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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 80 OF 2022
BETWEEN
NICK KOPIA KUMAN
Petitioner
AND
DAWA LUCAS DEKENA
First Respondent
AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail, J
2024: 28th March & 28th May
ELECTION PETITION – Objection to competency – Grounds of – Petition being filed outside time limit of 40 days – Failure to pay security for cost of K5,000.00 at time of filing of petition – Failure to plead facts – Allegations of four instances of illegal practices at polling – Allegation of illegal practices at counting – Organic Law on National and Local-level Government Elections – Sections 208(a) & (e), 209 & 215(3)
WORDS & PHRASES – Filed – Definition of filed considered – Construction of – Natural and ordinary meaning – Organic Law on National and Local-level Government Elections – Section 208(e) – National Court Election Petition (Miscellaneous Amendments) Rules – 2022 – Rule 1
Cases Cited:
William Hagahuno v. Johnson Tuke (2019) SC1776
Wesley Raminai v. Maino Pano (2023) N10248
Wesley Raminai v. Maino Pano (2023) SC2423
Jean Parkop v. Gary Juffa (2023) N10281
Ondokoi v. Mul (2023) N10406
Sasuwo v. Tambua (2023) N10544
Patrick Basa v. Bob Dadae (2013) N4991
Mond Palme v. Dr Fabian Pok & Electoral Commission (2018) N7214
Mai Dop v. Wake Goi & Electoral Commission: EP No 17 of 2017 (Unreported & Unnumbered Judgment of Batari J dated 26th January 2018)
Epi v. Farapo (1983) SC247
Paru Aihi v. Peter Isoaimo (2015) SC1598
Charles Kassman v. Justin Tkatchenko (2023) N10213
Paru Aihi v. Peter Isoaimo (2014) N5694
William Gogl Onglo v. Muguwa Dilu & Electoral Commission (2023) N10595
Holloway v. Ivarato [1988-89] PNGLR 99
Moses Manwau v. Allan Bird (2023) N10249
Ibo v. Hagahuno (2023) N10322
Kala v. Temu (2023) N10364
Kala v. Temu (2023) SC2453
Dominic v. Kaupa (2023) N10361
Nupiri v. Powi (2023) N10398
Nupiri v. Powi (2023) SC2459
Raminai v. Pano (2023) N10248
Nasam v. Sungi & Electoral Commission (2024) SC2552
Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (Unnumbered & Unreported Judgment of Bona J dated 19th January 2024)
Petrus Thomas v. William Bando (2023) N10335
Francis Maneke & Electoral Commission (2024) N10665
Sandy Talita v. Peter Ipatas (2016) SC1603
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Robert Kopaol v. Philemon Embel (2003) SC727
Daniel Bali Tulapi v. James Lagae (2013) N5235
Philip Undialu v. Francis Potape & Electoral Commission (2020) SC1981
Samson Malcolm Kuli v. James Apaimia & Anton Yagama (2013) N5275
Robert Sandan Ganim v. Lino Tom Moses & Electoral Commission (2018) N7233
Counsel:
Mr T Sirae, for Petitioner
Mr P Kuman, for First Respondent
Ms S Kapi, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
28th May 2024
1. MAKAIL J: This is a ruling on two objections to competency filed by the respondents. These are:
(a) first respondent’s objection by a further amended notice of objection to competency filed on 15th March 2024; and
(b) second respondent's objection by a notice of objection to competency filed on 25th October 2022.
Grounds of Objection
2. In the case of the first respondent’s objection, the grounds are:
(a) petition was filed outside the time limit of 40 days under Section 208(e) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).
(b) failure to pay a sum of K5,000.00 as security for costs at the time of filing of petition under Section 209 of the Organic Law on Elections.
(c) failure to plead facts under Section 208(a) of the Organic Law on Elections.
3. In the second objection, the second respondent relied on a sole ground, that is failure to plead facts under Section 208(a) of the Organic Law on Elections.
Petition being filed outside the time limit of 40 days
4. The law in Section 208(e) of the Organic Law on Elections is that a petition “shall 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).”
5. It is common ground that in computing when 40 days commences, it commences from the day after the date of declaration of result of the election: see also William Hagahuno v. Johnson Tuke (2019) SC1776.
6. It is also common ground that:
7. Relying on the definition of the word “filed” in Rule 1 of the National Court Election Petition (Miscellaneous Amendments) Rules, 2022 (“EP Rules”), the first respondent submitted that filing of a petition commences and is completed when:
(a) the petition is lodged at the National Court Registry;
(b) stamped with the seal of the National Court; and
(c) endorsed or given an election petition number.
8. According to the first respondent while the petition was lodged at the National Court Registry at Waigani on 15th September 2022, the filing of the petition was incomplete because the stamping of the petition with the seal of the National Court and endorsement or allocation of an election petition number did not occur on 15th September 2022 but 21st September 2022. By then the time limitation of 40 days expired on 16th September 2022. The result, the petition was filed 4 days after the time limitation of 40 days had expired.
9. According to the first respondent, his reading of Section 208(e) (supra) and Rule 1 of the EP Rules should be preferred over any other interpretation of the word “filed” used in Section 208(e) (supra) because it has support from a greater number of decisions of the National Court and one by a signal judge of the Supreme Court. These cases support the view that the petition must be lodged by uploading it on IECMS, stamped, and endorsed or allocated an election petition number before the expiry of 40 days to constitute filing. The National Court cases are Wesley Raminai v. Maino Pano (2023) N10248 and Sasuwo v. Tambua (2023) N10544 and Wesley Raminai v. Maino Pano (2023) SC2423, a ruling by a single judge of the Supreme Court refusing leave to review a decision of the National Court in holding that the petition was filed outside 40 days.
10. Further, the first respondent submitted that the view expressed by the National Court in Jean Parkop v. Gary Juffa (2023) N10281 and Ondokoi v. Mul (2023) N10406 that a petitioner that is uploaded on IECMS or lodged electronically within 40 days should not be adopted because the Court did not adopt the definition of the word “filed” in Rule 1 of the EP Rules and the reasons for adopting such definition. According to the first respondent, the National Court in those cases “......displaced the significance of the Election Petition Rules which constituted a fundamental error, which this Court should not follow.”
11 In addition, it was submitted that the EP Rules were promulgated by the judges pursuant to Section 212(2) of the Organic Law on Elections to govern the practice and procedure of election petitions. Such is the importance of the EP Rules that it was wrong for the National Court not to adopt the definition of filing in Rule 1 to define the word “filed” or “filing”. Reference was made to the cases of Patrick Basa v. Bob Dadae (2013) N4991, Mond Palme v. Dr Fabian Pok & Electoral Commission (2018) N7214 and Mai Dop v. Wake Goi & Electoral Commission: EP No 17 of 2017 (Unreported & Unnumbered Judgment of Batari J dated 26th January 2018) where it was observed that the EP Rules play an important role in the conduct of election petitions because they derived their source of power from Section 184 of the Constitution and Section 212(2) of the Organic Law on Elections. For these reasons, this Court should not follow the decisions in Jean Parkop v. Gary Juffa (supra) and Ondokoi v. Mul (supra) cases.
Definition of “Filed”
12. Except for the Supreme Court judgments in Epi v Farapo (1983) SC247 and Paru Aihi v. Peter Isoaimo (2015) SC1598 which did not directly define the word “filed” under Section 208(e) of the Organic Law on Elections because the contentious issue in those cases was the time in which the security for costs is to be paid under Section 209 of the Organic Law on Elections, there was never a time the word “filed” under Section 209 of the Organic Law on Elections has been controversial until two major events occurred which changed the dynamics of filing of election petitions in this jurisdiction. These are:
(a) Introduction of the definition of the word “filed” in Rule 1 in the EP Rules in year 2017, and
(b) Introduction of the IECMS in year 2020.
13. In 2017 the EP Rules, 2002 was repealed and replaced with EP Rules, 2017. One of the key features of the EP Rules, 2017 is the introduction and addition of the word “filed” in the definition section of Rule 1 which was carried over to the EP Rules, 2022. Then in year 2020, the IECMS was introduced.
14. As the National Court has observed in the cases cited by the first respondent above, the IECMS gives litigants, in this instance, a petitioner the option of e-filing of the petition, or what is commonly referred to as “uploading” of the petition online or lodgement of the petition “electronically” without the need to physically attend a National Court Registry to lodge or present the petition for filing. It is said that the paper filing or manual filing or the physical attendance at the National Court Registry to lodge the petition for filing will be phased out at some point in the future.
15. However, without amending the word “filed” in Rule 1 of the EP Rules to accommodate e-fling, uploading or lodgement electronically of election petitions or introducing a new set of Rules of Court for e-fling to include election petitions, the definition of the word “filed” remained unchanged. This created a legal conundrum not only for litigants, legal practitioners but also the National Court Registry officers. The word “filed” in Rule 1 did not include e-filing or uploading or lodgement electronically of an election petition when an election petition is lodged at the National Court Registry at Waigani or at a registry or sub-registry of the National Court in a province. The e-filing of documents was a foreign concept which was expected to be well received within a short turn around time by the time the 2022 National General elections ended, and election petitions came around. It is true that understanding how an e-fling in the IECMS works and its actual use by the users is a work in progress, but they underscore the importance of filing and access to justice. People should not be denied access to justice because the case management systems the Court has put in place has become too complex and cumbersome to understand they application and end up defaulting and rejected by the systems. In one case, parts of the petition were uploaded online on the fortieth day and the rest of it on the next day. The petition was found to be incompetent because it was filed out of time: Charles Kassman v. Justin Tkatchenko & Electoral Commission (2023) N10213.
16. It is understood that a Practice Direction was issued by the Chief Justice as a temporary guide for users to follow when accessing e-filing services on the IECMS. According to National Court decisions that have been published, only three of them in Francis Potape v. Philip Undialu (2023) N10372 at [14] - [15], Ondokoi v. Mul (supra) at [27] and [54] - [67] and William Gogl Onglo v. Muguwa Dilu (2024) N10595 at [64] referred to the Practice Direction. Except for Francis Potape v. Philip Undialu (supra), the next two cases referred to the Practice Direction to resolve the question of time for payment of security for costs at time of filing petition under Section 209 of the Organic Law on Elections. However, there is no evidence to show if the public more so, litigants and legal practitioners have access to it and its effectiveness.
17. The cases cited by the first respondent above highlight some of the challenges and areas for improvement associated with the use of IECMS. In the area of filing of petition, the petitioners now find out that there is more to just lodging a petition at the National Court Registry by the fortieth day. The petitioner must now make sure that it must not only be lodged well before the deadline of 40 days but that after its lodgement, will go through two more stages before filing is completed. In the words of Rule 1 (supra), the petition must be “sealed with the seal of the Court and endorsed with an election petition number.”
18. The petitioner is now burdened with a duty to ensure that the petition must be “sealed with the seal of the Court and endorsed with an election petition number” before the time limitation of 40 days expires for there to be a validly filed petition. The irony of such a proposition is that the petitioner has no control over the internal workings and schedule of the National Court Registry. These additional requirements may be attended to by the officers of the National Court Registry on the same day of the lodgement of the petition or on a later date. The risk of recording the date of filing beyond 40 days electronically or manually by the National Court Registry officers is real and the petition can be dismissed simply because the filing date recorded on the petition is outside 40 days even though the petition was lodged electronically or uploaded on the IECMS or physically at the National Court Registry by the fortieth day. It even makes the argument that if a petition is lodged many days by the fortieth day there will be adequate time for it to be “sealed with the seal of the Court and endorsed with an election petition number,” superfluous.
19. As the debate over the definition of the word “filed” under Section 208(e) continues and with the Supreme Court yet to be involved to give some clarity and direction as to which way to go, it is open to this Court to adopt one of the views expressed by the National Court in the cases referred to by the first respondent above.
20. On this Court’s part, the controversy can be resolved by giving the word “filed” its natural and ordinary meaning. According to the Oxford Advanced Learner’s Dictionary 8th edition 2010 Oxford University Press, Oxford at page 572, the word “filing” means “the act of putting documents, letters etc, into a file” or “something that is placed in an official record”. The verb “file” means “to put documents, etc, in a particular place and in a particular order so that you can find them easily; to put a document into a file; to present something so that it can be officially recorded and dealt with.”
21. The National Court resorted to the plain English definition of the word “filing” in Paru Aihi v. Peter Isoaimo (2014) N5694 at [17] by adopting the definition of the word “file”. Then at [18] the National Court explained:
“Applying the above definition to the present case when a petition is presented at the National Court Registry for filing, it is intended that it be put into the file of the Court; that it is officially recorded in the Court’s file and to be dealt with by the Court. The act of filing occurs at the time the petition is presented at the Registry, received by the Election Petition Registry staff and placed in the file. It should also be noted that the Court maintains a physical file and when the petition is presented for filing, it is place in the file. A date is written on the petition to indicate when it was filed. The date of filing is the date the petition is received. It is also this time that the security for costs must be paid.” Underlining is added).
22. The above passage was cited with approval by the Supreme Court in Paru Aihi v. Peter Isoaimo (2015) SC1598 at [9]. As noted earlier, this definition was given to the word “filing” in Section 209 of the Organic Law on Elections and not Section 208(e) of the Organic Law on Elections.
23. A legal definition of the word “filed” or “filing” may be found at [49] in the judgment of the Deputy Chief Justice in William Gogl Onglo v. Muguwa Dilu & Electoral Commission (supra). Again, that case was decided under Section 209 of the Organic Law on Elections and not Section 208(e) of the Organic Law on Elections. His Honour said:
“The matter in controversy now is what is meant by the word “filed”. The term “filed” is the past tense of the word “file”. That word has several meanings. But in the legal context according to dictionaries like Merriam Webstar Dictionary, the word “file” is defined to mean amongst others “to initiate (something, such as a legal action) through proper formal procedure.” A similar but a clearer definition is given by the free online dictionary in these terms: “to deposit with the clerk of a court a written complaint or petition which is the opening step in a lawsuit””.
24. As the Supreme Court in Paru Aihi v. Peter Isoaimo (supra) explained at [22]:
“The delivery and surrender of the document at the registry constitutes the act of filing.”
25. Applying the above definition to the word “file”, it means to initiate a legal action or deposit a court document with the clerk of the Court as to commence a legal action. In the context of the word “filed” in Section 208(e) of the Organic Law on Elections it means the initiation of an election petition or depositing the election petition with the clerk of the Court as to commence an election petition action. Expressed in the way the Supreme Court in Paru Aihi v. Peter Isoaimo (supra) explained, it is the delivery and surrender of the petition at the National Court Registry that constitutes the act of filing of the petition.
26. As to the definition of the word “filed” in Rule 1 of the EP Rules, to the extent that the word “lodge” is consistent with the definition given to the word “filed” in Section 208(e) of the Organic Law on Elections, the initiation of an election petition or depositing the election petition with the clerk of the Court as to commence a legal action or delivery and surrender of the election petition at the National Court Registry will be adopted. As to the requirements that the petition must be “sealed with the seal of the Court and endorsed with an election petition number,” these are not found in the definition of word “filed” in Section 208(e) of the Organic Law on Elections and are, therefore, inconsistent with Section 208(e). Section 208(e) of the Organic Law on Elections is superior law to Rule 1 of the EP Rules and for this reason, it overrides Rule 1 to the extent that the requirements that the petition must be “sealed with the seal of the Court and endorsed with an election petition number,” will be disregarded.
27. This finding also renders the first respondent’s submissions that Rule 1 of the EP Rules carries force of law because it is judge-made law pursuant to Section 184 of the Constitution and Section 212(2) of the Organic Law on Elections immaterial. It follows that if it is intended that e-filing or uploading or lodgement electronically of the petition using IECMS operated by the National Court Registry constitutes lodgement of the petition, then if the petition was e-filed, or uploaded or lodged electronically by the fortieth day, it is as good as physical lodgement of the petition at the National Court Registry by the fortieth day.
28. Beyond an electronic or physical lodgement of the petition should not and should never be the responsibility of a petitioner. On the other hand, the requirements that the petition must be “sealed with the seal of the Court and endorsed with an election petition number,” in Rule 1 of the EP Rules form part of the ‘vetting’ process that is undertaken by the Registrar and his officers and fall within the jurisdiction of Registrar as head of the Court Registry functions and services. Where a petition meets the ‘vetting”’ process requirements it will be “sealed with the seal of the Court and endorsed with an election petition number.” The date recorded on the cover page of the petition as the date of filing of the petition is not the date it was approved after the ‘vetting’ process has been completed and “sealed with the seal of the Court and endorsed with an election petition number,” but the date when it was lodged by the petitioner.
29. Unless fraud is established in a case where a petition was lodged outside 40 days and the petitioner in collusion with a National Court Registry officer backed-dated the date of filing to comply with the time limitation of 40 days, a date other than the date the petition was lodged by the petitioner at the National Court Registry whether electronically or physically and recorded on the cover page of the petition must be considered a ‘vetting’ process error or oversight by the Registrar and his officers and the petitioner should not be penalised by having his or her petition dismissed for a ‘vetting’ process error or oversight because the date recorded on the cover page of the petition fell outside 40 days despite the petition being lodged by the fortieth day.
30. In the present case, the time limitation of 40 days expired on 16th September 2022. The petition was lodged electronically and physically and received by the National Court Registry officers at Waigani on 15th September 2022. The ‘vetting’ process was not concluded until 21st September 2022 when the petition was “sealed with the seal of the Court and endorsed with an election petition number.” Based on the definition of the word “filed” used in Section 208(e) of the Organic Law on Elections, this Court is satisfied that the petition having been lodged at the National Court Registry at Waigani on 15th September 2022 was filed on 15th September 2022. This is also the date recorded on the cover page of the petition. Further, the Court is satisfied that the thirty-ninetieth day fell on 15th September 2022 and the petition was filed within time. For these reasons, this ground of objection is not made out and dismissed.
Failure to pay a sum of K5,000.00 as security for costs at time of filing of petition
31. The law in Section 209 of the Organic Law on Elections states that “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.”
32. The first respondent objected to the competency of the petition on the ground that the petitioner did not comply with the requirement of Section 209 (supra), that is, the petitioner failed to pay the security for costs in the sum of K5,000.00 at the time of filing the petition. The counsel for the first respondent made extensive submissions on this ground. The submissions can be divided into five main parts which collectively lend support to the conclusion that the security deposit of K5,000.00 was paid three days prior to the petition was filed. These are:
(a) As a matter of statutory construction, Section 209 of the Organic Law on Elections envisaged that the security for costs of K5,000.00 must be paid at the same time as the filing of the petition.
(b) Case law in Paru Aihi v. Peter Isoaimo (2015) SC1598, Moses Manwau v. Allan Bird (2023) N10249, Ibo v. Hagahuno (2023) N10322, Kala v. Temu (2023) N10364, Kala v. Temu (2023) SC2453, Dominic v. Kaupa (2023) N10361, Nupiri v. Powi (2023) N10398, Nupiri v. Powi (2023) SC2459 and Nasam v. Sungi & Electoral Commission (2024) SC2552 support the view that the security for costs of K5,000.00 must be paid at the same time as the filing of the petition.
(c) With the introduction of the IECSM the view expressed by the Court in Raminai v. Pano (2023) N10248, Petrus Thomas v. William Bando (2023) N10335, that uploading of unendorsed and unsealed petition including receipt of payment for security for costs does not constitute filing of the petition until the petition is sealed with the seal of the National Court and endorsed with an election petition number must be preferred over the view expressed by the Court in Jean Parkop v. Gary Juffa (2023) N10281 and Francis Maneke & Electoral Commission (2024) N10665 that it is not in every case that payment of security for costs must be made at the time of filing of petition but any time before the expiry of 40 days.
(d) Date recorded on the petition being 15th September 2022 as the date of filing of the petition is not the same as the date recorded on the receipt of payment of security for costs, it being 20th September 2022.
(e) Evidence by affidavits from a lawyer from Kuman Lawyers Nicholle Bitas and verified by the National Court Registry officers Mr Baka Bina and Mrs Kini Mamis further supported the view that the security for costs of K5,000.00 was not paid on the date of filing of petition.
33. The counsel for the petitioner submitted that the view expressed by the Court in the cases cited by the first respondent should not be adopted because it is based on a very narrow and strict interpretation of Section 209 of the Organic Law on Elections and will result in absurdity and injustice. The Court should adopt a fair and liberal approach to interpretation to give meaning to Section 209 as in the cases of Jean Parkop v. Gary Juffa (supra), William Gogl Onglo v. Muguwa Dilu (supra) and Francis Maneke & Electoral Commission (supra).
34. The first observation to make is it is abundantly clear that there is a divergence of judicial opinion on the construction and application of Section 209 of the Organic Law on Elections. The issue then is whether a security for costs of K5,000.00 must be paid at the time of filing the petition. The second observation is that there is no Supreme Court judgment which authoritatively and conclusively decided that a security for costs of K5,000.00 must be paid at the time of filing of the petition.
35. Thirdly, the Supreme Court judgments in Kala v. Temu (2023) SC2453, Nupiri v. Powi (2023) SC2459 and Nasam v. Sungi & Electoral Commission (2024) SC2552 were by a single judge of the Supreme Court deciding the question of leave to review under Section 155(2)(b) of the Constitution as opposed to a full Court which would otherwise settle the question and this Court would be bound by it.
36. Fourthly, Section 209 of the Organic Law on Elections has not been amended. If it has not been amended, then the interpretation given by the Supreme Court in Paru Aihi v. Peter Isoaimo (supra) has remained unchanged. The Supreme Court cited with approval a passage from the judgment of the National Court at [19] of its judgment:
“Applying the above definitions to the present case when a petition is presented at the National Court Registry for filing, it is intended that it be put into a file of the Court; that it is officially recorded in the Court’s file and to be dealt with by the Court. The act of filing occurs at the time the petition is presented at the Registry, received by the Election Petition Registry staff and placed in the file. It should also be noted that the Court maintains a physical file and when the petition is presented for filing, it is placed in the file. A date is written on the petition to indicate when it is filed. The date of filing is the date the petition is received. It is also at this time that the security for costs must be paid. In other words, the filing of the petition and payment of security for costs must occur at the same time and I do not think s. 209 (supra) and Rule 5 (supra) envisaged that they occur at different times. This being the case, I am satisfied that the petitioner failed to pay security for costs at the time of filing this petition.”
37. The National Court decisions and the rulings of the single judge of the Supreme Court refusing leave to review the decision of the National Court in dismissing the petition as being incompetent on the ground that the security for costs was not paid at the time of filing the petition will not be followed because the Court adopted the literal interpretation of Section 209 (supra). In so doing overlooked the practical aspect of the payment of security for costs. Given that payment of security for costs may be by cash or cheque, Section 209 (supra) does not tell the petitioner how to “deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.” Rule 7 of the EP Rules provides this information in these terms:
“The security deposit required by section 209 of the Organic Law shall be paid by 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.”
38. Thus, payment of security for costs may be by cash or by bank cheque into the National Court Registrar’s Trust Account. The practicalities associated with the payment of security for costs is that the National Court Registrar’s Trust Account is held at a bank. It is not held by the Registrar at the Waigani National Court Registry or a Registry or Sub-registry of the National Court in the provinces. It is common knowledge that the bank where the appropriate Trust Account of the National Court Registrar is held is located away from the National Court Registry at Waigani. To then expect the petitioner to perform the task of paying K5,000.00 at the National Court Registry by cash or by bank cheque at the time of filing the petition is absurd. Further, to suggest that it must be paid on the same date as the date of filing the petition will not in happen in every case because of the distance between the bank and National Court Registry. The other is commercial banks such as BSP Bank provide online banking services to the customers and where a petitioner deposits the security for costs online to the National Court Registrar’s Trust Account, a copy of the receipt of payment is produced/presented with the petition to the Registrar as evidence of deposit of the security for costs.
39. Reading Section 209 (supra) in its context will not only resolve the practical aspects associated with payment of security for costs but importantly achieve the purpose of security for costs. A deposit of security for costs is a part payment of the respondents’ costs to be held in the National Court Registrar’s Trust Account until the completion of the election petition. If the election petition is terminated in favour of the respondents, unless ordered otherwise, the respondents will share the sum of K5,000.00 between them. It is for this reason that it is one of the requisites of a petition under Section 209 (supra). The petitioner must pay upfront a sum of K5,000.00 as security for costs. Thus, it would not be unreasonable to deposit this sum in advance into the National Court Registrar’s Trust Account at the bank to comply with this requirement under Section 209 (supra).
40. Common sense dictate that as the sum of K5,000.00 is deposited into the National Court Registrar’s Trust Account, the bank will issue a receipt of payment as evidence of payment. According to Rule 7 of the EP Rules, the petitioner shall produce the receipt of payment as “evidence of the deposit” and shall file it with the petition. If the receipt of payment is produced with the petition on the day the petition is lodged for filing, it is compliant of Section 209 (supra). On the other hand, if the receipt of payment is not produced with the petition, the petitioner will be in breach of Section 209 (supra) and the petition can be rejected by the Registrar.
41. The first respondent relied on a further ground which was not a strong point because it is contradicts the main ground that the security for costs was paid one day before the petition was filed. This further ground is that the receipt of payment and notice of payment of the security for costs issued by the Registrar of the National Court was five days after 40 days had expired. This further ground is misconceived because the receipt of payment and notice of payment have no legal foundation in Section 209 of the Organic Law on Elections. They do not form part of the requisites of the petition. On the other hand, they form part of the “vetting process” that the Registrar and his officers undertake to clear a petition for the purposes of filing. This is where the Registrar, upon being satisfied that on the date the petition was lodged for filing, there was “evidence of deposit” of the security for costs, will issue a receipt of payment and notice of payment to confirm that he has received the sum of K5,000.00 for security for costs from the petitioner. It follows that the date recorded on the receipt of payment and notice of payment is immaterial to determine the date of payment of the security for costs.
42. Finally, it is also immaterial and unnecessary to call evidence from the National Court Registry officers, in this instance, Mr Bina and Mrs Mamis to verify the date of filing of petition and payment of security for costs. As earlier observed, where a petition is lodged with the “evidence of security deposit” at the National Court Registry, the requirement for the petition to be “sealed with the seal of the Court and endorsed with an election petition number”, and the issuance of the receipt of payment and notice of payment of the security for costs form part of the “vetting process” undertaken by the Registrar and his officers. Unless fraud is proved, which is not the case here, the date recorded on the petition is the date the petition was lodged. On the other hand, the date recorded in the receipt of payment and notice of payment is immaterial.
43. The view expressed here that the delivery and receiving of the petition at the National Court Registry constitutes act of filing within the meaning of Section 209 of the Organic Law on Elections is reinforced by the earlier decision of the Court in Francis Maneke & Electoral Commission (supra) where the Court gave these reasons for this view at [11] to [16]:
“A literal interpretation requires the Court to give a literal or grammatical meaning to the words of the statutory provision, in this case the Organic Law. But it is not always the case that there is one meaning to a word if the natural and ordinary meaning is given. It is also equally important that when applying a literal or grammatical meaning to the word, it must not result in absurdity.
A contextual interpretation is used to address an ambiguity in the word or text of a statutory provision. First, the Court looks at the intention of the legislative which may include use of extrinsic materials such as Hansards of parliament and secondly, addresses any mischief discoverable by the use of the extrinsic materials.
Applying these principles of statutory interpretation to this case, I accept the submissions of the petitioner that to apply a literal interpretation to Section 209 will result in absurdity because practically speaking, an act of filing the petition occurs at the National Court Registry while the act of depositing the sum of K5,000.00 as security for costs occurs at the BSP Bank where the Registrar’s National Court Trust Account is held. It does not make sense that both acts must occur at the same time. To read Section 209 literally will result in absurdity.
Reading Section 209 in its context makes a lot of sense and is compelling because it recognizes the need to file a petition and deposit the sum of K5,000.00 as security for costs as being two separate acts but necessary for the purpose of Section 209. To expect both acts to occur simultaneously in every case lies the mischief and should not be allowed. I think this was what the National Court sought to avoid in the case of Parkop v. Juffa (2023) N10281 when it relied also on Section 217 of the Organic Law and refused to dismiss the petition for not complying with Section 209 of the Organic Law and to give paramountcy to dispensation to justice.
Rule 5 of the EP Rules reinforces the contextual interpretation by requiring petitioner to file a petition “...... together with the official receipt or stamped bank deposit slip as evidence of payment of the filing fee and of the security deposit.”
Similarly, Rule 7 of the EP Rules require that the security deposit “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”. The Registrar’s Trust Account is held with the BSP Bank and which the petitioner deposited the K5,000.00.”
44. In summary, there is no question that Section 209 of the Organic Law on Elections stipulates that at the time of filing the petition the petitioner shall deposit with the Registrar of the National Court a sum of K5,000.00 as security for costs. As payment of K5,000.00 which is deposited into the National Court Registrar’s Trust Account is the accepted mode of payment these days as opposed to cash or bank cheque at the front counter of the National Court Registry, the evidence of payment is crucial to the question of “time of filing the petition”.
45. The view expressed by the National Court in Parkop v. Juffa (supra), Onglo v. Dilu (supra) and Marus v. Maneke (supra) are best captured by the judgment of the National Court in Luke Alfred Manase v. Don Pomb Polye & Electoral Commission: EP No 22 of 2022 (Unnumbered & Unreported Judgment of Bona J dated 19th January 2024) where it was held at [14]:
“The security deposit fee was paid into the National Court Registrar’s Trust Account on the 30thAugust 2022 which is about (4) days before the date of filing of the petition. However, the official receipt of the security deposit for costs was filed together with the petition on the same date and time which is the 7th September, 2022. The security deposit for costs was therefore filed within time and together with the petition.” (Underlining added).
46. In the present case, again it is common ground that the petition was lodged on 15th September 2022 which constitutes filing of the petition. It is also common ground that based on the BSP Bank receipt of payment, a sum of K5,000.00 as security for costs was deposited into the National Court Registrar’s Trust Account by the petitioner on 14th September 2022. It follows that it is the finding of this Court that the deposit of the security for costs on 14th September 2022 is compliant of Section 209 (supra). This ground of objection is not made out and dismissed.
Failure to Plead Facts
47. The law stated in Section 208(a) of the Organic Law on Elections is that “A petition shall set out the facts relied on to invalidate the election or return...” The word “facts” used in Section 208(a) is not defined in the Organic Law on Elections, but case law say that “facts” are “material facts”, or “relevant facts”, or “essential facts”, or “necessary facts”, or “sufficient facts” or “base facts” which a petitioner must plead to constitute a ground to invalidate an election or return. In the context of this petition, the onus is on the petitioner to plead “material facts”, or “relevant facts”, or “essential facts”, or “necessary facts”, or “sufficient facts” or “base facts” to constitute the ground on illegal practices at polling and counting to invalidate the election or return of the first respondent. Holloway v. Ivarato [1988-89] PNGLR 99.
Overview of the Allegations
48. It is noted that at paragraphs 1 to 8 of the petition the petitioner sets out the background allegations of fact and overview
of the allegations of illegal practices and errors or omissions. In terms of number of votes polled by him and the first respondent
at the end of counting, at paragraph 5 of the petition, the petitioner alleged that he polled 15,907 votes and the first respondent
polled 19,170 votes, a difference of 3,263 votes.
49. At paragraph 6 of the petition, the petitioner relied on the grounds of illegal practices occasioned by agents and or servants
of the first respondent and first respondent and illegal practices and or errors or omissions by polling and counting officials employed
by the second respondent at the time of polling and counting of ballot papers to dispute the election of the first respondent.
50. At paragraph 7 of the petition, the petitioner alleged that a total of 5,150 ballot papers were illegally marked and or tampered with by the actions and or omission of the supporters of candidates in certain polling areas in the Gumine Open electorate election and agents and or servants of the second respondent to the effect that the election result was affected. In summary, the allegation is directed at illegal practices and errors or omissions at polling.
51. In the second case, at paragraph 8 of the petition, the petitioner alleged that more than 4,000 ballot papers were fraudulently tampered with by agents and or servants of the second respondent at the counting centre to the effect that the election result was affected. The allegation is directed at agents or servants of the second respondent fraudulently tampering with ballot papers at counting.
Illegal practices at polling places
52. As to the details of illegal practices at polling, there are four instances of them. These are addressed hereunder.
Illegal marking of ballot papers at Digibe Ward 4 of the Digine LLG poling area
53. The first instance of illegal practices at polling is pleaded at paragraph 9.1 (a) to (n) as follows:
9.1 The petitioner alleges that there was illegal marking of ballot papers at Digine Ward 4 of the Digine LLG poling area in Gumine District on the 19th July 2022, where polling team no. 122/06 presided by Marcus Gale, with ballot box EC-020096 has set up to conduct polling, in that;
54. In relation to this allegation and the other three allegations of illegal practices, the first respondent submitted that the petition failed to state the facts:
(a) showing the use of force, threat or intimidation;
(b) specify the names of the alleged perpetrator illegally marking the ballot papers;
(c) specify which ballot papers were allegedly hijacked, the ballot papers for the Provincial seat or the Open seat, given that it was a General election;
(d) states the names of the electors who turned up to vote but were denied their right to vote;
(e) that the subject ballot box and papers therein, were admitted into counting to show that the results of the election arrived at included the ballot-papers that were allegedly illegally marked;
(f) when the subject ballot boxes were admitted into counting, how were the ballot papers counted and the number of votes secured by the first respondent and other candidates;
(g) given the lack of these vital facts, it is difficult to ascertain the test of whether the results were likely to be affected, as required by Section 215(3) of the Organic Law on Elections.
55. In addition, the first respondent submitted that the allegations of fact constituting each instance of illegal practices is contradictory and confusing because on the one hand, the petitioner alleged that polling was flawed and on the other, he said that there was scrutiny of the subject ballot boxes without any objection. As the Supreme Court held in Sandy Talita v. Peter Ipatas (2016) SC1603:
(a) it is not permissible to plead there was no polling, or polling was flawed and on the other hand, plead there was scrutiny of the ballot boxes without any objections, and
(b) where an election petition plead illegal practices, errors or omissions committed at polling known by many people, it follows as a matter of consistency that it is necessary to plead errors or omissions committed by electoral officials in dealing with any objection against admission of the ballot box for counting at scrutiny.
56. Alternatively, the first respondent submitted that allegations of illegal practices should be dismissed because the petitioner failed to plead:
(a) the subject ballot boxes were counted.
(c) the subject ballot boxes were disputed and objected at the time of their admission into scrutiny under Section 153A of the Organic Law on Elections.
(c) even if they were subjected to an objection at counting, the petition does not plead errors or omissions committed by electoral officials in admitting the subject ballot-boxes into scrutiny.
57. The first respondent made further submissions covering all four allegations of illegal practices at polling. For each of the four polling locations, it was submitted that while the petition stated the number of ballot papers allegedly marked by supporters, it failed to state:
(a) if these ballot papers were for Gumine Open electorate only or the Simbu Provincial electorate or a mixture of both; and
(b) the total number of ballot papers for the Gumine Open electorate that were alleged to have been illegally marked.
58. Because of lack of these facts, the allegations of illegal practices at polling are vague and confusing and has made it difficult for the respondents to identify the ballot papers which were alleged to have been illegally marked and to response to them. According to the first respondent, these missing facts are essential to laying the foundation for evidence to be led at trial to prove the allegations of illegal practices at polling. To reinforce this submission, his counsel quoted a passage from the judgment in Raymond Agonia v. Albert Karo [1992] PNGLR 463 which was cited with approval by the Supreme Court in Robert Kopaol v. Philemon Embel (2003) SC727 “The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.”
59. Finally, the first respondent submitted that the petition failed to state facts to show how the result of the election was likely to be affected. His counsel quoted passages from the judgment of the National Court in Daniel Bali Tulapi v. James Lagae (2013) N5235 to reinforce the submissions that the number of ballot papers affected by the alleged illegal practices must be pleaded to demonstrate how the result of the election was likely to be affected.
60. In addition, counsel submitted that a failure by the petitioner to plead the number of ballot papers affected by the alleged illegal practices to demonstrate how the result of the election was likely to be affected constitutes a fundamental defect in the pleadings and cannot be cured by an amendment as it is past 40 days to amend or calling of evidence to fill in the void. The reason is that proof of the allegation of illegal practice where the number of ballot papers establish that the result of the election was likely to be affected may result in the first respondent declared as not to be duly elected or that the election should be declared void under Section 213(3) of the Organic Law on Elections.
61. As to the second respondent, it was submitted that the allegations of fact in support of the four instances of illegal practices pleaded at paragraph 9.1, 10.1, 11.1 and 12.1 consists of mostly evidence and should be struck out. In the case of the first instance of illegal practice, the actual allegations of illegal practice are pleaded at paragraph 9.1(l) and (m). However, they are insufficient because first, there is no allegation that Taul David marked the ballot papers. Secondly, there are no names of supporters of candidates who marked the ballot papers. The names or identity of the persons is a material or relevant fact because an illegal practice is committed by a human being. This material or relevant fact is missing and renders the first instance of illegal practice incompetent. Addition, it was submitted that it is a material or relevant fact but there are no facts pleaded in relation to the number of ballot papers issued to the polling location. The lack of this material or relevant fact also renders the first instance of illegal practice incompetent.
62. In the case of the second instance of illegal practice, the actual allegations of illegal practice are pleaded at paragraph 10.1(i) and (m). However, the allegations of fact are confusing because at paragraph 10.1(i) it is alleged that polling officials illegally marked 800 ballot papers and at paragraphs 10.1(k) and (l), they illegally marked 1,200 ballot papers.
63. In relation to the third instance of illegal practice, the allegations of fact at paragraph 11.1(i) to (l) do not disclose the names or identity of the persons who took out the ballot papers and illegally marked them. This is because an illegal practice is committed by a human being, and it is necessary to name or identify the persons involved. The failure to plead the names or identity of the persons involved renders this allegation of illegal practice incompetent.
64. In relation to the fourth instance of illegal practice, except for Assistant Presiding Officer Bal David who is said to have illegally marked 500 ballot papers, there are no allegations of fact at paragraph 12.1 disclosing the names or identity of the persons illegally marked the ballot papers. Again, this is because an illegal practice is committed by a human being, and it is necessary to name or identify the persons involved. The failure to plead the names or identity of the persons involved renders this allegation of illegal practice incompetent.
Failure to show the use of force, threat or intimidation
65. This ground of objection is misconceived because it is not necessary that an illegal practice at polling is committed by use of force, threat, or intimidation. On the contrary, it can be committed in a subtle way without any appearance of threats or violence. It is fair to say that people are cunningly smart these days. They devise new strategies to subvert or hijack the electoral process. One of them is the use of non-violent strategy to secure a greater number of votes for the candidate of their choice during polling. This is where the supporters of candidates of the electorate from a given polling location reach an agreement among themselves with the aiding and abetting of polling officials to allocate certain number of ballot papers to candidates and distribute them to the representative of each candidate contesting the election for the electorate to mark.
66. This strategy is used to ‘make everyone happy’ because all the candidates will receive votes based on the number of ballot papers allocated to him or her. It is believed that unless it is necessary, the use of non-violent strategy is a better and effective way to procure votes than use of threats and violence where the risk of injuries and deaths to supporters of rival candidates including destruction of property is high. Significantly, it reduces the risk of exposing the successful candidate to damning evidence of hijacking of ballot-boxes and ballot papers during polling if an election petition is filed against the candidate’s win. The allegation of illegal practice in each instance is based on this type of illegal practice, a non-violent strategy.
67. It is for these reasons that the second respondent’s submissions that most of the allegations of fact consists of evidence rather than material or relevant facts is rejected. On the other hand, the allegations of fact from paragraph 9.1 (a) to (k) give the background facts and put into context the allegation because the petitioner is alleging that polling was hijacked by supporters of candidates resulting in voters (electors) not voting. In the first instance of illegal practice, polling was scheduled to start on 18th July 2022 at Digine but was unilaterally moved to Balimkoa village on the insistence of Councillor Kopan Pui, Taul David and others. Because of this polling was delayed until 19th July 2022. On the said date, after a disagreement, it was agreed among the supporters of the candidates that certain number of ballot papers be allocated and distributed to the supporters of the candidates including the first respondent to mark to avoid any conflict. It was done. This ground is without merit and dismissed.
Failure to specify the names of the alleged perpetrator illegally marking the ballot papers
68. This ground is without merit and dismissed because the names of the alleged preparators in each allegation are stated in the petition. They are repeated hereunder:
(a) First instance of illegal practice
(i) Presiding Officer – Marcus Gale
(ii) Councillor Kapan Paul who is the instigator
(iii) First Respondent’s Representative – Taul David
(iv) Other Candidates’ Representative – John Garia
69. In response to the second respondent’s objection that there is no allegation that Taul David illegally marked ballot papers, this objection overlooks the allegation that ballot papers were allocated to candidates and distributed to the supporters of candidates to mark them. The allegation of fact pleaded at paragraph 9.1(l) is that Councillor Kopan Pui distributed 500 ballot papers to the first respondent’s representative Taul David. While the word “distributed” is used instead of “gave”, it is a choice of words rather than substance. The substance is Taul David received 500 ballot papers. Because of this, voters (electors) did not vote. This is the main complaint. Then, the allegation of fact at paragraph 9.1(m) tells the reader that the supporters of the first respondent and supporters of other candidates received a total of 850 ballot papers and illegally marked and returned them to the presiding officer who deposited them into the ballot box. The allegations put the defence on notice that Taul David is one of the alleged perpetrators who illegally marked the ballot papers. To insist on the petitioner to be very specific about Taul David marking the ballot papers when there are sufficient facts pointing to him receiving 500 ballot papers from Councillor Kopan Pui and supporters of the first respondent illegally marking the ballot papers is nitpicking. By all counts, Taul David has been identified and the respondents are put on notice that petitioner will call evidence at trial to prove that he was one of the perpetrators. This ground of objection is dismissed.
(b) Second instance of illegal practice
(i) Presiding Officer – Zilpa Dawa
(ii) Assistant Presiding Officer – David Kunga
(iii) Polling Clerks – Wai Nule, Otto Wemin and Ms Maiki Teine
(iv) Local Leaders – Nulan John and Gena Teine as supporters of candidate Robert Koban.
70. Similarly, in response to the second respondent’s objection that the allegations of fact are confusing because at paragraph 10.1(i) it is alleged that polling officials illegally marked 800 ballot papers and at paragraphs 10.1(k) and (l), they illegally marked 1,200 ballot papers, this objection is misconceived because it is based on a misreading of the whole allegations. Paragraph 10.1(a) refers to 1,200 ballot papers for Yagauma tribe, Ward 7 Karil Maril polling area. Out of this number of ballot papers, at paragraph 10.1(i), 800 were marked first preference for candidate Robert Kopan and second preference for the first respondent respectively. The balance of that is 400 and according to paragraph 10.1(l) were distributed to the representatives of the other neighbouring candidates. Given this, the petitioner is complaining that 1,200 ballot papers were given away to the supporters of the candidates to illegally mark. Because of this, the voters (electors) did not vote. This ground of objection is dismissed.
(c) Third instance of illegal practice
(i) Presiding Officer – Jeff Peter.
(ii) Supporters of candidates who demanded ballot papers to be distributed to candidates – Peter Arrwai, Keith Peter, John Ba, Kuman Sipa and Sunny Papau.
71. Similarly, in response to the second respondent’s objection that the allegations of fact at paragraph 11.1(i) to (l) do not disclose the names or identity of the persons who took out the ballot papers and illegally marked them, the alleged perpetrators have been identified. They are listed in the above paragraph and this objection is misconceived and dismissed.
(d) Fourth instance of illegal practice
(i) Presiding Officer – Simon Wena.
(ii) Assistant Presiding Officer – Bal David.
(iii) Councillor Parker Rambo who is the instigator. He demanded first preference vote be given to the first respondent.
72. Similarly, in response to the second respondent’s objection that the allegations of fact in relation to the fourth instance of illegal practice only Assistant Presiding Officer Bal David has been identified as the person who illegally marked 500 ballot papers and that there are no allegations of fact at paragraph 12.1 disclosing the names or identity of the persons who illegally marked the ballot papers, as noted in the above paragraph, it is not only Bal David but also presiding officer Simon Wena and Councillor Parker Rambo who were aided and abetted the commission of the alleged illegal practice.
73. In summary, the respondents’ objection is misconceived. The alleged perpetrators have been identified and the respondents are put on sufficient notice that these persons are the alleged perpetrators of the alleged illegal practices of illegal marking of ballot papers at each polling location.
Failure to specify which ballot papers were allegedly hijacked, the ballot papers for the Provincial seat or the Open seat, given that it was a General election
74. This ground is a typical example of what has been commonly described by the Court in past cases as a ‘nitpicking exercise’ because it is abundantly clear from each instance of illegal practice that there was a compromise amongst the supporters of the candidates for Gumine Open electorate for the presiding officer and his team to allocate certain number of ballot papers to each candidate and distribute them to the supporters of the candidates to mark them. The presiding officer and his team also participated in the illegal marking of the ballot papers. Surely the complaint by the petitioner is not one against at any other electorate than Gumine Open let alone the Simbu Provincial electorate where he has no direct interest. This ground is without merit and dismissed.
Failure to state the names of the electors who turned up to vote but were denied their right to vote
75. An allegation of illegal practice of the type pleaded by the petitioner cuts deep into the electoral process and if proven will have a devastating effect on the voters (electors) where they will have been denied their right to participate in the democratic process to elect the candidate of their choice to the Parliament. Thus, it is a very serious matter, and it is not necessary that only the voters (electors) must be named or identified in the petition to testify that polling was compromised by the illegal marking of ballot papers. On the contrary, any person who witnessed such illegal acts by those who perpetrated it must be willing and free to come to Court to testify against such illegal acts. The petition states the names of persons who were alleged to have opposed the illegal marking of the ballot papers by the presiding officers, assistant presiding officers and supporters of the first respondent and other candidates. These persons are:
(a) First instance of illegal practice
(i) Councillor Kum Gabi
(ii) Bruno Bike
(iii) Samuel Peter
(b) Second instance of illegal practice
(i) David Watt
(ii) Yunus Teine
(iii) Candidate Ronnie Teine Maine
(c) Third instance of illegal practice
(i) Eric Phile
(d) Fourth instance of illegal practice
(i) Kopan tribal leader – Dom Simin
(ii) Kopan tribal leader – Kopan Simin
(i) Kopan tribal leader – Kum Eriu
76. Based on these allegations of fact, the respondents are not left guessing who may be called as a witness by the petitioner. On
the contrary, these persons have been identified and it will be up to the petitioner to call them at trial. This ground is without
merit and dismissed.
Failure to state that the subject ballot box and papers therein, were admitted into counting to show that the results of the election arrived at included the ballot-papers that were allegedly illegally marked
Failure to state when the subject ballot boxes were admitted into counting, how were the ballot papers counted and the number of votes secured by the first respondent and other candidates
Lack of these vital facts made it difficult to ascertain the test of whether the results were likely to be affected were likely to be affected, as required by Section 215(3) of the Organic Law on Elections.
77. These three grounds will be addressed together because they bring up the common issue in relation to the adequacy of facts supporting the allegation of illegal practices at counting.
78. The first respondent’s submissions that there are no allegations of fact pleaded in the petition in relation to any objections being taken to the ballot papers that were allegedly illegally marked at polling when they were admitted to scrutiny overlooks the proposition that ballot papers were illegally marked at polling at four different polling locations which the petitioner has identified in the petition. The alleged illegal practice is the allegation that the conduct of polling was in breach of Sections 122 to 139 of the Organic Law on Elections whereby each voter (elector) who was entitled to cast a vote at polling did not do so because ballot papers were distributed to the supporters of the first respondent and other candidates and marked by them. Significantly, the right of a voter (elector) to mark the ballot paper in private or what is commonly referred to as ‘secret ballot’ under Section 138 (supra) was allegedly breached.
79. The alleged illegal practice of illegal marking of ballot papers is a distinct and separate allegation from an allegation of denial by the Returning Officer to object to the ballot-box from being admitted to scrutiny under Section 153A of the Organic Law on Elections. Furthermore, an illegal practice carries an element of intent, that it was done on purpose or ulterior reasons rather than a mistake or error of judgment. Where it is alleged that the Returning Officer for ulterior reasons, refused to uphold an objection taken under Section 153A (supra) and admitted a ballot-box to scrutiny, it will constitute an illegal practice. This type of allegation of illegal practice is different from an allegation of manipulation of ballot papers at counting where ballot papers are deliberately placed in the tray of the successful candidate by counting officials resulting in the candidate receiving greater number of votes than other candidates.
80. Thus, where the petitioner does not plead in the petition an allegation that the Returning Officer for ulterior reasons, refused to uphold an objection taken under Section 153A (supra) and admitted a ballot-box to scrutiny, it is no bar to the petitioner from relying on the allegation of illegal marking of ballot papers at polling. Similarly, it is not necessary for the petitioner to plead and rely on allegations of errors or omissions that he objected to ballot-boxes containing ballot papers that were illegally marked and the Returning Officer made an error or failed to exclude them from being admitted into scrutiny under Section 153A (supra). Thus, a failure to plead such an allegation is no bar to a petitioner from relying on an allegation of illegal practice at polling to dispute the election of the successful candidate. In the instant case, it is open to the petitioner to rely on the allegation of illegal marking of ballot papers at polling at four polling locations.
81. For these reasons, the first respondent’s submissions that for the petitioner to alleged that there was no polling or polling was flawed and yet did not object to the ballot-boxes containing the tampered ballot papers from being admitted to scrutiny is contradictory or confusing is without merit and rejected. What is important is that the petitioner must demonstrate that because of the illegal practice, the result of the election was likely to be affected under Section 215(3) (supra).
82. As to the requirement to plead the number of ballot papers being affected by the alleged illegal marking of ballot papers, the
first respondent’s submissions that it is essential to plead the number of ballot papers affected by the alleged illegal marking
of ballot papers to demonstrate how they were likely to affect the result of the election is upheld. In an allegation of illegal
practice of the type pleaded by the petitioner, number of ballot papers alleged to have been illegally marked is a “material fact” or “relevant fact” or “essential fact” or “necessary fact” or “base fact” to establish that the result of the election was likely to be affected. This is because to prove this type of allegation, the test
under Section 215(3) of the Organic Law on Elections is whether the result of the election was likely to be affected. The judgment of the National Court in Daniel Bali Tulapi v. James Lagae (supra) which the first respondent quoted passages from reinforce the view that number of ballot papers in a case of illegal marking
of ballot papers is important to sustain the allegation and must be pleaded. The National Court explained:
“Pursuant to s. 208(a) read in conjunction was s.215(3) and s.218, the petition must plead the essential facts in terms of the number of eligible voters or votes cast at the polling and valid votes assigned to candidates at the scrutiny that were affected by the illegal practices, errors, omissions and irregularities complained of, and demonstrate how the result of the elections was affected or likely to be affected.” (Underlining added).
83. Further, the National Court stated:
“It is therefore critical for the survival of an election petition from judicial scrutiny under s.210 for the petitioner who raises grounds in a petition under s.215(3) and s.218 to plead the essential facts in figures to demonstrate how the result of the election was affected or is likely to have been affected by those illegal practices, errors, omissions and irregularities.” (Underlining added).
84. In the first instance, it is alleged that there was a total of 850 ballot papers. The first respondent received 500 ballot papers and 350 ballot papers were given to other candidates to share. The allegation that 850 ballot papers were distributed to supporters of candidates to mark without each voter (elector) receiving ballot papers for Simbu Provincial electorate and Gumine Open electorate and marking and placing them in the respective ballot-boxes for these electorates is an illegal act. Furthermore, the petitioner has aptly referred to this type of illegal act at paragraph C1-2 of the petition as constituting an illegal practice under Section 286 of the Organic Law on Elections and a criminal offence under Section 109 (Electors Attempting to Violate Secrecy of Ballot etc) and Section 110 (Stuffing Ballot-Boxes) of the Criminal Code. Because of this, the petitioner has correctly relied on Section 215(3) of the Organic Law on Elections to dispute the validity of the election or return of the first respondent as member for Gumine Open electorate.
85. In the second instance, the allegation of illegal practice is of similar characteristics as the first one but this time, a total of 800 ballot papers were alleged to have been illegally marked by the supporters of the first respondent and other candidates.
86. In the third instance, the allegation of illegal practice is of similar characteristics as the first and second allegations but this time, a total of 1,700 ballot papers were alleged to have been illegally marked by the supporters of the first respondent and other candidates.
87. In the fourth and last instance, the allegation of illegal practice is of similar characteristics as the first, second and third allegations but this time, a total of 1,400 ballot papers were alleged to have been illegally marked by the supporters of the first respondent and other candidates.
88. Adding 850, 800, 1,700 and 1,400 ballot papers will give a total of 4,750.00 ballot papers. The difference between the total number of votes received by the first respondent’s votes and total number of votes received by the petitioner is 3,263 votes. 4,750 ballot papers which are alleged to have been illegally marked is more than 3,236 votes and prima facie likely to affect the result of the election. Evidence will be led at trial to establish each instance of illegal practice and it will be for the defence to refute each of these allegations. It follows that the objection by the first respondent on this ground is misconceived and dismissed.
Illegal marking of ballot papers at polling team A Yagauma tribe, ward 7, Karil Maril polling area.
89. The second instance of illegal practices at polling is pleaded at paragraph 10.1 (a) to (n) as follows:
“10.1 The Petitioner alleges that there was illegal marking of ballot papers at Karli Maril station ward 7 (Digine LLG) polling area in Gumine District on the 18th July 2022, where polling team No. 127, presided by Zilpa Dawa with Ballot Box number EC 020119 had set up to conduct polling, in that:
(a) At approximately 11.30am on the said date the polling team A for Karil Maril Ward 7, Digine LLG arrived at the government stationed by the second respondent agent Zilpa Dawa presiding officer and his polling team consists of assistant presiding officer David Kunga, polling clerks Wai Nul, Otto Wemin and Ms Maiki Teine. The polling team A had with them 1,200 ballot papers.
(b) The polling team set up the polling booth and getting ready to supervise the voting when a Nulai John and a Gena Teine from Yagauma tribe, announced to the voters’ words to the effect that today there will be no voting in the prescribed manner but instead ballot papers will be distributed to the representatives of candidates and the representatives will mark for their candidates.
(c) A strong objection was raised by a David Watt, a registered elector and a Rony Teine Maine, a candidate for the Gumine open electorate, a tribesman from Yagauma and also a registered voter. Messers Wat and Maine demanded that all electors must exercise their rights to vote in a fair and democratic manner. Also, choruses of objection came from electors lining up since early hours of the morning demanding to cast their votes.
(d) At that material time, a group of aggressive youths armed with machetes demanded that the entire 1200 ballot papers be marked first preference for candidate Robert Koban and second preference votes be marked for the first respondent.
(e) A compromise was reached amongst the local leaders and a John Nulai and Gena Teine announced to the electors and other at the polling place that the candidate Robert Koban will be allocated 600 ballot papers and the balance of 600 papers will be shared amongst other candidates.
(f) When the preliminaries were completed, the second respondent’s agent’s assistant presiding officer, David Kunga handed over two ballot papers to candidate Ronnie Teine Maine and his wife and one ballot paper to candidate Robert Koban to cast their votes. They all casted their respective votes and deposited into the ballot box witnessed by all the people present at the polling area.
(g) Candidate Ronnie Teine Maine expressed his disappointment at the decision made by the local leaders to promote illegal voting to take place in his home village and that it was against all purpose and intentions of the constitutional requirements to elect leaders for the country and Gumine or Karil Marila people are not exception.
(h) Candidate Ronnie Teine Maine further requested the second respondents’ polling officials who were there to conduct and supervise polling should refrain from allowing any illegal polling and allow the electors to vote in a democratic way.
(i) To the contrary, the second respondent’s agents namely presiding officer Zilpha Dawa, assistant presiding officer David Kunga and three polling clerks namely, Wai Nule, Otto Wemin and Ms Maiki Teine illegally marked first preference 800 ballot papers for candidate Robert Kopan and second preference for the first respondent.
(j) The named presiding officer signed the ballot papers and clerk Ms Maiki Teine tore the ballot paper from the booklet and handed over to the other named polling clerk who then electors lined up to vote.
(k) Subsequently the named leaders intervene and requested the polling officials to stop marking the ballot papers and count the number of ballot papers marked thus far. The named assistant presiding officer counted the ballot papers and said in pidgin “800 pinis” we marked 800 ballot papers.
(l) The named leaders demanded the balance of 400 ballot papers to be disturbed to representatives of other neighbouring candidates. Instead of distributing the balance of the remaining ballot papers, the named presiding officer continued to sign the ballot papers and the two named clerks marked the ballot papers until it rained, and the polling team stopped.
(m) The polling team then moved to the Councillor Chamber and continued marking the ballot papers including marketing the balance of 2nd and 3rd preference votes until completed, inserted the ballot papers into the ballot box and closed the polling t approximately between 6-7 pm.
(n) Polling was not conducted according to the process prescribed and sanctioned by the Second Respondent.
90. This allegation of illegal practice is of similar characteristics as the first one where allegation of illegal marking of ballot papers is the recurring theme at Yagauma tribe, ward 7, Karil Maril polling area. It is noted that the first respondent made similar submissions covering the major issues of lack of facts in relation to the allegation of illegal marking of ballot papers. It will not be necessary then to repeat them here. Similarly, for the reasons given in dismissing the objection to the first allegation, this Court adopts them in this instance and accordingly, dismiss the objection.
91. A further reason to dismiss the objection is that the second respondent’s submissions that most of the allegations of fact consists of evidence rather than material or relevant facts is rejected. This is because the allegations from paragraph 10.1 (a) to (h) give the background facts and put into context the allegation because the petitioner is alleging that polling was hijacked by supporters of candidates resulting in voters (electors) not voting. In the second instance of illegal practice, polling was scheduled to start on the morning of 18th July 2022 at Digine but was delayed until the afternoon because of disagreement between the supporters of candidates over allocation and distribution of ballot papers. In the end, polling was competed between 6 o’clock and 7 o’clock after it was agreed among the supporters of the candidates that certain number of ballot papers be allocated and distributed to the supporters of the candidate to marked to avoid any conflict. It was done. This ground is without merit and dismissed.
92. It is noted that the first respondent made similar submissions covering the major issues of lack of facts in relation to the allegation of illegal marking of ballot papers. It will not be necessary then to repeat them here. Similarly, for the reasons given in dismissing the objection to the first allegation, this Court adopts them in this instance and accordingly, dismiss the objection.
Illegal marking of ballot papers at Polling Team B, Auregauma Tribe, Ward 7, Karil Maril Polling Area
93. The third instance of illegal practices at polling is pleaded at paragraph 11.1 (a) to (n) as follows:
“11.1 The petitioner alleges that there was illegal marking of ballot papers at Bolakew village ward 7 (Digine LLG) polling area in Gumine District on the 18th July 2022, where polling team No. 128 presided by Jeff Peter with Ballot Box number EC020095 had set up to conduct polling, in that.
(a) On the morning of 18th July 2022, electors from Auregauma tribe came together at Bolakewa village for the polling officials to arrive. At around 12.00 noon the polling team was delivered to a welcome by the voters waiting patiently for the whole morning to vote. The polling team was accompanied by the Returning Officer for Gumine, Peter Arre and security personnel.
(b) The Second Respondent’s polling team were Jeff Peter presiding officer, Jonito Kum (assistant presiding officer, Julie Konia) polling clerk, Albert Kopa (polling clerk).
(c) The Returning Officer, Mr Peter Arre made a strong statement on the free fair and safe election in PNG and said the people of Auregauma must uphold the constitutional right of every elector to vote without fear. Leaders from Bolakewa commended the Electoral Commission and Simbu Administration for a trouble- free election preparation and to ensure the electors exercise their democratic rights.
(d) The polling officials completed setting up the polling both ready for voting and the 020110 had set up to conduct polling, in that;
(e) The presiding officer, Jeff Peter called out the serial number of both open and regional ballot boxes and removed 1,700 ballot papers for the regional and open seats for polling Bolakewa polling place.
(f) When the presiding officer was about to sign the ballot papers, some supporters of candidates namely, Peter Arrwai, Keith Peter, John Ba, Kuman Sipa, Sunny Papau, and some others, raised their voice and demanded for the ballot papers to be distributed to candidates in fear of electors casting their votes to other candidates.
(g) The commotion lasted for a long time. Time was running out and there was fear of confrontation and violence between the First Respondents’ supporters and supporters of other candidates.
(h) Despite the electors still lining up to vote, the local leaders resolved and announced to the electors and people at the polling area that ballot papers for Bolakewa will be distributed to the supports of candidates who were present at the polling place. The leaders also announce that the candidates will receive the allocation of ballot papers as follows:
First respondent 450
Robert Khawa Bartho 450
Bata Tom Michael 400
Peter Kopil Garin 300
Joe Sine Wemin 100
The electors who were in queue to vote expressed their total disappointment of the manner in which votes would be casted as announced by the leaders will be illegal and undemocratic.
(i) The presiding officer Jeff Peter distributed a total of 1700 unsigned ballot papers to supporters of candidates based on the allocation announced by the leaders. The ballot papers were in the batch of 50s.
(j) The ballot papers were taken away by named supporters of the candidates, illegally marked and returned to the presiding officer at approximately 6.00pm. The presiding officer then started to sign at the back of the ballot papers until it started to rain.
(k) With the assistance from the community, the polling team was relocated to a small house about 15 and 20 meters from the polling both. The presiding officers then set up a small working area and continued to sign the ballot papers whilst the other polling team members assisted him and managed to insert the signed ballot papers into the ballot box.
(l) At about 10pm that night, the Polling Team then moved again to another house. A Mr Erick Phile noted that the seals and tags were not closed and queried with the presiding officer why he was moving the ballot box to another house without it being sealed. The presiding officer responded and said “I will continue marking and inserting ballot papers tonight”. The polling team got relocated to a Hausman belonging to the supporters of the First Respondent.
(m) On the morning of the 19th July 2022, the polling team with the ballot boxes moved away from Bolakewa village and were extracted around midday.”
94. This allegation of illegal practice is of similar characteristics as the first and second allegations where allegation of illegal marking of ballot papers is the recurring theme at Auregauma tribe, ward 7, Karil Maril polling area. Again, it is noted that the first respondent made similar submissions covering the major issues of lack of facts in relation to the allegation of illegal marking of ballot papers. It will not be necessary then to repeat them here. Similarly, for the reasons given in dismissing the objection to the first allegation, this Court adopts them in this instance and accordingly, dismiss the objection.
95. As in the first and second allegations of illegal practices, the second respondent’s submissions that most of the allegations of fact consists of evidence rather than material or relevant facts is rejected. On the contrary, the allegations of fact from paragraph 11.1(a) to (h) give the background facts and put into context the allegation because as in the first and second allegations of illegal practices, the petitioner is alleging that polling was hijacked by supporters of candidates resulting in voters (electors) not voting.
96. In this instance, after the polling team arrived at Bolakewa village, ward 7 (Digine LLG) polling area at 12:00 noon, a welcome reception the set up the polling booth. A disagreement arose among the supporters of candidates about the proposal by supporters of some candidates to allocate numbers and distribute the ballot papers to the supporters of candidates to mark. By then voters (electors) had stood in a long que waiting to vote. After a long wait and to avoid any confrontation and/violence, it was agreed that certain number of ballot papers be allocated and distributed to supporters of candidates to mark. This was done. This ground is without merit and dismissed.
Illegal marking of ballot papers at Munuma Catholic Church Polling, Ward Munuma Polling B Area
97. The fourth and final instance of illegal practices at polling is pleaded at paragraph 12.1 (a) to (k) as follows:
“12.1 The petitioner alleges that there was illegal marking of ballot papers at Munuma Catholic Church ward 9 (Digine LLG) polling area in Gumine District on the 18th July 2022, where polling Team No. 133 presided by Simon Wena with ballot box number EC-020138 had set up to conduct polling, in that:
(a) On Monday 18th July 2022 the Polling Team for Munuma Polling team B for Kopan tribe was delivered to Konsu village (Manuma Catholic Church) at approximately 11.30am with 1400 ballot papers.
(b) The polling official led by presiding officer, Simon Wena and assistant presiding officer Bal David set up the polling booth and prepared to conduct the polling. At that material time supporters of the first respondent let by councillor Parker Rambo arrived at Konsu village from Munuma Polling “A” and demanded to collect all the first preference votes from Kopan tribe.
(c) An argument erupted between the First Respondent’s supporters and candidate Robert Barthos supporters. That incident prompted Bal David the assistant presiding officer to announce to the voters of Kopan that he will mark all the 1400 ballot papers for the first respondent.
(d) Then several leaders from Kopan tribe namely Dom Simin, Kopan Simin and Kum Eriu demanded the polling officials to conduct a proper polling because candidates (Robert Bartho, Major Mark Kora, Bata Tom Michael, Maima Gul and Patti Simin) were present to witness the electors casting their votes.
(e) Despite those sentiments from the leaders of Kopan tribe the said assistant presiding officer who is also a Kopan tribesman and a very strong supporter of the First Respondent announced to the people that the ballot papers will be distributed to the representative of the candidates and the representative of candidates will only mark the 1st preference and return the ballot papers to him to administer 2nd and 3rd preference respectively.
(f) Then the said assistant officer distributed unsigned 1400 signed ballot papers to:
First respondent 500
Robert Bartho 350
Bata Tom Michael 350
Major Mark Simon 100
Peter Kopil Garin 100
(g) The said assistant presiding officer unilaterally marked 500 ballot papers allocated to the first respondent, witnessed by electors there.
(h) There was a light drizzle of rain at Konsu village and all the representatives of candidates moved into the Catholic Church and continued marking their respective ballot papers until completed.
(i) The market ballot papers were returned to the said assistant presiding officer.
(j) The assistant presiding officer then marked the 2nd and 3rd preferences on the ballot papers, handed them over to presiding officers to sign. The ballot papers were then inserted by the clerks into the ballot box.
(k) The said presiding officer thanked the community and left with his team around 6.30pm.”
98. This allegation of illegal practice is of similar characteristics as the first, second and third allegations where allegation of illegal marking of ballot papers is the recurring theme at Munuma Catholic Church ward, Munuma polling area. Again, it is noted that the first respondent made similar submissions covering the major issues of lack of facts in relation to the allegation of illegal marking of ballot papers. It will not be necessary then to repeat them here. Similarly, for the reasons given in dismissing the objection to the first allegation, this Court adopts them in this instance and accordingly, dismiss the objection.
99. In addition, like the first, second and third allegations of illegal practices, the second respondent’s submissions that most of the allegations of fact consists of evidence rather than facts is rejected. On the contrary, the allegations of fact from paragraphs 12.1(a) to (e) give the background facts and put into context the allegation of illegal practice because the petitioner is alleging that polling was hijacked by the supporters’ candidates resulting in voters (electors) not voting.
100. In this instance, on Monday 18th July 2022 the polling team for Munuma Polling Team B for Kopan Tribe arrived at Konsa village at about 11:30 am and set up the polling booth but disagreement arose between supporters of the first respondent and supporters of other candidates in relation to a demand that all the first preference votes be marked for the first respondent. After a long delay, it was eventually agreed that ballot papers be distributed to the candidates in the order set out at paragraph 12.1(f) and marked for each candidate. This was done. This ground is without merit and dismissed.
Illegal and improper practice at the counting centres
101. A further ground the petitioner relied on is allegations of illegal practices at counting at paragraph 13 of the petition as follows:
“13.1 The petitioner alleges that there was illegal and improper conduct of counting of ballot papers at the Dickson Oval, Kundiawa, at the time of counting of ballot papers for the Gumine Open Electorate. The petitioner alleges that:
(Table omitted)
Instances of fraudulent/illegal and improper conduct and or practices
(i) There is no scrutiny and quality checks of ballot papers before the exclusion process began and before every exclusion count from the first to the thirty fifth exclusion.
(ii) The ballot boxes containing the ballot papers of the candidates that were to be excluded were not sealed, from the first to the thirty fifth exclusions.
(iii) The counting officials who called out for the votes for candidates at each exclusion, did not properly and adequately display the ballot papers to the scrutineers. When calling out for the receiving candidate, at each of the exclusions the caller placed himself at a very obscure position with limited visibility to the counting officials and scrutineers. The scrutineers were not able to identify the ballot papers clearly to see which candidate the vote was for.
(iv) The counting officials, namely Jennifer Kawale and Jennet Kawale saw counting officials especially Masta Kolkia and John Goma placing exhausted and live ballot papers into trays belonging to Bata Tom Michael and the first respondent, at or during the exclusion of Peter Kopil Garin, and also at various exclusions in the counting.
(v) The counting officials totally failed, ignored and or refused to obey the Returning Officer’s instructions not to proceed with exclusion 32 whilst the Returning Officer went to attend to a meeting with the Provincial Election Steering Committee.
(vi) The named counting officials forced the inclusion of ballot papers distributed from exclusion 32 to be included in the ballot papers for distribution in exclusion 33 after the Returning officer removed the ballot papers from being included in exclusion 33.
(vii) The number of exhausted ballot papers should be increasing at every exclusion however, this was not the case as indicated in the records extracted.
(viii) As indicated the exhausted ballot papers dropped to as low as 86 votes in exclusion 29 and then slightly increased thereafter but then significantly dropped in exclusion 32 and exclusion 33.
(ix) There were more than 4,000 exhausted and live ballot papers being fraudulently moved around during exclusion period.
Illegal conduct of count at exclusion 32
Instance of illegal practice at primary count
C. THE GROUNDS upon which the Petitioner relies are:
In respect to the Organic Law National Local Government Elections, the petitioner says the following provisions of section 286 1 are relevant:
(h) by force, threat, fraud, misrepresentation, undue influence or any other manner inducing or attempting to indue another person to vote or fail to vote at an election, or to vote for a particular person at an election.
(i) Fraudulently taking a ballot-paper out of a polling booth.
(j) Fraudulently putting a ballot-paper or other paper into ballot box.
(k) taking a ballot-paper out of a pooling booth.
(l) Forging, or uttering, knowing it to be forged, a nomination paper or ballot paper.
(m) supply ballot papers without authority.
(n) unlawfully destroying, taking, opening or otherwise interfering with ballot boxes or ballot papers.
In respect of the criminal code, the petitioner says the following provisions of the Criminal Code are relevant:
109: ELECTORS ATTEMPTING TO VIOLATE SECRECY OF BALLOT, ETC
2) a person who;
110. STUFFING BALLOT-BOXES
In respect to the OLNLG, the petitioner says the following provision of sections 286 relevant:
(l) Fraudulently putting a ballot paper or other paper into a ballot box;
(m) Forging or uttering, knowing it to be forged, a nomination paper or
ballot-paper;
(n) Unlawfully destroying, taking, opening or otherwise interfering with
ballot boxes or ballot papers.
(3) The National Court shall not declare that a person returned as elected was not duly election or declare an election void –
Mixing Errors or Omissions and Illegal Practices
102. The first respondent submitted that the pleadings at paragraph 13 on page 10 of the petition states, “illegal and improper practices at Courting Center” and the subsequent sub-paragraphs state “fraudulent, illegal, improper” conducts. Thus, it gives the impression that the allegations relate to illegal practices. However, on a closer examination of these allegations, the substance of these grounds relates to the conduct of counting officials during counting in terms of:
(a) distribution of ballot papers (paragraph 13.1(a)-(e))
(b) failure to conduct quality checks (paragraph 13.1(i))
(c) Failure to seal ballot boxes containing ballot papers (paragraph 13.1(ii))
(d) lack of proper scrutiny of ballot papers (paragraph 13.1(iii))
(e) misallocation of exhausted and live ballot papers (paragraph 13.1(iv))
(f) failure by Counting Officials to adhere to Returning Officer’s instructions to stop counting at exclusion 32. (paragraph 13.1(v)-(vi) and (i), (j), (k), (l), (m) and (n)).
103. According to the first respondent, these allegations constitute errors or omissions by counting officials and not illegal practices because the petitioner is alleging that the counting officials failed in the discharge of their duties to conduct counting of votes. The first respondent submitted that it is important to make this distinction because the test applied to establish illegal practices is different from errors or omissions. The petitioner opposed these submissions. He submitted that the first respondent’s submissions are misconceived because when the allegations at paragraph 13 are read in its entirety, the allegations of facts constitute illegal practices committed by counting officials at counting.
104. As for the second respondent, it submitted that what has been pleaded does not disclose “material” or “relevant” facts constituting grounds on illegal practices or errors or omissions but conjectures. The short response to both grounds is that, on the face of it the allegations of fact appear to be one of errors or omissions. However, when the allegations are read as a whole, they point to illegal practices committed by counting officials at counting. Equally, they are not mere conjectures as alleged by the second respondent.
105. First, pleading the allegations of fact on illegal practices and errors of omissions in the conduct of elections under Sections 215(3) and 218 of the Organic Law on Elections respectively can be quite tricky or blurred because of the subtle difference between the elements constituting illegal practices and errors or omissions. As the Supreme Court in Philip Undialu v. Francis Potape & Electoral Commission (2020) SC1981 explained at [36]:
“We cannot stress enough the importance of the difference between them (illegal practices and errors or omissions) because one can easily overlap the other in terms of pleadings and proof and can be overwhelming and overbearing on a petitioner, we may suggest. A petitioner may not realise that he or she may be relying on allegations of illegal practices to prove errors or omissions and vice versa. This is why it is so critical to get them right from the start.”
106. An example of a case where the petitioner relied on allegations of illegal practices and allegations of errors or omissions by counting officials at counting is Samson Malcolm Kuli v. James Apaimia & Anton Yagama (2013) N5275. That was a case where different forms of illegal practices and errors or omissions were alleged, some of them were counting officials being threatened and verbally abused by scrutineers and supporters of candidates as they were allocating ballot papers in candidates’ trays, two counting officials deliberately placing ballot papers for other candidates in the tray of the successful candidate, Returning Officer’s decision to refuse to add results of count to total votes of candidates and his decision on an objection taken in relation to admission of a ballot-box into scrutiny under Section 153A of the Organic Law on Elections. In another instance the petition as was in Robert Sandan Ganim v. Lino Tom Moses & Electoral Commission (2018) N7233 where the petitioner relied on numerous instances of hijacking of ballot papers at polling at different locations by polling officials but maintained that the alleged acts and/or omissions by polling officials were errors or omissions, the Court held that they were contradictory and confusing and struck them out.
107. While the tests are different, common to both is the number of ballot papers affected by the alleged illegal practice or errors or omissions committed by electoral officials under Section 215(3) or Section 218 of the Organic Law on Elections respectively. As noted earlier, an illegal practice carries an element of intention. It must be pleaded and proved that the act or conduct complained of, was done on purpose or ulterior motive. In the instant case, several words were used in the pleadings to demonstrate the intention. These are:
(a) para. 13.1 and para. 13.1(e)(i) – “illegal”
(b) para. 13.1 and para. 13.1(e)(i) – “improper”
(c) para. 13.1(a) – “orchestrated”
(d) para. 13.1(b), para.13.1(e)(i), para. 13.1(e)(iv) and para.13.1(f) – “fraudulent” and “fraudulently”
(e) para. 13.1(c), para.13.1(e)(i) and para.13.1(f) – “manipulated” and “manipulation”
(f) para. 13.1(e)(v) – “failed”, “ignored”, refused” and “obey”
(g) para. 13.1 (e)(vi) – “forced the inclusion of ballot papers”
108. The use of these words is a choice of words rather than substance. The substance of the allegations is set out at paragraph 13.1(b) to (n) with the background of the allegations of illegal practice at counting at paragraph 13.1(a). As it is a preferential voting system, the counting process consists of counting of primary votes and elimination or exclusion of candidates with the lowest number of first and second preference votes with quality checks at the end of the primary count or before the start of elimination or exclusion of candidates with lowest number of total votes.
109. The allegations of illegal practices occurred at the elimination or exclusion part of the counting process at no. 32 and no. 33 where counting officials Masta Kolkia, John Goma and others manipulated the counting by adding exhausted and live ballot papers to votes of candidate Bata Tom Michael and the first respondent which resulted in the increase in the number of votes received by these candidates. According to the petitioner the sudden surge in these candidates’ number of votes is set out in the table at paragraph 13(1)(b) and is contrary to established procedure for counting where the number of exhausted ballot papers should be decreasing instead of increasing.
110. As the number of ballot papers affected by the alleged illegal practices is crucial to that the result of the election was likely to be affected, the allegations at paragraph 13.1(c) is that the counting officials Masta Kolkia, John Goma and other manipulated the ballot papers such that exhausted and live ballot papers were added to the votes of candidates Bata Tom Michael and he received 1,934 votes and they did the same for the first respondent and he received 2,068 votes.
111. Further, according to paragraph 13.1(d) the manipulation of the exhausted and live ballot papers continued or was repeated at elimination or exclusion 33 where votes for candidates Joe Sine Wemin saw candidate Bata Tom Michael receiving 2,124 votes and the first respondent receiving 1,366 votes. At paragraph 13.1(e) the petitioner makes a similar allegation from primary count through to the elimination or exclusion process. Significantly, at paragraph 13.1(e)(i) it is alleged that there were no quality checks of ballot papers before the elimination or exclusion process began and before elimination or exclusion count from the first to the thirty fifth elimination or exclusion.
112. It is alleged that further significant breaches committed by the identified counting officials which constitute illegal practices are set out at paragraph 13.1(e)(ii) – (ix), amongst others, the failure to adequately display the ballot papers to the scrutineers when calling out the votes for candidates at each elimination or exclusion and failure or refusal to suspend counting at the direction of the Returning Officer when he attended a meeting of the Provincial Election Steering Committee. Furthermore, it is alleged that there was a disagreement between the Returning Officer and the counting officials in relation to the counting of ballot papers at elimination or exclusion 32 because the Returning Officer did not approve the counting of the ballot papers while he was away. While the Returning Officer was away attending the said meeting, the counting officials continued with the counting to elimination or exclusion 33. Consequently, more than 4,000 exhausted and live ballot papers were affected by the alleged manipulation of counting. Given that counting continued notwithstanding the Returning Officer’s directive to suspend it, the question which arises for determination is whether it was lawful for the counting officials to continue with counting notwithstanding the directive from the Returning Officer to suspend it while he attended the Provincial Election Steering Committee meeting. This is a legal question.
113. Further details of the disagreement between the Returning Officer and counting officials are set out at paragraph 13.1(f) to (m) of the petition. Amongst others, the counting continued or progressed to elimination or exclusion 35 where one of the ballot-boxes was not sealed and included for counting in the absence of the Returning Officer. An example of this sort of illegal practices is set at paragraph 13.1(n) where it is alleged that it was discovered on 28th July 2022 that during the primary count of the first preference votes about 250 informal ballot papers which contained markings, were allowed by the Returning Officer to be counted. A complaint was made by the petitioner and the Returning Officer was arrested and charged for illegal practice and the Returning Officer was replaced by a new one. This reinforces the allegations that there were many instances of ballot papers either exhausted or live placed by identified counting officials in the votes of the first respondent to increase his total number of votes. While the second respondent’s ground of objection that the petitioner failed to state the name of the Returning Officer who was replaced because of this allegation is noted, it is a matter for evidence because the reference to the Returning Officer is sufficient. To insist on the name of the Returning Officer is nit-picking.
114. The factual question which arises from these set of allegations of fact is whether the counting officials tampered with the counting process or put simply, purposely allocate ballot papers to the number of votes of first respondent to increase the number of votes for him. As to the requirement that the petitioner must plead that the results of the election was likely to be affected, it is difficult to ignore the number of more than 4,000 ballot papers which were subject of the complaint at counting and the difference of votes 3,263 between the petitioner and the first respondent and say the results of the election was not likely to be affected.
115. As to the ground that the petitioner failed to plead that the illegal practice was committed with the knowledge or authority of the first respondent and that it is just that the First Respondent be declared not duly elected and the election should be declared void under Section 215(3)(a) of the Organic Law on Elections, this ground of objection is misconceived because it is not necessary to plead it because it is sufficient to rely on the number of ballot papers that were allegedly affected by the illegal practices to prove that the result of the election was likely to be affected. Paragraph 7 of the petition reinforces the allegation, in that, it is expressed that “......that the result of the election was likely to be affected and that it is just that the First Respondent be declared not duly elected and the election should be declared void”.
116. Finally, for completeness-sake, at paragraph 13C of the petition, the petitioner sets out the relevant provisions of the Organic Law on Elections which he alleged constituted the offences of illegal practices and committed by the counting officials. To my mind, the allegations of fact set out at paragraph 13.1 are quite detailed and both respondents’ objections on the grounds that the facts as pleaded are lacking or contradictory or confusing or mere conjectures must be rejected.
117. All the grounds of objections alleging lack of facts in the counting process are dismissed.
Conclusion
118. All the grounds of objections by the respondents have been dismissed. It follows that the objections will be dismissed with costs. The petition will progress to trial forthwith.
Order
119. The final terms of the order of the Court are:
________________________________________________________________
McGregor & Associates Lawyers: Lawyers for Petitioner
Kuman Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent
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