Unreported National Court Decisions
N1676
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP. NO. 64 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURN FOR THE KAIRUKU-HIRI OPEN ELECTORATE
BETWEEN: CHARLES MAINO
PETITIONER
AND: MOI AVEI
FIRST RESPONDENT
AND: ELECTORAL COMMISSION
SECOND RESPONDENT
Waigani
Sakora J
7 October 1997
14 October 1997
Counsel
Mr Kassman for the Petitioner
Mr Furigi for the 2nd Respondent
DECISION
14 October 1997
SAKORA J: The petition the subject of this preliminary proceedings is the petition of Sir Charles Maino, brought pursuant to s.206 of the Organic Law on National and Local-level Government Elections (hereinafter the Organic Law). He petitions the court disputing the validity of the election and return of the Honourable Mr Moi Avei, the first respondent, for the Kairuku-Hiri Open Electorate in the 1997 national general elections.
Both the petitioner and the first respondent were duly nominated candidates for the seat and the said election. From the material presently before this court, and not disputed, it would appear that the petitioner, polling 5048 votes, came second to the first respondent who was declared the winner with 5112 votes, a margin or difference of 64 votes.
The petition contains five principal heads of allegations or grounds challenging the election and the return. These are set out from or under paragraphs or clauses 6 to 10 inclusive. For convenience I list these hereunder in the following manner:
1.       Paragraph 6: Use of the (sic) public funds for campaign purposes.
2.       Paragraph 7: Inducement or Undue influence.
3.       Paragraph 8: Irregularities at the polling.
4.       Paragraph 9: Irregularities and discrepancies at the counting.
5.       Paragraph 10: Discrepancies both at the polling and the counting.
From these five principal heads of allegations are detailed various instances, incidents or occasions totalling (save for the allegations contained under paragraph 6.1 which are in very general terms devoid of any specificity) 27 specific incidents or occasions raising, or giving rise to, the grounds for the challenge. It should be noted also that the allegations contained in columns 1 and 2 (paragraphs 6 and 7 respectively) are directly against the first respondent, the latter allegations implicating only the second respondent in the discharge of its legal and constitutional duties and functions.
The petition, dated 12 August and filed of even date, was duly served (as per the affidavits and acknowledgements of service filed herein), firstly, on the second respondent on 15 August, and, secondly, on the first respondent, on 18 August 1997. Following these, which were of course undertaken in due compliance with the requirements of Practice Directions (NC 2/97) 5,6 and 7, the second respondent had duly filed on its own behalf a notice of Intention to Defend dated 23 August, on 25 August 1997, in compliance with Practice Direction 8, which is in the following terms:
Within 14 days after the date of service of the petition, a respondent who intends to appear on the hearing of the petition shall file a notice to that effect in the National Court Registry and serve a copy of the notice on the Petitioner.
This provision or Practice Direction is set out in full here because of the consequences of non-compliance. The first respondent has, on record, not complied with this requirement. And this was duly confirmed at the outset of the hearing of the second respondent’s application to have the petition struck out.
Some minutes after the application formally got underway, after duly noting the non-appearance of the first respondent and his legal representatives, Mr Sheppard of counsel, from the firm of Maladina Lawyers, arrived and took a seat at the Bar table, without so much as an apology (for late arrival if involved in the proceedings), or an intimation as to what he was there for. 
Curiosity got the better of me and I enquired of Mr Sheppard his business. He stated that he was there (here) on instructions from the first respondent. On being informed by the court that there was no notice of Intention to Defend, nor a formal application (per Notice of Motion) to strike out the subject petition, on record, Mr Sheppard acknowledged the situation such that, under the circumstances, therefore, the court would not hear him during the second respondent’s application.
After the application had been heard and adjourned for reserved ruling, a Notice of Intention to Defend was filed on behalf of the first respondent on 8 October 1997, some 50 days after service on him of the petition, thus out of time by 36 days. It is instructive to note that, whilst the Practice Directions are silent on this (though the National Court Rules in respect of ordinary civil litigation require it), there has been no formal application for leave to file that notice out of time. 
Whilst this is not necessary for considering and determining this application to strike out the petition, the court must note here that under its inherent jurisdiction, it has undoubted power to compel observance of its process and obedience of and compliance with its orders. These powers are inherent in the sense that they are necessary attributes to render the judicial function effective in the administration of justice.
For our present purposes, those of considering and determining a formal preliminary application challenging the adequacy of the petition pursuant to the mandatory requirements of the Organic Law, the court takes cognizance of the fact that allegations (paragraphs) 6 and 7 remain unchallenged by the first respondent, and I decide at the end what becomes of them, under the circumstances, vis-a-vis the eventual trial. This is so despite my preliminary comments in respect of paragraph (6) - the general nature of the allegations there.
The court heard, therefore, submissions on paragraphs (8) - (10), the allegations directly implicating the Electoral Commission.
THE LAW
Section 208 Organic Law provides the statutory basis for challenging the adequacy of a petition that intends to invalidate an election and/or the return.
The Supreme Court’s authoritative decision in Delba Biri -v- Ninkama (1982) lays down the law on preliminary challenges to election petitions, emphasising the mandatory nature of the requirements under s.208. And a long line of judicial decisions since then have followed the Supreme Court’s pronouncements. And those pronouncements make good sense because it is not such a light matter to overturn or invalidate what must otherwise be the expression of the wishes of a majority of electors in a particular constituency, in the practical realisation of their special rights guaranteed under s.50 Constitution.
The conduct of elections at regular intervals, in a fair and proper manner, is a very serious and important matter, ensuring every citizen of mature age, who is not otherwise disqualified, to vote for, and be elected, to public office. The conduct of national elections under the Organic Law is the Constitutional device according citizens a reasonable opportunity to participate, directly or indirectly, in the conduct of public affairs. It is a very serious matter, therefore, to challenge the validity of an election and its return. Thus, s.208 imposes an onerous responsibility on the petitioner.
It has to be noted, however, that this onerous responsibility on the petitioner comes with the right to challenge: a right vested in a qualified voter or candidate for the electorate in question, pursuant to s.135(b) Constitution and ss.206 and 208(c) Organic Law. So that if the election has not been free and fair as envisaged by the Constitution, then the reasons for the shortcoming(s) should be exposed and dealt with according to law to preserve the integrity of the electoral process.
So the law as to the requisites of an election challenge is well settled. As if the mandatory nature of the s.208 requirements were not sufficient or clear enough on their own, s.210 provides that no trial of a challenge to the election (or its return) which does not comply with the strict requirements of s.208 and, indeed, s.209 (requirement for deposit) will take place.
Similarly, the law on the irregularities constituted by errors and/or omissions on the part of electoral officials:  Paua -v- Ngale (1992) following from the previous decisions in Rea -v- Rarua (1977), Isilowa -v- Biaguini (1980) and Torato -v- Balakau (1988-1989). As well as meeting the strict requirements of s.208(a): facts relied upon be specifically pleaded, and that these be relevant and material facts [see: as well as Delba Biri -v- Ninkama (1982), Holloway -v- Ivarato (1988) and Ludger Mond -v- Ben Okorro (1993)], the petitioner must demonstrate that errors and/or omissions had the effect, or were likely to have the effect, of influencing the result of the election:  Paua -v- Ngale (supra).
Similarly, the law is well settled on allegations of illegal practices as provided under s.178 and those under s.215 (other than bribery and undue influence): Wabiria -v- Elo (1977) and Torato -v- Balakau (supra).
Before embarking upon the specific challenges to the petition, it is instructive to set out hereunder in full the pertinent provisions of the Organic Law. Section 208 is in the following terms:
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 court house in any provincial headquarters within 40 days after the declaration of the result of the election in accordance with section 175(i)(a).
After the provision for the deposit of the sum of K2,500.00 with the Registrar of the National Court as security for costs (s.209), emphasising once again in my opinion, the need to ensure that only genuine and meritorious challenges come before the court, the Organic Law provides under s.210 that only those petitions that comply with the requirements of ss.208 and 209 will be entertained by the court.
Section 212 lists the powers to be exercised by the court in the hearing of an election petition. After providing for certain powers in respect of procedural matters, the provision vests powers in relation to the reliefs available. And these are as follows:
(1)(f)  declare that a person who was returned as elected was duly elected; and
(g)      declare a candidate duly elected who was not returned as elected; and
(h)      declare an election absolutely void; and
(i)       dismiss or uphold a petition in whole or in part; and 
(j)      award costs; and
(k)      punish contempt of its authority by fine or imprisonment.
Subsection (4) goes further and provides as follows:
(4)      Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
Then s.215 provides for the circumstances under which an election can be voided (or not voided) for illegal practices such as bribery or undue influence (or attempts in respect thereof) or those other than these two.
THE CHALLENGE
The challenge by the second respondent to the adequacy of the petition vis-a-vis the mandatory requirements of the  Organic Law is two-fold. Firstly, that the petition fails to comply with s.208(a), and, secondly, that the relief has not been specified as being entitled and claimed as per s.208(b). It is contended, therefore, that those allegations in the petition not complying with these requirements ought to be struck out by the court.
Now, dealing with each of the heads of allegations challenged here.
PARAGRAPH 8: IRREGULARITIES AT POLLING
These specific instances are alleged and offered as demonstrating errors and omissions on the part of officers of the second respondent, thereby, it is contended, denying the rights of the eligible voters from the three named villages from voting in the election.
Learned counsel for the second respondent submits that these allegations merely concern the scheduling of polling, and that such a challenge to the election is not permitted by s.117 Organic Law, which reads:
11.7    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.
And s.114 makes provisions for the publication and transmission of polling schedules to the province and electorate concerned. Following this is the provision dealing with polling schedules, and the circumstances under which these can be varied or departed from, s.115(4) being the pertinent provision for our present purposes, and which reads as follows:
(4)      Where the presiding officer departs from the polling schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place ad amongst the electors likely to vote at it (underlining mine).
The petition discloses that, firstly, there is the specific allegation (para. 8.1) of not re-scheduling polling (after failing to adhere to the schedule), as demanded by subsections (2) and (3) of s.115. This, it is contended, resulted in eligible voters at Velei village not voting at all. Secondly, it is alleged (para. 8.2) that similar errors and omissions (failure to re-schedule and publicise) were committed at Devadeva Nos. 1, 2 and 3, with similar effect. Finally, it is alleged (para. 8.3) that failure of the responsible electoral officials in not initialling ballot papers resulted in declaring certain ballot-papers informal with the same detrimental effect to eligible voters. The duty in this respect is provided under s.126, which reads as follows:
126.    BALLOT - PAPERS TO BE INITIALLED
(1)      No ballot-paper shall be delivered to a voter without being first initialled or affixed with an official mark as prescribed by the presiding officer, and an exact account shall be kept of all initialled ballot-papers.
(2)      The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates. (underlining mine)
This court does not see how or where s.117 operates in the factual situations alleged in the foregoing instances to prevent challenge as contended by the second respondent here.
PARAGRAPH 9. IRREGULARITIES AND DISCREPANCIES AT THE COUNTING
Mr Furigi of counsel for the second respondent submits that the whole of this paragraph does not contain any allegations. In this respect he says further that the complaint here is merely of lack of diligence and due care in the conduct of the counting. There are, he argues, no allegations of votes being improper or informal. It is concluded with the contention that the petitioner does not make any specific allegation that the result was likely to be affected by those errors or irregularities.
Mr Kassman of counsel for the petitioner submits that the paragraph does indeed produce and demonstrate sufficient pertinent facts to give the respondent adequate notice of the allegations relied upon for the challenge to the election and return.
I agree with the submissions of learned counsel for the petitioner here. One has only to look at the detailed nature of the specific allegations contained in 5 full pages of the petition (paras. 9.1 and 9.2).
In my view there is no vagueness or uncertainty in the allegations made here. Sufficient pertinent facts, as required by law, are demonstrated or pleaded here, so that there is adequate identification of votes and lack of proper scrutiny.
PARAGRAPH 10. DISCREPANCIES BOTH AT THE POLLING AND THE COUNTING
The allegations under this heading are supported by Annexures “A”, “B” and “C”.
It is the contention of the second respondent here that the pleadings are vague, and do not show substantial number of votes were rendered irregular or informal by the alleged discrepancies. This is contended whilst counsel acknowledges that the annexures do in fact demonstrate discrepancies and their effects on the votes.
Learned counsel for the respondent then makes the extraordinary, in my opinion, submission that the paragraph, whilst pleading evidence, does not plead facts. He suggests, therefore, that the petitioner has done more than the law requires under s.208(a) Organic Law.
In any case, Mr Furigi argues, the petition does not show what effect the discrepancies had on the result, relying on Torato -v- Balakau (supra). He then concludes with the argument that there has been here non-compliance with s.208(b) Organic Law, relying on the decision in Paua -v- Ngale (supra).
The final challenge to the petition is in respect of the reliefs sought (pp. 11 and 12 petition). It is contended by learned counsel for the respondent that, assuming the petition goes to trial and the allegations are proven by evidence, the court has no discretion to grant those reliefs sought.
The first and immediate reaction of this court to this final submission is that, there is here, therefore, an acknowledgement by the second respondent that the petition does in fact specify the relief(s) sought.
Whilst dealing with the specific challenges to the adequacy of the petition, Mr Kassman of counsel for the petitioner makes the following observations. Firstly that, the prayer for relief(s) contains no vagueness, and that the respondent’s challenge here has been adequately answered. The election threw up, as it were, a total of 31,671 votes. The first respondent received 5112 of these whilst 5048 went to the petitioner. The resultant difference of votes between these two candidates was 64. Equally important was the fact that 389 votes were declared informal. The total of votes received by the other candidates was ascertained at 20,000. Therefore, Mr Kassman suggests, it cannot be said that there was here a huge margin from a difference of only 64 votes.
And in relation to the respondent’s contention regarding non-compliance with s.208(a), Mr Kassman likens this application to that in Ludger Mond -v- Ben Okorro (supra). But, he argues, the factual situation here go much further, as learned counsel for the respondent acknowledges in his submissions. So the petition does better and further than what s.208(a) requires. So the respondent should complain? Does not this place the respondent in a more favourable and advantageous position?
CONCLUSION
PARAGRAPH 8
The villages are named as being within the electorate. The number of voters alleged to have been affected is specified. The respondent and the court are given adequate notice, as a result, of what the allegations are, and are about.
In particular reference to paragraph (8.3), the allegation, though brief, is sufficient to establish a ground for the petition. There is, in my opinion, no need to provide any factual material other than what has been provided already. The rest is a matter of evidence at the trial. In any case, the documents are in the direct custody and control of the second respondent in its official capacity.
The purpose of s.208(a) Organic Law is well served here. I refuse to strike out paragraph (8) of the petition. The allegation contained therein go to trial.
PARAGRAPH 9
The allegations under paragraph (9.1) contain sufficient pertinent material facts, in my opinion, giving the respondent adequate notice of what is alleged (that it should prepare to answer). There is no vagueness or uncertainty here as contended.
Likewise, allegations contained under paragraph (9.2). There is demonstrated here sufficient identification of the votes involved and the absence of proper scrutiny.
I, therefore, refuse to strike out the allegations under this paragraph. They go to be tried according to law.
PARAGRAPH 10
The paragraph demonstrates sufficient facts in compliance with the requirements of the Organic Law (s.208(a)). The contents of Annexures “A”, “B” and “C” speak for themselves. There is no vagueness or uncertainty here.
In fact the tables in the three annexures reveal stunning figures. A quick reference to the figures for counts 11 and 20 demonstrate dramatic discrepancies that this court should not go into details about at this juncture. Suffice to say, however, that the annexures reveal vast irregularities, especially when looking at the figure of 31,000 when some 20,000 votes were supposed to have gone to other candidates.
Therefore, the allegations here are very serious, and ought to be investigated. They should be investigated because the material facts are properly pleaded here.
I refuse, therefore, to strike out the allegations under this paragraph. They go to be tried according to law.
In the end, it is the opinion of this court that the challenge to the adequacy of the petition vis-a-vis the Organic Law has been without merit. Matters sought to be particularised or elaborated upon here are matters for the trial proper. And these can be produced or obtained through two enabling devices:
1.       Request for further and better particulars.
2.       Adducing of evidence at the trial.
These are not matters to be used to ground a challenge through the various provisions of s.208 Organic Law. On all challenges to allegations contained in paragraphs (8) to (10) of the petition, relying upon s.208(a) and (b), the court dismisses the application.
Now, what of the allegations under paragraphs (6) and (7)? For the reasons discussed earlier, the conclusion is still the same. And that is that allegations under paragraphs (6) and (7) remain unchallenged. In this respect the court notes that the second respondent purported to challenge these two paragraphs in its Notice of Motion dated 3 October 1997 and filed of even date.
The second respondent cannot properly be in any position to consider and deal with allegations of bribery and undue influence levelled at a candidate (even a winning candidate) at an election. To even attempt to do so is both misconceived and mischievous.
Under the circumstances as outlined above in respect of paragraphs (6) and (7), the petitioner seeks the court’s indulgence to deal with the allegations contained therein. That is to say, the petitioner asks that this court should find those allegations proven or established, because they stand unchallenged at this juncture.
I refuse to deal with those allegations in the way the petitioner seeks here. To do so would be, in my opinion, premature. At this juncture I am not concerned with the merits of the petition. It is my firm belief that whether the facts alleged under these two paragraphs stand under scrutiny and testing through the evidentiary process at the trial is another matter for another day. A trial proper, a substantive hearing, will determine the merits, or lack of, in this petition.
In relation to the issue of non-compliance with Practice Directions, I have made brief comments directly on the requirements for filing a notice of Intention to Defend, and seeking leave of court to file out of time or to extend time limits. The parties are, of course, at liberty to make appropriate applications at, or indeed before, trial.
But for now, the court makes the following orders:
1.       Application to strike out is dismissed with costs.
2.       Allegations under paragraphs (6) and (7) remain unchallenged and go to trial for final determination.
3.       Allegations under paragraphs (8) to (10) go to trial.
Lawyers for the Petitioner: Maino Lawyers
Lawyers for the 2nd Respondent: Allens Arthur Robinson