Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Diau v Gubag [2003] PGNC 131; N2352 (5 March 2003)

N2352

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 30 of 2002

BENNY DIAU

V

MATHEW GUBAG

& EP 30 of 2002

ELECTORAL COMMISSION OF PNG

MADANG: SALIKA, J
4 & 5 March, 2003

PARLIAMENT – elections – disputed election petition – practice and procedure – form of petition – statutory requirements – ‘Facts’ relied on in a petition in manner of pleading – s.208 of Organic Law on National Elections.

Cases Cited:
Holloway v Ivarato (1988) PNGLR 99

Counsel:
Mr C Narokobi with Mr Meten for Petitioner
Mr D Stevens for 1st Respondent
Mr A Kongri for 2nd Respondent

05 March, 2003

The proceedings in this matter relate to the election of the First Respondent as the Member of Parliament for the Sumkar Open Electorate in the 2002 General Elections. The second Respondent conducted the elections as required by the Constitution and the Organic Law on National Election.

The respondent objected to the competency of the petition on the grounds that the petition that the petition does not comply with s.208 of the Organic Law on National and Local Level Government Elections.

The petition contains 16 grounds challenging the validity of the election of the First Respondent as the duly elected Member of Parliament representing the Sumkar Open Electorate seat.

At the outset I set out the 16 allegations and the stated facts in support of the allegations.

1. That on or about the 17th June, 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Sam Gawar for and on behalf of the Kaviak Sports Club with the intention to induce Sam Gawar and the members of the Kaviak Sports club who were electors in the election for a Member of Parliament for Sumkar Open Electorate for the Respondent in the capacity as electors contrary to s.215 of The Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
2. That on or about the 17th June 2002, at Dorokatum Village, the First Respondent did give a bribe of K1,000.00 to Sam Gawar with the intention that the cheque will be applied to induce members of the Kaviak Sports Club to vote for the first Respondent contrary to s.215 of The Organic Law on National and Local Level Government Elections and s.103 (d) of the Criminal Code.
3. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to a Bill Biol for and on behalf of the Dorokatum Sports Club with the intention to induce Bill Biol and the members of the Dorokatum sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and section 103(a) of the Criminal Code.
4. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to a Bill Biol for and on behalf of the Dorokatum Sports Club with the intention to induce Bill Biol and the members of the Dorokatum sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and section 103(d) of the Criminal Code.
5. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to a Chris Marsil for and on behalf of the Kinim Sports Club with the intention to induce Chris Marsil and the members of the Kinim Sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
6. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to a Chris Marsil for and on behalf of the Kinim Sports Club with the intention to induce Chris Marsil and the members of the Kinim Sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and s.103(d) of the Criminal Code.
7. That on or about the 17th June 2002 at Dorokatum village, the first Respondent did give a bribe of K1000.00 to Bangme Sports Club with the intention to induce The Chairman and the other members who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s. 215 of the Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
8. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K1,000.00 in cheque to Bangme Sports club with the intention that the cheque be applied to induce members of the Bangme Sports club to vote for the First Respondent contrary to s.215 of the Organic Law on National and Local Level Government Elections and S.103(d) of the Criminal Code.
9. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K500.00 to the chairman of the Kinim Sports Association with the intention to induce the Chairman and the members of the Kinim Sport Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s.215 of the Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
10. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K500.00 to the chairman of the Kinim Sports Association with the intention to induce the Chairman and the members of the Kinim Sport Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in the capacity as electors contrary to s.215 of the Organic Law on National and Local Level Government Elections and s.103(d) of the Criminal Code.
11. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Ms Nei Ulet for and on behalf of the Bagabag Women Group with the intention to induce Ms Nei Uleti and the members of the Bagabag Women Group who were electors in the election for a member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to s.215 of the Organic Law on National and Local Level Government Elections and s.103(a) of the Criminal Code.
12. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Ms Nei Ulet for and on behalf of the Bagabag Women Group with the intention to induce Ms Nei Uleti and the members of the Bagabag Women Group who were electors in the election for a member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to s.215 of the Organic Law on National and Local Level Government Elections and s.103(d) of the Criminal Code.
13. That on or about 3rd July 2002 at the Counting Centre for Sumkar Open Election the Second Respondent its agent and or servants or third parties whose actions were within or ought to have been within the knowledge of the Second Respondent illegally interfered and influenced the conduct of the elections and that such interference unduly affect the outcome of the election results, in that authorised scrutineers were allowed into the counting centre, contrary to s.150 of the Organic Law on National and Local Level Government Elections.
14. The second respondent its agents and or servants or third parties whose action were within or ought to have been within the knowledge of the Second Respondent illegally interfered and influenced the conduct of the elections and that such interference unduly affected the outcome of the election results being that Mr Alung Wang the Sumkar District Administrator had assisted in the opening of Ballot Boxes and assisting in placing ballot papers into candidates trays contrary to s.108 of the Criminal Code.
15. On the 3rd July 2002 and on the 4th July 2002, the Second Respondent and or its agents unlawfully and illegally placed unrejected votes of a candidate, Mr Steven Nambon in the tray of another candidate contrary to s.154 of the Organic Law on National and Local Level Government Elections.
16. That during the counting the Second Respondent, its agents and or servants unlawfully and illegally conducted the counting of votes without proper scrutineering which interfered and influence the election results of the Sumkar Open Electorate election in that the scrutiny proceeding were not open to the inspection of the scrutineers contrary to s.152 of the Organic Law.
    

It is also convenient that I record in full the agreed statements of facts and the disagreed statement of facts:-

(a) Agreed statement of facts:

1. On the 17th June 2002, there was a gathering at Dorokatum village.
2. At the meeting the following cheques were presented:-

(i) Kaviak Sports Club - K1,000.00

(ii) Dorokatum Sports Club - K1,000.00

(iii) Kinim Sports Club - K 500.00

(iv) Bagame Sports Club - K1,000.00

(v) Kinim Sports Association - K 500.00

3. The cheque for Kaviak Sport Club was received by one Sam Gawar for and on behalf of the Kaviak Sports Club and that Sam Gawar did apply on behalf of the Kaviak Sports Club money received from the cheque.
4. The cheque for Dorokatum Sports Club was received by one Bill Biol for and on behalf of the Dorokatum Sports Club and that Bill Biol did apply on behalf of the Kaviak Sports Club money received from the cheque.
5. The cheques for Kinim Sports Club was received by one Chris Marsil for and on behalf of the Kinim Sports Association and that Chris Marsil did apply on behalf of the Kaviak Sports Club money received from the cheque.
6. The First Respondent was present at the presentation of the cheques.
7. A Joint District Budget Priority Planning Committee (JDBPPC) has to approve the cheques in a JDBPPC Meeting.
8. All the facts in ground 11 and 12 of the Petition are in dispute.
   

(b) Disputed statements of facts.

• (1) Petitioner alleges.
  1. Sam Gawar and the members of the Kaviak Sports Club, Bill Biol and the members of the Dorokatum Sports Club, Chris Marsil and members of the Kinim Sports Club, members of the Bagame Sports Club and members of the Kaviak Sports Association were eligible electors in the election for Members of Parliament of the Sumkar Open Electorate.
  2. The Cheques were given to the Sports Club and received by the named recipients above in paragraph 1 for and on behalf of the said Sport Club on account of the named recipients and the members of the Sports Clubs as elector in the election for the Member of Sumkar Open Electorate to vote for the First Respondent.
  3. When the cheque was given to the recipients, the First Respondent made express statements in the intention to induce the named recipients and members of the Sports Club to vote for the First Respondent in order to return him as the Member for Sumkar Open Electorate.
  4. When the cheques were given to the recipients, the First Respondent made express statements with the intention to induce the named recipients and member of the Sports Club to vote for the First Respondent in order to return him as the Member for Sumkar Open electorate.
  5. Immediately following the distributions of the cheques the First Respondent was heard saying among other things words to the effect of "Tingim Box No 2, Mi win pinis, Noken wastim vote b’long yu long lusing candidates".
  6. There was a quorum to deliberate n the business at the meeting of the JDPBC meeting on the 27th May 2002.
  7. The cheques were drawn unlawfully and drawn with the intention to bribe the recipients and members of the Sports Club to vote for the First Respondent.
  8. The cheques were given tot he said recipients and received by the named recipient for and on behalf of the named Sports Clubs a few days before the voting in the area of the Sports Clubs.
  9. The cheques were issued in breach of the Ombudsman Commissioner directions.
• (ii) FIRST RESPONDENT ALLEGES

1. An application for the money was made to the

Sumkar JDPBPC for the Grant assistance.

2. Mr Lincoln Ireng as the Applicant effected the gathering at Dorokatum to make the payouts
3. The First Respondent was invited to witness the payout as Chairman of the JDPBPC of Sumkar district.
4. The First Respondent only witnessed the payment.
5. The First Respondent did not say the words "Tingim box No 21, mi win pinis. Noken westim vote bilong yu long using candidate.
6. There was a quorum to deliberate at the meeting of the JDBPC on the 27th May 2002.
7. The Ombudsman Commission directives on use of funds by sitting members were conveyed to the Provincial Treasury and the District Administrator and all the funds were withheld.

(B) SECOND RESPONDENT

• (i) Agreed Statement of Fact
  1. The Counting Center for the Sumkar Open Electorate was at Barkul Council Chambers, Karkar Island, Madang Province.
  2. During the counting, four (4) ballot boxes were opened at one time and its contents poured on one table and counted.
• (ii) Disputed Statement of Fact
  1. On or about 3rd July 2002, at the Barkul Counting Centre, the Second Respondent and or its agents and servants unlawfully allowed two unauthorized scrutineers without scrutineer passed into the Counting Center interfering with the conduct of the Election.
  2. On the said 3rd July 2002, counting at the Counting was suspended a result of various objections raised by the scrutineers of the candidate.
  3. While other authorised scrutineers discussed the objections with the District Returning Officer, the agents or servants of the Second Respondent unlawfully allowed the two unauthorised persons into the Counting Centre interfering with the conduct of the election.
  4. Other authorised scrutineers saw the two unauthorised scrutineers and raised issue as to their presence and police apprehended the two persons and took them away.
  5. During the counting, the second respondent and or its agent unlawfully allowed the District Administrator, Mr Alung Wang, into the Counting Centre and was observed by the scrutineers to have assisted in opening ballot boxes and placing ballot papers into candidates trays.
  6. On the 3rd July 2002, on the resumption of counting after suspension, the Second Respondent and or its agents unlawfully and illegally placed 3 votes of one candidate, Mr Steven Nambon into the tray of another candidate being Mr Mark.
  7. On the 4th July 2002, the second respondent and its agent unlawfully placed 3 votes of one candidate, Mr Steven Nambon into the tray of another candidate being Mr Mark.
  8. The counting took place in a manner where the counting officials unfolded all the ballot papers from the four (4) boxes and then picked them up and placed them in trays of each candidate.
  9. The scrutineers were told by the agent and servants of the second respondents to stay about 3 metres from the counting area.
  10. The counting officials picking up the ballot papers and placed them in each of candidates’ trays without any scrutiny by the scrutineers as to whether the votes were placed in the correct candidates tray. Thus the counting was not open to the inspection of the scrutineers.
  11. From where the scrutineers were standing, the scrutineers were not able to and did not properly inspect the proceedings at the counting and the scrutiny proceedings were not open to the inspection of the scrutineers before the votes were placed into each candidate’s trays.
      

The respondents each filed separate notices of objections to competency.

The main grounds for the objections are that insufficient facts have been pleaded as required under s.208 of the Organic law. S.208 of the Organic Law says:

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 houses in any Provincial Headquarters within 40 days after the declaration of the result of the election in accordance with s.175(1)(a).

The law relating to what are facts and the sufficiency of facts relied on in a petition as directed under s.208(a) have been settled. In Holloway v Ivarato (1988) PNGLR 99 at 101 KAPI DCJ said:-

The grounds in which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s.208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s.208(a) of the Organic Law. The facts set out under s.208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s.208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.

Two questions arise for consideration at this point:

1. Whether the facts set out should include the evidence by which those facts are to be proved and,
2. The sufficiency of facts which may be set out.
   

In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.

It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts. It actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.

It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s.208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way to knowing of it until an application is made to the court for an order for an inspection under s.212(l)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s.208(a) of the Organic Law. In conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.

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 this case and to enable the court to be clear about the issues involved.

I am in agreement with His Honour about what he said in those passages and I cannot add anything useful to it.

Section 208 does not require that a petition must state the grounds for challenging an election. However if for instance a petition is challenging an election because the winning candidate is alleged to have bribed someone then his ground would be bribery and he should "set out the facts" relating to the bribery. He should state when and where the bribery took place, who in particular was bribed and if the person or persons said to have been bribed were eligible electors or voters. The petition should also state what in particular was offered as the bribe object. Was it K500.00 or a pig? What ever was offered should be specifically pleaded as a fact. In other words it should be stated that on such a date and place the winning candidate advanced K500 to Y with the intent that the money will be applied to induce the said Y who is an eligible voter in the said electorate to vote for the said winning candidate.

In my view that would adequately cover the elements of bribery.

Where a petition does not state all the material facts for invalidating an election, the petition may be defective, in that it is not adequately pleaded.

S. 208 of the Organic Law is in mandatory terms and the courts have over the years applied those provisions very stringently. Failure to comply with s.208 means there is no petition. S.210 of the Organic Law says:-

"Proceedings shall not be heard on a petition unless the requirements of s.208 and 209 are complied with".

I will now examine each of the 16 grounds.

Ground 1:

In relation to this ground the allegation is bribery. It is alleged that the first respondent gave K1,000.00 to Sam Gawar for and on behalf of Kaviak Sports Club with the intention to induce the said Sam Gawar and the members of the Kaviak Sports Club who were electors for the Sumkar Open Electorate. The 1st Respondent is alleged to have breached s.215 of the Organic Law and s.103(a) of the Criminal Code.

The facts supporting the allegation names Sam Gawar who is said to be an elector in the Sumkar Open Electorate. It also names members of the Kaviak Sports Club who are said to be electors for the Sumkar Open seat. It was submitted that "members of the Kaviak Sports Club is too general a term and that specific names should have been pleaded.

The first respondent argues that the petition fails to plead the names of the people who are members of the Kaviak Sports Club and who are eligible voters alleged to have been unduly influenced.

In so far as Sam Gawar is concerned he is specifically pleaded as being the bribed and influenced. I have no problem in allowing that part to go to trial. I do have a problem in accepting the other members of the Kaviak Sports Club because it is too general in my view. For that reason I will strike down that portion of the petition.

The words of 7.7 " and they did vote for 1st respondent" are struck down as conceded bad pleading.

Ground 2.

The second ground I think is meant to be contrary to s.103(d) of the Criminal Code. In so far as that allegation is concerned, the 1st Respondent is alleged to have given K1000.00 cheque to Sam Gawar in order to induce the said Sam Gawar and members of the Kaviak Sports Club. However, the charge in my view is defective in that it does not allege that the K1,000 was intended to induce Sam Gawar rather it says that it was given to Sam Gawar with the intention to induce members of the Kaviak Sports Club. In my view that is too general an allegation. In that regard I strike down ground 2 of the petition.

Ground 3:

Similarly Ground 3 uses the same words as in Ground 1 except for the name of the person named as Bill Biol and members of the Dorokatum Sports Club.

Again I would strike down the words members of the Dorokatum Sports Club because in my view it does not plead names of those who were induced". To use the words "members of Dorokatum Sports Club" is too vague and too general in my view. I therefore strike those words down so long as it is used in the 2nd ground and the facts. The final part of 3.7 worded "and they did vote for the first respondent" is struck down as agreed to by the petitioner.

Ground 4:

The same reason used to dismiss ground 2 apply to ground 4. Ground 4 is therefore struck down.

Ground 5:

Ground 5 has a fatal typing error which was not corrected at the appropriate time. In view of what I have said in relation to Ground 1 and Ground 3, I strike down Ground 5. The charge say that "the first respondent did give a bribe of K500.00 to Chris Marsil for and on behalf of Kinim Sports Club with the intention to induce and the other members of the Kinim Sports Club". The word "Chris Marsil" was not typed in after the word "induce". This was not amended during the time allowed for amendment. I have ruled that other members of a sports club is too vague and too general. The charge there says only that the K500.00 was meant to induce members of the Kinim Sports Club. That in my view is too general and value. The Petition must plead names of those who were induced. No names are pleaded, and as a consequence of such failure, Ground 5 is struck down.

Ground 6:

For the same reason as in Ground 5. Ground 6 is struck down.

Ground 7:

This ground alleges that the First respondent gave a bribe of K1000.00 to Bangme Sports Club with the intention to induce the Chairman and other member s of the Bangme Sports Club.

The chairman and other members of the Bangma Sports Club have not been named in the pleadings. So who did the 1st respondent bribe and influence or induce to vote for him.

I am of the view that this ground is vague and too general. One cannot bribe a sports club.

Ground 7 is therefore struck down.

Ground 8:

Similarly for the same reasons Ground 8 is struck down.

Ground 9:

This ground alleges that the First Respondent did give a bribe of K500.00 to the Chairman of the Kinim Sports Association with the intention to induce the Chairman and members of the Kinim Sports Club. The chairman of the Kinim Sports Association is not named and the members of the Kinim Sports Club are not named either. Again the pleadings are too general and vague. Nobody is named. Moreover in this allegation there is a reference to two organisations the Kinim Sports Association and the Kinim Sports Club. Who is said to have been bribed or induced?

With respect I strike down Ground 9.

Ground 10:

Again for the same reason as in Ground 9 I strike down Ground 10.

Ground 11:

This ground alleges that the first respondent gave a bribe of K1,000.00 to a Ms Nei Uleti for and on behalf of the Bagabag Women Group with the intention to induce the said Mrs Nei Uleti and members of the Bagabag Women’s Group. The names of the Members of the Bagabag Women Group have not been pleaded in the facts supporting the allegation. In my view the names of the members should be pleaded. In the absence of such pleadings I strike down that part of the allegations.

Any reference to members of Bagabag Womens Group in the pleadings in Ground 11 is struck down. The last part of 11.7 "and they did vote for the first respondent" is struck down as well.

Ground 12:

Ground 12 alleges that the first respondent gave a bribe of K1,000.0 to Mrs Nei Uleta with the intention to induce members of the Bagabag Womens Group.

Again the names of those members have not been pleaded and in my view it is not sufficient to plead "members of the Bagabag Womens Group". A person has to be induced. It is too general in my view to plead, in a general way "members of Bagabag Womens Group".

Accordingly I strike down Ground 12.

Ground 13:

First of all in relation to this ground there is a typing error which has not been corrected or amended. Instead of the charge reading "unauthorised scrutineers, it reads "authorised scrutineers". This was never corrected or amended. The facts supporting this charge appears to correct this by pleading that the second respondents servants or agent allowed two unauthorised scrutineers to enter the Counting Centre, and as a result interfered with the conduct of the election.

The two unauthorised scrutineers have not been named in the pleadings. Moreover the nature of the interference has not been pleaded. Furthermore it has not been said or pleaded how such interference affected the outcome of the elections.

For those reasons I strike down this ground.

Ground 14:

For the same reasons as in ground 14 I strike down ground 14. It has not been pleaded as to how Mr Alung Wang’s conduct affected the outcome of the elections.

Ground 15:

This ground alleges that the 2nd respondent and or its agents and servants illegally placed unrejected votes of a candidate Mr Steven Namboi in the tray of another candidate. The facts to support the allegations identifies Mr Mark as the other candidate. In total 16 votes belonging to Mr Namboi are alleged to have been placed in Mr Mark’s tray. What is the relevance of that pleading in so far as it affects the petitioner or the respondents.

Even if that allegation is relevant how does it affect the election outcome.

I consider this allegation and the pleadings to be irrelevant in that the petitioner may be speculating that if 16 votes belonging to a Steven Namboi were placed in Mark’s tray then there is every likelihood of the petitioer’s votes being placed in other candidate’s trays. This is mere conjecture so I strike down this ground.

Count 16:

This ground allege that during the counting the second respondent and its agents and servants unlawfully and illegally conducted the counting of the votes without proper scrutiny which interfered and influenced the election result for the Sumkar Open Electorate in that the counting was not open to scrutiny. Contrary to s.152 of the Organic Law.

s.152 says:

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.
   

This provision allows a scrutineer to object to a ballot paper as being informed. Ground 16 does not allege a scrutineer objecting to ballot papers being informal. What the scrutineer alleges is that he was 3 meters away when the ballot papers were counted. As a result of being 3 meters away he did not see or did not see properly the proceedings of the counting.

s.15 1(c) says that all proceedings at the scrutiny shall be open to the inspection of the scrutineers. That is the closest. There is no allegation that the scrutineers objected to any ballot paper as being informal. There is no pleadings that the scrutineer objected to being placed 3 meters away from the counting area. If the scrutineer never raised any objections at the material time and it is not pleaded that he objected to being placed 3 metres from the counting area then what is the relevance of raising this allegation now. In my view that ground is not competent to go to the Court of disputed returns. I accordingly strike that ground down.

The effect of these rulings are that – only Grounds 1, 3 and 11 will proceed to trial.

In relation to the question of costs. I am of the view that costs be reserved until the final outcome of the matter.