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Papua New Guinea Law Reports |
[1997] PNGLR 28
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BETWEEN:
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS 1996
AND:
IN THE MATTER OF A DISPUTED RETURN IN A GENERAL ELECTION FOR THE MORESBY SOUTH OPEN ELECTORATE IN THE NATIONAL CAPITAL DISTRICT
BETWEEN:
IN THE MATTER OF ALBERT KARO
PETITIONER
AND:
IN THE MATTER OF LADY CAROL KIDU
FIRST
RESPONDENT
AND:
IN THE MATTER OF THE ELECTORAL COMMISSION
SECOND
RESPONDENT
WAIGANI: INJIA J
7 September, 9 October
1997
Facts
Lady Carol Kidu stood as a candidate in the Moresby South Open Electorate in the 1997 National Elections and defeated the sitting member, Mr Albert Karo. In his application to declare the election of Lady Carol Kidu null and void, the petitioner raised a number of grounds to support his case. These grounds included bribery, undue influences and illegal practices. Before the substantive hearing the respondents filed two separate motions to strike out the petition for non-compliance with certain mandatory requirements of the Organic Law on National and Local-Level Government Elections.
Held
Papua New Guinea cases
Agonia v Karo [1992] PNGLR 463.
Badui v Philemon [1992] PNGLR 451.
Biri v Ninkama [1982] PNGLR 342.
Bourne v Voeto [1977] PNGLR 298.
Holloway v Ivarato [1988] PNGLR 99.
Papol v Temo [1981] PNGLR 178.
Poia v Valai N909 (1990).
Counsel
M Wilson, for the
petitioner.
R Kubak, for the first respondent
D L Dotaona,
for the second respondent.
9 October 1997
INJIA, J. This proceeding relates to the election of the first respondent as the new member for the Port Moresby South Open Electorate in the National Parliament on 21 June 1997. In the election, the first respondent polled 3,906 votes and the petitioner polled 2,266 votes, a difference of 1,640 votes. The election was conducted by the second respondent.
The two respondents in this election petition have filed separate motions seeking to strike out various grounds of the petition for failing to comply with inter alia s 208 (a) and (d) of the new Organic Law on National and Local-Level Government Elections (No. 3 of 1997), (hereinafter abbreviated OLNLGE), and other relevant provisions of that law. Before 15 March 1997, the law that prevailed was the Organic Law on National Elections (OLNE). With the passing of the Provincial Government and Local-Level Government reform laws, the OLNLGE was passed by the National Parliament in March 1997. It came into force on 9th April 1997. The two laws however, in most respects are similar. For instance, except for a few changes, Part XVIII Division 1 (ss 206-227) of this new Organic Law, which relates to disputed elections and returns, is almost identical to Part XVIII (ss 206-227) of the old Organic Law.
These motions to strike out the grounds of the petition are filed in accordance with the practice developed by this Court in the past in respect to previous National elections. The National Court has entertained such applications and in some cases struck down election petitions filed under s 206 as offending the mandatory provisions s 208 of the OLNLGE. These applications are made by the respondent(s) at the preliminary stage referred to as "compulsory conference". In the past, many election petition cases have come before the National Court some of which have ended up in the Supreme Court.
The principles relating to the Court’s scrutiny of election petitions at a preliminary stage have been settled by the Supreme Court in two cases namely, Biri v Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99. The provisions of the OLNLGE applicable to preliminary applications and considered by the Supreme Court are ss 208, 209, 210 and 217, which provide:
"208. REQUISITES OF PETITION
A petition shall -
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
"209. DEPOSIT AS SECURITY FOR COSTS
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs.
"210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
"217. REAL JUSTICE TO BE OBSERVED
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."
The Supreme Court in Biri v Ninkama (supra), decided that an "electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s 206 of the Organic Law on National Elections must strictly comply with each and every requirement of s 208 of that Law" (at p. 346, underlining is mine). At p. 345, the Supreme Court unanimously decided that "all the requirements in ss 208 and 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections, it is a constitutional law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with". If "a petition does not comply with all the requirements of s 208, then there can be no proceedings on the petition because of s 210" (at p. 345). The application of s 217 is "only relevant when the National Court determines the merits of the case and when dealing with evidence before it as relevant to the merits" (at p. 346), that is, when the substantive petition is heard. Section 217 does not apply at the preliminary stage when the National Court is dealing with a question of whether a petition complies with the requirements of s 208.
In Holloway v Ivarato (supra), the Supreme Court considered the meaning of the word "facts" in s 208 (a). Although the Supreme Court did not refer to the principles enunciated by the Supreme Court in Biri v Ninkama, the Court did interpret s 208 (a) strictly. Kapi, DCJ with whom Los J and Hinchliffe J agreed said at p. 101:
"The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated." (My underlining).
A little later at p. 101 His Honour said:
"I conclude that s 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved." (My underlining).
As to what are sufficient facts, His Honour said at p. 102:
"Setting out grounds without more does not satisfy the requirement of s 208 (a) .... What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."
The Supreme Court’s decision in the above two cases have been used by the National Court to strike down election petitions at the preliminary or "Compulsory Conference" stage. To begin with, the Supreme Court in Biri v Ninkama was of the view that the Petition, which did not contain the signatures of attesting, witnesses who failed to comply with s 208(d). In Badui v Philemon [1992] PNGLR 451, the National Court struck out a petition which failed to provide the address of the two attesting witnesses. In Agonia v Karo [1992] PNGLR 463, the National Court presided by Sheehan J struck out an allegation which simply stated "(a) on date approximately one month before scheduled polling, the first respondent personally handed a cheque for K200.00 to an individual at the Kaugere Settlement a Women’s Fellowship Group, for no particular purpose". His Honour said:
"As was submitted, there are simply no facts here that even approach a ground of bribery. The "individual" is not named, nor is there any identification of him at all, male or female. Was she elector or eligible voter in the electorate? Did he/she reside at Kaugere Settlement? Was he/she a member of a Women’s Fellowship Group and if so, which women’s group? There is no allegation that the money was given as an inducement to interfere with the proper conduct of the election: In fact it was given "for no particular purpose."
As with previous National Courts, I am bound to apply the principles laid down by the Supreme Court in Biri v Ninkama and Holloway v Ivarato.
The first respondent objects to clauses 4.1 - 4.2, 5 and 6 and 9.1 of the petition. The second respondent objects to clause 7, 8, 9, 10 and 12 of the petition. Clause 11 (Irregularities and discrepancies sighted during polling and counting) is not objected to by either of the respondents.
1. Preliminary Objections
(a) OLNLGE s 222(2) - Not more than one lawyer for a party
A preliminary objection was raised by counsel for the petitioner, Mr. Wilson, under s 222(2) of the OLNGLE that the lawyer for the First Respondent, Mr Kubak, should not make submissions on matters relating to the second respondent because to do so would breach the mandatory requirements of s 222(2) which provides that "In no case shall more than one counsel appear on behalf of a party". It was also submitted that the allegations in the petition against each of the respondents were distinct and separate. Each counsel should confine himself to those allegations levelled against his client. I ruled in favour of the objection because s 222(2) was in clear and mandatory terms. Also, the allegations made against each respondent were distinct and separate. If the facts alleged against one respondent were intricately connected with the other respondents, then I would have allowed counsels to make submissions in respect of both respondents. For instance allegations of bribery or undue influence by a polling official acting as agent for a winning candidate. Consequently, I required Mr Kubak, to confine himself to the allegations levelled against his client in clauses 3 - 6 and counsel for the second respondent, Mr Dotaona, to confine himself to clauses 7-10 and 12 which related to his client, the second respondent.
(b) OLNLGE s 208 (d) - Residential address
The second respondent also objects to the attestation by one witness, Mr Allan Mahuru, at the end of the Petition where he fails to provide his "residential" address and only provides his work place and postal address. In support, I have been referred to several previous cases such as Raymond Agonia v Albert Karo and the Electoral Commission (supra), Delba Biri v Ninkama (supra), Badui v Philemon (supra), and Papol v Temo [1981] PNGLR 178. In Agonia v Karo, Sheehan J said at p. 465:
"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witness’ personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply his village."
In my view s 208 (d) of the OLNLGE simply requires an "address". Section 208 (d) does not require a residential address. I agree with Sheehan J’s statement of the purpose of s 208 (d). I would also agree with His Honour that the requirement to specify the "residential address" on a Petition may depend on the "personal circumstances" of the witness. In my view, s 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address. For example, in the present case, Mr Mahuru’s address is:
Allen Mahuru
Administrative Officer
Motu-Koita Assembly
P O Box 81
KONEDOBU
National Capital District
If one were looking for Mr Allen Mahuru, then it would not be difficult to locate him. One would simply call in at the office of the Motu-Koita Assembly at Konedobu during working hours and ask for its Administrative Officer, Mr Allen Mahuru.
In the present case, I am of the view that the address given in the Petition sufficiently complies with OLNE S. 208 (d).
The first respondent objects to clause 4.1 of the petition which alleges bribery and undue influence by the first respondent "either by herself or by her supporters directly or indirectly". In clause 4.1, it is alleged that the "First Respondent", in the presence of two of her supporters, gave Michael Namba, an elector, money in cheque and cash in the sum of K1,500.00, some smokes and bettlenuts, and said words to the effect that she was giving K1,500.00 for him to share it among his people and "they must vote for me". Mr. Kubak submits that this allegation is totally false, scandalous, frivolous and vexations and should be struck out. He asks me to consider affidavits of various witnesses that he has filed on behalf of his client to determine the truth of this allegation.
Mr. Wilson submits that the allegation of bribery is clear enough and should remain and proceed to trial. He also submits that the Court should not consider the affidavit evidence because they should be considered at the trial proper in the light of evidence the petitioner will produce at the trial.
I agree with Mr Wilson’s arguments. At this preliminary stage, when the Court is considering whether the petition complies with the requirements of s 208 and s 209, there is no consideration of the evidence involved. For this reason, I refuse to strike out clause 4.1 of the petition.
This is the only allegation in the petition, which relates to the direct involvement of the first respondent. The next set of allegations relate to the involvement of the first respondent’s committee members, agents, etc.
The allegations in clause 4.2, clause 5 and clause 9 of the petition relates to the actions of one Mr Diroa Doriga, Bill Skate (and his wife) and Bebema Kamema respectively.
3.1. Objections relating to Diroa Doriga
The allegation in clause 4.2, is stated as follows:
"4.2. On Saturday 14th June 1997 at about 5.30 pm, Mr Diroa Doriga, who owns the land at Vanama Settlement, and who was a campaign committee member for the first respondent, went to that part of Newtown known as Simbu settlement and threatened the people there of eviction if they did not vote for the first respondent, and thereby coerced them to vote for the first respondent. Mr Peter Kora, an eligible voter and a resident of that settlement took note of Mr Doriga’s threats, which were spoken in words to this effect:
"Graun yupela sindaun long en, emi blo mipela ol Motu, na sapos yupela ino givim vot long Lady Kidu, mipela bai rausim yupela long hia."
Translation:
"The land which you are living on, belongs to us Motu people, if you do not give your vote to Lady Kidu, we will remove you all from here."
Because of these unlawful and threatening words, Michael Namba, Peter Kora and other people of the Vanama settlement who would have voted the petitioner were unduly coerced to vote for the first respondent in fear of being removed."
Clause 13 of the petition is also relevant to clause 4.2. Clause 13 alleges that "By virtue of the attempted bribery and attempted undue influence..... specified in this humble petition, the result of the said election for the Moresby South electorate was affected and such election should be declared void."
Mr. Kubak submits that there is no connection between the actions of Diroa Doriga and the First Respondent because it does not say if he was "authorized" by the first respondent to say and do those things. Mr Wilson submits that the Court should infer that because he was the first respondent’s "Campaign Committee member", he was authorized to say and do those things by the first respondent.
The relevance or materiality of the facts pleaded in a petition is determined by the requirements of the provision of the OLNLGE, which provides for the matter required to be proven by the petitioner in order for the election to be voided. Section 215 (1) & (3) provides for illegal practice committed by a winning candidate or a person other than a winning candidate as follows:
"(1) If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) .....
(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."
The effect of s 215 (1) & (3) is as follows. An election will be voided for illegal practices or bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candidate. In such a case, it is not necessary for the Petitioner to show that the result of the election was likely to be affected. Likewise, under s 215 (3) (a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate. In which case, it is also not necessary for the Petitioner to show the likelihood of the election being affected. An election may be declared void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the knowledge or other authority of the winning candidate provided the Court is satisfied that the result of the election was likely to be affected.
The facts pleaded in clause 4.2. is that Diroa Doriga was a member of the first respondent’s "Campaign Committee" and that he did or said those things in that capacity. In my view, facts relating to matters requiring proof prescribed by the OLNLGE cannot be left to inference in a Petition. They must be specifically pleaded, not left to inference. It is a requirement of s 215 (3) to specifically plead whether the bribery and undue influence, in the present case by the first respondent’s Committee members, was committed with or without the authority or knowledge of the first respondent. The pleading of this requirement would clarify the exact basis under s 215(3) (a) or (b), under which the election is being sought to be voided. By failing to plead these relevant or material facts as to knowledge or authority of the first respondent, it creates confusion between s 215 (3)(a) and (b).
Also reading clause 13 together with clause 4.2, the former speaks of "attempted undue influence" whereas the latter speaks of actual undue influence, thereby aggravating the confusion between s 215 (3)(a) and (b).
For these reasons, I strike out the whole of clause 4.2. as offending s 208 (a) in conjunction with s 215 (3).
3.2. Allegations against Bill Skate and his agent
The allegations set out in clause 5 and 6 relate to Mr Skate. The allegations cover four (4) pages in the Petition. In clause 5, the Petitioner gives a detailed account of moneys given by Mr Bill Skate to various Church Groups and words spoken in order to unduly influence them not to vote for the Petitioner, but to vote for the first respondent. In clause 6, the Petitioner sets out detailed accounts of conversation between Mr Bill Skate and various eligible voters suggesting some form of bribes and threatening words aimed at terminating certain job contracts which they had with the organization Bill Skate was heading, the National Capital District Commission (NCDC).
The first respondent’s counsel submits that there is nothing in the facts to connect Mr Bill Skate’s actions to the first respondent, Mr Bill Skate himself being a candidate for the NCDC seat who was entitled to campaign among these people for him. The facts alleged against Bill Skate should be brought against him separately in an Election Petition against him which is pending before the National Court. The facts alleged against Mr Skate are criminal in nature and Mr Skate has a constitutional right to be heard on these allegations. It is dangerous and unprecedented to level allegations of a criminal nature against another winning candidate in an election petition against another winning candidate.
Mr Wilson for the Petitioner submits that the facts alleged against Mr Skate are proper in that they are alleged against him in his capacity as a supporter of the first respondent who unduly influenced voters to vote for the first respondent. As Mr Skate is not affected by the relief sought by the Petitioner, he cannot be joined as a party to the petition. Therefore, he does not stand to suffer any prejudice.
In relation to clause 5.1 - 5.2, it is alleged that Mr Skate was a candidate for the NCDC Regional Seat of which the Moresby South Seat won by the first respondent was a part. In clause 5.1-5.2, however, there is no reference to the first respondent.
There are several references to the first respondent in clause 5.3. Mr Skate is alleged to have uttered some words in front of some "eligible voters around there at the time in that village to vote for the first respondent". Also, Mr Skate is said to have said "I will make my in-laws vote for Lady Carol Kidu so Albert Karo will lose and you will suffer". It is alleged these words uttered by Mr Skate were intended by him to unduly influence Messrs Isi Kevau, Puka Nou and eligible voters in their families not to vote for the Petitioner, a candidate of their choice, but for the first respondent, who is Mr Bill Skate’s choice.
In relation to clause 5.4, various sums of money are alleged to have been given out by Mr Skate in cheques to various Church Groups. It is alleged that "Mr Bill Skate bribed eligible voters of members of the following Churches (mentioned) to influence them to vote for him for the National Capital District Regional Seat and Lady Carol Kidu, his candidate, for the Moresby South Open Seat."
The allegations levelled against Mr Skate insofar as they relate to the first respondent falls under s. 215 (3). The only connecting words here between them are that the first respondent was the "choice" or "candidate" of Mr Bill Skate and he was campaigning for both himself and her. But it does not say if what was done or said by Bill Skate was done with the knowledge or authority of the first respondent. I strike out both clause 5.3 and 5.4 for the same reasons I struck out clause 4.2.
I also strike out the whole of clause 6 of the petition for the same reasons, that is, for failing to plead the relevant and material facts as to knowledge and authority of the first respondent in relation to the words uttered by Bill Skate. In fact, in clause 6, there is no mention at all of the first respondent.
In the alternative, it is submitted by Mr Kubak that clause 5 and 6 should be struck out because they plead the evidence and not the facts as required by s 208 (a) as interpreted by the Supreme Court in Holloway v Ivarato. In my view, the allegations in clause 5 and 6 plead the evidence and not the facts. Even if some facts are pleaded, those facts are buried in a load of evidence. This Court would have to read the whole of clause 5 and 6 to work out for itself what the precise relevant or material facts, which support the ground of "undue influence and bribery cash", are. To demonstrate this point, I set out hereunder clause 6 in full:
"6. UNDUE INFLUENCE AND BRIBERY - CASH
6.1. On Sunday, 11th May 1997 between 8.00 pm and 9.00 pm, Mr Bill Skate sent a Mr Biri Dadi to invite Mr Isi Kevau over to his mother in-law’s house to eye witness a presentation by him.
6.2. Mr Isi Kevau accepted the invitation because his daughter, Boio is married to Mr Bill Skate’s adopted son, Puka, who is also Mr Bill Skate’s brother in-law.
6.3. When Mr Isi Kevau entered the common room, the following people were also in the room:
(a) Rarua Skate (Bill Skate’s wife)
(b) Kabua Nou (Bill Skate’s wife’s sister)
(c) Kore Edea (Bill Skate’s Committee Chairman)
(d) Joseph Kerowa (Petitioner’s potential supporter)
(e) Kerowa’s 3
clansmen (Petitioner’s potential supporters)
(f) Russel Simon (Bill Skate’s supporter)
6.4. Mr Skate then asked Mr Isi Kevau pointing to Mr Joseph Kerowa, "Do you know this man"?
When Mr Isi Kevau said, "Yes", Mr Bill Skate said:-
"I called you to eye witness the presentation of Ten Thousand Kina to Joseph Kerowa not to support Albert Karo any longer."
6.5. Mr Skate then said to his wife,
"Rarua oi laso ruma dekenai ten thousand kina oi abidia bona sisia isedia rua."
Translation
"Rarua you go to the house and get ten thousand kina and two dog’s teeth."
6.6. During the short waiting period, Mr Bill Skate was doing all the talking and saying words to this effect:-
"Ah, mi king blo ol Jiga (Joseph Kerowa’s clan), sapos mi tok yumi kilim wanpela man, yumi bai kilim stret, tru o fols?"
Translation
"I’m the King of Jiga (Joseph Kerowa’s clan). If I say we kill a man, we will kill, that’s true or false."
Mr Bill Skate also said words to this effect:-
"I’m the King of Papua, whatever I say, will happen!"
6.7. Mrs Rarua Skate returned within 20 minutes and sat next to Mr Skate. Then she took out a brown bulky envelope and placed it inside a white plastic shopping bag and handed it to Mr Skate who said:
"You give it to Joseph."
Then Mrs Skate handed it to Mr Joseph Kerowa who shook hands with Mr Bill Skate. Mr Bill Skate then said:
"Yu kam tumoro na kisim dok tit blo yu."
Translation
"You come tomorrow and pick up your dog’s teeth."
6.8. Mr Joseph Kerowa then said:
"OK em klostu kefiu taem, mipela bai go nau."
Translation
"OK it’s almost curfew time, we are going now".
6.9. After they left, Mr Bill Skate turned to Mr Isi Kevau and said, words to this effect:
"Lau na king of Papua, dahaka do lau hereva do ia vara inai Eleksin dekenai be do lau hereva daika ia gini, do ia gini, ma daika do ia gini lasi, ia gini lasi."
Translation
"I am king of Papua, whatever I say will happen during this Election, whoever I say will stand, that person will stand, and whoever I say will not stand, will not sand."
6.10. Mr Bill Skate then pointed to Mr Isi Kevau and said words to this effect:
"I will terminate your contract and you will be poor again."
6.11. When Mr Skate said this to Mr Isi Kevau, Mrs Skate got up and said words to this effect:
"Kara haraga, ita daekau ruma dekenai, taunima nima haida idia naria."
Translation
"Hurry up, let’s go up to our house, there are some people waiting."
In my view, clause 6 breaches the "facts only and not the evidence" rule laid down by the Supreme Court in Holloway v Ivarato. The purpose of pleading only the relevant or material facts and not the evidence, which constitute a ground, is to indicate clearly to the Court and the opposing party the precise issues. To plead evidentiary materials in a vague and piece-meal manner as the present Petitioner has done in clause 6 is to leave the Court and the Respondents guessing as to what the precise factual allegations are. This results in the Court having to waste precious time reading through pages of evidence, which in this case runs to two (2) pages. It is not intended by s 208 (a) and s 210 of the OLNLGE that the Court should waste time reading through the material and working out for itself the precise relevant or material facts which may be buried in a load of evidence in a petition. For these reasons, I strike out clauses 5 and 6 of the Petition as offending s 208 (a) of the OLNLGE as interpreted by the Supreme Court in Holloway v Ivarato.
3.3. Undue influence by the first respondent’s supporter
In clause 9 entitled "undue influence by the first respondent’s Supporter", it is alleged that during polling at Gorobe polling place, Mr Bebema Kamena who is "a Committee member of the first respondent, was seen by Mrs Rose Duaba telling a female elector, namely Kakanato Debewana, whose intention was to vote for the Petitioner but was persuaded to vote for the first respondent". Mr Kamena was "also seen trying to influence another elector namely, Isawato Bakumi. However, Mr Kamena did not succeed and Isawato Bakumi voted for the Petitioner". (My underlining).
It is submitted by Mr Dotaona that Clause 9 should be struck out. It fails to set out sufficient facts as to undue influence within the meaning of s 102 (a) or (b) of the Criminal Code as decided by Frost CJ in Bourne v Voeto [1977] PNGLR 298. In that case, Frost CJ held that undue influence in s 215 of the OLNE is to be given the same meaning as in s 102 (b) of the Criminal Code. It must be shown "that a person by franchise prevented or obstructed the free exercise of fraud by an elector and.... fraud does include a false statement made by a person to an elector" (p. 303). Alternatively, under s 102 (a) it must be shown that a person used or threatened to use on any elector any force or restraint to do temporal, spiritual injury or cause detriment of any kind at an election. I accept these principles enunciated by Frost CJ. Applying these principles to the facts of this case, the allegation simply that Mr Kamena told or influenced the other person to vote for the first respondent fails to satisfy the requirements of s 208 (a) in conjunction with s 102 of the Criminal Code. That is, there is no reference to any force or threat used by Mr Kamena on Mrs Duaba and Mr Dakumi.
For these reasons, the whole of clause 9 is struck out.
4. Objections relating to allegations against the Second
Respondent
4.1. Alteration of Polling Schedule and Polling areas without
adequate publicity and denial of constitutional right to vote
Clause 7 of the Petition sets out a mixture of "facts" and "evidence" as to the alteration, by the Second Respondent, of polling schedules in various polling places in the Moresby South Open Electorate, which prevented a total of 1,104 eligible voters from voting in the election. It is alleged that the change in the time of the polling schedules on polling day on 16/6/97, were done by the Second Respondents without prior notification thereby causing confusion among eligible voters and resulting in eligible voters not turning up at the correct polling place or turning up at the wrong polling place at the wrong time. They allege that many voters were turned away because their names were either not on the common roll or were on the common roll, but their names were placed beside the wrong polling place.
At the outset, it is clear from reading the whole of clause 7 that the electors were previously notified that there was going to be a one day polling scheduled for 16 June 1997. This date was not altered because polling was actually conducted on 16 June 1997. There is no facts pleaded to show if the polling times at different polling places on that day was also pre-fixed so that the times were altered thereby making it impracticable for eligible electors to vote at that polling place at the specified time. Therefore, insofar as clause 7 purports to challenge any alteration as to polling schedule, both in date and time, it has no factual basis and should be struck out for this reason.
Alternatively, this clause should be struck out under s 117 which provides:
"ELECTION NOT OPEN TO CHALLENGE
An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of Section 114, or of a variation or a departure from a polling schedule."
Mr Dotaona submits that clause 7 should be struck out as being not permitted by s 117. He submits, as with other sections in the OLNLGE such as s 208, 209 and 210, this section should be strictly applied.
Mr Wilson submits that s 117 should be read in the light of s 113 - 115. It is submitted that s 117 operates to bar election petitions from being brought on the basis that polling schedules had been changed when such changes were necessitated by justifiable and reasonable grounds such as bad weather, emergencies or other special circumstances (under s 115). It is submitted that s 117 "does not authorize cancellation of a polling place or failure to adhere to the polling schedule to such an extent that eligible voters are prevented from voting at all" which in turn would have affected the result of an election: (see Poia v Valai (1990 unreported) N 909 at p. 10.
In Poia v Valai, Sheehan J was interpreting s 94 of the now repealed Provincial Government (Electoral Provisions) Regulations in the light of ss 90, 91 and 92 of that regulation which are the same (except for the use of the word electorate for constituency) as that of s 113 - 117 of the OLNLGE.
In my view, although the provisions under consideration by Sheehan J in Poia v Valai are similar to those in the OLNLGE, I would be loath to apply his approach and reasoning to the present case. In the former, the provisions were in the form of regulations affecting a Provincial Government election, whereas in the present case, we are dealing with provisions of an Organic Law - a form of Constitutional Law, which deals with National Government elections. Section 117 must be strictly applied. In my view, s 117 is intended to cover all possible situations covered by Division 1 of Part XIII (ss 113 - 116 inclusive). This section is the last of the 5 sections in Part XIII - (The Polling), Division 1. - Polling Schedule. The other sections are s 113 (Polling Schedule), s 114 (Publication of Polling Schedule), s 115 (Adherence to Polling Schedule) and s 116 (Appeal). Section 117 is intended to cover all possible situations covered by the earlier situations spelt out in ss 113 - 116.
It is clear from s 116 that Parliament intended that perceived difficulties arising from polling schedules should be administratively resolved and not in a Court of Disputed Returns. Section 116 gives a voter the right to appeal to the Second Respondent 14 days before the commencement of a polling period, for an "order varying a polling schedule on the ground that it does not give to all electors in the electorate or in a part of the electorate a reasonable opportunity for voting in the election."
The facts in the Petition allege that the polling schedule was advertised on 19 April 1997, but none of these electors lodged such an appeal. They turned up at the polling places on the day of polling and complained about not being given reasonable opportunity to vote. Now the Petitioner relies on that in an attempt to void the election. This is not permitted by s 117.
Further, the facts and evidence alleged in the whole of clause 7 is struck out insofar as they plead the evidence and not facts.
4.2. Violations of Electoral Laws by Polling Officials
Clause 8 is entitled "Violation of Electoral Laws by Polling Officials". The Petitioner alleges that polling officials at Sabama - Bundilamp polling place and 2 Mile Memorial Hill polling place commenced polling some 2-3½ hours late instead of 8.00 am as previously scheduled, thereby, preventing many voters from casting their votes, or of those who voted, they allowed the wrong persons to vote under the names of different persons. The scrutineers were kept 10-15m away from the polling booths.
Mr Dotaona submits that this clause should be struck out because it is vaguely worded and lacks relevant facts such as failure to provide date of polling, names of voters whose names were allegedly crossed out from the common roll, names of scrutineers kept out and the names of some 70 eligible voters who were turned away without casting their votes.
I accept this submission. In addition, clause 8 does not specify which electoral law was violated by the actions of these officials. It is not in the interest of justice to leave the Court and the Second Respondent guessing as to what the provisions breached might be. Where the Petitioner relies on the breach of statutory or constitutional duty by an electoral official, then that provision must be set out beside the alleged facts: (see Holloway v Ivarato (supra) at p. 102).
For these reasons, the whole of clause 8 is struck out.
4.3. Illegal Practices by Officials during counting
In clause 10 of the Petition entitled "Illegal Practices by Officials during Counting," the Petitioner alleges that during the four days of counting, scrutineers of most of the candidates including the Petitioner’s scrutineers were made to stand 3-5 metres from the counting areas. Therefore they were unable to conduct a proper scrutiny of the counting of votes. As a result, on the fourth day of counting, all scrutineers of all candidates except those of the first respondent, Mr Bill Skate and Mr Bill Dihm, protested and boycotted the counting. The counting continued and the result of the election of the first respondent was announced in their absence. The Petitioner alleges that as a result, "the final figures declared for each candidate remains questionable."
Mr Dotaona submits that this clause should be struck out. It fails to specify the "illegal practice" within the meaning of s 178 and s 105 and s 106 of the Criminal Code.
Mr Wilson submits that the "illegal practice" pleaded here is a breach by the electoral officials of s 151(c) of the OLNLGE which provides that "all the proceedings at the scrutiny shall be open to the inspection of the scrutineers." He submits an act contrary to law is an illegal act. Not allowing proper scrutiny as directed by s 151 (c) comes within the meaning of an "illegal act".
In my view, an "illegal practice" at an election is not the same thing as an "illegal act" at an election. The phrase "illegal practice" as used in s 215 has a statutory definition given by s 178(1) of the OLNLGE.
The conduct of the electoral officials of the kind complained of in clause 10 of the Petition is not included in s 178. Section 105 and 106 of the Criminal Code also set out instances of "illegal practices" at an election. The conduct of the electoral officials complained of in this petition is also not included in those two sections. The actions complained of here in this Petition which are in breach of s 151 (c) of the OLNLGE amounts to "an error of, or omission by, an officer" of the Electoral Commission within the meaning of s 218 of the OLNLGE. They are acts of error or omissions constituting a breach of s 151 (c) in that they failed to perform their statutory duty in ensuring that the counting of the votes was sufficiently open to scrutineers.
In my view, clause 10 of the Petition as explained by Mr Wilson is misconceived in law and should be struck out.
4.4. Irregularities during Polling and Counting
In clause 12 of the Petition entitled "Irregularities during Polling and Counting", the Petitioner alleges 10 instances of irregularities noticed by one of the Petitioner’s scrutineer, namely Sevese Sarea. Examples of these instances include, "the vote recorded of the Petitioner were obviously reduced during counting," "only informal votes displayed for inspection" and "requests for re-checking were completely ignored." In summary, the instances complained of amounted to "careless attitude of counting" which resulted in there being "extra votes, as well as lost votes" and this in turn "greatly affected the final outcome of the election result."
It is submitted by Mr Dotaona that this clause should be struck out. It fails to plead sufficient material facts such as which ballot boxes number, when, who, and the number of votes effected.
I agree with this submission. These allegations are too broad and vague in that they lack relevant and material facts referred to by Mr Dotaona which would amount to a "material error or omission" sufficient to affect the result of an election to invalidate an election. Therefore, the whole of clause 12 should be struck out.
5. Conclusion
The end result of this ruling is that the allegations contained in clause 4.2 - 10 (inclusive) and 12 are struck out for failing to comply with s 208 (a) of the OLNLGE. Clause 4.1 remains in the petition. In addition clause 11 (Irregularities and discrepancies sighted during polling and counting), which has not been objected to by the Second Respondent, remains.
Costs of these motions is reserved.
Lawyer for the petitioner: Warner Shand Lawyers.
Lawyer for the
first respondent: Kubak Lawyers.
Lawyer for the second respondent:
Allens Arthur Robinson Lawyers.
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