N10358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 11 OF 2022 (IECMS)

IN THE MATTER OF A DISPUTED RETURN FOR THE
 YANGORU SAUSSIA OPEN ELECTORATE

BETWEEN:
PETER WARARU
Petitioner

AND:
RICHARD MARU  
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Shepherd J
2023:  17th May, 22nd June

ELECTION PETITION - Challenge by petitioner to respondents’ Objections to competency – whether failure to cite reference to Rule 12 of Election Petition Rules 2017 as jurisdictional basis for objection is a ground for dismissal of the objection  – Rule 12 of Election Petition Rules requires Objection to be in Form 4 – no requirement in Form 4 to cite Rule 12 as jurisdictional basis for Objection  – whether filing of Objection outside 14-day time limit stated in Rule 12 of Election Petition Rules 2017 is fatal to validity of Objection – issue of competency of an Objection can be raised at any stage of the proceedings including at trial – Rule 12 of Election Petition Rules is directory not mandatory – petitioner’s challenge to respondents’ Objections refused. 
ELECTION PETITION – Objection to competency – petition stating witness’s occupation as “subsistence farmer” – Section 208(d) of Organic Law on National and Local-level Government Elections – term “subsistence farmer” sufficiently descriptive of occupation of witness for purposes of Section 208(d) – objection on this ground rejected. 
ELECTION PETITION – Objections to competency – Organic Law on National and Local-level Government Elections, s.208(a) – mandatory requisites of petition – whether petition adequately sets out facts relied on to invalidate election – Organic Law, s.217 – real justice to be observed – whether a ground of a petition should observe distinction between illegal practices under Organic Law, s.215 and errors or omissions of electoral officers under Organic Law, s.218 – the distinction is important for purpose of identifying known grounds for invalidating election – the distinction is also important because penalties and standard of proof differs between “illegal practices” and “errors or omissions” - facts set out in petition must be material facts – material facts include facts to establish the winning margin by reference to total votes cast for winning candidate and runner-up (margin of 50% plus one) – insufficient material facts set out in subject petition to establish foundation to invalidate the election – failure to specifically seek relief by way of re-count of ballot-papers under Organic Law, ss. 208(b) and 212(1)(d) – Objections to competency upheld - petition dismissed.  
Cases Cited:

The following cases are cited in the judgment: 
Agarobe v Peter (2023) N10141
Aihi v Avei (No. 2) (2003) SC720
Amet v Yama (2010) SC1064
Chan v Apelis [1998] PNGLR 408 
Elemi v Sir Ano Pala and Electoral Commission (2023) N10112
Hagahuno v Tuke (2020) SC2018 
Kamma v Itanu (No. 2) (2008) N3261
Karani v Silupa [2003] PNGLR 403
Koimanrea v Sumunda (2003) N2421
Kramer v Duban (2012) N4884
Kubak v Trawen (2012) N4992
Manase v Polye (2009) N3718
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Mond v Nape (2003) N2318
More v University of Papua New Guinea [1985] PNGLR 401
Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1
National Capital District Commission v Central Provincial Government (2015) SC1429
Olmi v Kuman (2003) N2310
Opi v Telikom PNG Ltd (2020) N8290 
Papua New Guinea Banking Corporation v Tole (2002) SC694
Parkop v Juffa and Electoral Commission (2023) N10153
Paki v Motor Vehicles Insurance Limited (2010) SC1015
Pogo v Zurunuoc (2003) N2341
Powi v Kaku (2022) SC2290  
Talita v Ipatas (2016) SC1603
Tulapi v Luta [2000] PNGLR 120
Undialu v Potape and Electoral Commission (2020) SC1981
Wararu Waranaka v Maru and Electoral Commission (2018) N7346
Warison v Arore (2015) SC1418 
Yama v Yagama (2012) N4928
Zeming v Bomareo and Electoral Commission (2019) N8216

Legislation: 
Constitution, s.155(4)
Criminal Code Chapter 262, Division 3 of Part 111, ss.99, 102, 103, 105, 106, 108, 110 
Election Petition Rules 2017, Rules 12, 16, 19(1), 22(1), Schedule 2, Forms 1 and 4 
Electoral Law (National Election) Regulations 2007, ss.7, 86(1), 87
Organic Law on National and Local-level Government Elections, ss. 129, 138, 152, 153A, 208, 209, 210, 215(1) and (3), 217, 218(1) 
National Court Rules, Order 4 Rule 49(5)  

Counsel
David Datoana, for the Petitioner
Tony Waisi, for the First Respondent
Warep Pep, for the Second Respondent 

DECISION
22nd June, 2023
1.	SHEPHERD J: This is a decision on two objections to competency of an election petition.  The petition was filed on 29 August 2022 by unsuccessful candidate Peter Wararu (the petitioner). The petition disputed the result of the election of first respondent Richard Maru as member for the Yangoru Saussia Open Electorate, East Sepik Province in the 2022 National Elections.  The Electoral Commission is the second respondent.
2.	There are seven grounds pleaded by the petitioner by way of challenge to the validity of the election:  

	(1)	Unauthorized polling in East Yangoru Local Level Government (LLG) area.
	(2)	Error by second respondent in setting up specific voting compartments for the first respondent in all polling places in Numbo LLG area.
	(3)	Consumption of alcohol by polling officials at Saussia LLG chambers where ballot boxes were stored.
	(4)	No returns for polling at all wards in each LLG area.
	(5)	Counting of disputed ballot boxes in Numbo LLG area.
	(6)	 Errors and omissions during counting for Yangoru Saussia Open Electorate.
	(7)	 Discrepancies during counting for Yangoru Saussia Open Electorate. 

3.	The petitioner submits that the grounds of his petition raise three general issues:

	(a)	irregularities, errors and omissions in polling in the electorate;
	(b)	irregularities, errors and omissions in counting of votes for the electorate;
	(c)	illegal practices committed by the first respondent, the second respondent and their agents.
4.	The petitioner seeks, among others, a declaration that the election of the first respondent is void and an order for a by-election.  
5.	The respondents have filed notices of objection to competency and claim that the entire petition is incompetent and should be dismissed.
6.	The first respondent filed his notice of objection to competency of the petition on 23 September 2022. 
7.	The second respondent filed its notice of objection to competency of the petition on 4 November 2022.  
PETITIONER’S CHALLENGE TO OBJECTIONS TO COMPETENCY OF PETITION
8.	The petitioner challenges the validity of the respondents’ notices of objection to competency of the petition. The petitioner asserts that the two notices of objections are themselves incompetent because each has failed to comply with the requirements of the Election Petition Rules 2017.
9.	Rule 12 of the Election Petition Rules states:
	12.	Objection to Competency
	A respondent who objects to the competency of a petition shall, within 21 days after service of the petition—
	(a)	file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
	(b)	serve a copy of the objection on the petitioner and on each of the other respondents; and
	(c)	file and serve all affidavits in support of the objection.
10.	The petitioner argues that the respondents’ objections to competency both failed to cite any reference to rule 12 of the Election Petition Rules and therefore each objection has no jurisdictional basis and should be dismissed, thereby allowing the petition to go to trial.
11.	The petitioner’s submission in this regard appears to have been prompted by Order 4 rule 49(5) of the National Court Rules which stipulates in mandatory terms that all motions must contain a concise reference to the Court’s jurisdiction to grant the orders sought and that in the absence of such reference then the Court may strike out the motion for being incompetent and for lack of form.
12.	However, an objection to competency in electoral petition proceedings is not the same as a motion in ordinary civil suit.  It is an entirely different creature of statute. Rule 12(a) of the Election Petition Rules specifically requires a notice of objection to competency to be in accordance with Form 4.  
13.	Form 4 in Schedule 2 of the Election Petition Rules is set out below: 
				NOTICE OF OBJECTION
	The ....... (state whether first or second or other) respondent OBJECTS to the competency of this petition on the following grounds:
	(set out concisely the grounds of the objection in numbered paragraphs, by reference to specific provisions of the Organic Law that it is claimed have not been complied with, eg, sections 206, 208 and/or 209).
	Dated this ......... day of ................., .......
	......................................................
	(Insert number ie first, second or third) respondent
	(To be signed by the respondent or the respondent’s lawyer)
14.	Form 4 contains no text that requires specific reference to be made to the Court’s jurisdiction to entertain an objection to competency of a petition.  It is not a requirement of the Election Petition Rules that rule 12 be referred to as the jurisdictional basis of the objection: Parkop v Juffa and Electoral Commission (2023) N10153 per Cannings J at p.7.
15.	I accordingly reject the petitioner’s contention that the two objections to competency should be dismissed on this ground. 
16.	The petitioner then argues that the respondents’ objections to competency are incompetent because both respondents failed to file and serve any affidavits in alleged breach of rule 12(c) of the Electoral Petition Rules. 
17.	I reject this argument for the reason that rule 12(c) imposes no mandatory obligation on a respondent to file affidavit material in support of an objection to competency of a petition. Rule 12(c) is merely declaratory to the effect that if a respondent intends rely on affidavits in support of a formal objection, then affidavits must be filed and served.  It is a statement of the obvious.  The fact that neither respondent in the present instance filed any affidavit material in support of their respective notices of objection cannot possibly invalidate their objections.  The respondents have each determined that no affidavit material is necessary to support their objections to competency of the petition.  There is no statutory impediment to prevent their having come to that tactical decision.  Their arguments are based on matters of law alone.
18.	The petitioner has also sought to challenge the second respondent’s objection to competency on the further ground that the second respondent filed its notice of objection late, well outside the time limit provided by rule 12(a) of the Election Petition Rules.  
19.	As already noted, rule 12(a) provides that an objection to competency in Form 4 must be filed within 21 days after service of the petition.  
20.	I find that the second respondent’s notice of objection conforms with the prescribed Form 4.  It is not in dispute that the petition, filed on 29 August 2022, was served on the office of the Electoral Commission on 7 September 2022.  The 21-day period allowed by rule 12(a) for the filing of the second respondent’s notice of objection to competency therefore expired on 28 September 2022.  The petitioner argues that strict adherence to rule 12(a) is required.  The petitioner submits that the second respondent’s notice of objection, having been filed 39 days late, is itself incompetent and should be dismissed, particularly because the second respondent did not seek the Court’s leave to file its objection to competency out of time.
21.	 I interpret the word “shall” where it appears in rule 12(a) of the Election Petition Rules as being permissive or directory rather than mandatory. My reason for this is because it is settled law that the question of competency of an election petition in itself raises the issue of jurisdiction and can be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in a petition at any stage of the proceedings: see for example Amet v Yama (2010) SC1064 (Salika DCJ as he then was, Batari, Davani JJ); Yama v Yagama (2012) N4928 (Cannings J); Kubak v Trawen (2012) N4992 (Kariko J); Elemi v Sir Ano Pala and Electoral Commission (2023) N10112 (Cannings J).
22.	According to rule 16 of the Electoral Petition Rules, the Court can deal with any objection to the competency of a petition at the trial of the petition.  In practice, most objections to competency are dealt with by the Court in advance of trial because if the objection is upheld in its entirety and the petition is dismissed, no trial will take place and the parties are saved the substantial costs associated with a contested trial.  
23.	In Kubak v Trawen (supra) it was succinctly stated by Kariko J at para. 13 that:
      “	Clearly, it makes no sense proceeding to trial if the Court sees merit in an objection to competency notwithstanding the objection being raised late.  If the objection succeeds, that is the end of the matter and much time and money is saved.”
24.	Further exposition of the law relating to delay in raising objection to competency of an election petition is to be found in Zeming v Bomareo and Electoral Commission (N8216) where David J said this at para. 15, citing Yama v Yagama (supra) and Amet v Yama (supra):
      “	It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds ... It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed... Any prejudice caused to the petitioner can be accommodated by an order for costs.” 
25.	Moreover, even though the second respondent’s notice of objection was technically non-compliant with the time limit of 21 days stipulated in rule 12(a), the Court has a wide discretion to grant relief from strict compliance under rule 22(1) of the Electoral Petition Rules, which states:
	22(1)	The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises. 	
26.	Based on the well-established principle that a respondent can raise objection to the competency of an election petition at any time after commencement of the proceedings right through until the time of trial, I consider that there is no merit in the petitioner’s argument that the late filing of the second respondent’s notice of objection by 39 days in any way invalidates the second respondent’s objection. The petitioner has not been taken by surprise.  The petitioner has been on notice of the second respondent’s grounds for objection to the petition as from early November 2022.  The petitioner has had ample time to prepare his response.  I reject this ground of challenge by the petitioner to the second respondent’s notice of objection to competency.
27.	I therefore refuse the petitioner’s application to dismiss the objections to competency of the first respondent and the second respondent as being non-compliant with the Election Petition Rules.  The two objections to competency are validly before the Court and will now be considered.

GROUNDS OF RESPONDENTS’ OBJECTIONS TO COMPETENCY OF PETITION
General Observations
28.	The grounds of the respondents’ objections to the competency of the petition are largely a duplication of each other.  I will therefore deal with both objections together.
29.	The respondents contend that each of the seven grounds of the petition fail to comply with s.208(a) of the Organic Law. 
30.	There are two common threads to the respondents’ grounds of objection, each of which   go to the jurisdiction of this Court to deal with the petition:
	(1)	Whether the petition pleads sufficient material facts to invalidate the election for the purposes of s.208(a) of the Organic Law.  The respondents contend that the petition has failed to plead sufficiency of material facts to clearly demonstrate how alleged illegal practices and alleged errors and omissions by electoral officials and others could have affected the result of the election within the meaning of s.215(3) and s.218(1) of the Organic Law.
	(2)	Whether the term “subsistence farmer” sufficiently describes the occupation of the two attesting witnesses to the petition for the purposes of s.208(d) of the Organic Law. 

Applicable Law 
31.	Section 208 of the Organic Law states:	
	208.	Requisites of Petition
	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 election; and
	(d)	be attested by two witnesses whose occupations and addresses are stated; and
	(e)	be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
32.	Section 209 of the Organic Law requires a petitioner to pay a deposit of K5,000 to the Registrar of the National Court at the time of filing of the petition as security for costs.
33.	Strict compliance by the petitioner with the requirements of ss. 208 and 209 of the Organic Law is mandatory.  No leeway can be allowed.  This is because s.210 of the Organic Law provides:
	210.	No proceedings unless requisites complied with
		Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with. 
Illegal Practices
34.	Division 3 of Part III of the Criminal Code Chapter 262 prescribes a comprehensive series of criminal offences in connection with corrupt and improper practices at public elections. These criminal offences include undue influence by force, threats or fraud to induce an elector to vote in a particular way or to refrain from voting (s.102); bribery of electors and persons in connection with the election process (s.103), illegal practices such as statements defamatory of a candidate or provision of money for payments not allowed by any law relating to elections (ss.105, 106), wilful interference at elections by intrusion in a polling booth without lawful authority or disruptive conduct during election proceedings (s.108) and stuffing of ballot boxes with unlawful ballot-papers (s.110).   
35.	According to s.215(1) of the Organic Law, an election can be declared void if it can be proven that a successful candidate has committed, or attempted to commit, undue influence or bribery of a voter.  
36.	However, s.215(3) of the Organic Law provides an important corollary in that the Court cannot declare an election void on the ground of:
(1)	an illegal practice committed by a person other than the candidate where that illegal practice has been committed without the candidate’s knowledge or authority; or
(2)	an illegal practice other than bribery or undue influence or attempted bribery or attempted undue influence,
unless the Court is satisfied that the result of the election was likely to be affected.
37.	The full text of s.215 of the Organic Law is set out below:
	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—
		(a)	on the ground of an illegal practice 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,
		unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that candidate should be declared not to be duly elected or that the election should declared void.
Errors and Omissions
38.	Where facts are pleaded in a petition which relate to alleged errors or omissions said to have been committed by electoral officials, those facts must clearly demonstrate how the alleged errors or omissions affected the result of the election if the election is to be declared void.  This is because s.218 of the Organic Law expressly provides:
	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. 
Real Justice to be observed
39.	Overarching all of these provisions dealing with election petition proceedings is s.217 of the Organic Law which states:
217.	Real Justice to be observed
		The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
40.	The role of s. 217 of the Organic Law in election petition proceedings was extensively addressed by the Supreme Court in the recent leading case of Hagahuno v Tuke (2020) SC2018 (Kandakasi DCJ, Kirriwom, Mogish, Manuhu, Makail JJ) which held, among others, that:
	(1)	In deciding whether a petition meets the various requirements of s.208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s.217 of the Organic Law on National and Local-level Government Elections.
	(2)	Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition.  Many previous decisions, especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s. 217 only applies once a petition has been held to comply with the requirements of s.217, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decisions were no longer suitable to the circumstances of the country. 
41.	I am therefore mindful that Hagahuno v Tuke and s.217 of the Organic Law are the paramount statutory provisions which must guide this Court when determining the two respondents’ present objections to competency of the subject petition.
42.	As an aside, I observe at this juncture that the petition does not strictly conform to Form 1 of Schedule 2 of the Electoral Petition Rules. This is because:
•	the “GROUNDS” relied on by the petitioner are erroneously said to be “FACTS” in Section B of the petition 
•	the alleged “FACTS” upon which the petitioner relies on are erroneously said to be “GROUNDS” in Section C of the petition. 
If the petition had properly adhered to Form 1 of the Electoral Petition Rules, the “FACTS” should have been set out in Section B and the “GROUNDS” should have been set out in Section C, not vice versa.   However, this is the very sort of technical infringement which the Court is required to disregard by operation of s.217 of the Organic Law, and as recently emphasised by the Supreme Court in Hagahuno v Tuke.   I therefore take no judicial issue with the erroneous layout of the content of Sections B and C of the petition.  
Limited Preferential Voting System
43.   Papua New Guinea adopted the Limited Preferential Voting system (LPV) in 2007 for national and provincial elections.  The LPV replaced the previous electoral system, known as First Past the Post.  Generally, the LPV system requires a candidate to secure 50% plus (+) 1 of the total allowable ballot-papers during the scrutiny phase. Where no candidate achieves this objective after the preliminary (or first or primary) count, the count proceeds to the elimination process which triggers scrutiny of the second and third preference votes, starting with the candidate with the lowest number of votes whose votes are re-distributed to the others who are still in the race, until the objective of 50% + 1 is achieved, and a candidate is declared the winner.
44.	The LPV is succinctly described in Kamma v Itanu (No. 2) (2008) N3261 by Kandakasi J (as he then was) at para. 49:
      “Under the previous election system, a candidate who secured the highest number of votes on the first count usually got declared as the winner of an election.  This changed under the new limited preferential voting system or LPV in short.  That is a system that allows for accounting of every voter’s votes in his ballot paper not once but three times unless they become exhausted.  This becomes relevant if no candidate contesting an election secures 50% plus one of the primary votes.  With the exception of one or two seats in Parliament, it has been practically impossible for one candidate to master such votes on the count of primary votes.  Hence, the LPV system has proven a very useful system with a voter’s second and third preference being counted and ensuring that a candidate who eventually wins becomes a representative of the majority of an Electorate rather than only a part of the Electorate as was the case under the previous system.  Given that, every process of elimination until a candidate secures the 50% plus one vote to become the winner is critical and important under the LPV system.  Consequently, the distribution of the preferential votes of a candidate that is being eliminated also becomes very important because they add to the tally of the candidates who are still in the race, again excepted for exhausted votes.  It follows therefore that, except for the votes that become exhausted, the eliminated candidate’s votes remain useful and do have the potential to affect the eventual outcome of the election.”
45.	Having set out a summary of applicable law, I pass now to a consideration of the respondents’ objections to each of the seven grounds of the petition.
GROUND 1 OF THE PETITION – UNAUTHORISED POLLING IN EAST YANGORU LLG
46.	This Ground, objected to by the respondents, comprises paras. 1.1 to 1.6 of Part C of the petition.  
47.	In summary, the matters set out at paras. 1.1 to 1.2 of Part C of the petition in support of Ground 1 allege that on 12 July 2022 a polling team headed by presiding officer (PO) Ronny Kintaro caused polling to take place at an unauthorised polling place at Kamatoku Village in Ward 16 of the East Yangoru LLG area.  It is alleged that PO Mr Kintaro allowed police personnel as well as scrutineers and witnesses for the first respondent into the polling place to “stand guard and witness all the voter’s secret ballots”. 
48.	It is then alleged in para. 1.3 for Ground 1 that police personnel under the command of Sgt Sebastien Wako Yembenei “were seen escorting each voter to the polling compartment which was already guarded by either First Respondent’s scrutineers or the police personals [sic] where they illegally marked the ballot papers in favor of the First Respondent, fold the ballot papers and gave the voter to place into the ballot boxes”. 
49.	Para. 1.4 for Ground 1 then states to the effect that extra ballot-papers were issued to voters whose names were not on the common roll for Ward 16 and that their ballot-papers were placed into a ballot-box which contained ballot-papers from other wards.  It is alleged that a total of 1059 ballot-papers were thereby “tempered [sic], influenced and were affected.” 
50.	Para. 1.5 for Ground 1 postulates that if 1059 votes were to be removed from the total of 37,714 allowable ballots cast for the Yangoru Saussia Open Electorate, this would have reduced the total votes to 36,655 which would “eventually affect the absolute majority” and invalidate the return of the first respondent as member-elect for the Yangoru Saussia Open Electorate.
51.	Para 1.6 for Ground 1 concludes:
	“1.6	This decision made by the Presiding Officer and the illegal practice by scrutineers of the First Respondent has caused influence on the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law on National and Local-level Government Elections and in breach of sections 99, 102, 108, 110 of the Criminal Code Act.” 
52.	The petitioner by his counsel Mr Dotaona argues that the actions taken by PO Mr Kintaro and the first respondent’s scrutineers as pleaded for Ground 1 of the petition constitute undue influence on electors to vote for the first respondent 
53.	Mr Waisi for the first respondent, supported by Mr Pep for the second respondent, both submit that the facts stated for Ground 1 of the petition allege irregularities in polling at East Yangoru LLG and “illegal practices” such as undue influence, which have been lumped together with no attempt to distinguish between them.  Furthermore, it is argued, the facts as stated for Ground 1 do not show how these alleged instances of electoral misconduct were committed with the knowledge or authority of the first respondent and which, even if proven, could have affected the result of the election. Counsel for the respondents submit that the facts as stated for Ground 1 of the petition are vague, convoluted and misleading and do not comply with the mandatory requirement of s.208(a) of the Organic Law to set out the facts relied on by the petitioner to invalidate the election or the return of the first respondent as the winning candidate.  
54.	Counsel for the respondents submit that facts relating to the result of the election must be material facts in order comply with the mandatory requirements of s.208(a) of the Organic Law but that material facts are glaringly absent under Ground 1 of the petition. 
55.	It has long been held that to prove “illegal practices”, it is necessary to plead facts that address the elements of s.215(3) of the Organic Law.   
56.	In Koimanrea v Sumunda (2003) N2421 it was held by Sakora J at pp. 31and 32:
“	To prove the s.215(3) allegation(s), the Petitioner needs to plead as required and satisfy the court according to the required standard the following:
•	the illegal practice the subject of the complaint; and
•	the illegal practice other than bribery or undue influence committed by the successful candidate; or the illegal practice (including bribery and undue influence) committed by another person but with the knowledge or authority of the winning candidate; and
•	the result of the election is likely to be affected by the illegal practice; and
•	it would be just that the winning candidate be declared not to be duly elected or the election be declared as void.”
[underlining added]
57.	In 2013 the Supreme Court in Amet v Yama (supra) said this at para. 50, with reference to s.215(3)(b) of the Organic Law: 
      “So, it must be pleaded that the illegal practice or conduct of a supporter, agent or servant [of the petitioner] with his knowledge or authority was likely to affect the election results.  It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected.” 	
58.	When pleading facts in a petition for the purposes of s.208(a) so as to invoke the National Court’s jurisdiction to invalidate an election petition, there is a crucial distinction between facts which allege “illegal practices” as distinct from electoral irregularities that are “errors and omissions”.  This distinction was highlighted by the Supreme Court in Undialu v Potape and Electoral Commission (2020) SC1981 (Makail, Polume-Kiele, Dingake JJ) where it was said at paras. 28 to 36:
      “	28.	There is a difference between illegal practices and errors or omissions.  An illegal practice is a criminal offence.  An error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction: see [52] of the judgment in Philip Kikala v Electoral Commission (2013) SC1275.
	29.	Earlier in Jamie Maxton-Graham v Electoral Commission & Ors (2013) N5385, David J sounded the warning to petitioners when upholding the first respondent’s submission that one of the paragraphs in the petition did not plead whether the conduct complained of was an illegal act or error or omissions where he said at [93] of the judgment: “It is important to make a distinction because considerations to apply may differ”.
	30.	Given their difference, a clear statement in the pleadings to identify the conduct that which is said to be an illegal practice and that which is an error or omission is not an option but necessary by virtue of Sections 208(a), 215 and 218 of the Organic Law.  As the Supreme Court pointed out at [52] of the judgment in Phillip Kikala case (supra) and we respectfully adopt:
		“A petition must make clear whether an illegal practice or error or omission is being alleged, as the test of what has to be proven in order to void the result of the election differs according to which ground is proven (Eoe v Maipakai (2003 N5066).  Section 215 of the Organic Law deals with illegal practices, while Section 218 of the Organic Law deals with errors or omissions”.
	...	
	33.	A useful guide to pleading what may constitute an illegal practice and vice versa, error or omission, may be found in the judgment of Sawong J in Mathias Karani v Yawa Silupa (2003) N2385 which we respectfully adopt.
	34.	For illegal practice, the material facts are:
		(a)	The illegal practice;
		(b)	The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidates’ knowledge or authority;
		(c)		The result is likely to be affected by the illegal practice; and
		(d)	It would be just that the candidate should be declared not duly elected or the election be declared void.
	35.	As to an error or omission, the material facts are:
		(a)	The error or omission;
		(b)	The error or omission was committed or made by the electoral officer;
		(c)		The error or omission did affect the result of the election. 
	36.	We cannot stress enough the importance of the difference between them because one can easily overlap the other in terms of pleadings and proof and can be overwhelming and overbearing on a petitioner, we may suggest.  A petitioner may not even realise that he or she may be relying on allegations of illegal practices to prove an error or omission and vice versa. This is why it is so critical to get them right from the start.” 	
59.	In Talita v Ipatas (2016) SC1603 (Batari, Bona, David JJ) the Supreme Court held that factual allegations in a petition were badly drafted and superficial and said this at para. 87:
      “	The core material facts were not pleaded in relation to each different charge of illegal practice and charges of errors or omissions.  The charges are lumped together at paragraphs 26 and 27, supported by conflicting and confusing statements of fact.”
60.	More recently, it was held by Cannings J in Agarobe v Peter (2023) N10141, quoting from the headnote:
      	(1)	Section 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”.  The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition.  Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed.
	(2)	A ground in a petition will meet those requirements when it identifies the facts said to invalidate the election in terms of the Organic Law.  It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on.  It will also specify, in terms of the Organic Law, if necessary, how the illegal practices or errors or omissions affected the result of the election and any other matters required by the Organic Law to be proven.
61.	One of the fundamental reasons why it is so important to distinguish in a petition between electoral misconduct that is alleged to be an “illegal practice” (s.215) as distinct from electoral irregularities such as “errors and omissions” (s.218(1)) is because different considerations apply.  If what is alleged is an “illegal practice” which constitutes a criminal offence, such as bribery (s.103 of the Criminal Code), the onus of proof is heavier and the penalties more severe than if the allegations are of a non-criminal nature, such as electoral irregularities and omissions covered by s.218 of the Organic Law.  But in all election petition cases, the onus of proof must be discharged to the entire satisfaction of the Court, although the standard of proof for ”illegal practices” is higher than that for “errors and omissions” because “illegal practices” being criminal in nature, must be proven close to the criminal standard of “beyond reasonable doubt”: Warison v Arore (2015) SC1418 (Gavara-Nanu, Yagi, Poole JJ); Powi v Kaku (2022) SC2290 (Kandakasi DCJ, Yagi, Makail JJ).  
62.	I observe that para. 1.6 of the petition in this instance refers to alleged “illegal practices” of the scrutineers of the first respondent without naming those scrutineers.  The same sub-paragraph does not state whether the alleged “decision” and conduct of PO Mr Kintaro was said to be an illegal practice or an error or omission, thus adding to the confusion.  
63.	Counsel for the petitioner states in para. 6.6 on page 3 of his written submission that:
     “	The petition generally raises grounds as follows:
	1.	Irregularities, errors and omissions in polling at the electorate.
	2.	Irregularities, errors and omissions in counting for the electorate.
	3.	Illegal practices by the First and Second Respondents and their agents.”  	
64.	However, counsel for the petitioner then continues at para. 6.7 of his submission:
     “	There are seven grounds in the election petition.  The grounds alleged are errors and omissions by electoral officials that affect the result of the petition.”
65.	But this runs counter to what counsel then confusingly says at para. 6.7.1 of his own submission when, with reference to the facts pleaded in ground 1 of the petition relating to alleged unauthorised polling at East Yangoru LLG, he states:
      “	The decision made by the Presiding Officer and the illegal practice by the scrutineers of the First Respondent influenced the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law and sections 99, 102, 108 and 110 of the Criminal Code.”
66.	 Section 129 of the Organic Law relates to the persons who are permitted to enter or remain in a polling booth during the polling event, which includes the electors voting, the PO, assistant presiding officers, poll clerks, interpreters and scrutineers.  No criminal offence is created for breach of s.129.
67.	Section 138 of the Organic Law relates to the privacy accorded by law to a voter who receives and marks a ballot-paper, which must be folded to conceal his or her vote, then be initialled by the PO and then openly, and without unfolding it, deposited in the ballot-box. No criminal offence is created for breach of s.138.  
68.	Breaches of ss. 129 and 138 of the Organic Law are not “illegal practices” per se.  No penalties are prescribed for non-compliance. Other sanctions exist for interference with an elector’s rights when voting.   Breaches of ss. 129 and 138 of the Organic Law come under the category of “errors and omissions”.  They cannot be categorised as “illegal practices”.
69.	As to the alleged breaches by the PO and the first respondent’s scrutineers of s.99 (“personation”), s.102 (“undue influence”), s.108 (“interference at elections”) and s.110 (“stuffing of ballot-boxes”) of the Criminal Code stated in para.1.6 in support of Ground 1 of the petition, the facts set out for Ground 1 of the petition do not clearly identity which scrutineers of the first respondent are said to have committed the alleged “illegal practices” complained of.
70.	Furthermore, the facts for Ground 1 of the petition fail to show how the alleged extra 1059 votes polled at Kamatoku Village at East Yangoru LLG, when added to the total of 37,714 allowable votes for the whole of the Yangoru Saussia Open Electorate, could have affected the absolute majority of votes required by the first respondent to win the election.  The material facts necessary to give the foundation for that assumption are simply not there. 
71.	The petitioner does not state in para. 1.2 for Ground 1 of the petition whether the decision made by PO Mr Kintaro to allow “scrutineers and witnesses for the first respondent including police personals into the polling area and to the specific polling compartment” was an instance of an “illegal practice” or that it was an “error” on the part of the PO.  Reference is again made to this decision by the PO (without naming him) in para. 1.6 in the context of “influence” of voters said to have been caused by the first respondent’s scrutineers, however it is not clear whether the PO is himself accused of having contravened ss. 129 and s.138 of the Organic Law as well as ss. 99, 102, 108 and 110 of the Criminal Code.  Nor is it clear in para 1.6 which of the scrutineers of the first respondent are alleged to have contravened each and every one of those statutory offences.
72.	I observe that nowhere in the petition is there any allegation of fact that:
	(1)	the first respondent himself committed any illegal practice in connection with the election (s.215(1) of the Organic Law);
	(2)	the scrutineers of the first respondent committed any illegal practice with “the knowledge or authority” of the first respondent (s.215(3)(a) of the Organic Law).
73.	The allegations, couched as facts in support of Ground 1 of the petition, are phrased in such a confusing way as to cast doubt on whether Ground 1 is claiming that errors or omissions were committed by electoral officials and/or police officers and if so, by whom, or whether it is exclusively alleged that only “illegal practices” in the nature of criminal acts were committed by them.  
74.	The respondents, by their counsel, have each submitted that the facts pleaded in support of Ground 1 of the petition fail to demonstrate how the result of the election was affected.  It is argued for the respondents that failure to plead facts in a petition which show how the outcome of an election has been allegedly affected by “illegal practices” under s. 215(3)(a) and/or “errors and omissions” under s.218(1) of the Organic Law divests the Court of jurisdiction to deal with the petition.
75.	Para. 1.5 in support of Ground 1 of the petition states as follows:
       “1.5	By removing 1059 votes from the total of 37,714 allowable ballots casted for Yangoru Saussia Open Electorate total allowable ballot casted and counted would have reduced to 36,655 which will eventually affect the absolute majority, therefore invalidates the return, of the First Respondent as member elect for Yangoru Saussia Open.”	
76.	It is submitted for both respondents that para. 1.5 in Section C of the petition is an assumption or conjecture and that, taken as a whole, the matters stated in support of Ground 1 failed to plead material facts showing how the result of the election was affected.
77.	Mr Waisi for the first respondent submits that Ground 1 of the petition is incompetent because the following material facts were not stated: 
•	the names of polling places other than at Kamatoku;
•	the names of police personnel at Kamatoku alleged to have been involved in any undue influence on voters;
•	which police station any such police personnel were attached to;
•	the names of the scrutineers alleged to have been involved in undue influence on voters;
•	the second respondent’s allocated number of the ballot-box for polling team 5 said to have been affected by the alleged illegal practices;
•	the number of ballot papers that were issued to PO Mr Kintaro to be marked at Kamatoku;
•	whether any scrutineers of the petitioner or the first respondent objected to the counting of the alleged 1059 votes;
•	the total number of allowable ballot-papers used at Kamatoku;
•	the total number of ballot-papers actually distributed;
•	the total number of exhausted ballot-papers;
•	facts to establish the absolute majority required (50% +1) to win the election;
•	the winning margin and first respondent’s votes collected in excess of the required number of absolute majority of votes to win the election;
•	the difference in the number of votes between the petitioner and the first respondent;
•	the number of votes the petitioner required to reach the absolute majority of votes. 

78.	Mr Pep for the second respondent submitted, among others, that Ground 1 of the petition is incompetent because the facts stated in support, insofar as they attempt to allege “illegal practices” under s.215 of the Organic Law, failed to include any facts to establish, for the purposes of s.208(a) of the Organic Law: 

(a)	that the alleged “illegal practices” were committed by third parties with the knowledge or authority of the first respondent;
(b)	whether the petitioner objected to the ballot-box polled by Team 5 being admitted into scrutiny, but if objection was made, then by whom, to whom, when and other material facts relevant to the circumstances of such objection to that ballot-box being admitted into scrutiny; 
(c)	that the results of the election were likely to be affected by the alleged illegal practices.

79.	In Olmi v Kuman (2003) N2310 it was said by Jalina J at p.15:
 “	If the petitioner is serious about it, then “facts” that he relies on to overturn that election must go beyond mere statement or assertion that certain things were done by or to electoral officials or by or on behalf of the winning candidate and with his knowledge and consent which affected or were likely to have affected the result. So the pleadings, in order to constitute “facts” within the requirement of s.208(a) of the Organic Law, must state the names of people who were involved, numbers, names of place the incident took place, dates and even time.”  
80.	In Mond v Nape (2003) N2318 Kandakasi J (as he then was) made the following comments at pp. 9 and 10 in the context of illegal practices referred to s.215(3) of the Organic Law:

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

81.	In Talita v Ipatas (supra) the Supreme Court said, in similar vein, at para. 96: 
      “	The allegations are too general.  They fail to name the electoral official who allegedly committed errors and omissions at polling.  This is contrary to s.218 of the Organic Law which requires by implication, naming of alleged electoral office offenders for good reasons that it will inform the opposing party to prepare and respond to the allegation.  The necessity to plead the names of the polling officials in this case and what they did or omitted to do is crucial.  This is because by operation of law, it is incumbent on public officials to perform their public duties in compliance with set procedures.  In this case, any allegation of failure to carry out a public duty in dealings with electoral matters is an error or omission for the purpose of s.218 of the Organic Law.” 	
82.	Furthermore, it is not as if the petitioner in this instance is unaware of s.208(a) of the Organic Law and the importance of stating in his petition with clarity the material facts he relies on in his pursuit to invalidate the election of the first respondent.  The petitioner is well educated.  In 2004 he was elected Member of Parliament for the Yangoru-Saussia Open Electorate. He is a former Governor of East Sepik Province. An earlier petition in National Court in proceeding EP No. 36 of 2017 by the present petitioner in connection with the election of the first respondent in the 2017 National Elections was dismissed at an objection to competency hearing stage because, among others, the petition had failed to state facts which could demonstrate how the election result was likely to be affected: Wararu Waranaka v Maru and Electoral Commission (2018) N7346.  In that case, Kandakasi J (as he then was) summarised certain of the Court’s findings in this way:
      “	In the present case, the petition lumped together allegations of illegal  practices, errors, omissions and irregularities into one lot of pleadings.  This made the petition incoherent, unclear, incomplete and confusing.  That formed the foundation for me to find the alleged grounds of errors, omissions, illegal practices and or irregularities offending the law by failing to plead these grounds separately with sufficient particulars and demonstrate how each of the grounds on their own or collectively affected the outcome of the Yangoru Saussia Open Electorate’s election outcome.”
83.	Given the Court’s findings and reasons for decision in the petitioner’s earlier 2017 case against the very same respondents as are involved in this present EP No. 11 of 2023, but mindful of the subsequent liberal approach endorsed by the Supreme Court in Hagahuno v Tuke, I nevertheless find it surprising that history has largely repeated itself for the petitioner in this instance. Even a cursory re-reading of his Honour’s decision in N7346 should have reminded the petitioner as a layperson of the need to clearly identify in his petition in EP No. 11 of 2023 the material facts in support of grounds based on illegal practices (s.215(3) of the Organic Law) separate from those grounds based on errors or omissions (s.218(1) of the Organic Law) and how those grounds, individually and collectively, are alleged by the petitioner to have affected the outcome of the latest election of the first respondent such that the 2022 election of the first respondent should be invalidated by this Court.
84.	The upshot of this analysis is that I concur with the submissions made for the first and second respondents that the facts pleaded for Ground 1 of the petition are confusing and do not distinguish between conduct of officers of the second respondent and conduct of the first respondent’s scrutineers which could, if proven, be said to be “illegal practices” as opposed to “errors or omissions”.  As the consequences for these two categories can be different in terms of the onus of proof and penalties, this is a significant flaw in the pleading of the facts for Ground 1, not assisted by counsel for the petitioner’s own confusion as to which of those alleged facts were instances of “illegal practices” as opposed to “errors or omissions”.
85.	I do not consider these objections taken by the respondents to the facts stated in support of Ground 1 of the petition to be mere nit-picking technical points made in defiance of the liberal approach espoused by the Supreme Court in Hagahuno v Tuke.  A petition challenging the result of an election should, in my view, clearly identify which facts alleged in support of a ground are said to be instances of “illegal practices” for the purposes of s.215 of the Organic Law and which facts are said to be instances of “errors or omissions” for the purposes of s.218 of the Organic Law.  These statutory provisions need not be cited in support of grounds pleaded in a petition, although that would be helpful. But electoral misconduct said to be an “illegal practice” as distinct from electoral misconduct said to be an “error or omission” should, to my mind, be clearly stated in support of a ground in a petition so as to avoid confusion. If that distinction is made in facts pleaded in support of a petition, a respondent, whether an individual or the Electoral Commission, then knows with clarity the nature of the case that respondent has to meet when reliance is placed by a petitioner on s.215 and/or s.218 of the Organic Law in pleading those facts mandatorily required under s.208(a) of the Organic Law in pursuit of invalidation by the Court of the election or return of a winning candidate.   
86.	I say this, bearing in mind the words of Kandakasi DCJ in Hagahuno v Tuke at para. 28 that no matter how “hopelessly a petition may be pleaded, if the facts stated disclose a known ground for voiding an election and the petition on the face of it meets all the other requirements under s.208 and s.209, it would be sufficient for the purposes of s.210, and ... such a petition should be allowed to progress to trial without delay.”   The operative term here is “a known ground for voiding an election”.   Known grounds for voiding an election include the grounds set out in s.215 (voiding election for illegal practices) and s.218(1) (errors or omissions etc.) where the Court is satisfied that the facts, if proven according to the commensurate standard of proof, establish that the result of the election was likely to have been affected.  
87.	I accordingly uphold the respondents’ objections to Ground 1 of the petition. I find that the contention in Ground 1 that the actions of PO Mr Kintaro, police personnel and the scrutineers of the first respondent caused electors at Kamatoku Village in East Yangoru LLG to be influenced to vote for the first respondent is an assumption on the part of the petitioner and is conjecture or opinion.  Material facts such as those identified by respective counsel for the respondents were not set out for Ground 1 of the petition.  In the absence of the preponderance of those material facts, Ground 1 fails to show how those facts which are alleged could have affected the result of the election, nor do the facts actually presented tend to show that the electoral misconduct complained of by the petitioner was committed with the knowledge or authority of the first respondent.   Ground 1 and its alleged facts do not meet the requirements of s.208(a) of the Organic Law.  Ground 1 of the petition is struck out. 
GROUND 2 OF THE PETITION – ERROR SETTING UP SPECIFIC VOTING COMPARTMENTS IN ALL POLLING PLACES IN NUMBO LLG AREA
88.	The facts alleged for Ground 2 of the petition are lengthy and comprise paras. 2.1 to 2.26. In summary, this ground alleges errors on the part of presiding electoral officer Ambrose Soru,  who is said to have authorised a separate voting compartment for the first respondent out of a total of 4 voting compartments, and that this separate voting compartment was used by polling teams headed by PO Ambrose Soru, PO Bernard Masarun and unnamed other electoral officers, to receive votes for the first respondent at Kininien Village, Yekimbole #1 Village, Wamaian Village, Harua Village, Kininumbogum Village, Niakandogum Village and Nungori #1 Village on various specified dates in July 2002, all of which villages are within the Numbo LLG area.  
89.	The petitioner pleads that the POs allowed scrutineers and witnesses of the first respondent to stand guard at the voting compartment designated for the first respondent at the polling areas at each of the said villages and that these scrutineers and witnesses were able to “witness all the voters secret ballots”.  The petitioner states that in one instance at Wamaian Village, unidentified supporters of the first respondent forced voters to queue up and go to two supporters of the first respondent, husband and wife Dixie Ruenguma and Bernadette Ruenguma, who stood guard beside the voting compartment designated for the first respondent and who removed ballot-papers from voters and illegally marked them in favour of the first respondent, folded the ballot papers and then gave them back to voters to place in ballot-boxes.
90.	With reference to alleged misconduct by electoral officials at Kininien Village, Yekimbole#1 Village and Wamaian Village, para. 2.12 of Section C of the petition states:
       “The actions by the scrutineers for the First Respondent has amounted to a breach of sections 99, 102, 108, 110 of the Criminal Code Act and section 129 of the Organic Law on National and Local-Level Government Elections.”
91.	Paras. 2.13 to 2.18 of Section C of the petition then alleges facts to the effect that similar misconduct by electoral officials and unnamed scrutineers and witnesses took place at Harua Village, Kininumbogum Village and Niakandogum Village, including directing ward councillor Tony Wamahama at Kininumbogum Village to announce to waiting voters that they were “to sit in groups according to their candidate preferences and vote for the First Respondent” in the voting compartment allocated for the first respondent.
92.	Set out hereunder, without editorial correction, are paras. 2.19 to 2.26 stated by the petitioner for Ground 2 of the petition:

        2.19	As a result, 976 voters were influenced to vote for the First Respondent.  If 976 votes are removed from the total of 37,714 allowable ballots casted for the Yangoru Saussia, the total will be reduced to 36,738 which will also affect the absolute majority and this case the absolute majority would be 18,370.
	2.20	The result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open.
	2.21	On 07th July 2022, it was the final polling day for team#5 where the team conducted polling in Nungori#1 village Ward#21 of Numbo LLG in which the Second Respondent through its Presiding Officer one Mr Benard Masarun conducted polling after suspension on 05th July 2022 due to 6 missing ballot books.
	2.22	As a result of this, 1366 voters were influenced to vote for the First Respondent, result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open.  Because the total allowable ballots will be reduced to 36,348.
	2.23	The same error by the Presiding Officers were done in all polling places at Numbo LLG and as a result of this, a total of 3201 voters were influenced to vote for the First Respondent which as a result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open.
	2.24	This decision by the PO has caused influence on the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law on National and Local Level Government Elections.
	2.25	The above happened throughout polling in the Numbo Local Level Governments, therefore affects a total of 9,905 votes.  By removing 9,905 influenced votes from the total of 37,714 allowable ballots casted for Yangoru Saussia Open Electorate total allowable ballot casted and counted would have reduced to 7,809 which will eventually affect the absolute majority and in this case would be 13,905.
	2.26	Therefore the above reduced figure invalidates the return of the First Respondent as member elect for Yangoru Saussia Open and shall be declared void pursuant to sections 215 of the Organic Law on National and Local Level Government Elections.
93.	Mr Waisi for the first respondent submits that the facts stated in the 26 paragraphs for Ground 2 of the petition are vague, convoluted and confusing. 
 
94.	As to vagueness, Mr Waisi points to the following: 
•	The number of the votes cast at each of Kininien Village, Yekimbole No. 1 Village, Wamaian Village, Harua Village, Kininumbogum Village and Niakandogum Village are not stated, but are material facts that should have been stated.
•	The names of the villages where 976 voters were allegedly influenced to vote for the first respondent are not stated in para. 2.19 for Ground 2, but are material facts that should have been stated, not inferred.
•	The name of the village where 1366 voters were allegedly influenced to vote for the first respondent are not stated at para. 2.22 for Ground 2, but this is a material fact that should have been stated, not inferred.
•	No material facts are stated in support of Ground 2 which would tend to establish:
		- 	total number of allowable ballot-papers, the total number of exhausted ballot-papers, after which exclusion, and of which candidate, were distributed.
-	the absolute majority of votes (50% +1) which were required by the first respondent to win the election.
-	the winning margin and the first respondent’s votes collected in excess of the absolute majority.
-	the difference in the number of votes cast for the petitioner and the first respondent.
-	the number of votes the petitioner required to reach the absolute majority.
•	The ballot-box number and the number of ballot-papers issued to each PO to take to each of the respective polling places at the various villages in the Numbo LLG area are essential material facts that were not stated.
95.	Mr Waisi, supported by Mr Pep, further argues that the alleged facts for Ground 2 of the petition failed to clearly distinguish between electoral misconduct alleged by the petitioner to constitute “illegal practices” as distinct from electoral misconduct alleged to constitute “errors or omissions”, and that this results in the Court and the respondents having to speculate on which alleged facts relate to “illegal practices” and which alleged facts relate to “errors and omissions” as known grounds for invalidating the election.    
96.	Mr Waisi and Mr Pep contend further that the confused manner in which alleged facts have been set out in support of Ground 2 of the petition means that the Court and the respondents have to sift through the alleged facts to try to determine which legislative sanctions correspond to the various allegations of electoral misconduct.  
97.	In summary, the combined result of the submissions made for the first and second respondents is that material facts necessary to show how the result of subject election was likely to be affected for the purpose of s.215(3) of the Organic Law are missing for Ground 2 of the petition, and that those facts which have been alleged by the petitioner in support of Ground 2 of the petition, when taken as a whole, do not amount to anything more than speculation and innuendo that electoral misconduct may have taken place.
98.	 I observe that in addition to the respondents’ submissions as to material facts which should have been set out in the petition for Ground 2 but which were not, there is another series of material facts that are missing in respect of Ground 2.  There is no statement of facts by the petitioner as to:
•	the number of wards which comprise the Numbo LLG area
•	the number of ballot-papers issued for each ward in the Numbo LLG area
•	the total number of ballot-papers issued for the aggregate of those wards
•	which of those wards have counted ballot-papers that are in dispute by the petitioner
•	the number of ballot-papers that are in dispute for each ward. 
99.	I make this observation because in the absence of these material facts, I consider that it is not possible to verify which polling places within the Numbo LLG area the 9,905 disputed additional ballot-papers referred to by the petitioner in para. 2.25 of Section C of the petition came from.  This information, which would have been available to the petitioner from his pre-count notes, should have been stated as material facts for Ground 2, but it was not.
100.	 I accordingly uphold the submissions of Mr Waisi and Mr Pep that Ground 2 of the petition is defective. I find that the facts stated for Ground 2 of the petition are confusing, lack specificity and omit material facts which should have been available to the petitioner from his pre-count notes.  The facts as presented by the petitioner for Ground 2 also fail to distinguish between alleged electoral misconduct said to be “illegal practices” as distinct from “errors and omissions”.  More importantly, the facts as presented by the petitioner for Ground 2 fail to satisfy the Court for the purposes of s.215(3) and s.218(1) of the Organic Law that the result of the election of the first respondent was likely to have been affected by the alleged instances of electoral misconduct complained of by the petitioner.  Ground 2 of the petition is defective and is struck out. 
GROUND 3 OF PETITION - CONSUMPTION OF ALCOHOL BY POLLING OFFICIALS AT SAUSSIA LLG CHAMBERS WHERE BALLOT-BOXES WERE STORED
101.	The facts pleaded by the petitioner for Ground 3 of the petition relate to the alleged consumption of alcohol by polling officials at Saussia LLG chambers.  
102.	The full text of Ground 3 of the petition is set out below, without editorial correction: 
	3.1	On 11.07.22 after polling, ballot boxes were stored at the Sausso [sic] LLG Chambers where polling officials were heavily drunk and doing returns around 9:30 pm which was witnessed by:
		1)	Andrew Savirom
		2)	Titus Wafi
		3)	Malcolm Wama
	3.2	On 12.07.22 between the early hours of 2am to 6am, polling officials were having a drinking spree.
	3.3	And from 08:00am to 06:00pm, polling officials with the Assistant Returning Officer Dominic Huaiari were doing returns with the chambers doors wide open including the room where ballot boxes were stored.  We can clearly see polling officials carrying polling journals and walking in and out of the room and chamber saying they were doing returns.
	3.4	As a result of their unlawful actions, total votes for Sausso [sic] Local-Level Government have been tempered [sic] and affected thereby contravene section 110 of the Criminal Code Act.
103.	In summary, this ground of the petition alleges that polling officials at Saussia LLG premises were under the influence of alcohol when doing returns of votes for the Saussia LLG area and that this misconduct was in contravention of s.110 of the Criminal Code because returns were allegedly tampered with, thereby affecting the outcome of the votes for the Sausso LLG area.  
104.	Section 110(1) of the Criminal Code provides:
	110.	Stuffing of ballot-boxes
	  (1)	A person who places, or is privy to placing, in a ballot-box a ballot-paper what has not been lawfully handed to and marked by an elector is guilty of a crime.
		Penalty:  Imprisonment for a term not exceeding seven years.
105.	There are two objections which the respondents have made to this ground of the petition.
106.	Firstly, s.110 of the Criminal Code relates to the crime of stuffing of ballot-boxes with invalid ballot-papers.  The facts alleged for Ground 3 of the petition relate to polling officials at Saussia LLG premises who are said to have been drunk.  But beyond that, no alleged facts were pleaded for Ground 3 which, if proven, could establish that total ballot-papers for Saussia LLG were tampered with and which in turn could have affected the overall result of the election. 
107.	Section 120 of the Organic Law prohibits any premises licensed under national or provincial liquor licensing laws from being used for the purpose of a polling booth.  There is no allegation in the facts pleaded for Ground 3 of the petition that the Saussia LLG chambers were licensed for the sale of alcohol and or were illegally used as a polling booth in breach of s.120 of the Organic Law.  Rather, the facts for Ground 3 allege tampering with the returns of ballot-papers, not stuffing of ballot-boxes.  Ground 3 is defective for this reason alone, for not having pleaded facts relevant to any electoral offence. 
108.	Secondly, the facts alleged for Ground 3 of the petition are vague and amount to speculation. The facts lack specificity.  The names of the polling officials who were said to be drunk and who the petitioner assumes may have allegedly tampered with the returns for the ballot-boxes are not given. 
109.	The facts for this ground fail to demonstrate how the alleged “unlawful actions” of unnamed polling officials “walking in and out of chambers”, possibly under the influence of alcohol, actually affected the result of the election of the first respondent. 
110.	I find that the facts relied on by the petitioner for Ground 3 of the petition do not properly or adequately set out facts which could satisfy the Court that the election should be invalidated.  The petitioner’s inference in para. 3.4 that alleged tampering with ballot-papers caused by unnamed polling officials who had consumed alcohol had somehow affected the total of the votes cast for the Saussia LLG area is conjecture and speculation on the part of the petitioner.  The facts as presented for Ground 3 do not satisfy the mandatory requirements of s.208(a) of the Organic Law.  Ground 3 of the petition is struck out.
GROUND 4 – NO RETURNS FOR POLLING FOR ALL WARDS PER LLG
111.	The petitioner has pleaded the following facts under Ground 4, which are set out below, without editorial correction:
        	4.1	Update on all returns for all Numbo LLG was not given before, during or after polling by all Presiding Officers including all wards in the 4 LLG of Yangoru Saussia District. This contravenes sections 7 and 86 of Electoral Law (National Elections) Regulations 2007. 
	4.2	As normal process, all returns must be finalise and balance up to give returns on number of ballot papers casted for all polling teams but this didn’t happen, instead we were rushed to do polling and to continue with counting.  Some officials have not completed their journals to put down their returns thus gave an imbalance returns.
	4.3	During counting for open seat on Friday 15th July 2022, our journals were not returned to the Returning Officer and his Assistant Returning Officers and that’s where we clearly identified Mr Philip Wafihie the Presiding Officer for team#3 in the West Yangoru LLG being picked up with his Journals of returns on hand in a tinted white 10 seater Plate# WAF 787 by the First Respondent’s executive officer one Emanuel Huasiwahin at 10p.m. to 11 p.m. on 3 consecutive times.
112.	Section 7 of the Electoral Law (National Election) Regulations 2007 sets out the statutory duties of a presiding officer who is responsible for the conduct of polling at a polling station. Those duties include:
	(i)	properly completing all electoral returns;
	(ii)	proper safekeeping of all electoral documents and other equipment used in the polling; and
	(iii)	ensuring that ballot-boxes with marked and unused ballot-papers, marked Rolls, returns and other equipment supplied for polling are returned to the Returning Officer.
113.	Section 86(1) of the Electoral Law (National Elections) Regulation 2007 states:
	86.	Presiding officer to return election materials
	   (1)	A presiding officer is to property complete all election forms and documents that he is required to complete and, at the end of polling, return these together with the ballot-box to the Returning Officer.
114.	A contravention of s.7 and/or s. 87 of the Electoral Law (National Elections) Regulation 2007 does not constitute an “illegal practice” within the meaning of s.215 of the Organic Law.  
115.	Mr Waisi argues that the Ground 4 is confusing because the facts alleged in its support fail to clearly identify whether this ground is alleging “illegal practices” or “errors or omissions”.  Mr Waisi submits, correctly in my view, that the manner in which the facts for Ground 4 have been presented means that the Court and the respondents must sift through the allegations themselves and speculate whether instances of alleged electoral misconduct such as the fabrication of polling reports to clear and admit ballot-boxes into counting could constitute “illegal practices” as distinct from “errors or omissions” said to have been committed by POs, only one of whom was named. If the petitioner or his scrutineers were aggrieved by the admission of ballot-boxes, not identified by the petitioner, to be counted, he or his scrutineers could have objected to admission of those ballot-boxes at the time of counting.  But the facts as set out for Ground 4 do not specify any such objection.    
116.	More importantly, Mr Waisi submits that the facts alleged by the petitioner in support of Ground 4 of the petition, even if proven, fail to demonstrate how those facts could have adversely affected the result of the election of the first respondent such that the election should be declared void.   
117.	In support of this submission, Mr Waisi has referred the Court to Manase v Polye (2009) N3718 (Lay J) where the Court ruled that if further particulars need to be furnished by a petitioner to properly understand the petitioner’s ground, the petition has not complied with s.208(a) of the Organic Law to plead the material facts on which the petitioner relies.
118.	Mr Pep for the second respondent echoes Mr Waisi’s submission.  Mr Pep submits that there is no proper factual foundation laid for Ground 4 of the petition to clearly demonstrate how the alleged incomplete journals of returns or the “update on all returns for all Numbo LLG” or other conduct of presiding officers complained of by the petitioner in fact adversely affected the result of the election of the first respondent.  The mere allegation that these matters occurred per se falls far short of the material facts required by s.208(a) of the Organic Law to be pleaded in a petition to show how the election or return of the winning candidate was affected such that the election or return should be invalidated.  
119.	With respect, I agree with these submissions for the first and second respondents.  I find that Ground 4 of the petition is defective because: 
	(1)	the facts as presented for Ground 4 fail to clearly identify whether the matters complained of by the petitioner can be categorised as “errors or omissions” of electoral officers for the purposes of s.218(1) of the Organic Law;
	(2)	Ground 4 is speculative as the facts in its support fail to clearly demonstrate, as required by s.218(1) of the Organic Law, how the conduct of the polling officers complained of by the petitioner affected the result of the election or the return of the first respondent;
	(3)	it is confusing and does not clearly state the petitioner’s case, making it difficult for the respondents to respond to the allegations and for the Court to appreciate the petitioner’s case for this ground.
	(4)	it does not properly or adequately set out the material facts necessary to invalidate the election or the return of the first respondent and it therefore does not meet the requirements of s. 208(a) of the Organic Law.  
120.	For the reasons given, I consider that the facts presented for Ground 4 of the petition lack substantial merit and therefore cannot be saved by reference to s.217 of the Organic Law. Ground 4 of the petition is defective and is struck out.
GROUND 5 – COUNTING OF DISPUTED BALLOT-BOXES
121.	The petitioner refers to alleged “illegal practices” and “unlawful actions” of electoral officials of the second respondent in the facts he has pleaded in support of Ground 5 of the petition. Counsel for the petitioner, Mr Dataona, submits that Ground 5 relates to “errors and omissions” of electoral officials.  Yet, as will be seen, the facts for Ground 5 of the petition also confusingly allege matters which are illegal practices.
122.	To succeed in pleading the material facts which constitute an illegal practice, I repeat what was held by Sawong J in Karani v Silupa [2003] (supra) where his Honour said at pp. 407 and 408: 
      “For instance if the petition is grounded on illegal practices (other than bribery or undue influence) under s.215, the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practices must plead material facts to show the following:  
	(a)	The illegal practice;
	(b)	The illegal  practice 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 affected by the illegal practice; and
	(d)	It would be just that the candidate should be declared not duly elected or the election may be declared void.   
	Failure to plead any material facts supporting any of the elements under s.215 would offend s.208(a) and would there be fatal to the petition.
[underlining added]
123.	I acknowledge that there was previously a line of judicial authorities that held that it was essential for a petitioner to expressly plead for the purposes of s.215(3) of the Organic Law that “It would be just that the candidate should be declared not duly elected or the election may be declared void”.  However, I accept that in view of the liberal approach espoused by the Supreme Court in Hagahuno v Tuke, this is a technical point that if not observed is no longer fatal to a petition.  This does not, in my opinion, affect the other three requirements outlined by Sawong J in Karani v Silupa for pleading material facts in a petition in support of a ground based on “illegal practices”. I consider that those other requirements apply today just as much as they did in 2003 when the decision in Karani v Silupa was delivered. 
124.	Reverting to the present case, the facts pleaded by the petitioner in his petition in support of Ground 5 under the heading “Counting of disputed ballot boxes” are set out below, without editorial correction:
	5.1	Despite the illegal practices by Presiding Officers during polling in the Numbo LLG from 4th to 11th July 2022, and despite objections raised by the scrutineers, the 5 ballot boxes for Numbo LLG were authorized by the Returning Officer Francis Kambaka in the absence of scrutineers from the 15 candidates.
	5.2	As a result of their unlawful actions, total votes for Sausso Local-Level Government have been tempered and affected thereby contravening to section 110 of the Criminal Code Act.
	5.3	The action of the Returning officer Mr. Francis Kambaka contravenes section 152 of the Organic Law on National and Local Level Government Elections. 
125.	Mr Waisi for the first respondent and Mr Pep for the second respondent both submit that the facts pleaded for Ground 5 are:
	(1)	confusing; and
	(2)	fail to plead sufficient detail of material facts.  
Objection (1) – Ground 5 is confusing 
126.	I observe that the facts as pleaded in para. 5.1 for Ground 5 do not clearly identify the “illegal practices”, alternatively “errors or omissions” (possibly referred to by the petitioner as “unlawful actions”), that are alleged to have been committed by electoral officers during polling in the Numbo LLG area.  
127.	For instance, it is alleged in para. 5.1 for Ground 5 that 5 ballot-boxes (but not their contents) were authorised to be counted by RO Mr Kambaka despite objections having been raised by unnamed scrutineers, the counting having taken place “in the absence of scrutineers from the 15 candidates”.
128.	Para. 5.2 for Ground 5 then pleads that as a result of “unlawful actions”, presumably by the  unidentified presiding officers referred to under Ground 4 and in para. 5.1 of Ground 5 of the petition, the “total votes for Saussia Local-Level Government have been tempered [sic] and affected” thereby contravening s.110 of the Criminal Code. 
129.	Para. 5.3 for Ground 5 concludes by pleading that the action of RO Mr Kambaka, presumably in allowing votes in ballot-boxes, being votes objected to by unnamed scrutineers, to be admitted into counting (rather than scrutiny) contravened s.152 of the Organic Law.  
130.	As previously noted, Section 110 of the Criminal Code deals with stuffing of ballot-boxes.  Section 110 states that a person who places in a ballot-box a ballot-paper that has not been lawfully handed to and marked by an elector is guilty of a crime. Upon conviction the offender can be sentenced to a term of imprisonment not exceeding seven years. The crime of stuffing of ballot-boxes is an “illegal practice”. It is not an “error or omission”. 
131.	Section 152 of the Organic Law states:
	152.	Action on objections to ballot-papers
	   (1)	If a scrutineer objects to a ballot-paper as being informal, the officer conducting the scrutiny shall mark the ballot-paper “Admitted” or “Rejected”, according to his decision to admit or reject the ballot-paper.
	   (2)	Nothing in this section prevents the officer conducting the scrutiny from rejecting a ballot-paper as being informal although it is not objected to.
132.	In contrast, breach of s.152 of the Organic Law by an electoral official, as pleaded in para. 5.3 for Ground 5, is not an “illegal practice” under the Criminal Code.  Breach of s.152 comes within the purview of s.218(1) of the Organic Law relating to “errors and omissions” by electoral officials and is only actionable as a known ground for voiding an election for the purposes of s.208(a) if the petitioner can prove that the breach is such that the result of the election was likely to be affected or that the election should be declared void. 
133.	I agree with the submissions made for both respondents that the facts pleaded in Ground 5 of the petition are confusing. They are also internally inconsistent. When viewed as a whole, the facts presented for Ground 5 are bewildering.  Incorrect legislative references have been made to electoral offences in paras. 5.2 and 5.3 and there is a glaring paucity of material facts pleaded in support of the matters complained of by the petitioner. 
134.	I observe that the petitioner has not actually accused any POs or RO Mr Kambaka of stuffing ballot-boxes in Ground 5 (which is an “illegal practice”) but the petitioner seems to be collectively accusing unnamed POs and/or RO Mr Kambaka of having tampered with ballot-boxes, although this is not clear from the ambiguous wording in para. 5.2.  And then in para. 5.3, RO Mr Kambaka is accused of having contravened s.152 of the Organic Law, which relates to a RO or Assistant RO marking a ballot-paper  either “admitted” or “rejected” contrary to an objection made by a scrutineer; but the matter complained of by the petitioner in para. 5.1 is that RO Mr Kambaka is alleged to have authorised the counting of 5 ballot-boxes in the absence of 15 scrutineers.
135.	I consider that if the petitioner was wanting to rely on facts that supported an accusation that RO Mr Kambaka had wrongfully admitted to scrutiny certain ballot-boxes that had been tampered with by others, Mr Kambaka’s decision to admit the contents of those ballot-boxes to scrutiny should have been challenged by the petitioner under s.153A(4) of the Organic Law and material facts in support properly stated.  The text of s.153A is set out below in full: 
	153A(1)	Excluding ballot-box from scrutiny
	   (1)	Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that—
		(a)	the ballot-papers in it were not lawfully casted; or
		(b)	the ballot-box was tampered with and the integrity of the ballot-papers within it were compromised. 
	(2)	Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objections to be reduced into writing and may require any responses from a scrutineer to be in writing  and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.
	(3)	A ballot-box that is damaged, but its contents have not been disturbed is not to be rejected for the reason of the damage.
	(4)	A decision of a Returning Officer under this section may not be challenged other than by way of petition.
136.	Furthermore, if the petitioner wanted to pursue the alternative ground of the electoral offence of tampering with ballot-boxes and their contents, the petitioner should have pleaded facts that referenced s.153A (“excluding tampered ballot-box from scrutiny”) of the Organic Law instead of s.152 (“informal ballot-papers”) under Ground 5.  Section 152 of the Organic Law has nothing to do with tampering of ballot-boxes.  Section 152 relates to objections made by a scrutineer who challenges a decision of a RO to admit informal ballot-papers for counting. 

137.	Citation of wrong electoral offences under a ground seeking to invalidate an election is not only misleading but it offends basic principles of natural justice.  Respondents are entitled to be informed at the outset in an election petition of the correct citation of the electoral offences they or their representatives are accused of having committed so as to enable them to prepare the case they have to meet.   
Objection (2) – Failure to give sufficient facts  
138.	Mr Waisi for the first respondent submits that Ground 5 of the petition should be struck out because the following material facts necessary to support the allegations made under Ground 5 of the petition have not been pleaded or given:
•	What are the names of the presiding officers and scrutineers referred to in para. 5.1? 
•	If the petitioner was seeking to challenge by his petition, in reliance on s.153A(4) of the Organic Law. the decision of RO Mr Kambaka to admit to scrutiny ballot-papers in ballot-boxes alleged to have been tampered with and which decision was objected to by unnamed scrutineers, then on what date was that decision made by RO Mr Kambaka?  Were the scrutineers’ objections made orally or in writing?  If objections were made, what responses to those objections were given by RO Mr Kambaka?  
•	What are the ballot-box numbers for the five ballot-boxes that were allegedly tampered with?
•	What is the total number of votes for Saussia LLG referred to in para. 5.2 that were allegedly tampered with during polling in the Numbo LLG area?
Mr Waisi submits that all of these facts should have been set out in the petition in support of Ground 5 if it was intended that reliance was to be placed by the petitioner on s.153A(2) instead of erroneously referring to s.152 of the Organic Law.  
139.	In summary, I observe that Ground 5 of the petition does not allege facts that are said to constitute the illegal practices of bribery or undue influence by the first respondent as candidate for election.  Therefore if Ground 5 of the petition and its facts in support were to succeed as drafted, they could only do so in view of s.215(3)(b) of the Organic Law by setting forth facts which show an “illegal practice” committed by a person with the candidate’s knowledge or authority and that the result of the election was likely to be affected.
140.	As the facts pleaded by the petitioner in support of his Ground 5 do not allege that the “illegal practice” of bribery or undue influence was committed by any electoral official with the knowledge or authority of the first respondent as candidate, Ground 5 is seriously  defective on this basis alone. 
141.	Furthermore, no matter whether it was the intention of the petitioner in Ground 5 of the petition to present facts showing a combination of “illegal practices” under s.215(3) and/or “errors or omissions” under s.218(1) of the Organic Law, those facts as pleaded must still be sufficient to satisfy the Court that the result of the election was likely to be affected or that the election should be declared void.  The facts as presented for Ground 5 fall far short of that mark.
142.	I concur with the submissions made for the respondents that the matters set out in support of Ground 5 of the petition omit material facts, that wrong statutory citations have been given for alleged electoral offences, that no distinction has been made between “illegal practices” and “errors and omissions”, that there are no facts set forth which would tend to establish that the alleged electoral misconduct complained of by the petitioner was done with the first respondent’s knowledge or authority, and that the brief facts that have been presented for Ground 5 provide no foundation to satisfy the Court that, even if proven, the result of the election was likely to have been affected or that the election should be declared void.  Ground 5 of the petition is struck out.
GROUND 6 – ERRORS AND OMISSIONS DURING COUNTING FOR YANGORU SAUSSIA
143.	This ground of the petition is generic and relates to a range of matters complained of by the petitioner.  The facts in support of Ground 6 of the petition are set out below, without editorial correction: 
	6.1	Counting for the Yangoru Saussia Open Electorate started on Thursday 14.07.22 at around 3:30 pm with both the Regional and Open Seat.
	6.2	However, due to reasons unknown, Returning Officer Mr. Francis Kambaka decided to count 4 ballot boxes for 4 LLG at once for the Open ballot boxes and not Regional boxes to balance scores for both Regional and open.
	6.3	Error during counting by the Returning Officer together with his Assistant Returning Officer when they fail to apply the counting models and layouts in counting of the ballot boxes (papers) for the Regional and Open simultaneously.
	6.4	On the 19th July 2022, scrutineers and candidates disputed the idea and scrutineers boycotted the counting which left only the First Respondent’s scrutineers and one other scrutineer Clement Wagia for candidate Jeremiah Jerifia who witnessed everything during the counting.
	6.5	The decision by the Returning Officer to count ballot papers for Kamatoku disputed ballot boxes (papers) by team#5 have invalidates the return of the First Respondent. Because the influenced ballots of 1059 were objected by the scrutineers of the other 15 candidates during counting.
	6.6	It is also evident on the same error done by the Presiding Officer Ambrose Soru during polling for team#1 where he illegally allocated voting compartments for the First Respondent and authorized witness voting in these polling places in Numbo Local Level Government and they are:
		1)	Kininien village Ward#1
		2)	Yekimbole village Ward #3 (an unauthorised polling place)
		3)	Wamaian village ward#3
		4)	Kininumbogum  ward#4
		5)	Niakandogum ward#5  
	6.7	Thus contributed in influencing, tempering and affecting a total of 9905 votes from the First Respondent.
	6.8	Consumption of alcohol by polling officials at Sausso LLG chambers where ballot boxes for Sausso LLG were stored and doing of returns in off (early) hours of the morning witnessed by:
		1)	Andrew Saviromo
		2)	Titus Wafi
		3)	Malcolm Wama
	6.9	Amounts to error done by the Assistant Returning Officer Dominic Huaiari who unlawfully authorize the balancing of returns and as such the total 11,525 votes of Sausso LLG has been tempered and influenced.
	6.10	It is also evident that there were no returns for polling for all wards per LLG for balancing of figures by almost all Presiding Officers in the Numbo LLG including other Local Level Governments as well.
	6.11	It was also witnessed by Clemet Wagi that there were no quality checks after the primary count, even the 5 disputed ballot boxes for Numbo LLG were authorized to be counted by the Returning Officer Francis Kambaka in the absence of scrutineers from the 16 candidates and went straight to elimination process.
	6.12	During last day of counting on 20.07.22 at around 10am, the error caused by the RO Mr Kambaka and his ARO Sengi Kintaro on instructing the counting officials to place the informal ballot papers with the exhausted ballot papers to be counted during the 14th exclusion process as witnessed by one Clement Wagia who questioned the RO in the presence of other scrutineers and election observers when also the Presiding Officer for team#8 Mr. Samuel Maisen raised the same issue.
	6.13	Since the exhaust ballot papers play a significant role in drawing down the Absolute Majority then technically the total of 10,000 exhaust ballot papers gives a fake figure to draw down the Absolute Majority.
	6.14	The Returning Officer Francis Kambaka knowingly and unlawfully instruct his officials to place the informal ballot papers with the exhausted ballot papers.
	6.15	Returning Officer and Assistant Returning Officer, both before some scrutineers and election observers when caught apologised for that technique.  But as a result of their actions, a total of 37,714 votes were drastically influenced and tempered which gave win for the First Respondent.
	6.16	Therefore, content that there have been serious and obvious errors and omissions during the counting of the boxes containing votes of the people of Yangoru Saussia during the counting of the East Yangoru LLG Chambers.
	6.17	It is also apparent that the declaration of Mr Richard Maru with the absolute majority of 17,075 was based on figures which did not reflect the inclusion of the 10,000 exhausted ballot papers.
	6.18	It is clear that through errors, omissions, undue influence and irregularities by the unlawful conduct of the Electoral Officials, their agents, supporters and Police personals together with the First Respondent, his agents and supporters have miserably invalidated the figures and fraudulently declare the First Respondent as the member elect for 2022 Yangoru Saussia Open Electorate.
144.	I observe that the facts pleaded under Ground 6 are more extensive than those pleaded under Grounds 3, 4 and 5 although this is due in part to the repetition of various of the matters already pleaded under earlier grounds.  For example, para 6.8 for Ground 6 is a repetition of the alleged drinking spree at Saussia LLG chambers referred to in paras. 3.1 and 3.2 for Ground 3.  And para. 6.6 for Ground 6 relates to the alleged allocation of specific voting compartments to the first respondent by PO Mr Soru at villages in Numbo LLG already pleaded in para. 2.1 for Ground 2 of the petition.
145.	Mr Waisi and Mr Pep both submit that the matters pleaded under Ground 6 are confusing, ambiguous and contain mainly conjecture and speculation. 
146.	An example of confusion is the contention of the petitioner in para. 6.17 for Ground 6 that the declaration of the first respondent “with the absolute majority of 17,075 was based on figures which did not reflect the inclusion of the 10,000 exhausted ballot papers”.  This allegation, which in any event I find to be conjecture, does not make sense because it is ambiguous, lacks clarity and is difficult to understand.  
147.	Further, I find that the following matters, among others, which are pleaded under Ground 6 are not facts but are speculative and reflect the opinion of the petitioner:
•	Para. 6.7, which states, with reference to preceding matters pleaded in Ground 6, that those matters “contributed in influencing, tempering and affecting a total of 9905 votes for the First Respondent”.  
•	Para. 6.14, which imputes to RO Mr Kambaka a presumed criminal intention because he “knowingly and unlawfully” instructed his officials to place informal ballot papers with exhausted ballot-papers.
•	Para. 6.15, which says that, because of alleged electoral misconduct by returning officer Francis Kambaka and his assistant returning officer, “a total of 37,714 votes were already drastically influenced and tempered which gave win for the First Respondent”.
•	Para. 6.16, which postulates that “there have been serious and obvious errors and omissions during the counting of the boxes containing votes of the people of Yangoru Saussia during the counting at the East Yangoru LLG Chambers.”
•	Para. 6.17, which alleges that matters complained of by the petitioner “have miserably invalidated the figures and fraudulently declare[d] the First Respondent as the member elect for 2022 Yangoru Saussia Open Electorate”.
148.	These speculative and opinion-based matters pleaded in Ground 6 must be disregarded because they purport to usurp the Court’s function and role, which is to determine whether, for the purposes of s.208(a) of the Organic Law, there are sufficient facts set forth in an electoral petition, which if proven, would invalidate an election or return.
149.	Mr Waisi for the first respondent submits that in addition to the objectionable confusing, repetitive and speculative matters pleaded for Ground 6 of the petition, the facts for that ground failed to include the following material facts which were essential for the petitioner to have set forth if he were to succeed in his endeavour to show how his allegations of fact affected the result of the election, as is required in the circumstances of this case by both s.215(3) (“illegal practices”) and s.218 (“errors and omissions”) of the Organic Law:

	(1)	Facts relating to the exclusion process referred to in para. 6.12. For example, in respect of which candidate was the 14th exclusion process conducted? What was the total number of allowable ballot-papers after that exclusion process?  What was the total number of exhausted ballot-papers?  What was the total number of votes distributed as a result of the exclusion process complained of by the petitioner?
	(2)	Facts which would clearly demonstrate that number which was the absolute majority of votes (50% +1) required by the first respondent to have won the election.
	(3)	The winning margin and the votes for the first respondent which were cast in excess of the absolute majority.
	(4)	The difference in the number of votes between the total of the votes for the petitioner and the total of the votes for the first respondent.
	(5)	the number of votes the petitioner required to reach the absolute majority.
	(6)	the ballot-box identification credentials and number of ballot-papers in the ballot-boxes, which information should be verifiable from the presiding officers’ journals.
150.	Mr Waisi, supported by Mr Pep, submits that the above facts were material facts that were essential to have been stated by the petitioner in Ground 6 and elsewhere in the petition because without those facts it is impossible to determine whether the result of the election was likely to have been affected by the matters complained of by the petitioner in Ground 6.  I agree with this submission.
151.	In short, I find that the facts alleged and matters presented for Ground 6 of the petition are confusing and do not lay any satisfactory foundation which could satisfy the Court that the result of the election was likely to be affected. The heading for Ground 6 states “Errors and Omissions during Counting for Yangoru Saussia”.  However, the matters complained of under Ground 6 are not restricted to “errors and omissions” but, if proven, could potentially amount to “illegal practices”.  The distinction between those two categories of electoral offences remains blurred for Ground 6.  The Court and the respondents are left with the task of trying to sort out, despite the heading for Ground 6, which of the matters alleged by the petitioner are “errors and omissions” and which those matters should be more accurately categorised as “illegal practices”.  Furthermore, no facts are set forth for Ground 6 that would tend to show that any alleged electoral misconduct was done with the knowledge or authority of the first respondent, and therefore those facts that are presented for Ground 6 clearly fail to satisfy the Court that the election should be invalidated because of serious electoral offences, be they “illegal practices” (s.215(3) of the Organic Law) or “errors or omissions (s.218 of the Organic Law).  Ground 6 of the petition is defective and is struck out.
GROUND 7 – DISCREPANCIES DURING COUNTING FOR YANGORU SAUSSIA OPEN ELECTORATE AND REGIONAL COUNT 

152.	The facts in support of Ground 7 of the petition comprise a total of 47 paragraphs under the heading “Discrepancies During Counting”.  Ground 7 is prolix and sets out an account of matters for which the petitioner is aggrieved and which are said by him to have occurred during the counting phase for the Open Seat and the Regional Seat for the Yangoru Saussia Electorate. 

153.	Appended to the petition under para. 30 of the facts for Ground 7 are four pages of miniaturised and barely legible photocopied documents said to be: 
(a)	“Annexure 19A East Sepik Regional Score Sheet from the Electoral Commission Website” (first preference count tally sheet for East Sepik Regional Seat);
(b)	“Annexure 19B East Sepik Regional Scrutineer Timothy Kanawi Score Sheet”;
(c)	“Annexure 19A Numbo LLG 8 Polling Teams Schedule”;
(d)	“Annexure 29B Electoral Commission Polling Schedule”;
(e)	“Annexure 21A Yangoru Saussia Open 14th Elimination and Exclusion Score Sheet” (Yangoru Saussia score sheet/tally as per declaration by Yangoru Saussia returning officer Mr Kambaka).
154.	It is contended for the petitioner that the 47 paragraphs set out for Ground 7, including the photocopies of four pages of evidentiary material comprising score sheets and polling schedules forming part of para. 30 of Ground 7, when taken as a whole, should satisfy the Court that sufficient facts have been set out in compliance with s.208(a) of the Organic Law to justify invalidation of the election of the first respondent.

155.	However, a close perusal of the lengthy material which sets out the alleged facts for Ground 7 of the petition indicates that many of the matters contended by the petitioner are not confined to the counting stage of the election process for the Yangoru Saussia Open Electorate but overlap and extend to other stages of the election as well.

156.	In my assessment of the LPV, there are six stages to the statutory electoral process, each stage having a variable duration depending on the location and demographic of a particular electorate:

1.	Pre-nomination period
2.	Nomination period (approximately 7 days)
3.	Campaign period (approximately 8 weeks)
4	Polling period (approximately 1 to 2 weeks)
5.	Counting period, concluding with declaration of winning candidate (approximately 2 to 4 weeks)
6.    Post-counting period during which the Return of the Writ is made to the EC (indefinite prior to calling of Parliament).
157.	Because of the protracted manner in which the matters in support of Ground 7 of the petition have been set out as facts, it is not practical to reproduce those matters in extenso in this decision as they exceed 12 pages.  I have therefore analysed the matters alleged by the petitioner for Ground 7 of the petition in the table set out below. Column 1 specifies the paragraph numbers used for the facts set out for Ground 7. Column 2 relates to the corresponding stage of the electoral process.  Column 3 gives a short description of the alleged electoral misconduct complained of by the petitioner.  Column 4 is my commentary on those paragraphs.   

Ground 7
Para. No.	Stage of Electoral Process	Alleged Electoral Misconduct	
Commentary	

1	
Pre-nomination	
General complaint regarding 2022 National Election	
•	Except for fact that petitioner was nominated as a candidate on 12 May 2022, para. 1 contains irrelevant material. 

2-3	
Campaign	
Allegations that Electoral Commission’s appointment of Returning Officer Mr Kambaka was improper,	
•	No indication whether these allegations, even if proven, relate to any known ground under s.208(a) Organic Law to invalidate the result of the election.
•	Appointment of the Returning Officer (RO) is  the prerogative of the Electoral Commission (EC), which is not bound by recommendations made by any person or entity. 
•	The allegation that First Respondent’s recommendation to EC that Mr Kambaka be appointed as RO jeopardized the “conduct of a free, fair and safe election” is conjecture. 
•	Petitioner must prove that RO Mr Kambaka used his powers arbitrarily to unfairly favour the First Respondent.  	

4	
Campaign	
Allegation that during campaign period the first respondent predicted he would win the election by collecting 300 votes from each of the 96 wards in the Electorate.	
•	Irrelevant point. 
•	Campaign speeches and a candidate’s own projections of future voting success do not per se constitute any known ground to challenge an election result. 	

5	
Campaign	
Petitioner asserts that the 16 candidates who opposed the first respondent in the election all advised their supporters not to give even their 2nd and 3rd preference votes to the first respondent. 	
•	Relates to campaign strategy of petitioner and 15 other candidates. 
•	Irrelevant except as possible general background to specific allegations of electoral misconduct by EC officials and others. 
•	Para. 5 is the first occasion in the petition when the petitioner has actually named the other 15 candidates who were standing in the election against the first respondent.  The names of all 17 candidates should have been clearly stated as facts much earlier in the petition (under section B, not erroneously under Section C) as per Form 1 of the Election Petition Rules 2017. 	

6	
Campaign	
Allegation that limited time was given for the campaign period when compared to earlier elections in the Electorate.
	
•	Irrelevant except as general background to allegations of specific electoral misconduct by EC officials and others.
•	Limited time for a campaign period is not a known ground for invalidation of an election result under s.208(a) Organic Law. 	

7-8	
Counting	
Change of gazetted counting venue from Moem Barracks and subsequent transfer of ballot-boxes to new venue at East Yangoru LLG Chambers alleged to be “illegal” or “irregular”.	
•	No indication whether these allegations, if proven, are to be categorised as “illegal practice” under s.215(3) or as “errors” under s.218(1) Organic Law.
•	In practice, the EC can change counting venues at any time for security reasons, but such decision should be authorized in writing by Electoral Commissioner himself notifying candidates and scrutineers of the change. 	

9-10	
Counting	
Ballot-boxes opened, sealed and tagged without verification by all candidates and scrutineers.	
•	No indication if these allegations, if proven, are to be categorised as “illegal practice” under s.215(3) or as “errors” under s.218(1) Organic Law.
•	Names of those candidates and scrutineers who were:
(a) in attendance; and
       (b) absent,
       when ballot-boxes were opened, sealed               
       and tagged by RO not stated. . 	

11	
Polling	
Allocation of 3 x extra polling teams and provision of 6 x extra ballot-boxes for Numbo LLG (3 x for Open Seat and 3 x for Regional Seat) said to be “illegal practice”.	
•	Pre-count takes place before the polling period starts. Each ballot-box is allocated for a specific gazetted ward in an LLG. Sometimes a ward can be allocated 2 or 3 boxes at the Pre-count, should the election authorities accept that an exceptional situation in a particular ward warrants it. 
•	An exceptional situation includes, but is not limited to, tribal warfare or environmental hazards that may restrict movement of the populace within the ward.  When such is the case, all candidates and scrutineers are informed accordingly at the Pre-count of the ballot-boxes. 
•	Petitioner has failed to name the particular wards in Numbo LLG which allegedly had 6 extra ballot-boxes allocated to them. These are material facts. In the absence of those material facts, the aggregate of ballot-papers for the Open Seat cannot be balanced against the total number of electors for those unidentified 3 wards. The Court and the respondents cannot reasonably be expected go sifting through the petition looking for these essential facts. 	

12-13

Polling	

1.  Allegation that allocation by RO Mr Kambaka of additional 3 x polling teams for Numbo LLG contributed about 6,000 extra ballot-papers and 3 extra polling teams for Numbo LLG was “illegal”.

2.  Allegation that failure to follow gazetted polling schedule was “illegal”.	

•	No indication if these allegations, if proven, are to be categorised as “illegal practices” under s.215(3) or “errors” under s.218(1) Organic Law.
•	Petitioner must balance the total elector numbers for the respective wards in Numbo LLG against the aggregate amount of ballot-papers issued. 
•	The Pre-count figures for unidentified 3 x wards need to be confirmed against figures stated in Form 66A (the master tally sheet) for the same wards. Only this can confirm that about 6,000 extra ballot-papers were used during polling. The material facts to substantiate these allegations are missing. 
•	Para. 13 incorrectly and confusingly refers to polling schedules attached to the petition as “Annexure “B”. The polling schedules are in fact attached and marked “Annexure 19A” and “Annexure 29B”.  
•	The barely legible copies of polling schedules in miniscule print incorporated into the matters set out under para. 30 of Ground 7 are in the nature of evidence, not facts.	

14	
Polling & Counting	
1. Use of 2017 Polling Schedule by RO Kambaka alleged to be “illegal practice”. 

2. Allegation of further “illegal practice” in that reconciliation of ballot-papers for Open Seat and Regional Seat is difficult and has yet to occur because the counting of ballot-papers for Open Seat and the counting of ballot-papers for the Regional Seat were  conducted separately and in isolation from each other.	
•	Petitioner has to show by material facts that the EC did not give ample notice that time constraints was an exceptional circumstance that warranted use of 2017 Polling Schedule. 
•	Petitioner has failed to state which wards had ballot-papers counted for Open Seat and which wards had ballot-papers counted for Regional Seat.  Reconciliation of these two countings is not possible unless the counting is reconciled at ward level. 	

15 & 18	
Polling
& Counting	
Allegation of appointment of polling and counting officials said to be biased in favour of the first respondent.	
•	Names of “majority of the polling and counting officials” said to be relatives of CEO of Yangoru Saussia District Development Authority (YSDDA) Mr Jack Yafai and assumed by petitioner to be biased in favour of the first respondent not stated.  
•	Although names of “majority of the polling and counting officials” said to be relatives and supporters of the first respondent are stated in para. 18, there are no material facts which could tend to substantiate allegation of bias on the part of those polling and counting officials.
•	The allegation of bias is conjecture on the part of the petitioner.	

16-17	
Polling & Counting	
General allegations of bias and influence by DDA CEO Jacob Yafai and RO Mr Kambaka.	
•	The allegations are in the nature of submissions made without factual foundation.
•	The names of the polling stations/wards where the DDA CEO Mr Yafai is alleged to have influenced electors not stated. 
•	What are the alleged facts which would tend to substantiate the means by which YSDDA CEO Mr Yafai and RO Mr Kambaka are said to have influenced particular electors? 
•	These allegations are conjecture.	

19	
Campaign & Polling 	
Allegations that Police personnel aided and abetted polling officials to poll in favour of first respondent.	
•	No facts to support these allegations.
•	These allegations are conjecture.	

20-23	
Counting	
Alleged “illegal counting omissions and practices” because corresponding Open (District) and Regional (Provincial) ballot-boxes not counted together	
•	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. 
•	Best practice for transparency reasons is that corresponding Open (District) and Regional (Provincial) ballot-boxes should be counted together during the preliminary count. The reason for this is because the PO for each ward is required to later verify the serial numbers and tags for the two sets of ballot-boxes which conform to journal notes and figures derived from the preliminary count.   
•	It is unclear from the facts alleged in paras. 20-23 whether the protest made by the petitioner’s scrutineers to the counting of Open Seat ballot-papers done in isolation from Regional Seat ballot-papers was made during the preliminary count or during subsequent counts.  	

24-26	
Counting	
Allegation of “illegal practice” in that that between 9,000 to 10,000 “live” ballot-papers are said to have been illegally  exhausted and removed.  	
•	In the LPV, exhausted ballot-papers cannot be further re-distributed to candidates who are still in the running during elimination rounds of the counting process. Live ballot papers cannot be set aside as exhausted if the second and/or third preference votes name a candidate in the race. It would be an illegal practice to exhaust live ballot papers in those circumstances. 
•	However, the Petitioner has failed to substantiate by facts how 9,000 to 10,000  “live” ballot- papers were said to be illegally exhausted and removed. 
•	If the 14th elimination paved the way for only 5,098 ballot papers to be re-distributed, and assuming that all 5,098 ballot-papers were “live”,  where did the remainder of the alleged “live” ballot papers come from to add up to 9,000 or 10,000? 	

27	
Counting	
Allegation that declaration by RO Mr Kambaka of first respondent as winning candidate was made without reconciliation of Open (District) Seat and Regional (Provincial) Seat ballot-papers.	
•	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. 
•	It is not necessary to reconcile the counts for Open Seat and Regional Seat after the preliminary count is over. The elimination rounds can be separate as there is no need to verify serial numbers and tags anymore.	

28	
Post-counting	
Statement that Electoral Commissioner would not receive the Return of Writ from first respondent on 22 July 2022 as the latter was not the legally authorised person to deliver the Return of Writ. 
	
•	Irrelevant facts which could not affect the result of the election.	

29	
Counting	
Allegation that journal entry reports not properly done in respect of counting of East Sepik Regional ballot-papers at Moem Barracks. 	
•	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. 
•	A PO, being the master invigilator during polling of votes at a ward, has a duty to report on the time, place and manner of polling for his ward. Before a ballot-box is opened and the ballot- papers within counted, a PO has to declare a ballot-box valid for counting substantiated by his reports. This is during the preliminary count. If a candidate’s scrutineer wishes to dispute the integrity of a ballot-box, he can make his objection known to the PO if there are good grounds for doing so. If that objection is overruled by a PO,  the RO or his delegate can make the final decision, whether to admit the ballot-box for counting or not.
•	No facts alleged as to whether the petitioner’s scrutineers raised any objection with RO Mr Kambaka or pursued any such objection. . 	

30-31	
Counting	
Allegation of “Irregular and illegal practice” in that it is said that the counting method used by RO for Yangoru Saussia Regional Seat was improper and that this resulted in a difference of about 10,000 ballot-papers between the totals for Yangoru Saussia Open (District) Seat and East Sepik Regional (Provincial) Seat and which difference could not be reconciled from the respective score sheets for the two Seats. 	•	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. 
•	The Petitioner alleges that there was a difference of about 10,000 ballot-papers between the Yangoru Saussia Open Seat and the East Sepik Regional Seat as shown in the electoral counting records which could not be reconciled (the inference being that this adversely affected the result of the election by favouring the first respondent).
•	Material facts needed to prove these allegations should demonstrate that the 10,000 difference was apparent at the conclusion of the preliminary count and before the elimination rounds commenced. No such facts are stated in para. 30 and 31.
•	The allegations are incohesive and are predicated on facts which have not been properly stated.   	

32
	
Post-Counting	
Statement that Commonwealth Election Observer Group reported on YouTube social media that there was electoral fraud in Yangoru Saussia Open Electorate	
•	Irrelevant fact 
•	Social media reportage is often incomplete and biased and is not admissible as evidence of electoral fraud

33-44	
Polling & Counting	
Multiple matters complained of which are said to be “irregular and illegal”

•	The various allegations made in paras. 32 to 44 are largely repetitive of earlier allegations made in the petition and are predominantly assumptions and conjecture made without factual foundation. 	

45	
Counting	
(1) Signing of Form 66B alleged to be “irregular and illegal”.

(2) Allegation  that  the signature of petitioner’s scrutineer on Form 66B (certification of final elimination of electoral figures) was forged by first respondent’s scrutineer Jethro Jenduo.	
•	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. 
•	It is clearly an  “illegal practice” to forge the signature of another candidate’s scrutineer’s signature for the purpose of validating Form 66B.
•	However, even if this allegation of forgery could be proven “to the entire satisfaction of the Court”, no factual material is stated, or allegation made, that the first respondent authorised or had knowledge of the alleged forgery as required by s.215(3)(a)  of the Organic Law. 

46	
Post-Counting	
Statement that the first respondent’s attempted delivery of return of Writ to Electoral Commissioner on 22 July 2022 was “not proper and illegal”.	
•	This is not an “illegal practice”.  Even if proven to be an “error” or irregularity, the refusal of the Electoral Commissioner to accept the return of the Writ by the first respondent was proper, pending the return of the Writ by the RO.
•	Para. 46 is a repetition of the matter complained of by the petitioner in para. 28.  It is irrelevant to the result of the election of the first respondent.	

47	
Counting	
Summary of petitioner’s case. 

Alleged that the 10,000 or more difference in votes between first respondent (17,075), petitioner (8,357) and second runner-up Micha Vines (7,137)  affected the result of the election of the first respondent. 	•	The factual foundation for the petitioner’s case that 10,000 or more votes are unaccounted for is lacking.  
•	The petitioner has not stated facts which concisely or coherently enable the Court to understand how the difference of approximately 10,000 votes could be calculated.  As per the above commentary for para. 26, if the 14th elimination resulted in only 5,098 ballot-papers being redistributed, and assuming that all of those 5,098 ballot-papers were “live”, where did the remainder of the valid ballot-papers come from to add up to 10,000 or more votes? 	

158.	Mr Waisi and Mr Pep for the respective respondents both submit that the manner in which the facts in support of Ground 7 have been presented is very confusing. The heading for the facts set out for Ground 7 is “Discrepancies during counting for Yangoru Saussia Open Electorate and Regional count for the Yangoru Saussia Open Electorate”.  Those facts give an account of alleged electoral misconduct but fail in almost all instances to distinguish between what misconduct is said to constitute “illegal practices” as distinct from  misconduct that is said to constitute “errors or omissions”.   Instead, it is submitted, the facts presented for Ground 7 plead, using the petitioner’s own words, “illegalities” mixed up with “irregularities”, ‘illegal practices” and “illegal counting omissions and practices”. 
159.	In their submissions for the respondents, Mr Waisi and Mr Pep both point to the absence in the facts presented for Ground 7 of any material facts which would tend to demonstrate,  as required by s.215(3) and s.218 of the Organic Law, that any alleged “illegal practice’ or any other electoral misconduct alleged to have been committed by any electoral official was likely to have affected the result of the election.  In particular, Mr Waisi points to the absence of the following material facts crucial to understanding how so many ballot-papers, possibly 6,000 or more as referred to in para. 7.13 of the facts for Ground 7 could allegedly be unaccounted for:
•	count number 
•	ballot-box number
•	polling team number
•	name of PO
•	how the votes were allegedly tampered with
•	total number of votes allegedly tampered with in each count
•	total number of votes found at each count to be tampered with.
160.	Further material facts which Mr Waisi submits should have been stated by the petitioner for Ground 7 in connection with the protests or objections made by scrutineers to RO Mr Kambaka and boycotting of the counting process referred to in paras. 7.20 and 7.21, but were not, are these:
•	the number of scrutineers who objected
•	the names of the majority of the scrutineers who objected
•	which candidates were represented by objecting scrutineers
•	count at which objections were made
•	whether the objection in each case was verbal or written or both
•	to whom was each objection made, a RO or an Assistant RO?
•	the number of ballot-papers the subject of each objection
•	the reason for each objection
•	the decision on each objection made by the RO or Assistant RO.
161.	Mr Waisi submits that there is no factual basis or nexus which would tend to establish whether the alleged 6000 or more ballot-papers referred to in para. 7.13 for Ground 7 formed part of the total number of votes such that those ballot-papers subsequently affected the results of the count for either the Open Seat or the Regional Seat Count for the Yangoru Saussia Electorate.  Mr Waisi submits that because of the absence of the material facts he has identified, the Court and the respondents are left with guesswork and assumptions which fall far short of providing the foundation for the Court to be able to determine whether the result of the election was likely to have been affected by those alleged 6000 or more ballot-papers, as required by s.215(3) and s.218(1) of the Organic Law.
162.	Mr Waisi and Mr Pep both submit that a further and fatal defect apparent in the facts presented for Ground 7 of the petition is that there are no material facts which clearly establish the winning margin of votes between the first respondent and the petitioner.  The missing material facts in this regard are said to be these, which are largely a repetition of the respondents’ primary objection to Ground 6 of the petition:
(1)	Following which exclusion, of which candidate and what was the total number of allowable ballot-papers after the exclusion process? 
(2)	The total number of votes distributed and the total number of exhausted ballot-papers?
(3)	Facts which would clearly demonstrate that number which was the absolute majority of votes (50% +1) required by the first respondent to have won the election.
	(4)		The winning margin and the votes for the first respondent which were cast in excess of the absolute majority.
	(5)	The difference in the number of votes between the total of the votes for the petitioner and the total of the votes for the first respondent.
	(6)		The number of votes the petitioner required to reach the absolute majority.
163.	Counsel for both respondents submit to the effect that without knowing what the winning margin was, and without knowing the number of votes that were affected by the petitioners’ allegations made under Ground 7 of “illegalities” mixed up with “irregularities”, ‘illegal practices” and “illegal counting omissions and practices”, and without knowing how the results of the election were or would likely be affected, it is an exercise in futility to allow the petition to progress to trial. 
164.	 This submission, that the Court and the respondents have no means of knowing from the facts presented in Ground 7 what the winning margin was between the first respondent and the petitioner, has much substance to it.  The submission echoes what was previously said by Kandakasi J (as he then was) at para. 12 in the 2018 case of Wararu Waranaka v Maru (supra) between the very same parties who are before the Court in this proceeding. To that extent, I concur with the primary submissions made for the respondents in their objection to Ground 7 of the petition.  After careful analysis of the facts presented for Ground 7, the Court still does not know the winning margin of 50% +1 that enabled the first respondent to win the subject election or how that winning margin could possibly be calculated from the facts and conjectural assumptions made by the petitioner in Ground 7 of the petition.  Ground 7 of the petition is struck out.
DESCRIPTION OF OCCUPATION OF ATTESTING WITNESSES
165.	The respondents each challenge the competency of the petition on the basis that the term “subsistence farmer” is insufficient description of the occupation of the two attesting witnesses to the petition for the purposes of s.208(d) of the Organic Law. 
166.	The attestation clauses for the two witnesses to the petition are contained on page 21 of the petition and state as follows:
	FIRST ATTESTING WITNESS:
	I, GEORGE KWAIMANI, SUBSISTENCE FARMER of NINDIPOLE VILLAGE, WARD 17, WEST YANGORU, YANGORU SAUSSIA DISTRICT, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
	 [signed]
	(Signature of first attesting witness)	
	SECOND ATTESTING WITNESS:
	I, LEO WAFI, SUBSISTENCE FARMER of NIAKOMBI VILLAGE, WARD 7, NUMBO LLG, YANGORU SAUSSIA DISTRICT, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
	 [signed]
	(Signature of second attesting witness)	
167.	I have already alluded to the mandatory nature of s.208 of the Organic Law earlier in this decision.  Section 208(d) states:
	208.	A petition shall—
	  ...
	  (d)	be attested by two witnesses whose occupations and addresses are stated; 
168.	Section 210 of the Organic Law makes it clear that compliance with s.208 (requisites of petition) and s.209 (deposit as security for costs), cannot be dispensed with.  This includes s.208(d).  Section 210 provides:
	210.	Proceedings shall not be heard on a petition unless the requirements of sections 209 and 209 are complied with.
169.	In Talita v Ipatas (supra) the Supreme Court said this at paras. 18 and 19: 

      “	18.	Section 208(d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses.  That is the first requirement.  The second aspect is whether the details provided are sufficient.  The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. ... The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located.  It also makes the petition genuine.
	19.	Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected.  Consequently, the petition will be ruled invalid.”	
170.	In Aihi v Avei (No. 2) (2003) SC720 (Amet CJ, Los, Sakora, Injia, Sawong JJ) the Supreme Court by a majority of 4:1, held that the term “villager” was a sufficient description of the occupation of an attesting witness to a petition for the purposes of s.208(d) of the Organic Law.  The Supreme Court said at p.9 : 
      “	In the final analysis, as we have already concluded, a “villager” is descriptive of a person who comes from or lives in the village, but in our PNG context it has a much wider meaning; and it includes a person who lives in the village and does all the things a village person in PNG does to make a living.  In other words, it is also descriptive of his “occupation” ”
171.	In Zeming v Bomareo (supra), David J held that the occupation “community representative”, when given in the attestation clause of an election petition, was sufficiently descriptive to be compliant with s.208(d) of the Organic Law. The respondents’ objection to that description as being vague or inadequate was rejected. 
172.	Guided by the decisions in Aihi v Avei (No.2), Talita v Ipatas and Zeming v Bomareo, I find that that the occupation of “subsistence farmer” as stated in the present petition by the two attesting witnesses is clear.  The two attesting witnesses make their living by being farmers in the agrarian subsistence economies of the villages where they reside. There is no ambiguity about that description of their mutual occupation.  I dismiss this ground of objection made by both respondents.  To do otherwise would be to disregard s.217 of the Organic Law and to ignore the liberal approach now required of the National Court by the Supreme Court decision in Hagahuno v Tuke.
RELIEF CLAIMED 
173.	It is fundamental to the competency of an electoral petition that a petitioner must state the relief being sought. Section 208(b) of the Organic Law provides:
	208.	A petition shall—
	  ...
	  (b)	specify the relief to which the petitioner claims to be entitled;
174.	The powers of the National Court to grant relief sought in an electoral petition are extensive.  Various of those powers are set out in Section 212(1) of the Organic Law which provides:
	212.	Powers of court
	  (1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
		(a)	adjourn; and
		(b)	compel the attendance of witnesses and the production of documents; and
		(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
		(d)	order a re-count of ballot-papers in an electorate; and
		(e)	examine witnesses on oath;
		(f)	declare that a person who was returned as elected was not duly elected; and
		(g)	declare a candidate duly elected who was not returned as elected; and
		(h)	declare an election absolutely void; and
		(i)	dismiss or uphold a petition in whole or in part; and
		(j)	award costs; and
		(k)	punish contempt of its authority by fine or imprisonment.

175.	 In the present case, the petitioner has sought the following relief at p. 20 of the petition:

      “	D.	THE RELIEFS to which the petitioner claims to be entitled are:
	1.	A declaration that the said election in the Yangoru Saussia Open Electorate is absolutely void, and or
	2.	A declaration that the First Respondent who was returned as duly elected member for Yangoru Saussia Open Electorate on the 21st day of July 2022 is not duly elected.
	3.	An Order that the Second Respondent conduct a By-Election forthwith.
	4.	An Order that the Respondents pay the Petitioner’s costs of this Petition.
	5.	Such further Other Orders this Honourable Court deems fit.” 

176.	The petitioner has accordingly sought to persuade the Court to invoke its jurisdiction to grant judicial declarations pursuant to s.212(1)(f) and (h) and a costs order under s.212(1)(j) of the Organic Law.  The petitioner has also sought an order from the Court for a by-election to be conducted, that relief having presumably been claimed under s.155(4) of the Constitution, although that jurisdictional source has not been specified in the petitioner’s claim for relief.
177.	What the petitioner has curiously not claimed in his petition is an order for a re-count of ballot-papers, which the Court would have statutory power to grant under s.212(1)(d) of the Organic Law if the Court were to be satisfied at trial that certain grounds pleaded in the petition were proven and an order for a re-count required so as to do justice in the circumstances of the case.
178.	It is well established procedural law that a party cannot obtain relief which has not been requested or sought in the pleadings:  More v University of Papua New Guinea [1985] PNGLR 401; Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1; Papua New Guinea Banking Corporation v Tole (2002) SC694; Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144.
179.	In National Capital District Commission v Central Provincial Government (2015) SC1429 (Lanalia, Hartshorn, Kassman JJ) the Supreme Court said this at paras. 14 and 15:
      “	... an order or finding should not be made if it is not sought in the originating process or in the case of judicial review, in the statement or notice of motion referred to in Order 16 Rule 5 National Court Rules.
	We find support for our view in the majority decision in Medaing v Ramu Nico Management (supra).  In that case the majority were satisfied that the trial judge fell into error in making declaratory orders that were not sought in the pleading, were not applied for during the trial and in respect of which no notice was given to the parties that it was contemplated that such orders were to be made.”
180.	I see no reason why this reasoning should not be applicable to electoral petition proceedings, particularly when s.208(b) and s.210 of the Organic Law mandatorily require that the relief to which the petitioner claims to be entitled must be specifically stated in a petition. 	
181.	If, hypothetically speaking, the submission made by counsel for the petitioner that the grounds of the petition are fully competent and that the proceedings should be allowed to go forward to trial were to be upheld by the Court, evidence would necessarily have to be adduced by the petitioner at trial to substantiate his claim that an amount of ballot-papers totalling 10,000 or more were unaccounted for at the conclusion of the counting stage of the electoral process.   
182.	The petitioner’s contention as to alleged counting errors by electoral officials is summarised at para. 47 under Ground 7 of the petition in these words, which are set out below without editorial correction:
	47.	The 10,000 plus difference of the missappropriate votes between the candidates Richard Maru (17,075), Peter Wararu (8,357) and Micha Vines (7,137) can be affected when the court orders recount will change the result of the election between the winner, first and second runner ups.
183.	Counsel for the petitioner agrees in para. 35 of his written submissions that s.210 of the Organic Law provides that an election petition cannot proceed to trial unless the requirements of ss. 208 and 209 are complied with. However, it is patently obvious that the petitioner, for whatever reason, failed to seek in his petition an order for the re-count of ballot-papers pursuant to s.212(1)(d) of the Organic Law.  An order for a re-count is the obvious relief which the Court had power to grant if alleged facts for various of the grounds set forth in the petition, in particular Grounds 6 and 7, were to have been able to be proven at trial.   
184.	No submission was made for the petitioner at the hearing of the respondents’ objections to competency that the petitioner would be seeking at trial any substantive relief by way of a re-count of ballot-papers if the respondents’ objections were to be rejected. Counsel for the petitioner was adamant that if the petition were to survive the respondents’ objections to competency and the proceedings allowed to go to trial, the petitioner would be seeking a judicial declaration that the election of the first respondent be declared void and a consequential order that that a by-election be conducted by the second respondent.  It need hardly be observed that by-elections are notoriously expensive, costing the second respondent and the State many millions of kina to conduct.
185.	In any event, even if the petitioner were to change his mind and to later seek to amend the petition to include a claim for relief by way of an order for a re-count of ballot-papers pursuant to s.212(1)(d) of the Organic Law, the case authorities make it abundantly clear that the Court would have no jurisdiction to grant such a substantial amendment.  A petition cannot be substantively amended outside the 40-day period specified in s.208(e) of the Organic Law: see for example Chan v Apelis [1998] PNGLR 408; Tulapi v Luta [2000] PNGLR 120; Pogo v Zurunuoc (2003) N2341. The only possible exception to this prohibition against amendment of a petition beyond the 40-day period would be where the amendment sought is of a cosmetic change such as an amendment to correct obvious typographical errors in the names of persons and dates referred to in a petition and no prejudice to the respondents is shown if the amendment were to be allowed:  Kramer v Duban (2012) N4884 (Makail J).     
186.	I find that that the petitioner failed at the outset of his petition to specifically seek substantive relief pursuant to s.212(1)(d) of the Organic Law by way of an order for a re-count of ballot-papers.  Had the petitioner specifically sought an order for a re-count as part of the relief claimed in his petition, as allowed by s.208(b) of the Organic Law, such an order could very well have been an appropriate order to be made by the Court on satisfactory proof of the various allegations of electoral misconduct made by the petitioner under, among others, Grounds 6 and 7. This failure to seek substantive relief by way of re-count is a fundamental flaw which, to my mind, goes to very competency of the petition when viewed in the context of the petitioner’s multitudinous allegations and assumptions of misconduct by electoral officials during the polling and counting stages of the electoral process.  The petition should be dismissed on this basis alone.

CONCLUSION  
187.	The respondents’ objection to the description of the witnesses’ occupation in the attestation section on page 21 of the petition as being inadequate is rejected.  The occupation of “subsistence farmer” for the two witnesses is sufficiently descriptive for the purposes of s.208(d) of the Organic Law.
188.	The respondents’ objections to the competency of Grounds 1 to 7 of the petition are upheld.  All grounds of the petition are struck out for being non-compliant with s.208(a) of the Organic Law. 
189.	The facts presented for each of the seven grounds of the petition are insufficient to satisfy the Court that there is just cause to invalidate the election of the first respondent or to declare that he was not duly elected.  
190.	The facts and matters relied on by the petitioner have failed to adequately distinguish between known grounds for invalidating an election, that is to say acts of electoral misconduct which constitute “illegal practices” under s.215(3) of the Organic Law as distinct from electoral misconduct said to constitute “errors or omissions” under s.218(1) of the Organic Law.  
191.	As to those allegations of “illegal practices” which are expressly levelled by the petitioner against persons named or whose identity is implied in the petition, there are insufficient facts presented which would tend to show that the alleged “illegal practices” complained of by the petitioner were committed by those persons with the first respondent’s knowledge or authority such that the result of the election was likely to be affected within the meaning of s.215(3) of the Organic Law.  
192.	As to those allegations of “errors” or “errors and omissions” which are expressly levelled by the petitioner against electoral officials of the second respondent and other persons either named or implied in the petition, there are insufficient material facts set out in the petition which would tend to show how or why the result of the election was affected by those alleged “errors” or “errors or omissions” within the meaning of s.218(1) of the Organic Law. 
193.	Overarching all of these defects in the petition is the primary objection of the respondents that the winning margin of the petitioner is incapable of being determined from the facts presented in the petition. The failure of the petition to establish a factual foundation to positively show how the election result was affected has rendered the petition incompetent and has thereby divested this Court of jurisdiction to deal with the petition, which must be dismissed.
COSTS
194.	The matter of costs of a petition, including the hearing of objections, is a matter for the discretion of the Court.  Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”.  
195.	Schedule 3 of the Election Petition Rules 2017 prescribes what are in effect the party/party costs which a Court may order a party to pay in election petition proceedings.  Schedule 3 sets out allowances for pre-trial fees, lawyers’ fees for Court attendances, lawyers’ travelling expenses, allowances to witnesses and parties and allowances on taxation of costs.
196.	After commencement of the petitioner’s election petition proceedings on 29 August 2022,  Waisi Lawyers filed the first respondent’s notice of objection on 23 September 2022 (Court document no. 11). The first respondent’s notice of objection listed 19 instances of base or material facts which the first respondent contended the petitioner had not pleaded in the petition, and that the petitioner had thereby failed to comply with s.208(a) of the Organic Law, hence the challenge to the competency of the petition.   
197.	By letter dated 10 November 2022, Waisi Lawyers wrote to Dotaona Lawyers giving notice and forewarning that because the petitioner had not pleaded the base or material facts in support of the relief claimed in the petition in breach of s.208(a) of the Organic Law, if the first petitioner did not withdraw his petition with leave of the Court, the first respondent would be seeking his costs on a solicitor-client basis in the event that the petition was dismissed by the Court at an objection hearing, and that those costs be borne by Dotaona Lawyers.    
198.	Waisi Lawyers’ letter to Dotaona Lawyers dated 10 November 2022 set out the same 19 instances of base or material facts that were contained in the first respondent’s notice of objection.  The absence in the petition of these same instances of base or material facts were extensively addressed by Mr Waisi, among other issues, at the objection hearing which was conducted by this Court on  17 May 2023. 
199.	A copy of Waisi Lawyers’ letter was admitted into evidence at the objection hearing as exhibit “A”.  No challenge to the admission of that copy letter into evidence was made by Mr Dataona.
200.	As the petitioner was given ample forewarning that the first respondent would be seeking his costs on a solicitor-client basis in the event that his objection to the competency of the petition was upheld by the Court, and as the petitioner elected to nevertheless pursue his petition and not seek leave of the Court to withdraw, I consider it only appropriate in the circumstances and in the exercise of the Court’s discretion that the petitioner be directed to pay the first respondent’s costs on a solicitor-client basis. 
201.	The purpose of an award of costs on a solicitor-client basis, and the more punitive indemnity basis, is to compensate a successful party where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy as to warrant such an order, including where a successful party has had to incur unnecessary expense in contesting unmeritorious litigation:  Paki v Motor Vehicles Insurance Limited (2010) SC1015 (Salika DCJ as he then was, Gabi, Hartshorn J); Opi v Telikom PNG Ltd (2020) N8290 (Shepherd J).   However, I am not persuaded that the petitioner’s lawyer’s conduct in this instance in acting on his client’s instructions after giving advice is so “improper, unreasonable or blameworthy” as to warrant going so far as making a solicitor-client order against him personally.  If the petitioner has any issue with the services of his lawyer, there are other legal avenues he can pursue to offset his liability to pay the first respondent’s costs on a solicitor-client basis.
ORDER
202.	The formal terms of the Order of the Court are:
	(1)	The respondents’ objections to the competency of the petition are sustained.
	(2)	The petition is entirely dismissed as being incompetent.
	(3)	Subject to any interim orders as to costs made in this suit: 
		(a)	the petitioner shall pay the first respondent’s costs of this proceeding on a solicitor-client basis, such costs to be taxed if not agreed;
		(b)	the petitioner shall pay the second respondent’s costs of this proceeding on a party/party basis as per the costs, fees, expenses and allowances prescribed in Schedule 3 of the Election Petition Rules 2017, such costs, fees, expenses and allowances to be taxed if not agreed. 
	(4)	The Registrar shall forthwith release to the first respondent the petitioner’s security deposit of K5,000 paid by the petitioner to the Registrar pursuant to s.209 of the Organic Law on National and Local-level Government Elections, the security deposit to be applied by the first respondent towards settlement of the costs of this proceeding payable by the petitioner to the first respondent pursuant to term 3(a) of this Order.
	(5)	The Registrar shall, pursuant to s.221 of the Organic Law on National and Local-level Government Elections, promptly forward to the Clerk of the National Parliament a copy of this Order.

Judgment accordingly
_________________________________________________________________
Dotaona Lawyers: Lawyers or the Petitioner
Waisi Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent