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In the Matter of The Election for The Karimui-Nomane Electorate; Mili v Gaima [1997] PGNC 121; N1618 (29 September 1997)

Unreported National Court Decisions

N1618

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 24 OF 1997
IN THE MATTER OF THE ELECTION FOR THE KARIMUI-NOMANE ELECTORATE
JOHN WEMIN MILI - PETITIONER
SIMON PHILIP GAIMA - FIRST RESPONDENT
ELECTORAL COMMISSION OF PAPUA NEW GUINEA - SECOND RESPONDENT

Goroka

Woods J
18 September 1997
29 September 1997

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

Counsel

S Wagaro for the Petitioner

J Nonggorr for the First Respondent

W Neil for the Second Respondent

29 September 1997

WOODS J: This is a Petidisputing thng the validity of the Election for the Karimui-Nomane 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.

The Organic Law on National Elections has clearly stated its intentions that a petition must strictly comply with S.208. Itot difficult to see why. why. Action petition is not an t an ordinary cause...it is a very serious thing. It is basic and fundal thal that elections are decided by the voters who h freefair opportunity nity of electing the candidate that the mahe majority prefer. This is a sacred righ the the legislature has aingly laid down very stricttrict provisions before there can be any challenge to the expressing of the will of the majority. Inopini is beyond argumentument that if a petition does not cnot comply with all of the requirements of S 208 of the Organic Law then tcan be no proceedings on the petition because of S 210.

So what are the objections hons here.

There is some initial difficulty in that the Petition itself seems to have been drafted by the applicant himself, not by a lawyer. This of course iline with with the suggestion in the Organic Law that Petitions do not necessarily need the expertise of lawyers, see Section 22 A party to a petition shall not, except by consent of all parties or by leave of the NatioNational Court, be represented by counsel or solicitor. Since the Pener drafted aned and filed the petition he has obtained the services of a lawyer so now before me all parties are represented by counsel and leave has been given. However Section 222 of the Organic Law works two ways. Whilere should not be over overdue emphasis on legalities and pleadings and strict rules of law, then also the petition itself cleart all parties on appropriate notice of what the cthe complaint is all about, thus the factsfacts on which the allegations are grounded must be clearly expressed so there is no need for complicated applications for particulars.

I will now consider the various allegations made in the Petition and consider the objections raised. Even if there masome clumsclumsiness in the drafting of the allegations and the petition generally, because of the implications of section 222, clumsiness itself does not mean etition is bad, so long as the allegations comply with the the Organic Law and the principles enunciated by the Court and clearly set out the facts necessary to establish offences or irregularities then a petition must be heard.

Allegation A is not really allegations to void an election. They are more backgrouatemtatements. Although A 3 see go a bit bit further and appears to be an attack on the behaviour of certain officials of the Electoral Commission. I find that A 1 to 3 are not allegatiut rabackground facts acts or evidence and whilst I will not strt strike them out I find that they are not to be treated as separate allegations but merely introductory background.

Allegation B (1) seems to be an allegation that a certain ballot box was included without proper authorisation and that any ballot papers in it were irregular. It is sued that the allegallegation is in effect a fishing expedition about the contents of a particular ballot box and there are insufficient facts in the allegation tertain what is alleged and how it is claimed the election mion may have been affected. However submitted on beha behalf of the Petitioner that the facts are quite clear in the allegation that a particular ballot box came from a certain village and becausthe way the officials managed the polling and the counting ting the petitioner was unable to find out details of number of votes in that box. So is the allegato vague tgue that parties are unable to properly answer it. I do not think that in the circumstances alleged there is any vagueness. It is not a vague fishing expedition, it is a Petitioner alleging irregularities about a particular ballot box, an allegation that can very easily be answered. It may be that the answerlitself, which may only comn parties produce the relevrelevant documentation and box, may in the end not help the petitioner when the numbers of votes that are ted are considered but that is a risk that a Petitioner hasr has to take. This evidence is not that that must be pleaded, but the answer that will come with the evidence. This perhaps is the area where the boundary between facts and evidence may appear trlap. It is not up to the Courthat this stage to prej prejudge possibilities. When certain evi is made aade available following pre-trial then parties must consider their position but at this stage the petitioner must be seen to have a legitimate complaiat he is entitled to air. It man out to not affe affe affect the result when all the evidence is in but I cannot consider that possibility now. I am satisfied there are sare sufficient facts raised in allegation B (1) to go to trial.

Allegation B (2) suggests irregularities in the voting by double voting. Thiegation must be read wiad with allegation B (4). First the arguis that this this is clumsy pleading and therefore too vague. Ellegation must be whole iole in itself. But I dothink the Organw Law Law demands that exactness in ‘pleading’. Tganic Lnic Law requires tres the facts to be stated.&#Whils method used by t by this Petitioner may be clumsy he has clearly stated in (4) that the pehe persons referred to in (2) were responsfor multiple voting. 160; Whils Organic Law staw states in Section 214 that the National Court shall not inquire into the correctness of the Common Roll this allegation does not ask that. Thlegation gives facts of s of double listing and double voting by people whose names are repeated on the Common Roll. The allegais that the elec electoral officials allowed certain specifersons to vote twice becausecause their names were repeated on the Common Roll. This is not an inquito theo the correctness of oll, it is simply saying thng that certain people took advantage of that double listing and voted twice. This allegation assertficient facts that it can be very easily answered by the prhe production of the relevant documents and figures from the Electoral Comon. Again it may be that when all the evidence is before the parties it may appear thar that the result of the election would not have been affected, but that is risk that a Petitioner takes, there may still be a legitimate complaint, and the court or the parties may not be sure of this until the evidence is produced.

Allegation B (3) states that a number of voters were transported from another electorate and told to vote in this electorate and they did so vote. It as that these voters wers were not eligible to so vote. Whilst tte and place is giis given in the allegation there are no names given. So it is submithat the atiegation is not specific enough with facts to unto understand it. The allegation clearly states that on a specific date aific number of people who were ineligible, from a village in another electorate, were brougbrought to this electorate and voted.&#160s allegation is clear enough. W the names of thef these hese voters were not given I do not feel that this is necessary at this stage. The result of this allerre irregularity must be added to any other irregularities to see whether the result of the election may have been affected and that will only be found when all the evidence is in. I find no n to strike out out this allegation.

Allegation B (4) has been referred to above.

Allegation B (5) alleges serious impropriety in the marking of cific number of voting papers, the word surplus clearly sugy suggests voting papers that were left over after polling had been done by registered voters. I am fied that this allegallegation is specific enough for the purpose of Section 208.

Allegation C refers to an undertaking to destroy a certain ballot box. This appears to be the same ballot box referred to in clause B (1). I do not see that this is a specific allegation of irregularity. It may be part of the eve ence for the considen of earlier allegations but is not a allegation on its owns own. I strik this allegation.

Allegations D and E can be regether as they allege that polling did not take place as scas scheduled. However there is no allegation that people were depriv their right to vote and thnd that must be the critical point. I fint this allegation is n is irrelevant without any allegation eligible voters were deprived of their right to vote.&#160 I strikee allegations out. out.

There is also an objection t Petition in that the PetitPetitioner has failed to properly specify the relief to which he claims to be entitled, see Section 208 (b60; It is submitted that ifat if the Petitioner is claiming that because of illegal practices the result of the election was likely to be affected then the only relief he can claim is that in the words of Section 215 (3) the candidate should be declared not to be duly elected or that the election should be declared void. The respondents refer to the principles and the law as laid down by the Supreme Court in the case Application of William Wii, unreported from July 1994, that the wording must be exactly inrdance with the provisions of section 215 (1). I must must admit I have tave trouble understanding the ruling in that case. I note that that case is a is an unreported case from 1994, it is not reported in the Law Reports, nor is it an issued numberdgeme160; So is it an t an authorised judgement for this Court to consider, where do we find an d an authorised copy. Perhaps becaushas been unpn unpublished and unnumbered it is not meant to be of general application, perhaps it was only meant to apply to theumstances of the particular case. The Court in that case apparently said on the one hone hand “we are satisfied that the relief sought is sufficiently clear” but then said that the wording should have been in a different form. Is that thy worthat can bean be used?used? Theing suggested is not itot itself strictly the same as in Section 215, and also overlooks tht that section 226 of the Organic Law seems to recognise other reliefs that are not worded rded in section 215. So what is that Couring.&#ng. This is where I have cultyculty understanding the principle set out by that case. Incase before me nois not not allegations of bribery but allegations of illegal practices or errors and omissions ions by electoral officials where section 215 (plies. So is the Petitioner askhag that “the elhe election should be declared void” under Section 215 (3). Whilst in parts of the reli relief sought in the Petition are clumsy there is in paragraph 2 of the relief sought the words “a detion, that...the 1997 National Election be ruled null and void...” This seems tems to me clee clear enough. And then byue of section 2ion 226 (c) a new election must be held. I referhe implication of S of Section 222 that Petitions are sed table to be drafted and run by candidates and citi citizens themselves without legal advice.vice. It bmitted that the use o se o words ‘1997 Nationalional election’ in that juxtoposition without the words Karimui-Nomane seems to refer to the whole o National Election for the whole country. I do not seot see tha60; T60; This is a petition for the electorate of Karimui-Nomane and therefore the words 1997 national election refers to that electorate. If we are going to bt exac exact according to turt in that unobtainable Wile William Wii case then Section 215 should have left appropriate spaces in its wording for the insertion e words of the particular electorate.

I am satisfiedsfied that the Petitioner has sought an appropriate relief in his petition.

The result of my findings above is that allegations C, D, & E are struck out but allegations B (1) to (5) will need to go to trial and it is the responsibility of the Petitioner to bring the evidence to the Court to show that there were illegal practices which affected the result of the election. Of e I must repeat what I at I have already said that a Petitioner must carefully consider the evidence once he has obtained access to any appropriate documents and figures and still assess whethe evidence will support a ft a finding that the result of the election would have been affected.

The matter must now be pre-trialed.