N6250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 70 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE WESTERN PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

DR. BOB TAWA DANAYA
Petitioner

AND:

ATI WOBIRO
First Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2015: July 8th,
2016: March 2nd

ELECTION PETITION - Objections to competency 

Cases cited: 

Agonia v. Karo [1992] PNGLR 463
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 
Biri v. Ninkama [1982] PNGLR 342 
Greg Mongi v. Bernard Vogae & Anor (1997) N1635 
Gabriel Dusava v. Peter Waranaka (2008) N3367 
Holloway v. Ivarato [1988] PNGLR 99
Kikala v. Electoral Commission of Papua New Guinea (2013) N4960
Luke Manase v. Don Polye (2009) N3718 
Ludger Mond v. Jeffrey Nape (2003) N2318 
Louma v. Tomuresia (2012) N4920 
Mathias Karani v. Yawi Silupa (2003) N2385
Paru Aihi v. Moi Avei (2004) N2523
Paru Aihi v. Moi Avei (No 2) (2003) SC720 
Robert Kopoal v. Philemon Embel (2008) N3319 
Sir Arnold Amet v. Peter Yama (2010) SC1064
Wesley v. Leonard (2016) SC1477

Counsel:

Mr. A. Furigi, for the Petitioner
Mr. G. Gileng, for the First Respondent
Mr. E. Korua, for the Second Respondent

2nd March, 2016

1.	 HARTSHORN J: This decision is concerned with the two remaining grounds of objection to competency of an election petition.

Background

2. 	The petitioner disputes the election of the first respondent as the Member for Parliament for the Western Provincial Electorate in the 2012 General Election. The allegations in the petition are that the first respondent committed acts of bribery and that, officials of the second respondent committed illegal practices and irregularities in the course of the counting of the votes cast.

3. 	This Court heard submissions in Daru on issues raised in the objections to competency of the respondents and dismissed the petition on 6th March 2013. In its decision the court only dealt with the requirement for the attesting witnesses to state their occupation under s. 208 (d) Organic Law on National and Local Level Government Elections (Organic Law).

4.	 The Supreme Court upheld the petitioner's Application for Review and referred the matter back to the National Court. During a directions hearing, the parties agreed to deal with the remaining grounds of the notices of objection to competency filed by the respondents, in Waigani, and subject to the outcome, to deal with the substantive trial.

Objections to competency

5. 	The two remaining grounds of objection to competency of the petition are:-

a)	The requirement for sufficiency of relevant facts relied upon to invalidate the election pursuant to s. 208 (a) Organic Law; and

b)	The issues of irregularities raised principally against the second respondent. That is, the petition failed to state the votes collected by the winner and the runner-up and the number of votes affected and whether the votes alleged to have been affected by the alleged irregularities exceeded the number of votes collected by the winner so as to affect the outcome of the election.

6.	 As to the first ground the respondents contend that although the petition refers to bribery in its heading it does not plead the provisions of the particular statute or law that it complains have been breached and the facts pleaded and relied upon do not support the allegations of bribery.

7. 	As to the second ground, and the allegations of errors and omissions by the Electoral Commission, the respondents contend that the facts pleaded do not state the relevant number of votes that the winner and the runner-up obtained and the number of votes that were obtained by the winner allegedly through errors and omissions.

8. 	As to the first ground the petitioner contends that it is not necessary to plead the actual provision of the statute or law relied upon, and the pleadings sufficiently set out facts that are capable of making out grounds of bribery.

9.	 As to the second ground the petitioner contends that the pleadings sufficiently set out facts that are capable of making out the allegations of irregularities by the Electoral Commission officials.

Law

10. 	The facts that are required to be pleaded in a petition have been determined by various National and Supreme Court cases. These include: Biri v. Ninkama [1982] PNGLR 342, Holloway v. Ivarato [1988] PNGLR 99, Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28, Paru Aihi v. Moi Avei (No 2) (2003) SC720, Paru Aihi v. Moi Avei (2004) N2523, Gabriel Dusava v. Peter Waranaka (2008) N3367 and Sir Arnold Amet v. Peter Yama (2010) SC1064.

Requirement to comply with s. 208 (a) Organic Law

11. 	Section 210 Organic Law provides that a proceeding on an election petition shall not be heard "…unless the requirements of sections 208 and 209 are complied with." Sections 208 and 210 Organic Law have been considered by the Supreme Court in Biri v. Ninkama (supra) and Holloway v. Ivarato (supra).

12. 	The Supreme Court in Holloway v. Ivarato (supra) said:

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

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."

13. 	The above cases and principles contained therein were followed by the Supreme Court in Sir Arnold Amet v. Peter Yama (2010) SC1064.

Bribery

14. 	As to establishing a ground of bribery, in Agonia v. Karo (supra), Sheehan J. considered the applicable principles and said:

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

15. 	In Karo v. Kidu (supra), Injia J. (as he then was) said:

"In my view, factors relating to matters requiring proof prescribed by the Organic Law on National Elections cannot be left to inference in a Petition. They must be specifically pleaded, not left to inference. It is a requirement of s. 215(3) to specifically plead whether the bribery and undue influence, in the present case by the first Respondent's Committee members, was committed with or without the authority or knowledge of the First Respondent."

Allegations other than bribery and undue influence

16. 	As to allegations other than bribery and undue influence, in Greg Mongi v. Bernard Vogae & Anor (1997) N1635, Injia J. (as he then was) said:

"Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected."

17. 	In Ludger Mond v. Jeffrey Nape (2003) N2318, Kandakasi J said:

"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 election 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."

First Ground 

18. 	The respondents object to paragraphs 8 (a) to (p) of the petition as: 

a)	the respondents contend that although the petition refers to bribery in its heading it does not plead the provisions of the particular statute or law that it complains have been breached;

b)	in all of the sub paragraphs of paragraph 8 there are no facts pleaded in which it is alleged that the acts or conduct specified constitute bribery. What is pleaded is too vague and general;

c)	the names of persons described as eligible voters, voters or scrutineers alleged to have been given money or who were allegedly procured or made offers, in subparagraphs 8 (b), (c), (d), (e), (f), (g), (h), (j), (m), (n), (o) and (p) are not disclosed;

d)	 (i)	in subparagraphs 8 (a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (m), (n), (o) and (p), there are references to eligible voters or voters. Section 3 (1) Organic Law defines "elector" to mean a person whose name appears on a Roll as an elector. A reference made to a person as an eligible voter or a voter does not come within or is not defined as an element of bribery. 

(ii) 	In Mathias Karani v. Yawa Silupa (2003) N2385, Sawong J stated the following about an "elector" as an element of the offence of bribery under s. 103 Criminal Code:

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

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

(iii)	the above is to the point that where a petition contains facts that do not support essential elements of bribery, this is fatal for the petition. As there are no pleadings that an elector was bribed, as distinct from an eligible voter or voter, essential elements of the offence of bribery have not been pleaded. Consequently, paragraphs 8 (a) – (p) of the petition should be struck out for failing to disclose material facts that support essential elements of bribery.

(iv)	t here is no specification of any illegality known to law in paragraphs 8 (a) - (p) and there are no specific references or connections to link the subparagraphs apart from the general headings.

19. 	The petitioner contends that as to paragraph 8, it comprises actual facts that are relied on to invalidate the election in relation to bribery and that the pleadings endeavour to set out sufficient facts capable of making out the grounds of bribery.

20.	 It is contended that these allegations are not speculative as there are names of electors, an approximate number of electors gathered, the place, the dates and times, words spoken and heard by named witnesses and/or eligible voters present. There are specific allegations that the first respondent gave money and procured food from market tables from vendors during the election period.

21. 	It is submitted that the collective reading of the allegations of 20, 23 and 24 June 2012 during the commencement of polling comprises sufficient facts capable of establishing the grounds of bribery in those particular circumstances. It is submitted further the matters in relation to bribery are properly before the Court sufficiently to satisfy compliance with the mandatory requirements of s. 208 – 210 Organic Law.

22. 	Collectively, the allegations establish that there are merits in the petition and that it must proceed to trial. It is sufficient to enable the Court and the respondents to be clear about the allegations they have to meet, it is contended.

Consideration

23. As to the provisions of the particular statute or law that have been breached not being pleaded, I refer to the recent Supreme Court case of Wesley v. Leonard (2016) SC1477 which held that a petition should not plead the law breached. 

24. 	After having perused paragraph 8 and its subparagraphs and after considering the submissions and case authorities, I am of the view that there are no facts pleaded in which it is alleged that the acts or conduct specified constitutes bribery. What is pleaded is too vague and general, the names of persons described as eligible voters, voters or scrutineers alleged to have been given money or who were allegedly procured or made offers are not disclosed, there is no specific pleading to the effect that an elector was bribed as distinct from an eligible voter or voter, and so essential elements of bribery have not been pleaded. I refer to Mathias Karani v. Yawi Silupa (supra) and Louma v. Tomuresia (2012) N4920 in this regard. Consequently paragraph 8 and its subparagraphs should be struck out.

Second Ground

25. 	The respondents object to paragraphs 9 - 12 and its subparagraphs of the petition concerning allegations of irregularities by Electoral Commission officials as amongst others there is a failure to state the relevant number of votes that the winner and the runner-up obtained and the number of votes that were obtained by the winner through errors and omissions. They rely upon the decisions of Luke Manase v. Don Polye (2009) N3718 and Robert Kopoal v. Philemon Embel (2008) N3319.

26.	 The petitioner contends that there are sufficient facts pleaded to provide reasonable doubts about the reliability of results of the election.

Consideration

27. 	The "Allegations of irregularities by electoral officials at the counting" if at all, concern matters set out in s. 215 (3) Organic Law. Pursuant to that section a court shall not declare that a person returned as elected was not duly elected, or declare an election void, unless the court is satisfied that amongst others that the result of the election was likely to be affected. In this regard I refer to the following passage of Makail J. in Kikala v. Electoral Commission of Papua New Guinea (2013) N4960 in which His Honour states at paragraph 63:

 "I accept the respondents' submission 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 not 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 the finding that the number of votes affected by the alleged illegal practice or errors and omissions is less than 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."

28.	 I also refer to the comments of Kandakasi J. in Ludger Mond v. Jeffrey Nape (supra) which are reproduced earlier in this decision.

29. 	I respectfully agree with the comments in the above cases. As the relevant vote numbers are not pleaded, this court is unable to properly determine whether the result of the election was likely to be or was affected as it is required to do pursuant to s. 215 (3) (b) and s. 218 (1) Organic Law. Consequently, the pleadings relating to "irregularities" being paragraphs 9 -12 and its subparagraphs should be struck out. 

30.	 Given the above the petition should be dismissed.

Orders

31. 

a)	The election petition is dismissed. 

b)	The costs of the respondents' of and incidental to the petition shall be paid by the petitioner.

_____________________________________________________________
Furigi Lawyers : Lawyers for the Petitioner 
Posman Kua Aisi Lawyers : Lawyers for the First Respondent 
Parua Lawyers : Lawyers for the Second Respondent