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Lus v Kapris and Electoral Commissioner [2003] PGNC 154; N2326 (6 February 2003)

N2326

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

EP 21 OF 2002

BETWEEN

SIR PITA LUS
Petitioner

AND

GABRIEL KAPRIS
First Respondent

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kapi DCJ
5th & 6th February 2003

PARLIAMENT – Elections – Disputed election petition – Requirement for pleading – "Facts" relied upon to invalidate petition – Manner of pleading – Ground for invalidating petition – Need to plead – Organic Law on National and Local-level Government Elections. S 208 (a).

Counsel:
P. Parkop for the Petitioner
A. Jerewai for the First Respondent
R. William for the Second Respondent.

6th February 2003

The Hon. Gabriel Lani Kapris (First Respondent) was elected as the Member for Marpik Open Electorate, East Sepik Province in the recent National Elections conducted in 2002.

Sir Peter Lus (Petitioner), an unsuccessful candidate filed an election petition on 16th August 2002 contesting the results of the election. It is convenient to set out the grounds of the petition as well as pleading of facts to support the grounds:

4. Facts Relied upon to Invalidate the Election.
   

1. Acts of Bribery and Threatening by the First Respondent
   

It is alleged that prior to scheduled polling on 27th June 2002 for the Electorate, the First Respondent together with his servants and/or agents have committed or engaged in several acts of bribery and threatening with the knowledge and authority of the First Respondent to procure votes of the registered or eligible electors for the first Respondent, and with the intention to interfere unlawfully in the free voting in elections by voters, thereby contravening, inter alia, Sections 191 of the Organic Law on National and Local-Level Government elections.

The specific instances of the allegations of bribery in the circumstances are as follow:-

Particulars

"(a) On or about 13th June 2002 at Mui Village in the Electorate, a certain witness saw Mr Tobias Bruno, the campaign manager for the First Respondent, giving rice, tinned fish and sugar to the First Respondent’s supporters; and".

(b) Mr Bruno then announced to about one hundred (100) voters "Yupela kaikai dispela kaikai na votim Gabried Kapris olsem open memba na mi olsem ward memba" and subsequently said "Yumi mas pulim ol lain biling Sir Pita long kam na votim Gabriel na mi".

(c) At this gathering Mr Bruno stood up with a book in his hand and called out names of villagers who cam forward and received the food. Mr Waimba asked each villager in turn "Who are you going to vote?" If the villagers mentioned the First Respondent’ s name for Maprik and Mr Bruno’s name for ward councillor, then they would receive the food.

(d) A certain witness stepped up to Mr Bruno and said that it was not right to give out food to buy support.

(e) The campaign manager then walked up to the certain witness and said "Noken koros tumas. Mipela I laik pulim sampela voters biling Sir Pita I kam long said biling mipela". The campaign manager then handed the certain witness a K20 note.

(f) After eating and whilst having tea. Mr Bruno addressed the gathering and said "Yupela kaikai pinis. Nau yupela mas voting Gabriel Kapris na mi long taim bilong vote.

(g) The Campaign Manager also gave out money as a bribe for a certain witness to be silent about the handling out of food to buy votes.

2. Acts of undue influence by the First Respondent
   

In breach of Section 102 of the Criminal Code Act (Chapter 262) it has been further alleged that the First Respondent together with his agents and/or servants did engage in the following acts of undue influence committed with the knowledge and authority of the First Respondent in order to induce the registered or eligible voters in vote for the First Respondent (and by their conduct cased the eligible or registered voters to vote against their free will) with the intention to interfere unlawfully in the free voting in elections by electors.

Specific instances of the allegations of undue influence are that the First Respondent directly threatened physical harm if the electors voted for another candidate:-

Particulars

(a) That on or about 1st May 2002, the First Respondent threatened a certain witness by saying to the witness that he will be hurt with the rest of the Petitioner’s supporters. The family members of the certain witness gave their support to the First respondent because of this direct threat.
(b) That on or about 24th May 2002 the First Respondent and/or his servants and agents physically struck a certain witness on the face because he had revealed that he would be voting for the Petitioner and the First Respondent had continually threatened the certain witness.

100. Unlawful and irregular practices at polling and inadequate security of ballot boxes.
     

In breach of Section 110 of the Criminal Code Act (Chapter 262) and Section 286(j) (k) (l) (m) (n) (o) (p) and (q) of the Organic Law on National and Local-Level Government elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the second respondent together with his servants and/or agents have committed or engaged in the counting of invalid ballot papers and boxes and interfered with scrutineers with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of the allegations of unlawful and irregular practices at polling booths and inadequate security are as follows:

Particulars.

(a) That a certain witness saw a polling team go to Albiges Mambleb and conducted polling there without the knowledge of any scrutineers and without any scrutineers being present.
(b) That a certain witness saw ballot papers being taken outside of the polling area and given to people to cast their votes and then returned to the polling area.
(c) That a witness saw ballot boxes being kept overnight and not returned by 6.00 p.m. as required.
(d) That a certain witness saw that ballot boxes were transported without any scrutineers present.

D. Irregularities and unlawful acts at counting

In breach of Section 152 and section 153 of the Organic Law on National and Local-Level Government Elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the First Respondent together with his servants and/or agents have committed or engaged in the counting of invalid ballot papers and boxes and interfered with scrutineers with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of the allegations of unlawful acts of counting are as follows:-

(a) That certain witnesses saw that there were only twenty-four (24) ballot boxes allocated for the Electorate however twenty-six (26) ballot boxes were counted and that two extra unallocated ballot boxes with numbers ESP 1604 and Serial No. 181693 and ESP 1605 Serial No. 181694 were unlawfully included in the count respectively.
(b) That on 5th July 2002 a certain witness saw marks apart from the required "x" on a ballot paper. The witness reported this to the Presiding Officer, Mr Konrak Manikut, but he ignored this and included this vote in the count for the First Respondent. The same president officer declared the ballot papers that indicated a vote for the Petitioner but which contained marks as informal.
(c) That a certain witness saw on three separate occasions that the tallies did not balance in the Maprik Open Electorate to that of the Regional seat. The witness also saw the presiding officer take away ballot papers so the tallies balanced.
(d) Another certain witness saw that the tallies were 995 for the Maprik Open seat and 993 for the Regional seat.
(e) On one occasion a certain witness noticed that one ballot paper was missing. This was count 24 at about 12.30 p.m. on 8th July 2002. The assistant returning officer, Hilary Mowl, instructed the witness and others to obtain an unmarked ballot paper and add it to the marked one to balance the totals. The witness saw this procedure happen four times.
(f) That a certain witness saw that the counts number 15 and 16 were suspicious, in that voters polled an extremely large numbers being 1030 and 1156 respectively for the First Respondent. The next highest votes for any candidate were 68 and 77 respectively.

5. Unlawfully allowing Underage Persons to Vote.
   

In breach of Section 50 of the Constitution, Section 105(1)(a) of the Criminal Code Act (Chapter 262) and section 52 of the Organic Law on National and Local-Level Government elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the First Respondent together with his servants and/or agents caused by force and threat to be entered on the Common Roll names of under-aged persons and with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of underage persons voting are as follows:-

Particulars

(a) That the campaign manager for the First Respondent caused by force and threat that a certain witness enter on the Common Roll names of certain under-aged persons.
(b) That certain witnesses saw under-aged children voting.
(c) That a certain witness saw a certain under-aged child voting on behalf of that child’s deceased father.

6. Unlawfully allowing Personation to take place.
   

In breach of Section 99 of the Criminal Code Act (Chapter 262) and section 286(I) of the Organic Law on National and Local-Level Government Elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the Second Respondent together with his servants and/or agents have allowed people voting in place of those people whose names appeared on the Common Roll but were not physically present at the time of voting and with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of unlawfully allowing personation to take place is as follows:-

(a) That on 27th June 2002 a certain witness saw people, known to the witness, voting in place of certain people whose names appeared on the Common Roll but were not physically present at the time of voting.
(b) That the First Respondent’s campaign manager caused a witness by force and threatened that the name of a certain voter not to be transferred to another electorate where that person now resides.
(c) That a certain witness saw a certain under-aged child voting on behalf of that child’s deceased father."

The Electoral Commission (Second Respondent) filed a Notice of Objection to the Competency of the Petition on 30th August 2002. The First Respondent joins and supports the objection. The Notice seeks to dismiss the whole of the Petition. I will return to the grounds for objection later in the judgment.

The objection came up for determination at the commencement of the trial. After hearing the parties, I reserved my decision over night to consider my decision before proceeding further with the trial. On the 6th February 2003, I dismissed the whole of the Petition for not complying with s 208 (a) of the Organic Law on National and Local-level Government Elections (Organic Law) and indicated that I would publish my reasons for decision in the next couple of days. This I now do.

Section 208 of the Organic Law sets out the prerequisites of a petition. The relevant provision is s 208 (a) which requires:

"A Petition shall-

(a) set out the facts relied on to invalidate the election or return;"

The law relating to the nature of facts and the sufficiency of facts required under s 208 (a) is now well settled. In Holloway v Ivarato [1988] PNGLR 99 at 101 I stated:

"I conclude that s 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved.....

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that 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."

This passage has been approved and followed in many subsequent cases. It is not necessary to refer to them. I should add that s 208 (a) does not in terms require that the grounds relied on for invalidating the election should be set out. However, it is implicit in s 208 (a) that grounds relied upon for invalidating the election must necessarily be set out. Pleading of facts without pleading the ground which those facts seek to support is meaningless and therefore defective.

If a petition does not plead all the necessary requirements for invalidating an election, such a pleading is defective. In this regard I agree with Andrew J in Paul Kamond v Stanley Pil [1983] Unreported Judgment of the National Court when dealing with an illegal practice the petition failed to plead an essential requirement under s 215 (3), he stated:

"The paragraph does not plead that the result of the election was likely to be affected which is a requirement of s 215 of the Organic Law on National Elections and for that reason is defective."

The grounds and the facts that constitute those grounds must necessarily be pleaded.

The prerequisites set out under s 208 have to be strictly complied with. Failure to comply is fatal in accordance with s 210:

"No proceedings unless requisites complied with.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."

An election petition is a very serious matter and it is the intention of the Parliament that all the requirements under s 208 have to be strictly complied with (Bourne v Voeto [1977] PNGLR 298; Biri v Ninkama [1982] PNGLR 342; Agonia v Karo [1992] PNGLR 463).

I will now deal with each of the grounds and the facts set out for invalidating the election.

Ground 4A

This ground pleads bribery on the part of the First Respondent and/or alternatively by servants and agents of the First Respondent. In so far as it pleads bribery by the First Respondent, this ground is based on s 215 (1) of the Organic Law which provides:

"If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void."

In so far as it pleads bribery by a person other than the First Respondent, this ground is based on s 215 (3) (a) of the Organic Law which provides:

"(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal 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."

In dealing with allegations of bribery or undue influence, the cases have determined the nature of the facts that should be pleaded. In Agonia v Karo (supra) at 469 Sheehan J stated:

".......because ‘an election petition is a very serious thing,’ because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.

In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegations that this money, that property, or the gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."

In dealing with the pleadings in Agonia v Karo (supra) at page 470 Sheehan J stated:

"As was submitted there are simply no facts here that even approach a ground of bribery. The ‘individual’ is not named, nor is there any identification of him at all, male or female. Was she or he an elector or eligible voter in the electorate....There is no allegation that the money was given as an inducement to interfere with the proper conduct of the election. In fact it was given for ‘no purpose’."

The paragraph in the present case failed to plead any facts in relation to any act of bribery by the First Respondent. The pleading against the First Respondent is defective. The offence of bribery is attributed to one Tobias Bruno (paragraph 4A (a) – (g) of the Petition).

In so far as the act of bribery is attributed to Tobias Bruno, the Petition failed to plead the names of people who were alleged to have been bribed and whether the persons bribed were men or women and whether they are eligible voters.

In paragraph 4A (c) the Petition pleads that Tobias Bruno called out names of people and if the people indicated a willingness to vote for the First Respondent, he gave them food. However, the Petition failed to plead the number of people and their names.

So far as the allegation of bribery is against a person other than the First Respondent, the Petition pleaded that the bribery was carried out with the knowledge and authority of the First Respondent but failed to plead any facts to support this allegation.

Counsel for the Petitioner referred to the pleading under the heading "Conclusion". This is of no assistance to the Petitioner. This concluding pleading does not set out any facts to support the allegation that the First Respondent had knowledge or gave authority for the acts of bribery alleged.

Moreover, paragraph 4A failed to plead an essential requirement, namely, that the act of bribery under s 215 (3) (a) by Tobias Bruno was likely to affect the result of the election (proviso to s 215 (3) (a)). This requirement is generally pleaded under the heading "Conclusion". However, it failed to set out any facts to support this allegation.

I dismissed this ground for the reasons I have set out above.

Ground 4B.

This ground alleges undue influence under s 102 of the Criminal Code (Cap 262). It alleges undue influence on the part of the First Respondent together with his agents and servants. Two separate incidents of undue influence are set out under this ground. The facts alleged in both incidents do not implicate anyone else apart from the First Respondent. In essence it is an allegation under s 215 (1) of the Organic Law.

In respect of the allegation that occurred on 1st May, the Petition failed to plead the name of the person who was threatened and the manner in which he was threatened to be hurt. It also failed to set out the numbers and the names of the family members that gave their votes to the First Respondent. These are material facts.

In respect of the allegation that took place on 24th May, the Petition failed to set out the name of the person who was struck by the First Respondent.

Moreover, the Petition failed to plead the place where the alleged acts of undue influence were committed.

I dismissed this ground for the reasons I have set out above.

Ground 4C

This ground alleges unlawful and irregular practices contrary to s 110 of the Criminal Code and s 286 (j)(k)(l)(m)(n)(o)(p) and (q) of the Organic Law.

Section 110 of the Code deals with an offence where a person places or his privy to placing a ballot paper in the ballot box that has not been lawfully handed to and marked by an elector. The only relevant facts set out to support the alleged illegal practice is in 4C (b). However, this pleading does not set out the material facts such as the witness who saw this incident and the number of ballot papers that were handed to the people. It does not indicate the number of people and their names. This pleading is defective for this reason.

Section 286 (j) deals with fraudulently destroying or defacing a nomination paper or ballot-paper. The pleading does not set out any facts in relation to this ground. This pleading cannot stand.

Section 286 (k) deals with fraudulently taking a ballot-paper out of a polling booth. The facts relied on for this ground is set out in 4C (b). However, as I have pointed out previously in relation s 110 of the Code, this pleading does not set out the material facts and is therefore defective.

Section 286 (l) deals with fraudulently putting a ballot-paper or other paper into a ballot-box. The Petition has not set out any facts to support this allegation. Paragraph 4C (b) as I have already pointed out is defective.

Section 286 (m) deals with taking a ballot-paper out of a polling booth. The facts are set out in paragraph 4C (b). As I have pointed out already this paragraph does not set out the material facts with regard to the number of ballot papers and the number and the names of people who were given these ballot papers.

Section 286 (n) deals with forging, or uttering a ballot paper, knowing it to be forged. The Petition has not pleaded any facts relating to this allegation and therefore is defective.

Section 286 (o) deals with misconduct in a polling booth during the polling, or failing to obey the lawful directions of the Returning Officer or the Presiding Officer. No facts have been set out to support this allegation and therefore it is defective.

Section 286 (p) deals with supplying ballot-papers without authority. This may be supported by the facts set out under paragraph 4C (b) but again as I have pointed out before this is defective.

Section 286 (q) deals with unlawfully destroying, taking, opening or otherwise interfering with ballot-boxes or ballot-papers. There is no fact alleged in relation to destruction of ballot papers or ballot boxes. Nor is there any fact set out to support opening of the ballot boxes.

Paragraph 4C further alleges interference with the scrutineers but failed to set out facts to support this allegation. Paragraph 4C (a) merely set out absence of scrutineers. However, this paragraph is defective because it does not indicate the witness who witnessed this incident nor does it set out details of the names of the polling team and the date on which this occurred.

For all these reasons I dismissed this paragraph.

Ground 4D

This ground alleges that the First Respondent together with his agents and/or servants committed or engaged in the counting of invalid ballot papers and boxes and interfered with scrutineers. This ground is based on ss 152 and 153 of the Organic Law.

Sections 152 and 153 provide:

"152. Action on objections to ballot-papers.

(1) If a scrutineer objects to a ballot-paper as being informal, the officer conducting the scrutiny shall mark the ballot-paper "Admitted" or "Rejected", according to his decision to admit or reject the ballot-paper.

(2) Nothing in this Section prevents the officer conducting the scrutiny from rejecting a ballot-paper as being informal although it is not objected to.

153. Informal ballot-papers.

(1) Subject to this section, and to Divisions 3 and 4 and the Regulations, a ballot-paper is informal where—

(a) it is not authenticated by the initials of the presiding officer or by an official mark as prescribed; or

(b) subject to Subsections (2) and (3), it has no vote indicated on it or it does not indicate the voter's first preference for one candidate and his contingent votes for two other candidates (or where there are less than two other candidates, for the remaining candidate); or

(c) it has on it any mark or writing (not authorized by this Law to be put on it) by which, in the opinion of the officer conducting the scrutiny, the voter can be identified.

(2) Where there are two candidates only and the voter has indicated his vote by placing "1" in the square opposite the name of one candidate and has left the other square blank, the voter shall be deemed to have indicated the order of his preference for both candidates.

(3) Where there are three candidates only and the voter has indicated his first preference for one candidate and his contingent votes for one other candidate only, and the square opposite the name of the remaining candidate has been left blank, the voter's preference for that candidate shall be deemed to be his last and accordingly he shall be deemed to have indicated his preferences for all candidates.

(4) Subsection (1)(c) does not apply to a mark or writing placed on a ballot-paper by an officer, notwithstanding that the placing of the mark or writing on the ballot-paper is a contravention of this Law.

(5) Subject to Divisions 3 and 4, a ballot paper shall not be informal for any reason other than a reason specified in this section."

This pleading alleges irregularities and unlawful acts were committed by the First Respondent and his agents and/or his servants in the counting of votes. None of the facts pleaded in this paragraph relate to any role played by the First Respondent or any of his agents and/or servants. All the facts set out relate to allegations against Electoral Commission officials involved in the counting of votes.

Paragraph (a) does not set out the name of the witness who makes this allegation. Was he a scrutineer and did he witness the use of number of boxes during whole of the polling?

Paragraph (b) makes reference to a ballot paper with a mark other than "x". This relate to the ground based on s 153 (1) (c) of the Organic Law. It does not indicate if this objection was raised as informal at the counting. One ballot paper referred to in this pleading is unlikely to affect the result of the election in this case.

Paragraph (c) and (d) do not deal with the allegation based on s 152 and s 153 of the Organic Law.

Paragraph (e) deals with one ballot paper and is not likely to affect the result of the election.

Paragraph (f) is not a fact and is defective.

This ground is defective for the reasons I have explained and dismissed it for these reasons

Ground 4E

This ground alleges unlawfully allowing underage persons to vote. The basic allegation is that persons under the voting age were allowed to vote. This ground is defective in that it failed to set out the material facts to support the allegation. Paragraph (a) does not set out the name of the person who was allegedly forced or threatened by the campaign manager to enter names of under-aged persons on the Common Roll. No facts have been set out to indicate when and where this incident took place.

Paragraph (b) does not set out the name of the witness nor does it set out the names of under-aged children and the number of such people.

Paragraph (c) does not set out the name of the witness nor does it set out the name of the under-aged child and the name of the child’s deceased’ father.

The paragraph failed to plead the material facts to support the ground.

I dismissed this ground for these reasons.

Ground 4F

This ground alleges that the Second Respondent together with his agents and/or servants allowed persons to vote on behalf of people whose names were on the Common Roll but who were not present at the time of polling. This ground is based on s 99 of the Criminal Code and s 286 (i) of the Organic Law.

Paragraph (a) failed to set out (i) the name of the witness who saw the impersonation (ii) the numbers and the names of people who were impersonating other people on the Common Roll.

Paragraph (b) does not set out the name of the voter whose name should not be transferred to where he now resides.

Likewise, paragraph (c) failed to set out the name of the under-aged child who voted in the place of the child’s deceased father.

These are material facts required by s 208 (a) of the Organic Law to be set out.

For these reasons I dismissed this ground.

This Petition cannot proceed to a hearing in accordance with s 210 of the Organic Law. The practical result is that I dismissed the whole Petition with costs to the Respondents.

Lawyers for the Petitioner : Powes Parkop Lawyers
Lawyers for the First Respondent : Jerewai Lawyers
Lawyers for the Second Respondent : Nonggorr & Associates Lawyers