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Kamma v Itanu [2007] PGNC 104; N3246 (5 December 2007)

N3246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 11 OF 2007

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

BETWEEN

STEVEN PIRIKA KAMMA
Petitioner

AND:

JOHN ITANU,
RETURNING OFFICER FOR
SOUTH BOUGAINVILLE
OPEN ELECTORATE
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER
OF PAPUA NEW GUINEA
Second Respondent

AND

MICHAEL LAIMO
Third Respondent

Buka: Kandakasi, J.
2007: 4 and 5 December

ELECTION PETITION – PRACTICE & PROCEDURE - Objection to Competency – Respondents to petitions requiring petitioners to strictly comply with the requirements of the organic law in pleading the grounds of their petition – Equity and fairness require Respondents to strictly raise any objections much earlier on in the proceedings before any substantive step is taken toward trial and specifically plead with sufficient details the grounds of the objection - Belated objections should not be entertained.

ELECTION PETITION – PRACTICE AND PROCEDURE – Pleading grounds of petition – Requirements of s. 208 of the Organic Law on National and Local-level Government Elections – Inconsistent pleadings – Whether petitioner can withdraw offending pleading to avoid inconsistency in the light of belated objection to competency of petition on grounds of inconsistency – Whether allowing withdrawal amounts to amendment of petition – Intention of Organic Law on Elections – Effect of withdrawal – Not introducing new pleading but clarifying issues - A petitioner should be at liberty to withdraw any part of his pleading at any stage of the proceedings.

ELECTION PETITION – PRACTICE & PROCEDURE – Amendments of petitions – Power and right to amend not specifically prohibited by s. 208 of the Organic Law or any other - Prevailing authorities revisited – Previous authorities having serious flaws and therefore not correct and appropriate to follow – Principles governing amendment of pleadings in other case apply.

ELECTION PETITION - PRACTICE & PROCEDURE – Sufficiency of pleadings of facts required by s. 208 of the Organic Law on National and Local-level Government Elections – Intention of the Organic Law - Petitioner need only plead the facts constituting a ground for the petition so as to inform the Respondents the basis for the petition – What fact must be pleaded is dependant of the ground of the petition – No need to pleading every single detail unless it is an essential element of the offence, irregularity, illegality or errors and omissions relied on to vitiate an election result – Petition pleading essential facts – Objection requiring additional details without merit – Objection dismissed.

Papua New Guinean Cases Cited:

Delba Biri v. Bill Ninkama [1982] PNGLR 342.
Holloway v. Ivarato [1988] PNGLR 99.
Jimson Sauk v. Don Polye (2004) SC769.
Ginson Saonu v. Bob Dade (2004) SC763.
Daniel Tulapi v. Charles Luta [1990] PNGLR 120.
Alfred Pogo v. Guao Katucnane Zurenuoc (2003) N2351.
Jim Nomane v. David Anggo (2003) N2496.
Mathias Ijape v. Biri Kimisopa (2003) N2344.
Ludger Mond v. Jeffery Nape (2003) 2318.
Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004).
Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03.)

Counsel:

A. Manase, for the Petitioner.
R. William, for the First and Second Respondents.
J.B. Nanei, for the Third Respondent.

5 December, 2007

1. KANDAKASI J: Mr Steven Pirika Kamma is petitioning against the election victory of Honourable Michael Laimo as member for the South Bougainville Seat in the recent 2007 National General Elections. The petition is based on alleged acts of errors, omissions and illegal practices committed by election officials engage by the Electoral Commission through the Electoral Commissioner, Mr. Trawen.

2. Honourable Michael Laimo, John Itanu as the Returning Officer and Mr Trawen as the Electoral Commissioner (collectively the Respondents) object to the petition and argue for its dismissal. Their objection is taken on grounds of the petition containing speculations, inconsistent pleadings, and insufficiency of pleadings of the material facts as required buy s. 208 of the Organic Law on National and Local-level Government Elections (the Organic Law). In response, Mr. Kamma argues in respect of the inconsistency argument that the Respondents are precluded from taking issue particularly in relation to paragraphs 9 and 10 of Part B.1 (b) of the petition because the objection to those paragraphs are being raised belatedly and without pleading the objection in their respective notices of objection to the competency of the petition. At the same time, Mr. Kamma seeks to withdraw paragraph 10 in relation to the inconsistency arguments. As for the insufficiency of pleadings and pleading speculations arguments, Mr. Kamma says he has pleaded the material facts sufficiently in the material respects and the missing details are matters for evidence at the trial.

3. The parties have drawn my attention to the decisions in the cases of Delba Biri v. Bill Ninkama;[1] Holloway v. Ivarato;[2] Jimson Sauk v. Don Polye;[3] Ginson Saonu v. Bob Dade;[4] Daniel Tulapi v. Charles Luta;[5] Alfred Pogo v. Guao Katucnane Zurenuoc;[6] Jim Nomane v. David Anggo[7] and my decisions in Mathias Ijape v. Biri Kimisopa[8] and Ludger Mond v. Jeffery Nape.[9] I have considered what these cases stand for and will bring out the relevant and necessary parts out of them in the course of my judgment in this matter.

Relevant Issues

4. The foregoing arguments give rise to the following main issues for this Court to determine:

(a) Are the Respondents at liberty to object to paragraphs 9 and 10 of Part B.1 (b) of the petition, which objection they failed to include in their respective notices of objection to the competence of the petition?

(b) Does the petition contain speculations, inconsistent pleadings and fails to sufficiently plead the material and relevant facts?

(c) Is Mr. Kamma, the petitioner, at liberty to withdraw paragraph 10 of Part B.1 (b) of his petition in face of an objection on grounds of inconsistency?

Matters not in Issue

5. At the hearing of the objections, the Respondents accepted a suggestion from the Court that the various paragraphs under the broad grounds for the Petition could be read as a whole. Then proceeding on that basis, the Electoral Commission abandoned some of its objections, thereby moving away from an initial objection to every paragraph dealing with each of the grounds of the petition namely illegal polling and official irregularities and or errors and omissions.
   
6. The first of the objections expressly abandoned by the Electoral Commission was paragraph 4 in Part A of the petition which gives a background to the petition. That paragraph talks about the declaration of the result of the election for the South Bougainville Seat. This confirmed acceptance of the Court’s suggestion during the course of directions and pre-trial conference in some of the election petitions where Counsel for the Electoral Commission raised the same issue as in this case, that the date of the declaration is irrelevant because there is no serious issue amongst all the parties on that point.
   
7. The second objection that the Electoral Commission abandoned expressly was paragraph 6 of Part B.1 (b), which deals with the polling dates. The objection initially was that the paragraph in question is inconsistent with paragraph 6 of the same Part but under sub-part (a). Counsel for the Respondents correctly conceded to there being no inconsistency because, there is no inconsistency between these paragraphs. Instead they compliment each other in terms of the first of the two paragraphs speaking of the date of the commencement of the polling and the second of the two paragraphs speak of the completion of the polling.
   
8. Thirdly, although there was no expressed abandonment, the Electoral Commission at the hearing failed to argue its objections to paragraph 11 of Part B.1 (b), which alleges illegal voting allowed for or facilitated by the Electoral Commission officials and or the servants and agents of the Honourable Michael Laimo who marked the unused ballot papers for him as pleaded in the earlier part of the petition. The objections per the notice of objection filed by the Electoral Commission claim that, this is inconsistent with the earlier part of Mr. Kamma’s petition that there was no proper polling, but the pleading in the paragraph in question suggests there was some polling. I am of the view that, the Respondents correctly abandoned this objection because the petition states there was polling but part of the polling was illegal by reason of the facts pleaded. I cannot therefore see any inconsistency here.
   
9. At the end of that process the Electoral Commission was left with three main grounds for objection to a number of paragraphs in the petition. The first was on the grounds of inconsistency particularly for paragraphs 9 and 10 of Part B.1 (b) and paragraphs 2 to 4 and 6 and 9 and the rest of the pleadings under Part C. As earlier noted, the objection to paragraphs 9 and 10 of Part B.1 (b) was not included in the formal notice of objection to competency filed on 29 September 2007 and 8t October 2007 respectively. The second ground was for pleading speculations and not facts in paragraphs 8 of Part B.1 (a) and paragraphs 17 and 18 and 22 to 28 of Part C of the petition. The third and final ground is lack of sufficiency of pleadings in relation to polling at Ibirai Village pleaded under part B.1 (b) and Part C of the petition for not pleading the day, date and time when the alleged errors omissions or illegal acts of the counting officials were committed.
   
10. Honourable Michael Laimo, endorsed the arguments put forward by the Electoral Commission. In so doing, he abandoned correctly in my view his other grounds of his objection, because those grounds advanced the opposite of what is pleaded against him. They sound more like a formal defence to the petition as opposed to addressing any competency issue. Whether Mr. Kamma’s allegations or Honourable Laimo’s response should be sustained is a matter for trial and not an objection to competency issue.
    

First, Third and Parts of Second Issues: Timing of Objections and Withdrawal of Parts of Petition

11. I now turn to a consideration of the issues before this Court starting with the subject of inconsistencies in the pleadings and the belated objection to paragraphs 9 and 10 of Part B.1(b) and Mr. Kamma seeking to withdraw paragraph 10 to avoid inconsistencies in the pleadings. Before considering the issue of inconsistency raised, it is appropriate in my view to deal with the issue of whether the Respondents are at liberty to raise the objections in relation to paragraphs 9 and 10 of Part B.1 (b) first. This is because the right of the Respondents to raise the issue depends on whether or not they can raise the issue without first including it in their respective objections to the competency or prior to the matter being progressed to trial through the directions, pre-trial conference and status conference stages.
    
12. I notice that a trend or development has over the years become well entrenched in the election petitions jurisdiction. The trend requires strict compliance of the requirements of the Organic Law, in particular s. 208 by reason of s. 210. This goes back to the leading authorities on point starting with the decision of the Supreme Court in Delba Biri v. Bill Ninkama (supra). In that case, the Supreme Court said at pp. 345, 436 and 349:
    

"... it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

....

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210"

...

An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law."

13. The decision in Holloway v. Ivarato (supra) and many other subsequent Supreme and National Court judgments have consistently endorsed and applied these principles. The learned Counsel for the parties drew to my attention some of the cases. In the case of Mathias Injape v. Biri Kimisopa (supra) and Ludger Mond v. Jeffery Nape (supra), I merely went along with the way in which these principles have been strictly applied and the trend that has come to be established without carefully looking at the foundation for the trend. I have since become aware and have concerns over the correctness and appropriateness of that trend because of the adverse effects the trend has been having on election petitions and an elector’s right to challenge an election result, which is a right, granted by a Constitutional law. As I have observed in a number of election petition cases this year during directions and pre-trial conferences, the application of these principles have become more and stricter to the point that objections to competencies have become far too highly technical and in some cases purely nit-picking to say the least. In the process, the Courts at the instance of lawyers have effectively built into s. 208 additional requirements in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court 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."
    
14. The unfortunate end result of this trend and approach has been a ready defeat of many good and meritorious election petitions at the very door steps of justice. That has happened in a number of otherwise clear cases of bribery or illegal practices and errors or omissions and irregularities seriously questioning the integrity and the eventual outcome of elections. Consequently ordinary citizens of PNG who are concerned over the integrity of the election process and the duty of the Courts to inquire into any allegations of foul play and remedy them are left to marvel at why and how the Court can prevent a petition getting to a proper hearing and a determination on its "substantial merits". It is this kind of practice which only lawyers and the Courts have become familiar with and can understand that adds to a lack of respect for the integrity of the election process and the Court system because of the system’s failure to properly scrutinize the election process when faced with an allegation of illegal practices or, errors or omission or, irregularities and remedy them.
    
15. I am firmly of the view that, we have come to this result because of two important failures of lawyers and their clients as well as the Courts. First, we have failed to give any due and proper consideration to the intention of Parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of s. 217 of the Organic Law. Secondly, we have failed to have a closer look at the particular wording in s.208 and s. 210 from which this trend has originated.
    
16. With the assistance of all lawyers before me, for which I am grateful, I have had the benefit of reading and considering the judgment of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dadae (supra). Having done so, I am pleased that at last the Supreme Court has addressed my concerns and has fortified my observations and concerns regarding the first failure. I agree unreservedly with what the Supreme Court said in these two cases and adopt them as my own.
    
17. In the first case, the Supreme Court endorsed the observations of Hinchliffe J., in his unreported judgment in the case of EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) in this way:
    

"We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, when commenting on another National Court decision that had been relied on and referred to him:

‘With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard. (Underlining ours.)’

18. After unreservedly and respectfully agreeing with and endorsing those sentiments and concerns of his Honour, the Supreme Court added:
    

"Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on s.208, s.209 and s.210 Organic Law, supra, or s.50 and s.103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter."

19. The Supreme Court went on to add by quoting with approval Sakora J’s comments in Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03), where his Honour said:

"Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . . "

20. Then the Supreme Court added:

"The Constitutional burden of organizing the machinery of an election, and particularly the poll and the count, rest, as has been repeatedly noted and emphasized over the years, entirely on the Electoral Commission (see, ss 126 and 127 Constitution, and s 5 Organic Law). Under the Organic Law, legal regulations and restrictions are provided to ensure as far as possible that election campaigns are fairly conducted. Bribery, treating and undue influence in the nature of duress are corrupt practices. Thus, to take such unmeritorious challenges to the competency of an election petition to their ludicrous extent, to countenance such challenges would mean that genuine legal/Constitutional challenges based on either the mandatory requisites under Organic Law (ss 208, 209 and 210) or the express limitation imposed by the Constitution (ss 50 (1) (a) and (b), and 103) would be stopped in their tracks, as it were, and irregularly elected candidates would assume office and perform or discharge public duties. Similarly, if a successful candidate were allowed to assume office when a petition against his election were attended by serious allegations of voting irregularities such as double or multiple voting, voting by unregistered voters, or by aliens, minors and convicted persons.

There is definitely, in our opinion, too much lawyering in the electoral process! There is too much unwelcome interference and influence by meddlesome legal eagles. The courts have a duty to be wary of these, and be ever mindful of the public interest that ought to operate both ways in election petitions. Because of the current climate of unnecessary and unmeritorious objections and challenges to election petitions, we must note that the election petitions in the late 1970s and early 1980s were never attended by the long drawn-out interlocutory challenges and reviews upon reviews. These were straight-forward affairs that were dealt with by individual judges on circuits and disposed of speedily, both any preliminary issues as to Constitutional qualifications or otherwise, and the substantive allegations pursuant to the Organic Law.

Then in the 1990s the courts threw open their doors to all manner of applications and challenges. These quickly developed into what came to be described as objections to competency. Meritorious or not, everyone was heard, again and again on some invented grounds. We would respectfully describe the conduct of the election petitions then as an unmitigated disaster, though the eventual judicial determinations were conclusive of the issues and cannot be impeached here. So much so that these disastrous experiments of the 1990s led to the felt need to instil some order to the conduct and determination of election petitions."

21. In relation to the second failure, I note that s.208 merely requires amongst others in paragraph (a) "the facts relied on to invalidate the election return". It does not say for instances that there must be no inconsistency in the facts relied on or that the facts must be set in full or with much detail. We have reached the result we have thus far not because the legislation says it but because lawyers who are not supposed to be involved in election petitions as of right becoming creative without having regard to what the legislation is actually saying and the intention behind that, which has only recently been adequately elaborated by the Supreme Court’s decision in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra) and the Courts ready acceptances of the Lawyers making. What the Courts and the parties should be looking at is whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the fact alleged and not necessarily every single detail of or about the fact stated. Such details should be left for the trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or, irregularity or, error or omissions which affected the results of an election.

22. I now turn to the issue at hand before me. Until the sound wisdom of the Supreme Court’s decision in Jimson Sauk v. Don Pomb Polye and Ginson Saonu v. Bob Dade (supra) becomes entrenched, we are in an environment in which respondents to election petitions with the endorsement of the Courts have been pushing for a strict compliance of the requirement of s. 208 and requiring petitioners to do more than simply state amongst others the facts relied on. In so doing, no consideration has been given as to how a lay person as originally provided for could be expected to know and fully understand and apply correctly the rules of proper pleading. Also no consideration has been given as to what requirements the respondents must meet with the same degree of strictness that has been meted out to petitioners, in order to mount a valid competency challenge.
    
23. It is necessary to take into account the considerations just mentioned because an attempt at stopping a petition from getting to a hearing is a serious matter which entails extra time and costs to all involved or affected. Not only that, more importantly, this is necessary because a person aggrieved by an election outcome has a right, granted by the Constitution to challenge the result in a petition which as the potential of ensuring and protecting the integrity of the election process at all times so there can be confidence in election process. Hence, I am of the view that, respondents to petitions should in fairness and equity be required to precisely and clearly state the nature of their objection with the grounds and the relevant particulars within a specified time from the date of service of the petition on them and formally notify petitioners and the Court at the directions hearing stage, which is the first time an election petition gets to the attention of the Court. A failure to do so should result in the defaulting respondent being precluded from raising any objection. Where a notice of objection is given in this way, respondents should not be readily permitted to depart from the grounds of their objection save only for an abandonment of the objection or a ground of the objection. As there has been too much free and easy ride for respondents and the adverse consequence this has on the right of petition to invoke the jurisdiction of the Court and have it determined on the substantial merits of his case, I consider the time has come for prescribing such requirements.
    
24. This is absolutely necessary in order to inform a petitioner that his or her petition’s competency is under challenge and the grounds for that so that, if need be, a petitioner can reconsider his petition and withdraw or amend his petition before any meaningful and serious step is taken toward the trial of a petition. It is also necessary from the Courts point of view in terms of its case management and allocation of scarcely available judicial time. Further this would enable an avoidance of any surprises and both a petitioner and possibly the Court not being prepared to face a new or additional challenge.
    
25. Proceeding on the above basis, I am of the view that the Respondents are not at any liberty to object to paragraphs 9 and 10 of Part B.1 (b) of the petition. I therefore decline to uphold their objection and instead dismiss the objections against the paragraphs in question.
    
26. This ruling leaves paragraphs 9 and 10 as they are. Mr. Kamma sought to withdraw paragraph 10 to remove the inconsistency the Respondents complains of. As earlier noted, the Respondents object to that happening because they argue that it will effectively amount to an amendment of the petition which can not happen after the expiry of the 40 days allowed for filing of petitions. They rely on the decision of Sevua J in Alfred Pogo v. Guao Katucnane Zurenuoc (supra).
    
27. In the case cited, Sevua J did allow for a withdrawal of certain parts of the election petition that was before him. Clearly therefore, that case does not offer any support for the Respondents objection to Mr. Kamma withdrawing the paragraph in question. Instead, the case stands for the Court’s readiness to allow for a withdrawal of either the whole or part of any petition. I am not aware of any law that prohibits a party from withdrawing proceedings. It is well accepted that a court cannot force an unwilling party to pursue a matter in court. So withdrawal of proceedings is usually and readily granted except in a few limited instances. The only usual issue is, who should pay the costs. Given that, the Respondents in this case, confirmed in the course of the hearing of their objections that, if the Petitioner sought to withdraw the whole of his petition, they would not have objected. There in lies a clear case of the Respondents becoming highly technical and picking and choosing when to object and when not to depending on when it suits them. Principles of law, justice, equity and fairness do not readily and easily change to suit a particular party’s convenience. They apply across the board regardless of who the parties are.
    
28. The only basis the Respondents offer for the position they have taken is that, a withdrawal of paragraph 10 of Part B.1 (b) of the petition will amount to an amendment of the petition which can not happen after the expiry of the 40 days limit under s.208 (e) of the Organic Law for the filing of election petitions. The judgment of Sevua J in Alfred Pogo v. Guao Katucnane Zurenuoc (supra) supports the Respondents on this point. There, His Honour refused to allow an amendment to the petition regarding the date of the declaration of the election result, which was a material fact as it would assist in determining whether the petition was filed within time or not. There was no dispute that the petitioner pleaded the wrong date. There was also no dispute on the correct date of the declaration. His Honour did acknowledge that, the petitioner did have a right to amend but that must be in accordance with the law, in particular, s. 208 (e) of the Organic Law.
    
29. Going by the practice then built around s. 208 of the Organic Law at the time of the decision in the above case, His Honour was correct. However, when we consider the views the Supreme Court expressed in the two recent decisions in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dadae (supra), (Sevua J being a member of the Court), the Respondents objection becomes obviously a highly technical issue and without any express foundation in s. 208 or at all in the Organic Law. All that the section says in paragraph (e) is that, an election petition must be filed within 40 days from the date of declaration of the results of the relevant election. There is no provision in the Organic Law which expressly prohibits any amendments to a petition after the expiry of the 40 days period.
    
30. It is the Supreme Court in the Delba Biri v. Bill Ninkama (supra) case that introduced the prohibition of amendments after the 40 days period. I note with respect that there are a number of flaws in that decision. First, the Supreme Court allowed itself to be influenced by the position taken in a number of English and Australian cases. In so doing, it did not have any regard to the marked difference in educational and sophistication levels of the peoples in England and Australia and those in Papua New Guinea. Even to this point, there are still far too many people in our country that are still illiterate and are not as well educated as those in England or Australia. There is therefore, bound to be mistakes or errors in the drafting and presentation of a petition in our Courts by an ordinary citizen, who is entitled to bring a petition to the exclusion of a lawyer. Surely, the legislature could not have intended that a petition should be defeated because of defects which in any other case can be cured by amendment, especially in the absence of any expressed exclusion.
    
31. Secondly, the Supreme Court spoke of the seriousness of an election petition but only from the point of view of ultimate winners of elections and those who might have supported him or her. It did not give any serious consideration to a petitioner’s right to challenge the results of an election that may be tainted by illegal practices such as bribery or undue influences or errors and omissions committed by electoral officials or others. That is a right that is granted by a Constitutional law. Such a challenge may represent not only the wishes of the petitioners and their supporters but might also be representative of a majority or if not a significant component of voters in an electorate. It therefore requires a balancing act between two equally important view points in order to do justice on the "substantial merits" of a petition and not be readily defeated purely on a technicality in light of the provisions of s. 217 of the Organic Law.
    
32. Thirdly, speaking of s. 217, in my considered view, the Supreme Court with respect also got it wrong. At page 346 of the judgment, the Court said:
    

"It is quiet clear to us that s.217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as (sic) relevant to the merits. It is a procedural section only: Ithaca Election Petition:Webb v. Hanton [1939] Q.S. R. 90."

33. The Court did not fully set out the provisions of s. 217 and failed to fully discuss what the equivalent provision in the overseas cases was. It did not also say what the importance of that case was and why it was relevant and applicable in our case in the light of the provisions of s. 217. That provision states:
    

"The National Court shall 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." (Emphasis supplied)

34. There is nothing in this provision that indicates that it is applicable only at the hearing on the merits of the case. If that were to be the case, the legislature would have made it clear for instance by providing in the open of that section or immediately after the words "The National Court shall" words to the effect "at the hearing on the merits of the case." I am of the respectful view that the legislature did no make a mistake in its choice of words constituting the section. Reading as it is without adding onto it any more clearly demonstrates no restrictions in its application to election petitions. The intention of the legislature is very clear. Election petitions are intended to be simple throughout all aspects of an election petition and not to be bogged down with the usual technicalities that often apply in civil cases. The section with respect is not merely a procedural matter. Rather its an obligation imposed on the National Court. It is what must guide the National Court when dealing with an election petition. The National Court is obliged to be guided by the "substantial merits and good conscience of each case without regal to legal forms or technicalities".
    
35. Fourthly, following on from what I have just stated above, I note that the Supreme Court did not with respect have regard to the fact that s. 208 or any other provision in the Organic Law does not expressly prohibit amendments of petitions filed within the required time limit. It also does not preclude the application of the principles governing the amendment of pleadings, a codification of which is in O 8 r 50 of the National Court Rules. I am of the view that, if the well accepted principles relating to amendment of pleadings were to be excluded, the legislature would have specifically provided for it but it did not. Simply because the legislature did not specifically exclude the application of these principles does not necessary follow that they do not apply. Instead the well accepted position in law in such a situation is that, unless a principle of law that is of general application is specifically excluded, it applies.
    
36. Here the legislature intended in terms of s. 217 for the election dispute resolution process to be simple and uncomplicated by legal form or technicalities or the technical rules of evidence. The aim is to enable a determination on the substantial merits of the case rather than on technicalities or simple curable mistakes in the way a matter is pleaded. Since there is no expressed prohibition against amendments of any sort in the Organic Law, and in appreciation of the points made in the decisions of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra) I am of the view, with respect that, there is room for a petitioner to effect all necessary amendments for the purpose of determining the real questions raised by or otherwise dependant on the petition, or of correcting any defect or error in a petition. The only exception to that would be a case in which the amendment seeks to introduce a new ground after the expiry of the 40 days limitation under s. 208 (e). There is ample authority for this exception in the principles governing amendment to pleadings.[10]
    
37. Finally, the issue of amendment in Delba Biri v. Bill Ninkama (supra) concerned a failure to include in the petition its attesting witnesses’ occupation. With all due respect, I note that, the Supreme Court failed to clearly distinguish between more serious omissions or failures to meet the requirements of s. 208 such as a failure to state an attesting witness’ occupation to a case of typographical errors or an omission of finer details of say a fact that has been otherwise clearly pleaded. The former is more serious because it is a specific requirement of s. 208 while the latter is not so serious because strictly speaking they may not offend against the requirement of the Organic Law but simply a slip or error of the person drafting the petition which does not seriously affect what is already pleaded by reason of which it could easily be cured by amendment in the light of the fact that, there is no specific and expressed prohibition against amending such defects in the petition. It is a total absurdity in my view, to put the two extremes of errors, one more serious than the other, in the same basket and allow a petition to be defeated even for the simplest of defects or errors or omissions contrary to the intention of s. 217 of the Organic Law as discussed above, only because the Supreme Court and not the legislation prohibits any manner of amendment of election petitions after the expiry of the 40 days time limit.
    
38. In the circumstances, I am respectfully of the view that, there is a serious doubt as to the correctness and appropriateness of the decision in Delba Biri v. Bill Ninkama (supra), which has not been examined in any respect by any of the subsequent cases that have since followed that decision. They have instead, as I have on my own part in the Ludger Mond v. Jeffery Nape (supra) and Mathias Ijape v. Kimisopa (supra) cases, taken it for granted that, the decision was correct and appropriate and have readily adopted and applied it. This now calls for a revisit of the correctness and or soundness of those authorities as has been recently highlighted by the recent decisions of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra).
    
39. What do the views I have just made mean for the arguments before me? First, I note that, strictly speaking, there is no application for amendment before me. Hence we are not talking about amendments strictly but only the effect of a withdrawal of a part of Mr. Kamma’s petition which he has liberty to do at any time. Secondly, strictly going by what is provided for in the relevant provisions of the Organic Law, Mr. Kamma is at liberty to amend his petition if this was a case of amendment because, the amendment is for the purposes of determining the real questions raised by or otherwise depending on the proceedings, or of correcting a defect or an error in the petition, namely to remove an ambiguity and unnecessary confusion in the pleadings so the petition can be determined on its "substantial merits" to the exclusion of "legal forms" and "technicalities". The authorities prohibiting amendments as serious flaws by reason of which, they are now no longer good law to follow having regard to the recent decisions of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra). In arriving at that view, I note that I am bound by the decisions of the Supreme Court. At the same time I note that, I am firstly duty bound to go by what Parliament has provided for in any legislation and not what it has failed to provide for and secondly, I do not consider it appropriate to follow a Supreme decision when properly considered as I have, represents a wrong view or a statement of a wrong principle. Accordingly, I allow Mr. Kamma to withdraw paragraph 10 of Part B.1 (b) of his petition so that there can be a determination on the "substantial merits" of the case.
    

Second Issue: Other Inconsistencies

40. This now leads me to deal with the second main issue for determination which concerns claims of inconsistency in other parts of the petition, claims of pleading speculations rather than stating facts relied on to mount the petition and not sufficiently pleading the facts relied on. I allow my self to be guided by what I have already set out above in relation to the requirements of s. 208 of the Organic Law and the practice that has developed around it until the decision of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra), without repeating them here.
    
41. Turning firstly to the inconsistency argument, the remaining challenge if I understand the Respondents arguments correctly is that, the petitioner has given a main heading to its allegations in the petition but the pleadings thereunder fail to follow through what is indicated in the headings. It is a well established principle of law that, it is not to the heading for example, in a legislation one must look at but, the provisions made in what is provided under the heading because the heading may mislead and may not convey the intention of the draftsman. The Respondents take no issue with this well accepted principle of law. They argue however, that this is an election petition which requires strict and consistent pleadings.
    
42. What the Respondents are saying may be correct under the practice that as been to date built around the requirements of s. 208 as I have noted above. However, I have already identified with the lead provided by recent Supreme Court decisions in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra), that the practice does not take into account the intention of the Organic Law. The intention once again is to allow for a simple process where a losing candidate or someone aggrieved by the election results, can file and pursue a petition in Court. That is intended to be the case to the exclusion of lawyers who have the ability through their lawyering skills to complicate matters, which is what they have done already with the ready acceptance of the Courts until the decision in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra).
    
43. There is no requirement in the Organic Law for a petitioner to follow through in his substantive pleadings what he or she might signal in a main or subheading to his or her petition. All that s. 208 of the Organic Law requires is a statement of the facts relied on to reverse an election result without prescribing the way in which the facts must be stated. That in my view, leaves room for a petitioner to draft his petition in a way he or she sees fit as long as he or she amongst others, clearly states the facts relied on. The objection raised here is yet another of those unnecessary lawyering acts that does no more than nit-pick which cannot be allowed and encouraged. Accordingly, I dismissed this part of the Respondents objection to the competency of the petition.
    

Second Issue: Speculations

44. This then takes me to a consideration of the remaining objections based on claims that Mr. Kamma’s pleadings in paragraph 8 of Part B.1 (a), and the whole of Part C of the petition are speculations. Paragraph 8 reads:
    

"Despite 879 electors on the Roll, only 431 electors present had cast their votes in the 4 villages during the five days of polling. There were no other electors left in the 4 villages requiring further polling by the same team or any other polling team."

45. This paragraph does not have meaning on its own if taken out of its context. As noted, all parties agreed, and in my view correctly that each of the paragraphs pleaded under the respective heads of allegations must be read as one. When that is done, there is a clear allegation of fact that, of the eligible 879 voters, only 431 voted and there was no eligible voter remaining that was yet to vote. Despite that, the Respondents with their servants and or agents facilitated double and illegal voting resulting in 212 votes out of which, 127 was for Honourable Michael Laimo. This affected the out come of the election which had a winning margin of only 17 votes. With respect, I cannot see how this could be described as a speculation in the way argued for by the Respondents. Rather this is a clear allegation and the relevant facts relied on are stated. Accordingly, I find that the objection has no merit. Hence, I dismiss the objection here.
    
46. Turning to Part C of the petition, the Respondents objects in particular to paragraphs 17 and 18 which deal with an allocation of 42 votes during the counting and paragraphs 22 to 28 which concern a failure to properly account for 15 votes during the elimination process. The objection is on the basis that these are speculations. In support or furtherance of their objections, the Respondents argue that these paragraphs fail to state the precise date and time when what Mr. Kamma alleges were committed.
    
47. A careful reading of these paragraphs as well as the earlier paragraphs from paragraph 2 to 13 clearly indicates what Mr. Kamma is saying. He is saying the counting officials failed to properly account for and add to his tally 42 votes and properly apply the 15 votes which would have affected the outcome of the election result. He further claims that, the counting officials deliberately tried to manipulate the election result by trying to remove his votes on several occasions, some of which were corrected but others were not. All these, according to paragraph 6 and 12 of Part C of the petition occurred at the counting on 20 July 2007. Else where, in his pleadings in paragraphs 6 to 9 in Part A of his petition, Mr. Kamma claims that Mr. John Itanu, the returning officer and other named election officials were supporters of Honourable Michael Laimo. Additionally, Mr. Kamma claims that, Mr. Itanu was a signatory to account No. 000123 088336 1000 932161 at the Bank South Pacific, Buka Branch operated by Honourable Michael Laimo. Further, Mr. Kamma claims that, Mr. Itanu was an officer of the Office of the Member for South Bougainville, occupied by Honourable Michael Laimo. Given these existing relationships, the suggestion in the allegations is that, Mr. John Itanu and other election officials set out to ensure their candidate’s victory. Those allegations are not objected to.
    
48. I find that the allegations in the whole of Part C inclusive of the particular paragraphs objected to are stating facts and are not speculative. What the Respondents are wanting this Court to do is not to read the particular paragraphs objected to within the context and not as one with the rest of the paragraphs under Part C. That runs contrary to their agreement that the allegations under various headings should be read as one. Further, in my view, this is another instance of respondents to election petitions becoming highly technical. The facts of when the counting took place with when and what objections were raised and how they were dealt with at the counting should be common knowledge for all involved and in particular, the counting officials, scrutineers, security personal and any media personal that might have covered the counting. Furthermore, the Respondents do not take issue with a pleading of the tally sheet at paragraph 13 in the form of a table. This clearly shows unexplained entries or blank spaces where certain figures should have been entered, or wrong figures have been entered which in itself, casts some doubt on the accuracy of the counting of the votes, accounting for them and the eventual declaration of the result of the election. In the circumstances, I find the objection here is again a highly technical and unnecessary objection raised to defeat the obvious errors or omission or irregularities clearly pleaded part of which they do not seriously contest. Accordingly I find this objection to be without merit and dismiss the objection.
    

Second Issue: Insufficiency of Facts Pleaded

49. The only remaining objection for this Court to turn to is in relation to the allegation of illegal polling or voting in Ibirai Village in Part B.1 of the petition. The Respondents claim that, this part of the allegation is incompetent because the pleadings fail to give the precise location at which the illegal polling or voting took place. To support their arguments, the Respondents point out that in other petitions it has been normal to give such details. Having regard to what I have said about the practice built around s. 208 of the Organic Law, I find this is again a highly technical argument that has no strictly speaking foundation in s. 208. That provision, as I said before, only requires a petitioner to state the facts relied on. I find in this case, Mr. Kamma stated the facts of an illegal polling or voting taking place in Ibirai Village during the night of 9 July 2007 and names the individuals involved as well as the number of ballot papers and votes involved. Mr. Kamma has done what is required of him as the petitioner. The Respondents have gone into a nit-picking exercise, thereby failing to appreciate the import of earlier judgments on point such as the decision in the case of Jim Nomane v. David Anggo (supra).
    
50. In the case just cited, Gavara-Nanu J said:
    

"In this regard, I am of the opinion that in some cases, the Courts have given unnecessary technical meaning to the word ‘facts’ in s.208(a) and have as the result held that to set out or plead ‘facts’, as required in that section, the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents.

In my opinion, such particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded.

...

But in allegations such as double voting or tampering of ballot boxes, it may not be necessary and it would indeed be impossible to plead the actual dates when the alleged incidents happened, how they happened and the names of the persons who committed them. For instance, alleged double voting may only be evidenced by the double entries in electoral rolls or a ballot box may be discovered to have been opened or tampered with upon it being returned to the Returning Officer, in which case, no-one would know when the ballot box was tampered with and by whom.

Similar considerations may apply in cases of errors and omissions committed by the electoral officials. For instance, in cases where a large number of people are allowed to vote by the electoral officials without being identified as eligible voters in the particular electorate. This may happen as the result of threats of violence by the members of the public to the electoral officials or the electoral officials simply allowing people to vote without taking proper measures to identify them as eligible voters for the electorate, and so on."

51. In expressing those views, His Honour had regard to the judgment of the then Deputy Chief Justice, now Chief Justice in Holloway v. Ivarato (supra), where at page 101 where His Honour said amongst others that:
    

"It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts.

.....

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."

50. Having regard to what these cases say and what I have noted in relation to the objection taken, I find that there is no merit in this objection. Accordingly, I also dismiss this objection.

Outcome

51. I have effectively dismissed all of the objections argued before me and I have granted leave to Mr. Kamma to withdraw or abandon paragraph 10 of Part B.1 (b) resulting in no objection standing. I therefore order that the petition proceed to trial on the pleadings as they are with the omission of paragraph 10 of Part B.1 (b) of the petition. Further, I order that the Respondents pay Mr. Kamma’s costs, which cost shall be agreed within 14 days from today if not taxed.
    

_______________________________

Steeles Lawyers: Lawyers for the Petitioner.
Nonggorr & Associates Lawyers: Lawyers for the First and Second Respondents.
JB Nanei & Co Lawyers: Lawyers for the Third Respondent.

^[1] [1982] PNGLR 342.
^[2] [1988] PNGLR 99.
^[3] (2004) SC769.
^[4] (2004) SC 763.
^[5] [1990] PNGLR 120.
^[6] (2003) N2351.
^[7] (2003) N2496.
^[8] (2003) N2344.
^[9] (2003) 2318.
^[10] See Samson Dacany v. Noah Taia of The National Fisheries Authority (2002) N2316, in the context of amending a notice of appeal from the District to the National Court, which applies with the necessary modification here.