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Oibotee v Allen [2013] PGNC 325; N5155 (8 April 2013)

N5155

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 79 OF 2012

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

AND

IN THE MATTER OF THE DISPUTED RETURNS FOR THE UNGGAI BENA OPEN ELECTORATE

BETWEEN

APASO WINCH L OIBOTEE
Petitioner

AND

BENNY ALLEN
First Respondent

AND

DEMO IMARA, (Returning Officer, Unggai Bena Open Electorate)
Second Respondent

AND

ALWYN JIMMY (Provincial Election Manager)
Third Respondent

AND

ANDREW TRAWEN, Electoral Commissioner of Papua New Guinea
Fourth Respondent

Goroka: Davani, J
2013: 3rd, 8th, April

ELECTION PETITION — Objection to Competency — failure to plead date of return of the writ — Organic Law on National and Local Level Government Elections (Organic Law) s208 — failure to state full particulars of address of attesting witness to the petition — failure to state particulars of occupation of attesting witness, use of "self-employed" disapproved — reliance on affidavits to correct pleading deficiency disapproved — Organic Law s215(1) — bribery allegation – failure to identify persons involved — failure to plead knowledge and consent of the successful candidate — s215 (3) failure to plead results of election likely to be affected —illegal practices — failure to plead which law was breached — failure to plead results of election would be affected — s282(A) & s283―grounds pleaded requiring enquiry into how voters cast their votes struck out —failure to plead absolute majority and winning margin ballot numbers — court unable to determine if sufficient ballots involved in allegations in petition to affect the result of the election.

Facts

The petitioner was runner-up to the first respondent in the National Election in 2012. He sought to void the election of the first respondent on grounds of bribery, illegal practices, and errors and omissions by officials. Objections to the competency of the petition were filed by the respondents on similar grounds. The grounds being, failure to plead with sufficient particularity to enable the first respondent to prepare his case, not disclosing the occupation of an attesting witness and not disclosing an adequate address for an attesting witness to the petition, not pleading the actual date of declaration of the result of the election, failing to provide figures from which the winning margin could be calculated, failing to plead that the allegations of bribery were committed with the knowledge and approval of the first respondent and failing to plead that the results of the election was likely to be affected.

Held

1. A petitioner cannot rely on affidavits to correct pleading deficiency in the petition, [26];
   
2. Evidence should not be relied on in an Objection to Competency application because the enquiry is into the form of the Petition and not the merits, [28];
   
3. The physical address of a witness to a petition should be stated together with the postal address. Failure to provide sufficient particulars of address can be fatal to the petition [41];
   
4. The nature of the employment of an attesting witness to a petition should be stated accurately. The description, "self-employed" should not be used, [42];
   
5. The Post Office box number of an attesting witness to a Petition, without the name of the Post Office or the town or city in which it is located, is insufficient for the purposes of s208(d) of the Organic Law, [46 – 51];
   
6. The allegations of bribery in the petition must properly identify the persons involved. It must also plead that the actions taken were taken with the knowledge of the first respondent. The Petition must also plead that the results of the election were likely to be affected, [63 – 79];
   
7. Grounds pleaded in a petition which can only be proven by the court enquiring into how voters cast their vote will be struck out as that would be a breach of s282A of the Organic Law, [68 – 69];
   
8. The grounds of illegal practices pleaded in paragraphs B24 to B54 of the Petition are deficient in material facts, vague and ambiguous and in breach of 215 (1) of the Organic Law, do not plead that the acts were done with the knowledge of the first respondent nor that the results of the election were likely to be affected, and will be struck out, [118];
   
9. The allegation of illegal practices in paragraphs 55 to 65 of the petition do not plead the relevant provisions of the Organic Law that were breached or that as result of these alleged breaches, the election result would have been affected. [136 – 147];
   
10. If the Petitioner relies on a statutory or constitutional law in his allegations and that there has been a breach of that duty by an electoral official, then that provision must be pleaded together with the alleged facts. [136 – 147];
    
11. The total number of valid ballot papers remaining after the final exclusion, the absolute majority (50% +1) and the total number of votes that the winning candidate received above the absolute majority, are material facts to be pleaded before the court can determine whether the allegations in the petition in respect of illegal practices involved sufficient votes to affect the result of the election, [159 – 163];
    
12. The date on which the writ was returned is an important element which forms the threshold existence of the petition and failing to plead it is a gross error. The whole petition will be dismissed on that basis alone, [171 – 172].
    

Cited cases

Re Moresby Northwest Parliamentary Election; Gavara Rea v. Mahuru Rarua [1977] PNGLR 33
Delba Biri vs. Bill Ninkama [1982] PNGLR 342 at 345
Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28
Anthony Siaguru v. David Unagi [1987] PNGLR 372
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Michael Badui v. Bart Philemon [1992] PNGLR 451
Vagi Mae v. Jack Genia (1992) N1105
Michael Badui v. Bart Philemon & Ors [1992] PNGLR 451
Albert Karo v. Lady Kidu [1992] PNGLR 451
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Joel Paua v. Robert Ngale [1992] PNGLR 563
Greg Mongi v. Bernard Vogae & Anor (1997) N1635
Malcolm Kela Smith v. Peti Lafanama & Ors [1997] PNGLR 151;
Komane Asano Wasege v. Mathias Karani [1998] PNGLR 132 PGNC 220;
Bourne v. Voeto [1977] PNGLR 298
Charles Luta Miru v. David Basua and Others (1997) N1628
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 (N1626)
Barry Holloway v. Aita Ivarato and Electoral Commission [1998] PNGLR 99
Dick Mune v. Anderson Agiru & ors (1998) SC 590
Palme v. Mel [1998] PNGLR 808
Dick Mune v. Anderson Agiru & Ors (1998) SC 590
Arnold Marsipal v. Michael Pondros [1977] PNGLR 354;
Louis Ambane v. Electoral Commission & Ors (1988) SC 559
Empraim Apelis v. Sir Julius Chan (1998) SC 573
Stanley Harry Gotaha v. Peti Lafanama & Ors (Unreported National Court Judgment) dated 17th December, 1999,
Baki Reipa v. Yuntivi Bao [1999] PNGLR 232
Moses Murray v. Sir Michael Somare & Others EP 36/2002
Francis Ali v. Frank Oru & Others (EP 37/02)
Ludger Mond v. Jeffery Nape (2003) N2318
Mathias Karani v.Yawa Silupa and the Electoral Commission (2003) N2385
Francis Koimanrea v. Alois Sumunda (2003) N2421
Robert Kopaol v. Philemon Embel (2003) SC 727
Ginson Saonu v. Bob Dadae (2004) SC 763
Beseoh v. Bao (2003) N2348
Pogo v. Zurenouc (2003) N2351
Francis Koimanrea v. Alois Sumunda (2003) N2421
Steven Pirika Kamma v. John Itanu, Andrew Trawen & Michael Laimo (2007) N3246
Labi Amaiu v. Andrew Mald (2008) N 3334
Kopoal v. Embel (2008) N3319
Alfred Manase v. Don Polye and the Electoral Commission (2008) N3534
Simon Sanagke v. William Duma & Ors (November 2012) EP 10 & 11 of 2012
Sali Subam v. Aide Ganasi & Electoral Commission, EP No. 59 of 2012 dated 11th December, 2012
Kikala v. Electoral Commission of Papua New Guinea (2013) N4960

Counsel

Mr P. Punau, for the Petitioner
Mr P. Mawa, for the first Respondent
Ms. C. Lari, for the second, third and fourth Respondents

DECISION
(Objection to Competency)

8th April, 2013

1. DAVANI, J.: The hearing of the Election Petition in this matter commenced with submissions by counsel on the Objection to Competency filed by Paul Mawa Lawyers and Niugini Legal Practice for First Respondent and Second, Third and Fourth Respondents, respectively.
   
2. The Objection to Competency moved by Mawa Lawyers is that filed on 28th March, 2013 and titled "Further Amended Notice of Objection to Competency" ('Objection to Competency'). This was filed upon my directions issued on 25th March, 2013 at the Status Conference of the matter, after I had given leave to the First Respondent's newly appointed lawyer, Mr Mawa, to amend the Objection to Competency filed by Twivey Lawyers on 26th September, 2012.
   
3. The other Objection to Competency is that filed by Niugini Legal Practice on 2nd November, 2012.('Objection to Competency')
   
4. The Objection to Competency moved by Mawa Lawyers is supported by the Second, Third and Fourth Respondents who also made submissions on their filed Objection to Competency. It should be noted that my reference to submissions by Mr Mawa will also include submissions by Niugini Legal Practice because they all raised very nearly the same submissions, only that Mr Mawa's was lengthier than Ms. Lari's.
   
5. The Petitioner opposes the objections.
   

Background

6. The Petition in this matter was settled and filed by Stevens Lawyers on 5th September, 2012 for and on behalf of the Petitioner.
   
7. The First Respondent, Honourable Benny Allen, member of Parliament and Minister for Lands and Physical Planning, is the declared Member of Parliament. However, the Petitioner did not plead the date of Declaration in the Petition. This is a ground that goes to the competency of the Petition, raised by Mr Mawa for the First Respondent and which I discuss later below.
   
8. The Petitioner and the First Respondent were both candidates for the Unggai Bena Open Electorate (the 'Electorate') in the 2012 National General Elections (the "Elections"), amongst 29 other candidates who contested for the Electorate. At the declaration of the results, the First Respondent polled 15, 139 votes to win the Election. That is also a ground that goes to the competency of the Petition which I will discuss later below.
   
9. The Petitioner was the runner up by polling 8,609 votes. The difference or margin of votes between the Petitioner and the First Respondent as pleaded in the Petition was 6,503 votes. The winning margin is not pleaded in the Petition. That is also a ground that goes to the competency of the Petition which I will discuss later below.
   
10. The grounds pleaded in the Petition are;
    

i. Bribery

ii. Illegal Practices

iii. Errors and omissions

11. The Objections to Competency filed by both Niugini Legal Practice and Mawa Lawyers, seeks to dismiss the whole of the Petition on the basis that the Petition now before the Court does not comply with mandatory requirements under s. 208 (a),(d) and (e) of the Organic Law on National and Local-Level Government Elections ("Organic Law").
    
12. Section 208 of the Organic Law reads:
    

"208. Requisites of a 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 or by a person who was qualified 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 or the result of the election in accordance with section 175 (1) (a)."

Objection to Competency of Petition

13. Mr Mawa succinctly states the issues or grounds on which the propriety of the Petition, is challenged. These are:
    

i. that the Petition does not comply with the mandatory constitutional requirement of Section 208 (a) of the Organic Law in that the facts relied upon by the Petitioner are not set out with sufficient particularity to enable the first Respondent to prepare his case and for the Court to see with clarity the issues involved.

ii. That the Petition fails to comply with s. 208 (d) of the Organic Law in that the occupation of one attesting witness is not disclosed and further that the address for one of the attesting witnesses is insufficient for the purposes of locating and identifying the attesting witness.

iii. That the Petition fails to comply with the mandatory constitutional requirement of s. 208 (e) of the Organic Law in that it is possible that the Petition may not have been filed within 40 days after the date of declaration because the actual date of declaration of the result of the Election is not pleaded in the body of the Petition to enable the Court and the Respondents to be able to determine, on the face of the Petition, if the Petition was actually filed within the mandatory 40 days period.

14. The other relevant provisions of the Organic Law are ss. 209 and 210. Section 209 provides:
    

"209. Deposit as Security for Cost.

At the time of filing the Petition, the Petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 as security for costs."

15. Section 210 of the Organic Law reads:
    

"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."

The Law on ss. 208 and 209 of the Organic Law

16. The law on s. 208 of the Organic Law is well settled in our jurisdiction. The mandatory constitutional requirements of ss. 208 and 209 of the Organic Law was affirmed by the Supreme Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342 at 345 where in its unanimous decision, the Supreme Court said:
    

"In our view, it is clear that all requirements in Sections 208 and 290 must be complied 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 Section 208 and Section 209 are complied with.

In our opinion, it is beyond argument that if a Petition does not comply with all or any 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, of the Organic Law".

17. In the same Supreme Court case, the Court described the rationale behind the mandatory nature of s. 208 (at pg. 345) as follows:
    

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with Section 208. It is not difficult to see why. An election petition is not an ordinary cause 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 legislator has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

18. The Supreme Court re-emphasized that if a Petition does not comply with all or any of the mandatory constitutional requirements of s. 208 of the Organic Law, then there can be no proceedings on the petition because of s. 210 of the Organic Law (pg. 345 of Delba Biri v. Bill Ninkama (supra)).
    
19. This was followed in Raymond Agonia v. Albert Karo [1992] PNGLR 463; Michael Badui v. Bart Philemon [1992] PNGLR 451; Anthony Siaguru v. David Unagi [1987] PNGLR 372; Vagi Mae v. Jack Genia (1992) N1105; and Joel Paua v. Robert Ngale [1992] PNGLR 563.
    
20. Again, Kapi DCJ, Los J. and Hinchliff J. in Barry Holloway v. Aita Ivarato and Electoral Commission [1998] PNGLR 99 said:
    

"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 return may be invalidated... 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."

21. A petition must state the ground relied upon such as bribery, undue influence, etc. In addition, it must state the material facts relied on in summary- Siaguru v. Unagi & Electoral Commission (supra). (my emphasis)
    
22. A passage from Biri v. Ninkama (supra), at pg. 345 sums up why that should be the case. It reads:
    

"[the Organic Law] 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 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 the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the Petition because of Section 210."

23. Of course there are cases where both the Supreme Court and National Court have commented on the fact that arguments raised by lawyers in relation to forms and the general compliance with requirements of a Petition should never be allowed or entertained and which have effectively defeated the intention of legislature. (See Ginson Saonu v. Bob Dadae (2004) SC 763). The Courts have also held that it should 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 or evidence or not. (Saonu v. Dadae (supra)); Steven Pirika Kamma v. John Itanu, Andrew Trawen & Michael Laimo (2007) N3246).
    
24. However, notwithstanding those views, these cases can be distinguished with others where the Supreme Court has said that the National Court is not an open forum for aggrieved persons to air their grievances in the hope that the election results may be overturned (per Injia .J as he then was in Dick Mune v. Anderson Agiru & ors. (1998) SC 590).
    
25. In Agonia v. Karo (supra) at 466, Sheehan .J said that an Election Petition is not a general enquiry into the election process to see if offences or omissions have occurred. He emphasized that the Court of Disputed Returns will only hear and determine those petitions which challenge an election by definite, specific charges and if proved, will result in an election being set aside.
    

Affidavit Evidence in Objections to Competency of Petition hearings

26. Although not pursued or raised by the Petitioner's lawyer, I agree with Mr Mawa that in an Objection to Competency hearing a Petitioner cannot rely on affidavits to "fill up the gaps" or to correct the wrong, or pleading deficiency in the Petition.
    
27. Additionally, arguments on the competency of a Petition are usually very technical in nature, focusing very much on the lack of compliance by the Petitioner, with the requirements of s. 208 of the Organic Law. To rely on affidavits would be to rely on untested evidence, which in many cases may not be accurate.
    
28. Therefore, no evidence should be relied on in Objection to Competency applications because ss. 208 and 210 of the Organic Law is an enquiry into the form of Petition only and not the merits of the Petition. (Dick Mune v. Anderson Agiru & Ors. (supra)). The use of affidavits in Objection to Competency hearings, should be discouraged by the Courts or not allowed at all.
    

Grounds in Petition that are challenged

29. There are 65 grounds pleaded in the Petition. These grounds are under several parts which are:
    

Part A - Bribery by the first Respondent

Part B - Assaults, threats and intimidation

Part C - Tampering of ballot papers

Part D- Bribery, threats and intimidation, errors and omissions affected the result of the election

30. The reliefs sought by the Petitioner in the Petition are:
    

a. that the declaration of the first Respondent as the duly elected member be declared void.

b. that the Court order a by-election.

c. costs and other orders.

31. Paragraphs 1(a) and (b) of the Petition, read that the Petitioner and the First Respondent were both candidates for the Unggai Bena Open Electorate in the 2012 National General Elections. The First Respondent polled 15,139 votes and won the election. The Petitioner was runner up, polling 8,609 votes. The winning margin between the First Respondent and the Petitioner was 6,503 votes, as pleaded in par. 1(b) of the Petition.
    

First Objection – Occupation and address of witness

32. Mr Mawa submits that the Petition should be dismissed because the Petitioner failed to properly describe the occupation of his attesting witness. This is pleaded in par. 1 of Mawa Lawyers' Notice of Objection. Mr Mawa submits that the description given for attesting witness Joshua Unua of "self-employed" as his occupation is a general description and falls short of describing the work he does or how he earns his living. He submits that this is insufficient for the purposes of s. 208 (d) of the Organic Law.
    
33. Secondly, he submits that attesting witnesses Roger Amos only states as his address "PO Box 546". He does not state the post office where "P.O. Box 546" is located.
    
34. The Organic Law states what should be in the Attestation form. Section 208 (d) states that the Petition shall be attested by two witnesses who must state their "occupations and addresses". Mr Punau for the Petitioner submits that the description provided by witness Joshua as "self-employed" is sufficient because such a finding was made in the case Sali Subam v. Aide Ganasi & Electoral Commission EP No. 59 of 2012 dated 11th December, 2012. In that decision, the Respondent took issue with the occupation and residential address of the first attesting witness Walepa Korukoru. There on the Attestation form, the witness had written in "self-employed" as his occupation. The Respondent in that case submitted that this was defective and incomplete and erroneous in that no such occupation existed nor was it prescribed in the PNG Labour Department's Guidelines to Classification of Employment as a form of employment. However, the trial Judge held:
    

"I must say that this argument must fail because I am of the view that when a person listed himself or herself "self-employed", it means he or she is involved in private business or is a business man or business woman. To me this is sufficient". (Pg. 17 of decision no. 1).

35. On perusing the trial Judge's published reasons on the objection to competency, I see that, with respect, there is no basis for such a finding. The trial Judge does not say why a "self-employed" person would be involved or engaged in private business or is a business man or business woman. Apart from there being no basis for such a finding, the trial Judge's conclusion appear to be based on his own experiences.
    
36. In my view, when such an objection is raised, the Court must ask itself why there is such a requirement. The Court should ask itself why attestation witnesses are required and why their villages, districts, occupations, addresses and signatures must be stated on the Attestation form.
    
37. As Injia .J (as he then was) said in Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 adopting Sheehan J's finding in Raymond Agonia v. Albert Karo [1992] PNGLR 463;
    

"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the sub-section of that attesting witness should state his normal residential address. The adequacy of the address, however, might well be determined by witness' personal circumstances, but it should be the best succinct description available. In a large city, it may require street address or even their section, lot number or suburb. In the case of a villager, simply his village."

38. To add to that, I find also that the witnesses who sign an Attestation form are effectively saying that the Petitioner is seriously aggrieved by the results of the election and that the facts stated or pleaded in the Petition are true and correct, based on their knowledge. They may be required to give evidence on the veracity of the statements or allegations made by the Petitioner. In my view, their responsibility to the success or not of the Petition is onerous and must be taken seriously. This means that they are to ensure their availability is not in doubt and this is where their addresses stated in the Petition is of importance and relevance.
    
39. This is analogous to a guarantor's certificate issued in criminal proceedings to persons who act as guarantors to guarantee the appearance of accused persons in Court. At least two guarantors are required to sign a Guarantee. It is a requirement under the Criminal Practice Rules for the guarantors to state their full names and physical addresses and occupations which information will assist the Court in locating the guarantors in the event the accused absconds bail.
    
40. In fact, after grant of bail, the responsibility upon the trial Judge in a criminal case is such that guarantors are required to appear before the Judge who then explains the responsibilities of a guarantor to them after which they then, together with the Judge's Associate or the Court Clerk, state their addresses and occupation, and they sign the Guarantee, witnessed by the Court Clerk.
    
41. In an Election petition, such should be the case. When a witness attests a Petition, he is saying that he is available to be called on short notice, which means that the address he supplies is accurate. In fact a requirement in my view should be that the witnesses' physical address should be stated together with the postal address. Not all attesting witnesses are resident in villages. If resident in town, then the allotment and section number of the property on which they reside should be stated. If they are resident in a settlement on the outskirts of town, then the settlement should be stated therein together with any other particulars that would enhance his location, if required.
    
42. Therefore, I do not agree with the learned trial Judge in Sali Subam v. Aide Ganasi & Electoral Commission (supra) where he states that when a person lists himself as self employed, he or she is involved or engaged in private business or is a business man or businesswoman. Being self- employed can mean anything. It could also mean that the witness is unemployed but states he is self-employed because he or she could be a street vendor selling betel nuts or store goods. I find the description "self-employed" can be misleading and should not be used to describe a person's form of employment. A person is either employed or unemployed.
    
43. At law, an attestation is "the signature of witnesses to the making of a will or a deed". (Oxford Dictionary of Law 7th Edition (2009)).
    
44. The Australian Concise Oxford Dictionary (2004), defines "attest" as to "certify the validity of" or "the evidence of" or "bear witness to".
    
45. So basically, the two witnesses who attest a Petition are effectively witnessing the signing of the Petition by the Petitioner and must be able to be called upon at short notice, hence the need for the accuracy of their addresses and form of employment.
    
46. The address for the witness Roger Amos being PO Box 546, without providing the name of the town or city in which the Post Office is located is insufficient for the purposes of S. 208 (d) of the Organic Law. See Delba Biri v. Ninkama [1982] PNGLR 342, Michael Badui v. Bart Philemon & Ors [1992] PNGLR 451, Malcolm Kela Smith v. Peti Lafanama & Ors [1997] PNGLR 151 and Stanley Harry Gotaha v. Peti Lafaname & Ors (Unreported National Court Judgment) dated 17th December, 1999, per Kirriwom J, Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Kidu [1992] PNGLR 451. In those cases, the Petitions were dismissed for failing to disclose the name or the place where the Post Office Box is situated.
    
47. In the case Malcolm Kela Smith v. Peti Lafanama [1997] PNGLR 151, the Respondents applied to dismiss the Petition for non-compliance with s. 208(d) of the Organic Law, because the attesting witnesses did not provide their full addresses.
    
48. The Respondents argued that the address given in the Petition was not the complete address which would enable the two attesting witnesses to be easily located and identified. Counsel for the Petitioner admitted that the names of the Post Office were Box 996 and 662 were situated were not provided because they were typographical errors. His Honour Justice Injia (as he then was) said:
    

"The Petition should be dismissed for failing to comply with the address requirement in section 208(d). The name of the post office where those box numbers are situated is not provided no residential address is provided. The work place address where the two witness work as a mechanic and administration clerk respectively are not provided. In my view the addresses provided in the Petition on their own are totally inadequate to identify and locate the witnesses. Further, the combined effect of the name, occupation and postal address stated in the Petition serves no useful purpose to this Court and the parties to the Petition. The address requirement in section 208(d) must be complied with on the face of the Petition. An error or defect on the face of the Petition which amounts to a failure to comply with section 208 cannot be rectified from assertions by Counsels or parties from the bar table. I cannot properly infer the post office intended was Goroka and no others." (my emphasis)

49. In the present case, attesting witnesses Roger Amos only stated his post office box number. He did not say where the post office was situated. I agree with his Honour Injia .J that the Court should not infer and assume where the post office is situated.
    
50. I find that the address supplied is incomplete because the witness Roger Amos does not state where "Box 546" is located. It is not for the Court to guess and make assumptions. This must be appreciated by all persons signing the attestation.
    
51. The Petitioner has therefore failed to comply with the requirement of s. 208 (d) of the Organic Law and the Petition can be dismissed on the basis alone.
    

Second Objection - Bribery by the first Respondent

52. Mawa Lawyers plead in the Objection to Competency that part A of the Petition offends s. 208 (a) of the Organic Law. Part A of the Petition alleges bribery by the First Respondent and consists of paragraphs 1 to 23. Paragraphs A 1, 2, 3, 4, 5, 6 and 7 allege bribery by the First Respondent at Kama village. Paragraphs A 8, 9, 10, 11, 12, 13 and 14 allege bribery by the First Respondent at Ward 3, Unggai Bena.
    
53. Paragraphs 17 to 20 allege bribery by the first Respondent at Goroka Town and Seigu on 9th July, 2012.
    
54. Paragraphs 21, 22, and 23 of the Petition allege bribery by the first Respondent at Sigoiya village.
    
55. These allegations are all in relation to errors and omissions and/or illegal practices by Electoral Officials and the First Respondent.
    
56. The Petitioner does not plead the section in the Organic Law that is allegedly breached. The Criminal Code, more particularly s. 103 is the provision on bribery. Section 103 (a) reads:
    

"103. Bribery

A person who –

(a) gives, confers or procures, or promises or offers to give or confer, or to procure, to, on, or for any person any property or benefit of any kind-

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting of joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

...

is guilty of a misdemeanor.

Penalty: a fine not exceeding K400.00 or imprisonment for a term not exceeding one year."

57. Where bribery is proven against the First Respondent, s. 215 (1) of the Organic Law provides that his election shall be declared void. It reads:
    

"215. Voiding election for illegal practices.

(1) 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."

58. The election is declared void because the winning candidate has committed a criminal offence.
    
59. To prove the ground of bribery, a petitioner must specifically plead facts to establish the elements of that offence. In Agonia v. Karo (supra), Justice Sheehan discusses what should be contained in a Petition that alleges bribery. He said:
    

"In my view, the standard is not that demanding. Although the grounds in a petition charge a criminal offence, I do not believe it is necessary that a ground needs to be set out as if it were an indictment-desirable as that might be. The Court of Disputed Returns does not have the same focus as a criminal court. It is looking to the validity of an election and not whether a respondent is liable to a criminal penalty. There is also a difference of approach. The Criminal Court operates under strict rules of evidence, while by s. 216 of the Organic Law this Court looks to the substantial merits of the petition without strict regard to rules of evidence.

Notwithstanding those differences, because' an election petition is a very serious thing,' because of the serious charges and consequences that petitioners 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, places, there must be allegation that this money, that property, or that 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".
(my emphasis)

60. In the case of Komane Asano Wasege v. Mathias Karani (EP 23 of 1997) N1696. Sawong .J said:
    

"It is well recognized that petitioning on a ground of bribery or attempted bribery is in fact a charge that the election should be overturned because a criminal offence has been committed. And it only requires one offence of bribery to invalidate an election. Therefore as the offence of bribery in an election situation is in effect the criminal offence then any such allegation 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."

61. Sheehan. J in Agonia v. Karo (supra) said:
    

"1. A charge of bribery is a serious allegation challenging the electoral process, therefore, the base facts constituting the crime of bribery must be pleaded with clarity and definition.

2. The standard of proof required in an election petition to establish a ground of bribery is the same as in a criminal court and must be proved as it is constituted in the criminal code". (Restating Bourne v. Voeto [1977] PNGLR 298 at pg. 302).

62. Furthermore, in Mathias Karani (supra), Sawong J said:
    

"The law in respect of an allegation of bribery or undue influence in an election petition for the purpose of section 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 [1997] PNGLR, Palme v. Mel [1998] 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) 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 petition 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 reasons." (my emphasis)

Analysis of Petition where Bribery is alleged

63. On perusing the Petition now before this Court, my view is that paragraphs 1 to 23 of the Petition is a narrative of events that supposedly occurred on 7th July, 2012, 8th July, 2012, 9th July, 2012, and 28th July, 2012. Clearly, that is not a pleading setting out all the essential elements of bribery.
    
64. Firstly, the Petition does not state who Jonah Lubuwe is. It does not state whether he is an elector or that when Mr Lubuwe gave K1,000.00 to Michael Smith Lienama, that he did so with the first Respondent's knowledge and authority.
    
65. As for the white Isuzu truck which, according to the Petition, belongs to Unggai Bena District, although it was used to transport supporters during polling as alleged, the Petition, more particularly paragraphs 6 and 7 does not say who those supporters are and which candidate they supported. It is not for the Court to embark upon a trial without first knowing that information.
    
66. As for the events that allegedly occurred on 8th July, 2012, pleaded in paragraphs 9, 10, 11, 12, 13, and 14, the Petitioner alleges that the first Respondent gave K1,000.00 cash and 2 cartons of meat with K500.00 and that this was given to Mr Damson Lafana's clansmen and supporters which then resulted in them giving the votes to the first Respondent. These paragraphs do not plead that the results of the elections 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, because of what the First Respondent allegedly did.
    
67. Although the Petition states that the voters did not freely cast their votes (par. 16) and were enticed or bribed to do so (par. 16), that these voters were electors, that they voted, and that as a result, the results of the Elections were affected, is not pleaded. Also, the Petition or those paragraphs do not plead that the clansman did so with the First Respondent's knowledge and authority.
    
68. Again, in relation to paragraphs A 8, 9, 10, 11,12, 13 and 14, the grounds are very general, speculative and hypothetical. This is because:
    
    • - Although it is pleaded that the Petitioner's stronghold is ward 3, the Petition does not say how that is so;
      
    • - However to determine that, and to find out the identity of voters and how they voted, this would then be against or would contravene section 282 A of the Organic Law which is the provision on "votes to be marked in private". This is the right given to the voter to vote alone in an unoccupied booth.
      
69. In fact the grounds pleaded in paragraphs A 15 and 16 seek that the Court enquire into how the voters cast their votes, a breach of Section 282A of the Organic Law.
    
70. Those grounds will all be struck out for lacking the necessary basis on which to mount a trial and to allow for the calling of evidence.
    
71. In relation to allegations of bribery by the first Respondent at Goroka town and Seigu, pleaded in paragraphs 17 to 20 of the Petition, the allegations do not state that Tupi James acted with the first Respondent's knowledge and authority when he met the first Respondent's supporters.
    
72. It is also not alleged that Rod Ahave when calling out the names at Seigu, did so with the first Respondent's knowledge and authority.
    
73. As to the allegation that Tupi James rounded up 380 people from Upeigu Village Court polling station and for them to cast all their votes for the first Respondent, this is in fact hypothetical because it is not alleged therein that the 380 people did so with the first Respondent's knowledge and authority. Also, the pleading does not say who those 380 people are and whether they are eligible voters. It is not proper for Petitioners' counsel to state in the Petition that 380 people were involved and then not state who they were. That means that at trial, the Petitioner can bring any 380 people to give evidence. It places the first Respondent in a very disadvantaged position.
    
74. Also, in relation to paragraph 21, allegations that certain acts of bribery occurred on 28th June, 2012, Ocosie Mafasa does not say that Eliza Upae and Aketae Allen gave out the coffee pulping machines with the knowledge and authority of the first Respondent and that this was done to affect the results of the elections and that the comments they uttered were done with the First Respondent's knowledge and authority.
    
75. The general presumption is that the election process was properly and legitimately conducted and that electors freely exercised their right to vote. Where allegations of bribery by the winning candidate is raised by a Petitioner, a very serious matter indeed, where popular choice of the people is challenged, then this calls for clear, and properly detailed statements supporting the allegations. (Delba Biri v. Bill Ninkama) (supra)).
    
76. No doubt, the Petitioner has pleaded in a vague and piece-meal manner, the allegations of bribery. It is all very well setting out words alleged to have been uttered by persons present at the scene, however if the essential elements are not pleaded, as with an allegation of bribery which is akin to a criminal offence, then the Court should not waste its time trying to work out for itself the precise relevant or material facts which may be buried in a load of evidence in a Petition. (Karo v. Kidu [1997] PNGLR 28 where Injia .J affirmed the rules enunciated in Holloway v. Ivarato (supra) pg. 44).
    
77. I reiterate that the allegations in the affected paragraphs in the Petition do not provide particulars of the first Respondent's actual or constructive knowledge and consent and or authority to the people named as having delivered goods and services on his behalf.
    
78. It is also necessary at this time to refer to submissions by Mr Punau for the Petitioner. Mr Punau does not address the fact that the elements set out in s. 103 of the Criminal Code must be specifically pleaded. In fact, his submissions are more on the evidence as to what occurred or is alleged to have occurred and his assumptions as to what could have occured. However, those submissions should not be accepted if the essential elements are not pleaded in the Petition. For example, Mr Punau submits these:
    

"d) Alleged Bribery by the first Respondent at Sigoya Village

2.8 As to the objection on the alleged bribery at Sigoya Village, we say that the first Respondent may not have any knowledge or authorize Eliza Yupae and Aketae Allen to take the coffee pulping machine to Sigoya village.

It is only proper that the first Respondent is aware of his biological brother, Aketae Allen, whereabouts or movements as the first Respondent was defending his seat, that, naturally, his family members will have to assist with his campaign and we say they did do that by the actions of Aketae Allen when he went to Sigoya Village to deliver the coffee pulping machine.

Along the same note, the first Respondent's vehicle was used to transport the Coffee Pulping machine to Sigoya Village. We say, the first Respondent was aware of this move taken by his brother and because he was involved in the buying of the said machine, his vehicle was used to transport the said machines to Sigoya village.

Common sense would have it that being his campaign; any member of his campaign team who want to do anything will have to communicate with the first Respondent so that he is kept abreast with their movements and activities so applying that to the current. We say the transporting of the Coffee Pulping Machine to Sigoya was with the first Respondent's knowledge and this is cemented with the presence of the brother, Aketae Allen and what was said at paragraph 21 of the Petition.

As to the names of the Yotoi village, one of the Petitioner's witnesses, one Osie Mafasa was present at the time the coffee pulping machine was presented on the 29th June, 2012 and so he saw and heard what transpired that afternoon." (my emphasis).

79. The line of submissions raised by Mr Punau, parts of which I have emphasized to demonstrate what I mean, completely breaches good practice more particularly the aspect of making submissions based on counsels' assumptions and beliefs.
    
80. These paragraphs will all be struck out.
    

Third objection - Illegal Practices

81. Page 5 of the Petition bears a sub-heading "Part B Assault, Threats and Intimidation". In that part, the Petitioner pleads alleged illegal practices by the first Respondent and his servants and agents. These are pleaded at paragraphs B24 to B54 of the Petition. Alleged tampering of ballot boxes and ballot papers is pleaded at paragraphs B55 to B65 of the Petition.
    
82. Section 215(3) of the Organic Law provides for Illegal Practices (other than Bribery or Undue Influence).
    
83. Section 178 of the Organic Law sets out what are deemed to be Illegal Practices and that a person guilty of an Illegal Practice is liable to a penalty or a fine not exceeding K1,000.00 or imprisonment for a term not exceeding 6 months (Section 178 (3)).
    
84. Section 191 of the Organic Law provides that what is specified in column 1 of the "Table of Electoral Offences and Punishments" are electoral offences, punishable at the rates set out in Column 2 of that table. Section 215 of the Organic Law reads:
    

"215. Voiding Election for Illegal Practices

(1) 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.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(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 is just that the candidate should be declared not to be duly elected or that the election should be declared void."

85. In Mune v. Agiru (1998) SC 590, the Supreme Court said that Illegal Practices has a restricted meaning under the Organic Law and the Criminal Code and that it connotes electoral criminal offences of the kind found in s. 178 of the Organic Law and ss. 105 and 106 of the Criminal Code. It held that any conduct complained of and not found under any of these provisions cannot be illegal practices for the purposes of invalidating an election under s. 215 of the Organic Law.
    
86. I set out in full ss. 105 and 106 of the Criminal Code to amplify the meaning and effect of an electoral criminal offence:
    

"105. Illegal practices.

(1) A person who—

(a) being prohibited by law from voting at an election, and knowing that he is so prohibited—votes at the election; or

(b) procures any person who is, and whom he knows to be, prohibited from voting at an election—to vote at the election; or

(c) before or during an election, and for the purpose of, promoting or procuring the choice of any candidate at the election—knowingly publishes a false statement of the withdrawal of another candidate at the election; or

(d) before or during an election, and for the purpose of affecting the return of a candidate at the election—knowingly publishes a false statement of fact respecting the personal character or conduct of the candidate; or

(e) being a candidate at an election—withdraws from being a candidate in consideration of a payment or promise of payment; or

(f) being a candidate or the agent of a candidate at an election—corruptly procures any other person to withdraw from being a candidate at the election in consideration of any payment or promise of payment,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

(2) If an offence under Subsection (1) was committed with respect to a parliamentary election, the offender also becomes incapable, for two years from the date of the conviction—

(a) of being registered as an elector for the electorate for which the election with reference to which the offence was committed was held; and

(b) of voting at any election held for that electorate.

106. Other illegal practices.

(1) A person who—

(a) knowingly provides money for any payment that is contrary to any law relating to elections, or for replacing any money that has been expended in any such payment, and that is not allowed by law to be an exception; or

(b) prints, publishes or posts any bill, placard or poster that has reference to an election and does not bear on the face of it the name and address of the printer and publisher; or

(c) hires or uses for a committee-room at an election—

(i) any part of a house licensed for the sale of fermented or spirituous liquors; or

(ii) any part of any premises where any intoxicating liquor is sold or supplied to members of a club, society or association that is not a permanent political club, unless it is a part that—

(A) has a separate entrance; and

(B) has no direct communication with any part of the premises in which intoxicating liquor is sold; and

(C) is ordinarily let for the purpose of chambers or offices or for holding public meetings or arbitrations; or

(d) knowing that it is intended to be used as a committee-room at an election, lets for such use any part of any such premises, not being a part excepted under Paragraph (c)(ii)(A), (B) or (C),

is guilty of an offence.

Penalty: A fine not exceeding K200.00.

(2) If an offence under Subsection (1) was committed with respect to a parliamentary election, and the offender was a candidate or the agent of a candidate at the election, he also incurs the same incapacity as a person convicted of an offence against Section 105 committed with respect to a parliamentary election."

87. In Mathias Karani v.Yawa Silupa and the Electoral Commission (2003) N2385, His Honour Justice Sawong said:
    

"In so far as petition grounded on illegal practices 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 practices must plead material facts to show the following;

(a) the illegal practice;

(b) the illegal practice 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 practices;

(d) it would be just that the candidate should be declared not duly elected or the election be declared void."

88. Furthermore, in Ludger Mond v. Jeffery Nape & Ors. (2003), N2318, His Honour Kandakasi .J said at pages 15 to 16 of that judgment:
    

"It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election,the petitioner must plead that the conduct was likely to affect the result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s. 208(a) and form the foundation for evidence to be led for a relief under s. 215(3)(b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence." (my emphasis)

89. In Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28, Andrew J said:
    

"Section 215(3) (b) is confined to illegal practices other than bribery or undue influence or attempted bribery or undue influence committed by the duly elected candidate.

I think that s. 215(3) (b) should be read with s. 215(1). That is, that under s. 215 (1), a successful candidate who commits bribery or undue influence or attempts either will have his election declared void, but if he commits some other illegal practice, then by s. 215 (3) (b), the Court must apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare that the election is void." (my emphasis)

90. Injia J, (as the then was), took the point further in Greg Mongi v. Bernard Vogae & Anor (1997) N1635. There, he said:
    

"I agree with the submissions for the Respondents. Figures are material in demonstrating the likelihood of the result being affected on the fact of the petition. Also, it is necessary to plead how the errors or omissions on the part of election official are material as such that the result of the election was likely to be affected."
(my emphasis)'

91. As to pleading Illegal Practices, His Honour Justice Sakora in Francis Koimanrea v. Alois Sumunda (2003) N2421, said:
    

"to prove the s. 215(3) allegation(s), the Petitioner needs to plead as required and satisfy the court according to the required standard, the following;

(i) the illegal practice the subject of the complaint, and

(ii) the illegal practice other than bribery or undue influence committed by the successful candidate, or the illegal practice (including bribery and undue influence) committed by another person but with the knowledge and authority of the winning candidate, and

(iii) the result of the election is likely to be affected by the illegal practice, and

(iv) it would be just that the winning candidate be declared not to be duly elected or the election be declared void."

92. Similar sentiments were expressed by the Supreme Court in Amet v. Yama (supra), that when pleading allegations of Illegal Practices under s. 215 (3) (a), that the Petitioner needs to plead:
    

"(i) the inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number or votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.

(ii) It is just that the candidate should be declared not duly elected or that the election should be declared void."

93. In Robert Kopaol v. Philemon Embel (2003) SC 727 the Supreme Court re-emphasized the importance of and the manner of pleading in a Petition when pleading Illegal Practice and Bribery. It said:
    

"It is therefore essential that the pleading must show with some clarity and particularly that where the Respondent was relying on illegal acts or illegal practices by the winning candidate falling short of bribery or undue influence or attempted bribery or undue influence, such acts must be likely to affect the result of the election." (my emphasis)

94. The kind of "facts" that need to be pleaded alleging illegal practices under s. 215(3) of the Organic Law and errors and omissions under s. 218(1) of the Organic Law were clarified by Kandakasi .J in James Ekip Yoka (supra) at pg. 15 (par. 35). His Honour said:
    

"Then as to the kind of specifics that must be stated to meet the requirement to "set out the facts relied on" under s. 208 (a) I note that, they include facts which describe what happened or should have occurred but did not which form the foundation for a ground for a petition. Such specifics include the total number of votes casted, disputed and or secured by a winning candidate, the runner up and other candidates, names of people who are responsible for the matters complained of, when and where the events, be it errors, omissions or illegal practices have occurred and a description of the conduct, error, omission, or illegal practice complained of. Statement of facts in general terms without the relevant and necessary details of the kind just mentioned which would give a complete story would fail to meet the requirements of s. 208(a).

For it is not the role of the Court to draw possible conclusions or infer possible situations or speculate. This is the case because, unlike any other matter that goes to the National Court, election petitions falls in a special jurisdiction, in which each ground stated in a petition is a separate issue for trial."
(my emphasis)

95. His Honour Justice Kandakasi said further at paragraph 36 of that decision:
    

"Moreover, where a petition is grounded on alleged errors and omissions and or illegal practices, the statement of facts must apart from stating the facts revealing an error, omission, irregularity or illegal practice in terms of what I have stated above, including a statement that the winning candidate had knowledge and authorized the facts set out in a petition. The petition must also state how the matters complained of affected the election result and how it is just that the duly elected winner be declared not so elected."

96. It is clear from the above passages that when a Petitioner alleges Illegal Practices under s. 215 (3) (b) of the Organic Law, he must plead facts in the body of the Petition which demonstrate how the matters complained of are likely to affect the election results and how it is just that the duly elected winner be declared not so elected.
    

Analysis of pleading in the Petition alleging illegal Practices

97. Paragraphs B24 to B25, I find, are all evidence. None of the principles or elements that are required to be pleaded in allegations of Illegal Practices are pleaded therein. Mr Punau for the Petitioner in fact states this in his written submissions which I summarize below:
    

i. Paragraph 24 relays the events that led to the commission of the alleged incident.

ii. Paragraphs 24 to 25 are a recital of events leading to the commission of the alleged incident and that because paragraph 25 is a continuation of the story from paragraph 24, that those paragraphs should remain (par 3.2 of submissions)

iii. That although the details of the truck is not disclosed, that this is a matter for evidence at trial proper.

iv. As to paragraph 27, Mr Punau submits that the fact that the first Respondent assaulted the people in the truck, amongst others, that he deprived the people of their right to choose the candidate they wish to support.

v. As to paragraphs 28 and 29, Mr Punau submits that it is impossible to identify each and every person in attendance at the campaign because of the hundreds of people present. However he submits that what was pleaded, that is, the alleged threats uttered by the first Respondent, was sufficient to influence the outcome of the Petition.

vi. That the first Respondent's actions did influence the manner in which the votes were cast, notwithstanding s. 282A of the Organic Law.

98. In fact, Mr Punau's responses are more addressed to the evidence to be called, if the matter does progress to trial. Mr Punau does not address the inadequacies in the manner in which the Petition is pleaded and whether the relevant necessary elements to be pleaded are pleaded.
    
99. Mr Punau relies on Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 (N1626) where Injia J (as he then was) said that the facts to be set out under s. 208 (a) of the Organic Law are the material relevant facts to constitute a ground or grounds upon which an election or return may be invalidated. Relying on that, Mr Punau submitted that s. 208(a) only requires pleading of material or relevant facts which could constitute a ground and not the evidence by which those facts are to be proved.
    
100. Mr Punau again reminds this Court of what his Honour said and which is that:
     

"What are sufficient facts depend 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 issues involved."

101. This effectively, is what the relevance of specific pleading is all about, and that is to put the respondents on notice of what the Petitioner's case is all about. But it is not proper practice to state generally what occurred without specifically naming the people involved, amongst others, and throughout, to continuously make assumptions, as is the case here.
     
102. Additionally, the Petitioner has not pleaded that these alleged Illegal Practices committed by a person other than the candidate, was committed with the candidate's full knowledge and authority.
     

Analysis of pleading on Illegal Practices

103. Firstly, the pleadings on assaults, threats and intimidations. Paragraph 24 of the Petition does not allege assaults, threats or intimidation of the Petitioner by the first Respondent. It also does not state the names of the supporters of Tella Loie who were travelling with Ilakeke Sipik to Kenemaro village.
     
104. Paragraph 25 does not state what the Illegal Practice is. It is not an allegation and appears to be an isolated statement.
     
105. Paragraph 26 is too general and does not state:
     

(i) the names and particulars of the "people" who were alleged to have been punched and assaulted by the first respondent's brother.

(ii) the names and particulars of the twenty supporters of the first respondent who were alleged to have been in the 2 ten seater land cruisers and who also allegedly chased the people in the truck.

106. Paragraph 27 is not an allegation but a mere statement.
     
107. Paragraph 28 and 29 do not disclose:
     

(i) the number or names of electors who were in attendance at the rally on 17th June, 2012 at the Gesasalo market and who were alleged to have been intimidated.

(ii) the names of Kiatro Abisinito's supporters alleged to have changed their allegiance when they allegedly heard the First Respondent's speech at Gesosalo market.

108. Paragraph 30 states names and number of votes. It is alleged these votes were given to the First Respondent. However, it is not known if the names stated are those of individuals or villages or settlements or wards, because that is not pleaded. In fact, the Court is presently guessing as to what these names represent. Apart from that, voting is done in private in accordance with s. 282A of the Organic Law. It raises the question of how the Petitioner became privy to that information. For the Court's purposes, it leaves paragraph 30 of the Petition without any basis.
     
109. Paragraphs 31 to 32 are general, speculative and vague statements lacking particulars and clarity. Both paragraphs do not disclose:
     

(i) the names of the people who were scared of the first Respondent as alleged;

(ii) the names of the 93 people who were at Apaso Winch Oibotee's premises at Kama;

(iii) whether the unnamed people were electors within the meaning of the Organic Law.

110. Paragraphs 34, 35 and 36 do not disclose the names of the persons or people alleged to have been assaulted at Siokie Primary School by the First Respondent's supporters. The allegations are too general and vague. Also, the First Respondent's supporters are not named.
     
111. Paragraphs 37 and 38 are just statements and are not pleadings because they do not give rise to any element of unlawful practices, undue influence or irregularities under the Organic Law.
     
112. Paragraphs 39 and 40 do not state the names of the First Respondent's "people" who were sent to Makiye village with a pig and the names and numbers of "people" who did not vote because of their fear of reprisals from the first Respondent and his supporters.
     
113. Paragraph 46, 47 and 48 do not state whether the alleged actions of Tenny Allen, Mathew Nemeta and Watae Malamamo were authorized or sanctioned by the First Respondent. The allegations in those paragraphs will not establish any wrong doing by the First Respondent.
     
114. Paragraphs 50, 51, 52, 53, and 54 do not state where the Petitioner's driver was assaulted; which supporters of the First Respondent assaulted him and whether he was assaulted with the knowledge and authority of the First Respondent.
     
115. Even if the allegations pleaded under paragraphs 24 to 54 inclusive are deemed sufficient to satisfy the requirements of s. 208 (a) of the Organic Law, there is no pleading on how the result of the Election was likely to be affected as a result of the alleged assaults, threats and intimidations by the first respondent and his supporters. There is no pleading that shows why it is just that the candidate who was elected be deemed not to be duly elected and why the election should be declared void.
     
116. This is a requirement under s. 215(3) of the Organic Law and without pleading matters to show how the results of the election was likely to be affected and why it is just that the candidate elected was not duly elected and the election to be declared void, all the allegations from paragraphs 24 to 54 inclusive, will not result in nullifying or invalidating the election of the First Respondent.
     
117. It is not clear whether the allegation of Illegal Practices pleaded under paragraphs B24 to B54 of the Petition is based on s. 215(3) (a) or s. 215(3)(b) of the Organic Law because:
     

(a) if the allegation of Illegal Practice is under section 215(3) (a) of the Organic Law, then there is no allegation in the body of the Petition at paragraphs B24 to B54, that the alleged Illegal Practice of allowing under-aged children to vote and allowing double voting by electors by the Electoral Commission Officials was authorized by the first Respondent or was done with the first Respondent's knowledge.

(b) there is no pleading of knowledge and authority by the First Respondent within the meaning of s. 215(3)(a) of the Organic Law. For the Petition to succeed under this ground of Illegal Practice under s. 215 (3)(a) of the Organic Law, the necessary relevant and material facts, that the Illegal Practice was committed with the knowledge and authority of the winning candidate must be pleaded. However, that is not pleaded in this Petition. (see Kikala v. Mangap (supra))

(c) If the allegations in relation to Illegal Practice is to be presented and then proven under s. 215(3) (b) of the Organic Law, then there is no pleading in the body of the Petition at paragraphs B24 and B54, that the alleged Illegal Practice of allowing under-aged children to vote, allowing electors to double vote, impersonation, allowing unregistered voters to vote, multiple voting and tampering of ballot boxes was likely to affect the result of the election or that it is just that the candidate declared, be not duly elected, and that the election, to be declared void. (see Mathias Karani v. Yawe Silupa (supra), Ludger Mond v. Jeffery Nape (supra)).

(d) When Illegal Practice is alleged under s. 215(3)(b) of the Organic Law, the Petitioner must plead in the body of the Petition and demonstrate with figures, how the result of the election is likely to be affected and how it is just that the election result be declared void. But in this Petition, these materials and crucial facts are not pleaded. (See Greg Mongi v. Bernard Vogae (supra), Francis Koimanrea v. Alois Sumunda (supra) and Amet v. Yama (supra)).

118. Therefore, I find that the ground of Illegal Practice as pleaded in paragraphs B24 to B54 of the Petition, when considered individually or collectively, are deficient in material facts, are vague and ambiguous and are clearly in breach of s. 208(a) of the Organic Law and will be struck out in their entirety.
     

Third objection - Errors and Omissions

119. The First Respondent objects to the manner in which paragraphs B55 to B65 of the Petition are pleaded. These paragraphs are in relation to the alleged tampering of ballot boxes.
     
120. The Objections are basically that these alleged incidents occurred on 10th and 11th July, 2012. The Petitioner alleges tampering of ballot boxes in the Upper Bena LLG Wards 3 and 7, at polling place Megunagu and Megabosda. The other polling places are located at the 7 wards in the Lower Bena LLG's Wards 5, 6 and 7, and polling places Beneveto market, Ofaga market, Safa school and Kintinu Primary school.
     
121. However, the First Respondent's lawyers submit that the Petition does not plead material facts as to how the results of the Elections were affected as is the requirement under s. 218(1) of the Organic Law. Mr Mawa submits that no useful purpose will be served even if the allegations under paragraph 55 to 65 are proven and that therefore all these paragraphs should be dismissed.
     
122. The law on errors and omissions is provided by s. 218(1) of the Organic Law. This provision reads:
     

"S.218. Immaterial errors not to vitiate Election

(1) Subject to the Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election."

123. In defining the scope of errors and omissions under s. 218 of the Organic Law, the Supreme Court in Empraim Apelis v. Sir Julius Chan (1998) SC 573 said:
     

"We find that s. 218 deals with errors of election officials dealing with the process of election starting with nominations, the polling, the declaration of poll or the return of writ."

124. In relation to the allegations of errors and omissions under s. 218 of the Organic Law, Injia J, (as he then was) in Beseoh v. Bao (2003) N2348 said:
     

"Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors and omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice."
(my emphasis)

125. In Francis Koimanrea v. Alois Sumunda (2003), N2421 Justice Sakora said:
     

"In relation specifically to allegations of errors and omissions relied on as grounds of a petition, the law requires that facts must be pleaded to show the nature of these errors and omissions. It must be emphasized that errors and omissions do not automatically void an election. Thus, even if these are established by evidence, it must be shown (by pleading and proving facts) that the result or results would have been affected. The court must be satisfied that the result of the election is likely to have been affected and that it is just that the declared winner (respondent) be declared not to be so duly elected. This is the only way an election can be vitiated on the grounds of errors and omissions on the part of electoral officials."

126. In Dick Mune v. Anderson Agiru & Ors (1998) SC 590 the Supreme Court held that there is no requirement to plead the law. However Injia, J (as the then was) in his judgment said:
     

"Where the Petitioner relies on the breach of statutory or constitutional duty by an electoral official, then that provision must be set out beside the alleged facts."

127. Mere breach of statutory duty, for instance, failure to observe the requirements of s. 154 of the Organic Law when dealing with scrutiny of votes, by electoral officials amounts to "errors or omissions", which if proved to be material will affect the result of the election, may invalidate the election under s. 218(1) of the Organic Law (as per Injia J p. 16, Dick Mune v. Anderson Agiru (supra)).
     
128. In Mune's case, the Supreme Court said:
     

"However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice."

129. Further at pg. 13 of Mune, the Court said:
     

"In the interest of clarity and precision and good pleading, I hold the view that where a petitioner relies on breach of statutory duties by the officers of the electoral commission or by other persons, either on their own or in association with each other, then the specific provision breached should be set out beside the alleged facts."
(my emphasis)

130. This view is consistently applied in other cases and was endorsed recently in Simon Sanagke v. William Duma & Ors (November 2012); EP No. 10 & 11 of 2012. At page 12 of that decision, Kandakasi .J said:
     

"Where an allegation is founded on a breach of a law or a statutory provision, the facts disclosing or establishing the alleged breach must be stated and possibly a reference to the relevant provision of the Law. This is to enable the opposing parties and the Court to know what exactly is being alleged and they need to prepare for the defence or concede as the case might be."
(my emphasis)

131. In Kopoal v. Embel (2008) N3319, Salika J (as he then was) said at page 28:
     

"In this case, the allegations relate to an alleged breach of statutory duty by the Electoral Commission but the statutory provision that provides that duty has not been specifically pleaded in the petition. To me that is fatal, because the Petitioner alleged unlawful actions by the second Respondent by its servants and agents by moving or shifting polling from a gazetted polling place to another place, but that has not stated what law they broke by doing that. It would be only fair if he was to clearly state what law the servants and agents of the Second Respondent broke."
(my emphasis)

132. In Joel Paua v. Robert Nagle [1992] PNGLR 563, at 564, Wood .J said that a clear statement of the relevant facts relied upon to prove errors and omissions must be stated in no uncertain terms:
     

"It is not the role of the Court to draw possible conclusion or infer possible situations. The court requires clear evidence on errors and omissions. We cannot assume there may be a possibility of errors and omissions."

Analysis of pleadings on Errors and Omissions

133. The law is very specific as to how allegations of this nature are pleaded. The cases set out above and findings made by both the National and Supreme Court on this issue are very clear. As Justice Sakora said in Koimanrea v. Sumunda (supra), "... even if these (errors and omissions) are established by evidence, it must be shown (by pleading and proving facts) that the result or results would have been affected."
     
134. There must be specific pleading in the petition that because of the events that occurred, that the results of the elections is likely to be affected and that it is just that the declared winner be declared not to be so duly elected.
     
135. Apart from that, if the Petitioner relies on a statutory or constitutional law in his allegations and that there has been a breach of that duty by an electoral Official, then that provision must be pleaded together with the alleged facts. (Dick Mune v. Anderson Aigur & Ors (supra)).
     
136. However, on perusing the Petition, paragraphs 55 to 65 are silent on either the relevant provision of the Organic Law that were breached or that as a result of these allegations, the election results would have been affected.
     
137. In paragraphs 64 and 65 of the Petition, the paragraphs both plead non-compliance with "formal requirements". These references obviously mean the breach of a provision in either the Organic Law or the Election Petition Rules. Again, I am making an assumption because of the vague manner in which this is pleaded. If that is the case, then it must be specifically pleaded (Dick Mune v. Anderson Aiguru & Ors (supra)). That has not occurred here.
     
138. As stated above, that is the correct pleading practice as confirmed in the above cited cases and in Sanagke v. Duma & Ors (supra) where allegations founded on a breach of law or statutory provision must be stated together with possibly, a reference to the relevant provision of the law.
     
139. Again, as I said above, what is obviously stated in paragraphs 55 to 65 of the Petition, is the evidence, not the grounds. There is a clear misunderstanding by the Petitioner's lawyers, especially when drafting a Petition, to plead lengthy evidence and not the grounds and elements on which the allegations are based.
     
140. The grounds obviously set out at paragraphs 55 to 65 in relation to the tampering of ballot boxes, have not been properly pleaded and must be struck out because it is not for the Court to guess what happened. Before the evidence is accepted through witnesses, it must first be pleaded. And pleading it would require a complete change in the manner in which this Petition is drafted.
     
141. Having said the above, the Court finds that paragraphs B 55 to B65 of the Petition deals with allegations of tampering with ballot papers. There is no direct allegation of anyone tampering with the ballot papers. In essence, the allegations are that the number of ballot papers issued did not correspond with the number of eligible voters on the common roll.
     
142. There is no allegation of actual tampering of the ballot papers by any named person except that there was a variance of ballot papers declared and issued and the number of eligible voters on the roll.
     
143. There is no allegation that because extra ballot papers were issued to a particular polling area, that there was double voting. Nor is there any allegation that because there was a shortfall in the ballot papers distributed to a particular polling area than the number of voters on the roll, that a certain number of electors were denied their right to vote, albeit shortage of ballot papers.
     
144. There is no pleading in the Petition that shows the number of votes that were affected by the tampering of ballot papers which would likely affect the result of the Election. There is also no pleading in the Petition that the alleged tampering of ballot papers was done with the knowledge and authority of the first Respondent.
     
145. Clearly, there is an absence of pleading that the First Respondent had knowledge and authority of the alleged tampering of ballot papers. Also, the Petition is devoid of a pleading that demonstrates why it is fair and just that the First Respondent was not duly elected and that it is just that the results of the election, be declared void.
     
146. Whilst paragraphs 55 to 65 allege or imply tampering of ballot papers or irregularities, errors and omissions on the part of the Electoral Commission and its agents, the Petitioner fails to plead material facts as to how the results of the election were in fact affected as required under Section 218(1) of the Organic Law.
     
147. No useful purpose will be served if the allegations in paragraphs 55 to 65 remain because evidence will not be called to attempt to prove what is not pleaded. It will be an exercise of 'filling in the gaps' which is most improper and which should not be allowed to happen.
     
148. Paragraphs 55 to 65 will be struck out.
     

Fourth objection - Failure to plead the Winning Margin

149. Mr Mawa submits that where a Petition alleges errors and omissions under s. 218(1) of the Organic Law and Illegal Practices under s. 215 (3) of the Organic Law, then an important pleading requirement is the need to specifically plead the winning margin in the Petition. This will then be used as a yard stick to determine whether the number of votes affected by Illegal Practices and/or errors and omissions did indeed affect the results of the Election or the results of the Election were likely to be affected.
     
150. Mr Punau submits that the winning margin is as pleaded in paragraph 1b of the Petition, which is 6,503 votes. However Mr Punau does not state whether 6,503 votes is based on the Limited Preferential Voting System ('LPV'), which is the system presently used by the electoral commission. That I find is a clear defect.
     
151. I say this because there is a distinct difference between the winning margin in the former, first past the post system and the winning margin in the LPV System.
     
152. This distinction is clarified and confirmed in several cases some of which were cited to the Court by Mr Mawa and which I set out below.
     
153. In Alfred Manase v. Don Polye and the Electoral Commission (2008) N3534, Justice Lay succinctly sets out the definition of a winning margin under the LPV System. His Honour said:
     

"It has long been the law in Papua New Guinea that, where the petition grounds are relied upon to affect ballot papers or ballot boxes, that the issue is always, do the proven grounds of the petition in respect of official irregularities affect sufficient number of ballot paper so as to actually "affect the result of the election"?, s 218(1) of the Organic Law: re Manus Provincial Parliamentary election; Arnold Marsipal v. Michael Pondros [1977] PNGLR 354; Louis Ambane v. Electoral Commission & Ors (1988) SC 559. Or where illegal practice committed by a person other than the candidate is proven. "the Court is satisfied that the result of the election was likely to be affected." S. 215 (3) of the Organic Law.

If the number of votes affected does not exceed the winning margin the results of the election are not affected or likely to be affected: Re Moresby Northwest Parliamentary Election; Gavara Rea v. Mahuru Rarua [1977] PNGLR 338. Only if the number of ballot papers affected exceeds the winning margin, could the court be satisfied that the loss of the ballot papers could have affected the result of the election. That was the approach taken by the trial Judge in Dick Mune v. Paul Poto (No. 2)[1977] PNGLR 356 and the Supreme Court did not comment adversely on that approach. In the case of Baki Reipa v. Yuntivi Bao [1999] PNGLR 232 Woods, Los and Salika JJ, the Supreme Court said;

"However as soon as the number of disputed or lost votes exceed the margin then as the Court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied."

The Limited Preferential Voting System does not change that position on a seat declared on the first preferences, except to this extent, not only must the successful candidate retain a greater number of votes received over the candidate receiving the next largest number of votes, but he must also receive and retain an absolute majority, at least 50% plus 1, of the valid votes cast: Organic Law Section 168(1) (b). The Provision reads;

"the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected.""
(my emphasis)

154. Justice Lay, in drawing the distinction in the new LPV System, is effectively saying that the winning margin is the number of votes received by the successful candidate above or in addition to the absolute majority required by s. 168 of the Organic Law. As to how to arrive at the winning margin under the LPV system, His Honour said:
     

"the proper course in this case, following the case law authority and s. 168 of the Organic Law is simply to compare the number of votes affected by the allegations in the Petition with the relevant winning margin. In this case the total number of valid votes cast was 31,592 (from the Form 66) giving an absolute majority of 15,799. Mr Polye received a total 21,820 votes, therefore the relevant winning margin; the number of votes the successful candidate received above the absolute majority is 6,023. Consequently, the number of votes still in dispute, 14,999, assuming ground E1 not proven, substantially exceeds the winning margin."(my emphasis)

155. In the recent case of Kikala v. Electoral Commission of Papua New Guinea (2013) N4960, His Honour Justice Makail when fully adopting what His Honour Justice Lay said in Manase v. Polye (supra), regarding the definition and importance of pleading the winning margin in a Petition, said at paragraphs 60, 61, 62 and 63 of his judgment;
     

"In other words, in order to arrive at the winning margin under the new LPV system, the petitioner has to plead;

(a) what was the total number of allowable ballot papers remaining in count after the final exclusion before the declaration was made.

(b) what was the absolute majority (50% + 1) of votes required to win the election.

(c) the total number of votes that the winning candidate scored above and beyond the absolute majority required to win is the "winning margin".

I accept the law remains that if a petition is trying to overturn an election result on the basis of illegal practice, errors and omissions or other electoral irregularities, he is obliged to plead and prove to the Court that whatever the electoral irregularity was is sufficient to affect the election result or is likely to affect the election result. The information should readily be available to the petitioner because he would have had scrutineers at the counting centre and the figures including 50% + 1 absolute majority votes publicly announced by the Returning Officer. Yet they are missing, so how do we know that the second respondent won by the second preference votes or third preference votes as he contended? Thus, he has to show that the number of votes affected does exceed the winning margin. This means that it is incumbent upon him to plead the winning margin in the petition.

In the current petition, in paragraph 7 of the petition, the Petitioner pleads that he scored 30,648 votes and the second Respondent scored 35,804 votes but he does not plead if the second Respondent scored these votes at the first preference count, second preference or third preference count. He goes on to say that the total margin is 5,156. In fact, the 5,156 votes is not the "total margin" (winning margin) but the difference in votes between him and the second respondent. This is not the winning margin. In other parts of the petition, he refers to the difference in votes as the winning margin which is incorrect.

I accept the respondents' submissions that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these very relevant facts are no pleaded, how can the court make a finding that as a result of these election irregularities, the election was likely to be affected or indeed was affected? Furthermore, how can the court make a finding that the number of votes affected by the alleged illegal practice or errors and omissions is less that or more than the winning margin when what the winning margin is has not been properly pleaded? I am satisfied the facts setting out the errors and omissions by the first Respondent in relation to the winning margin are insufficient. This ground is struck out."
(my emphasis)

156. This Petition does not plead all the above. This Petition does not demonstrate or plead that to arrive at a winning margin, the total number of allowable ballot papers after the final exclusion, is stated, including the absolute majority required to win. In fact, common sense requires the Petitioner and his lawyer to do some calculations before stating the winning margin. It appears that was not done in this Petition.
     
157. The Petition does not demonstrate the number of votes that were affected and whether they do or do not exceed the winning margin. It means then that the Court cannot determine one way or another whether the result of the Election were affected or were likely to be affected. This is because, as the case authorities state, only if the number of ballot boxes affected exceeds the winning margin, then the Court can be satisfied that the loss of the ballot papers could have or would have affected the results of the Election.(Dick Mune v. Paul Poto (No. 2) (supra)); Alfred Manase v. Don Polye & the Electoral Commission (supra)).
     
158. As with the case of Kikala v. Electoral Commission of Papua New Guinea (supra) the Petitioner does not plead if the first Respondent scored votes at the first preference count, second preference count or third preference count. Nowhere in the Petition does he plead that. The court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidates.
     
159. In fact, the failure to state the winning margin under the LPV system means that the Petitioner has failed to plead a very material fact. Ideally, the Petitioner should have pleaded the following in the Petition:
     

i. The total number of votes scored by the first Respondent at the time of the declaration;

ii. The total number of votes scored by the Petitioner at the time of declaration;

iii. The total number of votes scored by the runner-up at the time of declaration;

iv. The difference of votes between the winner and the Petitioner;

v. The total number of allowable ballot papers remaining in count after the final exclusion and before the declaration was made.

vi. The absolute majority (50% + 1) votes required to win the election.

viii. The winning margin (see Manase v. Poye (supra) and Kikala v. Mangape (supra)).

160. The Petitioner not only hasn't pleaded the winning margin but also failed to plead the following material facts:
     

(a) the total number of allowable ballot papers remaining in count after the final exclusion before the declaration was made;

(b) the absolute majority (50% +1) of votes required to win the election;

(c) the total number of votes that the winning candidate scored above and beyond the absolute majority required to win being the "winning margin". (See paragraph 60 of Justice Makails's decision in Kikila v. Electoral Commission (supra), cited above).

161. Because these very relevant facts are not pleaded, it is not possible for the Court to make a finding that as a result of these alleged election irregularities, the election was likely to be affected by illegal practices or was indeed affected by errors and omissions.
     
162. Additionally, because the winning margin and those material facts or elements stated above are not pleaded in the Petition, it is therefore fatal to the existence of the Petition.
     
163. It means therefore that in so far as the Petition pleads Illegal Practices and errors and omissions, without pleading the winning margin, to then determine if the result of the elections is likely to be affected or is in fact affected, means that the whole petition is incompetent and must be dismissed in its entirety.
     

Fifth objection - Filing of Petition within 40 days period after the declaration of the Election results

164. Section 208 (e) of the Organic Law is specific as to when an Election Petition should be filed. It reads:
     

"208 Requisites of Petition

A petition shall-

...

(e) be filed in the Registry at the National Court of Port Moresby;

(b) or at the Court House in any Provincial Headquarters within 40 days after the declaration of the results of the election in accordance with section 175 (1) (a)."
(my emphasis)

165. Section 175 (1) (a) reads:
     

"175. Return of Writs

(1) Subject to this section, the returning officer or the electoral commission shall, as soon as conveniently maybe after the result of an election has been ascertained –

(a) At the place of nomination or any other place appointed by the returning officer, publicly declare the result of the election and the name of the candidate elected; and

(b) by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the electoral commission to the Head of State who shall forward all the writs to the Speaker of the Parliament."

166. In its filed Objection to Competency and submissions, the first Respondent pleads and submits that it is possible that the Petition may not have been filed within 40 days after the date the results of the elections were declared, because the actual date of declaration of the election results is not pleaded in the body of the Petition, to then enable the Court and respondents to determine on the face of the Petition if the Petition was actually filed within 40 days as required by Section 208(e) of the Organic Law.
     
167. The Petition was filed on 5th September, 2012. Although it was not raised as an issue at the pre-hearing stages, the Petition was allowed to come this far. This glaring anomaly is a primary fact that must be precisely pleaded in the Petition because from that fact, the Court and all other parties will know if the Petition was filed within the time limit required by Section 208 (e) of the Organic Law.
     
168. In Pogo v. Zurenouc (2003) N2351, His Honour Justice Sevua refused to amend a Petition which did not disclose this fact and dismissed it in its entirety. His Honour Justice Sevua re-emphasized the fact that it is in fact a serious matter for losing candidates to challenge the wishes of the majority. It was therefore incumbent upon them to ensure that the facts upon which they rely to overturn the wishes of the majority, are clearly and precisely pleaded.
     
169. In that case, an incorrect date was pleaded in the Petition.
     
170. Pogo v. Zuernouc (supra) can be distinguished with Labi Amaiu v. Andrew Mald (2008) N 3334 where His Honour Kapi J. held that the incorrect date of declaration pleaded does not go to the issue of the competency.
     
171. However what should be gleaned from those cases is that the date of declaration, an important primary fact, must be precisely pleaded in the Petition. In this case, it is not even pleaded. This makes the entire Petition defective. The Court should not be left guessing as to when the results were declared or even, to take judicial notice of that fact. It is a very important element which forms the threshold and existence of the Petition. Failure to plead this fact is a gross error that cannot be ignored and goes towards the very existence of the Petition.
     
172. The whole Petition will be dismissed on that basis alone.
     

Conclusion

173. The Petitioner relies on Illegal Practices under s. 215 (3) of the Organic Law and errors and omissions under s. 218 (1) of the Organic Law. The number of votes affected by the alleged Illegal Practices and/or errors and omissions, the total votes scored by the winner and the next runner up and the difference of votes between the winner and the next runner up and the winning margin, are very critical and fundamental material facts that must be pleaded in the Petition to demonstrate how the election result was likely to be affected or was in fact affected. Although the Petitioner relies on these grounds, he has not pleaded in the body of the Petition, basic fundamental requirements which is inclusive of those stated above. He has also not demonstrated how the results of the election is likely to be affected or was in fact affected with figures or numbers by showing that the number of votes affected by errors and omissions and/or Illegal Practices and the winning margin.
     
174. Again, the most glaring anomaly is the fact that the Petitioner has not pleaded a very fundamental and material fact which is the date of Declaration. I say it is a fundamental fact because it tells the Court whether the Petition was filed within 40 days from the date of Declaration.
     
175. In my view, it will be a fatal exercise conducting a trial because at the end of the trial, the Court will still not be able to determine if the results of the election is likely to be affected or was in fact affected when the winning margin or even at the very least, the difference of votes between the first Respondent and next runner up is not pleaded in the body of the Petition, of course using the mechanism under the LPV system.
     
176. It is also a fatal exercise to conduct a trial because the names of the persons alleged to have been bribed are not stated and whether they are electors within the meaning of the organic law.
     
177. Also, it is fatal to proceed to trial when the attesting witnesses' occupation and addresses not stated.
     
178. I find the following:
     

i. the Petitioner has not sufficiently pleaded the relevant material facts in relation to the allegations of errors and/or omissions and Illegal Practices which affected or is likely to affect the results of the election for the Unggai-Bena Open Seat in the 2012 National General Elections.

ii. The Petitioner has not pleaded the "winning margin" in the Petition to substantiate his allegations of Illegal Practices and Errors and Omissions and to also demonstrate if the election results was likely to be affected or were in fact, affected.

iii. That the Petitioner failed to comply with s. 208(d) of the Organic Law in that the occupation of the attesting witness is not stated and further that the address for one of the attesting witnesses is insufficient for the purposes of locating and identifying the attesting witnesses.

iv. The Petitioner failed to comply with the mandatory constitutional requirement of s. 208 (e) of the Organic Law by not stating or pleading the date of Declaration in the Petition and the Petition may not have been filed within 40 days after the date of Declaration of the result of the Election because the actual date of declaration of the results of the Election is not pleaded in the body of the Petition to enable the Court and the Respondents to then determine on the face of the Petition, if the Petition was actually filed within 40 days period as required by s. 208(e) of the Organic Law.

179. The Petition itself is a very lengthy document containing a lot of assumptions, innuendoes and what appears to be evidence, but not properly pleaded facts containing elements of the various grounds on which the Petitioner relies. I should re-emphasize that not only did the Petitioner not properly plead the grounds or not plead at all, but that he also seeks to void the Election, based on a paramount and serious discrepancy, being the date of Declaration, which is not stated. That in fact affects the whole Petition. The court must not be left with the choice of taking judicial notice of a fact that is not pleaded, a fundamental element without which the Petition will fail, notwithstanding the other allegations raised.
     
180. I find this Petition must be dismissed.
     
181. These are the orders of the Court;
     

1. All Respondents' Objections to Competency of the Petition are upheld;

2. The Petition is dismissed in its entirety;

3. The Petitioner shall pay all Respondents' costs of the proceedings including this application, to be taxed if not agreed; and

4. The security deposit of K5,000.00 held by the Registrar shall be released and paid to all Respondents, in equal share.

_____________________________---___________________________________
Stevens Lawyers: Lawyer for the Petitioner
Mawa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice Lawyers: Lawyer for the Second, Third and Fourth Respondents