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In the Matter of The Election for The Chuave Open Electorate; Launa v Riyong and Electoral Commission of Papua New Guinea Second Respondent [1997] PGNC 120; N1620 (29 September 1997)

Unreported National Court Decisions

N1620

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 38 OF 1997
IN THE MATTER OF THE ELECTION FOR THE CHUAVE OPEN ELECTORATE
PETER LAUNA - PETITIONER
YAUWE RIYONG - FIRST RESPONDENT
ELECTORAL COMMISSION OF PAPUA NEW GUINEA - SECOND RESPONDENT

Goroka

Woods J
19 September 1997
29 September 1997

ELECTION PETITION - application to strike out petition - compliance with Organic Law on National and Local-level Government Elections Section 208 - facts on which petition grounded - pleading the appropriate relief.

Counsel

D Umba for the Petitioner

A Pryke for the First Respondent

W Neil for the Second Respondent

29 September 1997

WOODS J: This is a Petition disputing the validity of the Election for the Chuave Open seat in the Chimbu Province in the 1997 National Elections. The Respondents have moved the Court to strike out the Petition on the basis that the Petition does not comply with the provisions of section 208 of the Organic Law on National and Local-level Government Elections.

Generally the submissions raised by the respondents have been that the various clauses in the Petition fail to specify the facts relied upon to invalidate the election. As to what facts are required has been determined by the National and the Supreme Court in various cases, the main statements being in the case Holloway v Ivarato [1988] PNGLR 99, and the case Agonia v Karo & Electoral Commission [1992] PNGLR 463. And the principles outlined and highlighted in those cases are guided by the fundamental principles outlined by the Supreme Court in the case Biri v Ninkama [1982] PNGLR 342 which I will repeat here. This Court in acting under the Organic Law as what is often called a Court of Disputed Returns is not an open forum for unspecified complaints where after all parties have aired their dissatisfaction the Court sifts the complaints and reports whether on a balance of probabilities the election can be considered satisfactory or whether a new election should be held. A Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by specific charges that, if proved, will result in an election being set aside. As the Supreme Court said:

The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with S. 208. It is not difficult to see why. An election petition is not an ordinary cause...it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expressing of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all the requirements of S. 208 of the Organic Law then there can be no proceedings on the petition because of S. 210.

So what are the objections here.

The first allegations in A are allegations of bribery. A (i) alleges that a sum of K7,000.00 was given out in cash to people at Marekire village. It is submitted that there are no named electors and no specific amounts of money as having been given to named electors to secure their vote and therefore the allegation is too vague. Bribery as well as being an election offence is also a very serious criminal offence and therefore the standard of proof required must to all intents and purposes be at the same level as in a criminal trial. See the case Bourne v Voeta [1977] PNGLR 296 and other cases. As Sheehan J said in Agonia v Karo [1992] PNGLR 463:

Because an election petition is a very serious thing any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence. In the case of bribery as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered, by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case may be, in the free voting of an election.

There are clearly insufficient facts referred to in this allegation. It only needs one act of bribery to void the election of the respondent, so there must be names or some appropriate identification of the recipients of an alleged bribe.

A (ii) states that the first respondent gave some money to the counting officials. But it does not allege any illegal act or prejudicial practice. So there is no allegation of any wrong-doing. This ground cannot go to trial.

A (iii) is a very vague allegation. So some cheques were handed out but there is no allegation of exactly whom they were given to and what they were given for. This ground fails for uncertainty.

B contains allegations of threats. B (i) alleges that the first respondent waved a pistol in the air at a polling booth. Whilst this may incur the same liability as bribery in Section 215 (1) does it require the same particularity namely the naming of the electors who would have been threatened. It is clear that in the offence of bribery there must be a named recipient and an amount, so would the same apply necessarily in such a threat situation. In this allegation the facts are quite clear, a date is given, a polling booth is given. Surely there are sufficient facts for this allegation to go to trial. The allegation is quite clear and obviously a candidate in an election in the circumstances of Papua New Guinea who waves a pistol around in the vicinity of a polling booth could have an effect on the attitude of intending voters. I find that there are sufficient facts in the allegation for the requirements of Section 208 of the Organic Law for this allegation to go to trial.

The matters raised in B (ii) is not really an allegation, it is more a statement of what may have happened as a result of the allegation. I find that B (ii) is not really an allegation as such to go to trial, it would be evidence in the trial.

B (iii) does not state how it is alleged it affected the polling. There is no suggestion that people were not allowed or able to vote. I find that this allegation does not fulfill the requirements of Section 208 and therefore should be struck out.

Allegation 7 is about the behaviour of ancillary police during the counting. However there is no allegation that the actual counting or results were affected. What are the irregularities whereby the polling or the counting or the final result was affected. I find that this allegation does not fulfill the requirements of section 208 and should be struck out.

Allegation 8 refers to the procedures during the counting. However there is no allegation which suggests that the actual polling or the counting itself or the final result was affected. So this allegation should be struck out.

The result is that the only allegation left to go to trial is allegation B (i).

There is also an objection that the relief sought does not comply with the requirement of Section 208 (b) of the Organic Law. Allegation B (i) is a allegation of undue influence committed by the First Respondent himself and if it is proved then in accordance with Section 215 (I) his election should be declared void. It is submitted that he has failed to seek that relief. The relief sought in the Petition is firstly that the election for the Chuave Seat is absolutely void, and also that the First Respondent was returned as elected for the Chuave Open Electorate was not duly elected. It is submitted that the Petitioner must be exact in the wording of the relief he claims to be entitled to. The submission refers to an unreported case The Application of William Wii where a Supreme Court seems to suggest that there must be an exact wording. I do have some trouble understanding the ruling in this case. Firstly of course this case is an unreported case from 1994, it is has never been properly reported, there is no published copy either in the Law Reports or in the numbered series. So in reality it is unobtainable and is difficult to cite. Perhaps it was only meant to apply to the facts of the case it considered. However even considering what it is suggested it states, it only seems to suggest a particular wording which may be acceptable. So is that the only wording that can be used. There can be no magic in a set of words. There is a guide in sections of the Organic Law and note that the type of relief sought is not just in Section 215 but also in Section 212 and 226. So the question is has the petitioner sought to have the election of the respondent voided. So looking at the relief sought in paragraph 9 of the petition he is seeking a declaration that the election of the Chuave Open seat is absolutely void. As the first respondent was the person who was elected according to the result in that seat then any declaration that the election is void must mean that his election is void. Anyway further in 9 there is a request for a declaration that the first respondent was not duly elected. I see nothing wrong with all this and am satisfied that the petitioner has pleaded an appropriate relief which this Court can declare and which would satisfy the whole purpose of this part of the Organic Law.

The petition must now proceed to trial on allegation B (i).