N10122
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 70 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
MARKHAM OPEN ELECTORATE

GENGEWE NERITHA GANZIK
Petitioner

V

THE HON. KONI IGUAN, MP
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Narokobi j
2023 :8th, &14th February

ELECTIONS – PETITIONS – objections to competency of petition – Organic Law on National and Local-level Government Elections, grounds of a petition, whether petition raises recognisable grounds to challenge an election petition, s 208 (requisites of petition) – s 208(a): whether facts relied on to invalidate the election adequately pleaded

The Petitioner alleges in her Petition that the power relied on to declare the First Respondent as the member for Markham open electorate under s 175(1A)(b) of the Organic Law on the National and Local-Level Government Elections is unconstitutional and a reference was sought to the Supreme Court to determine the question under s 18(2) of the Constitution. Both Respondents filed objection to competency. In essence, both objections were that the Petition did not raise any known grounds to challenge an election petition and secondly, the pleadings did not meet the requirements of s 208(a) of the Organic Law on the National and Local-Level Government Elections. The Petitioner has also objected to the Second Respondents Objection to Competency on the basis that it was filed out of time. 

Held:

(1)	The late filing of an objection to competency does not render it incompetent as an objection to competency can be made at any time. The relevant issue is one of prejudice to the Petitioner and costs. Since the Petitioner only objected to the Second Respondents objection after it moved its application, the objection is refused subject to the issue of costs.

(2)	The Petition does not plead known grounds for disputing an election petition under the Organic Law on National and Local Level Government Elections.

(3)	Since Parliament has conferred on the Electoral Commissioner an additional power under s 175(1A)(b) of the Organic Law on National and Local-Level Government Elections to declare a candidate as duly elected under special circumstances, an improper exercise of this power would be a ground to invalidate an election result.  

(4)	The Petition does not plead material facts to satisfy the requirements of s208(a) of the Organic Law on National and Local-Level Government Elections.

(5)	The Petition is accordingly dismissed with appropriate orders for costs.

Cases Cited:

The following cases are cited in the judgment:

Alfred Manase v Don Polye (2009) N3718
Amet v Yama [2010] PNGLR 87
Bourne v Voeto [1977] PNGLR 298
Delba Biri v Bill Ninkama [1982] PNGLR 342
Hagahuno v Tuke (2020) SC2018
Kikala v Electoral Commission (2013) SC1295
Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814
Tulapi v Lagea (2013) N5235
Turai Elemi v Ano Pala and Electoral Commission (2023) N10112

Counsel:

L Painap, for the Petitioner
BS Lai, for the First Respondent
H Nii, for the Second Respondent

14th February, 2023

1.	NAROKOBI J: Gengewe Neritha Ganzik (“the Petitioner”) challenges the election results of the Markham Open electorate in the 2022 National General Elections (“the Petition”). The Petition was filed on 14 September 2022. The Petitioner names Honourable Koni Iguan, Member of Parliament (MP) as the First Respondent (“First Respondent”) and the Electoral Commission as the Second Respondent (“Second Respondent”). Honourable Koni Iguan was declared as the Member for Markham Open on 8 August 2022. Each of the Respondents have filed Objections to Competency. The First Respondent filed their Objection to Competency on 10 October 2022, and the Second Respondent filed their Objection to Competency on 24 October 2022. I heard both Objection to Competency on 8 February 2023, and reserved to today for my ruling on the objection.

Background  

2.	The background facts surrounding the Petition are not so much in dispute and at this stage not contested. It appears to me that the Petitioner is not taking issue with what occurred, but with the constitutionality of the power granted to the Electoral Commissioner, Mr Simon Sinai under s 175(1A)(b) of the Organic Law on the National and Local-Level Government Elections (OLNLLGE). I gather the facts from the Agreed Facts, the affidavit materials that have been filed, especially from the Petitioner (affidavit of Gengewe Neritha Ganzik (filed 27 October 2022), Mr Simon Sinai ML, Electoral Commissioner of Papua New Guinea (affidavit filed 28 December 2022), Mr Simon Soheke, the Election Manager of Morobe Province or also referred to as the Provincial Returning Officer for Morobe (affidavit filed 23 December 2022), and the affidavit of Willie Pilailo, the Returning Officer for Markham Open electorate (filed 28 December 2022).

3.	Markham Open electorate is one of the nine open electorates in Morobe Province. It has three Local Level Government areas – Umi/Atzera, Leron/Wantoat and Onga/Waffa. The important Highlands Highway runs through this electorate connecting the coast to the Highlands of Papua New Guinea. Madang Province on the west is connected to Lae and the Highlands by road through the highway that runs a large part through the Markham district.

4.	The counting for the Markham Open electorate in the 2022 National General Elections was done at Markham Secondary School, Mutzing Station, Morobe Province. The counting commenced on Tuesday 12 July 2022. On Wednesday 13 July 2022, complaints were received that the figures on the tally board did not correlate with the figures of the candidates. Mr Soheke, the Morobe Provincial returning officer then took over the counting from Mr Willie Pilailo, the Markham Open Returning Officer. Mr Pilailo and his returning officers were not suspended, but only witnessed the counting under the auspices of Mr Soheke. According to Mr Soheke, issues raised by the candidates were resolved and the counting progressed until Saturday 16 July 2022, at about 1pm, when counting was suspended for lunch.

5.	By the time the counting was suspended counting for Onga/Waffa was completed from its nine ballot boxes. Leron/Wantoat had 10 out of 12 ballot boxes counted. Umi/Utzera had eight out of 10 ballot boxes counted. The top five candidates at the time counting was suspended for lunch are tabulated below.

Rank	Candidate Name	Score 	
1	Koni Iguan 	9,113	
2	Gengewe N Ganzik	4,467	
3	Andrew Baing	4,165	
4	Paul Isikel	3,737	
5	Kima Paul	1,998	

6.	At about 2pm of Saturday 16 July 2022 when counting was to resume from the luncheon break, a commotion erupted from disgruntled scrutineers, supporters and a candidate. A crowd developed and they approached the container which housed all the ballot papers for both Markham Open and the Morobe Provincial seat (from Markham open). Attempts to stop them did not succeed. They broke open the container, emptied the ballot papers and set it alight, destroying all the 32,232 ballot papers from the three LLG areas that constituted the electorate. 

7.	On 8 August 2022, the Electoral Commissioner, Mr Sinai exercised his powers under s 175(1A)(b) of the OLNLLGE and declared the First Respondent as the duly elected member for Markham Open under special circumstances based on the report he received from the Provincial Returning Officer, Mr Simon Soheke. Mr Sinai was of the view that since over half the ballot papers had been counted and the destruction of the ballot papers was initiated by losing candidates to force a by-election, which would be very costly, he declared the candidate who was leading at the time to be the duly elected member for Markham open. In the report sent to Mr Sinai, it was highly likely that the First Respondent would win.

The Petition 

8.	The Petition raises the single ground that the powers relied on by the Electoral Commissioner under s 175(1A)(b) of the OLNLLGE was unconstitutional. That provision states:

Where the Electoral Commission has directed the Returning Officer not to declare a result:-

(a)…

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided to the returning officer or an Assistant Returning Officer, (Emphasis added)

9.	The Petitioner pleads that s 175(1A)(b)  is inconsistent with the following provisions of the Constitution:

•	It is inconsistent with s 101 of the Constitution, and the spirit of the Constitution, which requires members of Parliament to be elected (except for members nominated under s 102 of the Constitution).
•	It is inconsistent with s 126 of the Constitution, and the spirit of the Constitution, which also requires members of Parliament to be elected.
•	The Constitution and the spirit of the Constitution does not authorize or permit the Organic Law to include a “special circumstance” provision such as s 175(1A)(b) of the Organic Law to declare the result of an election otherwise than on the outcome of the scrutiny.

10.	The relief the Petitioner then seeks is for the court to declare that the First Respondents election was absolutely void under s 212(1)(b) of the OLNLLGE and to further declare that under s 212(1)(h), the First Respondent was not duly elected.

11.	No specific details surrounding the burning of the ballot papers were pleaded and the circumstances leading up to it were also not referred to.

First Respondent’s Objection to Competency 

12.	The First Respondent filed his Objection to Competency on 17 October 2022. The main contention of the First Respondent is that the Petition failed to comply with s 208(a) of the OLNLLGE. The objection relates to the following paragraphs of the Petition.

13.	Paragraph 5 of the Petition is the first one objected to, which pleads:

On Thursday, the 15th July, 2022, during the counting of the ballot papers in the Tally Room at the Markham Secondary School, Mutzing Station Morobe, before completion of scrutiny, all of the ballot papers and ballot boxes for the entire electorate, and the records of the count to that point, were destroyed by fire by persons unknown.

14.	The First Respondent objects on the basis that the circumstances surrounding this event have not been adequately pleaded, such as to what stage of the scrutiny process the counting was stopped and how many ballot papers were destroyed.

15.	The second objection relates to paragraph seven of the Petition, which states:

On Monday, 8th August 2022 the Second Respondent through the Electoral Commissioner, Simon Sinai, declared the First Respondent as member for the MOE without a scrutiny being completed. 

16.	The First Respondent objects on the basis that the said paragraph failed to plead that it was an unlawful act and further did not state what provisions of the OLNLLGE was breached.

17.	The third objection relates to paragraph 14 in that, firstly, it wrongly refers to the First Respondent as a member of the Southern Highlands Provincial Assembly, and secondly that it erroneously refers to 23 July 2022, as the date of declaration, when the correct date was 8 August 2022. 

Objection to Second Respondent’s Objection to Competency  

18.	The Petitioner has objected to the Second Respondents objection to competency stating that it was filed outside of the time stipulated in Rule 12 of the Election Petition (Miscellaneous Amendments) Rules 2022 (hereafter referred to as the “EP Rules”). The Second Respondent concedes that it failed and served out of time, but nevertheless submits that competency of an election petition can be raised at any time, either at the behest of the parties or upon the initiative of the court. The issue on a belated competency application, is prejudice to the petitioner and whether costs would remedy the inconvenience of a late application. I have had recourse to the Supreme Court decision in Amet v Yama [2010] 2 PNGLR 87, which states that an objection can be raised at any time of an election petition. Since the Petitioner did not raise any issue with the objection being filed late prior to the hearing, and allowed to the Second Respondent to move their application, I will refuse the Petitioners objection and consider the Second Respondent’s objection, subject to the issue of costs (for a more recent National Court judgment on this issue, see EP 64 of 2022, Turai Elemi v Ano Pala and Electoral Commission (2023) N10112 ).

Second Respondent’s Objection to Competency

19.	Having refused the Petitioner’s objection, I now consider the Second Respondent’s objection to competency. The Second Respondents objection to competency can be summarized as having raised two grounds.

20.	The first objection attacks the pleadings of the Petition. This can be found at paragraph 19 of the Second Respondents Objection to Competency. The Second Respondent says that the Petition pleads propositions of law and not the facts. This fails to meet the requirements of s 208(a) of the OLNLLGE.

21.	The second objection is on the basis that the Petition does not raise any identifiable election petition grounds under the OLNLLGE to invalidate the election of the First Respondent. Raising a constitutional question is not a recognized ground to invalidate an election result. 

The Law

22.	The law governing the way an Election Petition is to be framed and brought before the court of disputed returns is governed by ss 208, 209, 210 and 212 the OLNLLGE. The OLNLLGE is supplemented by the EP Rules. Specific parts of these provisions will be referred to during the judgment.

23.	Section 217 of the OLNLLGE is also important as it guides the court in how it should consider an election petition.

24.	Other relevant provisions concerning an election petition are s 215 and s 218 of the OLNLLGE.

25.	Section 208 of the OLNLLGE states:

208.	Requisites of petition.

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

26.	Section 210 of the OLNLLGE then makes it mandatory for an election petition to comply with s 208 and s 209 of the OLNLLGE. Section 210 provides:

210.	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.

27.	Importantly, s 217 then provides:

217.	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.

28.	There have been numerous case authorities on various aspects of an Election Petition. Counsels have ably referred to them. I highlight one at this juncture which has proved to be seminal in the litigation of election petitions, that is the case of Hagahuno v Tuke (2020) SC2018 which deals mainly with s 217 of the OLNLLGE. I have read the case, and I am left with the impression, that it stands for the following propositions (adopted from the headnotes):

•	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 OLNLLGE, 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.

•	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.

29.	I posed the question to Counsels whether s 217 of the OLNLLGE applies to an objection to competency? The Second Respondent submits that Delba Biri v Bill Ninkama was not overruled by Hagahuna v Tuke on this point and that s 217 only applies at the trial stage. What the Supreme Court said in Hagahuna v Tuke on this point was at best obiter. The First Respondent and the Petitioner submits that s 217 also applies to consideration of an objection to competency. I endorse the latter view. A proper reading of Hagahuno v Tuke suggests that s 217 applies to all stages of an election petition, including the consideration of an objection to competency. This view is also supported by the recent judgment of Justice Cannings in EP 64 of 2022, Turai Elemi v Ano Pala and Electoral Commission.

Issues

30.	After reading the Petition and the First and Second Respondent’s Objections to Competency, in my view, two issues arise for determination:

•	Whether the Petition pleads known grounds for disputing an election petition?
•	Whether the Petition sufficiently pleads material facts for purposes of s 208(a) of the OLNLLGE?

31.	Resolving any one of these issues in favour of the Respondents will have the result of terminating the Petition. 

Submissions 

32.	The First Respondent submits that paragraph five of the Petition fails to plead at what point of the scrutiny process the counting stopped and the total number of ballot boxes and ballot papers that were alleged to have been destroyed. To plead that before the completion of scrutiny all of the ballot boxes and ballot papers and the records is insufficient material facts. 

33.	In the First Respondent’s contention,	this is important because the ballot boxes could have been destroyed prior to the commencement of the counting of first preference votes or they could have been destroyed whilst quality checks were being conducted. They could have been destroyed during the exclusion process and if so at what point of the exclusion process? It is submitted that the paragraph as pleaded contains facts that are vague and general. The phrase “before the completion of scrutiny” does not identify at what point in the scrutiny process this incident occurred. The effect of all of this is that paragraph five of the petition should be struck-out for being incompetent and failing to comply with Section 208 (a) of the OLNLLGE. 

34.	As to paragraph seven of the Petition, the First Respondent refers to page two of his Notice of Objection in particular paragraphs (a) and (b) under the heading “Paragraph 7.” No allegation of illegality or unlawfulness of the declaration of the First Respondent on 8 August 2022 is made.

35.	The Petitioner has not pleaded the correct date of declaration as this is a “material fact” for the purposes of s 208 (a) of the OLNLLGE. The Petitioner pleads that the First Respondent was declared on 23 July 2022 and this is when the Electoral Commissioner invoked his powers under Section 175 (1A)(b) of the OLNLLGE  to declare the First Respondent under “Special Circumstances”.

36.	The First Respondent submits that the date of his declaration is critical as that is the date when the 40-day period for the filing of the petition will start running. The conflicting dates of the declaration may prevent the court from granting the relief being sought.

37.	The First Respondent says that the purposes of the Notice of Objection is to address threshold issues such as jurisdiction of the Court to proceed to hearing of the trial.

38.	The First Respondent concludes by referring the court to the authority of Ludger Mond v Jeffrey Nape (2003) N2318 which stands for the proposition that the pleadings drive the evidence that will be led to sustain any allegation of impropriety in the election process. 

39.	For the Second Respondent, it submits that the Petition filed on 14 September 2022, was outside of the mandatory 40 days, calculated from the date of the declaration of results on 23 July 2022, as pleaded in paragraph 14 of the Petition. This is in breach of s 208(e) of the OLNLLGE.  If it was filed on 8 August 2022, as asserted at paragraph seven of the Petition, then the Petition has not pleaded the date of declaration – a material fact – with clarity, and therefore both of these conflicting dates should be struck out.  For it is not the role of the Court to assume or infer the correct date.

40.	The Second Respondent then submits that the Petition does not raise any known grounds for disputing or voiding an election under Part XVIII of the OLNLLGE.  It raises constitutional questions or alleges breaches of the Constitution, which the court does not have jurisdiction to deal with.

41.	The Second Respondent also submits that Paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Petition pleads the law, propositions of law or conclusions of law, and not facts, in breach of the dictates of Section 208(a) of the OLNLLGE and established Supreme Court case authorities.

42.	Finally, the Second Respondent submits that the Petition does not plead material or relevant facts at all or with clarity in accordance with the requirements of Section 208(a) of the OLNLLGE and therefore s 210 of the OLNLLGE prevents the matter proceeding to trial.

43.	In response, the Petitioner firstly submits that the Second Respondent’s Notice of Objection to Competency is irregular as it is not properly before the court. It was filed out of time, contrary to the requirements of Rule 12 of the EP Rules. I have dealt with this question earlier in my judgment.

44.	Secondly, the Petitioner refers to the Agreed Facts. She says that the following was agreed to by all parties, “the scrutiny of the ballot papers for the Markham Open Electorate was not completed due to the destruction of ballot boxes and papers that took place on Saturday 16 July 2022.” According to the Petitioner this is the only fact she wishes to rely on to ground her arguments for purposes of s 208(a) of the OLNLLGE. The Petitioner submits that the election of the First Respondent was absolutely void because no election took place as the term is used under the Constitution or the OLNLLGE. The election was therefore inconsistent with the Constitution.  

45.	As to the two different dates stated in the Petition, the Petitioner submits that the Respondents have all accepted in the Agreed Facts that the correct date is 8 August 2022 and not 23 July 2022, and it is therefore  no longer an issue.

46.	The Petitioner submits that both Notices of Objection to Competency should be dismissed with costs and the matter proceed to trial forthwith.

Considerations

47.	I address both issues together in my consideration of the issues, but at the conclusion answer each of the issue raised specifically and then deal with the grounds of the Petition.

48.	Let me state from the outset that I reject the First Respondent’s contention that the Petition should be negated because it has stated the wrong date for declaration of the Markham open seat as it refers to the First Respondent as a member from the Southern Highlands province. The Petitioner has clearly expressed that it made a typographical error. To then rely on this as the basis to nullify an election petition would be contrary to the dictates of s 217 of the OLNLLGE as interpreted by the Supreme Court in Hagahuno v Tuke by taking a legalistic approach. The fact that the Petitioner made a typographical error is not an issue and this has come out clearly from the Agreed Facts endorsed by all parties. I adopt the approach of Injia CJ (as he then was) in Tulapi v Lagea, that the Petition should be read as a whole to appreciate its meaning. In a sense Tulapi v Lagea prefigured Hagahuno v Tuke. Incorrect dates and wrong references to representation on its own should not invalidate an election petition. It would be nit-picking.

49.	The sole ground of the Petition relates to the unconstitutionality of s 175(1A) of the OLNLLGE as reproduced below:

(1)	The declaration by the Second Respondent under s. 175(1A)(b) of the Organic Law of the First Respondent as the elected member was unconstitutional for the reasons set out under paragraph B.15 of this Petition, and consequently invalid, ineffectual and inoperative.

(2)	The declaration by the Second Respondent under s. 175(1A)(b) of the Organic Law of the First Respondent as the elected member was unconstitutional for the reasons that it was not a fair, free and genuine election contrary to ss. 50, 59 and 126 of the Constitution.

(3)	The declaration of the Second Respondent under s. 175(1A)(b) of the Organic Law of the First Respondent as the elected member void as being unconstitutional, as pleaded in paragraph B of this Petition.

50.	The Second Respondent submits that the Petition does not raise any known grounds of an election petition. Since an election petition is a specific legal process under the OLNLLGE, its outcome can only be challenged by grounds specifically provided for in the OLNLLGE. I accept this submission in part. Disputing an election result is a process that is provided for by law, in this instance, the OLNLLGE. It follows as a matter of course that to establish a proper legal challenge to successfully overcome an election result, one must look to the OLNLLGE to establish where either the incoming member or the Electoral Commission fell afoul of the law. The OLNLLGE and the EP Rules provides a complete regime to litigate an election petition. Anything outside of that may well be suited for a different type of proceedings but cannot have as its relief the overturning of an election result.  The case authorities referred to by Counsel for the Second Respondent on this point are helpful. I reproduce them below and the propositions they stand for:

Case	Proposition of Law	
Bourne v Voeto [1977] PNGLR 298	“There are two types of cases which come before this Court under the Disputed election provisions of the Organic Law and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of corrupt or illegal practices including undue influence” (per Frost CJ)	
Tulapi v Lagea (2013) N5235	“20. … The Grounds upon which an election or return may be invalidated are set out in s 215 (1) (illegal practices - bribery, attempted bribery, undue influence, attempted undue influence), s 215 (3) (a) (other illegal practices); and, s 218 (errors and omissions). They are distinct legal grounds and there are fundamental legal differences between them. The essential and relevant facts pertaining to those grounds are different from those legal grounds.” (per Injia CJ)	
Alfred Manase v Don Polye (2009) N3718	“The results of an election can be set aside if it is alleged in the petition and the evidence proves that (1) there were illegal practices which might have affected the result of the election, and, if the successful candidate is not guilty of any illegal practice, it is still just and equitable that the result of the election be set aside: Section 215 of the Organic Law.  (2) Or where there are errors or omissions on the part of an officer which did affect the result of the election: Section 218(1) of the Organic Law; Dick Mune v Anderson Agiru & ors (1998) SC590”.  (Per Lay J)	
Kikala v Electoral Commission (2013) SC1295	At para 52: “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”. (Per Salika DCJ (as he then was), Cannings and Kariko JJ)	

51.	What can be deduced then from these authorities is that there are two widely accepted categories in which a petition may be run – firstly, illegal practice and secondly, errors and omissions. But the caveat here is that these are grounds where an election is conducted and completed, and a declaration made. This is a different case here, indeed a special case. 

52.	Parliament has conferred on the Electoral Commissioner an additional power under s 175(1A)(b) of the OLNLLGE to declare a candidate as duly elected under “special circumstances.” I would respectfully suggest that an improper exercise of this power would be an additional ground to invalidate a declaration under s 212 of the OLNLLGE by a losing candidate. But obviously this is not pleaded by the Petitioner.

53.	Turning to the Petition, the ground that the Petitioner relies on is that the power exercised by the Electoral Commission under s175(1A)(b) of the OLNLLGE is unconstitutional. The Electoral Commissioner therefore did not have the lawful power to declare the First Respondent duly elected as the member for Markham Open based on the subject provision. The results of Markham open seat should be then invalidated.

54.	The Petitioner did not allege or plead that no special circumstances existed under s 175(1A)(b) of the OLNLLGE; or that the Electoral Commissioner was biased in the way he exercised this power; or that he did not consider all relevant circumstances before exercising this power. But this is not the challenge here. The Petitioner simply launches into attacking the constitutional validity of s75(1A)(b). The Petition does not identify whether there was an illegal practice or an error and or omission by the Electoral Commissioner. 

55.	 Having said that, I disagree with Counsel for the Second Respondent that it may be appropriate to raise the question that the Petitioner raises through another mode of proceedings. Since the Petitioner is an individual person, the standing granted to authorities under s 19(3) of the Constitution is not available to her. She nevertheless has a right to raise Constitutional issues if her interests are affected. If a constitutional question arises during a court or tribunal proceedings, including in an election petition hearing, the National Court can refer the question to the Supreme Court for determination (Constitution, s 18(2)). 

56.	This then leads me to the second issue of whether the Petition meets the requirements of s 208(a) of the OLNLLGE. The question of what is a “material fact,” that satisfies s 208(a) depends on the nature of the allegations. The general position after Hagahuno v Tuke (reading Deputy Chief Justice Kandakasi’s judgment) would be to plead facts that relate to the elements of the allegation. It is not necessary to set out elaborate details surrounding the allegation. 

57.	This is where the submissions of the Respondents are helpful. Assuming that the Petitioner is able to invalidate the results on the basis of the unconstitutionality of s 175(1A)(b), since it is an election petition per se, it must nevertheless comply with s 208(a). I do not agree with the Petitioner that all it needed to plead to satisfy s 208(a) was to say that “the scrutiny of the ballot papers for the Markham Open Electorate was not completed due to the destruction of ballot boxes and papers that took place on Saturday 16 July 2022.”

58.	The Petitioner is not raising a hypothetical question that authorities listed under s 19 of the Constitution are permitted to raise (see Constitutional Planning Committee Final Report 1974 Ch8 p16). It arises from specific factual circumstances. The Petitioner is saying that s 175(1A)(b) is unconstitutional because:

•	There was no election conducted as required by s 101 of the Constitution (The Petition, para 15.(i));
•	There was no election as required by s 126(3) of the Constitution (The Petition, para 15(ii);
•	The Constitution and the spirit of the Constitution does not authorize or permit a “special circumstance” provision under s 175(1A)(b) under the OLNLLGE (The Petition, para 15(iii).

59.	This is not a case where no election was conducted at all and the Electoral Commissioner arbitrarily exercised his power under s 175(1A)(b) and declared the First Respondent or hand-picked him from a lottery. In my respectful view, the requisite factual foundation has not been established thereby giving the Petition a hypothetical character. The factual basis that would necessarily have to be pleaded to appreciate why the Electoral Commissioner did what he did, would be the circumstances before, during and after the decision made by the Electoral Commissioner to exercise his powers under the subject provision. Such facts as the Respondents submit, that are necessary, but were not pleaded are:

•	At what stage of the counting was it stopped?
•	What was the result of each of the candidates at the time the counting stopped?
•	What were the circumstances surrounding the burning of the ballot papers?
•	How many ballot papers were burnt?
•	How did the scrutineers participate in the supervision of the counting?
•	Is it possible to establish the motives of the persons involved in the burning of the ballot papers?
•	What role did the returning officer play in the circumstances before, during and after the burning of the ballot papers?
•	What process did the Electoral Commissioner employ to exercise his power under s 175(1A)(b) of the OLNLLGE and what were his reasons and were such reasons provided to the candidates and their scrutineers? 

60.	When one looks at the Petition, the most that the Petition pleads are provisions of the Constitution and propositions of law as the Second Respondent argues.

61.	The importance of setting the proper factual foundation for this Petition is important for two reasons.

62.	Firstly, for the court to refer a question to the Supreme Court, it must be satisfied that the question is “not trivial, vexatious or irrelevant,” (Constitution, s 18(2)). The single material fact which the Petitioner relies on is as follows:

On Thursday, the 15th July 2022, during the counting of the ballots in the Tally Room at the Markham Secondary School, Mutzing Station Morobe, before the completion of the scrutiny, all of the ballot papers and ballot boxes for the entire electorate, and the records of the count to that point, were destroyed by fire by persons unknown.

63.	This is simply inadequate for the court to appreciate the nature of the question being posed. Section 175(1A)(b) is not the only provision in the OLNLLGE that uses the words “special circumstances.” Section 81 also refers to the words “special circumstances” in addressing the question of when writs should be returned to the Head of State after the conclusion of a national general election. In the case of Special Reference Pursuant to Constitution, Section 19(1); Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814 the Supreme Court held:
…(5) It is within the unfettered discretion of the Electoral Commissioner to determine what circumstances constitute “special circumstances” for the purposes of s. 81 of the Organic Law on Elections. The Court cannot prescribe what does or does not constitute “special circumstances. 
64.	The Supreme Court has accepted the “special circumstances,” powers of the Electoral Commissioner as being Constitutional under s 81 of the OLNLLGE. Would the Supreme Court apply the same interpretation to s 175(1A)(b) of the OLNLLGE? This makes it necessary to distinguish the use of this term in s 81 and in s 175(1A)(b) in the specific circumstances of the latter’s case. Material facts must be pleaded to crystalise the issue for the National Court to determine whether a valid Constitutional question has been raised, before the matter can be referred to the Supreme Court. This is not apparent from the Petition. 

65.	The second reason was expressed by the Electoral Commissioner Mr Sinai when he inferred that the burning of the ballot papers was done to sabotage the electoral outcome. Those candidates that did not poll well, would as a result get another opportunity through a by-election induced by violent and illegal actions. The legitimate avenues to have a by-election is through a court of disputed reasons invalidating the election result or the death of a sitting member or dismissal from office by a Leadership Tribunal or insolvency of a member.

66.	Let me state categorically, that I am not saying for one moment that this was the objective of the Petitioner. All I am saying is that, by inadequately setting out the relevant factual basis, would provide an avenue for opportunists in future to hijack an electoral process, and impede the Electoral Commissioner to properly supervise elections generally under the OLNLLGE and under his special powers in s 175(1A)(b). 

67.	If s 175(1A)(b) is absent, a scenario that the court must be wary of is where losing candidates and their supporters sabotage the process as a means by which an election result is set aside. If the court were to entertain a Constitutional challenge oblivious to this perilous possibility, it would pose a threat to democracy and encourage illegal and violent behaviour and will undermine the rule of law. This is why it is of paramount importance that the Petitioner should establish a proper factual basis for the National Court to appreciate why a reference under s 18(2) of the Constitution is necessary considering the greater common good of society.  

68.	I therefore agree with the Respondents that the Petition is inadequately pleaded. It does not meet the requirements of s 208(a) of the OLNLLGE. The approach that I have taken in my humble and respectful assessment would meet the approval of the Supreme Court’s judgment in Hagahuno v Tuke. In that case, the Supreme Court considered and applied s 217 of the OLNLLGE. The question of “substantial merits” and “good conscience” works both ways – for the Petitioner and for the First Respondent and ultimately to meet the ends of substantive justice (Constitution, s 158). To create an avenue for candidates and supporters unhappy with the results to simply sabotage the process and expect to have a second opportunity at huge costs to the State should not be readily sanctioned by the courts. Democracy is everyone’s business, and whatever the results, we must all channel our grievances through the proper process. This is why it is vital to plead all material facts for the National Court to determine if the question is not “trivial, vexatious or irrelevant,” and the reference it would make under s 18(2) of the Constitution to the Supreme Court will result in the Supreme Court determining comprehensively where s 175(1A)(b) offends the Constitution and pronounce a decision that speaks to important organs of government as to how it must order its affairs Constitutionally in the light of evolving circumstances in the country.

69.	The result of all this would be that the Petition lacks material facts and therefore does not meet the requirements of s 208(a) given the backdrop of a potential Constitutional question. The Petition cannot as a result stand, and the normal course is to order that the Petition be dismissed in its entirety.

Conclusion

70.	On the first issue I find that the petitioner has not pleaded known grounds under the OLNLLGE to challenge the outcome of the Markham Open Electorate.

71.	On the second issue I find that the Petitioner has not adequately pleaded material facts to meet the requirements of s 208(a) of the OLNLLGE.

72.	Given this, I order that the petition should be dismissed with appropriate orders for costs.

Costs

73.	On the question of costs, the Petitioner will only pay the First Respondent’s costs on a party-party basis, to be taxed if not agreed as the First Respondent has succeeded in his objection. Since the Second Respondent filed its objection out of time, but nevertheless successfully argued its objection, it will bear its own costs.

Orders 

74.	I make the following orders on account of the foregoing: 

(1)	The First and Second Respondents’ objections to the competency of the Petition is upheld and the Petition is dismissed in its entirety. 
(2)	The Petitioner shall pay the First Respondent’s costs of the objections to competency, on a party-party basis, to be taxed, if not agreed. 
(3)	The Second Respondent shall bear its own costs of the Petition.

(4)    The K5,000 deposit paid by the Petitioner shall be paid to the First Respondent as part of his costs.

Judgement and Orders accordingly.
____________________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner	
BS Lai Lawyers: Lawyers for the First Respondent 	
Harvey Nii Lawyers: Lawyers for the Second Respondent