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In the Matter of The Organic Law on National Elections and In The Matter of The Disputed Returns for The Kagua [1997] PGNC 132; N1628 (14 October 1997)

Unreported National Court Decisions

N1628

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 16 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS FOR THE KAGUA-ERAVE OPEN ELECTORATE
AND
CHARLES LUTA MIRU - PETITIONER
AND
DAVID BASUA - 1ST RESPONDENT
AND
YAPINA MANGO - 2ND RESPONDENT
AND
ELECTORAL COMMISSION - 3RD RESPONDENT

Waigani

Sawong J
7 October 1997
14 October 1997

GENERAL ELECTIONS - National Parliament - Petition disputing election return - Grounds of Petition - undue influence - attempted bribery - illegal acts - errors and or omissions by Electoral officials - impersonation - double voting

APPLICATION TO DISMISS PETITION - grounds of application - no facts pleaded - insufficient material facts pleaded - Application to dismiss Petition - witness failing to attest properly and or describing his occupation as “villager” - S. 208(d) of Organic Law.

Counsel

Mr Nandi for the Petitioner

Mr Kuimb for the 1st Respondent

Mr Steven for the 2nd Respondent

DEC

14 October 1997

SAWONG WONG J: The First, Second and thrdThird Respondents seek to have the petition dismissed either in the whole or some parts of it.

The respondents’ application is on the basis that etition does not comply with the requirements of S. 208 (a)8 (a) and (d) of the Organic Law on National and Local Level Government Elections (“the Organic Law”).

There are three basic ground upon which the Petitioner seeks to invalidate the election results and the return of the First Respondent as member for the Kagua-Erave Open Electorate.

The first lot of grounds are set out in paragraphs 1.1 to 1.7 inclusive. The ation in these paragraragraphs allege undue influences. The nexund is based on alln alleged act of attempted bribery. This is ut in paragraph 2 ph 2 of the Petition. The lastnd cos of variole alle allegations of illegal acts, errors or omissions committed by the Second cond Respondent and or by the officials ofThirdondent.

THE LAW

There is no dispute between counsel as to the proe proper principles of law to be applied. There is no dispute that there must be strict compliance with each and every requirement under S. 208 of the Organic Law. That is well established law. iri v Ninkama [1982] PNGLRPNGLR 342, Holloway v Ivarato [1988] PNGLR 99. The failure of a petitn noin not strictly complying with the requisites under S. 208 of the Organic Law will be fatal to the Petitioner. In suchse eithe whole or a or any offending part of the petition will be dismissed.

The fire first ground of the challenge by the secnd third respondents is that a witness to the petition has failed to adequately attest to t to the petition by describing his occupation as “villager”. Thus it has been submitted that the petitioner has failed to adequately comply with S. 208 (d) of the Organic Law.

The law on this issue is quite trite. A petition disputing the validity of an election mustly strictly with each and eand every requisite of S. 208 of the Organic Law. See Delba Biri v Bill Na [ama [1982] PNGLR 324, Ba Philemon [1992] PNGLR. The respondein particulaiculaicular the second and third respondents) have argued that the term “ger” as used by the witness Yatu Alo to describe his his occupation does not comply with the requirement of S. 208 (d). It han submitted that this this is so because the term “villager” does not describe sufficiently what the witness does foiving.

Counsel for the Petitioner concede that the law is quite settled, in that an t an election petition must comply strictly with each and every element of S. 208 of the Organic Law. In so far as this issue is concerned, he has submitted that the term “villager” was sufficient to describe the witness’s occupation. He subthat, in any even iten it iinor point, which is of no significance. He submitteditted that the petition should not be struck out on this minor and insigni point. He relied on SCR NO. 14 of 1992, In the AppliApplication of Erova Agiwa [1993] PNGLR 136.

In that case, it was a in the National Court that that, the witness had failed to adequately attest to the petition by describing his occupation as “self employed” and therefore the petitioner had failed to comply with S. 208 of the Organic Law.

The National Court refused to strike out the petition. The Applicant applied to the Supreme Court on that particular aspect. The Court said the cation tion was without merit. ourt at p. 138 said:

“In our judgement, the application has not meri60; Tis no dispute thae that there must be strict compliance with S. 208 of the Organic Law.&#16. That is established law: Saw: See SCR 4 of 1982 Biri v Ninkama [1982] PNGLR 342. That principle is notg chag challenged. The only iss whether ̶“smployed” is an adequate description of the occupationation of a witness to a petition. It is a veryr point which hich hasing twith the merits oits of the matter.”

I would auld adopt and apply the above passage to the present issue. I am of iew tn this case tase the term, “villager” as u as used by a witness to describe his occupation is minor and insignificannt which has nothing to do with the merit of the petition. I cor the applicationationation and submission to be frivolous and without substance. I consider the term “#8220;villager” is sufficient or adequate description of the occupation e witness. It followsllows that thisisubmission is rejected.

The Petitioner has withdrawn the allegation of attempted bribery as set out in paragraph 2 of the petition. Consequently, the ations ions in that paragraph is dismissed.

I now deal with the respective submission in relation to non-compliance of S. 208 (a) of the Organic Law. Theondents submit that thet thegations contained in paragparagraphs 1.1 to 1.7 inclusive be struck out for failing to comply with the requirements of S. 208 (a) ofOrganic Law. They submit that rnt matermaterial factsfacts have not been stated. I will deal wndividual parl paragraphs in the order that have been adopted by the parties in their respective written submissions.

The allegations in those paragraphsge essentially the offence of undue influence, impersonationation and double voting. Undue infl, impersonation tion and double voting are all Criminal Offences: See S. 99, 100 and 102 of the Criminal Code Act, Ch. 262. Sec102 reads:

&#822&#822. &#UNDUE INFLUENCE

A

A person who:

>

(a) ;ټ uses ores or threathreatens to use any force strair does or threatens to do any temporal or spirituiritual injury, or causes or threatens to s to cause any detriment of any kind to antor:

(i) #160;&#160 ¦t&#in order to i to induce him to vote or refrain from voting at an election; or

(ii) ;ټ on acco account ofnt of his having voted or refrained from voting at an election; or

(b) ; by or fraud preverts otrobstructs the free exercise of the franchise by an elector,ctor, or b or by any such means compels or induces actor te orain foting at an election is guilty of a misdemeanour.

Pena>Penalty: lty: A finA fine note not exceeding K400.00 or imprisonment for a term not exceeding one year.” (underlining is mi/p>

T

The offence was judicially considered in Re. Menyamya Open Electoral [1977] PNGLR 298. The elements of the offence are set out in the judgement of Frost, CJ (as he then was) 303. His Honour said said:

“It seems that the elements of s. 102 (a) are, first, that to be guilty of undue influ so far as the sub-paragrapagraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it be shown that that the purpose was ‘in order to induce (an elector) to vote or refrain from voting at an election...’

Does this refer to the ion whether the elector votes or does not vote or does it r it refer to the manner of voting? Al be seen it is unnecessacessary for me to decide this point, but I am inclined to the view that an intention to influence the elector or vote in favour of a cate or to refrain from voting against him, would fall withinithin the section...

Turning to s.102 (b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.”

Thus it can be seen that the section prohibits use of force or threats to electors in an election. Whether those force orats eats are made or used on an elector - defined as any person entitled to vote at any election - the corrupt practice are thosed at those force or threats used or threatened to be used with the intention of interferinfering with the lawful process of an election. The National Court Crl Pral Practice Rule 1987, set out the form for an indictment for undue influence. In other wor those rules ales are set out the elements of undue influence is set out. On p. 57, form numberraws raws out the element o charge that need to be pleaded to constitute a valid indictment.

The respondents suts submit in essence that the petitioner mlead the precise and detailed facts. In the present cent case they submit that that has not been done.

In my judgment because an election petition is a very serious matter, because of the serious charges and consequences that petitions entail, it itainly necessary that any gany ground alleging a criminal offence must state all relevant material facts to establish such an offence. That includes the necesso y to spell out in clear and precise terms facts constituting the elements of the offence.

Thus, in my view, in the case of undue influence, as well as the specifics of the particulargation, such such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an electo60; In other words the pleading must not only include the sthe specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must state whte whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him.

The Petition also alleges that the offences of impersonation and double voting were committed by the servants and or agents of the first respondent. Toffences are set out in s in ss. 99 and 100 of the Code. These as follows:

&

“99. Personation

A person who votes tempts to vote in the name of another person at an electionction, whether the name is that of a person living or dead or fictitious personguilta crip>

Penalty: Imprisonment for a term term not enot exceedxceeding two years.

100. ـ Double voting

A person who, being an elector, votes or attempts to vote at election more often than he is entitled to vote at the election is guif a crime.”

Turning to S. 99, what has to be s be shown or pleaded is that a named person voted or attempted to vote in the name of a particular person, at an election held on date at etc. In other words, the poner oner must states these matters or facts quite precisely and clearly.

In so far as s. 100 is concerned, in my view the pleadings must state clearly t person, being an elector entitled to vote, voted or attempttempted to vote (state number of times.) The crucial element to be pleaded is that a person who is an elector, voted or attempted to vote and state the number of time that person voted or attempt vote. It is not sufficient to aate a person named only. In mw it is also also not not sufficient to plead in general terms the number of people who voted or attempted to vote. The pleadiust state the nahe name of the person or persons, whether h is an elector and the numb number of times that person voted or attempted to vote. These are relevaterial facl facts which musstated.

Taking each each of the allegations of undue influences, impersonation and double voting in turn, all fail to plead spc elements of these offences.

I now deal with each oach of the specific allegations, as set out in Paragraphs 1.1 to 1.7 inclusive of the Petition. Paras 1.1 and 1.2 state:

“1.1 On or athe 22nd of June 19ne 1997 at Katiloma Catholic Mission polling place, the agents or supporters of the First Respondent together with scrutineers of the Petitiond otandidin polling team of 70 with home-made gude guns, ans, axes axes and sticks that the following errors, acts or omissions were allowed to be committed by the said Third Respondent’s servants and agents who were polling officials:

(a) ;&#16ting more tore than onan once by a voter in favour of the First Respondent;

(b) &##160;ngrtimpatimpationavoonavour of the First Respondent;

(c) ـ #160; Al0; Allo Allowing wing persons who were not of voting age to theies inur of the First Respondent; and

>

(d)&#(d) &160;
o0; Fg the Presiding offg officer to fill in remainingot pa”

As

As a re a result of each acts or omissions committed by the First Respondent and or his agents or supporters, eli votere deto exercise cise theirtheir cons constitutional right to vote for a candidate in a free genuine and fair elections for a candidate of their choice.

“1.2 On or about the 22nd day of June 1997, at Sakimapu Village polling area, the agents or supporters of the First Respondent directly or indirectly threatened eligible votes, agents or servants of the Second and TRespos tog with sith scruticrutineersneers of the Petitioner and other candidates who were assigned on polling team 39 with home-made guns, axes and sticks with allowed the following errors, acts or omissions to be committed by the said Third Respondent’s servants and agents who were polling officials:

(a) ҈& Voting ting more tore than once by a voter in favour of the First Respondent;

(b) ;ټ Voting ting under nder impersonation in favour of the First Respondent; and(c)& Allowing personersons who who are not of voting age to cast their votes in favour of the First Respondent.”

As p>As was swas submitubmitted the petitioner has not stated or named the agents or supporters who were alleged to be agents or supporters of the First Respondent. Further the allegationhat that the threats were made against the agents or servants of the Electoral Commission. It i clear whether the sere ser or agents of the Electoral Commission were electors or not. Furtherailed to stao statestate clearly the names of those servant or agents of the Electoral Commission. Further more,more, the petitioner does not state clearly who was the elector who voted than once, and who was the the person(s) who voted under impersonation and in whose name the act of impersonation was committed.&#16e petitioner also does not not state clearly the names of those under age voters and how many were involved. It also fails to de detailetails in relation to 1.1 (d). These grounds, i.e. thee oole of the ground in paragraphs 1.1 & 1.2 must be died.

Grounds 1.3 and 1.4. I alal with these paragrapagraphs together because thse the allegations are similar. Thesd as follop>

“#8220#8220;1.3 ـ On the polling date date at Sakimapu polling booth, the agents or supporters of the Firspondent wilfully grabbed and destroyed a ballot paper from an elderly woman who voted for tfor the Petitioner or other candidates of her choice.

1.4 ҈ e pollinolling date date Sakimapu, the agents or supporters of the First Respondent also grabbed and wilfully destroyed a ballot paper marked by a young lady in favour of the Petitioner or a candidate of her choice.”

The allegations do not state clearly who the agents or servants were and how many were involved. The allegations also do tat state clearly who was the old woman or who the young woman was. These grounds are struck out.

Ground 1.5. reads:

Once again this ground must also be dismissed. It has not ed who the agen agents or supporters are, and whether the First Respondent is an elector. It dot state by name who twho the agents or servants the Electoral Commission and whether they were electors.

Ground 1.6.&#160reads:

“1.6 & On out the 22ne 22nd day day of June 1997 at Sakimapkimapu polling area, the agents or supporters of the First Respondent executed the threats by assaulting and wounding a lawfully appointed scrutineer of the Petitioner herein this petition namely Wanpis Rambue and such further threats were also imposed on the agents or servants of other candidates.”

This ground must also be dismissed. It has not state was the pthe person or person who made the threats or also does not state whether Wanpis Rambue was an elector.

Ground 1.7. This ground reads:

“1.7 r about 22ne 1997 near near near Katiloma Community School, the supporters or agents of the First Respondent armed with home-made gunes ancks beat arce took away from the First irst and Second Respondents’ or thei their serr servantsvants and agents who were assigned or designated and were on their way to conduct polling at Wakipuanda which is about 3km away from Katiloma polling area, a scheduled and gazetted place of polling on the scheduled date under team 40. And a ballot box numbered,1940, together with about 366 or more ballot papers were taken to Katiloma polling area by the agent or servants with such threats and force ordered and directem to open a polling booth and conduct polling at Katiloma loma about 300 metres away from the polling booth presided by team 70. The agents or supporters were forced to open and conduct another polling under those circumstances.”

As a result of such acts or omissions committed by the supporters or agents of the First Respondent:

(a) About 1i2 ele iblersotfrom from Wakipuanda polling area who would have casted their votes to the petitioner or a candidate of theiice wcompl deni exertheir constitutional rights to vote in a genuine, fne, free aree and fand fair elir electioections for a candidate of their choice.

(b) ـ A total4of 140, eli, eligible voters were allowed to cast their votes in favour of the First Respondent.

(c) & A total of 27 voters were were allowed to cast their votes twice in favour of the First Respondent, that the votes casted under such circumstances doubled up to 54 votes. Assult of that, the total otal number of votes contained in box number 1940 is 248.

As a result of such or omissions committed by the agents or supporters of the First respondent, about 2igible voters of Wakipuandauanda who were registered on the 1997 common roll and prepared to vote that day were denied to exercise their constitutional right to vote at a free, genuine and fair elections for a candidate of their choice.

This paragraph to is too vague. It is not sic. It haIt has not pleaded clearly by name who the agents and supporters of the First Respondent are and whether the First Respondent is an elector. Also it not state clearly arly by name who the servants and agents e Electoral Commission and and whether they are electors. It has alt been pleaded sped specifically the element of intention tluence any of the eligible ible electors. For these reasons the whole of this paragraph is dismissed.

The final ground i Petition is set out in then the whole of paragraph 3. It alleges va acts, errorsrrors or omissions allegedly committed by the oral officials.

I pr>I propose to deal with grounds 3.1 and 3.2 together as they deal with the same issues of the rights of anible elector to vote and tond to the issue of validity of elections.

Paragraph 3 essentially raises the allegations of errors and or omissions alleged to have been committed by the Second and Third Respondents. The Poner pleaded that duet due to either inadequate or no security about 13 or more ballot boxes together with an unknown number of ballot papers in those boxes werlen.

The essence of the allegations is that because ause of either lack or inadequate security measures provided by officials; they were thus negligent in the discharge of the duties, resulting some unknown person stealing the ballot boxes and the ballot papers.

In paragraph 3.2 of the Petition, the allegation is that because the 3rd Respondent did not provide security or transport to its own servants and staff to conduct polling, about 867 eligible voters did not vote.

It has been submitted on behalf of the respondents that these grounds be struck out on the basis that it is not for the candidate to claim the rights of this unspecified and unnamed eligible voters the right to vote, but it is for those unnamed eligible voter who were denied the right to claim that right and make an application for the enforcement of that right.

The Petitioner on the other hand says that the right to vote is a Constitutional right. Thedings as they have been been set out in those paragraphs show clearly the facts relied. The peter says that becausecause of the acts and omissions complained of and as pleaded are speciflear and unambiguous.

It has been submitted that the acts and or omissions of the servants and or agents of the Electoral Commission affected the rights of eligible voters to vote for a candidate of their own choice, including the petitioner and the first respondent. The right to is a Constitustitutional right. See s. 50. of Constitution.

In Kandep Tindiwi Malapa v The Electoral Commission, and Jimson Papki Sauk Mark Wasum v The Electoral Commission, [1987] PNGLR 128. Kapi, DCJ said at33:&#8p>“The right to vote is exercised when a pera person casts his vote. The manner in whhat vote iote is cast and h is counted towards the election of a member is regulated by the Organic Law on National Elal Elections (Ch. No. 1), a law which is aised by s. 50(2) of the Constitution. A person who doho does angthing, or anything that is done which prevents the vote cast by a person from being counted contrary to the law, ultimately affects the right to vote.”

I would adopt these princias quite correct. How; However,uld add that that a person who does anything to prevent an eligible elector to cast his or her vote contrary to law, ultimately affects that person’s right to vote.

In the present case, I consider that the facts as pleaded show clearly and distinctly the facts. The facts as have pleaded aded are in my view sufficient, material and relevant. The allegations are quite specific as to the omissions committed by the Second and Third Respondents. The factsleaded clehighligghlight thht the issue. ruth or otherwise of the athe allegation can only be determined at the trial proper. grounds mherefore remain.main. Consequenthe application tion to struck out these pare paragraphs are rejected.

In so far as ds 3.3, 3.4, 3.5 and 3.6 are concerned, I accept the submission advanced by the respondentsdents. Thadings are too general aral and I order that these be struck out.

CONCLUSION

The end result of this ruling is that the allegation set out iagraphs 1.1 to 1.7 inclusive, and paragraphs 3.3 to 3.6 inc6 inclusive of the Petition are dismissed for failing to comply with s. 208 (a) of the OLNE. Paragraof the Petition is n is dismissed as it has been withdrawn by the Petitioner.

Paragraphs 3.1 and 3.2 are to remain on foot and be tried.

Lawyer for the Petitioner: Kari & Co Lawyers

Lawyer for the 1st Respondent: Warner Shand Lawyers

Lawyer for the 2nd & 3rd Respondent: Maladinas Lawyers