N10216
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 82 OF 2022

BETWEEN
IAN DAVID NUMODE
Petitioner

AND:
KANSOL KAMDARU
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Madang: Eliakim AJ
2023:  19th April

ELECTION PETITION – petition filed pursuant to s.206 of the Organic Law on National and Local Level Government Elections (‘Organic Law’) – petitioner alleges and pleads errors & omissions by returning officer.

PRACTICE AND PROCEDURE – Objection to competency of the Petition filed – main ground: petition invalid under s.210 due to non-compliance of requirements of s.208 of the Organic Law – Failure to plead elements of s.218 of the Organic Law – Failure to plead material facts in order to demonstrate breach of s.153A of the Organic Law - Sections 153A, 208(a) &(b), 217, 218 – s.90 Election Regulation       

Cases Cited:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Gengewe Neritha Ganzik v Koni Iguan & EC (2023) unreported judgement
Holloway v Ivarato [1988] PNGLR 99
Lowa v Akipe [1992] PNGLR 399
Powi v Kaku & EC (2022) SC2290
Peter Wararu Waranaka v  Richard Maru (2018) N7346
Robert Kopaol v. Philemon Embel (2003) SC727
Sam Tei Abal v Robert Sandan Ganim (2013) N5676
Talita v Ipatas (2016) SC1603

Counsel:

N. Kopunye, for the Petitioner
D. Levy, for the First Respondent
W. Pep, for the Second Respondent 

RULING ON OBJECTION TO COMPETENCY 
OF PETITION

19th April, 2023

1.	ELIAKIM AJ:	This is the ruling on the First Respondent’s objection to competency of the Election Petition brought by the Petitioner. The objection is brought under section 210 of the Organic Law on National and Local Level Government Elections (“The Organic Law”) seeking to dismiss the petition in its entirety.

2.	Parties and counsels involved in this matter, appeared before me on 19 April 2023 at 9.30am, whereby the court made brief remarks on the conduct of the proceedings and the court’s expectation for the parties’ co-operation to ensure an expediated outcome.

Brief background of Facts from the Petition

3.	The Petitioner has challenged the declaration of the result of the election for the Middle Ramu Open electorate following the 2022 National General Elections.

4.	Both the Petitioner and the First Respondent were among 45 candidates that contested the Middle Ramu Open seat.

5.	The First Respondent was declared winner on 7 August 2022, with a total of 10,850 votes whilst the petitioner was the runner-up with 9,946 votes.

6.	Middle Ramu electorate is made up of four (4) Local Level Governments (‘LLG’) and 94 council wards.  During the 2022 National General Elections, there was a total of 46 polling teams covering 180 polling locations within the electorate.

7.	Kovon LLG consists of 15 council wards and had 8 polling teams covering 29 polling locations.

8.	The Petitioner raised a single ground alleging errors & omissions by the Second Respondent in the scrutiny and counting of votes.  He pleaded in paragraph 47 of his petition that:

“Second Respondent erred by failing to comply with Section 153A of the Organic Law on National & Local-Level Government Elections when admitting into scrutiny the ballot-papers from following four (4) ballot-boxes from Kovon LLG that were disputed by scrutineers namely Donald Waia (Kevin Inamu) and Gonoko Ethelbert (for Petitioner) for containing unlawful ballot-papers that were marked in the same pen under the same hand writing and found to be bundled together, inferring the ballot-papers were unlawfully marked by the same person in favour of the First Respondent”.

9.	The first five relief pleaded in the petition and which the petitioner claims to be entitled to are:

1.	A Declaration pursuant to Section 212(1)(i) of the Organic Law on National & Local Level Government Elections (OLNGE) to uphold the Petition in whole and/or in part; and

2.	A Declaration pursuant to Section 212(3) of the OLNGE that the ballot papers contained in the four disputed ballot-boxes from Kovon LLG marked EC001121, EC001128, EC001129 and EC001134 did contain unlawfully marked ballot-papers and ought to have been excluded from being counted by Second Respondent; and

3.	An Order pursuant to Section 212(1)(d) of the OLNLGE that Second Respondent conduct a judicial recount of the votes in Middle Ramu Open Electorate Seat as soon as practicably possible; and

4.	An Order pursuant to Section 212(1)(d) of the OLNGE that Second Respondent conduct a judicial recount of the votes in Middle Ramu Open Electorate Seat as soon as practicably possible; and

5.	An Order pursuant to Section 212(3) of the OLNLGE that ballot-papers that were contained in the four disputed ballot-boxes EC001121, EC001128, EC001129 and EC001134 are declared unlawful and shall be excluded from the judicial recount; and…….”.
 
10.	The Second Respondent supported the Notice of Objection to Competency filed by the First Respondent on 16 November 2022.

Grounds of the Objection

11.	The main ground of the objection to competency is that the petitioner has failed to comply with requirements under section 208 (a) and (d) of the Organic Law, consequently rendering the Petition incompetent pursuant to section 210 of the Organic Law.

12.	The grounds are summarised as follow:

i.	Material facts encompassing Errors or Omissions have not been pleaded nor the elements of section 218(1) of the Organic Law.

ii.	The petition failed to plead material facts to demonstrate that there was illegal polling or hijacking of the 4 ballot boxes, in order to justify an objection under section 153A of the Organic Law.
iii.	The petition failed to plead material facts to demonstrate the requirements and the alleged breach of section 153A of the Organic Law.
 
iv.	The petition failed to properly plead the relief he says he is entitled to in that a relief to invalidate the declaration of the first respondent has not been sought.

Submissions by First & Second Respondents
 
13.	The First Respondent submitted that paragraphs 1 – 22 contain background facts only and does not support in anyway, the ground of errors or omissions as pleaded in the petition.

14.	Furthermore, the petition contained only conclusion of facts and alternatives as opposed to specific details to the facts it relied on. Examples of facts being pleaded in the alternative is the fact pleaded in paragraph 28 of the petition;…… “Further that they observed during the sorting of the ballot papers that they were folded in bundles of up to 10 or 20 placed in the ballot boxes”. The prohibition of alternative pleadings in election petition matters is further discussed in the case Kopaol -v- Embel (2003) SC727.

15.	Alternative pleading is prohibited by law and the first respondent relied on the case of Sam Tei Abal v Robert Sandan Ganim (2013) N5676 in which his honour Hartson J said: 

“I also make reference to a decision of Kandakasi J in Ekip v Wimb (2012) N4899 in which his Honour at paragraph 44 said the following as to alternative pleadings:
Also as a matter of law alternative pleading is not permitted in election petitions.  A latest statement and application of the principle is in the decision of Lay J (as he then was) in Luke Alfred Manase v Don Pomb Polye.  His Honour was there applying the authoritative decision of the Supreme Court in Robert Kopaol v Philimon Embel.  That case stands for the proposition that, a petitioner’s pleadings must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings”.
  
16.	The first respondent argued that the allegation of errors and omissions stem from the alleged breach of section 153A of the Organic Law, in that the returning Officer failed to comply with the process and procedure stipulated under that section.

17.	However, the petitioner has failed to plead the material and relevant process and procedure under section 153A of the Organic Law; which one has been breached and how it has been breached.
 
18.	The first respondent further submitted that paragraph 12 and 13 of the petition alleged illegal polling resulting from unlawful marking of ballot papers, in the Kovon LLG, which seemed to be the main basis of the alleged objection to the Returning Officer, as referred to in paragraphs 25 and 27 of the petition. It was submitted that the allegation about illegal polling is simply a conclusion of fact as there were no primary or relevant material facts in the petition, setting out in detail as to how the illegal polling took place.
 
19.	It was further submitted that details of the polling are material facts which must be specifically pleaded because the Petition itself pleaded in paragraph 24 and 25 that the four (4) disputed ballot-boxes were assigned to 9 different polling locations.  The first two (2) ballot boxes #EC001129 and #EC001121 consisted of 6 different polling locations namely Frankrank, Fitako, Aradip Sch, Arame, Angavie and Yump. The other two disputed boxes #EC001128 and EC#001134 in the custody of Polling Teams 142 and 143 fell within three different polling locations as per paragraph 12 of the petition namely, namely Magamanau, Yilu and Mamusi.
 
20.	Thus, paragraphs 25-31 of the petition is also incompetent for the reasons that facts fail to name the actual witness of the alleged illegal polling taking place; where and when the illegal polling took place and how the illegal polling took place.
 
21.	Paragraph 32 of the petition is also incompetent as submitted by the first respondent for reasons that the second respondent has no powers under s.153A of the Organic Law, to interfere with or direct the returning officer to act in a certain way on any objections by candidates.  In any event, there was also no material facts pleaded to state or show how the second respondent was aware of an alleged objection by the petitioner and or his scrutineers and how a purported letter from the electoral commissioner to the returning officer dated 05 August 2022, was delivered to the returning officer.
 
22.	The first respondent further stated that even if the returning officer did receive a letter from electoral commissioner as alleged in the petition to set aside the ballot boxes, the returning officer was not obliged by any law to respond to it.

23.	As to the relief sought by the petitioner for a recount without first seeking to invalidate the election of the first respondent, Mr. Levy submitted that this is irregular.

24.	He further argued that the petitioner has no basis to seek relief in relation to the disputed ballot boxes as the petitioner had not pleaded illegal practice as a ground in this petition. He relied on the case Peter Wararu Waranaka v Richard Maru (2018) N7346.

25.	Finally, the first respondent submitted that the facts contained in paragraphs 13 to 46 of the petition, inclusive of the petition itself, are incompetent for the reasons that they are incomplete, convoluted, contradictory, defective and confusing as to whether these facts should constitute grounds of illegal practise or errors or omissions.
  
26.	Both counsels for the first and second respondents assisted the court well with detailed written submissions.

27.	Mr. Pep for the second respondent supported the first respondent’s application.  In participating, he relied on the case of Talita v Ipatas (2016) SC1603 which justifies the second respondent’s standing in the petition before this court. The Supreme Court held that:

“Where a petition seeks to disturb the results of an election the successful candidate and the Electoral Commission have standing to be heard on all aspects of the Petition and to contest the validity of the Petition.”
 
28.	He supported and reiterated the same arguments raised by the first respondent and submitted that the petition had failed to plead material facts under s.153A of the Organic Law and elements of s.218(1) of the Organic Law, upon which the Petition relied.

29.	Furthermore, Mr. Pep also eloquently assisted the court by citing the relevant Supreme Court cases governing the current legal points of law, particularly in relation to sections 208, 210 and 217 of the Organic Law, which I have considered and adopted in my ruling.

30.	He has also correctly submitted that past cases have held that during competency hearings, section 217 is not to be applied only through the lenses of the Petitioners.  Where the substantial merits of the case and good conscience require, Petitions that do not comply with the established legal requirements should be dismissed without hesitation.
  
31.	He joined Mr. Levy, counsel for the First Respondent, and submitted for the Petition to be dismissed for failing to comply with section 208 of the Organic Law.

Submissions by Petitioner

32.	The Petitioner’s counsel, Mr. Kopunye did not have any extracts of written submissions to assist the court but gave a verbal response to oppose the respondents’ application.

33.	Mr. Kopunye firstly raised issue with the Notice of Objection form filed on 16 November 2022, stating that it did not conform with requirements under Form 4 of the Election Petition Rules.  He further submitted that the courts, in past cases, have found Notice of Objections incompetent due to their non-compliance with Form 4. As such, the First Respondent’s Notice of Objection should be dismissed.

34.	Mr. Levy, counsel for the First Respondent argued in his rebuttal, that Mr. Kopunye should have filed a formal application raising this issue rather than ambushing the respondents without any formal notice. In any event, the respondents had already moved their application on the Objection. 
35.	The court was not assisted with any case laws on point nor any other submissions to give weight to the issue raised. Furthermore, considering that the formal application on the Notice had been moved, I refused to accept the contention raised by Mr. Kopunye.
 
36.	In relation to the substantive objection filed by the first respondent, Mr. Kopunye, counsel for the petitioner, submitted that the court should not consider the merits of the petition but rather, on whether, the petition is properly before the court.
 
37.	He defended his client’s Petition stating that the relevant provisions of the Organic Law have been complied. He further submitted that, whether the facts are sufficiently pleaded or not should be left to evidence which will be called at the trial proper. This was therefore a matter for trial.

38.	He submitted that the role of pleadings was to set at least a foundation of what the case was about, and the parties had agreed on the Statement of Agreed and Disputed Facts and they knew what the case was about.
  
39.	In relation to s.153A of the Organic Law, Mr. Kopunye submitted that once objection was raised, the Returning officer must request for the objection to be in writing. The issue of a written objection was therefore a matter for trial.
  
40.	Mr. Kopunye further submitted that whether or not a relief is sufficiently pleaded is not a ground for competency and that pursuant to section 212 of the Organic Law, the court can grant any other reliefs not sought in the Petition. He therefore argued that the competency of the relief sought under the petition cannot be questioned and the petition should go for a full hearing and the trial should not be hindered by technicalities.

41.	Mr. Levy for the first respondent however opposed what Mr. Kopunye stated, and that procedural requirements under s.153A Organic Law must be pleaded in order for evidence to be called at trial. The law is clear under section 90(1) of the Regulations in that an objection by a scrutineer to the Returning Officer must be in writing. The manner of objection therefore must be pleaded.  Then the Petitioner can call evidence at trial to prove those facts.

42.	As to the relief sought, the court in the Peter Wararu case held that the relief sought must be concise and coherent. It also must be based on pleadings and facts.  

The Law on Objection

59.	The respondents objected to the competency of the petition under section 210 of the Organic Law and Rule 12 of the Election Petition Rules 2017 (‘EP Rules’) on grounds that the petitioner failed to comply with section 208 (a) and (d) of the Organic Law. 

60.	Rule 12 of the EP Rules provides as follow:

“A respondent who objects to the competency of the petition shall, within 21 days after service of the petition – 
(a)	File an objection in accordance with Form 4 giving at least 3 clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b)	Serve a copy of the objection on the petitioner and on each of the other respondents; and
(c)	File and serve all affidavits in support of the objection.”

61.	There is no issue with sufficient service on the petitioner.
  
62.	Section 210 of the Organic Law is titled ‘No proceedings unless requisites complied with’. It states:

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

62.	Section 208 of the Organic Law provides the requisites of a petition and states:

“A petition shall—
(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the 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).”

Application of the Law

63.	Part XVIII of the Organic Law on National and Local Level Government Elections provides the avenue upon which the validity of an election or return may be challenged.

64.	Section 210 of the Organic Law makes compliance under sections 208 and 209 mandatory.  Furthermore, there are no exceptions to this rule, nor is it a discretionary matter for the court.
  
65.	The principles governing the Court’s power to determine election petitions at the preliminary stages of the proceedings were first addressed by the Supreme Court in the case of Delba Biri v Bill Ninkama [1982] PNGLR 342.

66.	The court held in that case that an election petition disputing the validity of an election must comply strictly with each and every requirement of Section 208 of the Organic Law.  If the petition does not comply with all of the requirements of Section 208, and Section 209 of the Organic Law, then, there can be no proceedings on the petition because of Section 210.

67.	It further held that the application of “s.217 is only relevant when the National Court determines the merits of the case when dealing with the evidence before it as relevant to the merits.”  This was overturned by the Supreme Court in Hagahuno v Tuke (2020) SC2018 where it held that “Section 217 of the Organic Law applies from the date of filing of the petition right through to the determination of the petition.” This is therefore the current legal position.

68.	Section 217 of the Organic Law states: 

“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 or evidence or not.”

69.	Although the Hagahuno case largely considered and applied s.217 of the Organic Law, it also held that “Section 217 does not save a petition which fails to state at all any fact under s.208(a) that discloses a valid ground to void an election outcome or fails completely to meet any of the other requirements of s.208(b) to (e)”.

70.	In the Powi v Kaku & EC (2022) SC2290, his honour Kandakasi DCJ stated that s.217 applies to all parties before the court.  He stated at paragraph 52:
“To achieve real justice the Court must see the merits of the case from the perspective of all parties to a petition and not just one of the parties to the exclusion of the parties.  This necessarily requires a careful consideration of each parties duties and obligations in a petition challenging an election outcome.  Whether the parties have discharged their respective duties starts with a consideration of whether the petitioner has pleaded the relevant facts which sufficiently and discloses a ground capable of upsetting the election the subject of the petition.”
 
71.	Narokobi J further elaborated on this issue in his recent decision in Gengewe Neritha Ganzik v Koni Iguan & EC (2023) unreported, stated “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.”

Has the Petitioner set out the facts relied on to invalidate the election of the First Respondent?

A.	Illegal Polling

72.	The rule under civil law requires that pleadings must contain only a statement of the material facts relied upon and not the evidence by which they will be proved. 

73.	Material facts are the primary basic facts which must be pleaded by the Plaintiff or Petitioner in support of the case set up by him either to prove his cause of action or defence. In other words, “pleadings must disclose all the necessary facts which give rise to the form of action”. (Lowa v Akipe [1992] PNGLR 399, Kidu CJ, Kapi DCJ, Woods J, Hinchliffe J, Sheehan J). 

74.	The object and purpose of pleading the material facts is to enable the opposite party to know the case he has to meet with.  In the absence of pleading, a party cannot be allowed to lead evidence. This contention was held in Holloway v Ivarato [1988] PNGLR 99; Kapi DCJ, Los J, Hinchliffe J.  The case was a supreme court reference concerning the interpretation and application of section 208A of the Organic Law on National Elections.  It was held that “The facts which must be set out under s 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved.”
 
75.	In the current case, illegal polling is the foundation of the Petitioner’s only ground of Errors or Omissions.

76.	At this juncture, I remind myself that although illegal polling has been pleaded as a material fact, it does not constitute a ground in this petition.

77.	The facts pleading the issue of illegal polling is stated twice in the petition.  It is raised firstly in paragraph 11 of the petition which states:

“However, there were issues raised in relation to polling in Kovon LLG.  Polling commenced late, after 11 July 2022 due to logistical issues faced with air lifting the ballot-boxes to the respective polling locations.  Thus, polling was later extended from 15 July to 19 July 2022.”

78.	The second time its mentioned is in paragraph 13 of the petition which states:

“Candidates namely Assik Tom Tomscoll and Rodney Sip from Simbai LLG as well as Kevin Inamu from Josephstaal raised issues with Petitioner that polling in Kovon LLG was hijacked namely polling teams 138, 139 and 141.  Tomscoll alleged that the tribesman and supporters of the First Respondent had taken over the polling in teams 138, 139 and 141 and unlawfully filled out the ballot-papers in favour of the First Respondent.”

79.	In relation to the polling teams mentioned above, the table in paragraph 12 of the petition revealed that:

•	Polling team 138 presided over four (4) different polling locations namely Frankrank, Fitako, Aradip Sch and Arame.
•	Polling team 139 presided over two (2) different polling locations namely Angavie and Yump.  
•	Polling team 141 presided over six (6) different polling locations namely Tingi, Alnagum, Gomb, Gubane, Ulamil and Gebrau.

80.	Apart from the facts pleaded in paragraph 13 of the petition, there is no other facts pleaded as to whether or not polling did actually take place in Kovon LLG. 

81.	Material facts in my view that ought to have been pleaded in the petition on the allegation of illegal polling would have been the:

-	specific dates; 
-	specific polling location and or location where the act was seen to have taken place;
-	specific description of the act and how it took place;
-	detailed description of persons participating in the act; etc 

82.	Pleading of these material facts are essential to enable the petitioner to lead evidence in proving his ground of error and omission. Without these, I cannot see how the ground of errors and omissions can be sustained at trial.
 
83.	Furthermore, the terminology used in paragraph 13 of the Petition, ‘unlawfully filled out the ballot-papers” is a conclusion of fact in my view.  Whether an act is unlawful or not is for the court to decide and not for the parties. 

B.	Error or Omissions

84.	The only ground pleaded in this petition is errors or omissions.  Although the relevant provision of the law has not been pleaded anywhere in the petition, a ground of errors or omissions falls under section 218 of the Organic Law.

85.	Section 218(1) of the Organic Law provides that:

“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 error of, or the omission by, an officer which did not affect the result of the election”. 

86.	The lack of pleading of section 218 of the Organic Law in my view can be fatal for this petition considering errors or omissions is the sole ground.
   
87.	In any event, the allegation is that the second respondent erred by failing to comply with Section 153A of the Organic Law when admitting into scrutiny the ballot papers from four (4) of the ballot-boxes from Kovon LLG in the Middle Ramu electorate.

88.	Section 153A of the Organic Law states:

(1)	Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that-
(a)	The ballot-papers in it were not lawfully casted; or
(b)	The ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2)	Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other Polling Officers as are available at the scrutiny to comment on the objections and responses given before making a decision on such objection.
 
(3)	A ballot-box that is damaged, but its contents have not been disturbed is not to be rejected for the reason of the damage.
 
(4)	A decision of a Returning Officer under this section may not be challenged other than by way of petition.”

89.	The procedure by which objection to admission of ballot-box to scrutiny, is regulated by section 90 of the Electoral Law (National Elections) Regulation 2007. It states:

1.	“A scrutineer who wishes to object to a ballot-box being admitted to scrutiny shall lodge the objection in writing with their reasons to the Returning Officer or Assistant Returning Officer.

2.	An objection under subsection (1) is to be made by a scrutineer who was present at the polling place where the ballot-box was used for polling.

3.	A candidate who did not have a scrutineer at a polling place where a ballot-box is used for polling and who wishes to object to the ballot-box from being admitted to scrutiny shall lodge the objection in writing with the Returning Officer or Assistant Returning Officer.

4.	A scrutineer or a candidate who lodges an objection under subsection (1) or (3) shall state in a statutory declaration the facts supporting the objection.

5.	An objection under this section shall be made within three days of the end of polling or within such further period as the Returning Officer or Assistant Returning Officer extends.” 
6.	A Returning Officer or Assistant Returning Officer, upon receipt of an objection under subsection (1) or (3), shall register the objection and may require the presiding officer, other polling officials or such other person as he considers necessary to comment on or respond to the objection in writing.

7.	The Returning Officer or Assistant Returning Officer is to receive a ballot-box the subject of an objection under this section at the scrutiny centre and is to make a decision on the objection as to whether or not the ballot-box will be admitted to scrutiny.

8.	A decision of a Returning Officer or Assistant Returning Officer on an objected ballot-box made under subsection (7) shall not be challenged other than by way of a petition,

9.	The Electoral Commissioner may require a Returning Officer or Assistant Returning Officer not to make a decision on an objection under this section, until the Electoral Commissioner or other person acting under the Electoral Commissioners authority for the purpose reviews an objection.

10.	Where an objection is reviewed under subsection (9), the Electoral Commissioner may direct a Returning Officer or Assistant Returning Officer to accept or not to accept a ballot box into scrutiny and a Returning Officer or Assistant Returning Officer is to give effect to such direction.”

90.	The mode of objections therefore to a ballot-box as stipulated under section 153A of the Organic Law and section 90 of the Regulations, explicitly requires a written objection. There is a further mandatory requirement under subsection (4) and (5) of section 90 of the Regulation for a statutory declaration containing facts supporting the objection.  This objection must be made within three days of the end of polling or within a period extended by the Returning Officer or Assistant Returning Officer. It is only upon receipt of an objection under subsections (1) or (3) that the Returning Officer is required to register and consider an objection by a candidate or scrutineer. Pursuant to subsection (8), the Returning Officer or Assistant Returning Officer’s decision is final and can only be challenged by way of a petition.
   
91.	The question therefore in my view is does the Returning Officer have a duty or a legal obligation to the candidate or scrutineer under section 153A of the Organic Law?  If so, what is that duty and what is the process that he has breached?

92.	As I see it, in order for the petitioner to lead evidence at trial on section 153A of the Organic Law, he must plead the following material facts:

(a)	Duties and obligations of the Returning Officer under s.153A of the Organic Law;
(b)	Duties and obligation of the candidate or scrutineer under s.153A of the Organic Law;
(c)	Duties and obligations that has been breached by either of them, whatever the case may be.
(d)	Process stipulated and pursued under section 153A of the Organic Law and section 90 of the Regulation.
(e)	Manner and or mode of Objection by the candidate or scrutineer;
(f)	Who raised the Objection?
(g)	How and when was the Objection communicated to the Returning Officer?
(h)	 What was the formal decision by the Returning Officer?

93.	The above in my view, are primary basic facts that need to be clearly pleaded in the petition in order for evidence to be led to trial. I therefore do not see how the petitioner can lead evidence at trial in the absence of these material facts which are vital to his case.
 
94.	I also take note that paragraph 47 of the Petition contains both the evidence as well as conclusion of facts.
    
95.	In compliance with section 208 of the Organic Law and with the support of case laws on point, particularly the supreme court cases in Biri v Ninkama, Holloway v Ivarato and the Hagahuno SC2018 case (supra), the Petitioner has an obligation to plead material facts or the primary basic facts to invalidate the election of the first respondent and to support his claim to the relief he seeks.

96.	I also accept the respondents’ argument that the Petitioner has further failed to plead a crucial relief in his petition which is a declaration to invalidate the election under section 212(1) of the Organic Law.  This relief is fundamental to any election petition challenge.

97.	With all that said, I am of the view that the petition is ambiguous, confusing and lacks coherence.

Conclusion

98.	I therefore find that the Petition is incompetently pleaded and as such should not proceed to trial pursuant to section 210 of the Organic Law. The Objection to Competency is upheld and the Petition is dismissed in its entirety.

99.	Consequently, I order that costs follow the event and the K5,000 security deposit to be shared equally between the respondents.

Orders 

100.     The Formal Orders of the court are:

1.	The Notice of Objection to Competency of the Petition filed by the First Respondent on 16 November 2022 is upheld.
2.	The Petition is dismissed in its entirety.
3.	The security deposit of K5,000 paid into the National Court Registrar’s Trust Account No. 1000583618 at BSP on 16 September 2022 shall be paid by the Registrar to the First and Second Respondents in equal amounts. 
4.	The party-party costs less the sum of K5,000 is awarded to the First and Second Respondents which if not agreed, be taxed.
5.	The entry of this Order is abridged to the time of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Kopunye Lawyers: 	Lawyers for the Petitioner
Livingstone Lawyers: 	Lawyers for the First Respondent
Harvey Nii Lawyers: 	Lawyers for the Second Respondent