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Kuli v Apamia [2013] PGNC 104; N5275 (15 July 2013)

N5275

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 57 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE USINO-BUNDI OPEN ELECTORATE

BETWEEN

SAMSON MALCOLM KULI
Petitioner

AND

JAMES APAMIA,
RETURNING OFFICER FOR USINO BUNDI OPEN ELECTORATE
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

ANTON YAGAMA
Third Respondent

Madang: Makail, J
2013: 01st, 02nd, 03rd, 04th, 05, 12th & 15th July

ELECTION PETITIONS – Scrutiny of votes – Errors and omissions at scrutiny of votes – Objection to admission of ballot-box to scrutiny – Decision made by Returning Officer to admit ballot-box to scrutiny – Ballot-papers counted – Refusal to add results of count to total votes of candidates – Decision made pursuant to an agreement between Returning Officer and scrutineers of candidates – Reasons for refusal – Alleged tampering of ballot-box – Short fall in total number of issued ballot-papers – Lawfulness of decision – Organic Law on National and Local-level Government Elections – ss. 153A, 154 & 218.

ELECTION PETITIONS – Scrutiny of votes – Errors and omissions at scrutiny of votes – Failure by counting officials to properly count votes – Misallocation of ballot papers – Threats and intimidation of counting officers by scrutineers – Organic Law on National and Local-level Government Elections – ss. 154 & 218.

ELECTION PETITIONS – Remedy – Order for recount of votes – Discretionary – Organic Law on National and Local-level Government Elections – ss. 154, 212(1)(d), 217 & 218.

Cases cited:

Application by Ben Semri (2003) SC723
Paias Wingti -v- Kala Rawali & Electoral Commission (2008) N3286
Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5222

Counsel:

Mr R Diweni, for Petitioner
Mr A Kongri, for First & Second Respondents
Mr T Boboro, for Third Respondent

JUDGMENT

15th July, 2013

1. MAKAIL, J: The petitioner Mr Samson Malcolm Kuli and the third respondent Mr Anton Yagama were among 40 other candidates who contested the Usino-Bundi Open electorate in the Madang Province in the 2012 General Election. Mr Yagama polled 8,301 votes and Mr Kuli polled 6,160 votes. The winning margin was 2,141. On 28th July 2012, Mr Yagama was declared winner. Aggrieved by the result, Mr Kuli petitioned the Court to void the election of Mr Yagama, order a recount of votes and order the votes counted from ballot-box no 106055 to be added to the tallies for the candidates including him. Alternatively, he be declared duly elected.

Grounds

2. The grounds of the petition are summarised as follows:

2.1. Ground A - Errors and/or omissions and/or illegal practices by electoral officials,

2.2. Ground B - Failure to admit ballot-papers after being admitted to scrutiny,

2.3. Ground C - Misallocation of votes and ballot-papers,

2.4. Ground D - Failure to scrutinise ballot-papers of excluded candidates,

2.5. Ground E - Discrepancies in the number of ballot-papers, and

2.6. Ground F - Errors and omissions and illegal practices affected the result of election.

3. Part of ground 2.1 (Ground A), grounds 2.3 (Ground C), 2.4 (Ground D), 2.5 (Ground E) and part of 2.6 (Ground F) are related as they raise issues of threats and intimidation of counting officials and failure to properly count votes. Therefore, they will be determined together. Part of ground 2.1 (Ground A), ground 2.2 (Ground B) and part of 2.6 (Ground F) will be determined together because they raise the issues of whether the decision of the Returning Officer not to add the counted votes from ballot-box no 106055 is lawful and whether it constituted an error or omission.

Petitioner's Evidence

4. In establishing these grounds, Mr Kuli called eleven witnesses whose affidavits were tendered and were also cross-examined by counsel for the respondents. These witnesses were:

4.1. Tony Aimai (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P1"),

4.2. Pius Kanume (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P2"),

4.3. Jonah Eke Boli (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P3"),

4.4. Jarret Morris (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P4"),

4.5. Nila Mori (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P5"),

4.6. Julius Kandi (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P6"),

4.7. Tony Nelson (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P7"),

4.8. Anne Parker (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P8"),

4.9. Joyce Yuka (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P9"),

4.10. Kelly Winghom (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P10"), and

4.11. Joel Pugma (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit "P11").

Respondents' Evidence

5. The respondents denied the allegations and called six witnesses to rebut the evidence of the petitioner's witnesses. They were:

5.1. Steven Biko (Affidavit sworn on 01st November and filed on 05th November 2012 - Exhibit "R1"),

5.2. Joe Yama, (Gave oral evidence pursuant to a summons),

5.3. Anton Yagama (Affidavit sworn on 23rd October and filed on 29th October 2012 - Exhibit "R2"),

5.4. Dominic Angia (Affidavit sworn on 21st October and filed on 23rd October 2012 - Exhibit "R3"),

5.5. John Kituai (Affidavit sworn on 21st October and filed on 23rd October 2012 - Exhibit "R4"), and

5.6. John Nezungu (Affidavit sworn 17th October and filed on 23rd October 2012 - Exhibit "R5").

Undisputed Facts

6. According to the statement of agreed and disputed facts and issues for trial filed on 28th November 2012, the following facts are not in dispute: the Returning Officer for Usino-Bundi Open electorate is Steven Biko. He was responsible for conducting scrutiny of ballot-papers in the electorate. During count 27, when ballot-box no 106055 was admitted to scrutiny, a dispute rose in relation to its admission to scrutiny. Mr Biko presented a written objection to the Electoral Commissioner. On 19th July 2012, the Electoral Commissioner responded by way of a letter directing Mr Biko "to admit into scrutiny the ballot-box for team 172, Usino LLG, open the ballot box and count the ballot-papers to be added on to the tally for Usino Bundi Open Electorate." One of the reasons he gave was that "[j]ust because a scrutineer is not present to verify the seal number does not make a ballot-box illegal."

7. It was admitted to scrutiny and the ballot-papers were counted. Mr Kuli scored 726 votes. However, the votes were not added to tallies of the candidates including Mr Kuli because the total number of ballot-papers counted did not balance with the total number of issued ballot-papers. On 20th July 2012, the scrutineers of 32 candidates including Mr Kuli signed an agreement with Mr Biko not to add the counted votes to the tally for each candidate. As a result, 726 votes were not added to the tally for Mr Kuli.

Disputed Facts

8. Mr Yagama and the Electoral Commission denied the allegations of threats and intimidation of counting officials by scrutineers of candidates and allocation of ballot-papers to wrong candidates by counting officials. To support his claim that ballot-box no 106055 has not been tampered with, Mr Kuli called Tony Aimai and Pius Kanume. Tony Aimai is a councillor of ward 18 at Ono station. On Friday 06th July 2012, he organised his people to vote and was present at the polling place to ensure that polling proceeded without interruption. After the polling, he saw polling officials seal ballot-box no 106055 by applying the inner and outer seals. After that, police locked it at Walium Police Station.

9. Pius Kanume is a police First Constable. He was one of the many policemen and women who provided security during the election. He was deployed to team 172 to go to Mopo, Naru, Sumai and Poine to provide security during polling. He said between Monday 25th June and Friday 29th June 2012, he accompanied the polling team to these villages for polling and observed each ballot-box sealed by the polling officials and noted the seal numbers. They were temporary seal numbers as the boxes had to be opened for voters to cast their votes as they went from one village to another. The last village was at Ono and when polling completed the ballot-boxes were sealed and the seal numbers were announced. One set for the box for the Provincial seat and the other for the Open seat. After that, the boxes were taken to Walium Police Station where he placed them in the cell block.

10. Mr Kuli's witness Jonah Eke Boli was one of the scrutineers of Mr Kuli and was at the counting room. He said that during elimination count no 37 when candidate James Taidius was eliminated, 3,713 first preference votes were distributed to four remaining candidates as follows:

(a) Anton Yagama - 1,015 votes;

(b) Samson Kuli - 145 votes;

(c) Peter Yama - 926 votes;

(d) Samson Kaniku - 76 votes;

11. The number of total votes distributed was 2,162. The total ballot-papers exhausted for elimination no 37 was 1,787 votes. Thus, adding the exhausted ballot-papers plus votes distributed to the remaining candidates gave a total of 3,949. Deducting 3,713 from 3,949 gave a balance of 236 more votes for that elimination. This did not balance out.

12. He said that it was Stanley Karagabo who put the ballot-papers in the wrong trays because it was Mr Karagabo who sorted out and selected the second and third preference votes from ballot-box no 48 and called out the numbers to be recorded on the tally board. He quickly called the number for candidate no 50 (Mr Yagama) and as a result he did not hear it. He quickly put the ballot-papers in Mr Yagama's tray. He complained and one of the scrutineers of Mr Peter Yama whose name he does not know shouted at him saying "Kan yu, passim maus, Bai mi burukim het bilo yu." He was afraid and stopped. Mr Karagabo looked at him and appeared to be angry or upset with him.

13. At elimination no 38, Samson Kaniku was eliminated and his votes were distributed to the last three remaining candidates, Mr Yagama, Mr Kuli and Mr Yama. From there, counting official Miss Jarret Morris took the tray for Mr Yagama's box and sorted out the second preference votes. He saw her picked up five ballot-papers for Mr Kuli and took them to Mr Kuli's tray and placed them in it. When she did that, scrutineers shouted at her to leave them alone. She looked scared. The scrutineers' threats and intimidation continued throughout elimination no 38. They threatened them not to re-check the ballot-papers and to leave them alone. They uttered abusive words such as "Yupela kaikai kan and fucking assholes." When all these were happening, Mr Biko did not intervene and control the scrutineers.

14. Miss Morris confirmed the evidence of Mr Boli. She said that she was a counting official and at the start of the counting, there were minor disruptions. The major disruption was when ballot-box no 106055 from Usino LLG was to be counted. The scrutineers for Mr Yagama, Mr Yama and Mr James Tadius Yapoi objected to its admission and it was set aside. They threatened and intimidated the counting officials including her. They swore at them saying "yupela kaikai kan" and "assholes." Because of these threats and intimidation, Mr Biko was forced to set aside ballot-box no 106055.

15. She further said that Mr Karagabo removed ballot-papers from tray no 14 for Mr Kuli and placed them in the exhausted tray. She also saw a lot of ballot-papers being placed on tray no 50 for Mr Yagama. She did not do anything because she was scared. She was scared because the scrutineers repeatedly swore at her and other counting officials saying "yupela kaikai kan", "assholes" and "yuplea kaikai kan na noken rausim ol pepa long ol box. Mipela save lon pes bilong yupela."

16. Another counting official Miss Mori further confirmed the evidence of Mr Boli and Miss Morris that first counting proceeded smoothly until count no 27 when ballot-box no 106055 was to be counted. There were heated exchanges between the scrutineers in relation to its admission for counting. Secondly, scrutineers threatened and intimidated them at the counting centre. She added that during the elimination counts, she noticed that some ballot-papers were placed in wrong boxes. Ballot-papers for Mr Kuli were placed in box no 17 for Mr George Wan and exhausted ballot-papers were placed in Mr Yama, Mr Yagama and Mr Yapoi's boxes. When she got some of these misallocated ballot papers to put them in the right trays, the scrutineers shouted at her to leave them alone. They told her that those counting officials who meddle up the counting would be arrested by the police.

17. Finally, she said that when Mr Kuli's ballot papers were called, too often the scrutineers would object saying "enough of calling that number 14." When Mr Kuli's scrutineers raised objections or queries, they were shouted at or told to shut up. The scrutineers also accused Mr Kuli's scrutineers of sorcery and bribery.

18. Apart from confirming that scrutineers for disputed ballot-box no 106055, another counting official Anne Parker also confirmed the evidence of Mr Boli, Miss Morris and Miss Mori that during the elimination process, the scrutineers threatened and intimidated the counting officials by verbally abusing them. They were rowdy and called the counting officials to speed up the counting and not to go through the trays of each candidate to confirm if the ballot-papers were put in right trays for the candidates.

19. She was scared. She also said that Mr Biko lost control of the counting process because he did not intervene and stop the scrutineers. A scrutineer for Mr Yama came and stood behind her and not in the area designated for scrutineers. She does not know his name but would recognise his face. A police woman by the name of Constable Magdalene Bess from Usino Police Station told the scrutineer to move away but he refused.

20. She also said that there was foul play by certain counting officials during the 37th elimination count. She saw many exhausted ballot-papers placed in Mr Yagama's tray. She was about one and a half metre away from Mr Yagama's tray. The distributions of the ballot-papers were done by Mr Karagabo and Mr Vitus Kianunga. She raised the matter with a fellow female counting official Magdalene who was sitting close to her. She walked over to Mr Yagama's tray to remove the exhausted ballot-papers and some of the scrutineers swore at her and told her to leave the papers in the tray and not to take them out.

21. As soon as elimination no 37 was completed, fellow counting officials Miss Morris and Miss Joyce Yuka approached her and told her that they saw ballot-papers placed in wrong trays. Miss Yuka told her that she was in charge of the exhausted tray and saw many exhausted ballot-papers placed in it. These ballot-papers were for Mr Kuli and at that time, Mr Kuli was running third. Because of the foul play, his ballot-papers were placed in the exhausted tray. Miss Yuka further told her that she removed a few of the ballot-papers for Mr Kuli and placed them in Mr Kuli's tray. She could not thoroughly check the exhausted tray because she was threatened by the scrutineers.

22. Miss Morris told her that while she was at tray no 34 belonging to Mr Yama, she saw a lot of exhausted ballot-papers and ballot-papers for Mr Kuli placed into Mr Yama's tray. She did nothing because she was scared of the scrutineers for Mr Yama and Mr Yagama as they threatened her by telling that they were will harm her if she and other counting officials do not do their work well.

23. Miss Joyce Yuka confirmed the evidence of Miss Parker that scrutineers threatened counting officials during the counting. She said during the elimination of candidate Samson Kaniku, she was sitting at the exhausted tray with fellow counting official Rimoru John. There were more than 2,000 exhausted ballot-papers and she did not check all of them because they were going through the counting very fast. She did not protest because the Assistant Returning Officer Mr Joe Yama and Mr Kianunga told them not to ask any questions. Some ballot-papers were wrongly placed in the trays of candidates especially for Mr Kuli, Mr Yama and Mr Yagama and were needed to be placed in the correct trays. She removed a few and placed them in Mr Kuli's tray. She did not remove all of them because the counting was progressing very fast. Further, when she checked them, the scrutineers verbally abused her and threatened her.

24. Tony Nelson was also a counting official for Usino-Bundi Open electorate and was present at Walium counting centre. At elimination no 37 when candidate Mr Yapoi was eliminated, the scrutineers for Mr Yama, Mr Yagama and Mr Yapoi threatened the counting officials and scrutineers for Mr Kuli namely Mr Boli and Bit Nemki and late Johnny Peng. They said that "yuplea tingting gut. Mipela save long pes blo yupela. Sapos candidate blo mipela ino win, bai mipela nekim yupela." Some of the scrutineers went around touching female counting officials on their backs. These counting officials were Miss Mori and Yano Dorea.

25. At the end of elimination no 38, he saw one of Mr Yama's scrutineers verbally abusing a counting official and threatened to hurt him with a piece of timber as this scrutineer tried to force open the gate to get into the counting room. Mr Nelson also said that he was stationed as the final check out officer overseeing the exhausted ballot-papers tray during the elimination process. He saw Mr Kuli's formal votes put in the exhausted tray and he retrieved them and placed them in Mr Kuli's tray. He did not remove all of them because he was verbally abused and threatened by the scrutineers and police did not stop them.

26. During elimination no 37, Vincent Awin who was rechecking Mr Yagama's box went for a break and asked him to relieve him. When he was relieving Mr Awin, he found 15 ballot-papers for Mr Kuli in Mr Yama's tray. When he tried to correct what he thought was an oversight, Mr Karagabo stopped him. Mr Karagabo told him not to recheck the ballot-papers and to continue counting because it would delay the elimination process. He informed Mr Biko but he did nothing.

27. Kelly Winghom confirmed the evidence of the witnesses before him. Again, apart from confirming that scrutineers of other candidates disputed ballot-box no 106055, he said that one irregularity during the counting was at elimination no 38, the elimination of Mr Samson Kaniku. He picked up 10 ballot-papers for Mr Kuli in the exhausted tray and passed them to Ms Yuka and Mr Nelson to put in Mr Kuli's tray. He said that it could not be an oversight or mistake because 10 ballot-papers were too many. He said that the ballot-papers were deliberately placed in the exhausted tray to starve Mr Kuli of votes.

28. The last witness Joe Pugma is a scrutineer of Mr Kuli. He said he stood 5 to 6 metres outside the counting area and saw clearly the counting proceedings in the counting room because it was an open space. He also heard the names or box numbers of candidates called out. At the elimination rounds, he saw Stanley Balsa, Mr Karagabo, Henry Lamanu and Andrew Hiahombo picked up bundles of eliminated candidates ballot -papers on the centre table and placed them in a candidate's tray. He did not see counting officials cross check the ballot-papers before they were placed in the tray. The scrutineers also did not verify them. As it was elimination rounds, there was no quality check done.

29. The Electoral Commission called two witnesses. The first one is the Returning Officer Mr Biko. He is a very experienced Returning Officer because he has served in that capacity in many past elections. Apart from confirming that the scrutineers for the candidates disputed ballot-box no 106055 to be admitted to scrutiny, was admitted to scrutiny and ballot-papers were counted and votes not tallied, he said that there was no improper counting of ballot-boxes during the counting of primary votes up until count 26 when the dispute in relation to ballot-box no 106055 rose. He further said that in the discharge of his powers, functions and responsibilities, he always maintained a firm, decisive and neutral position in the name of transparency during the pre-election period to the counting of votes and eventual declaration of Mr Yagama as member-elect for Usino-Bundi Open electorate.

30. He also said that the only time there were threats of physical violence and harm was when he tried to explain the procedures and processes in relation to counting and objection to ballot-boxes. He set aside the votes from ballot-box no 106055 from being tallied because he there was a short fall of 62 ballot-papers and his decision to set aside the votes were based on a collective decision after consultation with the scrutineers of the candidates as reflected in the agreement between him and the scrutineers of the candidates. He produced a copy of the Tally Sheet (Form 66A), copy of the letter from the Electoral Commissioner to him to count ballot-box no 106055 and copy of the agreement.

31. The second witness is the Assistant Returning Officer Mr Joe Yama who appeared pursuant to a summons. He is not related to Mr Peter Yama. He gave evidence among others that the candidates' tray were thoroughly checked during the counting process. Elimination no 37 was a crucial time as counting was ending and the atmosphere was tense. People were anxious to know the winner and the pressure was on the counting officials. The counting proceeded very fast and there were several times ballot-papers were placed in wrong trays. Counting officials reported that ballot-papers were in wrong trays. He also said that policemen were present in and outside the counting centre. They were armed and because of their presence, no major interruption or disturbances occurred during the counting. No scrutineers were arrested by the police for misbehaving.

32. Mr Yagama gave evidence that he was present at the vicinity of the counting centre at Walium. He was elected as member for Usino-Bundi Open electorate at the end of the counting at Walium. He said that the counting centre is surrounded by a high fence and counting took place inside the fenced area. In it were counting officials, scrutineers, polling officials, returning officers and a couple of policemen. The counting of primary votes and elimination of process proceeded smoothly except for two incidents.

33. One was when ballot-box no 106055 was disputed. His scrutineers John Nezungu and Justin Mende reported to him at his house one evening that the scrutineers disputed the admission of ballot box-no 106055 because the inner tag on the box was different to the one that the scrutineers had. He told them to object to the box. He further said that this box was tampered with and the scrutineers agreed that it be set aside and the dispute took three days to resolve. The Electoral Commission's instructions on tampered ballot-boxes are very clear. The returning officer has the authority to set aside especially when the inner tag has been changed.

34. He talked to Mr Biko on the second day of the dispute through the fence regarding the dispute and Mr Biko showed him a piece of paper which contained instructions from the Electoral Commission on the conduct of elections and what to do in such a case as this. The instruction is that the Returning Officer has the authority to set aside tampered ballot-boxes. Mr Biko did not exercise this authority. Instead he directed the scrutineers to write to the Electoral Commissioner outlining their grievances which they did. The grounds were double voting and change of polling officer but did not include the most important ground, the inner tag difference. As a result, the Electoral Commissioner stated that the reasons given for objecting to the ballot-box was not sufficient and directed that it be counted. It was admitted and the ballot-papers were counted. After that, the counted votes were not added to the tally of each candidate because there was a short fall of 62 ballot-papers.

35. The second incident was a fight at the counting centre instigated by Mr Yama. It was outside the fence and did not disrupt the counting or counting officials. Many of his supporters suffered physical injuries from knives and sticks from the hands of Mr Yama's sons and supporters.

36. Mr Yagama also called three witnesses. One is Dominic Angia one of his scrutineers who said among others that one of the ground rules is that counting officials must rotate every time a ballot-box is opened. At three different occasions the supporters of Mr Kuli in the counting room did not move from Mr Kuli's tray. At that point, the scrutineers and counting officials got angry and shouted at Mr Kuli's scrutineers to move away and rotate in accordance with the ground rules. There were quality checks done to check that all the ballot-papers in the candidate's ballot-boxes were correct. There were few mistakes made and were corrected. The ballot-papers were returned to the correct ballot-boxes. The quality checks were done to all the candidates including Mr Kuli.

37. Mr Kuli's brother Fred Maliupa went into the counting area when there were already two scrutineers for Mr Kuli and this was in breach of the ground rules. He went and saw a counting official named Peter Poga and both of them walked away two metres inside the counting area and he gave some money to Mr Poga. When he saw this, he and the other scrutineers told them that they were not happy with them and asked Mr Biko to remove them from the counting area. He said that he does not know if Mr Yagama bribed or intimidated scrutineers or supporters of Mr Kuli and the counting process were conducted fairly well by Mr Biko and his staff.

38. The second witness is John Kituai. He confirmed the evidence of Mr Angia that scrutineers put in place ground rules for the counting of votes, Mr Maliupa walking into the counting area, pulling Mr Poga aside and giving him some money to him. When he saw this, he and the other scrutineers told them that they were not happy with them and asked Mr Biko to remove them from the counting area. He also said that he does not know if Mr Yagama bribed or intimidating scrutineers or supporters of Mr Kuli and the counting process were conducted fairly well by Mr Biko and his staff.

39. The last witness is John Nezungu. He is the other scrutineer for Mr Yagama. Apart from confirming the dispute in relation to the admission of ballot-box 106055 and a fight between the supporter of Yama and Mr Yagama on 26th July 2012, he said that all the counting officials, polling officers and scrutineers of candidates were in the counting area and observed each other during the counting. The counting officials did not do anything because of quality checks. The polling officers distributed "live ballot-papers" to all the candidates' trays and at the same time they put away the exhausted ballot papers into one box. Once this is completed, the second round check was carried out by the counting officials. As a result, there was no way a candidate could get another candidate's votes and also exhausted votes to inflate his or her number of votes. He also said that there were few disturbances caused by supporters of Mr Kuli and Mr Yama in and around the counting area.

Petitioner's Submissions

40. Counsel for each party has filed thoroughly researched written submissions following the close of evidence and I thank each counsel for his invaluable assistance. Each counsel also spoke to the submission and I have considered them. I have tried as best as I could to capture the essence of each counsel submissions in this decision.

41. Recapping Mr Kuli's counsel submissions, he submitted that s. 153A of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") is clear. It states that where an objection is made against a ballot-box to be admitted to scrutiny and the Returning Officer refuses the objection and admits the ballot-box to scrutiny, his decision is final and must be complied with. In this case, Mr Biko brought the objection to ballot-box no 106055 to scrutiny to the attention of the Electoral Commission and the Electoral Commission directed that it be admitted to scrutiny. He admitted it to scrutiny and has no discretion to reverse it. When he refused to add the counted votes to the tally of each candidate pursuant to the agreement between him and the scrutineers of 32 candidates, he acted in excess of his powers and contrary to s. 153A of the Organic Law on Elections.

42. Counsel conceded that there was a short fall in the number of ballot papers in ballot- box no 106055. It was by 62 votes. But he submitted that the evidence of Mr Aimai and Mr Kanume are relevant as these witnesses gave evidence in relation to no improper polling at polling no 172 where ballot-box no 106055 originated. As there is no evidence to the contrary, their evidence stand unchallenged and the Court must find that there was no improper polling and therefore there is no basis to assert that ballot-box no 106055 was tampered with.

43. As to the ground on threats and intimidation of counting officials and misallocation of ballot-papers, counsel submitted that there is overwhelming evidence proving this ground. Counsel submitted that in terms of the credibility of the witnesses for Mr Kuli, they should be believed and the Court should accept their evidence as opposed to the witnesses for the Electoral Commission and Mr Yagama. Their evidence is clear and uncompromising. They were fort-right in their answers in cross-examination and maintained the position that they were threatened and intimidated by the scrutineers of other candidates when they were counting the votes. As a result, they were afraid and did not correct the errors in the misallocation of ballot-papers.

44. The Court should also find that Mr Biko lost control of the counting and ballot papers were wrongly placed in trays of candidates. As a result, Mr Kuli did not secure the correct number of votes. These errors and omissions are significant and affect the result of the election. For these reasons, the Court has power under s. 218 of the Organic Law on Elections to order a recount of votes. In addition, counsel submitted that apart from Mr Biko's evidence being vague and general, the Court should not give too much weight to it because Mr Biko was not the person who sorted out and distributed the ballot-papers. As such, he could not be in a position to confirm with certainty the absence of foul play during counting.

45. Any suggestion that the witnesses' evidence were contradictory and unreliable should be dismissed because each witness gave an account of what he or she saw and heard during the counting. When their evidence is considered in totality, they are unequivocal and specific. There is therefore no reason to disbelieve them. Further, any suggestion that those witnesses who were counting official at that time may be biased towards the Electoral Commission and Mr Yagama because they are from Usino where Mr Kuli comes from should not discredit their evidence. Counsel submitted that these witnesses they are electoral officials and were performing their duties and functions independently from Mr Kuli. Finally, he objected to paragraphs 8, 9, 10, 12, 13, 14, 15, 16 and 18 of Mr Yagama's affidavit (exhibit "R2") on the grounds that they are either hearsay or opinion and inadmissible.

Respondents' Submissions

46. Recapping submissions of the Electoral Commission and Mr Yagama, they submitted that the Returning Officer has discretion under s. 153A and was also bound by the agreement to refuse to tally the counted votes to the tally of each candidate including Mr Kuli. The reason to refuse them is justified because the number of counted ballot-papers did not balance with the total issued ballot-papers. This established that the integrity of the votes in the ballot-box was compromised. Where the integrity of the box is compromised, the integrity of the votes in it is also compromised. This affects the validity of the votes and the Returning Officer acted lawfully to refuse to add the votes to the tally of each candidate.

47. They relied on Application by Ben Semri (2003) SC723 and submitted that the Returning Officer's discretion to refuse to admit a ballot-box to scrutiny remains right through-out the counting process, that is, from the initial decision to admit the ballot-box to scrutiny to the tallying of votes. The reason is that it would be wrong to tally the votes if some ballot-papers are missing from the ballot-box as is the case under consideration. For these reasons, this ground be dismissed.

48. In addition, counsel submitted that the evidence of Mr Aimai and Mr Kanume are irrelevant because the grounds of the petition do not alleged improper polling and tampering of ballot-box. Their evidence should be disregarded. As to the other witnesses, counsel submitted that their evidence is contradictory. For example, Mr Kandi said that during quality check, he saw ballot-papers for Mr Yama, Mr Richard Kini, Mr Yapoi and other candidates in Mr Yagama's tray. He confirmed this in cross-examination and this evidence is contrary to other witnesses who said that the quality check was thoroughly done before the counting officials proceeded to elimination round. The other is Miss Mori. She said that the reason for disputing ballot-box no 106055 was double voting and the counting was day and night. None of the other witnesses gave these evidence.

49. Miss Parker said that the scrutineers disputed ballot-box no 106055 because it was tampered with but in cross-examination, she said the inner tag number was different from the number the scrutineers had. Miss Yuka said that she did not know the reason why the votes from ballot-box no 106055 were not tallied but in cross-examination, she was aware of the reasons because she produced copy of the same latter from the Electoral Commission setting out the reasons. Mr Winghom said that the scrutineers unnecessarily disputed ballot-box no 106055 but in cross-examination, he said that the inner tag number was different from the number the scrutineer had. The contradictions raise serious doubts in relation to the credibility of their evidence and for this reason their evidence should not be accepted.

50. They also submitted and emphasised that these witnesses failed to report the threats and intimidation by scrutineers to the police and Mr Biko. They also failed to report the incidents of misallocation of ballot-papers to Mr Biko. These raised serious doubts as to the credibility of their evidence and this Court should not believe them. As for Mr Pugma, his evidence is unreliable because he was not inside the counting room to clearly see the counting and placing of ballot-papers in the tray to be certain that ballot-papers were placed in wrong trays of candidates. Also, none of the counting officials corroborated his evidence.

51. Further, they submitted that except for identifying about 25 ballot-papers that were placed in wrong trays of candidates, these witnesses' evidence are vague and unclear in relation to the exact number of ballot-papers. In any case, if ballot-papers were misallocated, it was a mistake and is not sufficient to constitute an error and omission. When the counting officials corrected the mistakes, they were merely performing their duty. Furthermore, they submitted that these witnesses should not be believed because they are from Usino and because Mr Kuli is from Usino, they are biased. Finally, they objected to the admissibility of paragraphs 18, 19 and 20 of the affidavit of Ms Parker (exhibit "P8") on the ground that they are hearsay and ought to be struck out.

Failure to tally votes after admitted to scrutiny

52. I address first the ground in relation to the failure by the Returning Officer to add the counted votes to the tallies of each candidate including Mr Kuli. This ground raises the issue of lawfulness of the decision of the returning officer in refusing to add the counted votes to the tallies of candidates who scored votes including Mr Kuli and whether it constituted an error or omission. Part XIV of the Organic Law on Elections provides for the procedure for scrutiny of ballot-papers. There shall be a counting centre and scrutiny at the counting centre shall be conducted by a Returning Officer or in his absence, an Assistant Returning Officer. A candidate may appoint one or more scrutineers to represent him at the scrutiny, may be present at the proceeding at the scrutiny and the scrutiny may be adjourned from time to time until the counting of votes is completed: Those are set out in ss. 147-151.

53. As to the duties of the Returning Officer in relation to objection to a ballot-box to scrutiny, in Paias Wingti -v- Kala Rawali & Electoral Commission (2008) N3286, the Court held among others that first if a scrutineer, candidate or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny. Secondly, the Returning Officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of s. 153A and the reasons for forming that opinion. Thirdly, the Returning Officer is responsible for conducting the scrutiny (ie counting of votes) at a counting centre and must maintain peace and good order in the counting centre and ensure adequate control and security of the ballot-papers so as to preserve the integrity of the scrutiny and produce a reliable result.

54. The pertinent provision is s. 153A and it states:

"153A. Excluding ballot-box from scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: -

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition." (Emphasis added).

55 The respective parties' submissions are very compelling but I tend to agree with Mr Kuli's submissions. The law in s. 154 is that after polling, all ballot-boxes are to be admitted to scrutiny. But the law in s. 153A also states that the Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that the ballot-papers in it were not lawfully casted or the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised. In my view given that sub-section (1) of s. 153A is subject to the whole section, it gives the Returning Officer discretion to refuse to admit a ballot-box to scrutiny at any time during the counting. This means that he may reject a ballot-box at the time it is opened or at the time votes are counted, or at the time the votes are tallied. In such a case, he exercises this discretion on his own volition.

56. Let me give an example, if a ballot-box is opened and ballot-papers are counted without any objection by the scrutineers and when the votes are counted and the results are about to be tallied, it is discovered that there is a short fall in the total number of issued ballot-papers, the Returning Officer has discretion to set aside the votes in that ballot-box and he may ultimately refuse to tally the votes.

57. Where an objection is raised to the admission of a ballot-box to scrutiny, sub-section (2) comes into play. As the Court held in Paias Wingti's case (supra) first if a scrutineer, candidate or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny. Secondly, the Returning Officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of s. 153A and the reasons for forming that opinion. In such a case, a party makes an application to him in a form of an objection to exercise his discretion against the admission of the ballot-box. He must make a decision on the objection and it must be relative to the grounds of the objection as prescribed in sub-section (1). The decision has to be either, admit or refuse to admit the ballot-box to scrutiny.

58. Given that sub-section (4) states that a decision of a Returning Officer "under this section" and not "under sub-section (2)" is not open to challenge other than by way of petition, I am of the opinion that it refers to a decision of the Returning Officer under sub-section (1) and also a decision of the Returning Officer on the objection under Sub-section (2). Whatever the decision, it is final. It cannot be revisited or reversed. The proper place to revisit or ask for it to be reversed is the National Court by way of a petition. The reason is obvious. The counting must not be unnecessarily interrupted. It must proceed so that a result is announced without delay.

59. In this case, the scrutineers objected to ballot-box no 106055. The reasons for objection varied. Some of Mr Kuli's witnesses said it was because it was tampered with because of sorcery and bribery and the Electoral Commission and Mr Yagama and their witnesses said it was because of the inner seal number of the box being not correctly verified by the scrutineer for Mr Kuli. The Returning Officer Mr Biko received the objection in writing and consulted the Electoral Commissioner. The latter directed that it be admitted to scrutiny because among other reasons, said that the absence or inability of the scrutineer to verify the number of the inner seal was not a sufficient reason to refuse the ballot-box to scrutiny.

60. Following this, Mr Biko admitted the ballot-box and the ballot-papers were counted. To me, he exercised his discretion under sub-section (2) of s. 153A. He made a decision to count the ballot-box and it is final. He has no discretion to revisit or reverse it. From the count, Mr Kuli scored 726 votes but out of the total number of issued ballot-papers, there was a short fall of 26 ballot-papers which were unaccounted. Mr Biko then with the agreement of the scrutineers of candidates set aside the counted votes and did not add them to the tallies of the candidates including Mr Kuli who scored votes from this box. When he did that, he fell into error. I find his decision is unlawful and constituted an error or omission. What he should have done is that once he had decided to admit the ballot-box to scrutiny, he should have allowed the counted votes to be tallied. If there were any issues such as short fall in ballot-papers, it will be for the aggrieved candidate to raise it in a petition to the Court. I uphold this ground.

Errors and omissions at counting and threats and intimidation of counting officials

61. As to the ground in relation to threats and intimidation of counting officials and failure to properly count votes, the relevant provision is s. 154. It states:

"154. Scrutiny of ordinary votes in elections.

(1) In an election the scrutiny shall, subject to the provisions of Divisions 3 and 4 and Regulations 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 and 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 unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and

(c) count the first preference votes given for each candidate on all unrejected 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 number of first preference votes given for each candidate, and the number of informal ballot-papers; and

(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 first preference 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).

(3) The Regulations may provide for the counting of votes to be done electronically following the opening of the ballot-boxes and after rejecting informal ballot-papers and ballot-boxes not admitted to scrutiny."

62. This provision sets out the process of scrutiny of votes. The Court must be satisfied that the Electoral Commission failed to comply with this process. It must be established that ballot-papers were placed in wrong trays of candidates.

63. First, I uphold the objection by the Electoral Commission and Mr Yagama that paragraphs 18, 19 and 20 of Miss Parker's affidavit (exhibit "P8") are hearsay and inadmissible because she is not the person who saw the ballot-papers for Mr Kuli placed in the exhausted tray. They are struck out. Other than these, much of her evidence is intact. At elimination no 37, she saw many exhausted ballot-papers placed in Mr Yagama's tray. She was about one and a half metre away from Mr Yagama's tray. The distributions of the ballot-papers were done by Mr Karagabo and Mr Vitus Kianunga. She raised the matter with a fellow female counting official Magdalene who was sitting close to her. She walked over to Mr Yagama's tray to remove the exhausted ballot-papers and some of the scrutineers swore at her and told her to leave the papers in the tray and not to take them out.

64. Her evidence is further confirmed by Mr Boli, Miss Morris, Miss Mori, Mr Kandi, Mr Nelson and Miss Yuka. I accept Mr Kuli's counsel submission that considering their evidence in totality, these witnesses gave evidence of specific incidents of threats and intimidation against them. Most of the threats and intimidation were verbal abuse. The scrutineers used very strong foul language. They were also death threats and threats of violence. These verbal threats were repeatedly made throughout elimination no 37 and elimination no 38. There is also evidence that there were many scrutineers at the counting room. But it is unclear from the evidence as to the exact number. Nonetheless, their presence support Mr Kuli's claim that they threatened and intimidated the counting officers. Put simply, it was a hostile environment. The counting officials could not do much to correct the misallocation of ballot-papers. In my view anyone in these counting officials' position will certainly feel intimidated by the large number of scrutineers and verbal threats.

65. Demeanour wise, from my observation of each witness when they gave evidence, they impressed me. Their evidence is clear and uncompromising. They were fort-right and firm in their answers in cross-examination. They maintained the position that they were threatened and intimidated by the scrutineers of other candidates when they were counting the votes. They saw ballot-papers in wrong trays of candidates and when they tried to remove them and place them in the correct trays, they were verbally abused. They were even told not to remove the ballot-papers by Mr Karagabo and Mr Kianunga. They saw Mr Kuli's ballot-papers in Mr Yama's tray and exhausted tray. They identified Mr Karagabo and Mr Kianunga as the perpetrators.

66. The inconsistencies in their evidence which have been pointed out by opposing counsel are either minor and insignificant or misconceived. While Mr Kandi said that during quality check, he saw ballot-papers for Mr Yama, Mr Kini, Mr Yapoi and other candidates in Mr Yagama's tray, it is undeniable that a quality check is not done at elimination round. The other witnesses said that the quality check was thoroughly done before the counting officials proceeded to elimination round. The misallocation of ballot-papers were encountered during elimination no 37 and elimination no 38. As for Miss Mori, whether double voting was the reason for the dispute over ballot-box no 106055 or the incorrect verification of the inner tag number means the same thing. The ballot-box may have been tampered with. As to the submission that counting was conducted day and night, this submission is misconceived. It is commonsense that counting officials do not work day and night. Other witnesses testified that there were only two times counting officials worked until late in the night and this explains the witnesses' evidence that counting was conducted day and night.

67. As for Miss Parker, I gave the same reason. There is no inconsistency because the tampering of ballot-box and different inner tag number infer that the ballot-box may have been tampered with. This submission is misconceived and is dismissed. There is also no inconsistency in the evidence of Miss Yuka because at that time, she did not know the reason why the votes from ballot-box no 106055 were not tallied. She came to know the reason after she received the letter from the Electoral Commission. I am also not satisfied that Mr Winghom's evidence is contradictory. For the same reason, he explained that the scrutineers' unnecessary interjections were adequately addressed by the Electoral Commissioner. This submission is misconceived and is dismissed.

68. As for Mr Pugma, there is no law that requires his evidence to be corroborated for it to be believable and reliable. It depends on the assessment of the credibility of the evidence. Mr Pugma in no uncertain terms said that he was outside the counting room and clearly saw the counting and placing of ballot-papers in the trays. He saw ballot- papers placed in wrong trays of candidates. Mr Karagabo and two other counting officials were the officials who placed the ballot-papers in the wrong trays. They did not call out the names of the candidates before putting them in the trays. When asked in cross-examination as to the set up of the counting room, he described it as an open space with a canvass over it, a large table in the centre surrounded by other tables with counting officials seated behind them with candidates' trays. I am satisfied his evidence is credible and reliable. I accept it.

69. As for the Electoral Commission and Mr Yagama, first I uphold the objection by Mr Kuli and strike out paragraphs 8, 9, 10, 12, 13, 14, 15, 16 and 18 of Mr Yagama's affidavit (exhibit "R2") on the grounds that they are either hearsay or opinion but in my view, there is sufficient evidence establishing that the Electoral Commissioner and Mr Biko adequately addressed Mr Yagama's grounds of objection. That said, the evidence of Mr Biko, Mr Yama, Mr Angia, Mr Kituai and Mr Nezungu are vague. They do not refute the evidence of specific incidents of threats and intimidation against Mr Boli, Miss Morris, Miss Mori, Miss Parker and Miss Yuka. Mr Kuli's witnesses also gave evidence that there were presence of policemen and on two occasions, defence force soldiers visited the counting centre. The policemen and soldiers were armed with firearms.

70. Mr Angia, Mr Kituai and Mr Nezungu did not impress me. Mr Nezungu was very vocal when he responded to questions in cross-examination. They were evasive in their answers to straight forward questions and this to me strongly suggests that they do not want to admit the truth. They denied and maintained that scrutineers of other candidates did not threaten or intimidate counting officials and Mr Kuli's scrutineers. They also denied and maintained that no ballot-papers were placed in wrong trays of candidates. They gave me the impression that counting proceeded uninterrupted and there was nothing to be concerned about. They tried to paint a picture that counting was free and fair. No-one was threatened or intimidated and there were no errors during the counting.

71. This is hard to believe, especially in a country like PNG where we hear so many people complain about elections not being free and fair. The recent past election was worse given the number of election petitions registered before the National Court, 105 of them and yet I am told that counting for Usino-Bundi Open electorate was trouble free. Has anyone bothered to stop and ask; why is there a petition before the Court? Has anyone cared to at least give some thought to that fact that there may have been some problems, serious enough to cause an aggrieved candidate to petition the Court?

72. And I think Mr Biko has down played the gravity of the problem. I say this because while I accept that he is an experienced Returning Officer, in his evidence he admitted that there were as usual interjections by the scrutineers of candidates during the counting. His greatest challenge during the counting was when the scrutineers objected to the admission of ballot-box no 106055 and he had to reason out with them and consult the Electoral Commissioner before making a decision. He had to do take those steps to take control of the counting proceedings. Otherwise, what had already become a tense situation would have turned into a war. So despite Mr Biko's conviction that the counting proceeding was trouble free, I remain unconvinced.

73. As to his evidence that the counting proceeded smoothly and there were no cases of misallocation of ballot-papers, I accept Mr Kuli's submission that given that Mr Biko was not the person who sorted out and distributed the ballot-papers at the elimination round, it is unclear and uncertain if he saw the misallocation of ballot-papers.

74. Counsel for the Electoral Commission and Mr Yagama spent a fair bit of time in cross-examination of Mr Kuli's witnesses on the failure by these witnesses to report the threats and intimidation to the police and in submissions strongly submitted that their failure raised doubts in relation to the credibility of their evidence. There is no dispute that there was adequate presence of police at the counting centre and police were armed with firearms and that the counting officials did not report the threats and intimidation to the police. However, in my view the failure to report scrutineers' misbehaviour is not strong enough to persuade me to have doubts in relation to these witnesses' evidence when considering the totality of the evidence before me.

75. In submissions, the Electoral Commission submitted that the allocation of the ballot-papers in trays of wrong candidates were mistakes and such mistakes are not sufficient to constitute errors and omissions because it must be established by Mr Kuli that the counting officials deliberately placed the ballot-papers in the wrong trays. In my view this submission is an admission that counting officials committed errors and omissions during the counting. Whether the ballot-papers were deliberately placed in the wrong trays is not relevant. Similarly, if the petitioner is seeking a recount of the votes, it is not necessary to prove the total number of votes misallocated or affected. What is relevant is the act of placing them in the wrong trays. I dismiss this submission.

76. Further, allegations of foul play in the distribution of ballot-papers have been raised against one of the counting officials Mr Karagabo. A number of Mr Kuli's witnesses in their evidence named him as the main perpetrator. He was identified by Mr Boli, Miss Mori and Miss Parker. The other perpetrator is Mr Kianunga. They were the ones who placed ballot-papers for Mr Kuli in Mr Yagama's tray. Mr Kuli's witnesses' evidence established that these two counting officials placed ballot-papers in Mr Yagama's tray to inflate the number of votes for Mr Yagama. The Electoral Commission has not called these two counting officials to refute the evidence of Mr Kuli's witnesses. In his evidence, Mr Yama did not refute the evidence against Mr Karagabo and Mr Kianunga. In the absence of specific evidence to the contrary, the evidence against them must stand. I also accept that they were the perpetrators of the errors and omissions and because of this, I am not convinced by the Electoral Commission and Mr Yagama's assertion that the counting officials who gave evidence in favour of Mr Kuli were biased.

77. Having considered all the evidence, I am satisfied that the atmosphere at counting of votes at elimination no 37 and elimination no 38 was very tense. The crowd comprising of scrutineers of candidates in the counting room was hostile. They verbally abused the counting officials when the counting officials attempted to retrieve ballot-papers in the wrong trays and place them in the correct trays of candidates. Police did not intervene or stop the scrutineers. As a result, apart from misallocated 25 ballot-papers which have been identified by Mr Kuli's witnesses, an unspecified number of ballot-papers were misallocated during elimination no 37 and elimination no 38. I am satisfied Mr Kuli has established that errors and omissions have been committed by counting officials during counting. I uphold this ground.

Remedy

78. The next issue is the remedy. It is a discretionary matter. The reliefs Mr Kuli seeks are first voiding of the election of Mr Yagama, secondly a recount of votes and thirdly adding of the counted votes from ballot-box no 106055 to the tallies for the candidates including him. Alternatively, he be declared duly elected. However, it is clear from his submissions that the primary relief he seeks is a recount of votes including votes from ballot-box no 106055 and that those votes be added to the tallies of the candidates that scored from the ballot-box.

79. Section 218 states:

"218. Immaterial errors not to vitiate election.

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election."

80. In Ben Semri's case (supra), the Court held that the failure to affix the inner and outer seals of a ballot-box did not necessarily affect the integrity of the ballot-box. It is necessary to determine all other relevant circumstances to make a determination as to whether the integrity of a ballot-box was adversely affected by an error made by the presiding officer or the returning officer. The Supreme Court concluded that because the ballot-box was securely fastened with a padlock and there was no suggestion that the padlock had been removed unlawfully, there was no proper basis for questioning the integrity of the ballot-box. If there is no evidence of any interference with a ballot-box which gives rise to the question of integrity there is no error in counting the ballot-box.

81. I accept the submission of Mr Kuli's counsel that the evidence of Mr Aimai and Pius Kanume are relevant to the question of tampering of ballot-box no 106055. Their evidence is that there was no improper polling at polling place 172 and therefore there was no tampering of ballot-box no 106055. But the difficulty I have is that there is a short fall of 62 ballot-papers in the ballot-box when it was opened and ballot-papers were counted. Counsel for Mr Kuli also conceded that there is a short fall of 62 votes but submitted that there may have been an error in the recording of the figure in the Presiding Officer's Return for ward 18. This submission is unsupported by evidence and is rejected. This means that is no evidence to explain why there is a short fall of 62 votes. In my view this is a significant omission. It affects the Court's exercise of discretion.

82. In the exercise of its powers, under s. 217 this Court must also be guided by the substantial merits and good conscience of each case without regard to legal forms and technicalities. Strictly applying the law in s. 153A, it is abundantly clear Mr Biko was wrong in setting aside the counted votes and not adding them to the tallies of the candidates who scored votes from ballot-box no 106055.

83. Put this to one side and consider if the Court were to grant the relief sought by Mr Kuli and order these votes to be added to the tallies of the candidates who received votes from this ballot-box, 62 votes are still missing. They will not be added to the tallies of the candidates. We do not know which candidate scored from these votes but what we know is that whoever they are, they will miss out. On the other hand, if the Court were to refuse the order, it would not affect the original position taken by Mr Biko. That is, not to add the counted votes to the tallies of the candidates who received vote. In my view the latter proposition seems fair and reasonable in the circumstances.

84. There are two election petitions for Usino-Bundi Open electorate. This one and the other by Mr Yama. In Mr Yama's case, Mr Yama disputed the election of Mr Yagama and relied on a number of grounds, one of which was that the Returning Officer Mr James Apamia who declared Mr Yagama as member was not duly appointed. The Court upheld this ground and guided by the principles of substantial merits and good conscience did not declare void the election of Mr Yagama. Instead, it ordered a recount of votes: Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5222.

85. I will take this approach and so guided by the substantial merits and good conscience in this case, in the exercise of my discretion, I will refuse the order to add the counted votes from ballot-box no 106055 to the tallies of the candidates including Mr Kuli. It should be stated here that the exclusion of these votes from ballot-box no 106055 does not conflict with the order for recount of votes in Mr Yama's case because the admission or otherwise of this ballot-box was neither a ground nor an issue in that case.

86. However, as I am satisfied that Mr Kuli has established part of ground 2.1 (Ground A), grounds 2.3 (Ground C), 2.4 (Ground D), 2.5 (Ground E) and part of ground 2.6 (F) of the petition, I will order an order a recount of ballot-papers excluding votes from ballot-box no 106055. The results of the recount shall be presented to the Court for endorsement on a date, time and venue I will now fix. The consequence of this decision is that Mr Yagama will remain Member until the recount is completed and results are returned to Court for endorsement.

Order

87. The orders are:

1. The petition is upheld.

2. There shall be a recount of ballot-papers for Usino-Bundi Open electorate excluding votes from ballot-box no 106055.

3. The results shall be presented to the Court for endorsement within forty days from the date of this order and this shall be on Friday 23rd August 2013 at 9:30 am at Waigani National Court.

4. Mr Kuli will have the costs of the proceedings to be taxed if not agreed.

5. The security deposit of K5,000.00 shall be refunded.

____________________________________

Diwenis Lawyers, Solicitors & Barristers: Lawyers for Petitioner
Harvey Nii Lawyers: Lawyers for First & Second Respondents
Kuman Lawyers: Lawyers for Third Respondent