National Court of Papua New Guinea

In the case of bribery, as well as the specifics of the particular allegations such as names, numbers, dates, places there must be an allegation that this money, that property, or that gift was offered by the successful candidate and that the reason that it was given or ټ&##160;< o60; offered was to namednamed person to vote or not to vote or to interfere unlawfully as the case may be, in the free voting of an elec(supr0).Whilst the place or locality of the alhe allegedleged incident is stated/named, there is n is no indication as to when this took place. Nor are names of eligible voters given as being those who were bribed or attempted to be bribed. Similarly, if the allegation is one of undue influence (an offence also under s.102 Criminal Code).

Moreover, no details as to the alleged payment of school fees are pleaded here. I agree that the address before some 3,000 electors was a typical political campaign speech that ought to be distinguished from electoral offences (which also are criminal offences) such as bribery and undue influence ss.103 and 102 respectively. As a campaign speech (or recitation of) this sub-paragraph fails to plead with definition and clarity all the material facts, as would be required in an indictment containing counts of bribery or undue influence.

The allegations here do not also demonstrate an intention on the part of the first respondent to influence the decision of an identifiable number of named eligible voters, out of the 3,000 people there (or each and every one of them) in relation to the free exercise of their franchise.

I, therefore, uphold the respondents’ application and strike out this allegation as not pleading the constituent elements of the offences of bribery and undue influence, and thereby, not complying with the strict requirements of s.208(a) Organic Law.

Paragraph 7(b)

Similarly to [sub-para. (a)], whilst the place or location is named/pleaded, the date of the alleged incident is not pleaded. No names of an identifiable number of eligible voters is pleaded from some 4,000 electors. Nor is there any specification as to whose children’s school fees were said to have been paid, and how much. No statement of intention to bribe is pleaded here also.

Thus, the constituent elements of the offence of bribery (and of undue influence, if that is indeed alleged) are not pleaded here, in compliance with the mandatory requirement of s.208(a) Organic Law, and as Agonia -v- Karo (supra) insists.

I, therefore, grant the application and strike out the allegations here.

Paragraph 7(c)

Similar, initial, allegations are made here in respect of school fees, and the sub-paragraph proceeds to talk about “a considerable number of government cheques to various institutions and groups purposely to buy votes”.

The generality and the consequent uncertainty or lack of specificity is quite obvious on the face of this sub-paragraph. In any case, no specific allegation of wrong-doing, whatever that may be, has been alleged here.

For the same reasons as in the preceding situation (non-compliance with s.208(a) requirement), I grant the application of the respondents. This sub-paragraph is struck out.

Paragraph 7(d)

Similarly, no date is nominated for the alleged incident. The recipients of the cheque (since the cheque could not have been handed over to an inanimate object such as an Aid-Post, unless, of course, it were just dropped there) are not named. And the cheque is described as “a cheque of about K4,000.00” (my underlining). The fellow Councillor is not named either. Nor are the eligible voters targetted here.

Once again the allegation here is one of generality and lacking in specificity, defeating the purpose of s.208(a) Organic Law, which is to give proper notice of the allegations (through the pleading of material facts) so the other parties will be able to properly answer the allegations, as well as alerting the court to the real issues to come before it.

The application is granted, and the allegation (of whatever) is struck out for the same reasons as in the preceding situations.

Paragraph 7(e)

Similar situation, once again, here. No date of the alleged incident is pleaded. No inion or statement aent as to whether or not, all or any number, of the assembled 500 people were eligible voters. Nor are any named persons alleged to be bribed or unduly influenced (or attempts at) pleaded here.

There is also no pleading of a statement of intent to bribe, as required (supra).

The application is granted, and the purported allegations here are struck out.

Paragraph 7(f)

I agree with the respondents that, once again, the constituent elements of the offences of bribery and undue influence are not pleaded here, as required. The date of the alleged incident is not specified, nor the amount(s) of the school fees. Similarly, persons who are alleged to have been bribed or unduly influenced are not pleaded by naming and giving them an identifiable number.

Additionally, a statement of an intention to bribe is not pleaded. Nor is it pleaded that an identifiable number of people addressed, in the alleged way, were eligible voters.

The application is granted. This sub-paragraph is struck out.

Paragraph 7(g)

The allegation has to be set out in full hereunder to demonstrate why a provision such as s.208(a) Organic Law becomes all the more necessary:

(g) ټ At Laia Laiagam High School, he more or less told the parents and students the same things as pleaded in receding sub-paragraph save for the threat of withdrawing the truck. (underlining mine)

There are no adequate material facts pleaded here. Who were the parents and students alleged to have been told “the same thing...”, and how many of them? When was it that this alleged incident took place? What does “more or less” mean here? Did the first respondent tell what he is alleged, or did he not?

This sub-paragraph must suffer the same fate as the preceding allegations. The application of the respondents is granted, and the purported allegation is struck out for the same reasons.

Paragraph 7(h)

There are no material facts pleaded here to satisfy the mandatory requirement. The date of the occurrence of the alleged incident is not pleaded, as required. The recipient of the cheque is not named/pleaded: “...he handed a cheque of some K46,000-00 to the school in the presence of students, staff and the members of the local community...” is not good enough! (my underlining). It is not pleaded here that those who received and witnessed the receipt (of the cheque) were indeed eligible voters.

Similar fate must visit the allegation here. This sub-paragraph is struck out of the petition for the same reasons.

Paragraph 7(i)

No material facts such as the exact date and location of the alleged incident, nor to whom exactly were these promises made have been pleaded here as required. Nor is it pleaded that an identifiable number of the gathered assembly were eligible voters (who were likely to be affected or influenced by what he did or said).

For one thing, to say: “At Tsak Valley, ...” is not good enough. I grant the respondents’ application and strike out this sub-paragraph.

Paragraph (j)

Similar situation of absence of proper pleading of material facts is demonstrated here. No date of the alleged incident is given. Which members of the tribe, and how many of them were given, and how much was given to each, have been pleaded as required.

The allegations here are struck out.

Paragraph 7(k)

Here is yet another instance of failure on the part of the petitioner to comply with the strict requirements of law. No date of the alleathegathering and address is pleaded. To say: “just few days before the polling commenced on 23 June, 1997...” is good enough!

No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nominatir thetroniice, e case may be, is satisfied that the provisions of this law hlaw have bave been subu>substantially complied with. (underlining mine)

In any case, what is alleged here as being official irregularities does not amount to sufficient and material facts properly forming the ground(s) or basis for challenging the election and return pursuant to ss.206 and 208 Organic Law.

As in respect of paragraphs (5) and (6) (supra), I grant the application of the respondents and strike this sub-paragraph from the petition.

Paragraph 8(b)

As well as failing to plead the date of the alleged incident, there is uncertainty here as to what exactly is the allegation. What appears under this sub-paragraph does not disclose any error or omission recognised by the Organic Law that is capable of invalidating an election and its return.

Moreover, sufficient and material facts are not pleaded here that would disclose or demonstrate the likelihood of the result of the election being affected.

I grant the application and strike out this sub-paragraph from the petition.

Paragraph 8(c)

Same reasons for granting the application as in the preceding sub-paragraphs. This sub-paragraph is struck out.

Paragraph 8(d)

What is alleged here does not plead sufficient and material facts to disclose or demonstrate how the result of the election was likely to be affected. Consequently, it fails to comply with the mandatory requirements of s.208(a) Organic Law in the way decided cases have insisted.

This sub-paragraph is, thus, struck out as sought by the respondents.

Paragraph 8(e)

As in the case of the last three preceding sub-paragraphs, the allegation here does not plead sufficient and material facts to demonstrate how and whether or not the errors or omissions were likely to affect the result of the election. It is only when this is done, in compliance with s.208(a) Organic Law as insisted by the decided cases that the court will be enabled to determine whether or not the election should be declared invalid.

Similar fate must, therefore, visit this allegation. The application of the respondents is granted, and the sub-paragraph is struck out from the petition.

Paragraph 8(f)

The errors or omissions alleged here are in respect of “scrutiny”. It is alleged that no proper scrutiny of the counting was done at all up to the date of declaration on 6 July 1997. And this was, it is alleged, as a direct result of the involvement of soldiers from the PNGDF at the gates and premises of the Wabag Community School, where scrutineers and counting officials, it is alleged also, were assaulted and shot at (by the soldiers).

It needs to be said here, because of the very serious nature of these allegations, that these are only in quite general terms devoid of clarity and specificity. For instance, no dates are pleaded, nor are the soldiers identified and their numerical strength determined in the pleading. The victims of their assaults are not identified and pleaded. Similarly who were scrutineers and who were counting officials?

This sub-paragraph fails to plead with some clarity and definition the material facts relied on as establishing a ground upon which the election and return can be invalidated. And finally, the petitioner does not plead material facts to demonstrate how the result of the election were likely to have been affected by the alleged errors and omissions of the second and third respondents.

Provisions of the Organic Law on “scrutiny” at elections are to be found under Part XIV, ss.147-174. Here, the allegation is in respect of the scrutiny of the counting.

Because of the reasons stated above, there is no present purpose in canvassing these provisions at all, or in detail. Suffice to say, the petition does not define or specify (in this sub-paragraph) what contributed to or constituted “No proper scrutiny of counting”. That is to say, the error, or omission, or irregularity, is not specified and pleaded here.

This general allegation must be struck out. I grant the application.

Paragraph 8(g)

Once again, the allegation here has to be set out in full hereunder, to demonstrate this obvious inadequacy in, or the insufficiency of, the pleadings as required:

(g) The second and third respondents were unable to match the sex tally sheets with the contents of the ballot boxes and the total elector the ipal of els perlling place.

The same verdict is given here here as inas in (or (or for) for) the pthe preceding allegation. The sub-paragraph fails to plead, firstly, any material facts constituting errors or omissions on the part of these respondents, and, secondly, to demonstrate how these were likely to affect the result of the election.

I grant the application, and the allegation here is struck out of the petition.

Paragraph 8(h)

Allegation here is in very general terms, once again devoid of clarity and specificity. In any case, as with the preceding allegations, the petitioner fails to demonstrate this alleged error or omission, or irregularity, was likely to affect the result of the election.

The sub-paragraph must be struck out.

RELIEFS OR REMEDIES

The final part of this petition seeks certain reliefs or remedies: paragraph 9 (1) to (11). The first point to make in respect of reliefs or remedies that the court can grant in appropriate circumstances in the exercise of this special jurisdiction is that only those that are defined under the powers of the court are available. And the powers of the National Court sitting as a Court of Disputed Returns under the Constitution and the Organic Law (supra) are set out under s.212. It is convenient to set out this provision in full hereunder:

212. Powers of

(1)&#160 la ren tioany atter underunder this part the National Court shall sit as an opent and amonther things:

(a) & adjournjourn; and

(b

(b)&#16) ټ c mpelathe attendanendance of witnesses he &#p60; ctodu ofonocumdnts; nts; and

(c) ##160;; gr0; grant tont to a party to a petition leo ins in tesence of a prescribficer Rolls and other documents (except ballot-papers) urs) used ased at or t or in coin connectnnection with an election and take, in the presence e prescribed officer, extraextracts from those Rolls and documents; and

(d) &&#160er adre-core-count ofnt of the ballot-papers in an electorate; and

(e) &#160mineawitnesses on oath oath; and

(f) ;&#&#declare that a person rson who was returned rned as elas electedected was not duly elected; and

(g) & de a cate dlected who waso was noas not rett returned as elected; and

(h)&#160 arecln elaction absolutely tely void; and

(j) award coand(k)& &; pu0; pun; punish cosh contempt of its authority by fine or imprisonment

(2)&#16) ;ټ . . . )&#> )ټ&##160;; Thet maycise all or anor any of y of its pits powersowers unde under thir this section on such grounds as the Court in its discretion thinks just uffic

(4) #160;&#160 ټ ut limitlimiting the powerpowers 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.

And specifically on the voiding of elections on the grounds of illegal practices, the Organic Law makes the necessary provisions under s.215 in the following terms (the pertinent parts):

215. Voiding of Election for Illegal Practices

(1) ټ If the the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his electif he succe candidate, shall be declared void.

(2) < . . .>

(

(a) ;ټ&#on the g of an ilan illegal pre comd by a person otherother than than the the candicandidate date and without the candidate’s knowledge or authority; or

(60; on the ground of angilleral pral practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

The Organic Law under s.217 enjoins the Court, when asked to exercise any of those powers (under ss. 212 and 215), to be guided by “the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

Finally, in the spirit of the necessity to preserve certainty and integrity of the electoral process, by, inter alia, the discouragement of groundless and unmeritorious challenges to elections and their returns, the Organic Law says that immaterial errors are not to vitiate an election. This is under s.218 which reads as follows:

218. ـ Immaterial Errors nors not to Vitiate Election

(1) ҈ Subjectbject to subsectio, (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declon ofpoll e return of the writ, or on account of t of the absence or an error or, or the omhe omissioission by, an officer which did not affect the result of the election.

(2) ;&#16en an electelector wasr was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose ofrminietherabsencesence or e or error rror of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election. (underlining mine)

The second point to be made in respect of the reliefs or remedies available is that, these have to be specified in the petition: s.208(b). Three points need to be made in respect of this mandatory requirement. Firstly, there is no requirement that the relief to which the petitioner intends to claim (as being entitled) has to be specified at the beginning, or the middle, nor at the end, of each allegation challenging the validity of the election or return. It has been contended by various counsel in these recent applications “to strike out” petitions that the particular relief or remedy must be specified in each allegation, as part of the pleading of facts. And they have relied on the case of In the Application by William Ekip Wii (supra) for this proposition. It has to be noted that this Supreme Court decision (Los, Hinchliffe and Salika JJ) was, with respect, made per incuriam. The court’s attention does not appear to have been drawn to the case of Nakon Ipe -v- Mana Napas (1981)(supra). Though only a decision of the National Court (per Miles J), what the learned judge stated there (at p.130) makes, with respect, good sense. The pertinent extract is re-produced hereunder:

... where a petition alleges bribery ... it must by necessary implication claim that the election should be declared void. Further, if an allegation of bribery is made in the petition and bribery is in fact proved s.191(1) requires the Court to declare the election void ... There is no discretion in the Court and that duty of the Court is plain regardless of what relief is claimed by the Petitioner.

The court there was considering provisions of the Provincial Government (Electoral Provisions) Regulations 1977 (as applied to the Southern Highlands Province). Section 184(1)(b) Regulations is in exact terms as in s.208 (b) Organic Law. Section 191(1) Regulations is also in similar terms to s.215(1) Organic Law. And it has to be further noted that the learned judge, when dealing with the question of standard of proof, referred to the remarks of Frost CJ in In re Menyamya Open Parliamentary Election, Neville Bourne -v- Manasseh Voeto (1977) and applied the same standard: “to my entire satisfaction”, “just short of the criminal standard, although in application I consider there would be no real practical difference”. And in the process the learned Chief Justice referred to the Australian case of Crouch -v- Ozanne (1910), a decision of his Honour O’Connor J. The learned High Court judge said the following (at p.541):

If I were to find bribery proved, I would have no option than to declare the election void, and necessarily, thesitting candidate unseated. It even might be that the act of bribery was an attempt only which failed and that no single vote was affected by it, yet if I were to find that bribery had been established, I should be obliged to declare the election void.

Secondly, just as with law (issues of) reliefs or remedies do not need to be pleaded. Thirdly, where a relief or remedy is specifically provided for in respect of a particular ground for petition, as for instance illegal practices including bribery and undue influence (under s.215), there is no need to specify the relief or remedy. It is already available by law for that particular circumstance, and the court has no discretion.

Now, dealing with each of the purported reliefs or remedies sought here.

Paragraph 9(1)

This remedy is not available under the powers of the Court exercising this special jurisdiction under the Organic Law (ss. 212 and 215).

Paragraph 9(2)

Similarly, the remedy of declaration sought here. The Court has no jurisdiction in this respect.

Paragraph(3)

Similarly, the declaration that the first respondent was not duly nominated that is being sought here. Sections 212 and 215 of the Organic Law vest no power in this Court to grant such a relief. See: discussions on paragraphs (5), (6) and (8)(a)(supra).

Paragraph 9(4)

There is no jurisdiction in this Court (under ss.212 or 215 Organic Law) exercising the jurisdiction pursuant to s.206, to grant the relief sought here.

Paragraph 9(5)

Similarly, as sought here.

Paragraph 9(6)

Same conclusion as in the preceding paragraphs.

Paragraph 9(7)

Similarly, this Court has no jurisdiction to declare that the election of the first respondent is null and void. The court can only grant the remedies specified under s.212(1) (f)-(h) (inclusive) and s.215(1) Organic Law.

Paragraph 9(8)

The petitioner seeks an order for a by-election for the electorate to be conducted by the second and third respondents.

The relief sought here cannot be granted unless the election is declared absolutely void. And that particular relief has not been sought in any of the reliefs specified under paragraph (9).

Paragraph 9(9)

No jurisdiction to grant this relief.

Paragraph 9(10) and (11)

No need to consider and comment here.

In the light of the cumulative effect of the foregoing conclusions in respect of each of the principal heads of allegations, and, consequently, by the coming into effect and operation the provisions under s.210 Organic Law, it is the judgment of this Court that this petition be struck out in whole at this juncture.

Petitioner in person (and on his own behalf)

Lawyers for the 1st Respondent: Henao Lawyers

Lawyers for the 2nd & 3rd Respondents: Maladinas Lawyers