Lisio v Puana [2008] PGNC 122; N3463 (31 March 2008)

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IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS
FOR THE KANDRIAN GLOUCESTER OPEN ELECTORATE IN THE WEST NEW
BRITAIN PROVINCE 2007 GENERAL ELECTIONS

PARLIAMENT - Elections – Disputed election petition – election of Member of Parliament – irregularities, errors and omissions by election officials during counting – whether ballot papers removed from petitioner’s box – whether errors and omissions committed during elimination process - should the court order a recount – Organic Law on National & Local Level Government Elections, s170

V Yobone, for the Petitioner
S Japson, for the 1st Respondent
A Kongri, for the 2nd, 3rd & 4th Respondents

1. GABI J: This is a petition by Bob Lisio disputing the result of the election for the Kandrian Gloucester open electorate in the 2007 general election. Bob Lisio was the first runner-up with a total of 7, 099 votes while Tony Puana polled 7, 112 votes to win by a margin of 13 votes. Bob Lisio is seeking a recount of all ballot papers in the electorate.

2. To appreciate the complaint, it is appropriate to set out in full the grounds of the petition and the relief sought:

They further failed to allow scrutineers for the Petitioner to object and inspect the "informal ballot papers" before they were removed from the petition’s box.

(i) The 13th elimination of David Sui was conducted at 4.30 pm, Saturday 21st July 2007. The count was suspended midway with the following tallies:

(1)	Bob Lisio Plus New Progressive	6,246 330 6576
(2)	Tony Puana Plus New Progressive	4,272 1,194 5468
(3)	Camilius Vovore Plus	4,874 504
(4)	Exhausted B/papers Plus New Progressive	2,830 861 3691
GRAND TOTAL		21,113

(1)	Bob Lisio Plus New Progressive	6,246 330 6576
(2)	Tony Puana Plus New Progressive	4,272 1,194 5468
(3)	Camilius Vovore Plus	4,874 534 5408
(4)	Exhausted B/papers Plus New Progressive	2,830 1,543 4373
GRAND TOTAL		21,826

(c) On the 14th and the last elimination of candidate Camilus Vovore, the tally for the Petitioner and the First Respondent stood at 7099 and 7111 respectively. With regard to percentage, they were both tied at 50%. However the First Respondent was declared winner without considering the percentage equality of votes polled by the last two (2) remaining candidates.

3. Bob Lisio’s complaint is that there were irregularities, errors and omissions committed by counting officials during the counting process. There is no complaint against Tony Puana nor is there any complaint in respect of the polling process. The complaint is confined to the counting process.

(b) he and Tony Puana were both tied at 50% and that a total of 14 ballot papers were removed from his box as "informal ballot papers" without his scrutineers being given the opportunity to inspect the ballot papers to establish whether they were in fact "informal" ballot papers.

(c) the tallies for the 13th elimination count, which was suspended on 21st July 2007, changed overnight as the tallies on 22nd July 2007 were different from those on the previous day.

(e) Mathew Nelson failed to control and conduct a proper scrutiny of the counting at the counting centre with the result that there were discrepancies in the tallies at the end of the 14th and final elimination count.

(g) the Electoral Commission likewise, failed to conduct a recount when Camillus Vovore requested one on 24th July 2007.

(a) Whether 14 ballot papers were removed from Bob Lisio’s box? If so, whether Bob Lisio’s scrutineers were given the opportunity to inspect the 14 ballot papers?

(b) Were irregularities, errors and omissions committed during the 13th elimination count?

(d) Was there inadequate control and scrutiny of counting at the counting centre?

(g) Should the court order a recount or grant any of the orders asked for by Bob Lisio?

6. The trial proceeded by way of affidavit and oral evidence. Bob Lisio filed the following affidavits:

(a) his affidavits dated 23rd and 27th September 2007 (Exhibits "P1" and "P2") respectively;

7. The respondents filed the affidavits of Mathew Nelson dated 11th October 2007 (Exhibit "R1") and Wama Karepa dated 11th October 2007 (Exhibit "R4").

8. In addition, I admitted into evidence originals of Form 66A for the primary count (Exhibit "R2A") and the re-check (Exhibit "R2B") and a copy of Form 66B (Exhibit "R3"). The respondents failed to produce the original of Form 66B at the trial.

9. The brief facts are that Bob Lisio and Tony Puana were candidates for the Kandrian Gloucester open electorate in the West New Britain Province in the 2007 general election, which was held between 4th May and 6th August 2007. The polling ended on or about 7th July 2007 and at the completion of the counting of the primary votes on 16th July 2007, the tallies for the first 3 candidates were: Bob Lisio – 3, 852 votes; Camillus Vovore – 3, 522 votes; and Tony Puana – 3, 180 votes.

10. On 17th July 2007, a re-check, or what is known as "quality check", was conducted and at the completion of that process, the figures were as follows: Bob Lisio – 3838 votes; Camillus Vovore – 3516 votes; and Tony Puana – 3161 votes. During the "quality check", the counting officials removed 14 ballot papers from Bob Lisio’s box, 6 ballot papers from Camillus Vovore’s box and 19 ballot papers from Tony Puana’s box. The reason for the removal was that they were either informal votes or votes belonging to other candidates.

11. The "quality check" was followed by an elimination count. There were 16 candidates and they were eliminated one by one under the limited preferential voting system. The final elimination – of Camillus Vovore – took place on 22nd July 2007 when Tony Puana polled 7, 112 votes and Bob Lisio polled 7, 099 votes; a difference of 13 votes. On the same day, Tony Puana was declared the winner.

12. After the declaration on 22nd July 2007, Bob Lisio and Camillus Vovore requested a recount; but no response was received to their requests.

13. On 25th July 2007, Forms 66A and 66B were certified by Mathew Nelson, Wama Karepa and 3 scrutineers.

14. Bob Lisio, Camillus Vovore, Francis Koi Ulelio and Joe Pitim gave oral evidence for and on behalf of the petitioner. Mathew Nelson and Wama Karepa gave evidence for and on behalf of the respondents.

15. Bob Lisio said he was at home during the counting process and that the matters he deposed to in his affidavit were from information provided to him by his scrutineers, Francis Koi Ulelio and Joe Pitim. He deposed that during the re-check or the "quality check" on 17th July 2007, Mathew Nelson removed 14 ballot papers from his box. He said that at the end of the 13th elimination count there were discrepancies in the tallies and the scrutineers present requested a re-check.

16. Mathew Nelson refused the request and continued the count with all the discrepancies. At the conclusion of the 14th and final elimination count Tony Puana polled 7, 111 votes and he polled 7, 099 votes. He said the difference initially recorded on the tally board was 12 votes, but the winning margin was increased to 13 votes after Mathew Nelson removed a ballot paper from the exhausted ballot papers box and placed it in Tony Puana’s box.

17. Bob Lisio further deposed that the 14th elimination count was completed very quickly, that it was very difficult to scrutinise the counting and that the counting room was like a market place with everyone helping themselves to the ballot papers. There was no control or scrutiny of counting and the scrutineers were never advised or informed of changes that were taking place in the counting centre. He said that Mathew Nelson made the declaration without giving him or his scrutineers the opportunity to seek a recount.

18. In cross-examination, he said that he requested a recount after the declaration was made. It was suggested to him that his scrutineers were lying. He responded that he believed his scrutineers. I enquired whether he had discussed with his scrutineers the possibility of seeking a recount before the declaration and he replied that he had not as he was expecting to win the election.

19. Like Bob Lisio, Camillus Vovore was not at the counting centre during the counting process and what he deposed to in his affidavit was from information given to him by his scrutineers.

20. He deposed that on 21st July 2008, Mathew Nelson suspended the 13th elimination count – of David Sui – at about 4:30 pm for no apparent reasons. Prior to the suspension, the counting officials announced the figures. These were obtained by scrutineers who were present at the counting centre.

21. On the next day when counting resumed there were discrepancies in the figures. There was an increase in the figures from the previous day. The scrutineers requested a re-check, but Mathew Nelson refused the request and allowed the counting to continue with all the discrepancies. He deposed that the tallies on 21st and 22nd July 2007 were:

(1)	Bob Lisio Plus New Progressive	6,246 330 6576
(2)	Tony Puana Plus New Progressive	4,272 1,194 5468
(3)	Camilius Vovore Plus	4,874 504
(4)	Exhausted B/papers Plus New Progressive	2, 830 861 3691
GRAND TOTAL		21,113

(1)	Bob Lisio Plus New Progressive	6,246 330 6576
(2)	Tony Puana Plus New Progressive	4,272 1,194 5468
(3)	Camilius Vovore Plus	4,874 534 5408
(4)	Exhausted B/papers Plus New Progressive	2, 830 1, 543 4373
GRAND TOTAL		21,826

22. Camillus Vovore further deposed that the 14th and final elimination count was completed quickly and it was impossible for scrutineers to follow the counting and verify the figures. There was no proper control and scrutiny in the counting centre and the counting centre was like a market place where officers were helping themselves to the ballot papers in the boxes of Tony Puana and Bob Lisio.

23. The scrutineers were never informed of the changes that were taking place in the counting centre with the result that they were left confused and uncertain. He requested a recount on 24th July 2007 but the Electoral Commission did not respond to his request.

24. In cross-examination, he was asked whether he believed everything his scrutineers told him. He replied that he did and that they were his "eyes and ears." He was asked to explain where he obtained the tallies from for the 13th elimination count. He said that up to the 13th elimination count, all the tallies were announced and then put up on the tally board in the counting centre for the public to see.

25. When the 13th elimination count was suspended at about 4:30 pm on 21st July 2007, the public were not informed of the progressive tallies nor were these posted to the tally board. He said the scrutineers were informed of the tallies and he obtained the figures from his scrutineers. He said on the next day, 22nd July 2007, the figures changed and so his scrutineers and Bob Lisio’s scrutineers requested a re-check but Mathew Nelson refused the request.

26. He was a scrutineer for Bob Lisio. He deposed that at the conclusion of primary votes on 16th July 2007, Bob Lisio was leading with 3, 852 votes. Before the elimination count, a re-check or "quality check" was conducted on 17th July 2007 when 14 ballot papers were removed from Bob Lisio’s box. He disputed this as the ballot papers had been counted and the figures broadcast over the radio.

27. He said they were not given an opportunity to examine the ballot papers that were removed. As a result of his opposition to the removal of the ballot papers, Mathew Nelson and Sam Esekia ordered his removal from the counting centre and so he left the counting room. He was replaced by Joe Pitim. He said he was ordered to leave the counting centre after he objected to the removal of the first 2 ballot papers; the other 12 ballot papers were removed after he had left.

28. He said at the conclusion of the 14th and final elimination count on 22nd July 2007, he saw Mathew Nelson pick up a ballot paper from the exhausted ballot papers box and add it to Tony Puana’s tally of 7, 111 votes to bring the final tally up to 7, 112 votes. He said the final elimination count was completed very quickly, that there was no order in the counting centre and everyone, including Mathew Nelson and Sam Esekia, were moving around helping themselves to the ballot papers.

29. He said Mathew Nelson never asked them before the declaration whether they were satisfied with the final elimination figures. They were told to leave the counting centre as the counting officials were preparing for the declaration. He did not ask for a recount.

30. He was the other scrutineer for Bob Lisio. He deposed that after the re-check or the "quality check" a total of 14 ballot papers were removed from Bob Lisio’s box. He said the 14th and final elimination count was completed quickly, that the counting centre was like a market place as the officers were helping themselves to the ballot papers in the boxes of Tony Puana and Bob Lisio, that there was no control and scrutiny of counting and that the scrutineers were never informed of the changes that were taking place in the counting centre with the result that they were confused. He said when he raised objections, Mathew Nelson paid no attention.

31. In cross-examination, he said that he did not know the reason for the removal of the 14 ballot papers from Bob Lisio’s box. He said he went into the counting centre after Francis Koi Ulelio was chased out during the re-check or "quality check" and that he was in the counting centre during the "quality check".

32. Mathew Nelson was the Returning Officer for the Kandrian Gloucester Electorate in the 2007 General Election. His assistants were Wama Karepa, Paul Nabog, Edward Wambun, Vincent Murario and Mathew Hiwi. He is from East Sepik Province and is not related to Tony Puana.

33. He deposed that counting commenced on 14th July 2007 and Bob Lisio was the runner-up with 7, 099 votes. Tony Puana polled 7, 112 votes to win by a margin of 13 votes. Tony Puana was declared the winner on 22nd July 2007 at about 12:10 pm. He said that after the count of primary votes, a re-check, or what is commonly known as "quality check", was completed before the elimination count and in that process a total of 14 votes were removed from Bob Lisio’s box as being either informal, or votes belonging to other candidates. He said the final results from the primary count and the "quality check" were as follows:

Candidates	Primary Count	Re-Check Count	Difference
Bob Lisio	3852	3838	-14
Tony Puana	3180	3161	-19
Gerard Lelang	223	223	Nil
Joe Lamboku	1080	1079	-1
Henry R Maniel	602	602	Nil
Luke Muta	927	925	-2
David Sui	2858	2849	-9
Micheal Uvilio	44	45	+1
Peter Dau	451	451	Nil
Alois Malelkit	191	191	Nil
Dominic Anis	692	689	-5
Camilus Vovore	3522	3516	-6
Alphonse Barthe	279	278	-1
Michael Kartson	2114	2120	+6
Fabian Vilang	1535	1537	+2
Patrick Mavihi	325	324	-1

34. He said that all ballot papers that were removed from each candidate’s box and confirmed to be informal were shown to all candidates’ scrutineers including Bob Lisio’s scrutineers. He said at the end of the 14th and final elimination count the total number of ballot papers remaining in count was 14, 211 and the absolute majority figure (50% + 1) was 7, 106. As Tony Puana had a total of 7, 112 votes he was declared the winner. He said that he did not want to do a recount because the letter requesting a recount was received after the declaration and he did not have the powers then to do a recount. He admitted that he had not responded to Bob Lisio’s request for a recount.

35. He denied that there were illegalities, irregularities, errors and omissions committed during the counting process, that he removed a ballot paper from the exhausted ballot papers box and placed it in Tony Puana’s box at the conclusion of the final elimination count, that there was no proper control and scrutiny of counting at the counting centre and that everyone helped themselves to the ballot papers during the 14th and final elimination count.

36. In cross-examination, he again reiterated that the removal of the 14 ballot papers from Bob Lisio’s box was explained to his scrutineers. He was asked whether Bob Lisio’s scrutineers were present when the 14 votes were removed. He said he believed they were present. He was further asked if he saw them in the counting room. He said he could not confirm that.

37. It was suggested to him that the 14 ballot papers were removed in the absence of Bob Lisio’s scrutineers. He answered: "No comments." He was asked whether he sought the views of Bob Lisio’s scrutineers before the declaration in view of the fact that the winning margin was small. He said he had no comments. He was further questioned as to what should have been done in view of the fact that the winning margin was quite small. He said he had never come across such a situation.

38. Wama Karepa was one of the Assistant Returning Officers and the recorder of the tally during the counting process. He said all scrutineers were allowed to check and inspect the informal votes before they were removed from the candidates’ boxes and declared informal by the Returning Officer. He said the tallies on 21st and 22nd July 2007 were as follows:
21st July 2007

NO	NAME OF CANDIDATES	TALLY PER PETITION	ACCURATE/OFFICIAL TALLY PER RECORDS	DIFFERENCE
1	Bob Lisio	6,246	6,246	Nil
	Plus	330	330	Nil
	New progressive	6,576	6,576	Nil

2	Tony Puana	4,274	4,274	Nil
	Plus	1,194	1,195	01
	New progressive	5,468	5,469	01


3	Camillus Vovore	4,874	4,874	Nil
	Plus	504	534	30
	New progressive	Was not recorded 5,378	5,408	30

4	Exhausted b/papers	2,830	2,830	Nil
	Plus	861	1,543	682
	New progressive	3,691	4,373	682

	Grand Total	21,111	21,826

NO	NAME OF CANDIDATES	TALLY PER PETITION	ACCURATE/OFFICIAL TALLY PER RECORDS	DIFFERENCE
1	Bob Lisio	6,246	6,246	Nil
	Plus	330	330	Nil
	New progressive	6,576	6,576	Nil

2	Tony Puana	4,274	4,274	Nil
	Plus	1,194	1,195	Nil
	New progressive	5,468	5,469	01


3	Camillus Vovore	4,874	4,874	Nil
	Plus	534	534	Nil
	New progressive	5,408	5,408	Nil

4	Exhausted b/papers	2,830	2,830	Nil
	Plus	1,543	1,543	Nil
	New progressive	4,373	4,373	Nil

	Grand Total	21,826	21,826

He said the tallies after the final elimination count showed 7, 112 votes for Tony Puana and 7, 099 votes for Bob Lisio. The absolute majority was 7, 106 votes. He said he did not observe any misconduct, such as the tampering with ballot papers by counting officials during the counting process and it was normal for ballot papers incorrectly placed to be removed and placed in the right boxes.

39. In cross-examination, he said that after every count he would enter the tallies on the tally sheet; form 66A was used to record the tallies for the primary count and form 66B was used for the elimination count. He said at the conclusion of the primary count, a "quality check" was made and all scrutineers were shown the informal votes and votes belonging to other candidates before removing them. He was asked to explain why the tally sheets, form 66A and form 66B, were certified on 25th July 2007. He said he could not recall the reason, but suggested that it may have been because the scrutineers were not present. He said he knew how the forms were completed but could not explain the delay in certifying the forms.

Whether 14 ballot papers were removed from Bob Lisio’s box? If so, whether Bob Lisio’s scrutineers were given the opportunity to inspect the 14 ballot papers?

40. Section 151 of the Organic Law on National and Local-Level Government Elections provides:

42. There is no dispute that 14 ballot papers were removed from Bob Lisio’s tray/box during the re-check or "quality check" process because they were either informal or votes belonging to other candidates. There is no evidence before the court to show how many of these 14 ballot papers were informal, how many belonged to other candidates and who those candidates were.

43. Mathew Nelson’s evidence corroborated by Wama Karepa was that all ballot papers removed and confirmed to be either informal or votes belonging to other candidates were shown to all scrutineers including Bob Lisio’s scrutineers. Bob Lisio’s scrutineers Francis Koi Ulelio and Joe Pitim deny this.

44. Francis Koi Ulelio objected to the removal of the first 2 ballot papers and as a result of the objection he was removed from the counting room. He went back to the counting centre the next day. Mathew Nelson confirmed that Francis Koi Ulelio was removed from the counting room as he was making "too many complaints". Joe Pitim went into the counting centre after Francis Koi Ulelio was removed. There is some confusion as to whether he was in the counting centre before or after the 14 ballot papers were removed. I agree with Messrs Japson and Kongri and find that Joe Pitim replaced Francis Koi Ulelio after the removal of the first 2 ballot papers and was present in the counting centre during the re-check or "quality check".

45. Did Joe Pitim object to the removal of the remaining 12 ballot papers? Joe Pitim’s evidence was that he objected to the removal of the ballot papers but that Mathew Nelson paid no attention, that he did not understand what was going on in the counting centre with the result that he was confused and that no explanation or reasons were given for the removal of the ballot papers.

46. Messrs Japson and Kongri urged the court not to accept the evidence of Francis Koi Ulelio and Joe Pitim and to believe the evidence of Mathew Nelson and Wama Karepa. This submission was based on two grounds: (i) that paragraph 4 of Francis Koi Ulelio’s affidavit (Exhibit P4) conflicts with paragraph 4 of Joe Pitim’s affidavit (Exhibit P5); and (ii) that Joe Pitim’s oral evidence conflicts with paragraph 4 of his affidavit. I set out the relevant paragraphs hereunder. At paragraph 4 of Francis Koi Ulelio’s affidavit he states:

"I started disputing the removal of the ballot papers as these ballot papers were already counted and figures broadcasted over the radio. The Returning Officer (Mathew Nelson) and his Assistant (Sam Esekia) jointly ordered my removal with threats to use security forces if I did not obey them. I volunteered to leave the counting room and was replaced by my other co-worker until the next day. The scrutineers were not given a chance to examine the ballot papers being removed."

"When I stood up for my candidate and took a bold stand to ask them of something I noticed was wrong, the Returning Officer never paid attention. Because of my bold stand, I was chased out of the room after Count 17 and before elimination. I suspect that in my absence something fishy had already happened when I returned the next day only to find that Bob Lisio’s tally had fallen from 3,852, a difference of 14, (the figure in question) already confirmed and broadcasted through the media) to 3,838 and broadcasted again claiming it as informal ballot papers."

"Because of my bold stand, I was chased out of the room after Count 17 and before elimination. I suspected that in my absence something fishy had already happened when I returned the next day only to find that Bob Lisi’s tally had fallen from 3,852 difference of 14, (the figure in question) (already confirmed and broadcasted through the media) to 3,838 and broadcasted again claiming it as informal ballot papers."

(a) Francis Koi Ulelio and Joe Pitim had signed each others affidavits and not their own. With the consent of all parties I ordered that both witnesses sign their respective affidavits. The amendment/deletion was allowed because of that mistake. The portion that was removed from paragraph 4 of Joe Pitim’s affidavit was consistent with Francis Koi Ulelio’s evidence;and

(b) the portion that was removed is not before the court and is not part of the evidence. In any event, it does not conflict with Joe Pitim’s oral evidence.

50. Francis Koi Ulelio was removed from the counting room after he objected to the removal of the first 2 ballot papers. He was replaced by Joe Pitim. Francis Koi Ulelio’s evidence corroborated by Mathew Nelson that he was removed from the counting room and therefore denied the opportunity to inspect the ballot papers, remains unchallenged. I find that Francis Koi Ulelio was removed from the counting room after he objected to the removal of the first 2 ballot papers.

51. A public official has a duty to attend to complaints and address them. Meeting a complaint with an order for removal is not addressing a complaint; it is a denial of the opportunity to inspect the ballot papers, which appears to be a direct contravention of section 151(c) of the Organic Law on National & Local-Level Government Elections.

52. I observed the demeanour of Francis Koi Ulelio and Joe Pitim. They did not appear to be lying. I have no reasons to disbelieve them. Joe Pitim’s evidence was that his objections were not attended to and that the reasons for the removal of the ballot papers were not given to him. Mathew Nelson and Wama Karepa have not contested Joe Pitim’s evidence that his objections were not attended to and therefore it remains unchallenged. Secondly, Mathew Nelson said that the ballot papers were shown to Bob Lisio’s scrutineers before being removed. The only person Mathew Nelson could have shown the ballot papers to was Joe Pitim.

53. In cross-examination, Mathew Nelson was unable to confirm whether Joe Pitim was in the counting room during the "quality check". When it was suggested to him that the scrutineers were not in the counting room, he said he had no comments. It is unclear to me whether Mathew Nelson did in fact show Joe Pitim the 12 ballot papers or allowed him to inspect them before removing them from Bob Lisio’s tray. Accordingly, I am unable to find with any degree of certainty that Mathew Nelson showed or allowed Joe Pitim to inspect the 14 ballot papers.

54. A decision to remove ballot papers from a candidates’ tray/box after they have been counted is a significant decision, which may directly affect the result of an election. A returning officer must give an explanation to the scrutineers for the decision to reject or remove a ballot paper. The duty to give reasons is part of the law in Papua New Guinea. It is a fundamental principle of administrative law. If no reasons are given for making a decision, the court is entitled to conclude that there were no good reasons for the decision (see Niggints v Tokam [1993] PNGLR 66 and Ombudsman Commission v Peter Yama (2004) SC 747).

Were irregularities, errors and omissions committed during the 13th elimination count?

55. In their letter dated 24th July 2007 to the Chief Electoral Commissioner, Camillus Vovore and Bernie Nakamura, a scrutineer, allege that the figures announced by the counting officials and obtained by the scrutineers prior to the suspension of counting on Saturday 21st July 2007 were different from the official tallies posted to the tally board on 22nd July 2007. These figures formed the bases for the pleadings in paragraph 12 (b) (i) and (ii) of the petition.

56. I accept the submission by Mr. Kongri that the evidence of Camillus Vovore and Bob Lisio on this aspect is hearsay and that not much weight should be given to it. Francis Koi Ulelio offered no direct evidence on the matter. It is clear that Camillus Vovore obtained the figures from his scrutineers, but none came forward to give evidence. I accept the evidence of Mathew Nelson and Wama Karepa.

57. With respect to the third and fourth issues, there is no evidentiary basis for the allegations.

58. I accept the tally sheets and documents produced by Mathew Nelson for and on behalf of the respondents. I accept that Bob Lisio polled 7, 099 votes and Tony Puana polled 7, 112 votes to win by a margin of 13 votes. I find that they were not tied at 50%.

59. Section 170 of the Organic Law on National and Local-Level Government Elections provides:

(1) Subject to Subsections (4) and (5) where on the final count, the margin of votes between the candidate who polled the highest number of votes and the candidate who polled the next highest number of votes does not exceed 0.25% of the number of votes polled by the candidate who polled the highest number of votes, the candidate who polled the next highest number of votes may, at any time before the declaration of the result of the election, request the Returning Officer to re-count the ballot-papers contained in a parcel.(emphasis added)

(3) The officer conducting a re-count has the same powers as if the re-count were the scrutiny, and may reverse any decision in relation to the scrutiny as to the allowance and admission or disallowance and rejection of any ballot-paper.

(4) Where the scrutiny is conducted by the use of an electronic system, a candidate may request and the Returning Officer shall, subject to compliance with provisions of Subsection (5), count the votes without the electronic system.

(5) The candidate demanding a recount shall be required to pay a deposit of an amount of money that the Returning Officer estimates will be the cost of conducting a recount and the candidate must pay the amount determined by the Returning Officer and agree to cover further costs of the recount before a recount is granted under Subsection (4).

(6) If a recount conducted under Subsection (4) produces a result different from the result produced by the electronic count, the Returning Officer shall refund to the candidate the deposit paid but if the result remains the same, the deposit shall be forfeited to cover the expenses of the recount and, if any excess cost is not covered by the recount, the Electoral Commission shall claim the excess from the candidate who demanded the recount as a debt but if there is a balance remaining in the deposit after deducting the cost of recount, the balance shall be paid to the candidate.

60. Mr. Japson concedes that a situation exists for a recount, but submits that as the request was made after the declaration, no re-count should be ordered. Secondly, he submits that even if a request were made before the declaration there is no evidence to show that Bob Lisio was willing to meet the costs of the re-count, which is a mandatory requirement under s. 170 (5) of the Organic Law.

61. Mr. Kongri argues that subsection (1) is subject to subsections (4) and (5). Subsection (4) refers to scrutiny conducted by use of an electronic system and since subsection (1) is made subject to subsection (4), the provision of section 170 could not be invoked by Bob Lisio to request a re-count.

62. I am unable to agree with Messrs Japson and Kongri. Subsections (4) and (5) relate to a request for a recount and the payment of the costs of a recount where the scrutiny is conducted by use of an electronic system. Here, the scrutiny was conducted manually. As such, subsections (4) and (5) have no application.

63. I am of the view that there are 2 requirements under section 170(1). First, that the margin of votes between the first and second candidates is less than 0.25% and secondly, that the candidate with the second highest number of votes, must request a recount before the declaration of the result of the election. There is no dispute that the margin was 0.16873% or 0.17%, which is less than the required 0.25%.

64. A returning officer must address his mind to the question of a recount prior to the declaration of the result. Did the returning officer address his mind to the question of a recount? In cross-examination Mathew Nelson was asked whether he sought the views of Bob Lisio’s scrutineers before the declaration in view of the fact that the winning margin was quite small. He said he had no comments. As to the question of what ought to have been done in view of the narrowness of the winning margin; he said he had never come across such a situation. It is clear to me that Mathew Nelson did not address his mind to the question of a recount and I so find.

65. Is the returning officer required to inform the candidate with the second highest number of votes that the margin is less than 0.25%? The law is silent on this question. Ms Yabone submits that as the margin is 0.16873%, which is less than the required 0.25%, a situation exists for a recount and a reasonable opportunity ought to have been given to the candidate with the second highest number of votes to request a recount: see Levers v Morris and Another [1972] 1 QB 221. In that case, the respondent had one more vote than the petitioner at the completion of the counting of votes in a local government election.

66. The returning officer declared the result without affording the petitioner and the respondent a reasonable opportunity to exercise a right of requiring a re-count in accordance with rule 47 of the Parliamentary Election Rules. Rule 47 provides:

"(1) A candidate ...may ...require the returning officer to have the votes re-counted... (2) No steps shall be taken on the completion of the counting...until the candidates...have been given a reasonable opportunity to exercise the rights conferred by this rule".

67. One of the orders the petitioner sought in his petition was a declaration that the election was void because the failure to give an opportunity of a re-count was non-compliance with the rules. The court directed a re-count by the prescribed officer, who reported that the original count was correct for admitted papers, and the two disputed papers were submitted to the court for consideration. The court held that since the original count had been accurate for the votes and was unaffected by the absence of a re-count, the court could determine the true number of votes cast.

68. The intention of our country’s Parliament is clear; where the margin is less than 0.25%, the candidate with the second highest number of votes may request a re-count before the declaration of the result of the election. The candidate must be given a reasonable opportunity to exercise his right to request a re-count. I believe that the responsibility to calculate the winning margin and to inform the candidate rests with the returning officer for three reasons:

(a) the levels of education and sophistication of candidates and their scrutineers vary greatly. If a candidate has to mathematically calculate the margin before requesting a recount, this is likely to be disadvantageous to the less educated and sophisticated candidates and their scrutineers;

(b) the Electoral Commission is an important national institution with all the resources, human and financial, to run an election. It has the statistics and it would not be asking too much to require a returning officer to ascertain the percentages of winning margins in the electorate and advise the candidates and scrutineers accordingly;

(c) the law permits the person with the second highest number of votes to request a re-count but such a request cannot be made without knowing that the margin is less than 0.25%.

69. It is the duty of the returning officer to supervise, scrutinise and count and declare a result (see: Electoral Law (National Elections) Regulation 2007, section 5 (1) (C) (vii) & (viii)). I am of the opinion that the duty to declare a result includes the duty to inform the candidate with the second highest number of votes that a situation for a re-count has arisen and to seek his or her opinion on a re-count before a declaration is made. Where the winning margin is less than 0.25%, the returning officer is under a duty to inform the candidate and to afford him or her a reasonable opportunity to request a recount before the declaration of the result. Bob Lisio and his scrutineers were not given such an opportunity.

Should the court order a recount or grant any of the orders asked for by Bob Lisio?

70. The principal relief Bob Lisio is seeking is a recount. Section 212 states the powers of the court. It provides:

1) In relation to any matter under this part the National Court shall sit as an open Court and may, amongst other things –

c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other

d) documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

g) declare that a person who was returned as elected was not duly elected; and

m) The Judges of the National Court may make rules of Court with respect of pre-trial conferences and procedures relating to procedures under this Part.

2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

3) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election."

71. Section 212 (3) suggests that the court has a discretion and may exercise the powers "on such grounds" as it "thinks just and sufficient". As a tribunal of fact I must be guided by the substantial merits and good conscience of the case (s. 217) and administer "real justice". In an order for a recount, the court is not required to be satisfied that the errors or omissions would have affected the result of the election (see: Maino v Avei [1998] PNGLR 178).

72. Here, Bob Lisio lost by 13 votes, 14 votes were removed from his tray/box in doubtful circumstances, the winning margin was less than the required 0.25% and no opportunity was afforded him to request a recount before the declaration of the result. I am satisfied that "just and sufficient" grounds exist to warrant a recount and I so order. Accordingly, I make the following orders:

1. Pursuant to Section 212 (1) (d) of the Organic Law on National and Local – Level Government Elections, there shall be a recount of ballot papers in the Kandrian Gloucester Open electorate, for the 2007 general election.

2. The recount shall be conducted at Talasea Local Level Government Council Chambers, Kimbe, West New Britain Province.

3. The recount shall be conducted by Mr. Simon Sinai, Election Manager for Morobe Province, who shall be the one person primarily responsible for appointment of counting officials, the conduct of the recount, the control and management of the counting centre and the doing of all other things to ensure the secure, efficient and transparent conduct of the recount.

6. The results of the recount must be presented to the National Court for ratification at a hearing of the Court on or before 12th May 2008.

7. It is declared for the avoidance of doubt that Mr. Tony Puana remains in office as the Member for Kandrian Gloucester unless and until he loses office by virtue of a court order or the exercise of power by some other lawful authority.

8. The Registrar of the National Court shall within 14 days after service of this order upon him, refund to the petitioner the sum of K5, 000.00 security for costs paid by the petitioner pursuant to Section 209 of the Organic Law.

9. Costs of the hearing of this petition up to 2nd April 2008, shall be paid by the 4th respondent to the petitioner and the 1st respondent, on a party - party basis, to be taxed if not agreed.

10. Parties are at liberty to apply for variation of these orders, by notice in writing, faxed to the associate to the presiding Judge, with copies to all other parties; the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with.

11. The person responsible for conducting the recount and any party to the petition is at liberty to apply to court for an order to resolve any issue arising during the course of the recount, by notice in writing, faxed to the associate to the presiding Judge, with copies to all parties; and the Judge will determine whether a hearing is necessary and how the application is otherwise to be dealt with.

Greg Manda Lawyers: Lawyer for the Petitioner
Parua Lawyers: Lawyer for the 1st Respondent
Nonggorr & Associates Lawyers: Lawyer for the 2nd, 3rd & 4th Respondents

National Court of Papua New Guinea

Lisio v Puana [2008] PGNC 122; N3463 (31 March 2008)