N10331

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 68 OF 2022

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

BETWEEN
KOI TRAPPE
Petitioner

And:
JACOB MAKI, MP
First Respondent

And:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri J
2023 : 16th 17th 18th 19th 22nd May

ELECTION – Parliamentary – Petition – Objection to competency – Facts to invalidate an election – strict requirement of Statute –  material & relevant facts to be pleaded with sufficient detail – Errors & Omissions Section 218 OLN& LLGE – Illegal Practises Section 215 – failure to plead amounts to incompetency of petition – S 208 (a) OLN & LLGE – S 210 Dismissal of Petition.

Facts
The first and second respondents by Notice of Objection to Competency argued that the Petition was incompetent for not setting out material facts sufficiently detailed out. All 26 allegations did not have the facts set out. Consequently, were incompetent and should be dismissed. 

Held

Notice of Objection sustained & Upheld
Material Facts not pleaded. 
26 Allegations 
Petition incompetent.
Dismissed with Costs.

Cases Cited:

Parkop v Juffa [2023] N10153
Talita v Ipatas [2016] PGSC 89; SC1603
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
Aihi v Avei [2003] PGSC 11; SC720
Takori v Yagari [2007] PGSC 48; SC905
Tulapi v Lagea [2013] PGNC 121; N5235
Review Pursuant to Constitution Section 155(2)(b); Kopaol v Embel [2003] PGSC 23; SC727  
Hagahuno v Tuke [2020] PGSC 105; SC2018 
Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99
Agonia v Karo [1992] PNGLR 463
Olmi v Kuman [2002] PGNC 40; N2310 
Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590
Kandiu v Parkop [2015] SC1437
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275
Pila Ninigi v. Electoral Commission & Francis Awesa (2013) N5322
Philemon Embel v. Pesab Jeffrey Komal & Electoral Commission (2015) N5947
Review Pursuant to Constitution Section 155(2)(b); Saonu v Dadae [2004] 
PGSC 12; SC763
Amet v Yama [2010] PGSC 46; SC1064 
Ganasi v Subam [2013] PGSC 47; SC1277
Fairweather v Singirok [2013] PGSC 42; SC1293 
Kikala v Electoral Commission [2013] PGSC 48; SC1295 
Electoral Commission of Papua New Guinea v Solo [2015] PGSC 74; SC1467

Counsel:

G. Shepperd, for the Petitioner
L. Okil, for the First Respondent
N. Tame, for the Second Respondent
		
RULING

24th May 2023
1.	MIVIRI, J: This is the Ruling of the Court on the Notices of objection to competency filed by the first and second respondents against the petition of the petitioner. 

2.	Koi Trappe the petitioner filed this petition on the 13th September 2022 against the election of Honourable Jacob Kop Maki MP as member of Mul Baiyer Lumusa Open Electorate during the 2022 National General Elections. Mul Baiyer Lumusa open electorate was one of the 118 writs issued by the Governor General on the 12th May 2022. The first respondent nominated at the District Office Mul Baiyer Lumusa on the 20th May 2022. He completed and signed his nomination forms before the Returning Officer there. And on that day at the same time, he made public announcements of his being a candidate for that seat. He was declared as member elect on the 05th August 2022 by Tommy Kolo the Returning officer there.

3.	On the 18th May 2023 when the Ruling was made in an application by the first and second respondents to amend their notices of objection to include additional grounds, by notice of motion filed in each case by the rules, there was no notice similar on this basis by the petitioner. It was not the argument of the petitioner that he had been late served the notice of objection of the 06th October 2022 by the second respondent, and his notice of motion opposing. That was the opportunity for him to air that fact. It was not sought that by the affidavit on file the second respondent was late in the service of the notice of objection in reliance on that notice of motion by the Rules that was relied by the second respondent. Hence the matter went on the hearing of the objection as if all was in order. It was not an issue appropriately to be raised there. This in my view is on a matter that was not in issue. Because if it were it ought to have been raised as a preliminary issue for determination there. Technicalities were ironed in the requirements of the rules in by the Court in its administrative role and finally setting down this matter for trial here in Mt Hagen. All parties and Court were here for two weeks now for that notice of objection to competency by each of the Respondents. And hearing was accorded dated timed. Therefore, the issue of service of the Notice of objection is not before me, nor was it raised ever until today in the final address when all matters are now in its final address and determination. There was no motion filed on that basis to lay the foundation to address. It means by the Rules there is no instituting motion. And therefore, no notice to the other side and to the Court. In all fairness therefore this is a submission that is made without laying out the foundation before the court. The other side are not expected by that fact to trot without that fact accordingly. It is a non-issue before this Court and will not be addressed given. Because it has no foundation nor merit and basis by the Rules.

4.	For all it is worth, it is an attempt technically to dismantle a dominating and overwhelming notice of objection by the Rules against a petition. The law relied on in that notice of objection has jurisprudence that powers against the petition. And what has been done here is to fight tooth and nail against the dictate dominated by the law that has evolved for very good reasons in this area of the law. And to shut out by technicality of the law in this way does not enhance the wheel of justice by the Constitution for all, petitioner, and the respondents alike and the People of Papua New Guinea by their Constitution. There is no professionalism and it ought to be set aside and will not be considered here.

5.	Coming back to the immediate and daunting matter set at hand is the determination of twenty-six (26) allegations altogether in the petition filed. In allegations 1, 2, 3, 4, 6, 7, 11, 14, 18, 21, 23, and 26 comprise the errors or omission pursuant to section 218 of that Organic Law. And which is set out as follows:

“ (1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

6.	Subsection (1) allows the error or omission committed by the officer, but the determining factor is that by itself it did not affect the result of the election. So, the ultimate issue posed is against allegation 1 with ground 1 is that having accepted the pleading as it is, did it effect the result of the election? Bearing in mind what is required of section 153A upon the shoulders of the officer, Returning Officer. Given also the fact that that discretion he exercised is sanctioned now by the Electoral Commissioner by that letter particulars set out in Allegation and ground 2 here. Because the pleading is that the subject ballot box of Mandawasa 1 was set aside on the word of Kila Paraka Nii, scrutineer for the candidate Harvey Bill Nii in the counting room. But sanctioned by the letter of the second respondent leaving the Officer, Returning Officer with no discretion on the matter.

7.	From this there are no material facts as to how the Returning Officer failed to exercise his power under section 153A in rejecting the Mandawasa 1 Ballot Box and how he is supposed to have committed an error or omission given. So that it is couched within the terms challenging that exercise of discretion by the Returning Officer. Which in turn will show how the Returning Officer is said to have breached the procedure under section 153A of the Organic Law in rejecting that ballot box of Mandawasa 1. The compound is that it is a vague allegation because there was proper polling at Mandawasa 1, objection was raised against exclusion, but was rejected by the Returning Officer without just cause excluding it. There is no material fact as to what evidence was put before the Returning Officer and also the objections set out by section 153A. The factual basis challenging the discretion of the Returning officer is inadequate. Particularly as to how the votes were affected or likely to affect the result of the election. Given that 1200 votes were the subject here. And the difference was 4, 663, it being a lessor number compared, the error or omission did not, or was likely to have affected the result of the election.

8.	And importantly that it is just that the first respondent should be declared not to be duly elected, or that the election should be declared void. And here the extent of the pleading did not satisfy as to how and why it is just that the first respondent should be declared not to be duly elected, or that the election should be declared void. Canvassed this way these were defects in the pleadings contradicting section 218 (a) of the Organic Law leaving this allegation 1 and ground 1 incomplete. And in my view granted as pleaded to be struck out pursuant, section 218 (a) of the Organic Law and dismissed.

9.	At paragraph 32 of the petition, it is pleaded; The facts pleaded in paragraphs B23 to B31 of this petition are errors and omissions by an officer of the Second Respondent, which errors and omissions, when added to the sum of votes affected by all of the errors and omissions alleged in this petition, are sufficient to affect the result of the election.

10.	In my view allegation 2 and ground 2- Error or Omission; Failure to Count Ballot Box for Mandawasa 2. Because of all set out above with its similarities to ground 1 and allegation 1, they bear out the same consequences pursuant to section 218 (a) of the Organic Law. It too is dismissed for the same reasons I set out above.

11.	The pleading is in paragraphs B33 to B41 of this petition are errors and omissions by an officer of the second Respondent, which errors and omissions when added to the sum of votes affected by all of the errors and omissions alleged in this petition are sufficient to affect the result of the election.

12.	Next Error and omission is allegation 6 and ground 6 relevantly because it deals with the refusal to bring in Mandawasa 1 and 2 Ballot Boxes for counting. It relates that on the 30th July 2022, the Ballot boxes of Mandawasa 1 and 2 including of Ruti were initially locked away by the Returning Officer. A scrutineer Mr Michael Wakani reported this to the Security personal who assaulted the Returning Officer for refusing to bring in all the Ballot boxes for counting. They then brought the ballot boxes for Mandawasa 1 and 2 and Ruti into the Counting room to be counted. Only the Ruti Box was counted whilst the Mandawasa box 1 and 2 were set aside as there were disputes to these ballot boxes and being set aside earlier on the 27th July 2022. 

13.	The Returning Officer was directed by the second respondent not to count the votes in the subject ballot box. He had no discretion given to count. Given also that the subject boxes from Mandawasa 1 and 2 were already objected to on the 27th July 2022, and from which the Returning Officer had made his decision rejecting them from scrutiny. It was pursuant to section 153A (4) of the Organic Law. And the actions of the assault prompted by the scrutineer was itself illegal, read with section 208 (a) it was incompetent bearing no material facts to warrant extension to trial. Accordingly, it was struck out.

14.	Because there were no material facts pleaded clearly as to the error or omission in the hands of the Returning Officer or his assistant. And there were no facts giving rise to the error or omission. There were no names of the persons who committed the errors and omissions. And of the number of votes importantly effected by the error and omission. In this regard canvassed using the number of votes demonstrating how the result of the election was affected, or likely to be affected. That it was just that the first respondent should be declared not to be duly elected, or that the election should be declared void. Particularly facts demonstrating how and why it is just that the first respondent should be declared not duly elected or that the election should be declared void.

15.	At paragraph 77 of the petition, it is pleaded that; The facts pleaded in paragraphs B60 to B76 of this petition are errors and omissions by an officer of the Second Respondent, which errors and omissions, when added to the sum of votes affected by all the errors and omissions alleged in this petition, are sufficient to affect the result of the election.

16.	These were lacking in the pleadings and go hand in hand with Parkop v Juffa [2023] N10153(9 March 2023); “There are some general principles that apply to this sort of objection to a ground of a petition:
 
·        Section 208(a) of the Organic Law, by requiring that a petition “set out the facts relied on to invalidate the election or return”, requires that the alleged facts 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.
 
·        The ground of the petition is required to set out the basic factual allegations that will allow the respondents and the Court to appreciate the petitioner’s case. The petition is not required to set out the evidence by which the allegations will be proven Holloway v Ivarato [1988] PNGLR 99, Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590 (17 February 1998),Karo v Kidu [1997] PNGLR 28.
 
·        If a ground in a petition alleges commission of an illegal practice (including undue influence or bribery) by a candidate or by a person other than the candidate, the alleged facts must be such as to amount, if proven, to a criminal offence.
 
·        A ground in a petition will meet those requirements when it identifies the facts alleged 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 (Eoe v Maipakai (2013) N5066).
 
·        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.
 
·        Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency (Hagahuno v Tuke (2020) SC2018).
 
17.	Given the application by the respondents sustains, allegation 6 and ground 6 both dismissed as incompetent because of the reasons set out above contradicting section 208 (a) of the Organic Law. And the case that counsel cited is on point and is the basis that this allegation must go this way, incompetent by section 208 (a) and its dismissal.

18.	I now consider allegation 3 and ground 3 Failure to Conduct Quality Check. After the completion of the primary count on the 02nd August 2022, the Returning Officer and the Counting Officials proceeded to conduct the elimination process without undertaking a quality check on the primary votes collected. No quality checks were done prior to the final count on 2nd August 2022. No quality check was conducted on the 24th elimination, contrary to section 89 (1) (d) of the Electoral Law (National Elections) Regulations (as amended) 2007 (the Regulations).

19.	The First Respondent received an increased number of preferential ballot papers commencing from the 09th Elimination to the 24th Elimination compared to other candidates including the Petitioner. None of these votes were subjected to quality checks. As a result, a number of shortfalls and extra ballot papers were noted by the Petitioner’s scrutineers in various stages of the elimination. These papers were not sorted out and placed for the correct candidates. These discrepancies are set out in the table below. Table attached to the pleading depicting a total of 24 candidates with exclusion Primary Progressive tally, Total tally for Excluded, live Ballots counted, Exhausted ballots, Extra Ballots & Shortfalls.

20.	The failure to conduct quality checks during the elimination affected the result of the election as 3, 209 votes were not distributed or accounted for. This figure of 3,209 is close to the winning margin of 3, 247, by a shortfall of 65 votes. The extra ballot papers detected were 144 can be subtracted from 3, 274 the winning margin. The failure to conduct quality check was an error or omission, in not properly accounting for votes, not consistent with section 168 of the Organic Law and section 89 of the Regulation, which is likely to affect the result of the election, taking into account and adding all the cumulative votes together for all errors and omissions alleged in the petition.

21.	This is a pleading that does not gives the facts material to constituting an error or omission and against who is not clear. As there are no names of the persons who are alleged to have committed the allegation. And it is not clear by what material facts as to the number of votes affected by the alleged error and omission. The figures are too general, vague, not specific, and precise. And it is not demonstrated by any material facts as to the votes and demonstration of to show that the result of the election was affected, or likely to be affected. And that it is just that by reference that the candidate should be declared not to be duly elected or that the election should be declared void. The material facts demonstrating how and why it is just that the candidate should be declared not duly elected, or that the election should be declared void. At the best the pleadings in this way are complaints of the petitioner. He does not plead material facts which is a failure of the requirement of section 208 (a) liable for the allegation and ground to be struck out. Accordingly, they suffer that fate in law. “ Because relevant is the case of Parkop supra which are the elements and, in the pleadings, here, it is not pleaded by material facts as to how the results of the election would be affected. It cannot sustain without that pleading and cannot be aligned with section 208 (a) and must fail.

22.	The next allegation is 4 with accompanying ground 4-Failure to allow Exhausted Ballot Papers to be Counted. The Returning Officer also did not allow for the Exhausted Ballot Papers in the final exclusion to be counted. On the 04th August 2022, the scrutineer for the Petitioner Justin Mako raised an objection with the Returning Officer on whether the exhausted Ballot Papers will be counted. But the Returning Officer rejected the scrutineer’s objections as they had no time and told them to take note only. It is alleged that on the 04th August 2022, one Paul K. Yambi saw on counting official tie four loose ballot papers in a group of ten for the First Respondent and raised the point that that was not good as it would show in the records. He was shouted down by the Returning Officer and told to leave the counting centre.

23.	And it is further alleged that on the 05th August 2022, during the 24th elimination the Returning Officer refused to do quality checks on the final count as time had lapsed past 4.06pm; due time for the return of the writ and proceeded to make the declaration of the First Respondent as Member for MBLOE. And it is further alleged that, at the 24th Elimination a total of 15, 490 ballot papers were turned over for the distribution from candidate Sani Rambi during his exclusion. The Petitioner collected 336 votes while the first respondent collected 4, 745 votes, and a total of 10, 409 votes were put to the exhaust ballots, without doing any quality checks. The returning officer’s failure to conduct quality checks before the declaration was a failure to properly account for votes contrary to section 168 of the Organic law and section 89 of the Regulation, hence an error or omission which was likely to affect the result of the election.

24.	It was pleaded at paragraph 59 of the petition in this way; The facts pleaded in paragraph B51 to B58 of this petition are errors and omissions by an officer of the Second Respondent, which errors and omissions, when added to the sum of votes affected by all of the errors and omissions alleged in this petition are sufficient to affect the result of the election.

25.	Again, this is a pleading that fails to plead material facts giving rise to the error or omission. It is compounded and general giving a vague impression.  Because the number relevantly of the votes that are affected by this alleged errors and omissions is not clarified. Particularly so that it demonstrates by reference to the votes as to how the result of the election was affected and was likely to be affected. And that it is just that the candidate should be declared not duly elected, or that the election should be declared void. Materially what facts demonstrating as to how and why it is just that the candidate should be declared not duly elected or that the election should be declared void.

26.	And the two parts of section 218 set out in Parkop supra were not followed in each case by the petitioner. The last was fundamental that it was pointed out by the material facts as to how the results of the election would be affected particularly with the backdrop that it was not the doing of the first respondent.

27.	The next allegation is 7 and ground 7- Breach of Directive from the Electoral Commission. By letter dated the 31st July 2022, the Second Respondent directed the Returning Officer to set aside the ballot boxes for Mandawasa 1 and 2 and Ruti, and for the Returning Officer not to make a declaration unless he had complied with the direction; and that any declaration made by the Returning Officer in contravention of the directive would be invalid.

28.	By this time the ballot box for Ruti had already been admitted to scrutiny and counted so one Michael Wakani enquired of whether they would subtract the total number of votes from Ruti that had already been distributed. The Returning Officer said since Ruti box was already counted, let the scores be. The actions of the Returning Officer was in contravention of the second respondent’s directive contrary to section 19 (7) of the Organic Law, and therefore the declaration made was invalid.

29.	The facts that are pleaded at paragraph 84 of the petition are; The facts pleaded in paragraph B78 to B83 of this petition are errors and omissions by an officer of the second respondent, which errors and omissions, when added to the sum of votes affected by all of the errors and omissions alleged in this petition, are sufficient to affect the result of the election.

30.	It is clear by reference to Parkop supra, there is failure to plead the facts giving rise to, or constituting, error or omission pertaining. What is pleaded is too general and does not specify such that it is vague and imprecise. Particularly so that it ties down to the number of votes affected by the error or omission. That number, that is the number of votes affected if pleaded will demonstrate how the result of the election was affected, or likely to be affected. And following it is just that the candidate should be declared not to be duly elected, or that the election should be declared void. There are no material facts pleaded demonstrating how and why it is just the candidate should be declared not duly elected, or that the election should be declared void. 

31.	Once again this is an allegation independent of the first respondent who has nothing to do with it. Therefore, it is paramount that how and why the election result was affected or likely to be affected without which this allegation would be contrary to section 208 (a) and will be dismissed as incompetent. And in that respects this pleading is without material facts here. It cannot be remedied by section 217. It remains as it is incompetent and dismissed.

32.	I come now to allegation 8 and ground 8-Invalid Appointments of Polling Officials. The allegation is that some polling officials were selected by the second respondent and underwent training on 11th July 2022 at Tega Primary School. When the Returning Officer was appointed, he rejected many of the officials, and selected others to take over the polling duties, contrary to sections 19 and 118 of the Organic Law.

33.	The pleading at paragraph 89 of the petition is; The facts pleaded in paragraphs B85 to B88 of this petition are errors and omissions by an officer of the second Respondent, which errors and omissions, when added to the sum of votes affected by all of the errors and omissions alleged in this petition, are sufficient to affect the result of the election.

34.	Plainly this pleading does not plead the error or omission allegedly committed. And the facts giving rise to and constituting the error and omission. It is vague very general not specific and precise. Particularly as to the number of votes affected by that error or omission. And the number of votes affected is not pleaded demonstrating how the result of the election was affected or likely to be affected. And that it was just that the candidate should be declared not to be duly elected or that the election should be declared void. The facts demonstrating how and why it is just that the candidate should be declared not duly elected or that the election should be declared void. 

35.	And the case of Parkop supra  by counsel is on point. It does not need to go any further with that set out in bold. There is therefore one conclusion apparent identifiable that this pleading fails in the respects set out above. It lacks material facts to warrant to trial. It will be struck out and dismissed in accordance with section 208 (a) of the Organic Law as being incompetent.

36.	The six remaining errors and omissions, allegation, and grounds of which are in similar terms and will be considered together. I start with allegation 11 and ground 11- objection to Yakasmanda 2 Ballot Box. The petition repeats pleading it at paragraph 96 in this way, and says that for reasons set out therein, constitute an error and omissions of the second respondent and its agents within the meaning of that term as it is used in the Organic Law which errors and omissions when added to the sum of votes affected by all errors and omissions alleged in this petition, are sufficient to affect the result of the 22nd National General Elections of the Mul Baiyer Lumusa Open electorate under section 2018 (1) of the Organic Law.

37.	This is the same pleading in allegation 14 and ground 14-Objection to Jukuna Ballot Box; Allegation 18 and Ground 18- objections to Edeman Ballot Box; Allegation 21 and ground 21 Objection to Kuipbaut 2 Ballot Box; Allegation 23 and Ground 23 Objection to Ruti Ballot Box and Allegation 26 and Ground 26 Objection to Kuipbaut 1 Ballot Box.

38.	The allegation and the grounds in all six are that Sai Trappe Scrutineer of the Petitioner objected to the admission into scrutiny of the six boxes for six polling places listed, pursuant to section 153A of the Organic Law. The second respondent rejected each of the six objections and the petitioner now challenges all rejections. 

39.	Each of the respective allegation and corresponding grounds fail to plead the error or omissions allegedly committed. And the facts giving rise to or constituting the error or omission. It is a general pleading and in that respect is vague without any specifics and is not precise. It is not clear whether it was written or oral. To whom was it addressed and who made the decision rejecting the objection and reasons for so rejecting.  Here the name of the electoral official who committed the error or omission. Importantly the number of votes effected by the error and omissions. And the number of votes affected in not pleaded to demonstrate how the result of the election was affected or likely to be affected. And that the error or omission effected or was likely to have affected the result of the election. And that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. And the facts demonstrating as to how and why it is just that the candidate should be declared not duly elected or that the election should be declared void.

40.	In this respects all are dismissed because they are incompetent for failure to plead as set out, which are material facts. And consequently, by section 208 (a) are incompetent struck out and dismissed. These are allegation 11 & Ground 11; Allegation 14 & Ground 14; Allegation 18 & Ground 18; Allegation 21 & Ground 21; Allegation 23 & Ground 23; Allegation 26 & Ground 26. All are not committed by the First Respondent in any way or form. He is not connected in any way to their commission or omission. He bears no responsibility for them. He was in the race supervised administered by the second respondent. There is no material fact that shows that the results of the election was affected in the particulars set out. 

41.	The other 14 allegations are petitioned as Illegal Practises invoking section  215. Voiding Election for Illegal Practices, which is worded as follows:

(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 or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
42.	I now start with Allegation 5 - illegal Practice; Returning Officer Inducing Counting Official to stuff extra Ballot papers. The allegation is that the Returning Officer was in possession of extra ballot papers outside of the counting centre. He induced counting officials Richard Talipo and Thomas Philip to take them into the counting centre and mix them with the ballot papers inside the counting centre.

43.	This was an illegal practise contrary to section 110 (1) of the Criminal Code and section 215 of the Organic Law which when added together with the sum of votes affected by all other illegal practises alleged in this petition, are sufficient to affect the result of the 22nd National General Elections of the Mul Baiyer Lumusa Open Electorate.

44.	This pleading seeks its effectiveness on the total cumulative effective of all illegal practises lumped into one. Adding together with the sum total of the other votes in the other illegal practises. In that respect it cannot stand on its own. It is attempted not completed so in all fairness would not affect the result of the election for that open seat. And in the following it lacks the actual illegal practice committed by Richard Talipo and Thompson Philip. Because it is not pleaded that both these two officials did in fact take in extra ballot papers into the counting centre from the outside and stuffed them and mixed them with the ballot papers in the counting centre. And as a result, the total number of ballot papers or votes were affected by this unspecified illegal practice. And the facts and figures were also not pleaded demonstrating how the result of the election was affected or likely to be affected. And that it was just that the candidate should be declared not to be duly elected, or that the election should be declared void.

45.	This pleading has not discharged in accordance with section 215 (3) (b) of the Organic Law. It could not in that respects stand up in the light of section 208 (a) of the Organic Law. It is incompetent and must be struck out and dismissed.

46.	I now move onto allegation 9 and ground 9-Interference with Ballot Box for Yakasmanda 2. On the 19th July 2022, the ballot box for Yakasmanda 2 ward 34 EC 023334 containing 400 ballot papers was taken to Kuipbaut 1 polling area. It is not a gazetted polling location. The gazetted location is Winyi village. At Kuipbaut 1 polling station Rodney Paraka Nii and Paul Nii who were each armed with magnum pistols in the company of others by use of threats and force, wilfully prevented the polling Officials from delivering the Yakasmanda 2 Ballot Box to Yakasmanda 2 polling station; contrary to section 108 (1) (b) of the Criminal Code and section 215 of the Organic Law. From the ballot papers contained in the Yakasmanda 2 Ballot Box, Harvey Bill Nii polled 326 votes, the petitioner polled 60 votes and the first respondent polled 0 votes.

47.	The illegal Practice alleged in paragraphs B90 and B91 hereof; were all committed by persons other than the First Respondent without the First Respondents knowledge or authority; and the result of the election was likely to be affected by the illegal practices alleged in paragraphs B90 and B91 in that approximately 326 votes were affected and when such votes were tallied cumulatively with the votes affected by the other illegal acts pleaded below in this petition, the total is sufficient to have been likely to affect the result of the election. In the premises and taking into account the whole of the pleadings in this petition, it is just that the first respondent should be declared not to be duly elected or that the election should be declared void.

48.	This pleading says there was illegal hijacking of the ballot papers, and then at the same time states that there was polling because, Harvey Bill Nii polled 326 votes, he the petitioner collected 60 votes whilst the first respondent did not poll anything. 

49.	This pleading cannot stand because it is pleaded inferentially in the alternative and by that fact is impermissible: Talita v Ipatas [2016] PGSC 89; SC 1603 (16 March 2016). It is incoherent convoluted and confusing pleading. And it does not plead material facts as to whether the ballot papers for Yakasmanda were illegally marked. Nor the names of the place where that happened including the names of the people who were involved. Importantly it does not state how the result of the election was affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. Because the first respondent scored 26, 890, the petitioner 23, 616 giving the difference 3, 274, which is way lower than the 326 votes here. It is clear that that did not affect or was likely to affect the  result of the election. Let alone that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. So, by section 215(3) (a) and section 208 (a) together with section 210 of the Organic law it is struck as being incompetent and dismissed.

50.	Allegation 10 and corresponding ground interference with Voting Yakasmanda 2, raises allegation of Paraka Nii discharging his pistol into the air and dispersing electors from voting and is contrary to section 108 (1) (b) of the Criminal Code and section 215 of the Organic Law. That illegal practise is alleged to have affected 326 votes. But the pleading does not show how it effected the result of the election. It does not show that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. Because Harvey Bill Nii polled 326 votes and the petitioner 60 votes it is an incoherent pleading because on the one hand there is disruption, on the other there is pleading and numbers generated allocated. And to Harvey Bill Nii and the petitioner, not the first respondent. It is in this regard a pleading that is incompetent given. It is confusing convoluted and should be struck out as incompetent pursuant to non-compliance with section 215 (3) (a) and section 208 (a) of the Organic Law. And in accordance with section 210 struck out and dismissed.

51.	It is the same in the illegal practice allegation 12 with its corresponding ground and allegation 13 also with its corresponding ground. Both relate to Interference with the Ballot Box at Jukuna by Rodney Paraka Nii with his pistol stopping polling officials and also in the latter voters from travelling to Kuipbaut to cast their votes. There were 750 votes out of which Harvey Bill Nii polled 497 votes and the petitioner polled 230 and the remaining 18 were polled by other candidates. 

52.	This pleading is incoherent inconsistent confusing illogical and vague. It says there was disorder by use of a firearm. But then says there were votes casted and Harvey Bill Nii and the Petitioner scored numbers but not the first respondent. The pleading does not plead as to how the election result was affected. Particularly how it affected the result of the election. It does not show that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not satisfy section 215 (3) (a) of the Organic Law and 208 (a). And by section 210 is struck out and dismissed in both instances, allegation12 & 13 and ground 12 & 13.

53.	Allegation 15 and ground 15 are in respect of Interference with ballot box for Edeman, which also includes allegation 16 and ground 16 also for interference with voting for Edeman. There the number of votes concerned was 450 votes. Again, Harvey Bill Nii polled 330 votes and the petitioner 112 votes and 2 votes were polled by other candidates. And that was a case where both Rodney Paraka Nii and Paul Nii were brandishing their Magnum pistols preventing people from voting.

54.	But as in the previous allegations set out above there is voting and distribution of votes. It is also an incoherent pleading. Confusing and not clear. It is not pleaded as to how the election result was affected. It does not show that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not satisfy section 215 (3) (a) of the Organic Law and 208 (a). And by section 210 is struck out and dismissed in both instances, allegation 15 & 16 and ground 15 & 16.

55.	Allegation 17 and ground 17 is stuffing of ballot papers for Edeman where some unspecified number of ballot papers not lawfully marked by voters were marked for Harvey Bill Nii and placed into the Edeman Ballot Box.

56.	It is a vague incoherent pleading because it does not show the total number of votes affected so that from those facts figures it could be demonstrated as to how the result of the election was affected by that act. And by those figures showing it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not satisfy section 215 (3) (a) of the Organic Law and 208 (a). And by section 210 is struck out and dismissed.

57.	Allegation 19 and ground 19-Interference and stuffing of Ballot Papers for Kyakapyle. The ballot box here Ward 9 containing 450 votes was hijacked and forcefully taken by a candidate Samson K. Koiti and his supporters and marked them all for Samson K. Koiti breaching section 110 (1) of the Criminal Code and section 215 of the Organic Law. This affected 448 votes. 

58.	It is not pleaded as to how 448 affected the results of the election given that the first respondent scored 26, 890, the petitioner 23, 616 and the difference between was 3, 274 and so how would 448 votes have affected the results of the election. There is illogical incoherent pleading defective and lacking in material facts particularly how the results of the election would have been affected. And by those figures showing it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not satisfy section 215 (3) (a) of the Organic Law and 208 (a). And by section 210 is struck out and dismissed.

59.	Allegation 20 and ground 20 interference with and stuffing of ballot box for Kuipbaut 2. The ballot box for Kuipbaut 2 was forcefully taken with the use of firearms by Rodney Paraka Nii and Paul Nii to Kuipbaut 1 and marked for Harvey Bill Nii. The actions were contrary to section 108 (1) (b) and 110 (1) of the Criminal Code and was an illegal practice within section 215(3) (a) of the Organic Law. But there was polling with 684 votes to Harvey Bill Nii, Paul Othas polled 9 votes and 7 were informal. 

60.	This is an illogical and confusing pleading. Because there is hijacking of a ballot box. And then there is polling and counting of the votes with numbers tallied out. It is confusing inconsistent and incoherent. In its form too, it does not plead how the election results are affected by that number 700 given first respondent scored 26, 890, the petitioner 23, 616 and the difference between was 3, 274. And by those figures showing it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not confirm to section 215 (3) (a) and section 208 (a) and must meet the dictate of section 210 for it to be struck out and dismissed.

61.	Allegation 22 and ground 22- Interference with, and stuffing-Ruti Ballot Box. The Supporters of a candidate, one Mara Wek who were armed with bush knives threatened the electors and the presiding officer Mark Kapati and assistant Presiding officer John Kombati with violence. Mara Wek’s brother Paul Aruma placed a bush knife on the presiding officer’s neck and instructed him to sign the ballot papers and place them inside the Ballot Box, contrary to sections 108 (1) (d) and 110 (1) of the Criminal Code and section 215 of the Organic Law. Mara Wek polled 859 votes, the First Respondent polled 70 votes and all other candidates polled 208 votes and 13 votes were informal.

62.	This pleading is incoherent illogical and confusing. There are serious threats to life with offensive and dangerous weapons. Yet there is polling and tallying of the votes and counting to sort out the numbers due the candidates. And the distribution of the votes are made out with no votes for the first respondent. It is not pleaded as to how the result of the election is affected by the 1150 votes. it does not plead how the election results are affected by that number 1150 given first respondent scored 26, 890, the petitioner 23, 616 and the difference between was 3, 274. And by those figures showing it is just that the candidate should be declared not to be duly elected or that the election should be declared void. It does not confirm to section 215 (3) (a) and section 208 (a) and must meet the dictate of section 210 for it to be struck out and dismissed.

63.	Allegation 24 & Ground 24 Interference & Stuffing of Ballot Box for Ebulga. On the 19th July 2022 the Ballot Box and Ballot papers for Ebulga, ward 31 EC 023407 containing 600 ballot papers were dispatched from Kiminiga Police Barracks to Ebulga Polling Station. In the process of dispatching the ballot boxes, the ballot box for Ebulga was unlawfully taken possession of by Joe Bakri supporter and agent of one of the candidates Wilson Wingti who took the ballot box to Koibuka village. The presiding Officer Joe Bakri unlawful took possession of the unmarked ballot papers marked all in favour of Wilson Wingti and placed them in the ballot box contrary to section 108 (1) (b) and 110 (1) of the Criminal Code which is an illegal practice under section 215 of the Organic Law.

64.	The pleading fails to demonstrate how the result of the election would have been affected by the 600 votes affected here by the illegal practise. It is incompetent viewed by section 215 (3) (a) And accordingly it is not sufficiently pleaded in that regard meeting with section 208 (a) of the Organic Law. And consequently, pursuant to section 210 of the Organic law it is struck out and dismissed.

65.	Allegation 25 and Ground 25 Interference & Stuffing of Ballot Box for Kuipbaut 1. On the 19th July 2022 at 12.00pm at Kuipbaut 1 Ward 9 the ballot box there EC 023309 containing 750 ballot papers a supporter of Harvey Bill Nii, Ronny Lore and other supporters of Harvey Bill Nii wilfully obstructed the proceedings at the polling location took possession of the 628 ballot papers and marked them in favour of Harvey Bill Nii contrary to section 108 (1) (b) and 110 (1) of the Criminal Code which was an illegal practise within section 215 of the Organic Law.

66.	And from that ballot papers Harvey Bill Nii polled 628 votes, the petitioner polled 90 votes and all other candidates polled 19 votes, 12 were informal and 1 vote was destroyed during polling.

67.	This is an incoherent inconsistent pleading. It is not logical and does not make sense. This is a third party who acts illegally but then conforms to order with now tally to a number of candidates including the petitioner. It is not demonstrated by reference to that figure as affecting the elections in anyway. And the first respondent an innocent bystander who has come out despite all to rise to where he is an elected member despite all. It is not shown that the election results were effected to sustain that he was not duly elected and that the election should be voided. That is not the case here. And therefore this pleading will be incompetent because it is not clear as to why it is drafted as it is. Section 215 (3) (a) read with section 208 (a) gives the prerogative to section 210 to have it dismissed forthwith.

68.	What is set out in all the determination of the 26 allegations and grounds of this petition to fall in the way it has stems from the authoritative signpost set by Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342 relevantly that at page 345 where it stated:

 “Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.” 
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections, then there can be no proceedings on the petition because of s. 210.

69.	That is good law and has been maintained in various cases that have trodden that road. One such being Aihi v Avei [2003] PGSC 11; SC720 (3 July 2003) whose views were endorsed with approval and followed in Talita (supra) Specifically, this related to the interpretation of section 208 (d) of the subject Organic Law. The Court stated; “The strict application of this provision is to retain the genuineness or veracity of a Petition as echoed by the Supreme Court in Paru Aihi v. Sir Moi Avei (supra); “The purpose of the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process. An election by its very nature involve the masses with polarized political ideologies and a final (family) ties. One’s election loss can easily spur trouble or mischief if the procedural requirements for challenging an election are not strictly adhered to. The importance of the requirement in s. 208 (d) to state the attesting witness’ occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witness(es) attaches to the witness’ capacity to verify the petition. For instance, an infant or mute person lacking full capacity would not be expected to verify or attest a petition.” (Underline added). May I also add that it is not an inexpensive matter. Because it will draw quite extensively on scarce government resources. It will create unnecessary drain on the tight Budget of, and for the country as a whole. It must in very substantive cases go to trial. And the facts from the allegations here with the grounds in my respectful view hold no water to go down that road. The first respondent did not have anything to do or influence in the way alleged to the way he came out to be declared. Should he because of the illegalities of third parties suffer and be made to go through that process again? The People have spoken let him be by law as he is a member.

70.	In my view that is very relevant and applicable to the facts of the present case in the determination of both Notices of objection filed against the petition of the petitioner. Undoubtedly both have standing to be heard, the first respondent is the incumbent and the second respondent was administratively involved carrying out the requirements of the Constitution and the Organic law to see out the process that has culminated in the First Respondent securing as incumbent. The latter has a number of allegations levelled against his administration of the election process. He must answer those allegations. Therefore, any strict imposition by the Rules of Court, or directions that have since emanated do not sweep away that underlying fact, both must be heard out. But as I have examined at length it is not warranted that a trial be called for the reasons I have detailed above. I have detailed a ruling earlier on the adjournment sought also which corresponds given.  In this regard I take due account of Takori v Yagari [2007] PGSC 48; SC905 (28 February 2007), that the rules are a means to an end and not an end unto themselves. I am also mindful that elections are a very expensive exercise that occurs every five years. Here as it has come out evident in bold in the examination of the allegation and grounds, the first respondent has no hand in any of them coming out as alleged. It is not his making but will have serious repercussions if not properly screened out on the competency notices filed. He stands to be derailed no fault of his.

71.	Overall, I am mindful of the context of section 217 and of the substantial merits and good conscious of this petition by its own facts and circumstances. That ultimately Legal forms and technicalities do not necessarily drive the petition. But it has been good law to observe and adhere to facts and circumstances wheeled into prevailing law. Fairness and Justice has evolved and the guide is the Jurisprudence that has evolved. It will not be shed off like old skin in the natural world. But the competing modes of determination will be tailored to its case by its own facts and circumstances. Life is not stagnant and a petition is not stone firmed out in all by time and age. Life evolves and so does the law and therefore here it is ultimately the facts and circumstances that will determine the mode. Whether it is the strict application by Biri’s case supra. And that is the strict adherence mode. Or the middle trenched out by former Chief Justice Sir Salamo Injia in Tulapi v Lagea [2013] PGNC 121; N5235 (13 May 2013).  Or the liberal by the Organic Law itself reading section 217 now sign posted by Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020). But the fact is that indeed there have been petitions that have been turned around to confirm with the contention that facts must be pleaded to sustain to trial. Because failure has seen such out dismissed: Review Pursuant to Constitution Section 155(2)(b); Kopaol v Embel [2003] PGSC 23; SC727 (17 December 2003).  

72.	Alternatively, it has been held that the substantial merits and good conscious by section 217 applies from the competency stage to the trial if that is where the petition ends up. For our purposes here that is relevant given the interests for and against. And that in the determination of section 208 the 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”, Hagahuno (supra). The fundamental by the law has not been altered and the jurisprudence set out above evolved has not been swept aside. The Court expressed the view endorsed and agreed with the views by DCJ Kandakasi. All Justices, Justices Kirriwom, Mogish, Manuhu, and Makail all agreeing and reinstated that sufficient facts must be pleaded to comply with the mandatory requirements of section 208 and 209 of the Organic Law. But the interpretation on the basis of section 217 is from the beginning of the petition from the Notices of Objection into the trial. Its application is not restricted and strict application must be seen properly and carefully. Legalistic and technicalities must be used with real Justice as basis. The case was centred around bribery and attestation of witness’s occupation in the petition.

73.	This authority does not distort that there is clear distinction between the evidence and the facts, because “In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.” Per Kapi DCJ Holloway v Ivarato and Electoral Commission [1988] PGSC 16; [1988-89] PNGLR 99 (1 July 1988). It is undoubtedly the case that petitioner has a right to bring a petition but it is not a general enquiry, the court is determining a definite specific charges that if proved will result in an election being voided, Agonia v Karo [1992] PNGLR 463;Olmi v Kuman [2002] PGNC 40; N2310 (9 December 2002).The authoritative proposition of sections 208, 209, and 210 of the Organic law is resoundingly conclusively summed by Justice Injia as he then was, “The National Court is not a free for all open political quasi-judicial forum for any aggrieved persons to come to air their grievances in the hope that the election, the choice of the majority, maybe overturned”, Mune v Agiru, Kaiulo and Electoral Commission [1998] PGSC 3; SC590 (17 February 1998).

74.	The summary of all above is “ Essential facts must be distinguished from the evidence that go to prove those facts. Petitions must plead facts and not the evidence by which those facts are to be proved. Pleading the date, the time, the name of the person involved, the amount of money involved, the names of persons who were involved either as victims or perpetrators, the number of eligible voters or votes in figures involved; are few examples of the kind of essential facts required to be pleaded by s 208 (a) in conjunction with s 215 and s 218. Anything more go to detail and evidence. It is unnecessary to plead such detail. For instance, the person who witnessed the illegal act being committed, what time of the day the illegal act was committed, the family or tribe to which the person bribed belongs to, go to the evidence that are not required to be pleaded. Tulapi supra.

75.	Section 153A is in the following terms; “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 in it were compromised.
(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.
(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.
(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.”

76.	Because the consideration of section 153A for instance in Kandiu v Parkop [2015] SC1437 holding that, “This provision has been considered in a number of cases in the National Court, some of them are Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286; Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275; Pila Ninigi v. Electoral Commission & Francis Awesa (2013) N5322 and Philemon Embel v. Pesab Jeffrey Komal & Electoral Commission (2015) N5947.  Briefly, the proper procedure is if a scrutineer, candidate, or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny.  Secondly, the Returning Officer must document the objection, record the decision-making process and clearly state what opinion has been formed for the purposes of section 153A of the Organic Law and the reasons for forming that opinion. 
 
70.     If the allegation is the Returning Officer followed the decision or direction of the Electoral Commission and rejected the ballot-boxes despite the withdrawal of the objection by Mr. Anjo, it is too late for Mr. Kandiu to complain about it because the Returning Officer had made a decision to exclude them from scrutiny after consulting the Electoral Commission.  The need to consult the Electoral Commission is necessary because as was held in Philemon Embel v. Pesab Jeffrey Komal (supra), there must be uniformity in the decision in order to avoid conflicting decisions.  The decision of the Returning Officer was made based on the objection of Mr. Anjo.  Mr. Kandiu cannot hack back and ask the Returning Officer to admit the ballot-boxes to scrutiny and counting.  For these reasons, we are not satisfied that the exclusion of the ballot-boxes despite withdrawal of the objection constituted an error or omission within the meaning of section 218 of the Organic Law.  This ground is misconceived and is dismissed.”
77.	It is trite to start with the relevant Constitutional provision that sets the background. And that is Section 126 of the Constitution which addresses that; “ (1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.
(2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.
(3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting age is 18 years.
(4) A citizen’s right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).
(5) No non-citizen may vote in an election for the Parliament.
(6) The Electoral Commission is not subject to direction or control by any person or authority.
(7) An Organic Law shall make provision for and in respect of–
(a) the appointment, constitution, and procedures of the Electoral Commission, and for safeguarding its independence; and
(b) the electoral system; and
(c) safeguarding the integrity of elections; and
(d) appeals to the National Court in electoral matters.
(8) An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions, duties or responsibilities in relation to provincial elections.”
78.	Fundamentally two competing interests must be weighed here to arrive at what is real Justice Section 217 of the Organic Law. “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.” It is therefore a balance that must be drawn to arrive. And which derives from what is the language of the petition. Firstly, that of the incumbent Honourable Jacob Kop Maki, Member of Parliament who has come through into Parliament as a result of a democratic Election Process that has seen him declared as Member of Parliament, for the open seat of Mul Baiyer Lumusa on the 05th August 2022. That is the will of the people of that Electorate per se. It is the majority decision of 26, 890 votes to oust the petitioner runner up at 26, 616 votes. Koi Trappe is one person compared and the 26 allegations that he raises are against the will of the 26, 890 who saw fit to put the incumbent where he is. It must be prima facie without considering determining the evidence by its bare essentials are very strong case to indict the trial. 

79.	Relevantly at the outset, section 208 is in the following; “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 court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

80.	For the reasons set out above it is a requirement that there is deposit as security for the costs by section 209, that, “At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K 5, 000.00 as security for costs.”

81.	This is not just any other process that is challenged by the petitioner; therefore, it has been authoritatively laid that the combined effects of sections 208, 209, and 210 have strict compliance imposed. That any petition will be susceptible to be considered a failure and will not proceed to a hearing. Because their combined effect is a prohibition that must be overcome by the petitioner’s drafting to acquiescence. And that is the intention of the legislature considering all set out above, Delba Biri supra. Which decision was approved endorsed on all in Review Pursuant to Constitution Section 155(2)(b); Saonu v Dadae [2004] PGSC 12; SC763 (1 October 2004). And which law is the starting point of any petition and the jurisdictional basis for the objections as is the case here, Amet v Yama [2010] PGSC 46; SC1064 (9 July 2010). It is at the outset and must be determined to give the leverage or not to the petition in or out. 

82.	And section 215 of the Organic Law is in the following terms;-“Voiding Elections for Illegal practises.
(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 or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

83.	To sustain the allegations pursuant to this section he must plead the following;-

(i)	Where the alleged illegal practise, other than bribery or undue influence, was committed by a person other than the winning candidate, the petition must plead that such illegal practice was committed with the knowledge or authority of the winning candidate.

(ii)	That the result of the election was likely to be affected by the illegal practice allegedly committed by the person (other than the Candidate without the warning candidate’s knowledge and authority);

(iii)	That it is just that the candidate should be declared not to be duly elected or that the election should be declared void where illegal practise is allegedly committed by persons other than the winning candidate without the winning candidate’s knowledge and authority;

(iv)	The illegal practice complained of;

(v)	The facts giving rise to, or constituting, the illegal practice;

(vi)	The names of the people who committed the illegal practise alleged;

(vii)	The number of votes affected by the illegal practise;

(viii)	Using the number of votes affected, plead the figures and demonstrate how the result of the election was affected or likely to be affected; and

(ix)	The facts demonstrating how/why it is just that the candidate should be declared not duly elected or that the election should be declared void.

84.	And this is so derived from Amet (supra), Ganasi v Subam [2013] PGSC 47; SC1277 (26 September 2013); Fairweather v Singirok [2013] PGSC 42; SC1293 (4 November 2013); Kikala v Electoral Commission [2013] PGSC 48; SC1295 (18 November 2013); Electoral Commission of Papua New Guinea v Solo [2015] PGSC 74; SC1467 (30 March 2015) and (Talita supra). This is the law that must be satisfied by the petitioner to see out his petition as competent.
 
85.	And in my view that application has seen my determination in assessing and declaring that all twenty six (26) allegations and grounds have no basis in this law to be granted as competent and that as a consequence of these application the striking out of all pursuant and dismissal forthwith.

86.	It is appropriate to place on record a preliminary matter that arose and which I decided on. This is that decision completed into this judgment. On the eve of the submissions, the First Respondent was late coming. The Petitioner applied for dismissal of the first respondent’s Notice of objection to competency. Arguing He did not come in to prosecute it. It was wanting for prosecution and therefore ought to be dismissed pursuant. To accede would have amounted to a very harsh decision to go that way. He was the incumbent and it was proper that he was given opportunity to defend himself. Because he came into the seat by a Constitutional process. And he had made appearance and defended all along. There was no cause for alarm given. Sure enough, he made appearance. In the mean the second respondent started his submissions concluding by midday. By then the First Respondent had come in but was not ready to submit as his written submissions were not ready. He sought adjournment which was opposed by the petitioner. In the light of my earlier ruling setting that counsel on record was engaged almost 6 days, it was proper to give him an opportunity to defend himself against the petition. So, the matter was adjourned to Monday 22nd May 2023 at 9.30am for first Respondent to address followed by the Petitioner in reply. And if there was anything in reply by respondents for them accordingly. That has been done. 

87.	In the aggregate the twenty-six (26) allegations and grounds corresponding are hereby dismissed forthwith. The petition setting is dismissed forthwith.

88.	The security deposit of K 5000.00 will be paid to the respondents in equal proportions.

89.	The petitioner will pay the costs of the proceedings.

Orders accordingly.
__________________________________________________________________
Young & Williams Lawyers:  Lawyers for the Petitioner
Okil Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for Second Respondent