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Saweni v Pruitch [2003] PNGLR 3 (7 March 2003)

NATIONAL COURT OF JUSTICE

EDDIE SAWENI

V

PATRICK PRUITCH;

REUBEN KAIULO; AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

VANIMO: SAWONG J

4 and 7 March 2003

ELECTION PETITION - Application to strike out petition – compliance with Organic Law on National and Local Level Government Elections – Section 208(a) – Facts to support ground on which petition is founded.

ELECTION PETITION - Petition grounded upon errors or omissions by electoral officers – Section 218 of Organic Law – Petitioner must plead facts to support all elements of errors or omission.

ELECTION PETITION – Errors or omissions by electoral officials –Material facts not pleaded to support ground – Petition dismissed.

Facts

Eddie Saweni (Petitioner), an unsuccessful candidate, filed an election petition on 20 August, 2002 contesting the results of the election for Aitape-Lumi Open Electorate, Sandaun Province in the National Elections conducted in 2002. Originally the petitioner contained 3 grounds, namely parts A, B & C. Part A relates to the qualifications of certain candidates under s103 (2) of the Constitution. Part B related to alleged irregularities, errors, omissions and undue influence against the first respondent, his servants and agents and electoral officials. Part C related to alleged errors and omissions and undue influence by the first respondent and his supporters.

Held

1. Returning Officers do not have the authority to determine the qualification or disqualification of a candidate. The Supreme Court made this abundantly clear in Billy Jababa v Iambakey Okuk [1983] PNGLR 69

2. A petition must not only state grounds relied upon, such as bribery, undue influence, etc but must also state the relevant and/or material facts relied on in summary. See Siaguru v Unagi and Electoral Commission [1987] PNGLR 372.

3. Failure to plead the ground and the facts as required by s 208 (a) or failure to plead the facts to support any of the elements under s 218 (1) of the Organic Law will be fatal, s 210 of the Organic Law.

Papua New Guinea cases cited

Agonia v Karo [1992] PNGLR 463.
Billy Jababa v Iambakey Okuk [1983] PNGLR 69.
Biri v Ninkama [1982] PNGLR 342.
Fr. Louis Ambane v Thomas Tumun Sumono & Electoral Commission (unreported) SC565.
Holloway v Ivarato [1988] PNGLR 99.
Iambakey Okuk v Electoral Commission [1983] PNGLR 69.
Paul Kamod v Stanley Pil (1983) unreported judgement of the National Court.
Pita Lus v Gabriel Kapris (unreported judgement) N2326.
Siaguru v Unagi & Electoral Commission [1987] PNGLR 372.

Counsel

A Baniyama, for the petitioner.
J Yagi, for the first respondent.
J Nonggorr, for the second and third respondents.

7 March, 2003

Sawong j. The Honourable Patrick Pruiatch (first respondent) was elected as the Member for Aitape-Lumi Open Electorate, Sandaun Province in the recent National Elections conducted in 2002.

Eddie Saweni (Petitioner), an unsuccessful candidate filed an election petition on 20 August, 2002 contesting the results of the election. Originally the petitioner contained 3 grounds, namely parts A, B & C. Part A relates to the qualifications of certain candidates under s103 (2) of the Constitution. Part B related to alleged irregularities, errors, omissions and undue influence against the First respondent, his servants and agents and electoral officials. Part C related to alleged errors and omissions and undue influence by the first respondent and his supporters.

On 25 October, 2002 an objection to competency of the Petition was filed by the first respondent.

Subsequently on 12 December, 2002 all of the matters pleaded and set out in Parts B and C of the petition were withdrawn by the petitioner.

It is not clear from the Court's records whether the original objection was dealt with or not. In any case on 14 January, 2003 the Court ordered, inter alia; that the first respondent file and serve an amended Notice of Competency by 21 January, 2003. That has been done. Originally Mr Baniyamai opposed the application. However in the end Mr Baniyamai conceded that there was really no basis to object to the competency issue as it was clear that the court had ordered the first respondent to file his amended objection to competency. In view of Mr Baniyamai's concession, I need not say anything further on this.

I now turn to the remaining grounds of the petition, namely Part A. It is convenient to set out the grounds of the petition as well as the pleading of facts to support the grounds.

These are set out in paragraphs 1 – 11. These are as follows:-

"1. The petitioner was a candidate in the Aitape Lumi Open Electorate in the 2002 National Elections (the elections).

2. The first respondent was declared as the winner of the Aitape Lumi Open Seat on 11 July, 2002.

3. The conduct of the National Elections and related matters are the responsibility of the Electoral Commissioner, Mr Reuben Kaiulo.

4. The person duly appointed by the Electoral Commissioner as the Returning Officer for the Aitape Lumi Open Electorate is Melchior Kalit.

5. That the polling for the Aitape Lumi Open Electorate commenced on 24 June, 2002.

6. The Aitape-Lumi Open Electorate Seat in the National Elections was declared won by the first respondent on 11 July, 2002, with 2,412 votes. The petitioner was third with 1937 votes, a difference of 475 votes.

7. The petitioner disputes the election of the first respondent as member for the Aitape Lumi Open Electorate in the National Parliament and relies on the events and incidents prior to and during the polling, prior to and during the counting of the votes amounting to errors and omissions and or illegal practices perpetrated by the Electoral Commission and its officials and agents and or illegal practices and acts of undue influence committed by the first respondent and or his supporters in respect of the Aitape Lumi Open Electorate in the Sandaun Province.

A. Disqualification under section 103 (2) of the Constitution.

8. At all material times, four candidates were not eligible to nominate to contest the elections for the Aitape-Lumi Open Electorate. These were JOHN AWEI YEMI, JERRY AWI PAKAU, RICHARG WAISU, and JOHN KOUYE.

Particulars of ineligibility.

(a) John Awei Yemi was born in Mt. Hagen. He was not born in the Aitape-

Lumi Open Electorate.

(b) John Awei Yemi was not and has never been a resident within the Aitape-Lumi Open Electorate for a period of two years preceding the National Elections in 2002.

(c) For a period of two years preceding the 2002 National Elections, John Awei Yemi was a resident of Mt Hagen, in the Western Highlands Province.

(d) John Awei Yemi was never a resident of Aitape - Lumi Open Electorate for a period of five (5) years at any one time.

(e) Jerry Awi Pakau was not born within the Aitape –Lumi Open Electorate. He is from Highlands Region of Papua New Guinea.

(f) Jerry Awi Pakau did not live within the Aitape-Lumi Open Electorate for a period of two years preceding the 2002 National Elections.

(g) Jerry Awi Pakau was living outside of the Aitape-Lumi Oepn Electorate for two years preceding the 2002 National Elections.

(h) Jerry Awi Pakau was never a resident of Aitape –Lumi Open Electorate for a period of five years at an one time.

(i) Richard Waisu was not enrolled in the common roll for Aitape-Lumi Open Electorate and thus was never an eligible voter and candidate for the Aitape –Lumi Open Electorate.

(j) John Kouye was never registered as a voter in the common roll for the Aitape –Lumi Open electorate and as such was never eligible to contest the Aitape-Lumi Open Seat.

11. In or about April 2002, John Awei, Jerry Pakau, Richarg Waisu and John Kouye were allowed to nominate as a result of the negligence of and or as a result of an error or omission by the officials and agents of the Electoral Commission including, the Returning Officer for the Aitape - Lumi Open Electorate, Mr Melchior Kalit when the said candidates were ineligible to nominate under section 103 of the Constitution.

12. The said John Awei Yemi, Jerry Awi Pakau, Richard Waisu and John Koiye were allowed to contest the Aitape-Lumi Open Electorate due to the negligence of or and error or omission by the Electoral Commission and its agents as pleaded under paragraphs 8 and 9 above, and they scored the following number of votes:-

Particulars of Scores.

(a) John Awei Yemi 1526 votes

(b) Jerry Awi Pakau 130 votes

(c) Richard Waisu 120 votes

(d) John Kouye 40 votes

Total K1816 votes

13. The total votes scored by the alleged disqualified candidates was 1816 votes which is more than the winning margin of 219 votes between the first respondent and Maran Nataleo, the runner up and as such the results of the election could have been affected. Had the 1816 votes were allocated to the other 35 candidates, the first respondent would not have won."

At the hearing of the objection Mr Baniyamai asked that the references to the three people, namely Jerry Awi Pakau, Richard Waisu and John Kouye be deleted and so any references to them were deleted.

As I have alluded to earlier, the first respondent filed a Notice of Objection to the Competency of the petition on 25 October, 2002. This was subsequently amended by an Amended Notice of Objection to Competency filed by the first respondent on 21 January, 2003. The second and third respondents join and support the objection. The Notice seeks to dismiss the whole of the petition.

The objection came up for determination at the commencement of the trial. After hearing parties I reserved my decision to to-day.

Counsels for the respondents have advanced number of reasons to support their proposition that the petition is incompetent and it ought to be dismissed in its entirety. Both Mr Yagi and Dr Nongorr have filed written submissions. In addition they have made further oral submissions.

Mr Baniyamai has submitted that the petition is competent and it raises important legal issues such that the court should allow the petition to proceed to trial. He too has submitted a written submission and was also allowed to make oral submissions.
Dr Nongorr and Mr Yagi submitted that the pleadings in the petition do not comply with s208 (a) of the Organic Law on National and Local Level Government Elections ("the Organic Law"). They submit that as the petitioner has not pleaded the relevant and material facts as required by s208 (a) of the Organic Law, the petition ought to be dismissed.

It was submitted that it was mandatory that a petitioner sets out clearly full facts which are sufficient to invalidate the election. It must not only set out the grounds but must also state the material facts relied on. On this aspect Dr Nongorr and Mr Yagi relied on a number authorities, such as Biri v Ninkama [1982] PNGLR 342, Holloway v Ivarato [1988] PNGLR 99, Siaguru v Unagi & Electoral Commission [1987] PNGLR 372.
They further submit that where a petitioner is alleging errors or omission, the petitioner must not only set out the grounds but must also set out the facts to show that the errors or omission did affect the results of the elections.

In the petition only one allegation remains to be tried. The allegation relates to the qualification of one candidate. The substance of the allegation is pleaded under paragraph 9 of the petition. The essence of the allegation is that the Returning Officer for Aitape-Lumi Open Electorate was negligent and /or committed an error or omission in allowing the one candidate to nominate when he was not qualified. The issue is whether this was really an error or omission.

Dr Nongorr submitted that the pleadings are deficient in that they do not state the date (s) on which the four were nominated. This date is important and it must be pleaded. He submitted that as the date is a material fact and as it has not been pleaded, this is fatal to the survival of the petition.

Secondly he submitted that as the allegation is one of the error or omission on the part of the electoral officials, it falls within the ambit of s 218 (1) of the Organic Law. Accordingly he submitted the petition must state the error or omission complained of, that the error or omission was committed or made by an electoral official and that the error or omission "did affect the result of the election". - See Fr. Louis Ambane v Thomas Tumun Sumono & Electoral Commission, (Unreported) SC 565.

Dr Nongorr submitted that the electoral official did not commit any error or omission in accepting the nominations of the four candidates. He submitted that a Returning Officer does not have the authority to determine the qualifications or disqualifications of a candidate. They relied on the decision of the Supreme Court in Iambakey Okuk v Electoral Commission [1983] PNGLR 69.

He submitted that the reason for the proposition established by the Supreme Court is quite clear. The reason is that apart from the formalities of nomination that a Returning Officer can ensure compliance, Returning Officers cannot be given the authority to decide on the qualification of a person to be a Member of Parliament under s 103 of the Constitution.

He submitted that on facts pleaded the electoral officials did not commit any error or omission in not rejecting the nominations of the four losing candidates.
They further submitted that as the petition relies on the grounds of error or omission it must set out the material facts to show how the error or omission did affect the results of the election. They submit that this material fact has not been pleaded and therefore it is fatal to the petition.

Mr Baniyamai submitted that this Court's jurisdiction to hear and determine objections to the competency of a petition are limited by the scope of s 208 and s 210 of the Organic Law. He submitted that the scope of s 210 of the Organic Law is limited by the terms of
s 208 and s 209 of the law. According to him the Court has no jurisdiction to determine objections premised on other grounds apart from those that are set out under s208 and s209 of the Organic Law. He submitted that to do so would be venturing out of its powers at this stage of the proceedings. He submitted that, as the objections raised issues not based on the matters set out in s 208 or s 209 of the Organic Law, the objections of competency are incompetent and ought to be dismissed.

In the alternative he submitted that the grounds and the facts pleaded were sufficient and complied with the requirements of s 208 of the Organic Law. He further submitted that the issues raised in the petition are important and ought to be properly tried and determined.

I have read and considered carefully all of the submissions made by each of the Counsel. I have also read and considered carefully the various authorities each of the counsels have relied on.

In summary the respondent's objections are founded on two principal grounds. First is that the alleged error or omission alleged to have been committed by the Returning Officer in accepting the nomination of John Awei Yemi was not an error or omission.
The second ground is that even if the allegations amounted to error or omission, nevertheless as the petitioner has not pleaded the material facts in the pleadings, the pleadings ought to be struck down as not meeting the prerequisites of ss 208 and 218 (1) of the Organic Law.

Section 208 of the Organic Law sets out the pre-requisites of a petition. The relevant provision is s208 (a) which requires:

"A petition shall –

(a) set out the facts relied on to the election or return,"

The law relating to the nature of facts and the sufficiency of facts required under s 208 (a) is now well settled. In Holloway v Ivarato [1988] PNGLR 99, the Supreme Court said:

"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 return may be invalidated. In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. 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."

A petition must not only state grounds relied upon, such as bribery, undue influence, etc but must also state the relevant and/or material facts relied on in summary. See Siaguru v Unagi and Electoral Commission [1987] PNGLR 372.

Those principles have been approved and applied in many subsequent election petition cases. It is not necessary to set them out here.

Thus, if a petition does not plead all the necessary requirements for invalidating an election, such a pleading is defective and will be struck down. In Paul Kamod v Stanley Pil (1983) Unreported judgement of the National Court, Andrew J when dealing with an illegal practice the petition failed to plead an essential requirement under s 215 (3) of the said Organic Law:

"The paragraph does not plead that the result of the election was likely to be affected which is a requirement under s215 of the Organic Law on National Elections and for that reason is defective."

More recently, Kapi DCJ, in Sir Pita Lus v Gabriel Kapris, (Unreported judgement) No. N2326 agreed with that passage. I too agree with that principle.

Consequently where the petition is grounded upon, for instance error or omission by an electoral official under s218 (1) it must state the error or omission complained of, the error or omission was committed or made by electoral official and must plead that the error or omission did affect the result of the election. Failure to plead the ground and the facts as required by s208 (a) or failure to plead the facts to support any of the elements under s. 218 (1) of the Organic Law will be fatal. Failure to comply is fatal in accordance with

s 210 of the Organic Law. It reads:

"No proceedings unless requisites complied with.

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

An election petition is a very serous matter and Parliament intended that all the pre-requisites of s208 have to be strictly complied with (Biri v Ninkama [1982] PNGLR 342, Agonia v Karo [1992] PNGLR 463).

I now apply these principles to the petition before me. Paragraphs 1-6 inclusive are the formal parts and which do not constitute grounds to invalidate the election.
The relevant parts are in paragraphs 7 – 11, inclusive. Paragraph 7 is alleging in general terms the grounds of illegal practices, undue influence, and errors or omissions committed by the Electoral Commission or its officials before, during polling and counting. It also alleges that the first respondent or his supporters committed undue influence and illegal practices.

In my view this paragraph is badly drafted. As it stands it clearly offends against the provision of s208(9a). This paragraph pleads various grounds but no facts are pleaded. It cannot stand and it is struck down.

Paragraphs 8, 9, 10 & 11 maybe dealt with together. The substance of paragraphs 8, 10 & 11 are contained in paragraph 9. The effect of these paragraphs is that the petitioner alleges that the Returning Officer committed errors or omissions by accepting the nomination of John Awei Yemi as a candidate when he was not qualified.
This ground is founded upon s. 218 (1) of the Organic Law. Section 218 reads:

IMMATERIAL ERRORS NOT TO VITIATE ELECTION.

"(2) 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.

(3) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election."

However none of the paragraphs, that is paragraphs 8 – 11 inclusive, pleads that the error or omission by the electoral official did affect the result of the election. In other words the pleadings do not state the error or omission did affect the result of the election. This is an essential requirement under s218 (1) of the Organic Law and for that reason the pleadings are defective and must be struck down.

As can be seen apart from paragraphs 1 – 6 which contain the formal parts and which do not themselves constitute grounds for invalidating the election, the end result is that the substantive pleadings in paragraph 7 – 11, inclusive, have been struck down. Consequently there are no grounds left to proceed to trial. The end result is that the petition cannot proceed any further.

I would also dismiss the petition for another reason. The error or omission complained of is not really an error or omission at all when one considers the duties and functions of Returning Officers.

Returning Officers do not have the authority to determine the qualification or disqualification of a candidate. The Supreme Court made this abundantly clear in Billy Jababa v Iambakey Okuk [1983] PNGLR 69, where at pp 70 – 71 the Court said:

"The whole purpose of a nomination procedure in our electoral system is to prevent a plethora of candidates presenting themselves as candidates for election to office. The nomination paper has to be lodged within due time. It must be in the prescribed form and must name the candidate, his place of residence and occupation and set out the qualifications by virtue of which he is qualified for nomination. The person nominated must consent to act if elected and must declare that he is qualified under the laws of Papua New Guinea to be elected as a member. He must deposit the sum of K100.00. When those documents are lodged with the returning officer it is his duty to examine them and see that they are in the correct form and to decide whether the candidate has been validly nominated. The scrutiny of the nomination papers by the returning officer is to show whether they comply with the requirements of the Organic Law and with the forms and the papers are in order and in accordance with his discretion under s. 88 of the Organic Law. It is no part of the returning officer's function to apply his mind as to whether there are other grounds for disqualifying the candidate. In principle the law in this case shows that it is no part of the returning officer's duty to concern himself with matters of qualification or disqualification for election. If there are failures on the part of a candidate to qualify, that is a matter for challenge by way of election petition. See Greenway – Stanley v Paterson [1977] 2 All E.R. 663, R. v Election Court, Ex parte Sheppard [1975] 1 W.L.R. 1319, and Pritchard v Bangor Corporation [1888] UKLawRpAC 15; [1888] 13 App. Cas. 241."

Applying this principle to the circumstances of this case, I am of the view that the Returning Officer did not commit an error or omission in accepting the nomination of John Awei Yemi. It was not "his duty to concern himself with matters concerning qualification or disqualification" of candidates for election.

The end result is that there are no grounds left to proceed to trial in this petition. Consequently the petition must be dismissed. The petitioner must pay the costs of the respondents.

Lawyer for the petitioner: Stevens, Lawyers.
Lawyer for the first respondent: Yagi, Lawyers.
Lawyer for the second and third respondent: Nongorr & Associates.