N7148
PAPUA NEW GUINEA
       [IN THE NATIONAL COURT OF JUSTICE]

                                            EP NO. 19 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR
 THE SAMARAI MURUA OPEN ELECTORATE

BETWEEN
GORDON HENRY WESLEY
Petitioner

AND
ISI HENRY LEONARD
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

                                         Alotau:  Salika, DCJ.
                                               2018:   5th, 6th, 7th & 8th March

PRACTICE AND PROCEDURE – Election Petition – Objections to Competency – Organic Law on National and Local Level Government Elections S208(a) – Facts to be stated -  Definition of fact – Only facts required to be pleaded.

Cases Cited: 

Delba Biri V Bill Ninkama (1982) PNGLR 342
Ivarato v Hollloway (1988) PNGLR 99
Sauk  v Polye 2004) SC 769
Tulapi v Lagea (2013) N5235

Counsel:

Mr I Molloy with Ms C. Copland, for the Petitioner
Mr R.Raka, for the First Respondent
Mr M. Kuma with Ms Kukari, for the Second Respondent

8th March, 2018

1.	SALIKA DCJ:  INTRODUCTION: Mr Gordon Henry Wesley and Mr Isi Henry Leonard, with others were candidates for the Seat of Samarai – Murua in the National Elections in 2017.  Mr Leonard was declared the elected member for the seat on 22 July 2017.

2.	Mr Wesley filed a petition challenging Mr Leonard’s win on 29 August 2017. 
 	
3.	The petition seeks an order for the recount of the ballot papers in the Election of Mr Leonard for the Samarai-Murua Seat as his substantive relief.

4.	The basis for the recount as stated in the petition is that:

“7 .	At the conclusion of the count of First Preference Votes,
	 and following a Quality Check for Accuracy, the petitioner
 	had scored 5,198 votes.

8.	The said figure of 5,198 in favour of the petitioner was accurately recorded in the Tally Sheet for use of the Counting Centre, showing First Preferences received by each candidate (the “’Quality Check’ Form 66A”).

9.	At the completion of the count of the total number of first preference votes no candidate had received an absolute majority of votes.

10.	In accordance with S168 of the Organic Law, the scrutiny proceeded to the second count to exclude the candidate with the fewest number of first preference votes, with each ballot-paper counted to him counted to the candidate next in order of the voter’s preference (the “first exclusion count”).

11.	At the commencement of the first exclusion count each candidate necessarily had the same respective number of votes as at the conclusion of the count of first preference votes.  In the petitioner’s case that was 5,198.

12.  	The petitioner’s number of first preference votes at the commencement of the first exclusion, however, was incorrectly recorded on the counting room tally sheet of progressive results of the Distribution Preferences (“the Form 66B”) as 5,042, instead of the correct figure of 5,198.

13.	 The said error or omission was not corrected but instead the figure of 5,042 remained on the said tally-sheet as being the number of first preference votes scored by the petitioner, and so remained to and including the final exclusion count.

14.	The inclusion of the figure of 5,042, instead of 5,198, as the number of first preference votes scored by the petitioner on the Form 66B, and the failure to correct the same so as to substitute the right figure of 5,198, were errors or omissions on the part the second respondent’s said officer falling within S218 of the Organic Law.

15.	The difference of 15 votes between the true number of first preference votes in favour of the petitioner (5,198), and the number recorded at the commencement of the first exclusion and maintained on the Form 66B thereafter (5,042), having regard to the figures referred to above, including the winning margin, resulted in the said errors or omissions affecting the result of the election within the meaning of S218 of the Organic Law.

5.	On 20 September 2017, the First Respondent to the Petition, Mr Isi Henry Leonard filed an Objection to the Competency of the petition.  He lists 5 grounds objecting to the Competency of the Petition. 

Ground 1

1.	As to paragraph of the Petition, concerning the allegation that after the final exclusion, the total allowable ballot papers remaining in the count was 12,591 and the absolute majority was 6,296, the Petitioner failed to state the facts and particulars to support the allegation relied upon to order a recount of the votes casted for the Samarai-Murua Electorate thereby breaching Section 208(a) of the Organic Law on National & Local Level Government Elections (“OLNLLGE”).

 2.	 In respect of paragraph 6 of the Petition concerning the allegation that there was error or omission on the part of the Second Respondent’s servant or officer, John Liba, the Returning Officer at the Counting Centre at Misima High School, in respect of the scrutiny of votes in the election for the said electorate, the Petition failed to state the facts and particulars to support the allegations relied upon to order a recount of the votes for the Samarai-Murua Electorate thereby breaching Section 208(a) OLNLLGE.
	
 3. 	In regard to paragraphs 8, 9, 10 and 11of the Petition, concerning the allegations that the Petitioner was recorded to have scored 5,198 votes in the Tally Sheet (Form 66A) have his first preference votes at the conclusion of the primary count and start of exclusion or elimination, the Petitioner failed to state the facts and particulars relied upon to support an allegation to order recount for the Electorate, thereby breaching Section 208(a) of OLNLLGE. 

 4. 	 In respect of paragraph 12 of the Petition hat at the commencement of the elimination or exclusion, the Petitioner’s score was incorrectly recorded as 5,042 instead of the figure of 5,198, the Petitioner failed to state the facts and particulars relied upon to order a recount of the votes for the said Electorate thereby breaching Section 208(a) OLNLLGE.

    5.	 As to paragraph 13 of the Petition, hat save allegation that the error or omission was not corrected but the incorrect figure of 5,042 remained on the Tally Sheet all throughout the elimination process, the Petitioner failed to state the facts and particulars to support the allegation for a recount of the said Electorate thereby breaching Section 208(a) OLNLLGE.

Ground 1

6.	The particulars of objection under Ground 1 are:

“(a)  The pleadings failed to state the total number of votes casted
         and the exhaust votes.
	
  (b)  The pleadings did not state the date to when the primary count was completed.”

Ground 2

7.	The particulars of objection under Ground 2 are:

“(a)  Failed to state the date as to when the primary or first
         preference count was completed.

  (b)  Failed to specify if the Returning Officer, John Liba in fact was
         at the Counting Venue supervising the scrutiny of votes then to
        simply say he committed an error or omission in paragraph 6 of
       the Petition.

  (c)  Failed to state if the Petitioner’s scrutineers or any scrutineers 
        at the Counting Centre on the unknown date raised any 
        objection as required under the OLNLLGE.”

Ground 3

8.	The particulars of objection under Ground 3 are:

“(a)	State the date and time when the primary count was completed and the name of the Officer of the Second Respondent who entered the said figure.

  (b)  Record the first preference votes collected by the First 
        Respondent and the other candidates.

  (c)  State when the elimination or exclusion count had commenced.”

Ground 4

9.	The particulars of objection under Ground 4 are:

“(a)	State the date as to when the elimination process had 
         commenced.

  (b) Whether the Returning Officer, John Liba or the Assistant Returning Officer was supervising the scrutiny of votes on the unknown date rather than stating that there were errors or omissions on the part of the Second Respondent by its officer, John Liba without starting and connecting the narratives in the pleadings what errors or omissions committed by John Liba or any other officers of the Second Respondent.
  (c)  If any objections were raised by the Petitioner’s scrutineers or 
       scrutineers for the other candidates, and what answer the 
       Returning Officer, Mr John Liba or the Assistant Returning 
      Officer wherever that was available on the unknown date.”

Ground 5

10.	The particulars of objection under Ground 5 are:

“(a)	The dates for the elimination.

  (b)   The names of the candidates that were eliminated and their
          votes distributed among the surviving candidates and
          the exhaust votes.

  (c)  Out of the life votes for the candidates that were
         eliminated referred to above, how many votes the 
         Petitioner had received and the other surviving
         candidates including the First Respondent.”

Objection to Competency of the Petition by Second Respondent

11.	On 2 November 2017, the Second Respondent filed its Notice of Objection to the Competency of the Petition.  It listed 3 grounds objecting to the Competency of the Petition.  The 3 grounds are:

“1.	The error contended is unlikely in the absence of facts suggesting that the discrepancy was deliberately done or concealed from the Petitioner throughout the course of the exclusion stage.  The purported discrepancy arose quite early, at the commencement of exclusion and would have been noticed and raised by the Petitioner.  Under the circumstances and given the facts as set out in the Petition, it is unlikely the error as contended existed.

2.	The Petitioner’s contention cannot be relied as valid in the absence of relevant facts required to substantiate its contention.  The error related to the results of the scrutiny as recorded on Forms 66A and 66B.  These Forms are the official records of the scrutiny results.  Challenging it must be made with proper facts.  Selectively setting out the Petitioner’s votes tallied at the commencement of elimination is not a sufficient basis.  Further facts are necessary to substantiate this assertion.  Such facts include the total allowable ballot papers, vote distribution following quality check and the number of informal votes.  The discrepancy alleged in this Petition would be validated if demonstrated through these facts.

3.	The facts as set out are therefore insufficient and fail to disclose a material ground.

THE ISSUE

12.	The issue at this time is whether the petition is competent.

THE LAW

13.	The law in relation to the issue raised in this matter is correctly stated by all the parties involved in this petition namely:
(i)	S206 of the Organic Law on National and Local Government Election (Organic Law) provides the method for disputing the validity of an election or return ;

(ii)	S207 of the same Organic Law provides for the jurisdiction of the National Court to deal with election petition disputes;

(iii)	S208 provides for the requisite of a petition;

(iv)	S209 provides for Security for Cost to be deposited with Registrar of the National Court in the amount of K5,000.00;

(v)	S210 says “proceeding shall not be heard on a petition unless the requirements of S208 and S209 are complied with”.

14.	All parties agree what the law is in relation to disputed elections or returns.

15.	The law is correctly restated by all parties involved in this petition.  Section 208(a) of the Organic Law requires the petition to set out the facts relied on to invalidate the election or return.  The case of  Delba Biri v Bill Ninkama (1982) PNGLR 342 stands for the proportion that a petition must comply strictly with the requirements of s208 and s209 of the Organic Law and that petitions which fail to meet the requirements under those provisions must be struck out for want of competence.

16.	I note the Chief Justice in Tulapi v Lagea (2013) N5235 identified Biri v Ninkama (supra) as taking a strict compliance approach with the provisions of s208 and s209 of the Organic Law while Sauk v Polye (2004) SC 769 on the other hand while dealing with compliance issue under S206 of the Organic Law made some pertinent observations on proper approach to scrutinising of petitions under s208 and s209 of Organic Law.

17.	The Biri v Ninkama case was a Reference to the Supreme Court under s18(2) of the Constitution by the National Court referring two questions but the relevant question for our purpose is:

“To what extent must an Election Petition disputing the validity of our election addressed to the National Court and filed pursuant to S206 of the Organic Law comply with S208 of that law”?

The Court answered the question as follows:
 
“An election petition disputing the validity of an election petition addressed to the National Court and filed pursuant to S206 of the Organic Law on National and Local Level Government Election must comply strictly with each and every requirement of S208 of that law”.

With respect, this is the correct statement of the law.  The requirement under S208(a) is to set the facts relied on to invalidate the election or return.
	
18.	To my mind, with respect, Biri v Ninkama (supra) and Sauk v Polye (supra)are saying the same thing in different ways.  The Court in Biri v Ninkama (supra) said all petitions must strictly comply with the requirements of S208 and S209 before proceeding to trial under S210.  However with respect, since that decision, the National Courts and the Supreme Courts have interpreted the decision to add other things or other requirements on top of the requirements to plead facts under S208(a) of the Organic Law.  For instance, the requirement to plead the law that has been breached is now required to be pleaded.  To me with respect that may be an unwarranted additional requirement given to S208(a) by the Courts.  For example, is breach of S103 of the Criminal Code for bribery a requirement to be pleaded?  Is that a fact to be pleaded as envisaged by S208(a) of the  Organic Law or is that an additional requirement imposed by the Courts? I am, with respect in agreement with the Learned Chief Justice’s observation in the Tulapi v Lagea case (supra), where he said “Pleading the date, the time, the name of persons involved, amount of money involved, --- are few examples of the kind of essential facts required to be pleaded by S208(a) in conjunction with S215, and S218.   Anything more go to detail and evidence”.

19.	Section 208(a) only requires the petition to set out facts relied on to invalidate an election or return.  What is a “fact” was defined by the Supreme Court in the case of Ivarato v Holloway (1988) PNGLR 99. With respect, however, the Supreme Court in my respectful opinion did not fully and clearly define what a “fact” is.  There , the Court said:

“The facts” which must be set out under S208(a) of the  Organic Law  on National Elections are the material and relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.”

With respect, the statement quoted above did not define the word “fact”.  
“The word “fact” is defined by the Oxford Dictionary of Law to mean – an event or state of affairs known to have happened or existed”.

The Concise Oxford English Dictionary defines the word “fact” as “a thing that is indisputably the case”. The requirement under S208(a) therefore means the petitioner must state the events or state of affairs as happened as seen by him or her at the time and which he or she relies on in his or her endeavour to invalidate the election or return.  Anything more may be evidence.

20.	The National Courts and the Supreme Courts in their over enthusiasm and perhaps ingenuity have over time brought into S208(a), with respect other unwarranted prerequisites thereby widening the scope of  requirements envisaged and intended under S208(a).  With respect, that is what the Court in Sauk v Polye (supra) in my respectful opinion was complaining about.  Rather than simply pleading facts required to invalidate an election, the Courts are requiring petitions to plead the law and in some cases evidence.  When that happens, the real underlying issues are not reached because the petition gets dismissed for want of competence. These are issues for a future 5 men Supreme Court to address amongst others at the material time. 
 
DEALING WITH THE FIRST RESPONDENTS OBJECTIONS TO COMPETENCY

GROUND 1

21.	The First Respondent argued that:

	(a)	the petitioner failed to state the total number of votes
casted at the exhaust votes.

22.	In support of that ground, the First Respondent argued that the petition did not plead sufficient relevant and material facts envisaged under S208(a) of the Organic Law.  He, therefore, submitted that as a result, the petition failed to comply with s208(a) of the Organic Law and that there can be no hearing of the petition pursuant to  s210 of the Organic Law. 

23.	The petitioner argued that the petition did include all the facts he relied on and that if those facts are proven namely the entry of 5198 on  Form 66B, the result will be the invalidation of the election.  The petitioner argued that the “Facts” referred to by the First Respondent are not facts relevant and required to be pleaded to establish the grounds for the petition.

(b)	The pleadings did not state the date when the primary count was completed.

24.	In relation to this ground on dates, the First Respondent argued that as the petition did not state the date when the primary count was concluded, it left the Court and the Respondent to speculate on the dates.  The petitioner responded by saying that the date on which the primary count was completed was a matter for evidence and that he did not rely on the date for any purpose.  He only relied on what he pleaded; that is the figures entered on Form 66B relied on for the declaration on 22 July 2017.

25.	For me, I have read the petition and the facts relied on, that is the state of affairs known to have happened or existed at the time according to the petitioner.  The petitioner’s grievance in this petition is quite simple.  The allegation is that at the conclusion of the count of first preferences votes before quality checks, the petitioner scored 5,198 votes.  That figure was recorded on the tally sheet for use at the Tally Centre by Electoral Officials led by John Liba, the Returning Officer.  At that point, no candidate had scored absolute majority of votes, thus the scrutiny proceeded to the eliminations or exclusion process until the day of declaration.

26.	At the start of that elimination process, the petitioner says his tally should have started with 5,198 votes but that figure was reduced to 5,042 votes.  He, therefore, says that is an error committed by Electoral Officials led by the Returning Officer which could invalidate the First Respondent’s election as the duly elected member for the seat of Samarai – Murua in the National Parliament.

27.	In relation to that ground, I am of the opinion that the facts or the  state of affairs as pleaded are sufficient for the purpose of S208(a) of the Organic Law.  In my opinion, it is not necessary to plead the total number of votes casted and not necessary to plead the exhausted votes.  Moreover, the date in this petition is not a fact relied on by the petition.

28.	Accordingly, I dismiss the first Respondent’s first ground of objection to competency of the petition.

Ground Two – First Respondent

29.	In relation to this ground, the First Respondent argued that the petitioner had an obligation to state the date the primary count was completed.  The petitioner said he did not rely on that date but says a wrong figure was entered which was carried over to the declaration date on 22 July 2017.

30.	The First Respondent argued that stating the date will enable him to speak to his scrutineers as to who was on duty on the date – whether they observed or saw the same things the petitioner is alleging.  While there is merit for the date to be stated, the petitioner argued that date is not relied on by him in that the date in this case is a matter for evidence.  His case is that “at the completion of the first preference votes” a correct figure of 5198 was recorded on Form 66B against his name.  He claims that to be the correct figure”.  He says an error occurred, in that a wrong figure of 5,042 was entered and allowed to be carried over until the day of declaration.

31.	Again, I have read the petition and the grounds relied on.  I consider that the words “at the completion of the first preference votes” is sufficient for the purpose of S208(a) of the Organic Law.  Accordingly, I dismiss this ground as well.

Ground 3 of First Respondent’s Objection to Competency

32.	In relation to this ground, the First Respondent argued that:

(a)	The petition failed to state the date and time when the primary count was completed and that the petition failed to state the name of the officer of the Second Respondent who entered the said figure.

33.	The petitioner’s response to the First Respondent on this ground is that he does not rely on the date and time of the completion of the first preference votes.  He argued that the pleading “completion of first preference vote” is enough fact for the purpose of s208(a) of the Organic Law.

34.	I have read the petition and I am of the opinion that the pleadings in this matter is sufficient for the purpose of s208(a) of the Organic Law.  Accordingly, I dismiss the ground.

35.	The next argument by the First Respondent under Ground 3 is that the petition failed to record the first preference votes collected by the First Respondent and the other candidates.  The petitioner in response said it was not necessary that he pleaded the first preference votes scored by other candidates and the First Respondent.  The petitioner pleaded that the number of votes recorded against his name and used on the day of declaration was an error and that was sufficient. With respect, I agree with the petitioner that the facts was pleaded by him are sufficient for the purpose of s208(a) of the Organic Law.  Accordingly, I also dismiss this ground of objection to competency.

36.	The final part of Ground 3 of the objection states that the petitioner did not state when the elimination or exclusion commenced.  This ground is similar to the earlier grounds relating to date and time.  This ground has been answered earlier and dismissed.  It gets the same treatment.  It is dismissed as having no merit.

GROUND 4 OF FIRST RESPONDENT’S OBJECTION TO COMPETENCY OF PETITION

 37.	Again, the First Respondent argued under this ground that the petition did not state the date when the elimination process commenced.  This same pleading has been reported several times already and the Court has dismissed these grounds a few times already.  It is thus dismissed as being not necessary to plead it.  It is now a matter for evidence.  I dismiss this ground as well.

38.	The second argument under Ground 4 is that the petitioner did not say if John Liba was supervising the scrutiny of votes on the date without connecting him to the error.  John Liba was the Returning Officer and as such, he had the over-all responsibility to correct any error or omission during the material time.  Whether John Liba was present or not is not the issue.  He was in charge of the election for the seat as the Returning Officer.  Under his control, the error or omission was committed.  He failed to correct the error.  With respect, I agree with the contention by the petitioner.  Accordingly, I dismiss this ground of objection to competency.

39.	The third argument raised by the First Respondent under Ground 4 is whether any objections were raised by the petitioner’s scrutineers or scrutineers of other candidates and what answer John Liba gave them.  The petitioner in reply said it was not necessary to plead that and he did not rely on that pleading.  He asserted that an error or omission was committed and continued until the declaration and that the pleadings were sufficient.  Again, with respect, I have read the petition and I am satisfied that pleadings are sufficient for the purpose of S208(a) of the Organic Law.

GROUND 5 OF FIRST RESPONDENT’S OBJECTION TO COMPETENCY OF PETITION

40.	The First Respondent lists 5 arguments under this ground.  Having now read all of those grounds, Argument (a) raises the same issue about the dates of the elimination.  This has been determined several times and it gets the same treatment.  It is dismissed.

41.	Argument (b), (c), (d) and (e) are matters for evidence.  I do not think they should be pleaded as facts.  With respect, I dismiss all these remaining arguments.

42.	In summary, I dismiss all of the First Respondent’s objection to competency grounds as I am persuaded that the pleadings in the petition are sufficient for the purposes of S208(a) of the Organic Law.

DEALING WITH THE SECOND RESPONDENT’S NOTICE OF OBJECTION TO COMPETENCY OF PETITION

43.	The second Respondent’s objection to the competency of the petition contends that, the error or omission as pleaded could not have occurred because if it occurred at the commencement of the exclusion or elimination, it would have been picked up and noticed and corrected.  It contended that the error, given the facts in the petition, was unlikely to have occurred.

44.	With respect, this is a sweeping statement which generally is a denial by the Second Respondent.  It is in my view a matter for evidence.  Accordingly, I dismiss the first ground of competency raised by the Second Respondent.

45.	In relation to the Second Respondent’s second ground, he states that the error related to the results of the scrutiny as recorded in Forms 66A and 66B.  As the forms are the official records of the scrutiny results, challenging them must be with proper facts.  The petitioner pleads that at the completion of the first preference votes he was recorded to have scored 5,198 but that was reduced to 5,042.  The petitioner considers that to be an error and wishes it to be corrected by way of a recount.  But first of all, the petitioner will call evidence to prove there was an error on record.  That is a matter for evidence.  There are in my opinion sufficient facts pleaded in the petition to proceed to trial under s210 of the Organic Law.  Accordingly, I dismiss the second argument under Ground 5.

46.	The third ground states that the facts as set out in the petition are insufficient and fail to disclose material grounds.  In relation to this ground, I have already found that the facts or the state of affairs known to have existed at the time according to the petitioner are more than sufficient to proceed to the next stage and that is to proceed to trial.  Accordingly, I dismiss this final ground of competency.

47.	In summary, I dismiss the Second Respondent’s objection to competency in total.  Accordingly, I order the matter go to trial pursuant to s210 of the Organic law.

Orders accordingly.
_____________________________________________________
Simpson Lawyers: Lawyers for the Petitioner		    	  	    
Posman Kua Lawyers:  Lawyers for the First Respondent	       
Kimbu Lawyers:   Lawyers for the Second Respondent