N7205
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 75 OF 2017

BETWEEN
NOAH KOOL
Petitioner

AND
MICHAEL BOGAI DUA
 First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Makail, J
2018: 19th February & 16th March  

ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts pleaded in the petition – Failure to plead relief – Incompetent attesting witnesses – Allegations of illegal practices and errors or omissions at counting – Whether sufficient facts pleaded – Whether there are facts showing results likely to be affected as a result of errors or omissions by electoral officials – Organic Law on National and Local-level Government Elections – Sections 208 (a), (b) & (d), 215 & 218

Cases cited:

Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385
Dick Mune v. Anderson Aigiru (1998) SC590
Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437
Dr. Bob Danaya v. Ati Wobiro (2013) SC1292 

Counsel:

Mr. G. Pipike, for Petitioner
Mr. J. Napu, for First Respondent 
Mr. A. Kongri, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

16th March, 2018

1.	MAKAIL, J:   This is the first respondent’s objection to competency of the petition filed on 9th October 2017 and is supported by the second respondent. 

Grounds of Petition

2.	The petition itself is grounded on various allegations of illegal practices and errors or omissions at counting.  

Grounds of Objection

3.	The objection is based on three grounds: 

(a)	Failure to plead sufficient facts under Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”), 

(b)	Failure to plead relief being sought under Section 208(b) of the Organic Law, and 

(c)	Failure of first attesting witness to state correct occupation and second attesting witness to state name of his employer or alternatively, his address under Section 208 (d) of the Organic Law. 

4.	It would follow that the survival of the petition is dependent on the compliance with the requirements of Section 208 of the Organic Law.  Where non-compliance is established, the petition is incompetent and liable to be dismissed.

Failure to Plead Facts

5.	Omitting the introductory part, the petition is divided into three parts; Part B – Background Facts, from paragraphs 1 to 55, Part C – Grounds, from paragraphs 1.1 to 3.2 and Part D – Relief, from paragraphs 1 to 10.

6.	Ground 1 - Illegal Practices conducted by Electoral Officials and Counting Officials inside and outside the counting room.   

7.	Paragraph 1.1(a) to (g) sets out the allegation of first illegal practice , that is failure of electoral officials to remove and replace counting officials related to the first respondent by blood and marriage or closely associated with him.  

8.	Mr. Napu of counsel for the first respondent submitted that the names of the counting officials, how they are related to the first respondent and what they did which constituted an error or omission or illegal practice during the process of counting are not specified or pleaded.

9.	Paragraphs 1.2(a) to (f) sets out the allegation of second illegal practice, that is, failure to reject and remove extra scrutineers of the first respondent in the counting room.  

10.	Similarly, Mr. Napu submitted that the names of the counting officials, the names of the eight extra scrutineers of the first respondent and what they did to influence the outcome of the counting which constituted an illegal practice are not specified or pleaded.

11.	Paragraphs 1.3(a) to (h) sets out the allegation of third illegal practice, that is, the conduct of counting officials in the deliberate misallocation and misplacement of other candidates’ ballot-papers and votes into the first respondent’s tray or box and deliberate misplacement of live votes containing preferences for the petitioner and other candidates into the tray or box containing exhausted ballot-papers.
 
12.	For this allegation, Mr. Napu submitted that it is misconceived.  This is because the alleged error or omission as a result of the misallocation and misplacement of three ballot-papers in exclusion no. 42 for candidate no. 19 into the first respondent’s tray added up to only 270 votes.  If the allegation was that over 15,000 votes were placed in the first respondent’s tray, there are no facts showing how the figure of 15,000 was arrived at to conclude that the result was likely to be affected.

13.	Paragraphs 1.4(a) to (d) sets out the allegation of fourth illegal practice, that is, tampering with and forging of ballot-papers and votes inside the counting centre.
 
14.	For this allegation, Mr. Napu submitted that the name of the person(s) who altered the ballot-papers and number of ballot-papers are not pleaded.  Consequently, it is unclear how the result of the election was likely to be affected.

15.	Counsel further submitted that facts pleaded under Ground 2 - Errors or omissions by Electoral Officials and Counting Officials during counting and scrutiny of votes and ballot-papers at paragraphs 2.1 to 2.4 are repetitious of Grounds 1.1 to 1.14 and should be dismissed.

16.	Similarly, Ground 3 from paragraphs 3.1 to 3.2, Illegal practices conducted directly or indirectly by the first respondent or by others with the knowledge or authority of the first respondent is repetitious of Grounds 1.1 to 1.4 and should be dismissed.

17.	Furthermore, the allegation of threats and intimidation of a supporter and scrutineer of the petitioner one Justin Jimmy by the supporters of the first respondent at Gonbo village in Kundiawa on 14th July 2017 at Ground 3.2 is unrelated to the allegations of errors or omissions and should be dismissed.

18.	The manner in which the first respondent has attacked the petition is based on how the petitioner has set out the grounds in the petition.  That is one way to consider the objection.  The other is to consider the grounds of the petition together or in their entirety.

19.	Where illegal practices under Section 215 of the Organic Law is alleged, facts must be pleaded to show the illegal practice, that it was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority, that the result is likely to be affected and that it is just that the candidate should be declared not duly elected or the election be declared void: Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385.

20.	Since the Supreme Court decision in Dick Mune v. Anderson Aigiru (1998) SC590, there is some debate that the law must be pleaded to show the alleged illegal practice or breach.  I say it is preferable to refer to the relevant statutory or constitutional provision which constitutes the illegal practice but its omission is not fatal to the survival of the petition: see Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437. 

21.	If the petition is read as a whole, contrary to the first respondent’s submission, at paragraphs 23 to 30, the petitioner has provided names of the counting officials and how they are related to the first respondent.  Some of the counting officials are Antonia Nilkare, Pastor John Gundu, Regina Gundu and others.  A significant number of them are members of Endugla Tribe of Waiye LLG in Kundiawa-Gembogl District where the first respondent hails from.  

22.	Some are related to the first respondent by blood like the Returning Officer, Reverend Tom Sine.  Another is Mrs. Maiya Mondo who is the sister of the first respondent.  Some are closely related to the first respondent like Mrs. Mary Siune who is the wife of Mr. Jackery Kawagle, the interim First Secretary for the first respondent.  Some are elementary teachers who served under the first respondent when he was the Provincial Elementary Schools Coordinator for Simbu Province like Mr. Duale Waula, the Headmaster of Kondom Agaundo Wandi High School.   

23.	 At paragraphs 42 and 43, the allegations of fact are that despite the petitioner’s objection to their inclusion and participation at scrutiny on four occasions on 16th and 22nd July and 3rd and 6th August 2017, these persons were allowed and participated at scrutiny.  However, it may be that they are in many ways related to the first respondent but what is important and must be pleaded is what they did that constitutes an illegal practice or error or omission.   

24.	Paragraphs 31 to 32 sets out the beginning of the conflict.  Mr. Thomas Graun said to be the perpetrator.  He is the gate-keeper or person in charge of roll-calls for scrutineers of candidates between 7th July and 7th August 2017.  He allowed extra or more than one scrutineer for the first respondent while allowing one or two for the other candidates including the petitioner.  

25.	From paragraphs 33 to 55, when the scrutineers of other candidates including the petitioner’s Justin Jimmy requested re-count and re-check of ballot-papers or raised queries, the first respondent’s scrutineers threatened and stopped them.

26.	Further, given the large number of scrutineers for the first respondent, they filled the counting room and obscured scrutineers of others candidates including Justin Jimmy from having a clear and unhindered view of the counting.

27.	On 13th July 2017 these persons stopped Mr. Jimmy from entering the counting centre and not to observe counting.  One of them by the name of Dobi Kagl threatened to kill Mr. Jimmy.  The next day, 14th July 2017 supporters of the first respondent attacked Mr. Jimmy and his family at their residence at Gonbo and killed their dog.

28.	While only one of the scrutineers Dobi Kagl has been identified by name, the failure to identify the rest by name is not fatal because they have been referred to as the first respondent’s scrutineers.  In my view, that is sufficient because the first respondent and his scrutineers will know who they are and will come forth to either admit or deny the allegations.       

29.	Meanwhile, the counting officials who have been identified went on with counting and it was at the exclusion round where the real conflict arose.  At exclusions 10, 11, 20, 23, 26, 32, 33, 41, 43, 55, 58 and 59 discrepancies were apparent.  In each case, the number of ballot-papers re-distributed did not match or were inconsistent with the number recorded on the tally board or score board.  While Mr. Napu may be correct to say that only 270 votes have been identified as irregular and could not possibly affect the final result of the election because the petitioner polled more than this figure, it has been pleaded at paragraph 56 that estimated 15,000 votes were misplaced or misallocated.

30.	It was also a result of counting officials fast-tracking and sorting out of ballot-papers without proper and adequate inspection or checks to ensure that ballot-papers were placed in the tray of the correct candidate who is entitled to them.

31.	Moreover, counting officials were allowed to bring biros and pens into the counting room and used them to alter or forge candidates’ numbers on ballot-papers.  

32.	I am satisfied that if the allegations of fact constituting the grounds when read individually or collectively sufficiently identify the illegal practices and errors or omissions as pleaded. 

33.	The real question is; are there facts that show that the result of the election was likely to be affected? 

34.	Paragraphs 13, 14, 15, 16, 17, 18 and 19 set out the allegations of fact in relation to the conclusion of quality-check at the end of primary count and the results or number of votes collected by candidates from nos. 1 to 70.  The petitioner scored 33,210 votes and the first respondent scored 34,819 votes.  The absolute majority calculated at 50% + 1 of the allowable ballot-papers at the conclusion of the primary count was 140,717 votes.  As none of the candidates reached the absolute majority figure, elimination of candidates took place.

35.	At exclusion 59, the final results were, the petitioner polled 68,768 votes and the first respondent polled 79,839 votes.  The total allowable ballot-papers were 281,432.  The exhausted ballot-papers were 132,844.  The absolute majority of 50% + 1 was 74,302 votes.  The first respondent scored 79,839 votes which was over and above the absolute majority mark of 74,302 votes.  He was declared the winner.  The winning margin being the difference between the first respondent’s votes and the petitioner’s votes was 11,071 votes.
 
36.	I am satisfied the facts show the figures at different stages of the counting process right to the end, being the final result where the first respondent having scored the highest number of votes, was declared the winner.   

37.	If the allegation is that about 15,000 votes were either deliberately or accidently misplaced or misallocated, this figure is more than the difference between the first respondent’s vote and the petitioner’s votes of 11,071 votes.  I am satisfied that by this pleading, the petitioner has sufficiently demonstrated that the result of the election was likely to be affected under Section 215 and/or Section 218 of the Organic Law.  

38.	For these reasons, this ground of objection is dismissed.

Failure to Plead Relief

39.	The objection is based on the failure by the petitioner to plead that the election, as returned, are void pursuant to Section 215 of the Organic Law.  Mr. Napu submitted that if the petitioner alleges that the illegal practices and errors or omissions at counting did affect the result of the election, the petitioner must plead with specific reference to Section 212(1)(g) and (h) of the Organic Law a declaration that he was not returned as elected and a further declaration that the election absolutely void.

40.	The relief sought at Part D, paragraphs 1 to 8 are for recount of votes.  An order for re-count of votes is one of the relief provided for and open to grant under Section 212(1)(d) of the Organic Law.  That is what the petitioner seeks by way of relief.  If the allegations are proved, it is open to the Court to grant.  

41.	For these reasons, this ground of objection is misconceived and dismissed.

Failure of first attesting witness to state correct occupation and second attesting witness to state name of his employer or alternatively, his address 

42.	Ben Kale is the first attesting witness who stated that he is a “Teacher (retired)” of Makana Settlement, 9 mile, National Capital District.  The first respondent objected on the ground that Ben Kale failed to state his correct occupation.  For a retired teacher is not an occupation.   

43.	This ground of objection is dismissed as being misconceived because as was held in Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2013) N5416:

“33.	On face value, and applying common sense and logic, it means what it is, Mr Awo is a retired teacher.  What does this infer then?  He is no longer working as a teacher.  But the respondents did not contend that Mr Awo is unemployed, thus has no occupation.  In my view, being a retired teacher does not necessarily mean that one is unemployed.  Mr Awo could be a villager or self-employed given that he has retired from teaching.  In that respect, I give a wide interpretation to the term “retired teacher” by extending it to mean a villager or self-employed.  On the authority of the above cited cases, I am satisfied that the term “retired teacher” connotes a villager or someone who is self-employed for the purpose of s. 208(d).  This ground is dismissed.”

44.	Noah Wau is the second attesting witness.  He is a “Security Guard” of 9 Mile Cemetery Settlement, 9 Mile, National Capital District.  The objection is based on the failure to state name of his employer, or alternatively, his address.  

45.	Mr. Napu referred to the Supreme Court decision in Dr. Bob Danaya v. Ati Wobiro (2013) SC1292 where it was held that the purpose of providing details of occupation and location of an attesting witness is to easily locate the person so that he can verify the genuineness of the petition.  In this case, insufficient details are provided by Mr. Wau rendering it difficult to locate him in the event that he was to verify the petition.

46.	Complementing Section 208(d) of the Organic Law, Form 1 of the National Court Election Petition Rules, 2017 contains a standard form of a petition.  The part for each attesting witness to complete includes occupation and address.  For address, the witness must state the section and lot number or where no section and lot number, by street name or in the case of a village or settlement, state name of place by precisely referring to province, district and nearest town. (Underlining is mine).

47.	 In this case, Mr. Wau has stated his occupation.  He is a “Security Guard”.  He does not have to state the name of his employer because it is not a requirement.  His address is of 9 Mile Cemetery Settlement, 9 Mile, National Capital District.  I am satisfied that the information provided is sufficient for the purpose of Section 208(d) and Form 1.

48.	This ground of objection is dismissed.

Conclusion

49.	I am satisfied that the petition is competent.  It will proceed to trial.  I should also mention that the petitioner objected to the competency of the first respondent’s objection to competency on the ground that the first respondent failed to file an affidavit in support as required by Rule 12(c) of the National Court Election Petition Rules, 2017.  However, given the finding that the petition is competent, it is not necessary to consider it.

Order

50.	The orders are:

1.	The first respondent’s objection to competency is dismissed.

2.	The respondents shall pay the costs of the objection, to be taxed, if not agreed.		
________________________________________________________________
GP Lawyers	:		Lawyers for Petitioner
Napu & Co Lawyers:	Lawyers for First Respondent
Kongri Lawyers:		Lawyers for Second Respondent