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Wasege v Karani [1997] PGNC 135; N1693 (16 October 1997)

Unreported National Court Decisions

N1693

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 42 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
IN THE MATTER OF THE DISPUTED RETURN OM A GENERAL ELECTIONS FOR THE MADANG OPEN ELECTORATE
KATHERINE MAL
PETITIONER
AND: JACOB WAMA
1ST RESPONDENT
AND: THE ELECTORAL COMMISSION
2ND RESPONDENT

Waigani

Sawong J
9 October 1997
16 October 1997

GENERAL ELECTIONS - National Parliament - Petition disputing elections - Grounds of Petition - Allegations of illegal practices - Undue influence - Irregularities - Errors and or omissions by electoral officials.

Counsel

Mr. Ame, for Petitioner

Mr. Yagi, for First Respondent

Mr. Steven, for Second Respondent

16 October 1997

SAWONG J: The proceedings in this case relate to the Madang Open Electorate. There has been a petition filed by the Petitioner challenging the First and Second Respondents on the results of the elections that was held in June this year.

The respondents have now applied by way of a Notices of Motion to have the petition dismissed in its entirety. The respondents submit, principally that the petition has not compiled with the strict requirements of s. 208(a) of the Organic Law relating to the elections. Specifically they submit that the Petitioner has not pleaded all relevant material facts to support the grounds pleaded in the Petition. The Petitioner has alleged illegal practises committed by either the First Respondent, his agent and servant and errors and omissions committed by the Second Respondents officials.

Before I continue, I think is necessary to set out the relevant law and legal principles applicable.

The principles of law relating to the strict compliance of s. 208 are well settled. There is no dispute about that. See Biri -v- Ninkama [1982] PNGLR 342, Holloway -v- Ivarato [1988] PNGLR 99. Those principles are not being challenged here. What is being challenged, however, is that the grounds and facts of the Petitioner as pleaded do not comply or come near the strict requirements required by law.

The petitioner has pleaded or attempted to plead certain illegal practices or offences. She has, for instance pleaded bribery, undue influence, various illegal practices, errors and or omissions. I consider it necessary that the relevant and applicable legal principles should be set out at this juncture. There are of course others which I will address in due course.

Turning now to the offence of undue influence. “Undue influence” is not defined in the Organic Law on elections. However, it is set out in Section 102 of the Criminal Code Act. This has been judicially considered and adopted. See Bourne -v- Voeto [1977] PNGLR.

Section 102 of the Code sets out the elements of the offence. I set out in full s. 102.

“102. UNDUE INFLU/p>

A personerson who

(a) & uses ores or threatens to use any force or restraint, or does or threatens to do any temporal or spal in or c or threatens to cause any detriment ofnt of any any kind to an elector (emphasis asis added).

(i) in order to i ducetoim te vote or refrain from voting at an election:

or

(ii) on at on avir d od vneinantinan election; or

(b) < &160; #by f by force orce or frau fraud prevents or obstructs the frercisthe fise ban el, or by any sucy such meah means cons compelsmpels or i or induces an elector to vote or refrain from voting at an election”. (emphasis is mine)

In Bourne v Veoto (supra) Frost, CJ (as he then was) said this at 303; He said:

“It seems that the elements of s. 102 (a) are, first, that to be guilty of undue influence so far as this paragraph”. (is concerned) are that: “a person must be shown himself to have done or threaten to do any injury or to have caused or threaten to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was “in order to induce an elector to vote or refrain from voting at an election --”. Does this refer to the question whether the elector votes or does not vote or does it refer to the manner of voting. .... but I am inclined to the view that an intention to influence the elector or to vote in favour of a candidate or to refrain from voting against him, would fall with 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 of 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 it, truth or careless whether it be true or false, with the intention that the elector act on it. (emphasis are mine).”

In my view, the passage as set out above accurately reflects the proper legal principles on the offence of undue influence.

I now turn to consider each of the grounds of the petition and the objections against those. The allegations are set out in paragraph 4 of the Petition. The relevant grounds are:

“4(a) FACLIED TO DISP DISPUTE THTE THE ELECTIONS AND OR THE RETURN OF THE FIRST RESPONDENT AS THE DULY ELECTED MEMBER

(a) &&#160is a legedleged that that between 17th June and 2une, at Sisiak Settlemttlement, ent, Gavstore Settlement and Nobonob Village in Madang, the First Respondent and his campaign officials gat bus cardthe fole followinlowing perg persons and their families saying or making statements to the effect that “you vote for me and if I win, you present these cards and I will pay you money in cash”.

(i) &##160;; J60; Joseph seph Dubmui

(ii) minjaano Mp> (iii)&#160 Nick P/pga

( <)
v0;&##0;&##160;; Levh

(v) M60; Mum Loss

Tsponespondents have cave challenged this ground on several grounds. First they submit the allons ais pleaded does not show ly wh it is undue influence or bribery. In either case, ase, they they submisubmit that that sevt several material facts, such as address and occupations of the five named persons have not been stated. It is further submitted that the allegations as it is pleaded does not state whether the five named person are electors. It is not clear if they are electors. Finally it has been submitted that the allegation does not state names and occupations of the campaign officials of the First Respondent nor does it state that those officials acted with the support, authority or knowledge of the First Respondent.

I accept the submissions by the respondent. It is quite clear that the pleading in this ground is clearly insufficient. Firstly, the essential fact as to whether the five named person are electors or not have not been stated. Secondly it is not clearly stated whether the ground is undue influence or bribery and the pleadings do not set out what provision of any statute has been breached. I note that Mr Ame during his submissions conceded that the ground was based on bribery. However this does not cure the obvious defect. The concession from the bar table during the submissions does not cure the pleading. This ground is dismissed.

4(b). & In essence, in this ghis ground the Petitioner alleges undue influence on some 201 students by Mr. Jehira to vote for the FRespondent.

In my judgement the pleadings as pleaded are defective for several reasoreasons: It has not been pleaded whether all the 201 students were electors as required by

s. 102(a) of the Code. This is an essential but this has not been pleaded. Secondly, it does not state whether Mr Jehira acted with the authority, approval and knowledge of the First Respondent. Finally it has not been pleaded what was allegedly done had affected the results of the election.

If follows from the forgoing that this ground must be dismissed.

Turning now to the allegation in paragraph B 1(i), this allegation alleges that the presiding officers and election officials for all the polling teams for the Electorate, allowed more than 500 persons whose names were not in either 1997 principal Roll or supplementary Rolls for this electorate to vote, by using the 1992 electorate rolls.

I consider that the pleadings as they appear are quite sufficient. The pleadings alleges that this error was committed by presiding officer and electoral officials in all polling teams and places for the Madang Open Electorate. It has been submitted that the pleading does not state how this figures is arrived at, nor does it state where and when these were committed with any clarity. I do not accept the submissions advanced by the respondents. In my view the pleadings say that the errors and omissions were committed by presiding officer and electoral officials in all polling teams and places for this particular electorate. In my view there is no ambiguity about this. The pleadings state quite clearly who were involved. It is not difficult to know who the presiding officer was and who were the electoral officials. It is also not difficult to determine and know the polling teams. The Petitioner has pleaded that because of these errors and or ommissions by the electoral officials the results of the election was likely to be affected. The difference of votes casted in favour of the First Respondent and the Petitioner is only 113. I consider that if this allegation is proved, the results of the election is likely to be affected.

I consider that this issue should be determined at a trial proper. Consequently, this ground is to remain on foot and tried.

I turn now to grounds B (I)(ii). In this ground the Petitioner alleges that some 201 students who were attending some short courses at the Madang Technical College were allowed to enrol in the Common Roll for this electorate and were allowed to vote during the polling period. It alleges that these 201 students names were entered in the Common roll without each one of them lodging a claim form for enrolment. It is further alleged that the Returning Officer failed to do his duty under s. 134 of the Organic Law to test these peoples right to vote. It has been pleaded that because of these facts the results of the elections were affected.

In paragraph B(1)(iii), the petitioner alleges that some 200 voters who turned up to vote at Kranket Island polling place to vote were denied their right to vote because the polling officials did not give them any ballot papers to cast their votes. It has been pleaded, that because of this error or omission the result of the election was likely to be affected.

Counsels for the respondents have submitted that both of these grounds ought to be dismissed. They submitted that the pleadings in these subparagraphs be struck out as the names of the 201 students and the names of the 200 electors who were refused ballot papers are not stated.

I do not accept these submissions. I consider that the pleadings as pleaded state clearly the facts alleged against the officials of the Second Respondent. There is in my view no doubts as to what the nature of the allegations are. The facts are quite clear. The petitioner has pleaded that because of the errors or omissions of the electoral officials the results of the election was likely to be affected.

Further, I consider that the refusal by a polling official of a voter ballot papers may, depending on the circumstances of a case, be a breach of a voters right to vote as prescribed by s. 50 of the Constitution and s. 136 of the Organic Law.

Finally, it is my view that the pleadings in paragraphs B(1) (ii) and B(1) (iii) state quite clearly facts and figures of the errors or omissions committed by the servants and or agents of the second respondents. It is quite clear from the pleadings that these errors and omissions may have affected the results of the elections. It is to be noted that the difference of votes casted between the petitioner and respondent is 113 votes. Thus it appears to me that if the allegations are proved to be truthful then the results of the election is likely to be affected. This can only be determined at a trial proper.

In respect of the pleadings, set out in paragraphs B(a), (b) and (c), I accept the submission advanced by the respondents. These pleadings, do not plead the material facts as to the identity of the ball box numbers, the polling places when the ballot boxes were used and no dates have been given as to when the alleged incidents arose. These grounds are struck out.

The end result in that all the paragraphs, except paragraphs B (1) (ii) and B(1 (iii) are struck out. These paragraphs are to remain on foot and be tried.

In the circumstances, costs are reserved.

Lawyer for the Petitioner: Ame Lawyers

Lawyer for the 1st Respondent: Joseph Yagi

Lawyer for the 2nd Respondent: Maladinas Lawyers