Kikala v Electoral Commission [2013] PGSC 48; SC1295 (18 November 2013)

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IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

Waigani: Salika DCJ, Cannings J, Kariko J
2013: 30 August, 17 September, 18 November

ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(a): need to set out facts relied on to invalidate election – ground of bribery: whether necessary to set out place of bribery; intention of candidate – ground of illegal practices: whether necessary to allege that illegal practices were committed with candidate's knowledge or authority; result of election likely to be affected – ground of errors or omissions: whether necessary to allege that result of election affected.

ELECTIONS – competency of petition disputing validity of election – Organic Law on National and Local-level Government Elections, Section 208(d): need for petition to be attested by two witnesses – whether necessary for witness to attest to veracity of grounds of petition.

The National Court upheld objections to the competency of an election petition and dismissed the petition as it failed to comply with Section 208(a) of the Organic Law on National and Local-level Government Elections in that it pleaded insufficient facts and there was a lack of clarity in the grounds of the petition that alleged bribery by the successful candidate, illegal practices at particular polling places and errors or omissions by the Electoral Commission and it also failed to comply with Section 208(d) of the Organic Law in that the two witnesses who attested the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. The petitioner (the applicant) applied to the Supreme Court under Section 155(2)(b) of the Constitution to review the decision of the National Court to uphold the objections to competency and dismiss the petition. He raised eight grounds of review, arguing that the National Court erred in law by finding that: (1) to establish a bribery allegation, it was necessary to plead, in more detail than the bank at which a cheque was cashed, the place at which the act of bribery was committed; (2) the petition failed to adequately plead the intention of the successful candidate in regard to the alleged acts of bribery; (3) the elements of the offence of bribery under Section 103(a)(i) of the Criminal Code were not sufficiently pleaded; (4) the elements of the offence of bribery under Section 103(a)(iii) of the Criminal Code were not sufficiently pleaded; (5) the ground of the petition that alleged illegal practices at 13 polling places was defective in that it was not pleaded that the illegal practices were committed with the knowledge or authority of the successful candidate; (6) it was not necessary to consider whether the ground of the petition that alleged illegal practices at 13 polling places could be regarded as a ground alleging errors or omissions by the Electoral Commission; (7) the ground of the petition that alleged errors or omissions by the Electoral Commission was defective in that it failed to properly plead the winning margin of the successful candidate; (8) the two witnesses who purported to attest the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition.

Abal v Ganim EP 61 of 2012, 16.07.13
Aihi v Avei (2003) SC720
Amet v Yama (2010) SC1064
Bao v Reipa (1998) N1753
Beseoh v Bao (2003) N2348
Ekip v Wimb (2012) N4899
Eoe v Maipakai (2013) N5066
Freshfield v Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171
Goheyu Saonu v Bob Dadae (2004) SC763
Holloway v Ivarato [1988] PNGLR 99
Isoaimo v Aihi (2012) N4921
Jimson Sauk v Don Pomb Polye (2004) SC769
Karani v Silupa (2004) N2517
Karo v Kidu [1997] PNGLR 28
Kubak v Trawen (2012) N4992
Manase v Polye (2008) N3341
Manase v Polye (2008) N3534
Mathias Karani v Yawa Silupa & Electoral Commission (2003) N2385
Mune v Agiru (1998) SC590
Niningi v Electoral Commission & Awesa (2013) N5322
Nomane v Mori (2013) SC1242
Oibotee v Allen EP 79 of 2012, 08.04.13, unreported
Peter Charles Yama v Anton Yagama (2012) N4928
Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) N4960
Raymond Agonia v Electoral Commission & Albert Karo [1992] PNGLR 463
Reipa v Bao [1999] PNGLR 232
SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342
Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583
Siaguru v Unagi [1987] PNGLR 372
Steven Pirika Kamma v John Itanu (2007) N3246
Tulapi v Lagea (2013) N5235
Wenge v Naru [2013] PNGC 32

This was an application for review of a decision of the National Court to uphold objections to competency of an election petition and dismiss the petition.

J D Kennedy, for the applicant
H Viyogo, for the first respondent
P Mawa, for the second respondent

1. BY THE COURT: Philip Kikala applies for review under Section 155(2)(b) of the Constitution of the decision of the National Court to dismiss his petition which disputed the validity of the election of Nixon Koeka Mangape as member for Lagaip-Porgera Open in the 2012 general election. The National Court, constituted by Justice Makail, upheld objections by the Electoral Commission (the first respondent) and Mr Mangape (the second respondent) to the competency of the petition and dismissed the petition in its entirety (Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) N4960).

4. The primary Judge dismissed the first three grounds of objection and upheld the remaining two. As to the fourth ground of objection his Honour:

5. His Honour upheld the final ground of objection and ruled that the two witnesses who purported to attest the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. His Honour held that the requirements of Section 208(d) were not complied with and that this rendered the entire petition incompetent. If his Honour had not reached that conclusion it seems that grounds 1 and 2 of the petition would have remained (grounds 3, 4 and 5 being individually struck out) and the trial would have proceeded on those two grounds. However, the effect of upholding the ground of objection on the attestation issue was that the entire petition was dismissed.

6. The applicant has been granted leave to argue eight grounds of review. It is argued that the primary Judge erred in law by finding that:

(1) to establish a bribery allegation, it was necessary to plead, in more detail than the bank at which a cheque was cashed, the place at which the act of bribery was committed;

(2) the petition failed to plead the intention of the successful candidate in regard to the alleged acts of bribery;

(3) the elements of the offence of bribery under Section 103(a)(i) of the Criminal Code were not sufficiently pleaded;

(4) the elements of the offence of bribery under Section 103(a)(iii) of the Criminal Code were not sufficiently pleaded;

(5) the ground of the petition that alleged illegal practices at 13 polling places was defective in that it was not pleaded that the illegal practices were committed with the knowledge or authority of the successful candidate;

(6) it was not necessary to consider whether the ground of the petition that alleged illegal practices at 13 polling places could be regarded as a ground alleging errors or omissions by the Electoral Commission;

(7) the ground of the petition that alleged errors or omissions by the Electoral Commission was defective in that it failed to properly plead the winning margin of the successful candidate;

(8) the two witnesses who purported to attest the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition.

GROUND 1: ERROR IN FINDING THAT IT WAS NECESSARY TO PLEAD, IN MORE DETAIL THAN THE BANK AT WHICH A CHEQUE WAS CASHED, THE PLACE AT WHICH THE ALLEGED ACT OF BRIBERY WAS COMMITTED

8. This ground relates to the primary Judge's decision to strike out all nine bribery allegations in the third ground of the petition on the ground that the places at which the alleged acts of bribery took place were not pleaded.

9. Each bribery allegation pleaded that Mr Mangape gave by way of cheque a sum of money to a particular person from a bank account of the Porgera Development Authority (it was pleaded elsewhere in the petition that Mr Mangape was the Chairman of that Authority) which was drawn and debited on a particular date, and that the payment was made with the intention of inducing the recipient to be biased towards or vote for Mr Mangape and to solicit votes or solicit other electors to vote for him at a particular polling area. For instance, the first bribery allegation (in paragraph 8.3.1 of the petition) stated:

The second respondent did on 9 May 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account No 1000875297, give Mr Ben Penale, the Presiding Officer for Tipinini 1 Polling Area in the electorate, the sum of K100,000.00 which sum of money was drawn and debited on 9 May 2012 from the Porgera Development Authority South Pacific Account No 1000875297 and this payment as such was made with the intention of inducing him to be biased toward the second respondent and further to solicit votes in support of the second respondent at the polling at Tipinini 1 Polling Area. This was contrary to Section 103(a) of the Criminal Code. As a result of the act of bribery, the second respondent received 984 votes from this polling area.

10. The primary Judge addressed the issue of whether the bribery allegations lacked clarity at paragraph 44 of his judgment. His Honour stated:

The other material fact is the location of the alleged bribery. In my view, it is not sufficient to plead that the alleged bribery took place at the BSP Bank because it was the place where the cheque was presented in return for cash. This information is too vague and will not assist the respondents to identify and locate the witnesses to testify at trial. For all we know is that the recipients of the cheques presented them at the bank but as to where they received them, we do not know. Further, in relation to other electors, we do not know where the recipients gave the money to them.

11. The respondents argue that his Honour's finding that each bribery allegation lacked clarity was in line with other decisions that have stressed the importance of pleading all elements of the offence of bribery. Such decisions were cited by the primary Judge, including Raymond Agonia v Electoral Commission & Albert Karo [1992] PNGLR 463 and Mathias Karani v Yawa Silupa & Electoral Commission (2003) N2385, in which Sawong J stated:

The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of s 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s 103 of the Criminal Code. Anything short of that will offend against s 208(a) and therefore will be fatal.

12. The respondents assert that in addition to pleading the elements of the offence, the petition must plead the date and place of the alleged bribery. They refer to Injia CJ's judgment in the recent case of Tulapi v Lagea (2013) N5235 in which his Honour held, at para 62:

Under s 103(a)(i) & (iii) [of the Criminal Code], essential facts pertaining to each element of the offence of bribery must be pleaded and those are: the identity of the person by name that made the payment, the identity of the person by name who is bribed, the form and value of the property or amount of money and the purpose of the payment. In a case where the person bribed is an elector, that must be expressly pleaded. To complete the facts, it is also necessary to plead the date and the place of payment even though they are not elements of the offence. There is an abundance of case law on the need to plead these essential facts.

13. We agree that it is necessary to plead the elements of an offence of bribery and that it is desirable to plead the date and place of the alleged act of bribery – if they are known. However, we do not agree that it will be necessary in each case to plead the place at which the alleged bribery took place. In forming that view we have taken four important provisions of the Organic Law into account: Sections 208, 209 and 210 and Section 217.

14. Sections 208, 209 and 210 set out jurisdictional matters. Section 208 (requisites of petition) states:

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

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.

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

17. The combined effect of Sections 208, 209 and 210 is that a petition must comply with six separate requirements (five in Section 208 and one in Section 209). If it fails to comply with all of them the petition will be incompetent and the National Court will lack jurisdiction to hear it (Jimson Sauk v Don Pomb Polye (2004) SC769).

18. In determining whether a petition is competent and whether the Court has jurisdiction, it is our view that the fourth provision of the Organic Law we have just mentioned, Section 217, should also be considered. Section 217 (real justice to be observed) states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

19. For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:

It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.

20. With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.

21. The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:

With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.

22. In Jimson Sauk v Don Pomb Polye (2004) SC769, the Court (Sakora J, Sevua J, Gavara-Nanu J) urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency:

We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama ... is as aptly described by Hinchliffe J in another election case, Benias Peri v Nane Petrus Thomas EP 73 of 2003 20.04.04 unreported, when commenting on another National Court decision that had been relied on and referred to him:

With all respect to the trial Judge, it seems to me that his requirements to satisfy s 208(a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard.

This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of his Honour. Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

23. We also note that in more recent times the National Court has in some cases taken Section 217 into account when determining objections to competency, eg Steven Pirika Kamma v John Itanu (2007) N3246 (Kandakasi J) and Peter Charles Yama v Anton Yagama (2012) N4928 (Cannings J).

24. Returning now to the present case, we consider that the primary Judge properly entertained the respondents' objections to competency as they raised the question of whether the petition complied with the requirements of Section 208(a) of the Organic Law, in other words did the petition "set out the facts relied on to invalidate the election or return"? However, in answering that question his Honour, with respect, took an overly strict approach which resulted in too many factual details being required in the petition and the dictates of Section 217 of the Organic Law not being given proper consideration.

25. It lies in the very nature of an act of bribery that it will often be committed in secret. The place of the alleged act of bribery will not be known. What was said, if anything, by the person committing the alleged act of bribery will not be known. There might be no witnesses. The lack of those sorts of facts does not mean that bribery cannot be proven by inference. Circumstantial evidence might lead to only one inference: that a bribe was paid and that an offence was committed.

26. Our attention was not drawn to any case in which the National Court or the Supreme Court struck out a bribery allegation for failure to plead the place of the alleged bribery. We uphold the submissions of Mr Kennedy for the applicant that if it is pleaded that:

the inference might reasonably be drawn that the giving of the cheque amounted to a bribe. In these circumstances it will not be necessary to plead the place at which the cheque was given to the recipient. If the bank or other place at which the cheque was cashed or otherwise used for the benefit of the recipient is pleaded, the place at which the cheque was given to the recipient will not be a material fact. If, for example, it was alleged that a successful candidate had electronically deposited funds into an elector's bank account, the place at which the candidate performed the electronic bank transfer would not be a material fact. Each allegation has to be assessed on its merits to ascertain what particulars have to be pleaded.

27. We consider that the nine bribery allegations in the present case adequately pleaded material or relevant facts that constituted a ground of bribery for the purposes of Section 103 of the Criminal Code and Section 215(1) of the Organic Law. It was not necessary to plead the places at which the cheques were given to the recipients. We find with respect that the learned primary Judge erred in concluding that the places at which the cheques were given were material facts that were missing in the petition and that this meant that the pleadings in the bribery allegations were insufficient and lacked clarity. Ground 1 of the review is upheld.

GROUND 2: ERROR IN FINDING THAT THE PETITION FAILED TO PLEAD THE INTENTION OF THE SUCCESSFUL CANDIDATE IN REGARD TO THE ALLEGED ACTS OF BRIBERY

28. This ground relates to the second reason the primary Judge gave for striking out the nine bribery allegations: the failure to plead the intention of the second respondent. His Honour addressed this at paras 45 to 48 of his judgment:

There are no facts setting out the intention as required by Section 103(a)(i) of the Criminal Code. Intention is a subjective matter and in order to establish it, there must be facts setting it out clearly. Thus, when the cheque payments were made, what where the words allegedly made or uttered by the second respondent to the recipients of the cheques for the petitioner to draw the conclusion and plead that "the payments were made with the intention to procure the recipients' votes and also to induce them to be biased and solicit votes for him." These facts are not set out in each ground of the petition. In my view, while there are facts establishing the nexus between the PDA, the second respondent and persons allegedly bribed, it is not sufficient to establish the intention.

In the cases of James Mark (para 8.3.5), Susan Takili (para 8.3.6), Samson Aipit (para 8.3.7) and Grayson Apakali (para 8.3.8), while these persons are electors and the cheque payments were made to induce them to favour the second respondent and further solicit votes for him, there is no nexus in the pleadings between them and the other electors that they used the money to bribe the electors to vote for the second respondent. In other words, there are no facts establishing that the second respondent gave the cash to induce these persons (the named persons) to attempt to obtain votes from third persons. By merely using the words "the alleged payments were made with the intention of procuring the recipients (sic) votes and to be biased towards the Second Respondent and further solicit votes for the Second Respondent", in my view lacks the element of inducement of the second person (named persons), an element of the bribery as set out in Section 103(a)(iii) of the Criminal Code. It is also a conclusion of fact not supported by facts in the pleadings.

Emphasising the insufficiency of pleadings, how do we know that the cash that these 9 persons received from the bank were used to solicit votes for the second respondent at polling at the named polling areas? All we know is that the petitioner has in each case named the place or area of responsibility each of these 9 named persons took charge. For example, for Ben Penale, the location is Tipinini No 1 Polling Area, for Councillor Ruben Nalepe, Kulapi, Lupilama and Panadaka Polling Areas, for Councillor Palo Wape, Kairik No 1 Polling Area, for Councillor Jack Yanjol, Kairik No 2 Polling Area, for James Mark, Paiam-Suyan (Lukale) Polling Area, for Susan Takili, Paiam Town Polling Area, for Samson Aipit, Yanzakali Polling Area (comprising of Upper Maipage and Lower Maipage), for Grayson Apakali, Apalaka No 1 Polling Area and for Martin Kelei, the entire electorate as he is the Rural Police Commander. But in my view, this information is insufficient.

I find the pleadings are insufficient and lack clarity in each case. For these reasons, all grounds alleging bribery are struck out.

29. The respondents argue that his Honour correctly ruled that each bribery allegation failed to plead sufficient facts in support of the intention of the second respondent when he gave the cheques to the recipients. Mr Mawa submitted that the same approach was taken recently in Niningi v Electoral Commission & Awesa (2013) N5322, in which, at paragraph 52, Injia CJ stated:

The seriousness of a bribery allegation granted, clear pleading of primary material facts on the purpose of the promise or payment is imperative. Leaving primary essential facts to inference is not a good practice that accords with the mandatory requirements of OLNE, s 208(a) in conjunction with OLNE, s 215 and s 103(a)(iii) of the Criminal Code. The pleadings in Tulapi's case can be contrasted with the facts pleaded in the present case. In Tulapi, there were clear pleadings as to the purpose because the allegation of public distribution of cash money to counting officials done at the counting centre "when the declaration was made" on 8 July 2012 was linked to a promise made on 22 June 2012 to polling officials at Muniputi village on 22 June 2012 where he paid them K500 each; that they would be paid K5,000 each if he won the election. The mens rea in that case was obvious. In the present case, the purpose of the payment is left to be deduced from the pleadings from passive expressions such as "with the intention of inducing them to declare the Second Respondent as Member elect"; "manifested or evidenced". No words are attributed to Mr Awesa at the time he made the commitment (Petition, paragraph 44(a) as to what the money was for but left to inference and interpretations (Petition, Ground 44(b)). What time of "that day" Mr Awesa asked to be declared is not pleaded. As to what time in the day his son paid the money is not pleaded. What time of "that day" Mr Awesa's son distributed the money is not pleaded. In paragraph 44(b), the allegation that the whole of the K20,000 was "given" only to Mr Kundapen by Richard Awesa does not sit in well with the earlier pleading that Mr Awesa made the commitment to "Mr Richard Kundapen, Election Manager David Wakias, Assistant Police Commissioner Jim Andrews" as pleaded in paragraph (a). Further, in Petition, Paragraph 44(b), it is pleaded "The said K20,000) was paid to the said persons with the intention of inducing them to declare the second respondent as member elect". There is no pleading to say if payment was accepted for or on behalf of those other persons. These and other deficiencies pointed out by Mr Molloy lead me to conclude that the mens rea in this pleadings is lacking in these pleadings, or if expressly or inferentially stated, they lack credibility.

30. We acknowledge that Niningi v Awesa is consistent with the primary Judge's approach, but we are concerned that that approach is rather too strict. It insists, in our view, on a level of detail of pleading facts that is not required by the Organic Law. The critical facts that must be included in a ground of a petition alleging bribery are those facts constituting the elements of an offence of bribery under Section 103 (bribery) of the Criminal Code, which states:

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

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

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

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

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

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

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

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

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

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

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

31. Because it provides for so many alternative elements, Section 103 creates a multitude of different types of bribery offences (Isoaimo v Aihi (2012) N4921). The offences alleged (or pleaded) in the present case fall within Section 103(a). We refer again to the first bribery allegation (in paragraph 8.3.1 of the petition), and this time we highlight, in italics, the part dealing with the intention of the second respondent and the nature of the offence he allegedly committed:

32. We now set out the elements of the offences created by Section 103(a) of the Criminal Code.

33. To prove an offence under Section 103(a)(i) it must be proven that a person:

34. To prove an offence under Section 103(a)(ii) it must be proven that a person:

35. To prove an offence under Section 103(a)(iii) it must be proven that a person:

36. It will be observed that there is no element of 'intention', as such, required to be proven, in order to prove any of the offences under Section 103(a). This is borne out by the provisions of the Criminal Practice Rules which prescribe how, in criminal proceedings before the National Court, an indictment containing a charge of bribery under Section 103(a) of the Criminal Code is to be drafted. By virtue of Order 3, Rules 2 and 3(a) and Form 1 and Section 60 of Schedule 2 of the Criminal Practice Rules the indictment is to state:

AB of X stands charged that he at (place) on the ... day of ... (set out the statement of offence and if more than one, each count to be set out separately in accordance with Second Schedule):

(a) Gave [or Conferred or Procured or Promised (or offered) to give (or confer or procure or attempt to procure)] to [or on or for] (name person and give particulars of property or benefit given)—

(i) On account of him [or name person] having (give particulars of thing done or omitted to be done) by him [or name person] an elector [or in consideration that he (or name person) would (give particulars of act or omission)]; or

(ii) on account of him [or name person] having acted [or joined or agreed to act or agreed to join] in a procession; or

(iii) in order to induce him [or name person] to endeavour to procure the return of (name person) [or the vote of (name person) an elector], at an election held ...

TAKE NOTE You will be tried on this indictment at the Criminal Sessions of the National Court commencing at ... on the ... day of ... or on a date to be determined.

37. It will be observed that it is not necessary to state the accused's intention. As it is not necessary to plead in an indictment that the accused intended to bribe the other person or intended to procure the recipients' votes, it follows that it is not necessary to make a similar pleading in an election petition. It is also not necessary, for the same reason, to plead all the facts in support of the elements of the offence. The learned primary Judge found the petition defective due to a failure to plead:

the words allegedly made or uttered by the second respondent to the recipients of the cheques for the petitioner to draw the conclusion and plead that 'the payments were made with the intention to procure the recipients' votes and also to induce them to be biased and solicit votes for him. These facts are not set out in each ground of the petition.

38. We consider that his Honour was insisting on a level of detail unwarranted by the simple requirement of Section 208(a) of the Organic Law that the petition "set out the facts relied on to invalidate the election". If that level of detail were the required standard, the Court would be in effect expecting petitioners to plead evidence, in addition to alleged facts, which is contrary to the purpose of a petition (Holloway v Ivarato [1988] PNGLR 99, Siaguru v Unagi [1987] PNGLR 372, Karo v Kidu [1997] PNGLR 28, Karani v Silupa (2004) N2517).

39. An examination of the nine bribery allegations reveals that each alleges that the second respondent gave a cheque of a certain amount to a certain recipient (thus pleading the first two elements of a Section 103(a) offence) and that that was done:

40. Do those two methods of pleading the second respondent's intention accord with the third element of an offence under Section 103(a), in particular an offence under Section 103(a)(iii) (which appears to be what is actually being alleged in the petition)? In our view, the answer is yes.

41. The grounds of the petition could have been more clearly and correctly drafted by borrowing the exact words of Section 103(a)(iii). It should have pleaded that the second respondent gave a cheque of a certain amount to a certain recipient and that that was done:

42. However, the way in which the third element has been drafted carries the import of the third element of the offence. It is sufficient. We conclude that the learned primary Judge erred in law in finding that nine bribery allegations were defective due to their failure to plead the intention of the second respondent. Ground 2 of the review is upheld.

GROUND 3: ERROR IN FINDING THAT THE ELEMENTS OF THE OFFENCE OF BRIBERY UNDER SECTION 103(a)(i) OF THE CRIMINAL CODE WERE NOT SUFFICIENTLY PLEADED

43. We have difficulty appreciating the argument underpinning this ground of review. We have upheld grounds 1 and 2 of the review by finding error in the primary Judge's findings that the nine bribery allegations were defective due to their failure to plead the places at which the alleged acts of bribery took place (ground 1) and their failure to adequately plead the element of intention (ground 2).

44. Ground 3 carries the argument about his Honour's treatment of the bribery allegations no further. In fact it confuses the argument as it suggests that his Honour regarded some of the bribery allegations as based on Section 103(a)(i) of the Criminal Code, whereas in our mind they are properly regarded as being based on Section 103(a)(iii) of the Code. Ground 3 is misconceived and is dismissed.

GROUND 4: ERROR IN FINDING THAT THE ELEMENTS OF THE OFFENCE OF BRIBERY UNDER SECTION 103(a)(iii) OF THE CRIMINAL CODE WERE NOT SUFFICIENTLY PLEADED

45. This ground of review raises a valid argument but it is repetitious of ground 2 and unnecessary. It is therefore dismissed.

GROUND 5: ERROR IN FINDING THAT THE GROUND OF THE PETITION THAT ALLEGED ILLEGAL PRACTICES AT 13 POLLING PLACES WAS DEFECTIVE IN THAT IT WAS NOT PLEADED THAT THE ILLEGAL PRACTICES WERE COMMITTED WITH THE KNOWLEDGE OR AUTHORITY OF THE SUCCESSFUL CANDIDATE

46. This ground relates to the primary Judge's decision to strike out all 13 illegal practices allegations in the fourth ground of the petition on the ground that each allegation failed to plead that the persons who committed the illegal practices did so with the knowledge or authority of the second respondent, as required by Section 215(3)(a) of the Organic Law.

47. Each allegation pleaded that illegal practices were committed by certain persons in relation to a particular polling area, which had the effect of depriving certain electors of their constitutional right to vote for elective public office and that the Returning Officer erred in admitting to scrutiny ballot papers obtained as a result of such illegal practices, despite objections by the applicant's scrutineers. For instance, the first illegal practice allegation (in paragraph 8.4.1 of the petition) stated, under the heading 'Taiapoko polling':

48. The primary Judge addressed the issue of whether the illegal practices allegations lacked clarity at paragraph 55 of his judgment. His Honour stated, in relation to the allegation concerning the Taiapoko polling area:

The allegation of illegal polling is that there was no polling at Taiapoko Polling Area because the polling team comprising of the presiding officer Mr Sam Nicky, Assistant Presiding Officer Pastor Solomon Pilkopol, Polling Clerk Jeffrina Ipulu, Door Keeper Isara Pore, Ballot Box Guard Gideon Agamas and Councillor for Taiapoko Mr Lepos Yawari were dropped off by helicopter at Mandopa. Despite that, the second respondent polled 602 first preference votes out of 611 ballot papers. The second respondent polled this number of votes because Mr Nicky, Mr Pore and Mr Yawari marked the ballot papers in his favour during the night.

However, the petitioner does not plead that what these persons did was with the knowledge or authority of the second respondent as required by Section 215(3)(a) (supra). Thus, how do we know that the second respondent authorised them to do what is alleged? This ground is insufficient. It is struck out.

49. His Honour struck out each of the other 12 illegal practice allegations (which raised similar sorts of allegations to those in relation to the Taiapoko polling area) for the same reason: it was not pleaded that the persons who committed the illegal practices did so with the knowledge or authority of the second respondent.

50. Mr Kennedy submitted that his Honour failed to appreciate that the allegations of illegal practices were levelled against officers and agents of the Electoral Commission, not the second respondent, and that being the case it was not necessary to plead that the illegal practices were committed with the knowledge or authority of the second respondent. It was also not necessary, Mr Kennedy contended, to state the particular provision of the Organic Law being relied on or to plead, in any more detail than was pleaded in the petition, that the result of the election was likely to be affected by the illegal practices.

51. We are not persuaded by Mr Kennedy's submission that his Honour erred in striking out the 13 illegal practice allegations. Despite the very serious issues of corruption and impropriety raised, the allegations are drafted in a convoluted and confusing manner, in four respects.

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

53. Secondly, to the extent that illegal practices are being alleged, it is not clear which particular practices are alleged to be illegal and in what way they are illegal: the criminal offence allegedly committed is not clear. While this is not by itself a fatal defect, the failure to specify, by reference to the law, the particular offence at the centre of each allegation, makes it difficult to appreciate the ground on which it is alleged that the result of the election should be voided.

54. Thirdly, despite what Mr Kennedy now clarifies, it is not clear whether it is alleged that the illegal practices were committed with or without the knowledge or authority of the second respondent. This adds to the confusion.

55. Fourthly, to the extent that it is alleged that the illegal practices were committed without the knowledge or authority of the second respondent, the allegations should have been clearly framed in terms of Section 215(3) of the Organic Law. But they are not. To illustrate this point we cite the whole of Section 215 (voiding election for illegal practices), which states:

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

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

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

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

56. As the illegal practices were alleged to be committed by 'persons other than the candidate and without the candidate's knowledge or authority' and were 'other than bribery or undue influence or attempted bribery or undue influence' it was necessary to plead the two matters that must be proven, given the nature of the allegations, under Sections 215(3)(a) and (b) (Amet v Yama (2010) SC1064, Karani v Silupa (2003) N2385, Kubak v Trawen (2012) N4992). These two matters should have been pleaded in a clear and concise manner:

57. The first of those matters was alluded to in paragraph 8.4.14 of the petition but not in a clear and concise manner. The second matter was not mentioned at all.

58. Given the convoluted and confusing manner in which each of the 13 illegal practice allegations was pleaded we find that the specific reason the learned primary Judge gave for striking out each of them – that it was not pleaded that the persons who committed the illegal practices did so with the knowledge or authority of the second respondent – was justified. His Honour properly struck out ground 4 of the petition. We find no error of law. Ground 5 of the review is dismissed.

GROUND 6: ERROR IN FINDING THAT IT WAS NOT NECESSARY TO CONSIDER WHETHER THE GROUND OF THE PETITION THAT ALLEGED ILLEGAL PRACTICES AT 13 POLLING PLACES COULD BE REGARDED AS A GROUND ALLEGING ERRORS OR OMISSIONS BY THE ELECTORAL COMMISSION

59. This ground, like ground 5, relates to the primary Judge's decision to strike out all 13 illegal practices allegations in the fourth ground of the petition. His Honour struck them out for the primary reason that each allegation failed to plead that the persons who committed the illegal practices did so with the knowledge or authority of the second respondent, as required by Section 215(3)(a) of the Organic Law. We found no error by his Honour in the manner contended for in ground 5.

60. In ground 6 the applicant argues that what his Honour should have done, having found that the allegations did not meet the requirements of Section 215(3) of the Organic Law, was to regard them as allegations of errors or omissions by officers of the Electoral Commission. If his Honour had done that, it is argued, he would have concluded that the allegations met the requirements of Section 218(1) (immaterial errors not to vitiate election), which states:

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

61. The applicant argues that his Honour erred when at paragraph 56 of his judgment he simply stated:

For the reasons given, it is not necessary to consider the ground on pleading alternative ground (that is pleading of errors and omissions).

62. We find no error on the part of the primary Judge. We explained in our determination of ground 5 why the 13 illegal practices allegations were defective: the allegations were convoluted and confusing and failed to plead material and relevant facts. The requirements of Section 208(a) of the Organic Law were not complied with. Ground 4 of the petition was properly struck out. It is not a simple process of treating the allegations as alleged errors or omissions by officers of the Electoral Commission. Even if that interpretation is put upon them, the allegations remain convoluted and confusing. They still fail to comply with Section 208(a). We find no error of law in the manner contended for by the applicant. Ground 6 of the review is dismissed.

GROUND 7: ERROR IN FINDING THAT THE GROUND OF THE PETITION THAT ALLEGED ERRORS OR OMISSIONS BY THE ELECTORAL COMMISSION WAS DEFECTIVE IN THAT IT FAILED TO PROPERLY PLEAD THE WINNING MARGIN OF THE SUCCESSFUL CANDIDATE

63. This ground relates to the primary Judge's decision to dismiss as incompetent ground 5 of the petition, which alleged errors and omissions by the Electoral Commission that affected the result of the election, due to the failure of the petition to correctly state the winning margin of the second respondent.

65. His Honour found that the petition incorrectly stated the winning margin. It failed to apply the correct formula, as set out by Lay J in Manase v Polye (2008) N3534, for determination under the Limited Preferential Voting system of the winning margin. The primary Judge stated:

In other words, in order to arrive at the winning margin under the new LPV system, the petitioner has to plead:

(a) what the total number of allowable ballot papers remains in count after the final exclusion before the declaration.

(b) What was the absolute majority (50% + 1) of votes required to win the election.

(c) The total number of votes that the winning candidate scored above and beyond the absolute majority required to win is the "winning margin."

I accept that the law remains that if a petitioner is trying to overturn an election result on the basis of illegal practice, errors or omissions or other electoral irregularities, he is obliged to plead and prove to the Court that whatever the electoral irregularity was is sufficient to affect the election result or is likely to affect the election result. The information should readily be available to the petitioner because he would have had scrutineers at the counting centre and the figures including the 50% + 1 absolute majority votes publicly announced by the Returning Officer. Yet they are missing, so how do we know that the petitioner won by the second preference votes or third preference votes as he contended? Thus, he has to show that the number of votes affected does exceed the winning margin. This means that it is incumbent upon him to plead the winning margin in the petition.

In the current petition, in paragraph 7 of the petition, the petitioner pleads that he scored 30,648 votes and the second respondent scored 35, 804 votes but he does not plead if the second respondent scored these votes at the first preference count, second preference count or third preference count. He goes on to say that the total margin is 5,156. In fact, the 5,156 votes is not the "total margin" (or winning margin?) but the difference in votes between him and the second respondent. This is not the winning margin. In other parts of the petition, he refers to the difference in votes as the winning margin which is incorrect.

I accept the respondents' submission that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these very relevant facts are not pleaded, how can the Court make a finding that as a result of these election irregularities, the election was likely to be affected or indeed was affected? Furthermore, how can the Court make a finding that the number of votes affected by the alleged illegal practice or errors and omissions is less than or more than the winning margin when what the winning margin is has not been properly pleaded? I am satisfied the facts setting out the errors and omissions by the first respondent in relation to the winning margin are insufficient. This ground is struck out.

66. The respondents argue that his Honour's approach to calculation of the winning margin was correct. It was consistent with the analysis by Lay J in Manase v Polye (2009) N3534 and it has been followed by the National Court in Oibotee v Allen EP 79 of 2012, 08.04.13, unreported (Davani J) and Abal v Ganim EP 61 of 2012, 16.07.13, unreported (Hartshorn J). The winning margin must be correctly stated as it is the yardstick to determine whether the result of the election was affected by any proven errors or omissions. The failure to correctly plead the winning margin meant that this ground of the petition failed to plead sufficient facts. Furthermore it was argued that on the authority of the National Court decision in Beseoh v Bao (2003) N2348 this ground of the petition deserved to be struck out for another reason: it failed to provide the names and numbers of enrolled electors who actually turned up at each polling place and were denied the right to vote due to a shortage of ballot papers.

67. We reject the respondents' arguments for six reasons. First, we consider, with respect, that the learned primary Judge has misconstrued the dicta of Lay J in Manase v Polye. Justice Lay was not purporting to lay down any formula for determination of the winning margin. His Honour was simply pointing out that under the LPV system, in accordance with Section 168 of the Organic Law, in a seat declared on first preference votes, not only must the successful candidate retain a greater number of votes than the candidate receiving the next largest number of votes, he must also receive and retain an absolute majority (50% plus 1) of the valid votes.

68. Section 168 (scrutiny of votes in elections) is a complex provision. It states:

(1) Subject to this section and the Regulations the result of an election shall be determined by scrutiny in the following manner:—

(a) the Returning Officer shall ascertain the total number of first preference votes given for each candidate;

(b) the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;

(c) if no candidate has received an absolute majority of votes, a second count shall be held;

(d) on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the voter's preference;

(e) where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter's preference shall be repeated until one candidate has received an absolute majority of votes;

(f) the candidate who has received an absolute majority of the votes is elected;

(g) if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this process shall continue as far back as is necessary;

(h) if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;

(i) if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary; and

(j) if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.

(2) Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an unexcluded candidate, that ballot-paper—

(c) shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.

(3) The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.

(4) In this section, "an absolute majority of votes" in relation to any count, means a greater number than one-half of the whole number of ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under Subsection (2)).

69. Justice Lay was not saying that under the LPV system, the legal basis of which is Section 168 of the Organic Law, the winning margin should always be regarded as the number of votes received by the successful candidate over and above the absolute majority. His Honour was dealing with what is a rather uncommon situation. The successful candidate, Mr Polye, had attained an absolute majority (at least 50% of the total valid votes cast + 1) of first preference votes and was elected under Section 168(1)(b). His Honour's comments as to the significance of the '50% + 1' figure must be understood in that context.

70. Secondly, Justice Lay was not addressing the question of what has to be pleaded in a petition. He was not ruling on an objection to competency. His Honour was only addressing the question of whether, if all the facts pleaded in the petition were proven, it could be established that the result of the election was affected.

71. Thirdly, we do not think there was any clear error of fact or law in the manner in which the winning margin was pleaded in the petition. It would have been preferable for the petition to have pleaded the total number of votes cast, as that would have allowed for easy identification of the absolute majority (determined under Section 168(4). However, we don't see anything wrong in the petition pleading that the winning margin was:

72. Fourthly, we see no problem in the petition pleading that the number of votes affected by the errors and omissions of the Electoral Commission was 11,340, and then comparing that figure with the winning margin of 5,156, and then pleading that for the purposes of Section 218 of the Organic Law the errors and omissions 'affected the result of the election'. This would seem to accord with the approach taken by Sakora J in Bao v Reipa (1998) N1753, which was sanctioned by the Supreme Court (Woods J, Salika J; Los J dissenting) in Reipa v Bao [1999] PNGLR 232.

73. Fifthly, even if we were to agree with the primary Judge that the winning margin was incorrectly pleaded in the petition, we would still uphold this ground of review. The incorrectness of a statement of the winning margin is not something that affects the competency of the petition. The parties can argue about it at the trial. Evidence will be assessed by the Court in view of the obligation upon the petitioner by Section 218(1) of the Organic Law to prove that the errors or omissions of the Commission affected the result of the election.

74. Finally, we are not convinced that it is necessary for a petitioner to plead in the petition the name of every person who was deprived of the constitutional right to vote. This is a matter of evidence. In the present case it was pleaded that there was a shortfall of 11,340 ballot papers at 18 named polling places. The alleged shortfall at each polling place was pleaded. That was a sufficient statement of facts to put the respondents on notice as to the case that they had to meet.

75. We conclude that the learned primary Judge erred in finding that ground 5 of the petition incorrectly stated the winning margin and failed to comply with Section 208(a) of the Organic Law and striking out ground 5 of the petition for that reason. Ground 7 of the review is upheld.

GROUND 8: ERROR IN FINDING THAT THE TWO WITNESSES WHO PURPORTED TO ATTEST THE PETITION WERE NOT QUALIFIED TO DO SO AS NEITHER WAS IN A POSITION TO TESTIFY, CONFIRM, VERIFY OR PROVE ANY OF THE FACTS UNDERLYING THE GROUNDS OF THE PETITION

76. This ground relates to the primary Judge's decision to dismiss the entire petition due to its failure to comply with Section 208(d) of the Organic Law, which states that a petition shall:

77. His Honour held that the two witnesses who attested the petition were not qualified to do so as neither was in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. In reaching that conclusion his Honour followed the approach to this issue taken by Kandakasi J in Ekip v Wimb (2012) N4899. His Honour stated at paragraphs 73 to 78 of his judgment:

It must be appreciated that unlike ordinary civil cases, election petition cases fall into the special jurisdiction of the Court. They challenge the result of an election. A petitioner invokes the special jurisdiction of Court under Section 206 of the Organic Law ... for the Court to enquire into how the election was conducted before it is able to say if the end result was valid or not. A long line of case authorities, some of which have been cited above such as Delba Biri, including Jimson Sauk and Ginson Goheyu Soanu have emphasised the need for petitioners to strictly comply with the requirements of Sections 208 and 209 of the Organic Law ... before the Court can exercise jurisdiction under Section 210.

In my view the "requisite" under Section 208(d) ... for two witnesses to attest to the petition before it is filed at the National Court registry is put there for a reason. It is to ensure that the petition that is filed is genuine and not one that is fabricated and filed purposely to undermine the leadership and representation of the successful candidate as the member-elect of the electorate in Parliament. If I can borrow the words of Sakora J and Kandakasi J in Francis Koimanrea v Electoral Commission & Paul Tiensten (2003) N2421 and James Yoka Ekip respectively, "wild sensationalist, unmeritorious and unsustainable allegations" in the petition must not go to trial.

I do not think it would be an overstatement if it is said that in Papua New Guinea, prosecuting and defending a petition is a painstaking exercise. This is because it is time consuming, costly and politically charged. It also involves people's emotions, and at times, people resort to violence as a means of resolving the dispute. That is why in my view, it is crucial that the election petition that the petitioner is prosecuting and the respondent defending and of course the Court is determining must be genuine. It must be genuine right from the start; from the time it is being drafted and then presented for filing at the National Court registry and this must not be confused with the proof of the allegations in it. That is an entirely separate matter and a matter for evidence at trial. Thus, in my view the petition must be attested to by a person who has direct knowledge of all or some of the events that occurred during the election in the electorate and subject of the dispute in the petition.

This is where, with respect, I reject the petitioner's submission that if this Court is to adopt the interpretation given by the Court in James Yoka Ekip's case ... it would cause grave injustice to the petitioner. It is not even an attempt to importing words into a constitutional provision not intended by Parliament as suggested by the petitioner. In my view, his Honour's interpretation in that case is not restrictive but one that is plain and clear. It is reasonable to expect the two witnesses to know all the facts of an election petition or have personal knowledge of what transpired in the whole of the electorate or some of them and be in position to prove all or some of them. In other words, one cannot attest to a petition if he has no knowledge of what actually happened on the ground during the election in the electorate.

Indeed, a closer examination of his Honour's reasons shows that his Honour did qualify his reasoning that the person attesting the petition must be in a "position to testify, confirm, verify or prove all or any of those facts." So there is a qualification. The witness attesting the petition need not know all the facts supporting the grounds of the petition. Some will suffice. One cannot look far to find persons or witnesses who can attest to the petition. They may be voters, scrutineers or mere observers. Thus, while I accept that the views expressed by his Honour were made in passing, I am not satisfied that his Honour's interpretation is wrong. For these reasons, I would adopt and apply the definition given by his Honour in this case.

There is no dispute that Mr Jackson P Kola, a lawyer and Mr Kieeh C Kendakali, a paralegal are employees of JEMA Lawyers and have attested to the petition. There is also no dispute that these two gentlemen did not witness or vote in the election in the electorate and would therefore have witnessed all or some of the events now the subject of the petition. That being the case, I find that they are in no position to verify the contents of the petition. I further find that they are not proper persons or qualified to attest to the petition. It follows the petitioner has failed to comply with one of the "requisites" of the petition under Section 208 ... The failure to comply with this mandatory requirement renders the petition incompetent. This ground is upheld and the petition is dismissed.

78. Mr Viyogo, for the Electoral Commission, submitted that, although his Honour's interpretation of "attested" was unsupported by any Supreme Court decision, it was eminently good law and should be endorsed as correct. Mr Mawa, on the other hand, did not support his learned friend's submission. Mr Mawa pointed out that the second respondent did not, in the National Court, support this part of the Electoral Commission's objection to competency, and does not support that position now. He went so far as to concede that the primary Judge erred.

79. We agree with Mr Mawa and with the submissions of Mr Kennedy that his Honour did indeed err. We adopt and endorse as correct the recent obiter dicta of the Supreme Court (Kandakasi J, Cannings J, Collier J) on the issue of the qualifications of an attesting witness in Nomane v Mori (2013) SC1242. It is acknowledged that there are good reasons for requiring an attesting witness to be someone who is in a position to testify, confirm, verify or prove the facts relied on in the petition. On the other hand there is a competing view, based on the normal and natural meaning of the word "attest", which must be preferred. According to the Oxford English Dictionary "attest" means "to bear witness to, affirm the truth or genuineness of; to testify, certify". The "truth" to which the witness attests refers only to the signature of the person executing the document rather than its contents. As the Court of Exchequer explained in Freshfield v Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171:

The term "attest" manifestly implies that a witness shall be present, to testify that the party who is to execute the deed has done the act required by the power.

80. That is, attestation means simply that the witness is present and sees the instrument signed: Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583. To that extent the witnesses can testify that the petition of the person who has signed as petitioner is genuine: Aihi v Avei (2003) SC720.

81. We consider that the learned primary Judge should have adopted the sort of cautious approach to this issue taken by the National Court in Wenge v Naru [2013] PNGC 32 and Eoe v Maipakai (2013) N5066. Kirriwom J and Cannings J respectively expressed concern about such a new interpretation of Section 208(d) and the introduction of a new requirement that was not known to exist at the time that the petitions in those cases were drafted and filed. It is conceivable that a petitioner might want to challenge an election result on grounds for which there are no readily available witnesses. How could the petition be attested in such cases? We also note that the opinion expressed by Kandakasi J in Ekip was not one of the grounds on which his Honour upheld the objection to competency. His Honour expressly decided not to apply that interpretation to the case at hand, recognising that it was a new interpretation of the law. His Honour's remarks were therefore obiter dicta.

82. We find that the learned primary Judge introduced a new requirement into Section 208(d) of the Organic Law that does not in law exist. In doing so his Honour erred. Ground 8 of the review is upheld.

Ground	Content	Determination
1	Bribery – whether place of bribery sufficiently pleaded	Upheld
2	Bribery – whether intention of second respondent sufficiently pleaded	Upheld
3	Bribery – whether elements of Criminal Code, s 103(a)(i) sufficiently pleaded	Dismissed
4	Bribery – whether elements of Criminal Code, s 103(a)(iii) sufficiently pleaded	Dismissed
5	Illegal practices – whether necessary to plead knowledge or authority of second respondent	Dismissed
6	Illegal practices – whether necessary to consider as errors or omissions	Dismissed
7	Errors by Electoral Commission – whether winning margin properly pleaded	Upheld
8	Attesting witnesses – whether necessary to be in position to testify, verify or prove facts	Upheld

84. As four of the eight grounds of review have been upheld, the application for review will be granted. The errors of law of the National Court were significant, so the decision to dismiss the petition will be quashed. The petition will, with the exception of ground 4 (which we have found was properly struck out for failing to comply with Section 208(a) of the Organic Law), be reinstated and remitted to the National Court for trial. 85. As to whether the petition should be returned to the primary Judge, these are matters for the National Court to determine and properly fall within the domain of the Judge Administrator, Election Petitions. Costs will follow the event.

JEMA Lawyers: Lawyers for the Applicant
Niugini Legal Practice: Lawyers for the First Respondent
Mawa Lawyers: Lawyers for the Second Respondent

Supreme Court of Papua New Guinea

Kikala v Electoral Commission [2013] PGSC 48; SC1295 (18 November 2013)