Constitution.
  2. The exercise of that right is, however, regulated by the Organic Law in tandem with the Constitutional imperative to give qualified citizens reasonable opportunity to vote and stand for public elective office.
  3. As a first step to exercising that right, qualified persons must register or enrol to vote or stand for public office. Part VI of the Organic Law provides for qualifications and disqualifications for enrolment and for voting. Section 52 provides for the entitlement to enrol and to vote. It provides –

52. Persons entitled to enrolment


(1) All persons who have a right to vote under section 50 (right to vote and stand for public office) of the Constitution who comply with the requirements of Part VII for enrolment for an electorate are entitled to enrolment.

(2) All persons whose names are on the Roll for an electorate shall, subject to this Law and to the provisions of any other law in force, vote at elections of a member for the electorate, but no person is entitled to vote more than once at an election, or at more than one election held at the same time.

  1. The importance of the duty to enrol is brought to the fore by s 57 which makes it compulsory for persons who are entitled to vote to register or enrol. The failure to register or enrol is an offence.
  2. Having said that, it should go without saying that for a person to dispute the result of an election he must have standing. In other words, he must be an elector, a term defined by section 3 (interpretation) of the Organic Law to mean “a person whose name appears on a Roll as an elector.”
  3. Case authority is settled that a person whose name does not appear on the Roll for the electorate in which he intends to vote or stand as a candidate cannot vote, or petition against the election results.
  4. In Daniel Don Kapi v Takai Kapi (1998) SC 548, the applicant applied to the Supreme Court under s. 155 (2)(b) of the Constitution to review the decision of the National Court (exercising its power as the court of disputed returns) in which the applicant’s petition against the respondent was dismissed. The issue before the Supreme Court was over the eligibility of the respondent to vote as well as stand as a candidate for the Wabag Open Electorate.
  5. The National Court had found that the respondent had taken sufficient steps to enrol himself thus satisfying the requirements and procedure to enrol under s. 58 of the Organic Law, thus qualifying to vote, hence it allowed the petition and ordered a by-election.
  6. The Supreme Court, however, allowed the review after it found among other things that the respondent’s application for enrolment was lodged 6 days after close of nominations while rejecting the respondent’s assertion that he was enrolled under a different name which was in fact that of a female.
  7. On the prerequisite to enrol as an elector to vote the Supreme Court said –

It is quite clear that the right to vote and stand for public elective office provided by s. 50 is not an absolute right. It is in fact a restricted right because of the expression “Subject to the expressive limitation imposed by this Constitution”. It is clear that the right to vote and stand for public office is a restricted right. It is for instance restricted by s. 103 of the Constitution.

In Okuk v Nilkare, judgement No N406, Andrew J considered these provisions. He said:


However, I think that this argument fails at the threshold because s. 50 of the constitution is subject to the express limitations imposed by the Constitution and s. 103 is just such an express limitation. The two sections can quite easily be read together. In my opinion, it is not conceivable that Parliament in adopting the Constitution could have contemplated that a man could be a candidate and stand for national elections when it was known that when he came to take his seat, he would not be qualified. It must follow from s. 103 of the Constitution that if the candidate is not twenty-five when he comes to take his seat, that he was not qualified to stand in the first place.


Elections to the Parliament shall be conducted in accordance with an Organic Law (Constitution s.126), in this case the Organic Law on National Elections, and by s. 86 of the Organic Law, no nomination is valid unless the person nominated consents to act if elected and declares that he is qualified under the laws of Papua New Guinea to be elected as a member. This cannot be achieved by a person under the age of twenty-five without infringing s. 103 of the Constitution.


It is our view that Elections to the Parliament must be conducted in accordance with the provisions of the Organic law (Constitution s. 126), in this case the Organic Law on National and Local Level Government Elections. Further we consider that by s. 52 of the Organic Law all persons who have a right to vote under s. 50 of the Constitution and who comply with the requirements for enrolment set out in Part VII of the Organic Law, in respect of an electorate are entitled to be enrolled.

Section 57 of the Organic Law (which is in Part VII) provides for compulsory enrolment.


It is our view that the intention and spirit of the provisions we have referred to above, is that in order for a person to stand for and vote in an Election, is that he or she must comply with the provisions of the Organic Law relating to enrolment. A person cannot vote or stand for elective office, if he or she has not been enrolled in the first place. If a person has not enrolled in accordance with the provisions of the Organic Law, then that person is not qualified to be entitled to vote in elections to the Parliament. It follows that such a person is not qualified to be a or remain a member of Parliament (s. 103 (3) of the Constitution).

  1. In Jimson Sauk Papaki v Don Pomb Pullie Polye (1999) SC644, the respondent had challenged the election of the applicant as member for Kandep Open Electorate. The respondent had nominated under the name Don Pomb Pullie Polye of Kokose Village in the Kandep Open Electorate. The name, however, did not appear on the Roll in respect of a person from Kokosa or anywhere in the electorate at all.
  2. Ther National Court, however, accepted that he was the one and same person registered as Don Pela of Gina Rest House, a subsistence farmer. This was the name Mr. Polye said he used at school up to tertiary education and this was evidence from his academic certificates and driving license among others. The National Court upheld the petition and declared the election of the applicant void.
  3. On review the Supreme Court, however, held that there was clear evidence that there was no person bearing the name of the respondent nominated under in the Roll for Kandep Open Electorate and therefore he had no standing and that the National Court acted without jurisdiction when it failed to strike out the petition. The net result, the Supreme Court held, was that there was no election petition and declared the election of the applicant valid.
  4. See also Korry v Wei (2012) N4878 and Banasi v Orme (2023) N10163, where both petitioners did not have their names on the Rolls for their respective electorates. They were similarly held to be neither qualified to vote nor be candidates for their respective electorates, let alone challenge the election results. In short, they lacked standing.
  5. Now, back to the instant case. Was the Petitioner an elector – did his name appear on a Roll for an electorate that constituted the Gulf Regional Seat?
  6. The respondents’ objections appear to be four-pronged. First, the Petitioner’s name does not appear in the Roll for Kaintiba LLG, which they say was the place he stated he was born in his nomination form (Form 23). That I have found to be in fact true. The argument implies that since he was born in Kaintiba then his name ought to be on the Kaintiba LLG Roll and he must cast his vote there.
  7. This argument is, however, flawed, illogical and flies in the face of reality. While a person can nominate to stand for an electorate in which he or she was born, the Constitution actually allows for other residential qualifications. Section 103 of the Constitution provides for qualifications for and disqualifications from membership to Parliament. On residential qualifications, subsection (2) relevantly provides –

110. So, you can nominate for the electorate in which you were born, but if you have moved away and reside outside of your place of birth, the Constitution allows you to vote and nominate to contest the election for the electorate you are currently domiciled providing that you have continuously lived in that electorate for two years prior to nomination, or for a period of five years at any time also known as constructive residency. (See Moresby Northeast Parliamentary Election; Damena v Lowa [1977] PNGLR 448 where the concept of constructive residency was discussed and adopted)

111. Furthermore, the process of nomination is entirely different from that of enrolment. Nomination for candidacy presupposes that the candidate is an elector – a person who has enrolled or registered and his name appears in the Roll.

112. A candidate’s place of birth in the nomination form merely serves to identify him as being born there and thus is a citizen. It does not follow, however, that that is place where one has enrolled to vote in. In the instant case the Petitioner may have indeed been born in Kaintiba as he states in his nomination form, but he may have enrolled under his village of Kwaiyu, Ward 6, Kotidanga LLG, in the Kerema Open Electorate of Gulf Province. It is evident that he in fact did because his name does appear in the Roll for Kwaiyu Village, as Timothy, Elizah.

113. But that is not the name he nominated under; the respondents secondly argue. He spelt his first name in the nomination form with a “J” and not with a “Z” as appears in the Roll for the list of electors for Kwaiyu Village. This argument must also fail. The name Elizah is often spelt alternatively with a “J” or a “Z”. It would be a different story though if the name on the Roll was Elisha which is a completely different name.

114. What about the fact that the name of the Roll is Timothy, Elizah and not Elizah Timothy as appear on the Petition? Any objection on that would be mischievous, misconceived and smacks of nit-picking because electors on the roll are recorded with their surnames first followed by their given names. This argument must also fail because the Roll for Kwaiyu Village without a doubt clearly shows that a person by the name Timothy, Eliza is enrolled there. The respondents have not provided any convincing evidence to counter the Petitioner’s evidence that he is indeed that person.

115. Again, what matters is the name on the Roll as the final and conclusive proof of enrolment by an elector and not as appears on the nomination form unless it can be shown that the person recorded in the nomination form is not the elector named on the Roll. In the present case that Petitioner has shown with clear evidence that his Bachelor of Education degree Certificate, Bank Cards and Cheque Book all bear the name Elizah Timothy.

116. Has it been proved though by the respondents that the Timothy Elizah recorded on the Kwaiya Village Roll is not the Petitioner? That is the respondents’ third argument. They contend that the Petitioner could not be the person named there because the Roll shows that that person’s occupation as “teacher” and not “SME Owner” and was born on 01 January 1971.

117. The Petitioner holds a Bachelor of Education Degree from the University of Goroka which primarily trains teachers and education officers. Neither respondent has led any evidence to show that the Petitioner was not a teacher before he became an SME owner. It can reasonably be inferred that the Roll would therefore have correctly reflected the Petitioner’s occupation at the time he enrolled.

  1. What about the marked difference in the dates of birth in the Roll and the Nomination Form? This is the respondents’ fourth argument on the Petitioner’s standing. I am not allowed by the Organic Law (s. 214) to question the correctness of Roll. That notwithstanding, this discrepancy can be resolved by the respondents’ providing incontrovertible evidence that the person recorded or named on the Kwaiyu Village, Ward 6, Kotidanga LLG Roll as Timothy, Elizah is not the Petitioner. They have not done that. The Second Respondent especially has not provided any evidence to show, at the very least, when it updated the Common Roll from which evidence the Court can ascertain that the person named there is indeed a different person.

119. The facts of this case are easily distinguishable for the cases cited above where the petitioner either clearly did not have their names on the roll or were allowed to vote under a different name.
120. The respondents have not proved on the balance of probabilities that the Petitioner has no standing to petition the result of the election for the Gulf Regional Seat on the basis that he is not an elector and that he is not the person recorded in the Roll for Kwaiyu Village, Ward 6, Kotidanga LLG. The Petitioner had standing not only to vote and nominate as a candidate but also to petition the election of the First Respondent.
121. Despite all the above, all the Respondents’ objections to the Petitioner’s standing can easily be put to sleep by s 135 of the Organic Law which relevantly provides –


  1. CERTAIN ERRORS NOT TO FORFEIT VOTE.

No error or omission in the Roll for an electorate of part of a name or entry of a wrong name, address or occupation and no mistake in the spelling of a name warrants the rejection of a claim to vote, and no person shall be disqualified from voting under the name appearing on the Roll because of a change of name.

  1. This ground of objection is therefore dismissed.
  2. Before I move on, I wish to say something in passing. The primary objector to the Petitioner’s standing is the Second Respondent – the Electoral Commission. It sought to find fault in the Petitioner’s nomination and casting of vote for that matter which its officers supervised and allowed to proceed. If there were any objections to his eligibility to nominate, the Organic Law, s. 87, as we have seen, allows anyone and the Commission to object the nomination of a person on the belief that such a person is not qualified to be a Member of Parliament. Section 89 further stipulates that no nomination shall be rejected by reason of a formal defect or error if the Returning officer receiving the nomination is satisfied that the provisions of the Organic Law had been substantially complied with.
  3. The fact that the Returning Officer for the Gulf Regional Seat Mr. Poivare Tore allowed the Petitioner’s nomination implies that he had ascertained from the Commission’s Record including the Common Roll that the Petitioner was qualified to be a Member of Parliament and that the Petitioner substantially complied with the provisions of the Organic Law. Furthermore, he could have been prevented from casting his vote, but Mr. Killau Paul allowed him to vote at his village because his name was on the Roll there. This provided the Commission the second opportunity to prevent him from voting, but he was not because Mr. Paul was satisfied that the Petitioner was the person who was recorded as Timothy Elizah in the Roll.
  4. The Organic Law actually ensures that only electors or registered voters can cast their votes while those who are not, are rejected. To that end, section 134 of the Organic Law provides for certain questions to be put to the voters by polling officials in order to admit or deny a person from voting. It provides –
    1. QUESTIONS TO BE PUT TO VOTER.

(1) Subject to this Law, the presiding officer–

(a) may, and at the request of a scrutineer shall, put to a person claiming to vote the following questions: –

(i) “Have you already voted either here or elsewhere in this election (or these elections, as the case requires)?”.

(ii) “Did you reside within this electorate for a period of more than six months before your claim for enrolment?”.

(iii) “Are you at least 18 years of age?”;

(iv) “Are you a citizen of Papua New Guinea?”;

(v) “Are you qualified to vote?”; and

(b) may, and at the request of a scrutineer shall, also put to any person claiming to vote, whose name appears on the certified list of voters the following question: –

“Are you the person whose name appears as (here state name) on the certified list of voters for this electorate?”.

(2) If a person claiming to vote to whom any of the questions specified in Subsection (1) are put–

(a) refuses to answer fully a question so put to him; and

(b) does not answer the question prescribed in Subsection (1)(a)(i) absolutely in the negative, if so put to him; or

(c) does not answer the question prescribed in Subsection (1)(a)(ii) absolutely in the affirmative when put to him; or

(d) does not answer a question specified in Subsection (1)(a)(iii), (iv), (v) or (b) absolutely in the affirmative when put to him,

his claim to vote shall be rejected unless he is a candidate for election for that electorate.

  1. The provision is couched in what appears to be non-mandatory language by the use of the word “may.” It may be implied therefore that the duty there imposed upon a presiding officer is merely directory. I would suggest, however, of course without the benefit of submissions from counsel, that the provisions should be construed as mandatory or imperative and not merely directory. And I say this for two reasons.
  2. First, the integrity of the electoral process must be protected at all costs. The whole scheme of the Organic Law advances that notion. Hence, when it comes to voting (and nomination for that matter) only persons whose names appear in the certified list of electors are allowed to vote. Clearly it is the intention of Parliament to ensure that electoral process is conducted legally and transparently from enrolment to polling, and to the scrutiny of the vote so that citizens can lawfully and freely exercise their right to vote or stand for elective office.
  3. Secondly, the provision provides a penalty or consequence for negative answers or a refusal to answer any of the questions posed therein – the non-admission to vote. These to me clearly bespeaks of a mandatory duty on a presiding officer to ensure that he only allows electors or registered voters to vote.
  4. And so, in a situation where the Commission allows the nomination of an unqualified candidate, I am of the considered view that the Commission should be estopped from raising any objection on locus standi or standing. The Commission cannot be allowed to benefit from its agents’ dereliction of duty and lack of due diligence in ensuring the integrity of the whole election process.
  5. A petitioner whose nomination was not objected to or rejected by the Commission through its duly appointed Returning Officer, should enjoy a presumption of legitimacy of his nomination. Such presumption may be rebutted but only by the winning candidate (the first respondent in petitions) because, despite his right to object, he cannot be expected to be present at the place of nomination throughout the nomination period, and most importantly did not administer, vet, and supervise the nomination process.

ISSUE NO. 4: WHETHER THE PETITIONER HAS PLEADED SUFFICIENT AND NECESSARY FACTS ON THE ALLEGED INSTANCES OF BRIBERY


  1. Part III Division 3 of the Criminal Code comprehensively prescribes criminal offences or illegal practices associated with elections. Section 103 relevantly provides for the offence of bribery, in all its forms, in so far as elections are concerned in the following terms –

103. Bribery


A person who–

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

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

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

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

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

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

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

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

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

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

is guilty of a misdemeanour.

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

  1. For a petitioner to succeed in overturning the result of an election on the ground of bribery, he must plead the essential elements of bribery and the relevant and material facts constituting the essential elements of the offence and of course ultimately prove the offence beyond a reasonable doubt. For a petition to proceed to trial, it must necessarily plead these elements. According to the Supreme Court in Paru Aihi v Peter Isoaimo (2013) SC1278 (Kandakasi J (as he then was), Hartshorne and Yagi JJ) the following must be pleaded in the petition –

122. Where the alleged bribe was given by a person other than the person returned at the election, it must also be pleaded (and proved later at trial) that the act of bribery was done with his or her knowledge or authority. This in my view is necessary by implication because s. 215 (3)(a) of the Organic Law provides that the Court “shall not declare that a person returned as elected, was not duly elected or declare an election void ... on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority.” I held this view in Yagama v Uguro (2018) N7135) which the Supreme Court upheld on appeal in Yagama v Uguro (2018) SC1682. At paragraph 22 of its judgment the court there said –

22. The second submission challenged his Honour’s finding that “knowledge and authority” was an essential allegation which was not pleaded. We agree with his Honour that it was an essential element of the allegation of bribery that the proscribed activity was undertaken by Mr. Bennedy Kukuty with the knowledge and authority of the first Respondent. It was insufficient for that purpose to allege that he was a “strong supporter of” and/or “a campaign coordinator for” the first Respondent. It is not to be inferred from those facts that the first Respondent knew of or authorised the illegal practice allegedly perpetrated by Mr. Kukuty.

123. The Petitioner in the instant case pleaded six instances of alleged bribery committed either by the First Respondent directly or indirectly by his agents. I will consider these individually against the respondents’ objections to their competency.

124. In so doing, I am guided by s. 217 of the Organic Law which stipulates that the Court “shall be guided by the substantial merits and good conscience of [the] case without regard to legal forms, or technicalities, or whether the evidence before it is in accordance with the law on evidence or not.”

125. I am also aware of what the full five-men Bench of the Supreme Court said in Hagahuno v Tuke (supra.) when it unanimously adopted and approved the liberal approach to dealing with election petitions as espoused in Jimson Sauk v Don Polye (supra) and other earlier cases which sought to depart from the strict approach espoused in Delba Biri v Ninkama (supra.)

126. Anyone who meets the qualifications of s. 50 and 103 of the Constitution and other requirements under the Organic Law is an eligible voter. However, it does not necessarily follow that he is an elector to qualify him/her to participate in the electoral process either as a voter and/or a candidate. He may only do so if he is an elector within the meaning of the term in the Organic Law. And so, until and unless he registers or enrols, and his name appears on the Common Roll, he remains merely an eligible voter. The terms “Elector” and “eligible voter” in my view do not mean the same thing nor can they be used interchangeably. If the meaning of the term “elector” can be stretched and given a liberal construction beyond the definition under s 3 of the Organic Law, as stipulated by Schedule 1.5 of the Constitution, then, only the term “registered voter” can be extended to the meaning of the term.
C. THE GROUNDS upon which the Petitioner relies are:


C1. Bribery with Cash Money Distribution contrary to Section 215 (1) of the Organic Law and Section 103 (d) of the Criminal Code


The Particulars of First Instance of Bribery with Cash Money Distribution by the First Respondent contrary to Section 215 (1) of the Organic Law and Section 103 (d) of the Criminal Code


(a) On the 29th of July 2022, the First Respondent went by Helicopter and landed at Karama Village beach front at 2;30pm for campaigning. He finished campaigning at 5:45pm.

(b) He then left by dinghy to Karama Bridge. There he personally gave K12, 000.00 in hard cash to Karama Village, Ward 6 Ward Member namely Hon. Jimmy Hui Eko. Hon. Jimmy Hui Eko is an adult eligible voter.

(c) Hon. Jimmy Hui Eko then redistributed the money received among other eligible voters including Mr. Henry Loroi.

(d) Mr. Henry Loroi, who is an eligible registered voter, received K100.00 with the message telling him and those other eligible voters who also received their shares of the money to vote for the First Respondent by giving him their first preference vote.
  1. The giving of the cash money in the sum of K12, 000.00 by the First Respondent and redistribution of the money amongst eligible voters including Hon. Jimmy Hui Eko and Mr. Henry Loroi amounts to bribery under Section 103 (d) of the Code in that it was done so with an intent to cause an inducement of the eligible voters to vote in a particular way which was to elect the First Respondent [s.103 (a) (iii)].

127. I have heard and considered the submissions of counsel on this first alleged instance of bribery. I am satisfied that the date of the offence, the name of alleged bribe giver, the names of persons allegedly bribed, and the requisite intention are sufficiently pleaded in the Petition.


128. The Petition, however, failed to plead that the persons who are alleged to have been bribed by the First Respondent i.e., Hon. Jimmy Hui Eko, Henry Loroi and other unnamed villagers were electors. On the contrary, these persons are described merely as eligible voters, which term, as I have held above, does not have the same meaning as elector as defined under the Organic Law or registered voter – a liberal and rational extension of the term elector.


129. Secondly, if the petitioner intended to allege or charge that Hon. Jimmy Hui Eko bribed Henry Loro and those unnamed villagers were also bribed, then, he failed to plead that he did so with the knowledge or authority of the Frist Respondent. This, as I said, is an essential element of the offence of bribery which must be pleaded so that the First Respondent is appraised of what he is to meet at trial. A petitioner should not expect, and the Court should not draw any inferences as to knowledge or authority, ostensible or otherwise, of the alleged bribe by a winning candidate from the averments in the petition. Inferences and conclusions are normally drawn from the evidence at the end of the trial.


130. This alleged instance of bribery is therefore incompetent for failing to plead that the persons allegedly bribe were electors, and for failing to plead that the act of bribery was done with the knowledge or authority of the First Respondent. It is therefore dismissed.


The Particulars of Second Instance of Bribery with Cash Money Distribution by the First Respondent contrary to Section 215 (1) of the Organic Law and Section 103 (d) of the Criminal Code.


(a) On the 12th of June 2022, the First Respondent met with the 12 Clans of Iokea Village and stayed whole night with them at the village till the next morning on 13th June 2022. He gave K500.00 hard cash to each of the Clans on that night at the village. Upon giving of the money, the First Respondent asked the clan members most of whom were eligible voters to give him their first preference vote.

(b) From the K500.00 given by the First Respondent, Mr. Max Haiveta received K10.00 in cash as his share from his clan’s share of K500.00. Mr. Max Haiveta is an eligible voter.
  1. The giving of the cash money in the sum of K5, 000.00 by the First Respondent to each of the 12 Clans of Iokea and redistribution of the money amongst eligible voters of the 12 Clans including Mr. Max Haiveta amounts to bribery under Section 103 (d) of the Code in that it was done so with an intent to cause an inducement of the eligible voters to vote in a particular way which was to elect the First Respondent [s.103 (a) (iii)].

131. This second instance of alleged bribery is also incompetent and should be dismissed. The petition pleads that the First Respondent gave K500.00 each to the 12 Clans of Iokea (which are not named) on 12 June 2022. From his unnamed clan’s share Mr. Max Haiveta received K10.00. The petition does not state who gave him his share of the bribe money. Finally, and most importantly, Mr. Max Haiveta is pleaded merely as an eligible voter and not as an elector or a registered voter.


The Particulars of Third Instance of Bribery with Cash Money Distribution by the First Respondent contrary to Section 215 (1) of the Organic Law and Section 103 (d) of the Criminal Code.


(a) On the 30th of July 2022 at about midday (12:00 noon), the First Respondent went by Helicopter for campaign to Elava village.

(b) He campaigned for 10 – 15 minutes. After that, he gave K12, 000.00 in hard cash to Mr. Fose Koaru to be redistributed to individual eligible voters of Elava Village with the condition that they should vote for the First Respondent with the First Preference Vote. Mr Fose Koaru is an eligible voter, hence was being induced in that manner.

(c) Mr Harry Karama who is an eligible voter was given his share of the money with the same condition that he should give his first preference vote to the First Respondent.
  1. The giving of the cash money in the sum of K12, 000.00 by the First Respondent to Mr. Fose Koaru of Elava Village and the redistribution of the money amongst eligible voters of the village including Mr. Harry Karama amounts to bribery under Section 103 (d) of the Code in that it was done so with an intent to cause an inducement of the eligible voters to vote in a particular way which was to elect the First Respondent [s.103 (a) (iii)].

132. In respect of these alleged instances of bribery the Respondents contend the pleadings offend s 208 of the Organic Law in that it failed to plead necessary and sufficient facts to constitute bribery by agents of the First Respondent. The Petition, it is argued -


(a) Failed to demonstrate that the alleged bribery was done with the knowledge and authority of the First Respondent,

(b) Failed to plead that the recipient of the alleged bribe was an elector that actually took part in casting his vote for the First respondent,

(c) Failed to demonstrate how the election for the Gulf Regional Seat would be affected by the alleged bribery.

133. The Petitioner submitted that the material facts are sufficiently pleaded not only in the particulars pleaded but elsewhere in the supporting facts.


134. I am of the view that the pleadings in this alleged instance of bribery also lack sufficient and material facts. Like the previous allegations, the Petitioner does not plead all the necessary facts which constitute the essential elements of bribery. The most glaring of these are the failure to plead that Mr. Fose Koaru was an elector, and if it is being further alleged that Mr. Koare bribed other electors, such electors are not named, nor was it pleaded that this was done with the knowledge or authority of the First Respondent.


  1. These are basic material facts that must be pleaded in the Petition. They were not, and so this allegation is also incompetent and must be dismissed.
  2. On the respondents’ objection that the Petition failed to plead that Mr. Koaru was and an elector who actually took part in casting his vote for the First Respondent, I agree as I have held above that the Petitioner failed to plead that he was an elector. However, to go further and say that the Petitioner must also plead that Mr. Koaru actually took part in casting his vote for the First Respondent is not a requirement of s 208 of the Organic and in fact runs against the fundamental principle of secrecy of the ballot or of voting.

C2. Bribery with Cheque Payment contrary to Section 103 (d) of the Criminal Code


The Particulars of First Instance of Bribery with Cheque Payment contrary to Section 103 (d) of the Criminal Code


(a) On the 22nd of July 2022, Mr. Mika Mauka who is the Electoral Coordinator for the First Respondent hand-delivered a K1,200.00 Cheque (No. 2368) dated 11th May 2022 to Hon. Vaii Ori at his residence at Kupula, Uriri village, Ward 6, Central Kerema LLG. Hon. Vaii Ori is an eligible registered voter.

(b) The drawing and presentation of the Cheque was done with the knowledge of the First Respondent as the incumbent Governor of the 2017 to 2022 term of parliament.

(c) Upon being surprised with presentation and receipt of the mysterious Cheque, Hon. Vaii Ori denied applying for any form of funding from the First Respondent’s DSIP Funds or the Gulf Provincial Government.

(d) As such, Hon. Vaii Ori refused to cash out the questionable Cheque which presently remains uncashed.
  1. The drawing and presentation of the Cheque of the sum of K1,200.00 by Mr. Mika Mauka with the knowledge and awareness of the First Respondent to Hon. Vaii Ori amounts to bribery under Section 103 (d) of the code in that it was done so with an intent to induce Hon. Vaii Ori who is an eligible voter to vote in a particular way which was to elect the First Respondent [s.103 (a) (iii)]
  2. I have considered the facts pleaded in support of this allegation of bribery. This ground prima facie appears to be competent as it sufficiently pleaded all the necessary elements of the offence of bribery. It pleaded the date of the alleged act of bribery, the alleged bribe giver, and the name of the person allegedly bribed, the person allegedly bribed was a registered voter, the alleged intended purpose of the property given, and that the alleged act of bribery was done with the knowledge or authority First Respondent are all sufficiently pleaded to meet the requirement of s 208 of the Organic Law.
  3. However, the voiding of elections for illegal practices is subject to s 215 of the Organic Law which provides -

215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

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

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void–

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. (Underlining supplied)


  1. This provision makes a distinction between the consequences of direct acts of bribery (subsection (1) by a winning candidate and those acts done or attributed to a third party with knowledge or authority of the winning candidate. (Subsection (3)(a))
  2. Clearly, where a successful candidate is found to have directly committed or attempted to commit bribery or undue influence directly, his return must and shall be declared voided. This prescription is without qualification. It does not matter how many acts of bribery or undue influence or attempts thereof were committed or what the value of the alleged bribe was. The finding of one single act of bribery, whatever the value of the bribe was, or undue influence or attempt thereof, is all that is required to void an election. Furthermore, whether that single act likely affected the result of the election is of no consequence.
  3. Parliament’s intention here is clear. Given the singular purpose of elections in a democratic society governed by the rule of law, which is to accord citizens the right to have a representative voice in the affairs of governance by electing their representatives, or to stand for public elective office, it is important that persons who bribe their way into or exert undue influence upon voters to get into public elective office are not allowed to benefit from their criminal behaviour. It stands to reason therefore that direct acts of bribery or undue influence or attempts thereto by a successful candidate must result in the voiding of his election, be it for a single or multiple acts of bribery or undue influence.
  4. As for proven acts of bribery and undue influence or attempts thereto by a third party with the knowledge or authority of a successful candidate, Section 215 (3) (a) of the Organic Law stipulates two qualifications for the voiding of an election in such circumstances. The court must be satisfied that (1) the result of the election was likely to affected, and (2) it is just that the successful candidate be declared not duly elected or that the election is voided.
  5. The Respondents submitted that the Petitioner must also plead that the alleged act of bribery must have affected the result of the election and that it is just to declare the successful candidate was not duly elected or that the election be declared void pursuant to s 215 of the Organic Law.
  6. They rely on the pronouncement of the Supreme Court in Amet v Yama (2010) SC 1064 (Salika DCJ (as he then was), Batari and Davani JJ). There their Honours Salika and Batari held (reading from the head notes) that under s 215 (3)(a) of the Organic law (a) the “knowledge” or “authority” of a candidate to any illegal act or undue influence is an essential element of the ground, (b) it must be pleaded that the act relied upon was likely to affect the election result, (c) it is helpful to plead the number of votes received by the winner and runner-up to determine whether or not the resulted was likely to be affected and (d) it is a requirement that the petition plead that it is just that the result of the election should be declared void.
  7. In this case the Petitioner failed to also plead that the alleged act of bribery was likely to affect the result of the election and that it is just that the election be voided. He further failed to plead the number of votes received by the First Respondent and the runner-up to show at this stage whether the election was likely to be affected.
  8. For this alleged instance of bribery, where only one person was allegedly bribed, I fail to see how the one vote by Mr. Vaii Ori could ultimately affect the result of the election when the number of votes the First Respondent polled and those polled by the runner-up were not pleaded.
  9. Furthermore, I should add that where it is alleged that the act of bribery was done by a third party with the knowledge or authority of the successful candidate, I agree with the respondents that the petitioner must plead the words and actions uttered firstly by the First Respondent (if known), but more importantly those of the third party when offering the alleged bribe to an elector or electors. These are a material and relevant facts which must be pleaded to forewarn a respondent so he can prepare his defence.
  10. Intention is a state of the mind and is manifested normal through speech and actions. And when money, property, food stuff, or gift is allegedly given with intent to induce an elector to cast his vote in favour of a certain candidate, a petitioner must necessarily plead the utterances made by the bribe giver. A successful candidate whose return is being challenged must know in advance what he is to meet at trial.
  11. In saying that, I am fully aware that the Supreme Court in Hagahuna v Tuke (supra) had roundly disapproved those cases where the court had dismissed petitions for not pleading that the result of the election was likely to be affected on the basis that that is not a requirement of s 208 of the Organic Law. However, I agree with what the Supreme Court said in Amet v Yama (supra.), albeit a 3-men Bench only. It is not sufficient to simply plead generally that the results of an election are likely to be affected and that it is just that an election voided. Rather a petitioner must plead relevant and material facts such as the numbers polled by the successful candidate and the person who came second.
  12. Coming back to the instant case, the petitioner here had failed to plead that the election was likely to be affected and that it was just that the election be voided. Most importantly he failed to plead material and relevant facts from which it can be shown that the election was likely to be affected such as the number of votes polled by the First Respondent and the number polled by the person who came second. He also failed to plead the words uttered by the First Respondent or Mr. Mauka when presenting the cheque to Hon. Vaii Ori. This is not pleading the evidence, but relevant and material facts which must be pleaded so that the respondents are appraised of what they will meet if the matter proceeds to trial.
  13. For these reasons, I find this ground to be also incompetent and it must also be dismissed.

The Particulars of Second Instance of Bribery with Cheque Payment contrary to Section 103 (d) of the Criminal Code


(a) Under the leadership of the First Respondent as incumbent Governor of Gulf Province for the 2017 to 2022 term of Parliament, the First Respondent made a payment of K1.5 million to the Second Respondent as support from Gulf Provincial Government to conduct the 2022 National General Election in the Province.

(b) Radio Gulf confirmed on Friday the 05th of August 2022 at the State House, where the RO officially announced the declaration of the First Respondent as Governor elect for Gulf Province and concluded by thanking the First Respondent for funding the Election in Gulf Province.

(c) The RO thanked the First Respondent for funding the Gulf Regional Election.
  1. The drawing and presentation of the Cheque of the sum of K1.5 million by the First Respondent to the Second Respondent amounts to bribery under Section 103 (d) of the Code in that it was done so with an intent to induce the RO to procure the return of the First Respondent in the 2022 National General Election as Governor for Gulf Province [s.103 (a) (iii)].
  2. This ground is hopelessly incompetent. It does not plead any of the essential elements of bribery. It is largely speculative to say the least. It does not plead material and relevant facts such when the alleged bribery was made, which elector was bribed and by whom, or who raised the cheque for instance.
  3. The Petition does not plead who handled the cheque or whether the First Respondent did so himself. But in the normal course of government business, it could reasonably be assumed that the cheque would have been given over to the Electoral Commission through the Office of the Provincial Administrator as administrative head of the province. If that were the case, then the Petitioner similarly failed to plead that the alleged act of bribery likely affected the election and that it is just to void the result. Furthermore, the Petitioner failed to plead the relevant number of votes polled by the First Respondent and whoever came second.
  4. The averment that the drawing of a cheque of K1.5m by the Gulf Provincial Government where the First Respondent was the sitting Governor to the Electoral Commission to run the General Elections in Gulf Province to induce the return of the First Respondent for the Provincial or Regional Seat, is wildly speculative and is only a figment of irrational imagination.
  5. This ground does not require any serious consideration. If anything, the Provincial Government is obligated to assist in the conduct of elections, if not by the Organic Law itself or policy direction by the Executive Government. The Constitution, s 225 which provides that the National Government, all government bodies, and all public officeholders etc. shall provide assistance to Constitutional Officeholders. In our case the Electoral Commissioner is one such Constitutional Officeholder.
  6. This ground is therefore incompetent and must be dismissed.

C3. Bribery with Food Stuff contrary to Section 103 (d) of the Criminal Code


The Particulars of Instance of Bribery with food stuff contrary to Section 103 (d) of the Criminal Code


(a) On the 08th, 10th and 12th of July 2022, the First Respondent provided to his various agents and supporters food stuff to be redistributed amongst more eligible voters from various LLGs and villages of the two districts of Kerema and Kikori in Gulf Province.

(b) Upon redistribution of the food, the First Respondent’s agents and supporters asked the recipients of the food who were eligible voters to cast their votes to the First Respondent.

(c) The recipients of the food consumed the food and voted for the First Respondent in return.
  1. The provision and redistribution of the food stuff by the First Respondent and his agents and supporters were undertaken with the intent to induce the eligible voters to vote in a certain way which is to elect the First Respondent at the 2022 National General Election.
  2. For clarity, the supporting facts pleaded in support of the above are as follows; On 10th July 2022, Mr. John Pawenato from Kaintiba, resident at Kerema Town followed on his claim for his singsing group to the Office of the First Respondent as the incumbent Governor. However, he went straight to the State House the official residence of the First Respondent in Kerema Town. Mr. Pawenato went in at a time when the Governor’s committee members were distributing food stuffs to eligible voters. There were ten (10) groups of food and one of the groups was for Ward 1which picked up by Hon. Michael Paku. The food stuffs were, however, given to Mr. Pawenato in Hon. Paku’s absence. Mr. Pawenato then passed on the food to Mr. Paku. Mr. Paku then dis tributed the food to his Ward members and asked them to give their first preference vote to the First Respondent. Mr. Pawenato was given 1 x 5kg rice packet, 1 x tinned fish and 1 x sugar packet.
  3. On that same date, [10th July 2022], Mr. Michael Kapera, Mr. Ehoo Koi and Mr. Manu Pai were at Uaripi Village. About 8.00pm to 9.00pm, Mr. Micky Pouta arrived with dinghy load of food stuffs. Mr. Micky distributed the food stuff the same night and was telling people which included eligible voters to vote for the First Respondent. The counting from Uaripi resulted in the First Respondent polling 343 votes and the two local candidates Mr. Kasi Kakaito polling 90 votes and Mr. Jim Taparu polling 40 votes.
  4. This ground is also incompetent. While it pleads the dates, the names of alleged bribe givers and persons allegedly bribed in the supporting facts, and that the giving of food stuff by the First Respondent and that the distribution thereof by named third parties was intended to induce the recipients to vote for the First Respondent, the recipients are merely pleaded as eligible voters and not electors or registered voters.
  5. Unless these persons are electors or registered voters, they remain eligible voters only and cannot vote. Hence it should follow naturally that bribing them will have no impact on the election, lesser still on the election return.
  6. To be exact, while Mr. Pawenato and Mr. Paku are named, the names of the persons allegedly bribed are not pleaded. These persons including Paku and Pawenato are merely pleaded as eligible voters and not electors or registered voters.
  7. Furthermore, neither Mr. Michael Kapera, Mr. Ehoo Koi nor Mr. Mai were pleaded as electors or registered voters. Similarly, the alleged recipients of the food stuff are neither named nor pleaded as electors or registered voters.
  8. The pleadings on these alleged acts of bribery which involve third parties also failed to plead the elements under s 215 (3) (a) of the Organic Law. Like the above grounds, the necessary material and relevant facts were not pleaded.
  9. These pleadings are in my considered view insufficient to meet the requirements of s 208 of the Organic Law and s 103 of the Criminal Code. This ground is therefore incompetent and should be dismissed.

POLLING & COUNTING IRREGULARITIES

  1. When challenging an election result on alleged irregularities, errors or omissions by the Electoral Commission and its agents a petitioner must also plead material and relevant facts pertaining to the alleged irregularities, errors, or omissions. In addition, he must also plead relevant and material facts which show that these errors or omissions affected the result of the election if the election is to be ultimately voided. These points are brought to the fore by s 218 of the Organic Law which relevantly provides:

218. Immaterial errors not to vitiate election

(1) Subject to subsection 2, an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

166. In Sai-Sailon Beseoh v Yuntivi Bao (2003) N2348 Injia J (as he then was) said this of s. 218 -

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.

  1. In Kikala v Electoral Commission (2013) SC 1295 reiterated the need to plead allegations distinctively especially when illegal practices and irregularities, errors or omissions are alleged. In that case it was not clear whether illegal practices or errors and omissions were being alleged. And so, at para. 52 the court said –

There is a difference between those two types of irregularities. An illegal practice is a criminal offence that is proscribed by the Organic Law or the Criminal Code; whereas an error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction (Mune v Agiru (1998) SC590, Karo v Kidu [1997] PNGLR 28, Manase v Polye (2008) N3341). A petition must make it clear whether an illegal practice or an error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proven (Eoe v Maipakai (2013) N5066). Section 215 of the Organic Law deals with illegal practices, while Section 218 of the Organic Law deals with errors or omissions.

168. Recently in Wararu v Maru (supra.), Shepherd J added at p.61 –

61. One of the fundamental reasons why it is so important to distinguish in a petition between electoral misconduct that is alleged to be an “illegal practice” (s.215) as distinct from electoral irregularities such as “errors and omissions” (s.218(1)) is because different considerations apply. If what is alleged is an “illegal practice” which constitutes a criminal offence, such as bribery (s.103 of the Criminal Code), the onus of proof is heavier and the penalties more severe than if the allegations are of a non-criminal nature, such as electoral irregularities and omissions covered by s.218 of the Organic Law. But in all election petition cases, the onus of proof must be discharged to the entire satisfaction of the Court, although the standard of proof for ”illegal practices” is higher than that for “errors and omissions” because “illegal practices” being criminal in nature, must be proven close to the criminal standard of “beyond reasonable doubt”: Warison v Arore (2015) SC1418 (Gavara-Nanu, Yagi, Poole JJ); Powi v Kaku (2022) SC2290 (Kandakasi DCJ, Yagi, Makail JJ).

169. That being said, the court should never lose sight of the stipulation under s 217 of the Organic Law that the “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” so that real justice is not only observed and done but also seen and believed to be done.

170. I again take recognizance of what the Supreme Court in Hagahuno v Tuke said in this respect. Cases are, however, not the same and will normally be decided on the own merits and circumstances.

171. I now turn to the instant case. I enumerate these allegations of polling and counting irregularities here below. Given the way they were pleaded I intend to deal with them together.

172. At this juncture, I wish, however, to state that the allegations of tempering with ballot boxes and hijacking of the Return of Writs are illegal practices and not irregularities, errors, or omissions. Tampering with a ballot box is an offence under s 191 (Electoral offences) of the Organic Law for instance. These allegations should have been pleaded together with the bribery allegations because the test and consequences of such practices are distinct from those of errors and omissions. Illegal practices are the subject of s 215 while errors and omissions are covered under s 218 of the Organic Law.

173. In respect of these allegations, I find that they suffer from the same defects as the allegations of bribery. The Petitioner here failed to plead and show with material and relevant facts that the alleged illegal practices likely affected the election result and that it is just to invalidate the election of the First Respondent. They are incompetent and therefore ought to be dismissed as well.

174. I will now deal with the remaining allegations of polling and counting irregularities, and as I said I will deal with them together.
C4. Electoral, Polling & Counting Irregularities, Errors and/or Omissions and Tempering


The Particulars of various instances of Electoral, Polling & Counting Irregularities, Errors and/or Omissions and Tempering


(a) The Petitioner adopts pleadings under paragraphs 6 to 11 and paragraphs 23 & 24 and paragraphs 27 to 30 inclusive as herein above pleaded as the body of necessary and specific details constituting the ground of Electoral, Polling & Counting Irregularities, Errors and/or Omissions and Tempering.

(b) The various instances of Electoral, Polling & Counting Irregularities, Errors and/or Omissions and Tempering collectively affected the result of the election in which the First Respondent was declared as returned.

175. The relevant facts pleaded for these alleged polling and counting irregularities are these –


  1. On 9th July 2022, Polling in Iokea, Team 15 was not conducted at the Gazetted Polling Area. Consequently, the following discrepancies were being committed at the unsanctioned location:
  2. Presiding Officers Journals for Team 10, Team 11, Team 13, Team 15 and Team 16 in East Kerema LLG have not corresponded with the figures of the Ballot Papers when declared at the Counting room by Presiding Officers.
  3. Mr. Despond Goga the Assistant Returning Officer (ARO) tempered with Box which belongs to the First Respondent by doing the following:
  4. Formal counting practices were not followed by the RO and Counting Officials in that when irregularities were identified like completion of Forms 661A and Forms 662A prior to Quality Checks, Scrutinize Ms. Hannah Patrick with the support from other Scrutineers raised the issue with the RO. The RO told them that he had no time to deal with these little issues so they need to take it to court since the writs will be returned on 29th of July 2022, they needed to speed up counting despite the issues raised.
  5. The Ballot Papers Serial Numbers in the Presiding Officers reports for Team 11, Team 13, Team 15, Team 16 in East Kerema LLG where the First Respondent comes from, the Moripi Tribe.
  6. Balancing of the of exhausted ballot papers never balanced at the elimination. When the RO asked why the boxes never balanced, he simply did not explain, His blunt response was to take note and move on. However, these papers were thrown into exhausted bin which consequently reduced the absolute majority 50% + 1 margin.

................


27. The RO secretly signed the Return of Writs and declared the First Respondent prematurely while the counting was still in progress. When questioned by the Security personals that he was wrong, he admitted by telling them that he was not happy why the return of writs was already in the plan.


28. The Kerema and Kikori open Electorates total population never balanced the total Regional voting population.

Particulars of the discrepancy between total voting population of the Districts and the Districts and Regional Seats

(a) Kikori District total voting population = 31, 564
(b) Kerema District total voting population = 51,800
(c) Total of the distributed votes from Counting Centres = 83, 364
(d) Total of the Distributed votes from the Electoral Commission website = 83, 495
(e) A difference of 131 extra votes according to the Second Defendant’s official website.

29. The counting officials names mentioned in the Sorting/ Counting Table, Morgan Meferamu, Joe Pao, Martin Makeo, Chris Wakon. Paul Kose and Mr. Poevare Tore are related through marriage and through clan and tribe connections to the First Respondent with none from Kotidanga LLG, Kaintiba LLG, Ihu LLG, Baimuru LLG, East Kikori LLG and West Kikori LLG. It was a team comprising of only Mopiri, Mailovera and Toaripi officers who are tribesmen of the First Respondent.


30. On 03rd of August 2022, the RO compromised his position by attempting to skip counting in Kaintiba LLG and Kotidanga LLG which accounted for 30 – 70 and jumped to Kikori Open Electorate LLG areas including Ihu LLG, Baimuru LLG, East Kikori LLG and West Kikori LLG with the intention of ensuring that the First Respondent maintains his lead and to quickly reach the Absolute Majority of 50+1 before other candidates especially the Petitioner equals or topples the First Respondent. The RO was challenged by the scrutineers to stop his favouritism conduct and follow the traditional voting schedule or pattern of voting starting from Urban Kerema, Central Kerema, East Kerema, Taure Lakekamu LLG, Kaintiba LLG, Kotidanga LLG, Ihu LLG, Baimuru LLG, East Kikori LLG, and the last is West Kikori LLG.


176. So, has the Petitioner pleaded relevant and material facts upon which this ground can proceed to trial. In other words, is this ground competent?


177. The requirements to plead relevant and material facts equally applies to bribery allegations and allegations of polling and counting irregularities or errors and omissions by the Commission and its agents except that for the latter the pleadings must not only satisfy the requirements of ss 208 (a) but also s 218 of the Organic Law. Section 218 (Immaterial errors not to vitiate election) essentially provides that an election shall not be voided on account of administrative errors or omissions by officers of the Commission unless the result of the election was affected.


178. It is imperative therefore that a petition must plead in addition to allegations of errors or omissions that the elections was affected. However, pleading merely that the election was affected is not sufficient. A petitioner must further plead material facts showing how exactly the election was affected.


179. Has the Petitioner in the instant case done that? Yes, he did plead facts pertaining to what he alleged were polling and counting irregularities and that these affected the result of the election. He pleaded figures that showed the number of votes cast in the two Open Electorates of Kerema and Kikori and showed that the votes did not correspond with the total voting population posted on the Second Respondent’s official website. He showed that there was a discrepancy of 131 more voters from the Second Respondent’s numbers. Was this figure, however, sufficient to show that the election was affected by this discrepancy?


180. I do not think so. I am of the considered opinion, and to that end I agree with respondents, that the Petitioner failed to plead the relevant and material facts to show that the election was affected. These are the total number of votes polled by the First Respondent, the second runner-up and of course the Petitioner himself. This is important because if he alleges that the election was affected by errors or omissions of the Second Respondent, then at the very least, as a foundation, for his challenge to the results on this ground, such fact must be pleaded. Otherwise, the Respondents and the Court are left to wonder what they will meet at the trial and the respondents may not be put up a good defence to answer the allegations.


181. This ground is therefore also incompetent and ought to be dismissed as well.


CONCLUSION


182. For the above reasons the petition is therefore dismissed in its entirety for being incompetent.


COSTS


183. Costs ought to ordinarily follow the event. However, the First Respondent unnecessarily filed the Notice of Motion dated 02nd August 2023. He should therefore pay the costs of the Petitioner in relation to and incidental to that Notice of Motion.

ORDERS

(1) The respondents’ objections to the competency of the petition are upheld in part.

(2) The petition is dismissed as being incompetent in its entirety.

(3) The First Respondent shall pay the Petitioner’s costs in relation to and incidental to the First Respondent’s Notice of Motion dated 02nd August 2023 to be taxed if not agreed upon.

(4) The Petitioner shall pay the First and Second Respondents’ costs incidental to the petition which shall be taxed if not upon.

(5) The Registrar shall release forthwith to the Respondents the deposit of K5,000 paid by the Petitioner to the Registrar pursuant to s.209 of the Organic Law on National and Local-level Government Elections, as security for costs, to be applied in equal sum by the Respondents towards settlement of their costs in relation to this proceeding.

(6) The Registrar shall, pursuant to s.221 of the Organic Law on National and Local-level Government Elections, promptly forward to the Clerk of the National Parliament a copy of this Order.

Ordered accordingly.
___________________________________________________________
Gibson Bon Lawyers: Lawyers for the Petitioner
Greg Manda Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent


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