Pini v Nukunji [2018] PGNC 143; N7243 (8 May 2018)

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IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURN FOR THE DEI OPEN ELECTORATE

ELECTION PETITION – Objection to competency of petition – Grounds of – Failure to plead facts in the petition – Allegations of errors or omissions at counting – Breach of procedure on objections by Returning Officer – Right to challenge validity of decision by Returning Officer to exclude ballot-boxes from scrutiny – Whether sufficient facts pleaded – Whether there are facts showing results was affected as a result of errors or omissions by electoral officials – Failure to state correct name of occupation of attesting witnesses – Incompetent attesting witnesses – Failure to file petition within forty days – Time limitation of 40 days – Computation of 40 days – Organic Law on National and Local-level Government Elections – Sections 153A, 208 (a), (d) & (e) & 218 – Election Regulation – Section 90

Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155
Darius Kombe v. Robert Naguri & Electoral Commission: EP No 22 of 2017 (Unnumbered & Unreported Judgment of 15^thNovember 2017 per Yagi J)
Dr. Bob Danaya v. Ati Wobiro (2013) SC1292
James Yoka Ekip and Simon Sanangke v. Gordon Wimb, Electoral Commission & William Duma (2012) N4899
Kelly Kuliyali Kalit v. John Pundari (1998) SC569
Kelly Kuliyali Kalit v. John Pundari (1998) N1712
Labi Amaiu v. John Kaupa (2017) N7004
Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2013) N5416
Pila Niningi v. Francis Awesa & Electoral Commission (2013) N5322
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Philemon Embel v. Pesab Jeffery Komal & Electoral Commission (2015) N5947
Puaria v. Lera (2013) N5148
Robert Sandan Ganim v. Dr. Lino Tom Moses & Electoral Commission (2018) N7233
Sam Bob Auwi v. James Donald (2017) N7062
Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275
Herowa Agiwa [1993] PNGLR 136

Mr.C. Mende, for the Petitioner
Mr. P. Mawa, for the First Respondent
Mr. T. Topo, for the Second Respondent

8^thMay, 2018
1. MAKAIL, J: This is an election petition for the Dei Open electorate of the Western Highlands Province. It has been set down for trial to commence on 7^th May 2018 but a question as to its competence has been brought to the notice of the Court by the respondents in separate notices of objections to competency; one filed by the first respondent on 6^th October 2017 and subsequently, amended and filed on 9^th November 2017 and the other by the second respondent filed on 2^nd November 2017.

2. The question of competence must first be determine because it is trite law by virtue of Section 210 of the Organic Law on National and Local-level Government Elections (“Organic Law”) that proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

(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 of the result of the election in accordance with Section 175(1)(a)”.

4.2. Failure to state correct name of occupation of attesting witnesses contrary to Section 208(d) of the Organic Law.

4.3. Failure to file petition within 40 days of declaration of result contrary to Section 208(e) of the Organic Law.

5. First, I deal with the ground on failure to plead facts. Before I do that, it is helpful to quote what the petitioner has pleaded in the petition that are relevant to better understand the challenge to its competency and I so do below:

*Item*	*Polling Place/* *Council Ward*	*Ballot Box Number*	*Total Votes*
1	Kondopina 1 – Ward 23	EC012864	907
2	Kondopina 1 – Ward 23	EC012865	907
3	Kondopina 2 – Ward 24	EC012866	643
4	Kondopina 2 – Ward 24	EC012867	644
5	Ruti – Ward 17	EC012890	908
6	Ruti – Ward 17	EC012891	907

*Position*	*Candidate number*	*Candidate Name*	*Total first preference votes*
1	11	Wesley Nukundi Nukundj	7,436
2.	23	Tui Ekil	6,240
3	17	Sol Solo Mel	5,661
4	16	Steven Pim	5,455
5	21	James Pini	5,157

*Position*	*Candidate number*	*Candidate Name*	*Total first preference votes*
1	11	Wesley Nukundi Nukundj	17,180
2.	23	Tui Ekil	15,362
3	17	Stevem Pim	12,927
4	16	James Memba	10,820
5	21	James Pini	10,803

(The significance of pleading this information will be demonstrated in the grounds to show how the election result as affected or would have been different)

23.1. The Returning Officer, Batamai Tip committed errors and omission in not counting 6 ballot boxes from Ruti Ward 17 and Kondopina 1 and 2 Wards 23 and 24 in breach of Sections 153A and 154, Organic Law on National & Local-Level Government Elections, particulars of which are set out hereunder.

23.2. Polling for Ruti, Ward 17 was held on Friday, 7 July 2017. Two polling teams conducted polling there with one ballot box each and their details are:

*Polling team*	*Presiding Officer*	*Ballot Box Number*	*Votes Collected*
30	Amos Poiya Ruing	EC012890 (Ward 17)	908
31	Peter Peri	EC012891 (Ward 17)	907

*Polling Team*	*Presiding Officer*	*Ballot Box number/ward*	*Votes collected*
44	Danny Luther	EC012864 (Ward 23)	907
45	Benjamin Pelunm	EC012865 (Ward 23)	907
46	Wilson Kupo	EC012866 (Ward 24)	643
47	Yuak Degene	EC012867 (Ward 24)	644

*Polling team/polling place*	*Presiding Officers*	*Ballot Number/Ward*	*Votes in boxes*
30 – Ruti	Amos Poiya Ruing	EC012890 (Ward 17)	908
31 – Ruti	Peter Peri	EC012891 (Ward 17)	907
44– Kondopina 1	Danny Luther	EC012864 (Ward 23)	907
45 – Kondopina 1	Benjamin Pelunm	EC012865 (Ward 23)	907
46 - Kondopina 2	Wilson Kupo	EC012866 (Ward 24)	643
47 – Kondopina 2	Yuak Degene	EC012867 (Ward 24)	644

23.11. The Returning Officer rejected these 6 ballot boxes on the following basis:

23.12. The Presiding Officer, Amos Poiya Ruing at the counting centre told the Returning Officer that he did not write the four page letter and demanded that he be provided the copy of the letter but the returning officer refused to provide the copy. He further told the returning officer that the polling was peaceful and no problems were encountered and, he wanted the two Ruti boxes to be counted. Mr Poiya even provided a written statement to the Returning Officer clearing the boxes to be counted.

23.13. The four ballot boxes from Kondopina 1 and 2 were rejected on the verbal complaint by William Wanaga, scrutineer for candidate NikintsTiptip stating that there was a flight at the polling place on polling day and people fled for their lives and the ballot papers were marked by someone else.

23.14. The four (4) Presiding Officers for Kondopina 1 and 2, Danny Luther, Benjamin Pelunm, Wilson Kupo and Yuak Degene told the Returning Officer at the counting centre and provided written statements to the Returning Officer stating that there was no fight at the polling place on polling day and polling was conducted peacefully and cleared the 4 ballot boxes to be counted.

23.15. The Electoral Commission engaged lawyer, Mr Joseph Kesan based at the counting centre, providing advice to all Returning Officers of all electorates on disputed ballot boxes, on 24^th July, 2017 provided a written advice to the Returning Officer for the electorate clearing the 6 ballot boxes to be counted.

23.16. Notwithstanding the presiding officer for Ruti and Kondopina 1 & 2 polling places and the Electoral Commissioner lawyer clearing the 6 ballot boxes to be counted, the Returning Officer for reasons known to himself, blatantlyrefused to count these six ballot boxes and rejected them. This was in breach of Sections 153A and 154 on Organic Law on National & Local Level Government Elections.

23.17. In rejecting the six ballot boxes from being counted, the Returning Officer denied 4,916 voters rights accorded by Section 50, Constitution from exercising their franchise to vote for candidates of their choice.

24.1. The six ballot boxes contain 4,916 votes. These ballot boxes are from the Petitioner’s base vote areas. The Petitioner is likely to collect over 2/3^rd of the first preference votes. And that is just of 3200 votes.

24.2. At the end of primary count, the top five candidates in order of standing on their total first before going into the elimination process were:

*Position*	*Candidate number*	*Candidate name*	*Total first preference votes*
1	11	Wesley Nukundi Nukundj	7,436
2	23	Tui Ekil	6,240
3	17	Sol Solo Mel	5,661
4	16	Steven Pim	5,455
5	21	James Pini	5,157

24.3. If the 6 ballot boxes were counted, the Petitioner would have received over 3,200 first preference votes and his total progressive votes after the end of the primary count would have been over 8,000 votes. This would have placed him first among the candidate going into the elimination.

24.4. After Exclusion 22 in the elimination process, the 5 remaining candidates in order of standing on their total progressive votes are as follows:

*Position*	*Candidate number*	*Candidate name*	*Total votes*
1	11	Wesley Nukundi Nukundj	17,130
2	23	Tui Ekil	15,362
3	17	Sol Solo Mel	12,927
4	16	Steven Pim	10,820
5	21	James Pini	10,803

24.5. From Exclusions 1 to 22, the petitioner received a total of 5,646 second and third preferences votes. This then increased his progressive total after exclusion 22 to 10,803 votes. The Petitioner was excluded next at Exclusion 23 on 10,803 votes.

24.6. If the 6 ballot boxes were counted in the primary count, he would have collected over 3,200 first preference votes so his progressive total after the primary count would have been over 8,000 plus votes. And if the 5,646 second and their preference votes he received from Exclusions 1 to 22 was added onto the 8,000 plus first preference votes then after Exclusion 22, his progressive total votes would have been over 18,000 votes. His position after Exclusion 22 would have been third place.

24.7. The order of elimination after Exclusion 22 would have changed. The candidate that would have been eliminated at Exclusion 23 was James Memba. The Petitioner had a good relationship with James Memba during the campaign. After exclusion 23, the Petitioner would have collected more second and third preference votes from James Memba and he would have jumped to second place.

24.8. At Exclusion 24, Steven Pim who would have been sitting on fourth place would have been eliminated. The Petitioner and Steven Pim are from the same tribe. After Steven Pim’s exclusion, the Petitioner would have collected more second and third preference votes from him and the Petitioner would have shot to the lead and the candidates that would have been sitting on second and third place would have been the First Respondent and Tui Ekil.

24.9. Exclusion 25 is the final exclusion. Candidate, Tui Ekil would have been eliminated at Exclusion 25. The Petitioner would have maintained the lead to win the elections.

24.10. The unlawful rejection of the six ballot boxes from Ruti and Kondopina 1 & 2 affected 4,916 votes. If these votes were counted they would have affected the order of elimination as demonstrated above.

24.11. The election result or return was affected or was likely to be affected as envisaged by Section 218, Organic Law.

(ii) An Order for re-count of all the votes for the electorate including the six ballot boxes from:

(iii) An Order that the candidate who receives the highest number of votes after the recount be declared the Member for Dei Open Electorate.

(iv) An Order that the Respondents pay the Petitioner’s costs of incidental of this petition.

(v) An Order that the Petitioner’s security deposit of K5,000.00 be refunded to him.

6. In his submission, Mr. Mawa of counsel for the first respondent pointed out that there are three main defects in the pleading of the facts, which individually or collectively, rendered the petition incompetent and should be dismissed. They are:

6.1. No facts pleaded in relation to the objection to ballot-boxes from being admitted to scrutiny under Section 153A of the Organic Law.

6.2. Insufficient facts pleaded in relation to votes affected by the errors or omissions.

7. In relation to the first defect, counsel submitted that case law show that Section 153A of the Organic Law and Section 90 of the Regulation provide for an elaborate and almost exhaustive formal process to be followed before a Returning Officer decides whether to admit or exclude a ballot-box from scrutiny. Case law also shows that pleadings should contain a concise statement of the procedural requirements under Section 153A of the Organic Law and Section 90 of the Regulation and how the procedure was applied and reasons why the petitioner is aggrieved by the decision. He relied on the cases of Pila Niningi v. Francis Awesa & Electoral Commission (2013) N5322 which was adopted and followed in Philemon Embel v. Pesab Jeffery Komal & Electoral Commission (2015) N5947 to support this proposition.

8. He further submitted that a concise statement of the procedural requirements is crucial here because as was observed by the Court in Darius Kombe v. Robert Naguri & Electoral Commission: EP No 22 of 2017 (Unnumbered & Unreported Judgment of 15^thNovember 2017 per Yagi J) none of the grounds of the petition impinged on the conduct of the first respondent. All of the grounds impinged on the conduct of the Returning Officer during the counting and scrutiny process. It follows that the petitioner must plead facts to show the procedural requirements and how the Returning Officer failed to comply with them under Section 153A of the Organic Law and Section 90 of the Regulation.
9. In this case, the petitioner has failed to do that. That is to say that the pleadings at paragraphs 23.1 to 23.17 are deficient and fall short of the tests set by the cases of Pila Ninigi (supra), Philemon Embel (supra) and Darius Kombe (supra).

10. In relation to the second defect, relying on James Yoka Ekip and Simon Sanangke v. Gordon Wimb, Electoral Commission & William Duma (2012) N4899, it was put ably by Mr. Mawa that where errors or omissions are being alleged, consistent with Section 218 of the Organic Law, it must also be pleaded that the result of the election was affected. To do that there are five relevant or material facts that must be pleaded and they are:

(i) The total number of votes scored by the member-elect or winner at the time of declaration of the result of the election;

(ii) The total number of votes scored by the runner-up candidate at the time of declaration of the result of the election;

(iii) The absolute majority and the winning margin after the declaration of the result of the election;

(iv) The absolute majority and the winning margin after the declaration of the result of the election;

(v) The total number of votes affected by errors or omissions to demonstrate that the affected votes exceed the winning margin to demonstrate that on the face of the petition the election result was affected under Section 218(1) of the Organic Law.

11. In relation to the first two factual requirements ((i) & (ii)), these can be pleaded by reference to the Tally Sheets (Forms 66A & 66B) or from the public announcement by the Returning Officer at the counting centre at the time of declaration of the result of the election.

12. For the factual requirements under (iii) & (iv), these can be done by mathematical calculation from the facts (figures) in (i) & (ii). In relation to the fifth factual requirement, it must be adequately pleaded with base facts and not conclusion of fact. That is, the number of votes affected by the error or omisssion must be concisely pleaded in a coherent manner supported by those facts.

13. In this case, it was conceded by counsel that the petitioner has pleaded the first four ((i) to (iv)) factual requirements with clarity. However, he failed to plead the number of votes affected by the errors or omissions made by the Returning Officer in a complete and concise manner supported by base, relevant or material facts as required by Section 208(a) of the Organic Law.

14. Mr. Mawa gave an example; at paragraphs 23.9 and 23.10, the number of votes affected by the errors or omissions at each polling location is pleaded. Further, the total number of votes affected is pleaded. But how does the petitioner know that there are 908 votes in Ruti, Polling Team 30 and the same question is asked in relation to the other polling locations? Counsel went on to suggest that these sorts of pleadings are wanting and lacked clarity and left many questions unanswered and can only be answered when, amongst other things, questions such as the total number of registered voters or electors for each of the six wards or polling locations are pleaded and number of registered voters or electors who turned up and voted at each of the polling locations. It follows that the total number of votes of 4,916 allegedly affected by the errors or omissions is a conclusion unsupported by base facts.

15. Finally, as to whether the pleadings consisted of opinions and speculations, counsel pointed to paragraphs 24.3 to 24.10 of the petition and submitted that if the petitioner alleged that votes cast at Ruti and Kondopina 1 & 2 were counted, it is highly likely that he will score over 13,000 votes from the primary counts to successive eliminations and end up winning the election, then, these sorts of pleadings express opinions rather than allegations of fact and are also speculative. They are also sensationalised and misleading and offend against Section 208(a) of the Organic Law. They should be struck out.

16. Mr. Topo of counsel for the second respondent endorsed the submissions of the first respondent. In his submissions, he said that he was cautious not to mislead the Court because according to him, based on the current state of pleadings in the petition, he could not work out if the errors or omissions attributed to the Returning Officer arose from a breach of Section 153A or Section 154 of the Organic Law. This is because these provisions provided for two distinct processes in the scrutiny of votes process. The failure to make that distinction goes to show that the pleadings lacked clarity and certainty and should be struck out on this ground alone.

17. But if the Court were to accept that they arose from a breach of Section 153A, then the petitioner failed to plead the step by step process captured in Section 90 of the Election Regulation in relation to objection to a ballot-box from being admitted to scrutiny and where the Returning Officer failed to observe to constitute an error or omission. For example, where an objection is taken under Section 153A, it must be pleaded that the duties of the Returning Officer included, receiving of a written objection from a scrutineer of a candidate, recording of the ground(s) of objection in writing and giving reasons in writing as to why he refused or admitted the ballot-box to scrutiny.

18. Secondly, paragraph 24.11 of the petition should be struck out because the reference to the “Organic Law” is vague.

19. Otherwise, he repeated the submission made by Mr. Mawa on behalf of the first respondent in relation to pleadings at paragraphs 24.1 to 24.11 that they are expressions of opinions about what could have happened if the votes in the disputed ballot-boxes from Ruti and Kondopina 1 & 2 were counted. They are also speculative.

20. Mr. Mende strenuously opposed the objections but had difficulty in defending the pleadings in the petition. This was largely due to him been unable to point to the facts pleaded in the petition to show what the Returning Officer did or failed to do that constituted an error or omission when he rejected the six ballot-boxes from being admitted to scrutiny.

21. At the outset, he submitted that the error by the Returning Officer was that the Returning Officer “unilaterally” made a decision to reject the six ballot-boxes from being admitted to scrutiny. By that he explained that the Returning Officer rejected the ballot-boxes before hearing or receiving a response from each of the presiding officer of each polling location. By the time the presiding officers responded, it was late; the Returning Officer had already made a decision.

22. Counsel further submitted that paragraphs 23.11 to 23.16 sets out the details of the main allegation. Paragraph 23.11 shows the basis on which the Returning Officer satisfied himself when he decided not to admit the ballot-boxes to scrutiny. For the two ballot-boxes from Ruti, the Returning Officer claimed that he received a 4 page-letter from the presiding officer Mr. Amos Poiya Ruing stating that voters did not vote and ballot-papers were marked by someone. In relation to the four ballot-boxes from Kondopina 1 & 2, the Returning Officer received a verbal objection that there was a fight at the polling location and people did not vote and ballot-papers were marked by someone. However, each presiding officer denied the allegations that there was no polling at Ruti and fight at Kondopina and someone marked the ballot-papers.

23. It is not necessary to plead the step by step process which the respondents have contended should have been done because it is of no consequence. This is because the Returning Officer had “unilaterally” made a decision not to count them. He said there laid the error. If he had given the presiding officers the opportunity to response, it would have been put to him that no such thing happened at polling at those locations and that polling was conducted peacefully.

24. The cases cited by Mr. Mawa are irrelevant because they were decided in relation to the objections to admissions of ballot-boxes to scrutiny under Section 153A of the Organic Law and Section 90 of the Election Regulation. The closest case to the present one is James Yoka Ekip and Simon Sanangke (supra). The Court found that there were no facts pleaded to constitute illegal practices and errors or omissions in order to vitiate the result of the election or return of the member.

25. As to the submission on the second defect, Mr. Mende submitted that the number of ballot-papers in the ballot-boxes is common knowledge and subject to proof at trial. Nonetheless, they put the respondents on notice as to what to expect at trial and to meet the allegation with a certainty and clarity.

26. Finally, in relation to the last defect, counsel submitted that the facts pleaded at paragraphs 24.1 to 24.11 are not opinions or speculations but necessary to demonstrate in figure terms how the result of the election was affected in the context of Section 218 of the Organic Law.

27. Mr. Mende’s submissions could have been better presented so as to be consistent with what has been pleaded in the petition. For the pleadings in the petition should be the centre of discussion as they drive the evidence that will be led at trial. Thus, any deviation by parties in their submissions would be contrary to the purpose of a competency hearing.

28. Although not eloquently put by Mr. Mende, I am satisfied that there are facts pleaded at paragraphs 23.1 to 23.7 of the petition to show that first polling was conducted at Ruti Ward 17 by Polling Teams 30 and 31 on Friday 17^th July 2017 by presiding officers Amos Poiya Ruing and Peter Peri respectively. Secondly, ballot-box for Polling Team 30 had 908 votes and the other had 907 votes. Thirdly, polling was conducted peacefully and no problem was encountered. Fourthly, the Returning Officer Mr. Batamai Tipi was present at the conclusion of polling and personally commended the people of Negla tribe for a peaceful polling. Then, he escorted the ballot-boxes back to Kitip Secondary School.

29. Next, polling was conducted at Kondopina 1 & 2 Wards 23 & 24 by Polling Teams 44 to 47 on Friday 17^th July 2017 by presiding officers Danny Luther, Benjamin Pelunm, Wilson Kupo and Yuak Degene respectively. Then, ballot-box for Polling Team 44 had 907 votes, Polling Team 45 had 907 votes and the rest had 643 and 644 respectively. Thirdly, polling was conducted peacefully and no problem was encountered. Fourthly, James Nukundi was present and observed the polling and after completion of polling, escorted the ballot-boxes back to Kitip Secondary School.
30. In my view, these are what Mr. Mawa has described in his submissions as base or material facts that provide the foundation for the further allegation of errors or omissions by the Returning Officer under Section 153A of the Organic Law. But I beg to differ from the proposition advanced by Mr. Mawa based on the decision of James Yoka Ekip and Simon Sanangke (supra) that there are many questions left unanswered by the current pleadings such as there being no facts pleaded in relation to the total number of registered voters or electors for each of the six wards or polling locations and number of registered voters or electors who turned up and voted at the polling locations. In my view, these further facts insisted by the respondents are evidence and should be left for trial. What is essential is that, the number of votes for each polling location has been disclosed and the respondents have been put on notice that these are the number of votes that are subject of dispute.

31. The further facts constituting the errors or omissions are pleaded at paragraphs 23.8 to 23.17 of the petition. This is where it is important to make the distinction between a failure by the Returning Officer to comply with the procedure for objection under Section 153A of the Organic Law and Section 90 of the Election Regulation and what I would described as a ‘review’ of the decision by the Returning Officer to admit or exclude a ballot-box from scrutiny.

32. To put it in a form of a rhetorical question; is a person (candidate) aggrieved by a decision of a Returning Officer under Section 153A of the Organic Law restricted to pleading errors or omissions by the Returning Officer in the procedure set out in Section 153A to have the decision set aside or is it open to him to seek a hearing de novo under Section 153A(4)?

33. Section 153A of the Organic Law states:
“153A. EXCLUDING BALLOT-BOX FROM SCRUTINY.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: -

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.” (Emphasis added).

34. There are enough judicial pronouncements on the application of Section 153A, some of them have been referred to by counsel for the respondents. The others which come to mind are Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286 and Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275.

35. I agree with Mr. Mende that these cases stand for the proposition that where a petitioner alleges errors or omission by the Returning Officer in either admitting or excluding ballot-box to scrutiny, he must plead facts to establish the duty, that is the nature of the duty and secondly, the breach of the duty. This will require what Mr. Mawa has submitted, a detailed and concise statement of the procedural facts consistent with Section 153A of the Organic Law and Section 90 of the Election Regulation.

36. But that is not what is being alleged and contended here. I am of the view that because Section 153A(4) states that a decision of a Returning Officer may not be challenged other than by way of petition, it gives a person aggrieved by the decision of the Returning Officer an option. And the option is to challenge the decision independently of any allegation of error or omission by the Returning Officer in the objection process under Section 153A of the Organic Law. If it is permitted, the hearing is de novo.

37. Subject to facts pleaded to establish the factual background for the challenge to the decision, the parties will be at liberty to call evidence to prove the correctness or otherwise of the decision of the Returning Officer under Section 153A of the Organic Law.

38. This is what the petitioner is doing here although as I pointed out earlier, it was not eloquently put by Mr. Mende in his submissions even though the pleadings are, in my view, clear on this. And appreciating Mr. Topo’s submission that he was cautious not to mislead the Court because the current pleadings did not differentiate between the scrutiny processes under Section 153A and Section 154 of the Organic Law because they are two distinct processes, I am satisfied that counsel was able to canvass in detail the reasons why the procedure for objection under Section 153A of the Organic Law was not sufficiently pleaded in the petition.

39. As I have noted, counsel attacked the pleadings on the ground that if the petitioner is alleging breach of Section 153A procedure, he must and has failed to plead the step by step process in the objection process in conjunction with Section 90 of the Election Regulation. These submissions have reassured me that he was on the right track and took the same position as the first respondent. It would then be a case of ensuring that the contest as to sufficiency of facts by counsel are deeply embedded in the relevant Organic Law that governs a General election such that the further ground of submissions by counsel that the petition should be struck out because the reference to the ‘Organic Law’ at paragraph 24.11 of the petition is vague, is worthy of no consideration and is dismissed.

40. Turning to the pleadings, paragraphs 23.7 to 23.16 set out the allegations of fact in relation to what transpired at the counting and how the Returning Officer handled and dealt with the objections to the six ballot-boxes on 21^st July 2017. The starting point is paragraph 23.11. There, it is alleged that the Returning Officer rejected the ballot-boxes for Ruti because he received a 4 page-letter from the presiding officer for Polling Team 30, Mr. Amos Poiya Ruing which stated that voters did not vote and ballot-papers were marked elsewhere. In the case of the ballot-boxes for Kondopina 1 & 2, the Returning Officer received a verbal complaint from William Wanaga, a scrutineer for candidate Nikints Tiptip that there was a fight at the polling place on polling day and people fled and ballot-papers were marked by someone.

41. Paragraphs 23.12 to 23.14 set out the facts in relation to the presiding officers at Ruti and Kondopina 1 & 2 denying the allegations of no polling and a fight at the respective polling locations and further alleging that polling in those locations was peaceful.

42. To my mind, while it is not stated when the presiding officers responded by denying the allegations of no polling and a fight at the polling locations, one standout feature which makes it clear is that, these facts show that the presiding officers have denied the allegations of no polling and a fight at the polling locations. Given this, there is a serious contest to the facts surrounding the exclusion of the ballot-boxes from scrutiny by the Returning Officer and in turn it brings up the question of validity of the decision of the Returning Officer. In other words, did the Returning Officer properly exercise his discretion under Section 153A?

43. In my view, where this kind of allegation is made against the Returning Officer, it calls for the Court to review the exercise of discretion by the Returning Officer under Section 153A(4) of the Organic Law. As there are facts pleaded at paragraphs 23.1 to 23.7 showing that polling at the subject locations was peaceful with no problems being encountered, at trial, evidence will be led by the petitioner to prove these allegations. Such evidence is necessary to prove that the decision by the Returning Officer to exclude the ballot-boxes from counting was wrong. Conversely, the respondents and the Returning Officer will defend the decision and call evidence to that effect.

44. Where the decision is found to be wrong it must be further shown by pleadings that by the wrong decision, the result of the election was affected: Section 218. In this case, the ballot-boxes were excluded at the beginning of the count. This would be at the primary count. According to paragraphs 23.10 and 23.17, 4,916 votes were affected. At paragraphs 21 and 22 of the petition, it is alleged that at the 25^th and final exclusion, the first respondent scored 21,056 votes and was declared member and the runner-up, candidate Tui Ekil scored 18,147 votes. The difference between the first respondent and the runner-up is 2,909 votes and the winning margin was 1,454 votes (How the winning margin was arrived at is also set out at paragraph 22).

45. As was pointed out above, the first respondent conceded that the petitioner has pleaded with clarity, the factual requirements of total number of votes scored by the first respondent and also the runner-up candidate and the difference of votes between the two of them. Accepting this to be the position and if the allegation is that there were 4,916 votes contained in the excluded ballot-boxes and the winning margin was 1,454 votes, it is clear that the total number of votes of 4,916 was more than the winning margin. I am satisfied that the result of the election was affected by the alleged wrong decision of the Returning Officer within the meaning of Section 218 of the Organic Law.

46. None of the respondents’ counsel made submissions to challenge or contest the competency of the relief being sought by the petitioner at paragraphs 25(i) to (v) of the petition. According to paragraph 25, the petitioner, sought amongst other things, an order for re-count of votes including the six ballot-boxes from Ruti and Kondopina 1 and 2. It is one of the relief provided under Section 212 of the Organic Law and as there being no contest to them, they remain undisturbed and for the Court to consider at trial.

47. To sum up, omitting the introductory part, I am of the view that the facts pleaded at paragraphs 1 to 22, paragraphs 23.1 to 23.14 and paragraph 25(i) & (v) of the petition are sufficient for the petitioner to rely on to vitiate the election or return of the first respondent. They are competent and will be allowed to be proved at trial. The objection is, therefore, dismissed.

48. It follows that the further facts pleaded at paragraphs 24.1 to 24.11 of the petition are unnecessary. In any case, I accept the submissions of counsel for the respondents that they are expressions of opinion rather than facts and also are speculative. I add that it is a misconception and a lack of appreciation of the voting system we have if the petitioner had expected to receive more votes from these polling locations because he thinks he would pick-up second and third preference votes from the eliminated candidates and win. For voting is by secret ballot and by that, it means no-one is supposed to know who a voter has cast his or her vote for. In other words, the outcome of the polling and counting is not always definite. It follows that no evidence will be required for these allegations at trial. For these reasons, paragraph 24 is struck out in its entirety.
Failure to state correct name of occupation of attesting witnesses

49. I turn to the second ground. Although the amended notice of objection by the first respondent objected to the two attesting witnesses on the ground that they failed to state the correct name of their occupation, Mr. Mawa abandoned the objection in relation to the second attesting witness – James Wani on the ground that he has correctly stated his occupation, as being an “Engineer”.

50. He pursued the objection against the first attesting witness – John Moka. This is what has been pleaded in the attestation clause of the petition for the first attesting witness:

“I, JOHN MOKA, former Provincial Member for Western Highlands Provincial Government and community leader of Nelga tribe, Ruti village of Kotna LLG, Dei District, PO Box, 335, MT HAGEN, Western Highlands Province, whose signature appears below, attest that I have witnessed the signing of the Petition by the Petitioner.” (Underlining is mine).

51. The objection is this, a former Provincial Member of Western Highlands Provincial Government is not an occupation. Similarly, a community leader is not an occupation. For according to Mr. Mawa, in Paru Aihi v. Sir Moi Avei (2003) SC720 the Supreme Court defined the word “occupation” as “one’s trade, profession, business or calling; things or activities one does for a living”. The Supreme Court gave some examples of occupation as being a carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, or judge.

52. Given the word “former” in the former Provincial Member of the Provincial Government, it is not an occupation because the person is no longer employed or working as a Provincial Member.

53. Mr. Mawa further submitted that the word “former Provincial Member” is descriptive just like the words “self-employed” or “villager” in the cases of Herowa Agiwa [1993] PNGLR 136 and Puaria v. Lera (2013) N5148 and Apaso Oibotee v. Benny Allen & Electoral Commission (2013) N5155 and this Court should not accept it as an “occupation”.

54. As to “community leader”, counsel submitted that it describes the social status of the attesting witness in the community rather than defining the role he pays in the community to earn an income to sustain a living. The petition should be declared incompetent on these grounds and dismissed.

55. Mr. Mende countered these submissions by submitting that a fair and liberal meaning be given to the words “former Provincial Member” and “community leader” as was held in the case of Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2013) N5416 in the context of “retired teacher”. Further, in the case of a community leader, it is not just a status of a person in a community but an every-day-life responsibility accorded to a person to lead his people in the community.
56. As so far as former Provincial Member is concerned, I find this case similar to the case of Dr. Bob Danaya v. Ati Wobiro (2013) SC1292. In that case, one of the attesting witnesses stated his occupation as Second Secretary to the Office of the former Governor of Western Province. The judge trial held that based on the decision in Paru Aihi v. Moi Avei, the occupation of the attesting witness, was capable of falling within the interpretation of “occupation” as stated by the majority in that case but as the statement as to his occupation was not correct at the time that it was made on the date that the petition was filed, he had failed to state his occupation correctly as required under s. 208 (d) Organic Law. The petition was dismissed as being incompetent. The Supreme Court observed at [7]:

“We note that the learned primary judge actually found that the statement “Second Secretary to the office of the former Governor Western Province” would have been a sufficient description – if it were a correct description – of the witness’s occupation as it was a statement of what he did for a living. So his Honour did not fall into error in his assessment of the sufficiency of the description.”

57. The Supreme Court went on to uphold the review on the ground that “The question of whether a statement of occupation is factually correct is not a matter going to the competency of the petition. The statement is only open to question after commencement of the trial of the petition and then only upon evidence as to its lack of veracity”.

58. Based on this decision, I am satisfied that former Provincial Member of Western Highlands Provincial Government is capable of falling within the definition of occupation and sufficient description of the attesting witness’s occupation. The objection is dismissed.

59. As to community leader, I accept Mr. Mende’s submission that on the face of it, a community leader is not just a status of a person in a community but an every-day-life responsibility accorded to a person to lead his people in the community. If a rigid application of the word occupation is applied, in my view, it leaves open the inference that a community leader is paid for his services to the community. This would require evidence to verify it and that is not the purpose of a competency hearing and defeats that purpose. The objection is dismissed.
Failure to file petition within 40 days of declaration

60. I now address the final ground. Mr. Mawa submitted that the petition is incompetent because it was filed one day outside the time limitation of 40 days under Section 208(e) of the Organic Law. This is because the declaration of the result of the election was made on 17^th July 2017 and computing the 40 days from that date, the 40 days expired on 4^th September 2017. The petition was filed on 5^th September 2017 which was a day late.

61. He distinguished the case of Labi Amaiu v. John Kaupa (2017) N7004 and Sam Bob Auwi v. James Donald (2017) N7062 from the present case by submitting that the Court held in those cases that the computation of the 40 days starts to run after the date of declaration of the election result and not from the date of declaration of the result. In this case, first those cases departed from the Supreme Court decision in Kelly Kuliyali Kalit v. John Pundari (1998) SC569 which upheld the decision of the National Court in Kelly Kuliyali Kalit v. John Pundari (1998) N1712 that the 40 days period for filing a petition commences from the date of declaration of the result of the election.

62. Secondly, the correct interpretation of Section 208(e) is that the 40 days period runs from the date of declaration. This is because it did not state that 40 days is computed “after the date of declaration of the result of the election”. Thus, the Court in Labi Amaiu(supra) and Sam Bob Auwi (supra) misinterpreted Section 208(e).

63. Mr. Mende’s submission is directly opposite to Mr. Mawa, that the Court’s decision in Labi Amaiu (supra) and Sam Bob Auwi (supra) correctly applied Section 208(e) when it held that the time limitation of 40 days ran after the date of declaration and that the Supreme Court decision in Kalit (supra) is irrelevant because it was decided on the question of the correct date of declaration and not when the forty days starts to run.

64. I am not persuaded by Mr. Mawa’s submissions because it failed to acknowledge that the issue that was before the Supreme Court in Kalit (supra) was the correct date of declaration, one was 4^th July 1997 and the other 5^th July 1997. The Supreme Court upheld the finding by the trial judge in the National Court that it was 4^th July 1997 and went on to hold that the petition was filed outside the 40 day period and dismissed the review. On the other hand, I uphold the submissions of Mr. Mende because it made that distinction based on Labi Amaiu (supra) and Sam Bob Auwi (supra).

65. It was also brought to the notice of counsel for the parties that a recent decision of the Court in the Wabag Open electorate, Robert Sandan Ganim v. Dr. Lino Tom Moses & Electoral Commission (2018) N7233 that was handed down last week further expounded and clarified what might appear to be an obvious, or if not, an obscured issue, for the benefit of the parties in that case and if counsel have had the benefit of considering the judgment or were aware of it. All counsel unreservedly admitted not having that benefit but left it to the Court to decide. Nonetheless, that decision did nothing more than further clarified the contentious issue of computation of the 40 day period to file a petition.
66. If it were of any assistance, I give an example to further explain why the 40 days should start to run after the declaration of result. One full day is a 24 hour period. If counting ended and a declaration was made at 11:00 pm on a given date, a petitioner would have until midnight to prepare his petition on the given date. That means, he would have only one hour left and by midnight, he would be left with 39 days to prepare his petition. If the 40 days were to run the next day, he would have a full complement of 40 days to prepare his petition.

67. With that in mind, it would make a lot of sense in practical terms if the 40 days start to run the day after the declaration. As there being no other grounds put forward by the respondents to make a strong case for this Court to depart from the position it took in the earlier cited cases, the position remains unchanged.

68. For these reasons, I find that the 40 days runs from the date after the declaration of result, in this case, on 28^th July 2017 and expired on 5^th September 2017. The petition was filed on 5^th September 2017. It was filed within time and is competent. This ground is dismissed.

69. Except for paragraph 24 of the petition which was struck out in its entirety for being incompetent, the rest of the paragraphs are competent and the petition will proceed to trial on the facts contained in those paragraphs.

________________________________________________________________
Wantok Legal Group : Lawyers for Petitioner
Mawa Lawyers : Lawyers for First Respondent
Kimbu & Associates : Lawyers for Second Respondent

National Court of Papua New Guinea

Pini v Nukunji [2018] PGNC 143; N7243 (8 May 2018)