N7278

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No. 49 OF 2017

IN THE MATTER OF DISPUTED RETURN FOR THE
MUL BAIYER LUMUSA   OPEN ELECTORATE

                        BETWEEN
SANI RAMBI
Petitioner

AND
KOI TRAPPE, MP
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri AJ
2018: 18th May

ELECTION – Parliamentary – Petition – Objection to competency –– Facts to invalidate an election – strict requirement of Statute –– material & relevant facts to be pleaded with sufficient detail –– failure to plead amounts to incompetency of petition ––– S 208 (a) Organic Law on National & Local Level Government Elections–S 210 Dismissal of Petition.
Facts
The Respondents objected to the competency of the petition filed by the Petitioner invoking Section 208 (a) of the Organic Law on National & Local Level Government Elections contending that facts were not pleaded in each heading of the petition. That the allegations were without satisfaction of that section and therefore incompetent and should be dismissed pursuant to Section 210.

Held
1.	Petition not pleading facts in satisfaction of Section 208 (a) of the Organic Law is incompetent.
2.	Objection to competency upheld.
3.	Petition dismissed pursuant to Section 210.

Cases:
Agonia v Karo [1992] PNGLR 463
Aiwa Olmi v Nick Kuman (2002) N2310
Albert Karo v. Lady Carol Kidu [1997] PNLGR 99 
Arnold Amet v Peter Yama (2010) SC 1064 
Benias Epe Peri v Nane Petrus Thomas (2005) unreported Judgement.
Delba Biri v Bill Ninkama [1982] PNGLR 342
Dick Mune v Anderson Agiru & ors (1998) SC 590
Ekip v Wimb [2012] PGNC 200 ;N4899 (21 November 2012)
Eoe v Maipakai (2012) N5066
Ephraim Apelis v Sir Julius Chan (1998) SC573
Francis Koimanrea and anor. v The Electoral Commission and Paul Tiensten [2003] PNGLR 4; (13 March 2003)
Gabriel Dusava v Peter Waranaka (2008) N3367
Ginson Soanu v Bob Dadae (2004) SC 763
In re Menyama Open Parliamentary Election [1977] PNGLR 298	
Holloway v Ivarato [1988] PNGLR 99
Kekeno v Undiali [2014] PGNC 34; N5502 (13 February 2014)
Kikala v Electoral Commission [2013] PGSC48; SC1295 ( 18 November 2013)
Kimave v Tore [2013] PGSC 51; SC 1303
Kopaol v Embel [2008] PGSC 26; SC 941 (26 September 2008)
Kumbakor v Sungi & Ors [2012] PGNC287; N5005 (7 December 2012)  
Ludger Mond v Jeffery Nape & others [2003] PGNC 149 N2318 (14 	January 2003)
Mathias Karani v Yawa Silupa [2004] PGNC 249; N2517 (16 March 2004)
Micah v Stuckey & Electoral Commission [1998] PNLR 151
Mili v Gaima [1997] PNGLR 645
Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590 (17 February 1998) 
Paru Aihi v Moi Avei (2004) N2523
Sauk v Polye and Electoral Commission of Papua New Guinea [2004] PGSC 13; SC 769 (15 October 2004)
Tulapi v Lagea [2013] PGNC 121; N5235 (13 May 2013)

Counsel:

C Mende, for the Petitioner
P Mawa, for the First Respondent
J Kolo, for the Second Respondent
		
RULING
28th May, 2018
1.	MIVIRI AJ: This is the ruling on the objection to competency filed by the First and Second Respondents, the former on the 5th October 2017 and the latter on the 2nd November 2017 against the petition filed by the petitioner who disputes the return for the Mul Baiyer Lumusa Open Electorate. Arguments were heard on Friday 18th May 2018 and adjourned for a six working days to consider and to rule. 

Background

2.	Sani Rambi the Petitioner is amongst 18 other candidates including the First Respondent Honourable Koi Trappe incumbent Member of Parliament for Mul Baiyer Lumusa open who contested that open electorate seat in 2017 National General Elections. The electorate is comprised of three local Level Governments (“LLG”) Mul, Baiyer, and Lumusa LLGs. On Friday 7th July 2017 polling began and on the 25th July 2017 declaration was made that the First Respondent Honourable Koi Trappe was member elect for Mul Baiyer Lumusa Open Electorate, polling 30, 085 votes defeating petitioner who polled 24, 246 votes. The difference between them was 5, 839 votes. 

3.	There were a total of 17 days in which the election was run. As part of the National General Elections 2017, planning, budgeting, financing and man power requirements were provided by government departments such as Police, Corrective Institution, Papua New Guinea Defence Force, Aid Donors and other governments within the region spear headed by the Second Respondents. The petition seeks to show primae facie is that at this particular location there was little or nothing likened to that preparation for instance security was not there at all which provided the room for what occurred in the petition to happen. That polling officials amass marked up the ballot papers in full view and in broad day light. And even a woman marked the ballot papers when all was in place. I adjudge that the facts must not be fantasy but reality of everyday occurrence reasonable and not a fallacy. Or not based in the air or a dream but everyday reality. For instance given the magnitude of it being a national event would a woman mark-up Ballot papers in the way it is described in the petition, or for the same would polling officers mark-up amass the whole ballot papers with security personal in full view including the general public and other candidates.

4.	And it is the voice of the majority installing the member incumbent. And the petitioner a single person challenges that majority it is therefore not by chance that the law under Section 208 (a) is drafted as it is. With it has evolved a body of law governing laying out the prerequisites of a petition in law. The argument by the Petitioner that you only have to look at the petition as a whole that it should not be broken down into sub ground or paragraph is not in accordance with reality. Each paragraph or sub ground contributes to the meaning of the petition and therefore it is not out of the ordinary or in defiance of the law to look at it as is put by the respondents. The argument by the Petitioner in this respect holds no merit and respectfully the court dismisses it as such. Further it is late to be arguing that layman drafted the petition because representation before court is by counsel on either side and in my view this argument is departing with reality and holds no substance. Because the petition comes by way of law and must confirm to the law and be on par with it to be able to be allowed to sustain. The requirements are strict and mandatory and therefore failure will see the petition thrown out. Jurisprudence that has developed is by the courts and will not be ignored in the determination of this petition or any other for the same. The court is of record, precedence and law defined over the years and will be followed here. 

Petition
5.	The petition is founded upon Section 206 of the Organic Law on National and Local Level Government Elections (“Organic Law”) invoking specifically  Sections 215 and 218 which are in the following terms:-

(a)	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–
(4)	On the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or
(5)	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 it is just that the candidate should be declared not to be duly elected or that the election should be declared void. 

(b)	218. IMMATERIAL ERRORS NOT TO VITIATE ELECTION.

(1)	Subject to 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.
(2)	Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

6.	For our purposes here, section 215 (3) which is contended that there was undue influence an illegal practise exerted by the First Respondent or by a person other than him with his knowledge and acquiescence and that the result of the elections was likely to be effected by it. These are the elements that must be addressed by the petition in the facts that are pleaded without which there is no petition before the court.

7.	And in the case of Section 218 contending that the Error or omission by the electoral official did effect the result of the elections. It is important to show out by reference to the winning margin and to draw that by reference to the Limited Preferential voting system or LPV now in use. Sadly this petition does not have that as a yardstick to gauge how it effected the results of the election sourcing from this allegation. This is a very important and fundamental element to ensure competency of the petition to trial without which there is no petition. This ground stems from Section 215 (3) (a) (b) of the Organic law which authoritative proposition is set out in Ludger Mond v Jeffery Nape & Others [2003] PGNC 149 N2318 (14 January 2003):

 “It is clear from this that if a petition alleges an illegal practise or conduct other than bribery or undue influence of an election the petitioner must plead that the conduct was likely to effect 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 effected. 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 Section 208 (a) and form the foundation for evidence to be led for a relief under Section 215 (3) (b). This is necessary because without that pleading no evidence can be led. After all pleadings drive the evidence.” (emphasis added)

8.	The petition is set out as follows;-

(i)	Errors and Omissions and Illegal practises resulting in destruction of 3 ballot boxes and 2, 861 ballot papers before and after polling and denying 2, 861 enrolled voters from exercising their right to vote.

(ii)	Errors and Omissions by the second respondent through its servants and Agents resulting in the counting of 2, 436 votes in five (5) ballot boxes which had their integrity compromised and questioned.

(iii)	Illegal Practises and Errors and Omissions committed by Polling officials and supporters for the first respondent at 13 polling places in Lumusa LLG.

Law on Objection to Competency

9.	It is trite that a charge must relate to the facts pleaded. In both civil litigation and criminal litigation the pleading or Indictment will lead the evidence not the other way. And this is essence what section 210 of the Organic Law is, “Proceedings shall not be heard on a petition unless the requirements of section 208 and 209 are complied with”. Dismissal is sought by the respondents invoking that law because of non- compliance with section 208 conditions precedent to instituting the petition to the National Court. And respondent asset that lacking here. Section 208 (a) is mandatory that the facts relied upon are set out in sufficient detail. Parties on that basis are able to prepare and respond to the case. Fundamentally for the court to see with clarity the factual and legal issues emanating which weaves the fabric of this petition and will determine its course, in Delba Biri v. Bill Ninkama [1982] PNGLR 342, the Supreme Court stated the principle of law as follows;-

“The requisites in Section 208 and Section 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view, it is clear that all the requirements in Section 208 and Section 209 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. This has been adopted applied authoritatively in many other cases that have come in similar vein as Holloway v Ivarato [1988] PNGLR 99; Ephraim Apelis v Sir Julius Chan (1998) SC573; Arnold Amet v Peter Yama (2010) SC 1064 where it said,

 “The issue of competence is to do with Legal and jurisdictional aspects of the Court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings”.

10.	In Kumbakor v Sungi & Ors [2012] PGNC287; N5005 (7 December 2012) the court said:

 “It has long being held and recognized in nearly all cases coming before the Court under whatever discipline of the law that a case must have a good solid foundation meeting all requirements in order to be heard. This is a threshold issue. Threshold issues deal with procedural matters that determine whether a case is one that is appropriate for the court to deal with. This is why questions of jurisdiction and procedural competency is often addressed at the outset of a case and continues to remain alive throughout the life of a case until judgment. Therefore, it is immaterial whether this threshold issue is dealt with now or later, with the assistance of parties’ legal counsel or Courts own initiative, once raised the court is obliged to hear it”

Facts 

11.	Facts are, “material and relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, not the evidence by which it or they might be proved” Holloway v Ivarato (supra); Agonia v Karo [1992] PNGLR 463; Albert Karo v. Lady Carol Kidu [1997] PNLGR 99; Paru Aihi v Moi Avei (2004) N2523; Gabriel Dusava v Peter Waranaka (2008) N3367. It is not the reading through of evidence or scheming thereof to work out the facts because each ground if properly pleaded is a triable issue on its own and is capable of determining the success or otherwise of the petition, Micah v Stuckey & Electoral Commission [1998] PNLR 151. In my view that is what the present petition in the court is being asked to scheme and shuffle navigate to find the facts in the petition which is not the duty of the court at this stage of the proceedings. To differentiate between what facts are for illegal practises and what are for errors and omissions because the petition is joined together and not set apart one from the other. It is difficult to determine which is which and to so determine in law.

12.	There is a right to bring a petition but it is not a general enquiry the court is determining a definite specific charges that if proved will result in an election being voided, Raymond Agonia (supra); Aiwa Olmi v Nick Kuman (2002) N2310. The authoritative proportion of sections 208, 209, and 210 of the Organic Law is resoundingly conclusive summed by Justice Injia as he then was:

 “The National Court is not a free for all open political quasi-judicial forum for any aggrieved persons to come to air their grievances in the hope that the election, the choice of the majority, maybe overturned”, DickMune v Anderson Aigiru & ors (1998) SC 590.

Issues 

13.	Which leads to the issues helpfully set out by counsel for the respondents as follows:

(i)	Whether the petitioner sufficiently pleaded the relevant and material facts of the grounds of illegal practices and errors and omissions?

(ii)	Whether the petitioner has pleaded the winning margin when the grounds of the petition are errors and omissions to demonstrate that the election was in fact affected within the meaning, tenor and effect of section 218 (1) of the Organic Law?

(iii)	Whether the petitioner has pleaded the winning margin when the grounds of the petition is illegal practices to demonstrate that the result of the Election is likely to be effected and it is just that the candidate elected not to be duly elected or that the Election be declared void within the meaning, tenor and effect of Section 215 (3) of the Organic Law?

(iv)	Whether or not the petition filed was structurally and fundamentally defective and devoid of clarity and cohesiveness offending Section 208 (a) of the Organic Law?

Petition by Layman not lawyer

14.	Petitioner argues in broad invoking what was set out in Jimson Sauk v Don Polye (2004) SC 769 that the, “nit picking” by lawyers is not advancing the spirit and intent of the Organic law with these technical unmeritorious objections and that the intent and spirit of Section 222 which intended the petitioners themselves to file the petition without lawyers is defeated. Ordinary persons in ordinary language” 

15.	Section 222 is headed “counsel or Solicitor” and reads :-“( 1) A Party to a petition shall not, except by consent of all parties or by leave of the National Court be represented by counsel or solicitor.”

16.	In Mili v Gaima [1997] PNGLR 645 Justice Woods remarked;

“Section 222 of the Organic Law works two ways. Whilst there should not be overdue emphasis on legalities and pleadings and strict rules of law, then also the petition itself must clearly put all parties on appropriate notice of what the complaint is all about, thus the facts on which the allegation are grounded must be clearly expressed so there is no need for complicated application of particulars.” (Emphasis added)

17.	Ginson Soanu v Bob Dadae (2004) SC 763; Jimson Sauk v Don Polye (supra) which cases have remarked that it was not the intent of the legislature that Lawyers be involved in the preparation  and presentation of election petitions. But that with the involvement of lawyers came the decisions of the court swayed by these strictly legalistic matters to go away from the intent of the legislature and defeat the spirit of the Organic law to an extent when it may be considered a nightmare: Benias Epe Peri v Nane Petrus Thomas (2005) unreported Judgement.

18.	A number of cases have set out this which the Supreme Court has ably canvassed as follows from the various excerpts of those cases:

 “An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter. In the first election petition filed after the first election after Independence under the then Organic Law on National Elections, the case of In re Menyama Open Parliamentary Election [1977] PNGLR 298, the need to have free and fair elections was emphasized by Frost CJ (at 300) in the following way:

“The Organic Law thus gives full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void.”

22.	In a recent decision of Sakora J, in the case of Francis Koimanrea and anor. v The Electoral Commission and Paul Tiensten [2003] PNGLR 4; (13 March 2003) his Honour adverted to these concerns where he said (at 10):

“As the Constitutional Planning Committee (CPC) took great pains to explain, emphasise and make recommendations on for inclusion in the Independent Constitution (CPC Report Ch. 5, p. 13; Ch. 16, pp. 2 & 3), and as numerous judicial decisions have stressed over the years, considerable importance is attached to the electoral system; the system, as we all know full well, by which members of Parliament are chosen; the aim of which system is to make Parliament representative of the views of the people.”

His Honour continued (at 13) a little later with the following:

“Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.
Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . .Review pursuant to section 155 (2) (b) ; Sauk v Polye and Electoral Commission of Papua New Guinea [2004]PGSC 13; SC 769 (15 October 2004)
19.	These are the fundamentals underlying section 208 (a) and all related provisions of the Organic Law so much so that the requisites if not complied with will end the petition there and then. Section 208 of the Organic Law is in the following terms:- “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 elections; and
(d)	Be attested by two witnesses whose occupations and addresses are stated; and
(e)	To 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 declarations of the result of the election in accordance with Section 175 (1) (a).”

20.	Because the word used at the outset is “shall” as opposed to “May”, it is mandatory invoking strict compliance. Section 210 No Proceedings unless requisites complied with, “Proceedings shall not be heard on a petition unless the requirements of Section 208 and 209 are complied with.” The Organic Law Part XVIII Division 1 Disputed Election and Return is not read in isolation of one section from the other. 

21.	Delba Biri v Bill Ninkama (supra) at p 345 sets it beyond doubt:

 “it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause ... 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." 

Law applied to the Grounds of Petition

22.	Ground 1 of the petition paragraph 16 reading ; “Errors, omissions and or illegal practises resulting in Destruction of 3 ballot boxes and 2,861 ballot papers before and after polling and denying 2, 861 enrolled voters from exercising their right to vote”

23.	At the outset by the way it is drafted it is invoking two different Sections 215 and 218 with distinct situations envisaged and powers denoting in law accorded to deal with into one. Both on their own are capable of invalidating the election result and therefore the facts constituting these two grounds need to be pleaded concisely and coherently as separate and distinct. That in my view is not the case with the ground 1 set out above. I accept the submission of the respondents flowing from the law set out above that ground 1 and ground 3 pleads errors and omissions under Section 218 (1) of the Organic Law and Illegal Practises under Section 215(3) also of the Organic Law together and are lumped as one single ground. I accept the submission that the form and style ground of error and omissions and illegal practises together as one is convoluted, defective, fundamentally and structurally inoperable mischievous and clearly devoid of clarity and cohesiveness. 

24.	Both are distinct Sections of the Organic Law and come with elements in them that ought to and must be set out by the facts. They cannot be lumped into one charge. It would be not within law to so do. And clearly would be offending the law and as such will not be allowed. The submissions of Learned counsels for Respondents fit that this kind of pleading offends Section 208 (a) of the Organic Law which requires relevant, material and base facts constituting the ground to be pleaded in concise, coherent and cohesively structured manner so that all in the petition are able to see and to prepare to dispense justice. Because of the way the petition is framed there is no pleading in the petition as to how the first respondent let alone the second respondent is connected to the firing at the wheel of the vehicle carrying the ballot boxes and the destruction of that followed suit. It is also not pleaded as to how the results of elections were effected. Importantly the winning margin is not pleaded. It is not the same as the difference here 5, 839 votes. And is speculative to plead specific numbers of registered voters in a particular area and to leave it to the court to weave that these voters would have voted for a certain candidate. That would be speculative and not a fact. And as here the ballot boxes were destroyed together with that which was retrieved. Clearly that is not a fact within the pleadings here. It makes it ambiguous mischievous and devoid of clarity and would not be allowed to proceed to trial. It is not pleaded that the situation was secured with security personal and therefore the refusal by the second respondent to not poll did effect the result of the election. That is not the pleading here. So the effect in law is that paragraph 16.1 to 16.10 of the petition is struck out as incompetent and will not proceed to trial.

25.	Paragraph 16.11; 16.12; 16;13 are more speculative suppositions and do not effect the result of the election and in the form and manner pleaded are not facts and will be struck out as incompetent and will not proceed to trial. What is in the mind of a witness is a matter of evidence and not a fact and what prompted for him to take the action he took is evidence rather than fact. General assumptions are not facts that 2, 861 voters were denied their right to vote is supposition as it presumes that all so registered would have voted no matter what. It does not take account that a certain number may vote give and take. And it does not set out how it effected the winning margin and is therefore incompetent. The latter is also not pleaded in the petition fundamentally dismissing this ground of the petition.

26.	The final result is that ground 1 of the petition is struck out in its entirety as incompetent and will not go to trial by virtue of section 210 as non-compliance of Section 208 of the Organic Law. 

27.	Ground 2 Errors and Omissions by second respondent through its servants and agents resulting in the counting of 2436 votes in five ballot boxes which had their integrity compromised and questioned. At the outset if these were subtracted from the 30, 085 it would give the figure 27,649. The result of the election would not be effected.  Because it is not fact where these votes would have ended up with. It is therefore supposition and speculation as opposed to fact.

28.	And more so what are the facts the basis upon which the integrity of the boxes were compromised. Was it standard issue contended in paragraph 17.1.  And if so by reference to what fact as setting that in place as standard. It is speculative to say that because of the way the boxes were secured they must have been tampered with and therefore their integrity comprised. And that they should not have been counted.  Assumptions are not facts and in the way set out from paragraph 17.2 to 17.5 are evidence more than facts.

29.	From the outset of this pleading 17.1 to 17.7 the winning margin is not pleaded and as to how the results of the election were effected by the error or omission. 2, 436 votes were counted from the five boxes and these were 2421 formal votes first respondent collected first preference which was 99.4 percent. It is not shown how it effected the election result in favour of the petition ultimately the petitioner. Against the second respondent what fact relayed that the integrity of the boxes counted were compromised. It is supposition to plead that without counting 2, 421 first preference votes for the first respondent the election result would have been effected. To follow that argument still would have the lack in the petition set out above as to facts. 

30.	In my view the petition does not set out facts particulars set out above contrary to Section 208 (a) of the Organic Law. The yardstick is set out by the Limited Preferential voting system used to determine and show how the errors and omissions affected the result Ludger Mond v Jeffery Nape & others (supra). 

31.	The determination that comes as a result is ground 2 of the petition is incompetent and will not proceed to trial as set out. It will be struck out and dismissed in its entirety pursuant to Section 210 of the Organic Law as not complying with Sections 208 (a) of the Organic Law. 

32.	Ground 3 is worded Illegal Practises and Errors and Omissions committed by Polling officials and supporters of the First Respondent at 13 polling places in Lumusa LLG. What is lacking in the pleading is that it fails to set out whether it is under illegal practises as a distinct and separate ground invoking Section 215 or 218 as errors and omission and therefore to adopt the words of counsel for the respondents it is convoluted and confusing and is difficult for the respondents as well as the court to with clarity see the grounds of the petition to settle in law. It has started on the wrong footing and no amount of contexture or flavour will amend that. It will remain what it is incompetent.

33.	It would be different if both were pleaded individually, separately and distinctively and the facts followed suit in like manner. In the manner and form it was drafted, it would be contrary to law to allow it to go past to trial. The magnitude of authorities in law clearly does not allow and this is crystal clear from what learned counsel for respondents have submitted which I accept as the law. I have perused the authority cited by both counsel of respondents as sound here which I adopt and apply of Kikala v Electoral Commission[2013]PGSC48 ;SC1295 ( 18 November 2013) excerpt there:

 “…..A petition must make it clear whether an illegal practice or an error or omission is being alleged, as the test of what has to be proved in order to avoid the result of the election differs according to which ground is proved (Eoe v Maipakai (2012) N5066) Section 215 of the Organic Law deals with Illegal practices, section 218 of the Organic Law deals with errors or omissions.”

34.	And further I adopt Ekip v Wimb [2012] PGNC 200 ;N4899 (21 November 2012) where the court said:

“A petitioners pleading must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings. For Petitioners must know exactly the grounds for their petitions and must not be equivocal about what they are alleging”

35.	And further in Tulapi v Lagea [2013] PGNC 121; N5235  (13 May 2013) per Injia CJ,

“The Court will not hesitate to strike down grounds in a petition and factual allegations in support thereof that lack essential facts; are pleaded in misguided, imprecise vague and duplicitous manner that in the end lack substance. The court will also not allow a petitioner to advance vague, general and alternative factual pleadings or legal grounds in a petition, hoping to search for answers to specific facts and grounds to make a case in the course of the trial proper”

36.	It is also consistent with the petitioners contention in citing, Kimave v Tore [2013] PGSC 51; SC 1303:

 “A Judge who is determining an objection to competency of an election petition should consider each ground of the petition as a whole rather than considering each sub ground or paragraph of the petition in isolation. Each ground considered as a whole should clearly and succinctly state the facts (not evidence) relied on….”

37.	Yet further still in Mathias Karani v Yawa Silupa [2004]PGNC 249 ; N2517 (16 March 2004) the court held;

“A petition that is structurally defective by its pleading is bad at the outset and no amount of evidence is going to correct it without being able to amend the pleadings which the law does not allow so the defect remains incurable, hence the petition remains incompetent and must be dismissed”

38.	This is very clear consistency in the line of judicial thought and counsel for the petitioner has not referred to any authorities to the contrary, the effect of which is that remains the law and must be followed and applied which I do here, Kekeno v Undiali [2014] PGNC 34; N5502 (13 February 2014) and it is sufficient to sum the position in the words of the Deputy Chief Justice Salika in that case:

“However, it is also a legitimate argument that a petition by its nature challenges and questions the integrity of the Electoral systems and therefore a petitioner must comply with the requirement of section 208 (a) of the Organic Law.

The reason this petition has ended up in the way it has is generally that the allegations are so confusing and mumbled up or jumbled up with all allegations all mixed up. Allegations are on;

•	Errors and omissions by presiding officers
•	Errors and omissions by the Electoral Commission
•	Illegal practise by the first respondent
•	Illegal practise by the first respondent’s supporters
•	Illegal practise by criminals
•	Illegal practise by supporters of other candidates
•	Denial of rights to vote
•	Failure to give opportunity to vote
•	Denial of rights of candidate to contest the elections.

There are too many allegations all in one ground and so on. In my view all allegations should be prepared separately from another so that it is easier to follow”

39.	That is resounding the law echoed again in Kikala v Electoral Commission (supra) where the Supreme Court stated, “First, it is not clear whether “illegal practises” or “errors or omissions” are being alleged. There is a difference between those two types of irregularities. An illegal practice is a criminal offence that is prescribed by the Organic Law or the Criminal Code; whereas errors or omissions is an administrative irregularity such as a breach of statutory obligation which does not carry a criminal sanction: Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590 (17 February 1998):

“A petition must make it clear whether an illegal practice or an error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proved (Eoe v Maipakai (2013) N5066). Section 215 of the Organic Law deals with illegal practices, while section 218 of the Organic Law deals with errors or omissions”. See also Kopaol v Embel [2008] PGSC 26; SC 941 (26 September 2008); Holloway v Ivarato (supra); Kekeno v Udialu (supra).

40.	The weight of all these authorities in law viewed against the petition leaves no room except to adjudge that Ground 3 is incompetent. It lumps Illegal Practices and Errors and Omissions as one which is not allowed in law as Section 215 and 218 are both distinct and different sections facts relating must always be set to align with the law separate and distinct. In my view that is not the case here, it is therefore void ab initio by application of Section 208 (a) of the Organic Law. It is not the duty of the court to write the petition for the petitioner. He has not done in adherence of law so he fails in law. Plainly it will be not necessary to weave through the petition to demarcate what is within section 215 and 218 that is not of court, it is for the Petitioner.

41.	It is supposition and not a fact for the petition to plead that Petitioner would have collected 2, 861 from the destroyed Ballot boxes of Kileg 1, Kileg 2 and 3 votes do not belong to a particular candidate, electors make a choice. 

42.	It means in all the circumstances the Petition dated the 3rd September 2017, filed 3rd September of the Petitioner Sani Rambi is struck out as incompetent in all its grounds set out above. It will not go to trial.

43.	And the issues raised are answered in the following orders which suit by law applied here as follow:

(i)	The First and Second Respondents objection to competency is upheld.
(ii)	The petition is dismissed in its entirety.
(iii)	The Petitioner shall pay the costs of the first and second respondents including that of the competency applications if not agreed to be taxed. 
(iv)	The security deposit of K5000 shall be paid to the respondents in equal share.

Orders accordingly.
_________________________________________________________________
Wantok Legal Group		:  Lawyer for the Petitioner	
Mawa Lawyers         		: Lawyer for the First Respondent
Kolo & Associates Lawyers   	: Lawyer for Second Respondent