N7191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No. 48 OF 2017

IN THE MATTER OF DISPUTED RETURN FOR THE
KAGUA ERAVE   OPEN ELECTORATE

BETWEEN
JOEL REKE RAITANO
Petitioner

AND:
WESLEY ORA RAMINAI, MP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri AJ
2018: 26th 27th March

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 ground of the petition. That the allegations were without satisfaction of that section and therefore incompetent and should be dismissed.

Held
Petition not pleading facts in satisfaction of Section 208 (a) of the Organic Law
Objection to competency upheld. Petition dismissed.

Cases Cited:
Papua New Guinea Cases

Agonia v Karo [1992] PNGLR 463; 
Aiwa Olmi v Nick Kuman [2002] PGNC 40; N2310 (9 December 2002).
Albert Karo v. Lady Carol Kidu [1997] PNLGR 99; 
Andrew Kumbakor v Joesph Sungi [2012] PGNC 287; N5002 (7 December 2012).
Baki Reipa v Yuntivi Bao [1999] PNGLR 232
Daniel Tulapi v James Lagea [2013] PGNC 121; N5235 (13 May 2013) 
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ekip v Wimb [2012]PGNC 200; N4899 (21 November 2012).
Ephraim Apelis v Sir Julius Chan [1998]PGSC 43; SC573 (9 October 1998); 
Francis Koimanrea v Alois Sumunda, The Electoral Commission and Paul Tiensten [2003] PNGLR 4 (13 March 2003)
Gabriel Dusava v Peter Waranaka [2008]PGNC 71; N3367 (19 March 	2008) 
Ginson Soanu v Bob Dadae [2004] PNGLR 166 ( 1 October 2004) SC 763
Holloway v Ivarato [1988] PNGLR 99; 
In re Menyama Open Parliamentary Election [1977] PNGLR 298
Jimson Sauk v Don Polye & Electoral Commission of Papua New Guinea [2004]PGSC 13 ;SC769(15 October 2004)
Karani v Silupa & The Electoral Commission of Papua New Guinea [2003] PGNC 249 N 2517 (16 March 2003) 
Kikala v Electoral Commission [2013]PGSC 48; SC1295 (18 November 	2013)
Ludger Mond v Jeffery Nape & others [2003] PGNC 149 N2318 (14 	January 2003)
Manase v Polye [2008] PGNC 44; N3341 (27 April 2008).
Mathias Ijape v. Biri Kimisopa [2003] PGNC 144; N2344 (6 March 2003)
Micah v Stuckey & Electoral Commission [1998] PNLR 151
Mili v Gaima [1997] PNGLR 645
Mune v Aigiru, Kaiulo & Electoral Commission[1998] PGSC 3; SC 590 (17 February 1997) [1997]PNGLR 28, 
Niningi v Electoral Commission of Papua New Guinea [2013] PGNC 122 N5322 (9 August 2013).
Nobert Kubak v Malakai Tabar [2012] PGNC 286; N4992 (15 November 2012); 
Oibotee v Allen [2013] PGNC 325; N5155 (8 April 2013).
Paru Aihi v Moi Avei [2004]PGNC 250; N2523 (26 March 2004); 
Philip Kikala v Nixon Mangape [2013] PGNC 15 N4960 (18 January 2013); 
Sai Beseoh v Yuntivi Bao [2003]PGNC 145; N2348( 10 March 2003)
Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC 1064 (9 July 2010); 
Vagi Mae v Jack Genia and Electoral Commission [1992]PGNC 34; N1105 	(30 August 1992)

Overseas Cases

Morgan v Simpson [1975] 1 QB 151	

Counsel:

K P Nugi, for the Petitioner
P Mawa, for the First Respondent
H Nii, for the Second Respondent
		
RULING
5th April, 2018
1.	MIVIRI AJ: This is the ruling on the objection to competency filed by the First and Second Respondents, the former on the 30th September, 2017 and the latter on the 21st November, 2017 against the Petition filed by the Petitioner who disputes the return for the Kagua Erave Open Electorate. Parties have addressed court on Monday 26th March, 2018.  I adjourned to consider all.

Background

2.	The elections were held 3rd July, 2017 with the declaration for the Kagua Erave open seat on the 31st July, 2017 at about 2.00pm. This is a total of 28 days in which this Constitutional process went through with the allowance of 6 days for weekends that would be 22 working days to see out the result that is challenged by this Petition. Primae facie this is the result that was accorded by the majority voters of Kagua Erave open. The return of the writ is a due process of law which stands the First Respondent as current Kagua Erave Open Member of Parliament. It is administered by the Second Respondent and therefore comparably what is challenged is also the integrity of the Second Respondent a creation of the Constitution Section 126 who discharges those duties detailed out by the Organic Law. It is a matter of grave importance as it originates and derives as its source from the National Constitution and Organic Law both supreme laws in the hierarchy of our laws. Hence, it cannot be a light matter both this court and the Supreme Court have set this out quite distinct and seminal.

3.	“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.
And further on (at 301) in relation to the seriousness of an electoral system, the learned Chief Justice referred to and cited from the English case of Morgan v Simpson [1975] 1 QB. 151 at p. 166:
. . . An election petition is a serious – and expensive – matter and is not lightly to be set aside.”
In a recent decision of Sakora J, in the case of Francis Koimanrea v Alois Sumunda, 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)
4.	It follows too that by the dictate of Section 158(2) of the Constitution paramount consideration here is given to the dispensation of Justice both for and against in the determination of this matter before me. And interpretation is pursuant to schedule 1.5 of the Constitution: Ginson Soanu v Bob Dadae [2004] PNGLR 166.

The petition

5.	Joel Reke Raitano an unsuccessful candidate for the Kagua Erave Open seat in the 2017 National Elections has filed this petition dated the 1st September, 2017. He secured 16, 555 votes, a difference of 4, 702 from the First Respondent who secured 21, 257 votes.  Both were amongst 32 others who ran for that seat on the 3rd July 2017. The Declaration was made on the 31st July 2017 about 2.00pm where the First Respondent was declared member elect and subsequently sworn in. The 32 other candidates eliminated have not come into court disputing their elimination in that process administered by the second respondent. Only one out of that 32, the Petitioner has raised this allegations in the petition.

6.	Understandably, he is the runner up, he is 4,702 votes short from the winning margin of 21, 257 polled by the First Respondent. Primae Facie the facts he pleads out in his grounds must be sufficient to draw the court to heed that there is jurisdictional basis to see out the matter. Primarily because he stands out of the 32 others in the race who is filing this petition. If this was how the Second Respondent conducted why has there being 32 other complaints lodged by Petition? Is it that what he complains was directed at him alone and not the others? And if it was carried out in that manner over the 22 or 28 days of the election why has there being no complaint by the other 32 candidates also in that race at that time and place?  All being at the same place at the same time all along would have seen what the Petitioner is contending and therefore would in all essence voice as he does now. All in the race 32 in all if indeed the truth would have been effected and no doubt would not have stood by as is the case now and petition vigorously. Could it be taken that the integrity of the process of election was maintained, there was compliance with the law and therefore there was no complaint. Or the 32 others simply accepted defeat and did not dispute. Or there was compliance with the law there was no need to complain by petition.

7.	The petition here is in these four basic terms:

(1)	Errors and omissions and /or illegal practises by the electoral officials and other unauthorized persons in the counting room during the eliminations who threatened and intimidated the petitioners scrutineers and other counting officials which effected the result of the election; 

(2)	Misallocation of votes and ballot papers in the eliminations contrary to Section 154 of the Organic law on National  and Local Level Government Elections and failure to scrutinize ballot papers of excluded candidates which effected the results of the election;

(3)	Counting environment not conducive which effected the results of the election; and,

(4)	Grounds upon which the Petitioner seeks to set aside the First Respondent’s  decision dated the 24th July, 2017 to refuse scrutiny and counting of Kola Council ward ballot box and Kaporoi council ward ballot box. 
Objection to competency

8.	Both objections to competency are derived from Section 210 of the Organic Law. In essence both seek to dismiss the petition in its entirety in that it does not comply with the mandatory requirement of Section 208 (a) of the Organic Law in particular that the facts relied upon are not set out in sufficient detail to have the respondents to prepare and respond to the case and importantly for the court to see with clarity the factual and legal issues emanating from those facts.

9.	Section 208 of the Organic Law requisites of petitions states: 

“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).”

10.	Section 208 (a) is not to be confused with evidence which comes after grant of jurisdiction to hear. As put by Learned counsel for the first respondent Mr Mawa, this is the “indictment and the evidence will be called following that indictment”.  Material facts must be pleaded to enable informed preparation by the respondents and for the court to be assisted with relevant facts giving rise to the issues and the law. Common sense and logic heeds that repetition of illegal or illicit, unlawful behaviour witnessed in broad daylight by the world at large would be the downfall of a candidate at elections similarly so of a criminal if it is a crime, a tort feasor if it is a civil wrong. In other words if the facts are repeated over and over again the breach is so obvious as to set aside the election of the seat. There need not be evidence but bare essential facts set out in the pleading of the petition. And this court has so stated in Mathias Ijape v. Biri Kimisopa [2003] PGNC 144; N2344 (6 March 2003) per Kandakasi J,

“What this means in my view is that, the prerogative belongs to the majority in an electorate to elect their representative to Parliament. It is a sacred right. Once that choice is made in a fair and free election, it can only be challenged strictly in accordance with the requirements of the Organic Law which grants a right to a person aggrieved by an election to challenge it.”

11.	This view is undisputed reaffirmed in Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC 1064 (9 July 2010); Nobert Kubak v Malakai Tabar [2012] PGNC 286; N4992 (15 November 2012); Andrew Kumbakor v Joseph Sungi [2012] PGNC 287; N5002 (7 December 2012).

12.	Section 210 of the Organic Law is the pillar that runs through this dispute authoritatively sanctioning that the petition will not proceed and cannot be entitled to proceed if the mandatory requisites under Section 208 (a) and 209 of the Organic Law are not fully complied with. Simply put facts must be pleaded to invoke the jurisdiction of the court to hear out the petition.

13.	Petitioner has not only put the key on the door but that it must fit the lock and if turned will open the door to sway the court in his favour against a process of the law, the National Constitution, the Organic law, and all other related laws, through which the first respondent has come out successful as the member for Kagua Erave open seat 2017. The election process is administered by the second respondent whose role is questioned by the petition. Primae facie, that even without opening the file on the evidence it brings out facts not the evidence contending questionable conduct, errors omissions as to the result attained at the end. It is therefore paramount to get the facts in order at the initial stages of the petition. Underlying are causes on disruption to goods and services to the particular electorate and the people there because the member is concentrating resources time and effort to keep his head in Parliament. It would serve the Constitution and law if the facts show without the evidence.

14.	And this is so because the word used at the outset is “shall” as opposed to “May”, it is therefore mandatory invoking strict compliance. This is confirmed by 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.” Section 209 relates to K5000 as security for costs. The compound reading or aggregate is that non compliance to set out the facts in a petition makes it incompetent and on that basis will not be heard effectively dismissing it.

15.	This view is affirmed by the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 at p 345:

 “.....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." 

16.	The strict requirement to comply with Section 208 of the Organic Law in the pleading of facts can also in my view be seen from another angle, under the Criminal Code Division 3, Corrupt and Improper Practises at Elections. These are strictly criminal offences which must be proved beyond all reasonable doubt like any other criminal offence. And they arise eventuate from the conduct and process of Elections. The Organic Law Section 205 reads:

 “Nothing in this Law shall derogate or be deemed to derogate the provisions of the Criminal Code, but a person is not liable to be prosecuted or punished both under this Law and under the Criminal Code for the same offence.” 

17.	The key word is derogate meaning that  the provisions  of the Criminal Code under  Division 3 are applicable but the proviso is that a person liable to be prosecuted or punished can be done either under the Organic law or the Criminal Code. And cannot be done together at the same time, either the proceedings are under the Criminal Code or the Organic Law. It does not devalue or diminish, deviate, or digress what is applicable under the criminal code. Both an Organic Law and an act of Parliament the criminal code are canvassing the same matter illegalities unlawful acts or omissions vitiating elections, the reasons underlying I have set out above.

18.	From Section 98 definitional section, then Section 99, the first criminal offence relating to corrupt and improper practises at elections of “personation” to the last offence of “false electoral claim ” Section 116 Criminal Offences primae facie which vitiate the electoral process. The pleading of facts is not just any other facts but material facts that warrant vitiating the elections calling for a hearing without hearing evidence by the Petition itself. The petition is sourced from the following relevant provisions of the Organic Law.

Law relied upon Petition

19.	These are Sections 215 (3) (a) (b) and 218 (1) of the Organic Law. Section 215 provides:-
         Voiding elections 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 practise.
(3)	The National Court shall not declare that a person returned as elected was duly elected or declare an election void

(a)	On the ground of an illegal practise committed by a person other than the  candidate and  without the candidate’s knowledge or authority; or

(b)	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 effected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

Section 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 effect 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 omission by, the officer did or did not effect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

20.	Both these provisions are distinct separate provisions voiding or vitiating the election. And this court has made this very clear in Daniel Tulapi v James Lagea [2013] PGNC 121; N5235 (13 May 2013) per Injia J (as he then was), 

“The grounds upon which an election or return may be invalidated are set in Section 215 (1) (illegal practises-bribery, attempted bribery, undue influence, attempted undue influence) section 215 (3) (a) (other illegal practises) and section 218 (errors and omissions). They are distinct legal grounds and there are fundamental legal differences between them. The essential and relevant facts pertaining to those grounds are different from those legal grounds”.

21.	And these has been further expounded by the Supreme Court in Kikala v Electoral Commission [2013]PGSC 48; SC1295 (18 November 2013) where the difference between, “illegal practises “from “errors” or “omissions”, is defined, “An illegal practise is a criminal offence that is proscribed by the Organic Law or the Criminal Code, whereas an error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction (Mune v Aigiru, Kaiulo & Electoral Commission[1998] PGSC 3; SC 590 (17 February 1997) [1997]PNGLR 28, Manase v Polye [2008] PGNC 44; N3341 (27 April 2008).
  
Issues

22.	Whether the petition complied with the requisites of Section 208 (a) of the Organic Law in pleading facts?

23.	What are facts within Section 208 (a) of the Organic Law?

24.	Did the petition plead facts within Section 215 that there were illegal practises committed which was likely to affect the result of the election and that these were committed by other persons with the knowledge of the respondent?

25.	Whether the petitioner pleaded facts consistent with section 218 not only that there were errors or omissions but that it did affect the result of the elections?

Agreed facts and Law

26.	It is undisputed that the law on this is very well settled by Delba Biri v. Bill Ninkama [1982] PNGLR 342 which has been adopted and 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] PGSC 43; SC573 (9 October 1998); Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC 1064 (9 July 2010); to name a few.

27.	The law is that the facts are not just any facts nor is it a general enquiry nor a mere statement, but, “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] PGNC 250;  N2523 (26 March 2004); Gabriel Dusava v Peter Waranaka [2008] PGNC 71; N3367 (19 March 2008). It is not the reading through of evidence 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.

28.	And the purpose of pleading is to indicate clearly the issues upon which the opposing party may prepare his case and enable the court to see what the issues are with clarity. 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] PGNC 40; N2310 (9 December 2002). The authoritative proportion of sections 208, 209, and 210 of the Organic Law is resoundingly conclusive as 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”, Mune v Aigiru, Kaiulo & Electoral Commission  [1997]PNGLR 28.

29.	This has always been the Courts view and is the law currently: Delba Biri v Bill Ninkama [1982] PNGLR 342 at 345:

“In our view, it is clear that all 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. In our opinion, it is beyond argument that if a petition does not comply with all or any of the requirements of section 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of section 210 of the Organic Law”.

30.	The court has seen and has made clear pronouncements of the law in Delba Biri v Bill Ninkama (supra) which I adopt in this judgment and ruling:

“…it seems to us that the statute has clearly expressed its intentions that a petition must strictly comply with Section 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 to electing the candidate that the majority prefer. This is a sacred right and the legislator as accordingly laid down very strict provisions before they can be any challenge to the expression of the will of the majority”
Disputed grounds

31.	Petitioner contends that, aside from the strict application set out above, there is also the liberal approach and cites Jimson Sauk v Don Polye & Electoral Commission of Papua New Guinea [2004] PGSC 13; SC769 (15 October 2004) 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. It is my view that just because a petitioner not a lawyer is allowed to file his own petition it does not lower what is set out by section 208 (a) of the Organic law. That is the standard set by law and now affirmed by judicial interpretation law unto itself, and failing to heed will be detrimental to any cause or petition filed.

32.	Section 222 is headed “counsel or Solicitor” does not in my view extend the cause of the petitioner any further. 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.”

33.	This reinstates the law under section 208 (a), even if petitioner files his petition in person. The Supreme Court’s observation in Ginson Soanu v Bob Dadae (supra); Jimson Sauk v Don Polye (supra) that the intent of the legislature cannot be set aside but respectfully the involvement of lawyers have contributed to the decisions of the court and the current development of the law. In my respectful view this is not swaying away from the intent of the legislature but giving paramount effect to it in the dispensation of Justice for the petitioner as well as the mass. It follows that the argument as to whether the involvement of a lawyer or not in the initial stages does not advance the cause of the petitioner any further. And to argue “nit picking” is unnecessarily picking at peripheral collateral, not the underlying fundamental so as to effect the decision of the court.

The Petitioners case

34.	Having set these in place I now consider and analyse the petition in the light of the objections raised. The petitioner has argued that in all fairness the petition as framed, adequately pleads the facts and does not prejudice the respondents in the preparation of their cases. It is therefore competent and must proceed to a full hearing. Particularly paragraph 6 and 8 of the petition, the former is misallocation of ballot papers belonging to the petitioner in exhausted boxes and that of other candidates. The latter pleads facts regarding the electoral officers error committed in making the decision not to count the two Kola and Kaporoi boxes and is grounded in section 218 (1) being errors by electoral officers.

35.	And adopts as bases Vagi Mae v Jack Genia and Electoral Commission [1992]PGNC 34; N1105 (30 August 1992) per Sheehan J that:

“Section 208 (a) stipulates that particular facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded”

36.	And reverts to Section 217 of the Organic Law that the court is guided by the substantial merits and good conscience of each case without regard to Legal Forms and technicalities which has been shown in the facts as pleaded. That it would do justice to adopt the liberal approach as contended here. That the court should be mindful and cautious of the need not to indulge in a mischievous importation of an intention or purpose never intended or envisaged by the Legislature.

37.	In my view it is not mischievous importation to give a fair and liberal interpretation consistent with current status of the law. To go outside would be fatal as it is not on the basis of the prevailing law. Whether it is liberal or strict interpretation it is based upon the law current not without. I have set out the authorities adequately above and I need not repeat suffice to say facts must be pleaded prima facie not the evidence.

Grounds of Petition objected to

38.	The first ground of the petition is paragraph 5 which is as follows:

 “Errors, omissions and or illegal practises by the Electoral officials and other unauthorized persons in the counting room during the eliminations who threatened and intimidated the petitioner’s scrutineer and other counting officials which affected the result of the elections”.

39.	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.” 

40.	This is the law and the Courts have been consistent all along for instance in Karani v Silupa & The Electoral Commission of Papua New Guinea [2003] PGNC 249 N 2517 (16 March 2003) per Justice Sawong:

 “In so far as a petition grounded on illegal practise or errors or omissions founded for instance in Sections 215 or 218 of the Organic Law, the principles are fairly well settled. For instance, if the petition is grounded upon illegal practises, (other than bribery or undue influence) under Section 215, then the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practises must plead material facts to show the following;	

(a)	the illegal practise;
(b)	the illegal practise was either committed by the successful candidate
or committed by another person but with the successful candidate’s knowledge or authority;
(c)	the result is likely to be effected by the illegal practise;
(d)	it would be just that the candidate should be declared not duly elected or the election be declared void;

41.	Applying the law I have considered at length this ground of the petition and am not satisfied that in the form it is pleaded it satisfies the mandatory requisites of Section 208 (a) of the Organic Law. I accept the submission of the respondents that when the petitioner invoked Section 218 (1) and 215 (3) of the Organic Law the winning margin must be stated in the body of the petition. Because it would determine if the votes effected by the errors and omissions and illegal practises exceeded the winning margin and whether this would have effected what the first respondent scored here to win. And that is consistent with Alfred Manase v Don Polye [2008] PGNC 181 N3534 (1Dec 2008); Philip Kikala v Nixon Mangape [2013] PGNC 15 N4960 (18 January 2013); Oibotee v Allen [2013] PGNC 325; N5155 (8 April 2013).

42.	And I adjudge that the winning margin is under the Limited Preferential System (LPV) winning margin of which was to be shown by pleading:

(i)	The total number of votes in the count after the final exclusion.
(ii)	50% plus I vote of the total votes at the final exclusion
(iii)	The petitioner’s total votes at the final exclusion.
(iv)	The first respondents total votes at the final exclusion. 
(v)	The winning margin was the total number of votes first respondent scored over and over the absolute majority required to win the elections.

43.	And this is not the case here; “I accept the respondents submission that in order to arrive at the winning margin, the total number of allowable ballot papers after the final exclusion has to be pleaded including the absolute majority required to win and from there the winning margin can be stated or pleaded. If these relevant facts are not pleaded, how can the court make a finding that as a result of these election irregularities, the election was likely to be effected or indeed was effected? Furthermore how can the court make the finding that the number of votes effected by the alleged illegal practise or errors and omissions is less than or more than the winning margin when what the winning margin is has not been pleaded properly? I am satisfied that the facts setting out the errors and omissions by the first respondent in relation to the winning margin are insufficient. This ground is struck out” per Makail J Philip Kikala v Electoral Commission of Papua New Guinea (supra). 

44.	I adopt what his honour stated in that case as my own relevant and applicable here given the facts and circumstances. I reject the petitioner’s submission and accept the respondent’s. I determine and adjudge that this ground paragraph 5.1 to 5.1.5 is incompetent as being, “evidence” and will be struck out, Philip Kikala v Electoral Commission of Papua New Guinea (supra) and in its present form and mode this paragraph has no facts making it incompetent as a ground in the petition within Section 208 (a) of the Organic Law. In the exercise of my discretion under section 210 of the Organic Law it will not proceed as a petition and will be dismissed in its entirety.

45.	Ground 6 of the petition 6.1 to 6.2.9 is illegal practises and or errors and omissions by counting officials by deliberate misallocation of ballot papers in hundreds belonging to the petitioner. This is founded upon Section 215 and 218 of the Organic Law. I have set out the law detailed above which is equally applicable here. And I determine and adjudge that in the form and manner pleaded there are no facts in satisfaction conforming to the strict requisites of Section 208 (a) of the Organic Law in particular it does not plead as to how the results of the election are effected. And it also does not plead as to the fact that these were done with the knowledge and acquiescence of the First Respondent as the winning candidate. He knowingly enticed, encouraged, aided and abetted in the final outcome his win. That is not the status of the facts pleaded, he cannot be held responsible for a matter which is not his doing and which does not effect the overall result of the election. To go piece meal each of the particulars set out from 6 to 6.2.9 will come to the law the facts are lacking as to how the respondents were a party to the eventual result that came out. 

46.	There is clear definition of an error or omission and illegal practise both under separate provisions of the Organic Law 215 and 218 (Kikala (supra)) and this is not set out distinctively as such, in the former facts to show that what was done was an illegal practise and done with the knowledge of the respondent and did affect the result of the election. For instance if the aggregate of paragraph 6.2.2; 6.2.3; 6.2.5 is to be accepted on its value that would be 2,625 ballot papers which is still a long way away from the winning margin of 21, 257. Petitioner polled16, 555 votes a difference of 4, 702 from the first respondent who secured 21, 257 votes. Even with the addition of 2625 petitioner would still be short by 2077 votes to win. It would not affect the result of the elections: Daniel Tulapi v James Lagea (supra). I adopt further Baki Reipa v Yuntivi Bao [1999] PNGLR 232.

47.	To go further the winning margin under the LPV system was set out by Justice Lay in Manase v Polye (supra) as:
“The proper course in this case, following the case law authority and s168 of the Organic Law is simply to compare the number of votes effected by the allegations in the petition with the relevant winning margin. In this case the total number of valid votes cast was 31, 592 (from form 66) giving an absolute majority of 15, 799. Mr Polye received a total of 21, 820 votes, therefore the relevant winning margin; the number of votes the successful candidate received above the absolute margin is 6023. Consequently the number of votes in dispute 14, 999, assuming ground E1 not proved, substantially exceeds the winning margin”
48.	 This is the law and to confirm with Section 208 (a) of the Organic Law the winning margin must be pleaded out in the petition:
“In fact, the failure to state the winning margin under the LPV system means that the petitioner has failed to plead a very material fact. Ideally, the petitioner should have pleaded the following in the petition;
(i)	The total number of votes scored by the first respondent at the time of the declaration,
(ii)	The total number of votes scored by the petitioner at the time of the declaration,
(iii)	The total number  of votes scored by the runner up at the time of the declaration,
(iv)	The difference of votes between the winner and the petitioner,
(v)	The total number of allowable ballot papers remaining in count after the final exclusion and before the declaration was made.
(vi)	The absolute majority (50 %+) votes required to win the election.
(vii)	The winning margin (see Manase v Polye (supra) and Kikala v Mangape (supra)
	The petitioner has not only not pleaded the winning margin but also failed 	to plead the following material facts;
(viii)	The total number of allowable ballot papers remaining in count after the final exclusion before the declaration was made,
(ix)	The absolute majority (50%+) of votes required to win the election,
(x)	The total number  of votes that the winning candidate scored above and beyond the absolute majority required to win, being the “winning margin”
49.	This petition before me does not plead the winning margin as required by law which effect is that it is difficult to determine the result of the election as to how it was effected by the error and omissions under Section 218 (1) of the Organic Law and similarly under Section 215 (3) of illegal practises under the Organic Law.

50.	And I am of the view that this is equally applicable to paragraph 7.1; and 7.2 which are much generalized scope without any facts pleaded at all. The substance of these paragraphs as pleaded do not effect the result of the elections, “For it is not the role of the Court to draw possible conclusions or infer possible situations or speculate. This is the case because, unlike any other matter that goes to the National Court, election petitions fall in a special jurisdiction, in which each ground stated in a petition is a separate issue for trial” per Kandakasi J in Ekip v Wimb PGNC 200 ; N4899 (21 November 2012).

51.	I adjudge that Paragraph 8 to 8.4 grounds upon which the petitioner seeks to set aside second respondent’s decision dated the 24th July, 2017 to refuse scrutiny and counting of ballot box from Kola Council ward and ballot box from Kaporoi council ward is for all intent and purposes evidence. And as such what is fact cannot be clearly identified in its mist. Because it is of the Petitioner with clarity to plead the relevant fact in establishing legal grounds of errors and omissions under Section 218 (1) of the Organic Law. It befalls on him and not the respondents nor the courts duty to work out and determine what are the facts pleaded to arrive at the grounds relied to invalidate. Given the body of  the  petition must plead the number of votes effected by the errors or omissions so as to effect the election result drawing parallel with Section 218 (1) of the Organic Law. I adopt Sai Beseoh v Yuntivi Bao [2003]PGNC 145; N2348 (10 March 2003) that requirements of:

“Section 218 (1) of the Organic Law has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how the delay, error or omission did effect the result of the election. Mere pleading of the delay in the polling and errors and omissions will not suffice. Likewise mere pleading that the result was effected will not suffice.”

52.	 Speculative or conjecture pleading, “these two boxes were from the petitioner’s mother’s villages where he had considerable support from. Accordingly he expected more votes from these two boxes which would have determined his win”. It is not of the Court to shift through evidence to supply the deficiency, “ It is therefore critical for the  survival of an election petition from judicial scrutiny under Section 210 for a petitioner who raises grounds in a petition under s215 (3) and s218 to plead the essential facts in figures to demonstrate how the result of the election was effected or is likely to have been effected by those illegal practises, errors, omissions and irregularities,” (per Injia CJ in Daniel Tulapi v James Lagea (supra).

53.	The exclusion of the two ballot boxes was not the decision of the first respondent Wesley Ora Raminai MP. They are rightly of the second respondent pursuant to section 153A where he has refused to admit to scrutiny both in that the votes contained were not lawfully cast and that the boxes were tampered with. And that he has made that decision upon receiving and considering material pursuant to subsection (2).  Here, “A breach of s.153A and regulation s.90 constitute an error or omission which in turn constitutes a ground upon which an election or return may be voided, a situation that comes within the terms of section 208 (a). Section 208 (a) read in conjunction with s.153A and the Regulations s.90 requires a petition to plead the requirements of essential and material facts alongside the requirements of s.153A and Regulations…

54.	The pleadings should contain a concise statement of the procedural requirements of s.153A, and s.90 of the Regulations and how the procedure was applied and reasons why the petitioner is aggrieved by the decision. Whilst it is true that Section 208 (a) requires facts to be pleaded to support a ground for voiding an election or return, that ground derives its source from the provisions of Organic Law or the Constitution, and it would be a critical omission under s. 208 (a) for a petition if it fails to make reference to the applicable provisions that establish that ground and relate the facts to it. There must be a connection or correlation between the facts and the legal ground relied upon to void the election, by way of pleading, to meet the mandatory requirements of s. 208 (a): Holloway v Ivarato (supra); Mune v Aigiru (supra).

55.	In Order for this Court to review the RO’s decision to reject or admit a ballot box from scrutiny, the petitioner must, in the Petition, plead the matters set out in  s. 153A (1) (2) & (3); coupled with a clear and concise statement as to what is wrong with the RO’s decision. Those are relevant and material facts required to be pleaded in a petition pursuant OLNE, s. 208(a) read in conjunction with s.153A’ per Injia CJ in Niningi v Electoral Commission of Papua New Guinea [2013] PGNC 122 N5322 (9 August 2013).

56.	That has not been done to bring the pleading within the scope of Section 208 (a) of the Organic Law. The ground in its entirety in the form and manner pleaded in the petition cannot proceed to trial. In the exercise of the powers under section 210 of the Organic Law it will be dismissed in its entirety with costs to the respondents.

57.	And I make the following orders:

(i)	The Respondents’ Objections to competency of the petition are upheld.
(ii)	The Petition is dismissed in its entirety.
(iii)	The Petitioner shall pay the Respondents’ costs of the proceedings including the competency applications to be taxed if not agreed.
(iv)	The security deposit of K5000 held by the Registrar shall be released and paid to the Respondents in equal share.

Orders accordingly. 

__________________________________________________________________
Pang Legal Services:  	Lawyer for the Petitioner
Mawa Lawyers: 		Lawyer for First Respondent
Harvey Nii Lawyers: 	Lawyer for the Second Respondent