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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 38 OF 2002
IN THE MATTER OF A DISPUTE OF RETURNS FOR THE
MIDDLE RAMU OPEN ELECTORATE
Between:
ASSIK TOMMY TOMSCOLL
-Petitioner-
And:
THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
-First Respondent-
And:
BEN SEMBRI
-Second Respondent-
MADANG : INJIA, J.
: 24TH – 28TH FEBRUARY
Waigani : 17TH March
ELECTIONS – Petition disputing result of national election – Grounds – Error or omissions - Failure to affix inner and outer seal tags on ballot box – Ballot box disputed at counting – Ballot box counted in the absence of Presiding Officer’s explanation of missing seal tags – Affixing of seal tags not expressly required by Organic Law – But required by administrative manuals issued by Electoral Commission – Whether "error or omission" under S.218 of the Organic Law - Safeguarding integrity of election – Whether error or omissions affected result of the election – Election of winning candidate declared void – Petitioner declared duly elected – Organic Law on National and Local-Level Government Elections, S.122; S.154(2)(a); S.218(1); Constitution, S.26(7)(c); S.50(2)(c) & (d).
Cases cited in the Judgement
Baki Reipa v. Electoral Commission SC606(1999)
Fr. Loui Ambane v. Electoral Commission SC565(1998)
Fr. Loui Ambane v. Electoral Commission SC559(1998)
Dick Mune v. Anderson Agiru SC590(1998)
Albert Karo v. Carol Kidu [1997] PNGLR 28
Peter Peipul Ipu v. Electoral Commission SC580(1998)
Reuben Kaiulo v. James Ganarato SC567(1998)
Korak Yasona v. Electoral Commission SC552(1996)
Counsel:
A. KONGRI for the First Respondent
K. NARU for the Second Respondent
R. LEO for the Petitioner
DECISION
17 March 2003
INJIA, J.: In this election petition, the Petitioner challenges the return of the Second Respondent as the duly elected member for the Middle Ramu Open electorate in the National Parliament in the 2002 general elections. The Second Respondent won the election with 6028 votes and the petitioner came second with 5656 votes, a difference of 372 votes.
The Petitioner relies on alleged errors or omissions committed by electoral officials in safeguarding the integrity of some 694 votes contained in Ballot-Box No. 0056. When the ballot-papers in this box were counted the Second Respondent scored 604 votes compared with the Petitioner’s 26 votes and he went on to win the election. The petitioner alleges this box was disputed at the time of counting on the basis that the presiding officer did not secure this box with an inner and outer plastic seal tags at the close of polling. At the time of counting, the Petitioner’s scrutineers disputed this box on this basis but the Returning Officer wrongly decided to count the votes in that box.
Pursuant to s.218(1) of the Organic Law on National and Local-Level Government elections ("OLNE"), an election may not be voided on account of an error of or omission by an electoral officer if it "did not affect the result of the election." The Petitioner’s case is that the electoral officials’ error or omission in not securing the box with an inner and outer seal was a material error or omission which did affect the result of the election, in that if the votes contained in this box were disallowed from counting for that reason, then the Petitioner would have won the election by 206 votes. That is, he would have scored 5630 votes compared to the Second Respondent’s 5424. The Respondents’ case is that they admit that the box did not have any inner and outer seal tags affixed to it. But placing of the inner and outer seals is not a legal requirement under the OLNE which could affect the result of the election. In any case, this error or omission has been satisfactorily explained. Also there was nothing wrong with the polling itself, the ballot papers inside the box were intact, and there was nothing wrong with the counting of this box; hence the result of the election was not affected.
GROUNDS IN THE PETITION
The only grounds in the Petition which were tried before me are as follows:
"9D (ii) The Electoral officials failed to secure Ballot Box No. 0056 used by Team 10 at Jamm polling booth. At the commencement of polling the presiding officer failed to securely fasten the cover of the Ballot Box. At the closure of polling, the presiding officer failed to publicly and securely close, fasten and lock the ballot box by placing the inner seal and outer seal, as a result scrutineers were not given the serial number of the outer and inner seal of the Ballot Box. The Electoral officials refused to give in to objections about the locking and securing of Ballot Box No. 0056".
PREVIEW OF EVIDENCE
Prior to trial, a pre-trial was conducted to ascertain the facts which were disputed or undisputed. Then both parties called witnesses who gave oral, documentary and material evidence and their evidence was tested by thorough cross-examination by counsel on the opposing side. I also asked a series of question of each witness to assist counsel and to clarify their evidence. The only evidence which was not tested is the affidavit of Assistant Presiding Officer, Albert Kiwa which was filed in the National Court another proceedings relating to the same election in OS 373 of 2002 and admitted into evidence as part of the Petitioner’s case. At the end of their evidence all three counsel made detailed submissions and I took time to deliberate and prepare my decision which I now deliver.
I will set out the witnesses called by the respective parties and the documentary and material evidence placed before me.
The Petitioner called the following witnesses:
The First Respondent called the following witnesses:
The Second Respondent called the following witnesses:
The documentary and material evidence admitted into evidence are as follows:
UNDISPUTED FACTS
The undisputed facts as agreed between the parties pursuant to agreed statement of facts filed on 29 November 2002 and in Court before me on 21 January 2003 and those I find on the evidence before me are these.
Polling for the Middle Ramu Open Electorate commenced on June 19th and ended on June 27th. Before polling commenced, polling officials were divided into teams and briefed by the Returning Officer, Mr. Kohuli, who himself was briefed at Aiome Station earlier on at the Provincial level by officers of the Electoral Commission. Polling Team 10 was to conduct polling at seven polling places in the Arabaka LLG area, namely Irarapi, Warapi, Wobu, Litibu, Jamm, Jitibu, Atiapi and Aiome Station. Polling Team 10 consisted of the Presiding Officer (Ferdinand Kaugeri), Assisting Presiding Officer (Albert Kiwa), Polling Clerk (James Mabili), Box Guider (Wapi Ganz) and policeman Const. (Kaki Dunstan).
During the briefing, polling officials were briefed as to their respective responsibilities. In relation to securing the ballot box and ballot papers, Presiding officers were told to lift-up the empty ballot box and show it to the voters, then lock the inner lid (which had a cleft for depositing ballot papers) with a padlock and a plastic seal tag bearing serial numbers and give the serial number of the plastic seal to scrutineers. Then after the completion of polling, they were to secure the box by closing the outer lid.
It is not clear from the evidence if the polling officials were instructed to use plastic seals or locks to close the outer lid after close of polling at a particular place. It seems to me that if boxes were to be locked with a padlock at the close of polling at a particular polling place, then the ballot-box would be unusable for the next polling place and a new ballot-box would have to be used for the next polling place. If the same box were to be used at the next polling place, then plastic seals would have to be used to secure the box which would be cut and the ballot-box opened at the next polling place and new plastic seals placed at the close of polling at that polling place. The seals tags had different numbers on them. If these seal tags were broken they cannot be re-used. When locks were used, polling officers, were to discard the keys in places where no-one would find them, such as in rivers, toilets or deep gorges.
Apart from other forms such as Sex Tally Sheets (Form 55) and Returning Officer’s returns, Presiding officers were to record daily events at each polling place in Memo Book (Form 65).
After their briefing, polling officials were issued with ballot-papers, ballot-boxes, plastic seal tags and locks with keys, Memo Books and returns and Sex tally forms. Team 10 was issued with 6 ballot-boxes, 3200 ballot-papers for the Open electorate, 3,200 ballot-papers for the Provincial Seat, 4 bundles of plastic seal tags each with 10 seals inside (total – 40 seals), 4 locks with keys, 3 Memo Books, Sex Tally Sheets, Presiding Officer’s Returns for each polling place and Presiding Officer’s Summary of Returns. Three locks had factory imprinted numbers on them whereas the 4th lock did not have numbers on it and was described as "Gold door – Made in China".
Polling commenced at Irarapi at 9am and finished at 2pm. Ballot-Box 0056 was used. Prescribed procedures were followed except for the non-affixing of the inner seal and the non-use of locks to lock the outer lid. Mr. Kaugeri showed those gathered to vote the empty box and closed the inner lid with one of the three (3) identical locks described as No. "402B-808". He then threw its keys into the bush. He did not place an inner seal beside with the lock. He gave no explanation as to why he failed to do so. A total of 107 people voted (55 males and 52 females). At the end of polling, the Presiding Officer affixed seal tag No. 745701 on the outer lid to secure the box.
The second polling place was at Wawapi on the 20th. Polling commenced at 9am and ended at 3.30pm. The same ballot-box No. 0056 was used. At the commencement of polling, Mr. Kaugeri confirmed with the scrutineers the serial number on the outer seal tag No. 745701 place at Irarapi, then cut it with a scissors and placed the cut seal tag inside Ballot Box No. 0060. He then opened the outer lid and voting commenced. A total of 118 people voted (58 males and 60 females). At the end of polling, the presiding officer placed a new outer seal tag No. 745002 to secure the box. He did not place an inner seal and an outer lock to secure the box.
On the 21st, polling was scheduled to take place at Litibu. But on the 21st, the Helicopter did not come to airlift the polling team to Litibu. So they overnighted at Wawapi. On 22/6/02, the polling team walked from Wawapi to Litibu. Therefore, no polling took place on 21-22/06/02.
The third polling place was at Litibu. Polling was conducted at Litibu on 23/6/02 Still ballot-box No. 0056 was used. The same procedure as to cutting of the outer seal and polling as done at Wawapi was followed. A total of 120 people voted (60 males and 60 females). At the close of polling, a new outer seal tag No. 745703 was affixed to secure the box. No inner seal was affixed and no outer lock was affixed.
The fourth polling place was at Wobu. Polling was conducted on 24/6/02 from 9am – 2.30pm. The same ballot-box No. 0056 was used. The same procedure was followed in relation to cutting of the outer seal, polling, placing of a new seal at the end of polling and non-fixing of an inner seal and outer lock. A total of 107 people voted (52 males and 55 females). A new outer seal tag No. 745704 was affixed to the outer seal tag to secure the box.
The fifth and sixth polling places were Jamm and Jitibu. Polling for both polling places was conducted on 25/6/02. The same ballot box No. 0056 was used. Polling at Jamm commenced at 8.30am and finished at 1.30pm. At Jamm, the same practice was adopted in relation to removing the old outer seal tag No. 745703 and replacing it with new outer seal tag No. 745704. No inner seal and outer locks were affixed to secure the box. The polling team then moved onto Jitibu where polling commenced at 3pm and finished at 4pm. At Jitibu, the same procedure was followed in confirming the previous outer seal tag No. 745704 and polling commenced. At the end of polling, no outer seal tag was affixed. Also no inner seal was affixed. The same Sex Tally Sheets used at Jamm were used to secure the number of people who voted at Jamm and Jitibu. A total of 242 people voted at Jamm and Jitibu (127 males and 115 females). Mr. Kaugeri locked the box with the lock described as "Gold door – Made in China" and threw the keys into the Ramu River. When Wapi Ganz complained why he did not affix the inner and outer seal tags, the presiding officer told him that he "was not the boss."
The polling team then traveled by boat to Atiapi where polling commenced at Atiapi on the 26th. There, a different ballot box No. 0055 was used. After completion of polling at Atiapi, the polling team arrived back at Aiome Station with the ballot boxes. Policeman Kaki Dunstan and Wapi Ganz went ahead whilst the presiding officer came behind with others. In the absence of the Mr. Kaugeri, Kaki Dunstan and Wapi Ganz handed over ballot-box 0056 to the Returning Officer, Mr. Kohuli and police officer in charge of Aiome Station, and he complained of the box having no inner and outer seals. On the 26th the Polling Team 10 then proceeded to conduct polling at Aiome Station thereafter.
Polling for the Middle Ramu Open Electorate ended on 27/6/02. It is common position of witnesses for both sides that there was nothing wrong with the polling itself at all these polling places.
The counting of votes commenced at Aiome Station on 8/7/02 and ended on 19/7/02. There is no evidence as to where ballot-box 0056 was kept between 26/6/02 and 8/7/02. It appears to be assumed by the parties that it was kept at Aiome Station, either at the District office or the Police Station because the Mr. Kohuli who took custody of the box was the District Manager based at Aiome and the Police Officer was also based at Aiome Station. As to the reasons why Mr. Kaugeri failed to affix the inner and outer seal tags and whether or not they were deliberately done is in issue. I will deal with the disputed facts later.
On 10th July, when ballot box 0056 was handed over to be counted at the Counting Centre at Aiome Station, it did not have the inner and outer seals whereas it had inner and outer locks. Objection was taken as to the counting of this box and the box was set aside. As to which scrutineers disputed this box and the reasons for disputing the box is in issue. The box was later counted after the Returning Officer decided to dismiss the objection. As to the reasons for his decision and the information he had at his disposal which he relied upon to reach the decision is in issue. After the box was counted, the votes scored by each candidate was recorded on the progressive tally. There is some dispute taken on the petitioner’s scrutineer Mr. Septimus Salar’s evidence that he also objected to the votes scored by each candidate being posted on the progressive tally board kept in the Counting Centre. It is common position by witnesses for both sides that there was nothing wrong with the counting itself and the votes scored by each candidate.
It is also not disputed that the first three ballot-boxes counted, Ballot-Box Nos. 001, 002 and 003, had no inner and outer seals and no objection were taken by scrutineers to these boxes and these boxes were counted.
At the time of counting box 0056, Mr. Kaugeri was not present whereas his assistant Mr. Kiwa was present. Mr. Kaugeri’s explanation as to his whereabouts is not in dispute. His evidence is that in a meeting of polling officials held on 10/7/02, they agreed that he should accompany the Acting District Administrator to Madang to check up on their allowances. And so on 10/7/02, the day on which Ballot-Box 0056 was to be counted, he left for Madang. Before he left, he told Mr. Kohuli that he would like to be present when this box was counted because it did not have any inner and outer seals and that he wanted to explain the situation. When he was in Madang, he learnt over the radio that the box had been counted and the winner declared.
There is some dispute as to what documents Mr. Kaugeri gave to Mr. Kohuli at the close of polling. The Petitioner alleged that Mr. Kaugeri did not give the returns to Mr. Kohuli and these documents were not with Mr. Kohuli when the disputed box was counted.
There is no dispute between the Petitioner’s witnesses and the Respondent’s witnesses as to Mr. Kaugeri’s Memo Book being made available to Mr. Kohuli. There is a dispute between Mr. Kaugeri and Mr. Kohuli on this fact. I will address this issue later.
Since the declaration of the result, Mr. Kaugeri has not returned to Aiome because he feared for his safety. Whether or not this is evidence that because helped the First Respondent to win the election, is in dispute.
FINDINGS ON DISPUTED FACTS
The fact in dispute is as indicted above. There are other minor areas of dispute which I do not think are relevant to the issues before me or are in minor areas and of no significance to the issues in the proceedings. They need not be addressed specifically. The main areas of disputed facts per the agreed statement of disputed facts filed on 29 November 2002 and those facts disputed at the trial are as follows:
Mr. Kohuli has not given any explanation as to why he failed to place the inner seal. In relation to the outer seal, he said that when the polling team reached Jamm polling place, he received information that some people who were seen earlier at Aiome Station were following them. Therefore, the village people provided additional security to the polling team. In the rush to complete the polling move on, he scheduled polling at Jamm and Jitibu to be conducted on the same day. At the close of polling at Jitibu, in the rush of things, he forgot to place the outer seal. But he only placed the outer lock and secured the box.
The petitioner contends that Mr. Kaugeri deliberately failed to place the outer seal. But this assertion is not supported by any evidence.
As to Mr. Kaugeri’s explanation, whether I accept his explanation depends on how I view the whole of the evidence including his credibility of witnesses. Therefore, it is necessary to also assess his evidence on other disputed facts.
Mr. Kaugeri’s evidence is that he handed over the returns and Sex Tally Sheets to Mr. Kohuli before the counting. Mr. Kohuli confirmed this but neither of them was able to give the date on which that was done. The Petitioner contends that the Returns were not given to Mr. Kohuli before the counting. The Petitioner’s witness Mr. Septimus Salar said he met Mr. Kaugeri, at Madang after the counting of box 0056, about his Westpac Save Card which Mr. Kaugeri took with him. When he asked about the Returns, Mr. Kaugeri told him they were still with him. Mr. Kaugeri said he saw Mr. Salar but he denied saying this. The Petitioner also relies on the unchallenged affidavit evidence of Mr. Albert Kiwa, in which Mr. Kiwa said he objected to the counting of box 0056 because the presiding officer’s returns were not with the Mr. Kohuli.
This piece of evidence in my view is irrelevant to the ground on which the election is challenged. The absence of or otherwise of the returns before the Returning for purposes of counting box 0056 is not a ground of challenge. Therefore, I dismiss arguments in relation to this.
As to the credibility of Mr. Kaugeri and Mr. Kaugeri as affected by this evidence is relevant and I will address this point later.
The Memo Book is a medium-sized notebook. The cover of the Memo book is reddish brown in colour. The Memo Book should contain records of the dates, times and places of polling, the serial number of tags used, etc., entered by Mr. Kaugeri at the polling places as events unfolded. Mr. Kaugeri’s evidence is that he kept notes of the events at the relevant polling places. Later he said he kept rough notes on a Memo Book as events unfolded in each polling place. Later he transferred the rough notes to Memo Book No. Two. But these notes were still rough. He later transferred the notes to the final Memo Book "Book No. three. Memo Boos 2 and 3 are in evidence (Exhibits D.1 & D.2). At the end of polling, he gave Book 2 and Book 3 to Mr. Kohuli. On 10/7/02, before he left for Madang, he told Mr. Kohuli not to count box 0056 until he was present to explain the absence of the inner and outer seals because he anticipated some problems with this box. He then retrieved Memo Book 3 with him because that was the "Final Memo Book" - the rationale being that in the absence of the final Memo Book with him, the box would not be counted.
Mr. Kohuli was adamant that all the Memo Books which were given to him in an envelope were given back to Mr. Kaugeri upon his request and he did not have any with him when he decided to count the box. He did not know how many Memo Books were inside the envelope.
Mr. Zorro Tumri who was the Chief Scrutineer for the Second Respondent at the counting centre was adamant that Mr. Kohuli had the Memo Books with him but could not describe its colour.
It is clear to me that either Mr. Kohuli or Mr. Kaugeri or both of them are lying on this vital point. Mr. Tumri obviously is assumptous and obviously bias towards the Second Respondent, and he too is lying because Mr. Kohuli said he did not have any Memo Book with him.
As to the significance of this evidence, I will address it later when I assess the witnesses’ credibility.
In my view, the Memo Books are crucially relevant to the issue of whether the plastic seals in evidence were the ones placed at various polling places, and the reasons why the inner and outer seal tags were not affixed.
As to whether the two Memo Books 2 & 3 which are in evidence are reliable, the first original Memo Book was not produced in evidence. In the absence of the First Original Memo Book, I am not satisfied that Books 2 and 3 are reliable. Besides, they contain numerous discrepancies, many of which are material. Many of these discrepancies have been listed by the Petitioner’s counsel in his written submissions at p.16-20. Some of the important inconsistencies were put to Mr. Kaugeri in cross-examination and concessions made by Mr. Kaugeri. Therefore, information on these two Memo books have a probability of being concocted by Mr. Kaugeri to render consistency with subsequent events.
There is a handwritten statement prepared by Mr. Kaugeri which was supplied to Mr. Koluhi, after the declaration of results, presumably after this election petition was filed (see Exhibit "L"). It sets out details of the polling officials of Team 10, the ballot boxes used at the various polling places, ballot-paper books, with serial numbers used, etc. In my view, this statement is not reliable because it was written up after the election was completed. There is a chance that these notes could be concocted as well.
There is evidence from Mr. Kohuli and Mr. Kaugeri that they had meetings before the counting took place. There is evidence from Mr. Kohuli that he received reports from polling teams on the polling and that in relation to Ballot Box 0056, he did not receive any report about tampering with the ballot papers. Both men are however vague about a full report on this box in terms of tampering, etc.
There is also no evidence from the First Respondent’s officials as to the security of this box between the end of polling, when it was delivered to Mr. Kohuli and the Police officer at Aiome Station and when it was produced for counting.
As to the credibility of Mr. Kohuli and Mr. Kaugeri as affected by this evidence or lack of such evidence, I will address it later.
There is evidence from the Petitioner’s witness, Mr. Angananan and Mr. Salar himself that he (Mr. Salar) disputed this box on the grounds that it did not have inner and outer seals. Mr. Kohuli was initially evasive about the Petitioner’s scrutineer disputing the box, the only outspoken scrutineer objecting to the box being Mr. Tumri. Later, he did cave in and said the petitioner’s scrutineer did dispute the box.
But pursuant to Statement of Agreed and Disputed Facts filed on 29/11/02, it was agreed that the Mr. Salar disputed this box. The same admissions were made by the respondents’ counsel in court before me in the course of the trial.
In these circumstances, I indicated to counsel during submissions that I had no hesitation in finding that Mr. Salar was among others who disputed the box; and he disputed the box on the basis that it did not have inner and outer seals and the absence of Mr.Kaugeri.
There is evidence from all parties including Mr. Albert Kiwa in his affidavit that the ballot box was disputed on other grounds apart from it not containing the inner and outer seals. The other grounds were the absence of the Presiding Officer and the absence of the Presiding Officer’s Returns.
I reject the objection based on the returns because they are not relevant to the ground of challenge. I accept the absence of the Presiding Officer as a relevant to the pleadings and the relevant issues before me.
Mr. Kohuli’s explanation for counting this box was that although he knew the box did not have inner and outer seals, he did not receive any reports of tampering of these boxes from polling officials. Also he decided to count the box in the absence of Mr. Kaugeri even though Mr. Kaugeri told him not to count the box, because the report he received from other officials like Mr. Kiwa was that there was nothing wrong with the polling itself. He also said when the objection was taken, he set aside that box, and proceeded to count 4 other boxes. When he was finished with counting these four other boxes, he felt that he had to complete ballot boxes from the Arabaka LLG Area and decided to count this box.
Mr. Kohuli also said he did not wait for Mr. Kaugeri because he did not return. According to Mr. Kaugeri’s travel arrangements, he flew to Madang in the morning and was to return by plane around 3pm that day but he did not return so he counted the box. Mr. Kaugeri could have returned that afternoon or early next morning. But Mr. Kohuli was evasive when he tried to explain how practically, he expected Mr. Kaugeri to attend to following up on allowances at Madang and then return to Aiome on that day in time when Aiome was only accessible by air. In these circumstances, I do not think Mr. Kohuli is telling the truth on this aspect.
According to the evidence of Mr. Angananan and Mr. Salar, Mr. Kohuli decided to count the box because he was hard pressured on time and expense, and given a week to complete the counting, by the Electoral Commission. This was denied by Mr. Kohuli.
Another aspect of Mr. Kohuli’s evidence is that in a meeting he held with the scrutineers, they agreed that the box should be counted. Mr. Tumri also said they agreed for this box to be counted. Mr. Salar said he did not give his consent to the counting of the box. Mr. Kohuli was not clear as to whether Mr. Salar was amongst this group of scrutineers who strongly objected to the box and whether he agreed to count this box. Mr. Tumri said no one else disputed this box so Mr. Salar was not a party to this dispute which means he was not a party to the meeting with the Mr. Kohuli.
I have already found that Mr. Salar disputed this box. I accept his evidence that he did not give his approval for this box to be counted. That is why a decision had to be made by Mr. Kohuli. But Mr. Kohuli gave many reasons for counting the box including not receiving any reports of tampering, etc.
Indeed, the only ground for the challenge of this election is the absence of the inner and outer seals – not tampering or interfering with the ballot-box or papers. The Petitioner’s case as pleaded in the petition is not based on tampering or interfering with Ballot-box 0056 where it might become necessary to scrutinize the Returns, the ballot-papers themselves, the Progressive Tally Sheets, etc. Given the several reasons for counting this box given by Mr. Kohuli himself and his assistant Mr. Angananan and other witnesses, it is difficult to ascertain what was the precise reasons he gave for counting this box. It is clear that one of the common and principal basis for objecting to this box was absence of seal tags. It was incumbent on Mr. Kohuli to make a decision on this basis of objection and give reasons and good reasons for decision to the scrutineers present; in particular Mr. Salar.
It is clear from Mr. Kohuli’s evidence that he did not specifically rule on this ground and give reasons. Instead, his decision was based on other irrelevant factors such as report on tampering or interfering with the polling and ballot-papers. But that was not the basis of the objection.
As to whether Mr. Kohuli’s decision to count the box is reasonable will be addressed later.
There were suggestions made by the Petitioner’s counsel to Mr. Kaugeri that because he assisted the Second Respondent to win the election, he left Aiome and never went back. This was denied by Mr. Kaugeri.
I find that there is no evidence to suggest Mr. Kaugeri deliberately failed to place inner and outer seals, and deliberately absented himself on 10/7/02 and left Aiome Station because he helped the Second Respondent to win the election.
But then, I do not think he is telling the truth about the real reason he left for Madang that day. If he did go for that reason, why did he not return to Aiome on 10/7/02, the next day or anytime thereafter? Why has he left Aiome and never returned there?
In relation to the Petitioner’s witnesses, on the evidence, I find that there is no evidence to suggest that Mr. Salar was not a credible witness. He appeared to be a truthful witness.
The Petitioner’s witness Wapi Ganz, was a polling official, but he broke ranks to give evidence for the Petitioner. He gave truthful evidence. Much of the evidence he gave was not disputed. I also think he was a witness of the truth.
In relation to Mr. Angananan, he was a witness of the truth. He also broke ranks to give evidence against Mr. Kohuli. His evidence was mostly uncontested.
Mr. Wesley Ulumb also broke ranks to give evidence for the Petitioner. There is no evidence to suggest he is not a truthful witness.
In relation to the respondent’s witness, the evidence of Mr. Kaugeri and Mr. Kohuli, both of them gave imprecise details of events as per dates, times, who disputed the box, etc. Many questions on cross-examination were returned with answers like "I cannot recall." I get the impression that they were not only wreckless or grossly inefficient in the discharge of their duties. It seems to me that they knew each others evidence, and gave evidence supportive of each other’s in many areas of their evidence. I also got the impression that they had something to hide. It seems that one of them, or both of them could be concocting evidence and be giving false evidence, as shown by their evidence on the Presiding Officer’s Memo Books. I also got the impression that they were trying to hide the real reasons why Mr. Kaugeri absented himself on 10/7/02 when the critical box was going to be counted and he was well aware of the fact that he would be required to explain the absence of the seals before the box was counted. There is no evidence that Mr. Kaugeri adequately briefed his Assistant Mr. Kiwa to perform his duties when this box disputed on the basis of absence of seals.
There is no evidence that he clearly reported to Mr. Kohuli that there was no tampering or interfering with the ballot-papers in Ballot-Box 0056? Why would he take off to Madang when his presence was required? Why would he as a school teacher assume that responsibility in chasing up allowances for Electoral Officers in Madang when there were other more appropriate people such as District Officers, who could do that job? Why would he create more than one Memo Book and re-construct information each time improving his previous Memo Book?
Mr. Kohuli’s conduct also leaves a lot to be desired. Why did he rush into counting this box and did not wait for Mr. Kaugeri when he knew he would be back by 3pm that day or early the next day? What kind of report did Mr. Kiwa give to him about this box which satisfied him that the box was safe to count? Then there is the question of why he allowed Mr. Kaugeri to leave Aiome on the very day this very box which he knew was a problem box because it did not have seal tags as early as when the box was delivered to him at the completion of voting at Jitibu.
Then there is the absence of Mr. Albert Kiwa’s evidence. What role did he play in ensuring that a proper decision was made to count that box. He has not given evidence but the uncontested affidavit in evidence does suggest that he together with Mr. Angananan, were not a party to the Returning Officer’s deliberation and decision in deciding to count that box.
In the circumstances, I find that either Mr. Kohuli and Mr. Kaugeri or both, are not truthful witnesses.
ISSUES OF LAW
The Petitioner’s case is based on OLNE s.218(1) which provides:
"S.218 Immaterial errors not to vitiate election
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the returns of the Writ, or on account of the absence or an error of, or an omission by, and officer which did not affect the result of the election".
Section 218 has 3 elements. In proving his or her case, a petitioner must clearly establish: (1) the polling "officer" concerned; (2) the "error or omission" committed by the polling officer concerned and (3) that the error or omission "did affect the result of the election." In the present case, the first element is not in issue. The second and third elements are in issue.
The provision of the Organic Law which relate to the conduct of a substantive hearing on an election petition is s.217 which provides:
"Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance or whether the evidence before it is in accordance with the law of evidence or not."
This is an important provision and it requires amplification. This is the only provision in the OLNE which prescribes the procedural manner in which the Court should deal with the evidence, both at the time when evidence is led by the parties and received by the Court and when the Court is analyzing the evidence and making determination on questions of fact for purposes of reaching a final decision.
Also in my view it is a substantive provision. It prescribes the manner in which the evidence so received is analyzed and findings of fact and conclusions reached therefrom ultimately. The purpose of this provision is to ensure that the Court reaches a final decision which is fair and just in the total circumstances of the case, the Court having been so "guided by" the "substantial merits and good conscience" of the case. In applying this provision, the Court must observe the principles of natural justice embodied in s.59 of the Constitution: see Peter Peipul Ipu v. Pila Ninigi & Electoral Commission SC580 (1998).
Section 217 must be read subject to provisions of the Constitution which apply to elections, in particular, s.50 and 126.
Section 50(1)(c), (d) and (e) provides:
"Right to vote and stand for public office
(2) Subject to the express limitations imposed by the Constitution, every citizen who is of full capacity and has reached voting age, ... has the right, and shall be given reasonable opportunity –
"(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions".
(my emphasis)
Section 126(7)(c) provides:
"7. An Organic Law shall make provision for and in respect of –
(c) safeguarding the integrity of elections.
Section 15 of the Organic Law amplifies the functions of the Electoral Commission ("the Commission") as follows:
"It is the prime function of the Electoral Commission to organize and conduct elections for the Parliament and the legislative arms of the Local-Level Governments." (my emphasis).
The "integrity of the election" referred to in s.126(7)(c) embodies the principle of "genuine" and "free" elections in s.50 or "fair" elections as the term is often used in political language or literature. Elections are conducted Commission which is completely independent and not subject to direction or control by any person or authority: s.126(1) & (6). It is the constitutional duty of the Commission which is tasked with running the general elections to give effect to, both in principle and in practice, the provisions of s.126 and s.50 of the Constitution. The responsibility on the Commission is an onerous one and it cannot be taken lightly. The Supreme Court emphasized this point in Baki Reipa v Electoral Commission & Yuntivi Bao SC606 (1999) when the Court said at p.3- 5:
"The Constitution provides in section 126 that Elections to the Parliament shall be conducted in accordance with an Organic Law by the Electoral Commission. And further the provision states that the Organic Law shall make provision for and in respect of the appointment, constitution and procedures of the Electoral Commission and for safeguarding its independence, and the electoral system, and safeguarding the integrity of elections .....
The Constitution clearly provides in Section 50 for the right to vote as a fundamental right of all citizens. So how can this right have any meaning if the State and the relevant State authorities do not ensure that all eligible voters can exercise their right and for the complete security or integrity of the poll. It must be implied in the reference to the integrity of elections in the Constitution section 126 that this must include the full protection and security of the poll. Whilst it should not be open to a single disgruntled individual to completely invalidate an election by a simple criminal act, there must be a very high obligation on the Commission and its officers to provide a full security. And if the State authorities and the Commission itself do not ensure such a complete security then they must bear the consequences of failing to ensure the integrity of every citizen’s vote. Constitution Section 50 creates a heavy responsibility and onus on the State through its instrumentality the Electoral Commission to ensure that the right to vote is meaningful such that the vote of every citizen has a meaning and effect on the result of an election. If the Electoral Commission and the State fails in its duty to guarantee the integrity of the Poll and all votes cast then it is clearly in breach of its constitutional responsibilities and this is more than errors and omissions but a clear breach of the Constitution. So to put these failings in the same bracket as petty mistakes is misleading. .....
The Electoral Commission and the Government seems to have been taking the easy way out in recent years and ignoring its responsibilities and leaving it to expensive and time consuming Petitions to sort out its own problems. It is time that the Electoral Commission acted appropriately in Elections". (my emphasis)
The officers of the Commission must not only discharge their duties professionally but also efficiently. As Amet CJ said Fr. Louis Ambane v. The Electoral Commission & Thomas Sumuno SC559 (1998) at p.7-8:
"I should like to make some observation about the conduct of this Electorate’s election which is common to a number of other electorates; election being reviewed by the Courts.
The only reason that this Provincial Electorates election is being voided is because the Electoral Commission was inefficient, in that it did not ensure, as was its statutory duty, that there were adequate number of officially provided ballot-boxes to enable all eligible voters to cast their votes.
As the Court has now determined 1,569 votes were valid, except that they were not placed in official ballot-boxes. These voters have been denied their constitutional right to have their votes that were cast for the candidate of their choice, being counted, because of the administrative inefficiency of the Electoral Commission.
The Electoral Commission has had five (5) years to prepare for this election. It is unacceptable that costly elections have to be voided because of this kind of administrative inefficiency, that results in a large number of votes being excluded, affecting the result as they have in this case and necessitating another expensive election.
I believe that where administrative deficiencies are unavoidable, such as in this case where official ballot boxes were not immediately available to complete the polling within the scheduled period, there ought to have been ample administrative discretion exercised to reschedule the remainder of the polling to avoid this kind of result."
The "security" of an election process and "integrity" of an election are two different words and they have different meanings. The Supreme Court refers to the "complete security" and "complete integrity" of the electoral process as two different things. The "integrity" of an election refers to the trustworthiness or credibility of the election process whereas the security of the election process refers to the safety of the electoral process. For instance, votes cast at polling which may be secured and delivered to counting officials may still have serious questions regarding its integrity. Nevertheless, the "security" and "integrity" of an election are more often inter-related, because the integrity of the election relies heavily on the security of the election process to preserve its "integrity". That is the essence of s.126(7)(c) which generally uses the phrase "safeguarding" the "integrity" of elections.
Taking together the notions of safeguarding the integrity and security of elections in order to ensure that the election is "genuine", "free", and "fair" and the heavy responsibility placed on the Commission, what it means is that the Commission and its officers, must take great care in ensuring that their personal conduct, and the performance of their entrusted responsibilities is done professionally, competently, efficiently and beyond question.
Reading s.50 and s.126(6) & 7) of the Constitution, and OLNE, s.218(1) together, in a situation where errors or omissions of electoral officials raises questions concerning the integrity of the votes cast at an election and the election as process as a whole, then provided those errors or omissions are material in that they did affect the result of the election, the election or the return of the person as duty elected may be invalidated by this Court. Mere technical errors of little or no material significance to the outcome of the election will not suffice to void an election. Likewise, any error or omission which do not raise questions regarding the complete integrity of the election will also not suffice to void an election.
In determining whether an election was free, genuine or fair, the Court will have to make some objective assessment of the resultant effect of the conduct of electoral officials on the electoral process. But because the workings of the election process is largely political, and notions of free, genuine or fairness of elections are political concepts, the Courts will also have to allow for some degree of subjective judgment on these things. Resort to strict technical rules of procedure and evidence and meticulous proof of factual matters by adherence to strict and legalistic standards must be avoided, if real justice in accordance with the "substantial merits" of a case is to be achieved. For it would impose a standard of proof which parties, in particular, petitioners cannot be expected to meet.
The result of the election obviously is determined primarily with reference to the numerical strength of votes affected, but it is not exhaustive. The fairness of an election may also be determined with reference to other factors such as the seriousness of the error or omission which calls into question the "integrity" of certain votes or the whole election process of that election. I intend to apply these principles to the facts of the present case.
In the present case, the remaining ground relates to errors and omissions committed by electoral officers. The Second Respondent is not a privy to those allegations.
And so the first issue in the present case is what, if any, are the errors or omissions committed by electoral officials in relation to protecting the "integrity" of Ballot-Box 0056? Once the error or omission is identified, the second issue is whether those errors or omissions are material and such that they did affect the result of the election.
DO THE NON-AFFIXING OF INNER AND OUTER SEAL TAGS AMOUNT TO "ERROR OR OMISSIONS" UNDER S.218?"
The error or omission relied upon in this case as pleaded in the petition are (1) Presiding Officer’s failure to affix the inner and outer seals on Ballot-Box 0056; (2) The Presiding Officer’s absence from the Counting Centre to witness the Counting of Ballot-Box 0056 and to explain the failure to place seal tags on the Ballot-Box 0056. (3) The Returning Officer’s erroneous decision to count ballot-box 0056; The fourth error or omission on the non-labelling of ballot papers as "admitted" or "rejected" was not pursued in the trial.
But before I go into these errors or omissions, I wish to address a threshold legal issue which was raised by the respondents, which may as well determine the outcome of the case. It is submitted by the respondents counsel that the non-affixing of the inner and outer tags is not a legal requirement under the OLNE. The only requirement under OLNE s.122(3) is for the ballot box to be "securely fastened with a lock." The placing of the inner and outer seal tags are administrative requirements under the Presiding Officer’s Manual 2002 and Returning Official’s Manual 2002 issued by the Commission, copies of which are before me. Therefore, a breach of these administrative guidelines on their own, do not constitute errors or omissions under S.218(1) and they cannot affect the result of the election.
The Petitioner concedes, and correctly so, that the affixing of inner and outer seals are purely administrative guidelines. But it is submitted these guidelines were issued by the Commission as part of its responsibility to "organize and conduct" elections, and to ensure that the security and integrity of the election is safeguarded and they cannot be ignored. The words "errors or omissions" in S.218(1) should be widely interpreted to include breach of administrative duties or guidelines made by the Commission in order to safeguard the integrity of the electoral process.
The relevant guidelines on seal tags are as follows: Clause 4.4 of the Presiding Officers Guidelines 2002, provides:
"SEAL/LOCK BALLOT BOXES PROCEDURES
The Returning Officer ( sic. should be Presiding Officer) must:
Alternatively the Presiding Officer will carry out the sealing process of ballot box in the midst of the crowd prior to the commencement of the polling at a polling booth, following the same procedures as above."
LOCK SEAL
"The Presiding Officer will be issued with all necessary plastic seals including locks, keys, plastic numbered seals and tags to carry out the sealing process.
Plastic seal numbers MUST be given to the scrutineers before and the end of voting each day to avoid any complaints or accusations by them or their supporters. The seal numbers MUST be recorded into the memo book (form 65) and at least two scrutineers (if available) are to sign as witnesses.
The safe keeping of ballot boxes containing ballot papers is the responsibility of the Presiding Officer. The Returning Officer or the Assistant Returning Officer will advise you of any arrangements made.
On the completion of the polling, the Presiding Officer is to handover to the Returning Officer all ballot boxes that have been issued to him, whether used or unused. ALL BALLOT BOXES ARE ACCOUNTABLE.
Important: The lock and seal on the inner lid must not be touched, as it can be only broken by the Returning Officer prior to the commencement of the scrutiny at the counting centre."
Clause 14.2 of the Returning Officer’s Manual 2002 provides:-
Before opening them, the Returning Officer MUST read in an audible voice the following details written on each ballot box
In Albert Karo v. Carol Kidu [1997] PNGLR 28; and again in Dick Mune v. Anderson Agiru and 2 others SC590 (1998); in distinguishing between illegal practices and "errors or omissions" under the OLNE, I said that "errors or omissions" refers to breach of electoral duties defined in the OLNE, which do not have criminal or penal sanctions prescribed for such breaches. I do not think the words "errors or omissions" in S.218(1) are intended to be read narrowly, to preclude other duties defined by the Commission, be they administrative or otherwise, in order to safeguard the integrity of the elections. In my view, in the absence of any definition of the words "errors or omissions" in S.218(1), or the OLNE generally, it is open to this Court to construe those words. As a constitutional provision, the words must be given their fair and liberal meaning: see Constitution Sch. 1.5. I do not see any reason why breach of administrative guidelines which imposes duties on electoral officials, such as those set out above, for safeguarding the integrity of ballot-boxes (containing ballot-papers) issued by the Commission, as part of its function in organizing and conducting elections, cannot constitute "errors or omissions" committed by electoral officers.
DID THE ERROR OR OMISSION AFFECT THE RESULT OF THE ELECTION?
It is submitted for the Petitioner that the absence of the seal tags and the absence of the returning officer to explain the absence of the seal tags before the counting of ballot-box are material errors or omissions which raise serious questions regarding the integrity of the ballot-box. The decision made by Mr. Kohuli in the absence of Mr. Kaugeri was not a reasonable decision in the circumstances.
Mr. Kaugeri’s attempts to explain away in Court the absence of the seals and his absence at the counting of this box are also unreasonable. In that in the absence of the first original memo book, the second and third Memo Books which recorded these events are unreliable, his evidence as to placing the outer seals to secure the box at different polling places, as recorded in he Second and Third Memo Books, should not be accepted. Questions over the integrity of ballot-papers in this box remains up to this day. Mr. Kohuli’s erroneous decision to count this box did affect the result of the election in that the First Respondent scored 604 votes from this ballot-box and went on to win the election. Had this box not been counted, then the Petitioner would have won the election by 201 votes.
It is submitted for the respondents that these errors or omissions did not affect the result of the election, in that Mr. Kohuli’s decision was a reasonable decision. He initially counted ballot boxes 001, 002 and 003 which did not have inner and outer seals, and this box was no different from those ballot boxes. Besides, there was no report or evidence of any interfering or tampering of ballot box or its contents to support the breach of administrative guidelines as to placing seal tags. They rely on the Supreme Court decision in Peter Peipu Ipu v. Pila Ninigi and Electoral Commission SC580 (1998) and Reuben Kaiulo v. James Ganarabo & Ron Ganarafo SC567 (1998). These cases establish clearly the principle that there is no requirement in S.122(2) and (3) that a ballot box must be sealed with plastic seal tags; the only legal requirement being that they must be "securely fastened with a lock." The absence of inner and outer seal tags must be accompanied by the breach of some requirements under the OLNE, such as interfering or tampering with the ballot papers inside the box, before an election may be declared void. In the present case, the evidence is that notwithstanding the absence of the seal tags, the ballot-box was securely sealed with an inner and outer lock, there was no report received by Mr. Kohuli of any tampering or interfering with the ballot box or its contents; that there was nothing wrong with the polling itself, there was nothing wrong with the compilation of the Presiding officer’s returns and Sex Tally Sheets, and that there was nothing wrong with the actual counting of votes from this ballot box and the distribution of votes for this box to the various candidates. The presiding officer’s returns and Sex Tally Sheets are consistent with the total votes counted from this box and posted on the Progressive Tally Sheets.
The non-fixing of the outer seals, and the presiding officer’s absence at the counting centre when this box was counted and the Returning officer’s decision to count the box have been sufficiently explained and they are reasonable. Because the non-affixing of the seals is not a legal requirement but merely administrative requirements, the Count must be slow to disturb the decision of the Presiding officer to count this box, in the absence of any clear evidence on tampering with the contents of this ballot box. The court should therefore dismiss the petition with costs.
In response, it is submitted for the Petitioner that the Supreme Court decision in Peter Peipul and Reuben Kaiulo can be distinguished from this case on the facts such as in Reuben Kaiulo, the 2 ballot boxes in issue were each secured on the inside with (plastic) tags, and "securely fastened with a lock on the outside as the minimum requirement of S.122". Kaiulo’s case, re Amet CJ, at p.15. He submits both Amet CJ and Kapi DCJ in that case made it clear that the minimum requirement to secure a ballot box was the use of locks plus the seals, and in the absence of any satisfactory explanation, the integrity of the ballot papers are in question.
In dealing with these submissions, it is necessary to re-state the correct principles under S.218(1) in relation to errors or omissions of electoral officials which did or did not affect the result of the elections. It is correctly stated in Kaiulo’s case that there is no provision in the Organic Law, S.122 in particular, which requires the placing of inner and outer plastic seal tags to secure the box and safeguard the integrity of ballot papers in the box; the only requirement being the placing of locks to securely fasten the boxes which prevents ballot papers from being inserted into the box through the cleft in the box. It follows that "simply because the boxes did not have an outer tag (or inner tag) that does not render their integrity questionable" per Amet CJ, at p.15. The Supreme Court in both Kaiulo’s case and Peter Peipul’s case did say that in a case where the absence of inner and/or outer seals is satisfactorily explained, and the absence of the inner and/or outer seal tags is not accompanied by any evidence of tampering or interference with ballot-boxes or ballot-papers in that box, there is no reason to doubt the integrity of the ballot-boxes. The Supreme Court did not however categorilly state that the absence of inner and outer seals per se is not and cannot be a valid ground constituting "errors or omissions" under S.218(1), which may or may not affect the result of an election, and that in order for an election to be voided on this ground alone, it must be accompanied by evidence of tampering or interfering with the ballot-box and its contents. To read S.218(1) in that way is inconsistent with the purpose of S.218(1) which stands in marked contrast to S.215. An election may be voided under S.218(1) alone where an error or omission committed by an electoral officer, in certain circumstances did affect the result of the election. It is not dependent on the proof of illegal practices such as bribery, undue influence, or any other illegal practices referred to in the OLNE, the Criminal Code or any other law. For instance, in OLNE, S.191 tampering or interfering with ballot-boxes or ballot-papers: see Dick Mune v. Anderson Agiru and Electoral Commission SC590 (1997). The test for voiding an election for illegal practices under S.215 is different from the test for voiding an election under S.218(1). That is, under S.215, the test is whether the illegal practice "was likely to be affected, and that if is just that the candidate shall be declared not to be duly elected or that the election should be declared void". Whereas the test under S.218 is whether the error or omission "did not affect the result of the election". It is my view that if in the circumstances of a particular case, certain errors or omissions of electoral officers on their own raise questions concerning the integrity of the ballot-box and its contents, then if such error or omission did affect the result of the election, the election may be declared void.
In the present case, I have already decided that the non-fixing of inner and outer seal tags amounts to "errors or omissions" under S.218(1). I have no hesitation in concluding that the result of the election was affected by the decision of the presiding officer to count ballot-box No. 0056. That is votes from this ballot- box was determinative of the outcome of this election. Had this box not been counted, the Petitioner would have won the election by 206 votes.
DID MR. KOHULI ERR IN DECIDING TO COUNT BALLOT-BOX 0056?
The issue is whether Mr. Kohuli’s decision to count this box was an error or omission within the meaning of S.218(1); and if so, whether such an error raises questions regarding the integrity of the ballot-box and its contents, such that the should not have allowed this box to be counted. The other related issue is whether those errors or omissions have been satisfactorily explained to this Court by Mr. Kaugeri and Mr. Kohuli, to remove any doubt as to the integrity of this ballot-box.
I accept that the Returning Officer has wide discretion given to him, subject to any directions of the Commission to make decisions concerning operational matters in the counting room. It is within his discretion to decide to whether or not to open a ballot-box for the purpose of counting. Indeed that is the first decision he has to make. And this decision is made in the presence of the Presiding officer, poll clerk, other officers and scrutineers. This is made clear in S.154(1). Section 154 provides:-
"S.154 Scrutiny of ordinary votes in elections
(1) In an election the scrutiny shall, subject to the provisions of Division 3 and 4 be conducted in accordance with the succeeding provisions of this section.
(2) The electoral officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorized scrutineers as choose to attend an any other person approved by the Returning Officer –
(a) open all ballot-boxes received from polling places within the electorate; and
(b) reject all informal ballot-papers, and arrange the un- rejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a vote is indicated for the same candidate; and
(c) count the votes given for each candidate on all un-rejected ballot-papers; and
(d) make out and sign a statement (which may be counter-signed by the presiding officer, poll clerk or officer present and, if they so desire, by such scrutineers as are present) setting out the numbers of votes given for each candidate, and the number of informal ballot-papers;
(e) place in a separate parcel all the ballot-papers which have been rejected as informal; and
(f) where an Assistant Returning Officer conducts the scrutiny, transmit the following information, by electronic advice or in some other expeditious manner to the Returning Officer:-
- (i) the number of votes given for each candidate; and
- (ii) the total number of ballot-papers rejected as informal; and
(g) seal up the parcels and endorse on each parcel a description of the contents of it, and permit any scrutineers present, if they so desire, to counter-sign the endorsement; and
(h) where an Assistant Returning Officer conducts the scrutiny, transmit the parcels to the Returning Officer with the least possible delay, together with the statement referred to in Paragraph (d)".
Given Mr. Kaugeri’s specific instructions to Mr. Kohuli not to count this box in his absence, the unavailability of Mr. Kaugeri’s Memo Books, the absence of any evidence from his Assistant Mr. Kiwa explaining the situation satisfactorily to Mr. Kohuli about the absence of the two seals and coupled with Mr. Kiwa’s resistance to the box being counted in Mr. Kaugeri’s absence, the absence of Mr. Kaugeri at the time of opening this box was critical. In the circumstances, I have no hesitation in concluding that Mr. Kohuli’s decision to count the disputed box without Mr. Kaugeri’s explanation on the absence of inner and outer seals and the steps he took to safeguard the integrity of that box before the box was counted, is contrary to S.154(2)(a) and therefore, it was an error or omission within the meaning of S.218(1).
Further where a box containing ballot paper is disputed for any reason, the Returning officer must make a decision, either to count "the box" or not to count "the box". But his decision must be based on good reasons. The dispute on the box is deemed to be a dispute on the whole box and its contents. A dispute on the ballot papers inside the box is a distinct and separate issue from a dispute over the whole box and the former issue does not arise at this stage. A decision under S.154(2)(a) in relation to the opening of the ballot-box is a distinct decision that has to be made by him. Once the box is validly opened, the provisions of the OLNE S.152,153 and S.154(2)(b) – (h) apply as to the handling of ballot-papers inside the box. Such was the case in Fr. Louis Ambane v. The Electoral Commission and Thomas Tumun Sumono SC565 (1998) where the Supreme Court noted that the Returning Officer "validly" refused to count "unofficial" "patrol boxes" which were correctly numbered, tagged and sealed because the Electoral Commission failed to supply sufficient number of official "ballot –boxes" for four different polling places. There was no question over the validity of the votes inside the box. When these boxes were counted under Supreme Court Order, they contained 1,300 votes which would have produced a different result which favoured the Petitioner in that he would have won the election by 202 votes., The Supreme Court held that the error did affect the result of the election. Consequently, the Supreme Court ordered a by-election. The Supreme Court’s decision was solely based on the wrong "unofficial" boxes being used to store valid votes. As Amet CJ said at p.7- 8 in Fr. Louis Ambane v. The Electoral Commission & Thomas Tumun Sumono SC559 (1998):
"I should like to make some observation about the conduct of this Electorate’s election which is common to a number of other electorates; election being reviewed by the Courts.
The only reason that this Provincial Electorates election is being voided is because the Electoral Commission was inefficient, in that it did not ensure, as was its statutory duty, that there were adequate number of officially provided ballot-boxes to enable all eligible voters to cast their votes.
As the Court has now determined 1,569 votes were valid, except that they were not placed in official ballot-boxes."
Likewise, in the present case, the validity of the votes in ballot box 0056 is not relevant to the decision to count this ballot box.
I am satisfied that Mr. Kohuli wrongly decided that the ballot box 0056 should be counted for the following further reasons:
HAS THE PRESIDING OFFICER SATISFACTORILY EXPLAINED THE ABSENCE OF THE INNER AND OUTER SEALS?
I am also not satisfied that Mr. Kaugeri has satisfactorily explained the reasons why he failed to seal the box with seal tags. No explanation has been given for his failure to place the inner seal. The reason he gave for not placing the outer seal is not a good one. This is because if he was meticulous in placing outer seals in between polling places, then there is no reason why he simply forgot to place the outer seal at the close of polling at Jitibu when he would have had plenty of seal tags left over to use. Also there is no other credible evidence to support his assertion that there were people following his team and he had to rush the polling.
His explanation of putting seal tags in between polling places to secure the ballot box is not supported by credible notes from his original Memo Book. The Second and Third Memo Books are unreliable. His statement dated 30/9/02 is also unreliable. There is every reason to suppose that these two (2) Memo Books could have been concocted to render some consistency and truth in the use of outer seals. Given the numerous seals he had at his disposal, it is not difficult for someone of his standing, whose credibility has been called into question, to use left over seals to render consistency with the seal numbers on his possibly concocted Memo Books.
There are other practices he engaged which affected the integrity of this ballot box. His team was given 6 ballot boxes. He had 8 polling places to cover. Why did he use only 1 box for 6 polling places when he had ample boxes to cover a majority of the 8 polling places. The ideal situation envisaged by S.122(1) and S.130(1)(d) & (e) is that each polling booth in each polling place is to be given a polling ballot-box or boxes. At the close of polling on each day of the polling period at each polling place, in the presence of the poll clerk and scrutineers in attendance, the ballot-box is publicly closed, fastened, locked and taken charge of. Thereafter, the box is not opened until at the time of counting. It is necessary to set out these provisions.
Section 122 Provides:
"(1) Each polling booth shall be provided with the necessary ballot-box or ballot boxes.
(2) A ballot-box shall have a cleft in the cover through which the ballot-papers may be deposited in the box, and shall be provided with mans for securely closing the cleft so that, when the cleft is so closed, no ballot-papers or other matters or things can be deposited or placed in the box or withdrawn from it.
(3) A ballot-box shall be capable of being securely fastened with a lock."
Section 130(1)(d) & (e) provides:
"(1)(d) At the close of the polling on each day of the polling period at a polling place, the presiding officer shall, in the present of the poll clerk and of any scrutineers who are in attendance, public close, fasten, lock and take charge of the ballot-box; and
(1)(e) When a ballot-box is full or no longer required for the polling, or at the end of the polling period for all polling places for which he is the presiding officer, whichever first occurs, the presiding officer shall, with the least possible delay, forward the ballot-box for the purposes of scrutiny, and it shall on no account be opened except in accordance with this Law."
Reading S.122 and S.130(1)(d) &(e) together, it means that once polling is completed in each polling place, the closed box is securely fastened with a lock and taken charge of. The placing of the inner and outer seal would then guarantee the safety of the box and its contents, until it is opened at the counting centre. It is not intended that at the end of polling at a particular polling place, the box would be used again, which means the locks would be cut open. The locks bear no serial numbers and are placed to secure the box because it is strong and the box cannot be opened easily. The seal tags are easily removable because they are made of plastic but their significance is the serial numbers and the fact that once it is broken, it is unusable. The seals are designed to protect the integrity of the box; not for purposes of securing the safety of the box; the locks serve that purpose. Locks, which have no serial numbers, it cut can be easily replaced with a new one and they are easily available in stores; the difference between the old and the new lock not clearly visible. The placing of the seals ensures that the lock to the box had not been cut open and replaced with other locks before the counting.
Also there has been no credible evidence produced by the First Respondent to show that the same scrutineers who took note of the seal tag numbers at the first polling place remained throughout the subsequent polling places and they confirmed the serial tags as they were cut open and new ones placed at subsequent polling places.
Such practices as adopted by Mr. Kaugeri in this case, shows that questions over the integrity of this box remained unanswered. His absence at the counting place is contrary to S.154(2)(a) and constitutes an additional error or omission under S.218(1).
CONCLUSION
In arriving at this conclusion, I have not determined the validity of the votes in ballot-box 0056 because the question does not arise in these proceedings. It is the integrity of the ballot-box which is in issue. The recklessness, almost bordering on deliberate misconduct, of polling officials Mr. Kaugeri and Mr. Kohuli in safeguarding the integrity of this box and/or the erroneous decision made to count this disputed box respectively alone are sufficient to disallow the ballot box from being opened and counted. The seriousness of the breach of electoral duties is more than the breach of electoral duties in Fr. Ambane’s case, ante, which vitiated the entire election in that case. In that case, the only problem was the Commission’s failure to supply sufficient number of official ballot-boxes forcing polling officials to use unofficial patrol boxes. The boxes were numbered, tagged and sealed with locks. Those boxes contained 1,300 valid votes. The Returning officer validly rejected the boxes because the boxes were unofficial ballot-boxes and ordered a by-election. The Supreme Court ordered that the ballot-box be opened and counted to determine if the result of the election was affected. After the box was counted, it was ascertained that the Petitioner would have won the election by some 202 votes. In the subsequent decision the Court ordered a by-election simply because due to the inefficiency of Electoral Officers, eligible voters were unable to cast their votes in officially provided ballot-boxes.
I accept that unlike Fr. Ambane’s case, there is no provision in the OLNE for the use of seal tags. I am told that there are no constitutional regulations made under S.297 which may contain provisions on the use of seal tags. The Commission in its wisdom, has considered that in order to safeguard the integrity of completed ballot-papers in ballot-boxes, the use of seal tags is necessary and issued instructions worded in strict and mandatory terms, to Presiding Officers and Returning Officers, to ensue that the inner and outer seals are placed on ballot-boxes, and their numbers given to scrutineers. The instructions are contained in Official Manuals, which are public documents. They are there for a very special reason and they must be complied with by polling officials. These instructions cannot be simply brushed aside by polling officials or the Commission itself or any other interested person, as merely technical administrative requirements. I have given due recognition and weight to these administrative guidelines and in so doing, interpreted "errors or omissions" under S.218(1) to include breach of duties imposed upon Presiding officers and Returning officers in relation to the fixing and opening of seal tags. The use of locks alone are not sufficient to safeguard the security as well as the integrity of ballot-boxes. They have no serial numbers and there are plenty of locks in supply in stores throughout the country.
In the present case, the absence of the inner and outer seals was of concern to polling official Wapi Ganz from the start. It was a concern to Assistant Returning officer Mr. Angananan and polling clerk Wesley Ulumb. It was even a concern to Mr. Kaugeri himself. The concern was registered by Mr. Ganz with Mr. Kohuli at Aiome Station when the box was delivered to him after completion of polling at Jitibu and no doubt in Mr. Kohuli’s mind as a matter of concern to him. It was also no doubt a concern to most of the scrutineers including Mr. Salar. When the box was disputed, Mr. Kohuli did not wait for Mr. Kaugeri’s return from Madang as previous indicated to him. Instead, he decided to count the box for a different reason which had nothing to do with the grounds of objection. Even then, the conduct and credibility of both Mr. Kohuli and Mr. Kaugeri have been called into question. This means to the extent that they have tried to explain away their conduct in Court ex post facto, the explanation has become unsatisfactory, unreliable and unacceptable. For these reasons, I have concluded that the result of the election of the Second Respondent based on the counting of ballot-box 0056 was not arrived in accordance with law. The decision to count this box was also unreasonable and unfair in the total circumstances of the case.
In all the circumstances, I am not satisfied that Mr. Kohuli made a correct or reasonable decision to count this box. The returning officer should have decided not to count this box until the Presiding officer was present to explain the problem box. Even if the Presiding officer had been present, I do not think the explanation that he gave in Court, if given to the Returning Officer, would have constituted proper and sufficient basis to open this box. Serious questions still linger over the "integrity" of this ballot-box, and such that it should not have been counted and votes from this box posted on the progressive tally score.
APPROPRIATE RELIEF – EFFECT OF DECISION
For these reasons, I find that these errors or omissions affected the result of the election. I declare that the First Respondent was not duly declared pursuant to S.212(1)(g). It is clear to me that the result of the election should be in favour of the Petitioner. Without votes from this box, the Petitioner would have won the election with 5630 votes followed by the Second Respondent with 5424; a difference of 206 votes.
Pursuant to S.212(1)(g), I declare that the Petitioner Assik Tommy Tomscoll is the duly elected Member for the Middle-Ramu Open Seat in the National Parliament. I appreciate that this additional relief is not pleaded in the Petition, but the Supreme Court decision in Korak Yasona v. Castan Maibawa & Electoral Commission SC552 (1998) decided that the specific relief provided under the OLNE need not be specifically pleaded in a petition. This additional relief is ordinarily consequent upon my declaration that the First Respondent was not duly elected. This order does not have the effect of voiding the whole election but only voiding the declaration of the Second Respondent as the duly elected member for the Middle-Ramu Open Seat. Pursuant to s.226, this decision takes effect forthwith. The Court will now advice the Speaker of the Parliament to effect the decision. That is, the First Respondent ceases to be a member of the National Parliament as of Today and in his place, the Petitioner shall take his seat accordingly.
COSTS
Costs of the Petitioner shall be paid by the respondents in equal portions. The Petitioner’s cost deposit of K2,500.00 shall
be refunded to him.
________________________________________________________________________
Lawyer for the Petitioner : T.M. Rei Lawyers
Lawyer for the First Respondent : Nongorr Lawyers
Lawyer for the Second Respondent : Pacific Legal Group
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URL: http://www.paclii.org/pg/cases/PGNC/2003/147.html