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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 ietition disputing thng the validity of the Election for the Chuave Open seat in the Chimbu Province in the 1997 National Electio160; The Respondents have moved the Court to strike out the Petition on the basis tha; that thetion does nots not comply with the provisions of section 208 of the Organic Law on National and Local-level Government Elections.

Generally the submissioised by the respondents have been that the various clauses uses in the Petition fail to specify the facts relied upon to invalidate the election. As to what fare required hred 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 principltlined andd 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 Con acting under the 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 aired their dissatisfaction the Court sifts the complaints ints 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 Rethass 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 beet aside. As the Supreme Court

The OrganOrganic Law on National Elections has clearly stated its intentions that a petition must strictly comply with S. 208. It is not difficultee why. why. An election petiti not an t an ordinary cause...it is a very serious thing. It isc and fundamental thal that elections are decided by the voters who have a free and faportuof electing the cthe candidate that the majority prefer.&#1r. This iacred right and the 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 yond argument that if a peta 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) al that a sum of K7,f K7,000.00 was given out in cash to people at Marekire village. It is submithat there are are no named electors and no specific amounts of money as having been given to named electors to secure their vot therefore the allegation is too vague. Bribery as well as beinelen election offence ence 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.&#1ee the case Bourne v Voeta oeta [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 matero establish such an offence. Thcludes the necessecessitessity to spell out in clear terms the elements of that offence. In the of bribery as well well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allen that this money, that property, or that gift was offered, by the successful candidate, ane, 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 allbribe.

A (ii) states that the first respondent gave some money to the counting officofficials. But it does not allege ane illegal act or prejudicial practice. So there is no allegatioanof any wrong-doing. This grounnot go to trial.rial.

A (iii) is a very vague allegation. So cheques were handed outd out but there is n is no allegation of exactly whom they weren towhat they were gire given for. This d fails for for unce 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 thathe offence of b of bribery there must be a named reciprecipient and an amount, so would the same apply necessarily in such a thrituation. In this allegation thts arts are quite clear, a date is given, a polling bong booth is given. Surely there are suffi fact facts for this allegation to go to trial. The allegation ite clear aear and obviously a candidate in an election in ircumstances of Papua New Guinea who waves a pistol around in the vicinity of a polling boog booth could have an effect on the attitu intending voters. I 0; I find there are suff 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 that B (ii) is not reallreally 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 isuggesthat people wple were were not allowed or able to vote. I find this allegation doen does not fulfill the requirements of Sn 208 and therefore should be struck out.

Allegation 7 is about the behaviour of ancf ancillary police during the counting.&#1owever there is no allegatiegation that the actual counting or results were affected. What are rregularities whes whereby the polling or the counting or the final result was affected. I find this allegation doen does not fulfill the requirements of on 208 and should be struck out.

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

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

There is also an objn that the relief sought does not comply with the requirement of Section 208 (b) of the Orge Organic Law. Allegation B (i) is agatiogation of undue influence committed by the First Respondent himself and if it is proved then in accordance with Section 215his election should be declared void. It is submitted that he his failed to seek that 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 returnedlecte the Chuave Open Open Electorate was not duly elected. It is sued that the PetitPetitPetitioner must be exact in the wording of the relief he claims to be entitled to. The submission refers unrn unreported case The Application of William Wii where reme Court seems to suggestggest that there must be an exact wording. I do have some trouble understanding the ruling in this c#160; Firstly of course thie this case is an unreported case from 1994, it is has never been properly reported, there is no published either in the Law Reports or in the numbered series. #160; So ility it is unobtanobtainable and is difficult to cite. Perhaps s only meant to apto apply to the facts of the case it considered. However even considering what it is suggested it s, it seems to suggest gest a particular wording which may be acceptable. that the onhe only wordinording that can be used. Than be no min a set of woof words. There iuide inde in sectioections of the Organic Law and note that the type of relief s is nst in Sect15n 215n 215 but also in Section 212 and 226. So the question i the pehe pehe petitioner sought to have the election of thpondent voided. So looking at the resoughtought in paragraph 9 of the petition he is e is seeking a declaration that the electi the Chuave Open seat is abis absolutely void. As the first respondes thes 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. Anywrther in 9 there is a is a st for a declaration that that the first respondent was not duly elected. I see nothing wrong with all this and am satisfied the petitioner has pleaded an appropriate relief which this Chis Court can declare and which would satisfy the whole purpose of this pa the Organic Law.

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