N2385

PAPUA NEW GUINEA

[In the National Court of Justice]

EP NO. 40 OF 2002

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURN FOR LUFA OPEN ELECTORATE

BETWEEN:

MATHIAS KARANI
(Petitioner)

AND:

YAWA SILUPA
(First Respondent)

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(Second Respondent)

GOROKA	: SAWONG, J
2003 : 7, 8 & 10 APRIL

Election Petition – application to strike out petition – compliance with Organic Law on National and Local Level Government Elections, s.208, - facts to support grounds on which petition founded.

Election Petition – petition grounded on bribery, undue influence, illegal practises, errors or omissions by electoral officials –

Election Petition – s. 208(a) Organic Law –not pleading relevant material facts to support grounds of petition.

Cases Cited:
Biri v Ninkama [1982] PNGLR 342
Barry Holloway v Aita Ivarato [1988] PNGLR 99
Neville Bourne v Manaseh Voeto [1977] PNGLR
Roger Palme v Michael Mel [1988] Unreported judgement
Nigel Agonia v Albert Karo [1992] PNGLR 463
Charles Luta Miru v David Basua & Others, Unreported Judgment N1628
Ludger Mond v Jeffery Nape (14 January 2003) Unreported judgement 
Miria Ikupu v Sir Mekere Marauta (14 December 2002, (EP 05/02) Unreported Judgement
Moses Murray v Sir Michael Somare & Others (EP 36/2002) Unreported Judgement
Paul Kamod v Stanley Pil [1983] (Unreported judgement)
Sir Pita Lus v Gabriel Kapris, (Unreported judgement) N2326
Eddie Saweni v Patrick Pruaitch & Electoral Commission of PNG, (March 2003) Unreported judgment.
Louis Ambane v Sumuno, (Unreported judgement) SC
Dick Mune v Anderson Agiru (Unreported judgement) SC590
Norman Fenandez v Philip Taku (Unreported judgment) N1616
Komane Wasege v Mathias Karani (Unreported judgement) N1679

Counsel:
A. MANASE, for the Petitioner
J. KUNJIP, for the First Respondent
T. SIRAE, for the Second Respondent

10th April, 2003

DECISION

SAWONG J: This is an election petition by Mr. Mathias Karani (Petitioner) against Mr. Yawa Silupa’s election as Member of Parliament for Lufa Open Electorate in the 2002 General Elections for the National Parliament.

The respondent to the petition, Mr Silupa and the Electoral Commission object to the petition in the form it is. That objection is grounded on their claims that material facts have not been pleaded by the Petitioner as required by s. 208 (a), s. 215 and other provisions of the Organic Law on National and Local-Level Government Elections (the Organic Law) and S. 100, 102, 103 and other provisions of the Criminal Code.

Prior to the hearing of the objections being heard, counsel for the Petitioner withdrew the grounds set out in paragraphs 10, 11 and 13 of the Petition.

The Respondent’s correctly assert that all petitions must comply with the mandatory requirements of s. 208 of the Organic Law. That Section reads; 

"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 of by a person who was qualify 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 (1)(a)".

And s. 210 of the Organic Law goes on to say that proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.

There can be no doubt as to the meaning, effect and implication of s. 208 because the Supreme Court in Biri v Ninkama [1982] PNGLR 342 said at p 345:

"In our view it is clear that all the requirements in s. 208 and s. 209 must be compiled with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s. 208 and s. 209 are compiled with".

Section 208 (a) stipulates that all relevant and material particulars of facts must be given or pleaded. That is, a petition must not only allege grounds but must set out the relevant and material facts supporting that ground or grounds.

As to what "facts" must be pleaded or set out, the Supreme Court has determined what these must be. In Holloway v Ivarato [1988] PNGLR 99 of p 101: Kapi DCJ (with whom the other members of the bench agreed with) said:

"the grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirements of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The fact set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. 

The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated".

The pleadings must also be clear and with clarity. The whole purpose of setting out the pleadings clearly and with clarity "is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved". 

If the petition contains allegations which are not clear, or are confusing the offending parts will be struck down. – Holloway v Ivarato (supra), Dick Mune v Anderson Agiru, (Unreported Judgement) SC590.

In view of the grounds raised in the petition, it is necessary to refer in brief to the relevant principles relating to those grounds. The petitioner relies on amongst other grounds, bribery, undue influence, illegal practices and errors or omissions.

BRIBERY

The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of s. 208(a) is basically that the facts set out should support the elements of the offence of bribery, as it is constituted by s. 103 of the Criminal Code. Anything short of that will offend against s. 208(a) and therefore will be fatal. See Bourne v Voeto [1977] PNGLR, Palme v Mel [1988] PNGLR 808, Agonia v Karo [1992] PNGLR 463, Charles Luta Miru v David Basua and Others [1997] N1628, Ludger Mond v Jeffery Nape (14 January 2003), Miria Ikupu v Sir Mekere Morauta (19 December 2002) EP 05/02, Moses Murray v Sir Michael Somare & Others EP 36/2002, Francis Ali v Frank Oru & Others (EP 37/02).

In Ikupu v Morauta and Murray v Somare (supra), the allegations in the petitions were grounded on bribery. But in either case the petitioner failed to plead one essential element of the offence of bribery - that an elector was bribed. The petition referred to "eligible voter" or named a person without saying whether he was an "elector". In either case the Court struck down all the allegations for that reason.

ILLEGAL PRACTISES

In so far as petition grounded on illegal practises or errors or omissions founded for instance on ss. 215 or 218 of the Organic Law the principles are fairly well settled. For instance if the petition is grounded upon illegal practices, (other than bribery or undue influence) under s. 215, then the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practises must plead material facts to show the following:

(a)	The illegal practise;
(b)	The illegal practise was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority; 
(c)	The result is likely to be affected by the illegal practise;
(d)	It would be just that the candidate should be declared not duly elected or the election be declared void;

Failure to plead any material facts supporting any of the elements under s 215 would offend s. 208(a) and would therefore be fatal to the petition. See Paul Kamod v Stanley Pil [1983] (Unreported and Unnumbered Judgement of National Court); Sir Pita Lus v Gabriel Kapris (2003) Unreported judgement N2326, Eddie Saweni v Patrick Pruaitch (March 2003) (Unreported and Unnumbered Judgement).

ERRORS OR OMISSIONS BY ELECTORAL OFFICIALS

If the petition is founded, eg an errors or omissions of electoral officials, for instance under s. 218 then the pleading must set out the relevant material facts. Allegations in petitions founded on errors or omissions must provide facts to show the following;

(a)	The error or omission complained of;
(b)	The error or omission was committed or made by the electoral officer; and 
(c)	The error or omission "did affect the result of the election". See Ambane v Sumuno (supra), Eddie Saweni v Patrick Pruaitch (supra).

In the Petition before the Court there are a number of grounds raised. I now consider each of the paragraphs.

PARAGRAPHS 6 (A) (a) to (f).

These are grounded on an allegations of bribery. It has been contended by the Respondents that where electoral offences such as bribery is/are alleged (it is also a criminal offences pursuant to s 103 of the Criminal Code) then in such cases the facts upon which such allegations are to be grounded must be stated with particular clarity.

In particular they assert that where the allegation is based on bribery then the petitioner must plead all material facts to support such an allegation.

Here the Respondents submit that the Petitioner has not pleaded that the persons named in these paragraphs are "elector" as an element of the offence of bribery. They submit that a material fact has not been pleaded, in that the petitioner has not stated whether the persons named are "electors". Further they submit that the pleadings are confusing.

Mr Manase submits that material facts are pleaded and that whether the persons named are "electors" or not are mater for evidence at the trial.

I accept the submissions by the Respondents. On the authority of the case law I have referred to earlier, it is absolutely clear that the term "elector" is a material fact, which must be pleaded. If this fact is not pleaded it will be fatal. Here that material fact has not been pleaded. 

Further, in my view, the pleadings are confusing. For instance two different dates are pleaded. In paragraph 6 A(a) it is alleged that the money was given to Thomas Eno to distribute to his "friends" on 20 June 2002. However in paragraph 6 A (d) it is pleaded that Thomas Eno distributed the money to those people on 21st January 2002. Thus the pleadings are confusing and lack clarity.

Accordingly the whole of this paragraph is incompetent and is struck out.

PARAGRAPHS 7, 7.1 to 7.4.

In these paragraphs the petitioner is alleging that illegal acts were alleged to have been committed by the First Respondent, his supporters and agents.

In theses paragraphs the petitioner is also alleging official irregularity in that the Common Roll was inflated.

The Respondents submit that relevant material facts have not been pleaded to support these allegations.

For instance they submit that the petitioner has pleaded "eligible voters" and not "electors". All citizens of mature age are eligible voters but are not electors until one has registered in the Common Roll.

Further they submit that insufficient material facts have been pleaded to support the grounds of Undue Influence and or illegal practises. They submit that the petitioner has pleaded in general terms. And has not pleaded material facts to show what were the specific acts of undue influence or illegal practises committed and who committed those illegal practises. They also submit that the pleadings are confusing.

I accept the submissions made by the respondents in respect of these paragraphs. It is quiet clear to me that not all relevant material facts have been pleaded. Further the pleadings are confusing. It is not clear as to what are being alleged. More ever the Court is being asked to enquire into the correctness of the roll. This is not permissible under s. 214 of the Organic Law. See Norman Fernandez v Philip Taku (Unreported judgement) N1616, Komane Wasege v Mathias Karani (Unreported judgement) N1679.

For these reasons I find that the whole of this paragraph is incompetent and must be struck out.

PARAGRAPHS 7 A (a) – (g) and 7 B (a) – (i).

These paragraphs are dealt with together because they raise same or similar allegations. In these paragraphs the petitioner raises complaints about the conducts of the agents of the first respondent, which led to a change of a polling place. In these paragraphs it is alleged that some "794 eligible or enrolled voters" under the common roll, including ghost names, under aged, living out of the electorate and duplicate of names and all of them voted more than once. Essentially these paragraphs alleged that there was double voting used by eligible voters using ghost names, under aged voters, etc.

The respondents submit that the pleadings as they stand do not plead all relevant and material facts. They submit that Paragraph A pleads the evidence and the other subparagraphs namely (a) to (g) inclusive do not plead some material facts. They submit that the allegations are based on illegal practices alleged to have been committed by the named person. But the petitioner has not pleaded that because of these alleged illegal conducts, the results of the election was likely to have been affected and that it was just to declare the first Respondent not duly elected or declare the election void.

It was further submitted that the petitioner was not pleaded whether the named person in these paragraphs are supporters or agents of the first respondent and whether they acted under his authority or knowledge.

Mr Sirae for the Electoral Commission submitted that the movement of the polling place to another place was not an illegal practice and is permissible under s.117 of the Organic Law.

In respect of the grounds of double and multiple voting, he submitted that the petition has not pleaded full material facts such as the rest of the names of electors who double voted apart from the 6 names given, he submitted that these subparagraphs (d), (e) and (f) simply allege double voting without pleading full names of persons who voted twice or more, the names of under aged voters, the ghost names, the names of those electors who are living outside the electorate and the duplicate names. He submitted that the pleadings as they stand, fall short of these relevant facts.

Mr Manase submitted that paragraphs 7A (a) to (g) and paragraphs 7B (a) – (i) are meant to be read together. Accordingly when read together, he submitted that the facts, as pleaded in these paragraphs are sufficient.

I accept that submission put by the Respondents. These paragraphs have left out important material facts. 

Firstly it is clear that the petition has not pleaded all relevant and material facts that ought to have pleaded. For instance, nowhere in these paragraphs has the petitioner pleaded that because of these alleged illegal practices the result of the election was likely to have been affected. Secondly it has not been pleaded who, double voted, who used a ghost names to vote, who were the under age children who voted. 

Accordingly I find that paragraph 7A (a) - (g) and paragraph 7B (a) – (i) inclusive cannot stand. They are dismissed.

PARAGRAPHS 7C (a) – (i)

Here the petitioner alleges that the 1st Respondent with the assistance of Koti Tete of Korefegu Ward 4 in the Ungai Bena Electorate arranged for 705 "ineligible voters" from that electorate to go and cast their votes in favour of the 1st Respondent in the Lufa Open Electorate.

In respect of these paragraphs the complaint is about transporting "705 people" from Ungai Bena to vote in the Lufa Open Electorate. It is alleged that these "705 people" named in these paragraphs were transported to and voted in the Lufa Open Electorate several times. It is an allegation alleging double voting by these 705 "people". The petitioner pleads that this was contrary to several provisions of the Organic Law, in particular illegal practices under s. 215, bribery, undue influence etc. under ss. 102 and 103 of the Criminal Code.

The respondents submit that the allegations are too general, confusing and do not contain material facts supporting the grounds alleged.

Mr Manase submitted that the facts as pleaded in these paragraphs must be read together and upon doing so they demonstrate that all material facts have been pleaded. He submitted that the facts has set out in these paragraphs are sufficient.

Looking at all the paragraphs either individually or together, it is quite clear in my view that the allegations are too general, confusing and do not plead several material facts. For instance, it is pleaded whether these 705 people were electors. It is also not pleaded where these people voted. The pleadings also do not plead any material facts to support the allegations of bribery, undue influence, illegal practices or any of the other provisions relied on.

I accept the submission that have been made by the respondents on this paragraph. 

The paragraphs as they stand are incompetent and must therefore be struck down.

PARAGRAPH 7(D) (i) (a) – (e)

In these paragraphs the petitioner alleges that about 287 "ineligible people/voters" from Henganofi Electorate where transported by some unknown persons on the authority and direction of the First Respondent to go and casts their votes for the First Respondent.

The Respondents submit that these paragraphs are incompetent because it does not contain all relevant material fact. 

These would include the names of the persons who aided and abetted the transportation of the 287 people, whether those who aided and abetted were servants or agents of the First Respondent. 

How these people were transported and where these people cast their votes are also not pleaded.

I accept the submission of the Respondents. It is obvious that this paragraph does not contain all relevant and material facts. It is incompetent and is struck down.

PARAGRAPH 8 A (a) – (e)

In this paragraph the Petitioner alleges that the First Respondent himself and his unnamed campaign managers and supporters with his express authority, encouraged and actively induced ineligible voter to casts their votes for the First Respondent. The allegations are based on bribery, undue influence and or illegal practises.

It is further alleged that the First Respondent and his supporters instructed under aged students to vote.

The Respondents submit that the pleadings in this paragraph are incompetent because here the Petitioner is applying to the Court to enquire into the Correctness of the Common Roll, which is not permissible. They submit that s. 214 of the Organic Law does not permit the Court to enquire into the Correctness of the Roll.

They further submit that the petitioner did not state certain relevant facts such as the names of underage persons who voted using the names set out subparagraphs (b) (i) to (v) and the names of First Respondents supporters who directed ineligible voters to vote.

I accept the submissions put by the Respondents. The pleadings are defective and are incompetent, because the Petitioner has failed to plead certain material facts, which have been pointed out by the Respondents. The names of supporters of the First Respondent who were alleged to have been involved are not stated. The names of underage persons have not been pleaded. 

Further the pleadings are confusing and do not make any sense at all. Moreover the Court is not permitted to enquire into correctness of the common roll.

In the circumstance the whole of this paragraph is incompetent. It is struck down.

PARAGRAPH 9 A (a) – (f)

Here the allegations are that Electoral Officials committed errors or omission in allowing various eligible voters from the Henoganof/Ungai Bena Electorate to vote in the names of those who have left the electorate. 

These paragraphs are confusing and do not plead with clarity. Further it does not state material facts such as the names of supporters and coordinators of the First Respondent.

It also does not state the names of people from Henganofi/Ungai Bena Electorate who used the names listed therein to vote.

The allegations are premised on both errors and omissions of electoral officials and illegal practises. But the necessary facts supporting the elements of those grounds have not been pleaded. For instance, if it is grounded on errors or omissions of electoral officials then, it is necessary that the petitioner plead the facts to show that the errors or omissions did affect the results of the election. See Ambane v Sumuno.

On the other hand if it is based on illegal practise, other then bribery or undue influence, under s 215 then, the petitioner must plead the necessary facts, to demonstrate that the results of the election was likely to have been affected and that is was just to declare the elected person not duly elected or declare the election void. See Paul Kamod v Stanley Pil, Sir Pita Lus v Gabriel Kapris, Eddie Saweni v Patrick Pruiatch. 

Here the Petitioner has not pleaded these material facts. Accordingly it is incompetent and is dismissed.

PARAGRAPHS 10, 11 & 13

As the Petitioner has withdrawn these paragraphs, these are dismissed.

PARAGRAPHS 12 (a) – (k)

Here the petitioner pleads that the Second Respondent and its agents and servants committed illegal and improper practises. 

It is further pleaded that if this is proved it is likely to affect the results of the election.

These paragraph refer to which polling team was to conduct polling at certain polling places, but were subsequently moved to one location were several polling teams conducted polling near to each other. It is alleged that because of the way the several polling teams were set out in close proximity to each other, thousands of electors voted twice or more times. It is further alleged that the electoral officials allowed this to happened.

Objections have been taken on the basis that the Petitioner has not pleaded material facts. 

They submit that the electoral officials who allegedly gave the directions are not named. Further the First Respondent’s agents are not named. They further submit some of the subparagraphs pleaded the evidence, which is not permissible.

I accept the submissions put by the Respondents. The pleadings do not set out the material facts. This is fatal.

I find that the whole of these paragraphs are incompetent. Accordingly the whole of these paragraphs are dismissed.

CONCLUSION

In conclusion it is obvious that as a result of the dismissal of the offending paragraphs, only the formal parts, namely paragraphs 1 –5 and the relief sought in paragraph 14 remain.

But paragraphs 5 and 14 cannot stand alone, as there are no facts supporting these paragraphs.

It follows that the Petition as it stands cannot proceed to trial as there are no allegations left to proceed to trial.

Consequently the net effect is that the Petition must be dismissed. Accordingly I make the following orders;

1.	That the Petition be dismissed.

2.	That the Petitioner pays the Respondent’s Costs to be agreed, if not taxed.

3.	That the sum of K2500.00 paid as security for costs be shared equally between the Respondents.
____________________________________________________________________
Lawyers for the Petitioner			 : 	Pato
Lawyers for the First Respondent		 :	Maladinas
Lawyers for the Second Respondent		:	Nonggorr & Associates