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Solo v Mai [2013] PGNC 255; N5562 (4 October 2013)

N5562

PAPA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP No. 16 of 2012 & EP No. 85 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 Sandaun Regional Seat

BETWEEN

SIMON J SOLO
Petitioner

And

AMKAT MAI
First Respondent

And

MARTIN ANSKA, Returning Officer
Second Respondent

and

JACK NAWARIA Assistant Returning Officer
Third Respondent

And

ANDREW TRAWEN, Electoral Commissioner of PNG
Fourth Respondent

And

ELECTORAL COMMISSION OF PNG
Fifth Respondent

&

JOHN TALUH TEKWIE
Petitioner

And

AMKAT MAI, Governor - Elect for Sandaun Province
First Respondent

And

AND SIMON SOLO, Second Runner-up
Second Respondent

And

MR MARTIN ANSKA, Returning Officer
Third Respondent

And

ANDREW TRAWEN, Electoral Commissioner
Fourth Respondent

And

ELECTORAL COMMISSION OF PNG
Fifth Respondent

Vanimo: Batari, J.
2013: 20 – 23 August
17 September
4 October

ELECTIONS - illegal practices - polling - underage voting - candidate - knowledge or authority of - whether illegal practices committed with knowledge or authority of candidate - election result or return - whether affected by illegal voting - whether just that election result or return be declared void.

ELECTIONS - errors and omissions - polling officials - underage voting - multiple voting - whether polling officials committed errors or omissions in allowing underage and multiple voting - election - error of or omissions by electoral officials.

ELECTIONS - scrutiny - counting - ballot boxes - security of - tampering - proof of - whether sufficient evidence of tampering with ballot boxes and ballot.

ELECTIONS - Returning Officers - duty of - neglect of duties - objection to counting - failure to decide on objections - whether error of or omission by electoral officials - whether election result affected.

ELECTIONS - illegal practices - polling - underage voting - voting by persons under 18 years for themselves or in place of others – legality of - whether an illegal practice for the purpose of s 215 of the Organic Law.

Constitution ss 50(1), 50(1)(d), 126(3(4); Organic Law on National & Local Level Government Elections ss 215, 218, 134, 136, 191,153A, 152, 20, 21(3) 20(4), 19 (2), 149 considered and applied.

Facts

The Petitioners brought proceedings to challenge the First Respondent's election on grounds of:

a. Illegal practices and undue influence during polling;

b. Illegal practices, errors and omissions at scrutiny or counting;

c. Tampering with ballot boxes;

d. Errors in neglect of duty by Returning Officer; and

e. Irregular appointment of counting officials.

Held

1. The allegation that Counting Supervisors were irregularly appointed as Assistant Returning Officers is dismissed as the evidence is that they were appointed Counting Supervisors, not Assistant Returning Officers, at [11];
   
2. Underage voting occurred at the two Oksapmin polling places, at [91-92];
   
3. Lemon was used to enable double and even multiple voting at least at the two polling venues by Team 72, at [95];
   
4. Underage voting was widespread and was entertained by the majority of the polling teams, at least four of the polling teams out of six, at [101];
   
5. Underage voting may be deemed an electoral offence under s 191 of the Organic Law, at [114]. It is a specific offence under s 105 of the Criminal Code, at [17] and an illegal practice against s 215 of the Organic Law, at [117-119];
   
6. The failure of the polling officials to enforce the constitutional requirement for voting age and the failure to conduct the polling pursuant to the provisions of ss 134 and 136 of the Organic Law brought about a false election result, at [121];
   
7. The Court should not require the exact number of votes affected to be proven when blatant unconstitutional and illegal practices are shown; it is sufficient to find that the election was a farce and a sham and the total number of votes from the polling affected the result of the election, at [128];
   
8. In the case of a deliberate breach of the Constitution and electoral laws calculated to unduly influence the election result it is just to declare the election void, at [130];
   
9. Section 149 is mandatory, scrutiny must be conducted by the Returning Officer and in his absence by an Assistant Returning Officer, at [148];
   
10. The failure of the Returning Officer to carry out his constitutional duty and the failure of the Electoral Commission to appoint a replacement amounted to there being no legitimate scrutiny of the votes, at [161], consequently there was no election, at [162];
    
11. Election declared absolutely void.
    

Cases cited:
Anton Yagama v Peter Yama & Ors (2013) SC1244
Arnold Marsipal v Michael Pondros [1977] PNGLR 354;
Louis Ambane v Electoral Commission & Ors (1988) SC 559.
Neville Bourne v. Manesseh Voeto [1977] PNGLR 298.

Counsel:

I. Mambei, for the Petitioner in EP16/12
J. Kolo for the Petition in EP 85/12
P. Mawa, for the First Respondent.
A. Kongri/J. Umbu, for Electoral Commission.

1. BATARI, J: In this consolidated hearing, the petitioners are alleging that the First Respondent was elected to the National Parliament through illegal means and errors and omissions on the part of election officials in the 2012 General Elections. These charges are denied by the Respondents. A total of 32 witnesses gave evidence. This is the verdict.
   

BACKGOUND

2. Counting of the West Sepik Regional Seat votes took place at the Vanimo PNGDF base around 4 July, 2012 and ended with the declaration of Amkat Mai, as the duly elected Regional Member for West Sepik Province and Governor-elect for Sandaun Provincial Government on 28 July 2012. He polled 27,784 to beat Simon Solo on 22,975, a difference of 4,809 votes. The Petitioner in EP 85 of 2012, John Tekwie was one of the losing candidates and second runner-up.
   
3. The petitioners say there was no scrutiny by the Returning Officer, Martin Anska. They also allege the integrity of the ballot boxes from Oksapmin was tainted by illegal practices at polling. It is further alleged the ballot boxes were tampered with. The total number of votes from the six Oksapmin ballot boxes was 9,176. The First Respondent collected 6,875 votes.
   
4. The common grounds for invalidating the election result allege: -
   

a. Illegal practices and undue influence during polling;

b. Illegal practices, errors and omissions at scrutiny or counting;

c. Tampering with ballot boxes;

d. Errors in neglect of duty by Returning Officer; and

e. Irregular appointment of counting officials.

5. A total of 31 witnesses were called on these issues. Each witness, except two or three, gave oral evidence in addition to their affidavits.
   

PETITIONERS' CASE

6. The case for the petitioners is that Oksapmin polling by teams 67, 68, 69, 70, 71, 72 were flawed due to underage voting, double and multiple voting. They also contend, (though not necessarily in the alternative), the six ballot boxes had been tampered with as seen in broken seals; ballot papers neatly folded with the butts; ballot papers signed by different persons; and same handwriting on ballot papers. The petitioners also say, Returning Officer Martin Anska failed his electoral duties to attend scrutiny.
   
7. Complaints and objections were not properly dealt with due to absence of Martin Anska from scrutiny and had the six ballot boxes been excluded from scrutiny, the result of the election would have been affected.
   

RESPONDENTS' CASE

8. The respondents deny any perpetration, knowledge or authorising of underage voting, double and multiple voting. The First Respondent was not present at any of the polling places and if there was any illegal practice or error or omission, he was neither aware nor a party to it. On the allegations of ballot box tampering, the respondents dismissed it as mere conjecture, lacking evidence of any substance or form.
   
9. The respondents also contest allegations of irregularities at counting. They say scrutiny was transparent and orderly. No formal or serious objection was raised and minor complaints were appropriately dealt with. On improper appointment of counting officers and neglect of duty by the Returning Officer, there is no evidence on these and the allegations are technically flawed.
   

RULING: Tampering with Ballot Boxes

10. There is no direct evidence that ballot boxes from Oksapmin area were tampered with. However, the petitioners attempted to build a case of tampering from conceded anomalies in the course of scrutiny. I make no specific findings. However, the anomalies are interrelated with the absence of the Returning Officer from scrutiny. I will deal with that in the latter part of this judgment.
    

RULING: Irregular Appointment of Counting Officials.

11. This allegation is dismissed as Greg Tavatuna, Moses Opiba and Tommy Amillawan were not appointed as Assistant Returning Officers. They were appointed as Counting Supervisors. Their appointments by the Returning Officer to perform that role are incontestable under the Organic Law.
    

SCRUTINY: Evidence on Errors and Omissions

1.1 EP 16/12 Witness 1: Valie Simon

12. Petitioner Simon Solo opened his case in an unusual manner by leading evidence on scrutiny of votes first. His first witness Valie Simon spoke of objecting to the count of ballot boxes from Oksapmin due to unavailability of the original Returns Journals. However, Counting Supervisor, Moses Opiba prevailed upon them that supplementary Returns would be used for the count.
    
13. Counting resumed at count 37 for Team 67 ballot box for Tomware, Sumware and Monduban. Valie Simon said the ballot box outer and inner seals were not in sequence and that the ballot papers were neatly folded with the butts and placed in bundles. He also saw the ballot papers had the same handwriting.
    
14. At count 38 for Team 68 ballot box for Wabagen, Kusanap and Gaua, the discrepancies seen in count 37 were again present. Protests against further scrutiny were dismissed by the counting supervisors. Mr Simon also advised his co-scrutineers to reserve for count of other ballot boxes. At count 39, the same anomalies appeared and the scrutineers objected to further scrutiny.
    
15. The witness also said neither the Returning Officer nor the lawyer from the Electoral Commission were present at the Counting Centre to determine the objections. Instead, the counting supervisors prevailed upon scrutineers to complete scrutiny despite the same discrepancies being noted at the remaining counts 40, 41 and 42. In dismissing the complaints and objections, counting officials urged scrutineers to take their complaints to the Court.
    

1.2 EP 16/12 Witness 2: Jeffery Paine

16. Jeffery Paine gave similar evidence with slight variations on specific details. He said counting was suspended at count 39 but the Returning Officer; Martin Anska failed to address the dispute. Scrutiny proceeded the next day after Greg Tavatuna threatened to engage security personnel if scrutineers persisted with complaints and objections. Moses Opiba was similarly vocal against delayed counting. He implied a conflict of interest in suggesting Moses is from Yako village where the First Respondent's wife also comes from.
    
17. This witness, like other witnesses was cross-examined at length on the similarities of his affidavit to that of other witnesses. Both sides in fact adopted that tack to impute conspiracy, prevarication and concoction of witness affidavits. While this strategy may be permissible, the reliability and truth of a version may also depend on such other factors as the witness's consistency with independent evidence, proven or undisputed facts, logic and common sense.
    

1.3 EP 16/12 Witness 3: Tom Yemin

18. This witness's story is consistent with the first two witnesses. He observed counts 37, 38, 39, 40, 41 and 42 during both day and night shifts. In cross-examination, Tom said he could discern the signatures and similarities of handwritings from two metres away.
    

1.4 EP 16/12 Witness 4: Henrick Samei

19. Henrick Samei gave a similar account of discrepancies involving ballot papers from the six ballot boxes in question and scrutiny being conducted in the absence of the Returning Officer. Counting supervisors heard their complaints and objections but dissuaded them against delay of counting.
    

1.5 EP 16/12 Witness 5: Lilly Kati

20. Lilly was a counting official. Her role as a sorter was to empty the ballot papers onto the table and sort them out to each candidate's trays.
    
21. Her story is that scrutineers initially objected to scrutiny of Oksapmin ballot boxes without the original returns but Moses Opiba advised that they would use the supplementary returns. She also documented the irregularities surrounding counts 37 to 42 which are surmised as follows:
    
    • Ballot papers were neatly folded with butts and placed in a bundle in the ballot box. The butts were removed at counting.
    • Ballot papers had same handwriting on candidate preferences.
    • Outer seals to Team 67 ballot box were not in order or sequence.
    • Ballot papers from Team 69 ballot box had 3 different signatures.
      
22. She also supported the petitioners' on the absence of the Returning Officer from scrutiny. She said Moses Opiba would dismiss complaints raised by insisting on completing scrutiny before the return of the writ. Lilly further implied a conflict of interest in Assistant Returning Officer in her evidence that Jack Nawaria is a fellow villager of the First Respondent and they are related. She conceded being present only at counts 39 and 40 and that her knowledge of similar discrepancies in the other ballot boxes came from information given to her by two fellow-sorters, a Kevin Wek and a Paster Pekei Kone.
    
23. I consider this witness to be honest and reliable though assumptive on hearsay evidence. Her evidence inclusive of hearsay is improved by its consistency with evidence from others including the respondents' witnesses.
    

1.6 EP 16/12 Witness 6: Paul Mambei

24. Mr. Mambei was a candidate for the West Sepik Regional Seat. His evidence on events at the Counting Centre is largely from his information. He also spoke of the Returning Officer not being easily available and accessible.
    
25. After Count 39 he drafted a complaint letter to the Electoral Commission alleging lack of performance by Martin Anska and requested his replacement. The letter also alleged tampering with ballot boxes.
    

POLLING: Evidence on Illegal Practices

1.7 EP 16/12 Witness 7: Harry Wai

26. Harry Wai is a Reserve Constable based at Vanimo Police Station. He was engaged in the National Elections as security personnel. Upon arrival at Oksapmin on 28 June, 2012, he learned polling had started five days earlier. The next day, he accompanied other policemen to observe polling at Batianap.
    
27. Harry said when names were called, older persons escorted children to polling officials who would mark their fingers. They were then led to the polling booth with ballot papers held by their escorts. The children would then leave while the escort folded and placed the ballot papers in the ballot boxes. Police intervened but those present countered, that underage voting has been allowed in other places and it was late for police to now stop them.
    

1.8 EP 16/12 Witness 8: Nims Nimol

28. Nims Nimol was the campaign manager for Simon Solo. He comes from Waulap Village, in Oksapmin. His duties covered the Oksapmin polling areas.
    
29. He witnessed polling by Team 71 at Waulap, Batianap and Kaiva Villages under Jack Yimay and his assistant, Timothy Sel. Many school children caste their votes assisted by Timothy Sel, the then Headmaster of Mitianap Primary School, a fellow-villager and relative of the First Respondent. In response to complaints against child voting, the Presiding Officer said they could do nothing as it has been allowed from the start.
    
30. In his affidavit, Nims Nimo asserted that Timothy Sel filled out ballot papers for the children and others. He named 37 children and their ages as voting three times each but the exact number possibly exceeded 100. Nimo said a lot of men from the villages were away working and residing at Tabubil and that accounted for the greater number of child voting and repeated voting. He could not stand such irregular voting by supporters of the First Respondent so, he instructed supporters of his candidate, Simon Solo to do likewise.
    
31. The witness also observed polling by Team 70 at Raminap for the villages of Divanap, Kusanap, Ranimap and Tomianap - Amkat Mai's area. He saw the same pattern of underage voting, double and multiple voting. Older persons led children to cast their votes and filled out ballot papers for them. He also observed those who had voted, using lemon to remove voter ink marks.
    
32. The next day, Team 70 polled at Kusanap Village. He again saw the same voting irregularities. Police personnel were then present unlike previous polling by Team 71 at Mitianap and Team 70 at Raminap. Despite police presence, Assistant Presiding Officer, Jerry Bitop assisted children to vote. He named nine of them. He also named the Presiding Officer as Billson Bisel.
    
33. The veracity of Nims Nimols evidence has not been seriously challenged in cross-examination. His evidence has support from other independent sources namely, the police, the photographs, other witnesses and the respondents' witnesses Billson Bisen and Jack Yimay. I find him to be reliable and convincing over the respondents' witnesses for the foregoing reasons.
    

1.9 EP 16/12 Witness 9: Walter Keino

34. Constable Walter Keino gave evidence of his observation of polling by Team 72. He saw voters using lemon to remove voter ink-marks to vote again. Police detained one of the suspects but released him again with a caution. He was amazed to see children voting and when Senior Constable Mimba intervened, the crowd protested that children have been allowed to vote in other polling places. The children he saw were around 7-8 year olds.
    

1.10 EP 16/12 Witness 10: Danny Mimba

35. Senior Const. Danny Mimba has been with the Police Force for 32 years. He is in-charge of Warrants and Summons at Vanimo Police Station.
    
36. In 2012 General Elections, he was deployed as Commanding Officer to oversee police security at Oksapmin polling. When polling commenced at Oksapmin station on 2 July, 2012, he noticed voters using lemon to remove voter-ink marks to vote again. So, police intervened to remove the fruits from some of them. He also appealed to the public to refrain from double voting. S/Const. Mimba again cautioned against children lining up to vote and voting. The crowd however, retorted angrily that police cannot stop them now as this has occurred in other polling places. S/Const. Mimba decided to do nothing but, instructed his policemen to take photographs, instead.
    
37. I pause here to make this observation. I accept the evidence that police intervened to stop underage and double voting but their attempts were frustrated by the crowd. Police also spoke of their reluctance to make any arrest due to manpower and logistics constraints. I think that is a reasonable explanation. Elections can become highly emotionally charged and unpredictable. Voters may even take control and dictate voting at polling venues. Any interference with their strategy can cause unwanted results. Hence, tactically, the best option is for police to do nothing. However, this should not prevent subsequent arrests in order to uphold the supremacy of the rule of law.
    

1.11 EP 16/12 Witness 11: Simon Solo

38. Simon Solo is the Petitioner in EP 16 of 2012. When told of alleged tampering with ballot boxes, he and other candidates wrote a protest note to the Electoral Commission. He also spoke of candidates meeting with the Provincial Election Steering Committee Chairman, Henry Norm following disclosure of photographic evidence of underage voting. A letter was purportedly sent to the Electoral Commissioner on 27 July 2012. In his affidavit, he attached the tally for Oksapmin LLG which showed a total of 9,116 votes distributed on first preference with Amkat Mai polling 6,875 votes. He scored 1,150 and John Tekwie collected 546. The other parts of his affidavit contain opinions, submissions and innuendos. I ignore those.
    

2.12 EP 85/12 Witness 1: Edward Una

39. Senior Constable Edward Una, commonly referred to as Eddy Una is attached to Wutung Police Station. He was part of the police security contingent sent to Oksapmin LLG area for the 2012 general elections.
    
40. Eddy Una spoke of seeing underage children voting and multiple voting at Oksapmin station polling. Police tried in vain to intervene as the people claimed polling officials had also allowed underage voting and double voting in other locations. He also noticed lemon waste littering the polling area. He took photographs of children voting and also took photographs of sliced lemon; one with a bluish streak that resembled blue ink.
    
41. It was ineffectively suggested that Eddy did not possess a camera at the material time and alternatively that the photos were doctored. I believed his evidence that he took the photographs of events that were unfolding before him for his reference if required. He also spoke of his information from other security personnel on similar illegal voting occurring at other polling areas in Oksapmin. Eddy later gave the Petitioner John Tekwie copies of the photos.
    

2.13 EP 85/12 Witness 2: John Taluh Tekwie

42. John Tekwie is the petitioner in EP 85/12. His voluminous affidavit evidence was verbose, argumentative and riddled with opinions, insinuations, conjectures and presuppositions. I disregard those.
    
43. During scrutiny, his scrutineers kept him informed of events at the counting centre. He was particularly bitter over alleged irregularities relating to the Oksapmin ballot boxes and the absence of the Returning Officer to deal with the objections and queries raised. When photographs of underage voting came into his possession, he immediately went to the media before a formal complaint reached the Electoral Commission or the Court.
    
44. This conduct is akin to a child being presented with a fire-cracker gift and he lights it for show. The chances are that the cracker will blow up in his face. Photographic evidence will speak for itself. However its worth and probative value may be prejudiced by and therefore diminish from public scrutiny and adverse opinions. Fortunately for the petitioner, the admissibility of the photographs into evidence was not challenged on that ground.
    

EVIDENCE OF RESPONDENTS

3.14 First Respondent Witness 1: Amkat Robbie Mai

45. The First Respondent's evidence is brief. He has a solid background in teaching. In 2007 he first entered politics. In his second attempt in 2012 he was elected Regional Member and Governor for Sandaun Provincial Government.
    
46. Amkat Mai is from Divanat village. He spoke of not campaigning or ever being present at Oksapmin during polling because he had his people's trust and confidence to vote for him. He only learned of the alleged polling irregularities in his stronghold, from the media. The Governor denied any knowledge, authority or influence through a third party to commit any of the polling irregularities.
    

3.15 First Respondent Witness 2: William Koga

47. This witness was brief. He was to assert that scrutiny proceeded smoothly without incident. He also wanted to show that the petitioner John Tekwie verbally abused and assaulted him. I place no weight on his evidence after he denied the signature on the affidavit was his.
    

3.16 First Respondent Witness 3: Jackson Pinen

48. Jackson Pinen contested Telefomin Open in the 2012 General Elections. He is currently acting Executive Officer to the Governor. His story is that Amkat Mai did not need to be present during polling as he had scrutineers in all polling places. Those scrutineers reported well controlled polling in all locations. He was present at Divinap from start to end of polling by Team 69 and was not aware of any incident of underage or repeated voting. Any such allegation is a 'fat' lie because three candidates being from the same area made any form of irregular polling difficult.
    
49. This witness organised and collated witness statements for this trial. It has been suggested that some of the statements were manufactured. This adverse inference has support in the evidence of William Koga who denied the signature in his affidavit was his. Jackson's evidence also contradicts documentary evidence and evidence from Teams 69, 70, 71 and 72 polling officials which conceded instances of underage and repeated voting.
    

3.17 First Respondent Witness 4: Timson Haptol

50. Timson Haptol was a school teacher at Tekin Primary School. Tekin is also known as Kusunap. He denied seeing any double or underage voting. He also described the allegations as total lies. Timson Haptol knows Nims Nimol as his in-law. He denied seeing him at Tekin.
    
51. This witness contradicts Billson Bisel who conceded underage voting. Bilson was the presiding officer for Team 70 which polled at Kusunap.
    

3.18 First Respondent Witness 5: Henry Pesim

52. Henry Pesim is from Ramianap. He denied seeing any double voting or underage voting during polling by Team 70. He knows Nims Nimol. He did not see him at Ramianap polling.
    
53. This witness had lived much of his life outside Oksapmin. He gave his statement in Port Moresby but travelled to Tekin to sign his affidavit there. His evidence is contradicted by Team 70 presiding officer, Billson Bisel. Henry did not impress me as a reliable and convincing witness.
    

3.19 First Respondent Witness 6: Harry Sapol

54. Harry Sapol voted at Tekin. He saw Nims Nimol at Batianap polling but not at Tekin polling. He denied any double voting or underage voting. For the same reasons as above, I prefer the evidence of Nims Nimol over this witness.
    

4.20 EC Witness 1: Henry Norm

55. Henry Norm is the Provincial Administrator for West Sepik. During the 2012 general elections he chaired the Provincial Election Steering Committee. The Committee held several meetings mainly on logistics matters. He became aware of complaints of underage voting, double voting and multiple voting from the candidates. Due to mounting pressure and upon advice of the Returning Officer, Martin Anska and lawyer, Michael Kuma, he wrote to the Electoral Commissioner with certain propositions in Exhibit EP85-P2 attachment "F".
    
56. The Election Steering Committee chairman said Martin Anska attended all the Committee meetings as he was the Minute Secretary. He also consulted with him a number of times on the progress of election related matters.
    

4.21 EC Witness 2: Michael Kuma

57. Mr. Kuma, lawyer for the Electoral Commission was in Vanimo from 11 July to 27 July 2012. On the first day, Martin Anska introduced him to counting officials and scrutineers at the counting centre. On 14/7/ 2012, Greg Tavatuna sought advice on objections to tallying of the scores for Count 39. He advised that the ballot box be set aside pending explanation from Team 69 Presiding Officer Domat Nodason. After the officer responded, he advised counting officials to tally the scores. The Returning Officer did not attend at the counting centre in response to complaints and objections.
    
58. The witness denied any prior complaint or knowledge of double or underage voting until the media publicity by John Tekwie.
    

4.22 EC Witness 3: Stanley Sowelly

59. This witness is Executive Officer for Yapsie LLG. During the 2012 Elections he conducted polling from 25/6/12 at Tomvare with his Team 67. He was the Presiding Officer. His team also conducted polling at Monduban, Sisimin and Lembanap. The polling was conducted without security personal. Stanley denied any double, multiple or underage voting. During polling, three of the outer seals had to be replaced after they broke due to mishandling.
    

4.23 EC Witness 4: Gilbert Gue

60. Gilbert Gue was the Presiding Officer for Polling Team 68. His team covered Gapka, Sungtem, Bimin and Kunanap polling places. Polling was conducted from 28/6/12 to 3/7/12 without security personnel.
    
61. This witness remarkably volunteered that he made sure there were no underage or double voting because he had heard of such irregular voting in other places. He also instructed the voters to neatly fold the ballot papers and demonstrated folding the paper 3 times. Gilbert further spoke of his team spending the night at Bimin where the ballot box was locked away in the Primary School staff room and the School Board Chairman kept the keys.
    

4.24 EC Witness 5: Domat Nondason

62. Domat Nondaon was the Presiding Officer for Team 69. His team covered Daburap, Kweptanap, Tekap and Serempty polling places. Polling commenced on 26/6/12 and ended on 2/7/12 without security personnel.
    
63. The witness initially denied any incident of underage voting. However, when confronted with the entries he had made in the Returns Journals, he conceded underage voting but said only 2 children were involved. This witness was also assigned to assist in counting. When the dispute arose as to different signatures on the ballot papers, he explained that the second signature was that of his assistant who relieved him during his temporary absence. He also spoke of the Retuning Officer being present at counting on several occasions.
    
64. This witness played down the number and significance of underage voting. His oral testimony is in stark contrast with two pertinent entries he had made in the Returns Journals. In the Journal for Daburap on page 26 under item 5, he had written, "..... reject underage voting if their names are not on the common roll." And in the Journal for Tekap polling, he wrote, "minors attempted to vote twice/some did succeed."
    
65. His evidence on the presence of Martin Anska at scrutiny also contradicted the evidence of Michael Kuma and Greg Tavatuna. Messrs Kuma and Tavatuna spoke only of one occasion. And the Returning Officer himself conceded staying away from scrutiny except for the start of counting.
    

4.25 EC Witness 6: Bilson Bisel

66. Bilson Bisel is the Ward Development Officer with Oksapmin LLG. He was the Presiding Officer for Team 70. His team covered Divanap, Tomianap, Ramianap and Kusanap/Tekin. Security personnel joined his team on the second day of polling at Divanap and were also present at Ramianap polling place.
    
67. Bilson initially denied underage voting but conceded when confronted with a common roll showing persons less than 18 years voting. He said he had allowed an underage person to vote after the voter insisted his name was on the common roll. When questioned on similarity of hand writings on the ballot papers, he initially explained that illiterate voters were assisted by those who were educated hence, the same handwritings. He also suggested that many people from the area are well educated and write alike. On the ballot papers he conceded instructing voters to neatly fold the ballot paper three times. The explanation he gave is to avoid ballot papers getting wet if it rained.
    

4.26 EC Witness 7: Don Freddy Taran

68. Don Freddie Taran was the Presiding Officer for Team 72. His team polled at Duban and Gaua without security personnel. They also covered Teranap Ward 8 and Oksapmin Ward 11, Oksapmin Station. By then security personnel were on the ground. A lot of people including children attended polling. He asserted in his evidence, there was no underage voting or double voting.
    
69. This witness was simply prepared to tell lies under oath, oblivious to photographs of minors voting. When confronted with the photographic evidence, he conceded the images were of polling by his polling team. He initially said two children attempted to vote but he stopped them. When asked to explain what the children in the photographs were doing, he unashamedly conceded allowing children to vote. His denials also contradicted his Returns Journal entry for Tenarap that, "some underage children casted their votes".
    
70. Don Freddie Taran was not a witness of truth. He deliberately told lies in Court. I will recommend that he be charged for lying under oath.
    

4.27 EC Witness 8: Jack Yimat

71. This witness was the Presiding Officer for Team 71. His team covered Kuiva, Mitianap and Batianap. He denied underage or double voting in any of those polling places. His team polled without security personnel except for Batianap. He instructed voters to fold the ballot paper in half and in half again after casting their votes Out of 960 voting population, 958 voted. Only two persons were absent and did not vote.
    
72. Voting at Batianap was conducted on Saturday when the voting population was pre-dominantly SDA followers. When it was suggested that children voted in place of the absent adults, the witness said polling was conducted on Sunday for SDA members. When confronted with the ward or common roll, the witness conceded children less than 18 years had voted.
    
73. I prefer the evidence of Nims Nimol on underage voting at Batianap. It is supported by this witness's concession. It is also independently supported by Constable Harry Wai. It seems so incredible that from a possible voter population of 960, only two did not cast their votes. A possible explanation is as Nims Nimol said in his evidence, that persons under 18 years and others voted and double voted in place of those absent or living at Tabubil.
    

4.28 EC Witness 9: Jack Nawaria

74. Jack Nawaria was the Assistant Returning Officer based at Oksapmin. He said polling was scheduled for 23 June 2012 but there was delay in the arrival of security personnel. Oksapmin and Telefomin Open Electorate are in the remotest part of West Sepik Province. Many places are accessible only by air. He dispatched polling teams on 25 June 2012 although security personnel had not arrived by then. On 2 July and 3 July 2012, Team 72 polled at Oksapmin Teranap Ward 8 and Oksapmin Ward 11. He occasionally visited the two polling places but did not see any underage voting or double voting. Furthermore, he did not receive any report of any such irregularity.
    
75. He conceded that polling would not normally start without security personnel but in this case, logistics and the difficult terrains and the time required to complete polling made it necessary to commence without security.
    

4.29 EC Witness 10: Tommy Amillawan

76. Tommy Amillawan served as a Presiding Officer in the Telefomin LLG polling. He also assisted at scrutiny as Counting Supervisor. Tommy denied any formal complaints or objections against introduction of the 6 boxes from the Oksapmin LLG for counting except for Team 69 ballot box at count 39. He said scrutineers objected claiming there were three different signatures on the ballot papers. The ballot box was set aside for legal advice. Again ballot boxes for Team 70, 71, 72 were claimed to contain ballot papers marked by one person and that the papers were unusually folded in a particular way. The claims and objections were dismissed after scrutineers were told they were not writing experts. Ballot box 69 was counted after it was cleared.
    
77. He also said the issue of handwriting was not addressed due to difficulty in bringing witnesses to Vanimo counting centre, from Oksapmin.
    

4.30 EC Witness 11: Greg Tavatuna

78. Greg Tavatuna, one of the supervisors at scrutiny gave consistent evidence to that of Tommy Amillawan. He however, mentioned that minor complaints were resolved through phone liaisons with the Returning Officer, Marin Anska. A major complaint surrounding Count 39 for Team 69 ballot box was resolved in the same way. The count was suspended for half an hour while he consulted with Martin Anska by phone. The Returning Officer advised him to proceed with counting as there had been no formal or prior written complaint. Contrary to what Tommy Amillawan asserted, this witness said count 39 resumed after a brief suspension. He also confirmed counting was done against copies of the Returns as the originals were still in Oksapmin.
    

4.31 EC Witness 12: Moses Opiba

79. Counting Supervisor Moses Opiba gave similar evidence to the other two supervisors. He said however, that Count 39 had been completed when the objection was raised. The dispute was resolved and the votes were then tallied.
    
80. According to this witness, Martin Anska was present with the legal officer at the counting centre and addressed the issues concerning broken seals from Team 69 ballot box with two other ballot boxes. Under cross-examination, he conceded telling the scrutineers not to complain or object to counting. He said after consulting the Returning Officer, lawyers and other supervisors he told scrutineers counting would only stop upon the Returning Officer's instructions or Court orders. As there were no such instructions or Court orders he urged scrutineers not to disrupt counting and take their grievances to Court.
    
81. Moses Opiba exhibited an air of arrogance with an over-bearing personality. He is implicated as an in-law to the First Respondent. He obviously does not seem to appreciate his role as an independent electoral officer charged with the duty to ensure a transparent, genuine and fair scrutiny. He is also unreliable. He gave contradictory evidence against the overwhelming evidence on the absence of the Returning Officer from scrutiny.
    

4.43 EC Witness 13: Martin Anska.

82. Martin Anska is the Returning Officer whose absence from counting has come under much query. He was the Provincial Electoral Officer for West Sepik Province as well as Provincial Election Manager. His primary role was to; oversee and coordinate Provincial and Open Electorate elections, and overall management of logistics, supplies and security of polling and counting. He also served as member of the Provincial Election Steering Committee.
    
83. During the 2012 elections he worked from the Vanimo Forest Product premises next to the Indonesian Embassy known as, "The Point". He attended scrutiny at the start but, following threats to his life, he retreated to the seclusion of his office from where "minor" complaints at scrutiny were resolved over the phone with counting officials. There were no formal complaints or objections received in writing. So, there was no requirement for him to attend counting.
    

ASSESSMENT AND DETERMINATION OF ISSUES

84. The standard of proof in election petition cases is well settled. The onus remains with the petitioner to adduce evidence "to the entire satisfaction of the court," on each ground of the petition: Neville Bourne v. Manesseh Voeto [1977] PNGLR 298. The standard is higher than the civil standard, just falling short of the criminal law standard of proof beyond reasonable doubt, the rationale being that election petition hearings are not criminal proceedings where the higher standard of proof is required. It is suggested in Neville Bourne v. Manesseh Voeto that in practice, there may be no real difference.
    
85. I will deal first with the alleged illegal practices and undue influences during polling followed by errors and omissions at counting and conclude with observations on the application of sections 215 and 218 of the Organic Law.
    

1. Illegal practices and undue influence during polling.
   

86. This ground stipulates the application of s.215 which reads:
    

"215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

87. Under s 215(3), the petitioners must first show to the entire satisfaction of the court, evidence of underage voting, double and multiple voting. They must further show that underage voting is an illegal practice. The petitioner must additionally show the result of the election was likely to be affected and that it is just that the candidate be declared not duly elected or that the election be declared void: Arnold Marsipal v Michael Pondros [1977] PNGLR 354; Louis Ambane v Electoral Commission & Ors (1988) SC 559.
    

1. Was there underage voting?
   

88. This issue is hotly contested on trial. The two conflicting versions can simply be resolved on witnesses' credibility or which version is more probable and believable than the other. The convenient start is the evidence on the final leg of polling by Team 72 at Teranap Ward 8 and Oksapmin Ward 11. Both locations are at Oksapmin station. The evidence on child-voting is refuted by Team 72 Presiding Officer Don Freddy Taran and Assistant Returning Officer, Jack Nawaria.
    
89. Mr Taran vehemently denied underage voting and double voting. He conveniently forgot his earlier entry in the Returns Journal for Tenarap polling that; "some underage children casted their votes." In cross-examination, he conceded the truth of that fact. And again when confronted with the photographs, he impenitently conceded the fact of underage voting but preposterously suggested only three children voted. He changed his story again to concede the seven children in the photographs or up to that many had voted. The evidence from police personnel suggested up to 15 children and possibly more had voted.
    
90. Jack Nawaria did not do well either. He gave guarded evidence. He seemed oblivious to the presence of children at Teranap and Oksapmin polling, if he ever visited those polling places, because the truth as conceded by Mr. Taran was captured on camera. Discarded lemon fruits littering the polling area would have also been seen by him. Furthermore, he lied when he denied receiving any report on underage voting. The Returns Journal for Teams 69 and 72 which he countersigned reported that fact. It is in evidence that he is from the same village as the First Respondent. He does not deny that. I think he has a motive to tell lies on that basis.
    
91. I have no difficulty finding as a fact, underage voting occurred at the two Oksapmin polling places. Undisputed photographs of children inside the voting enclosure with escorts and polling officials, speak volumes. The photographic evidence confirms eye-witness accounts by police personnel Walter Keino, Danny Mimba and Eddy Una on underage voting. Anyone sighting the photo images will be shocked into disbelief at the apparent laissez-faire conduct of electoral officials. They conducted a very serious and important national election in clear breach of the Constitutional and electoral laws.
    
92. The photographs also tell another story. Children were in the company of older persons, some with painted faces, others wore dark glasses or caps. A clear inference is to hide or avoid recognition. It can also be due to guilty conscious. Taken as a whole, the older person was to assist the children fill in the ballot papers and to ensure names on the common roll were ticked off against the children's votes. This inference is fortified by the testimonies of Constable Harry Wai, Nims Nimol and the concessions by polling officials from teams 69, 70 and 71 on child-voting in other locations.
    
93. In respect of polling by Team 72 at Terenap and Oksapmin station, I am satisfied that underage voting occurred.
    

2. Was there double or multiple voting?
   

94. The evidence of police personnel also points to double voting and possibly multiple voting at polling by Team 72. They spoke of used lemon or citrus fruits littering the ground after polling at Oksapmin station. Police also detained a person who attempted to vote the second time and found on him, a lemon. One of the photos also shows the inside of a lemon marked with bluish ink. This strongly suggests use of lemon extract to remove the voter ink mark on the finger.
    
95. This evidence was not seriously challenged on cross-examination. I am satisfied that lemon was used to enable double and even multiple voting at least at the last two polling venues by Team 72.
    

100. Did underage voting and double voting occur in other polling areas?
     

96. Underage voting occurred at the final polling for Oksapmin LLG area. The venue was a government station. The irregular polling was in full view of the general public, public servants and despite presence of police and PNGDF security personnel. It occurred at the least expected venue and was most daring. Perpetrators of underage voting were not deterred by the polling venue being a government station and the high risk of detection, arrest and punishment. Children were allowed to vote as if that was the normal thing to do.
    
97. Inferentially, the same polling irregularity had taken place elsewhere with ease. The circumstances were particularly conducive for that in locations that had polled without security personnel. Polling commenced in many places five days before police security personnel were deployed to Oksapmin. Teams 67, 68 and 69 completed their polling without security personnel. Polling Teams 70 and 71 conducted some of their polling without police presence. Prior to polling at Oksapmin station, Team 72 had polled at Duban and Gaua without police security. Because the presiding officer deliberately denied underage voting at Terenap and Oksapmin station, it is highly probable that he had permitted the same irregular polling at Duban and Gaua polling venues as well.
    
98. Support for that proposition is found in the uncontested evidence of security personnel who spoke of being told that underage voting had been allowed in other polling places. The Presiding Officer for Team 68 Gilbert Gue also conceded his information on underage voting in other polling areas.
    
99. More importantly, polling officials and other witnesses called by the respondents falsely denied underage voting, so, it is reasonable to infer that underage voting was widespread and common knowledge to those present. I think the truth lies in that information. These are not mere conjectures. The inferences to be drawn here are consistent with the evidence of underage and double voting where police security was present. I conclude that to be the logical explanation and motive for children voting with ease at the Oksapmin government station.
    
100. The evidence of Nims Nimol is most pertinent in supporting these inferences. At one stage of his oral testimony, the Court cautioned him against self-incrimination. Despite the warning, the witness continued that he instructed his group to usher in children to vote and double vote when supporters of other candidates were doing that with impunity. I think he was prepared to sacrifice his freedom for the truth.
     
101. The witness spoke of underage voting and double voting at about six polling places covered by polling Teams 70 and 71. Witnesses were called to refute his claim. I accept his version over theirs because it has independent support in the evidence of the security personnel and the photographs. Further, proof of his evidence is found in documentary evidence in the form of Journals or Election Returns for Terenap (Team 72), Daburap and Tekap (Team 69) and the Ward Rolls or Common Rolls. Added to that is the widespread knowledge of underage voting and double voting. I find that witnesses for the respondents deliberately told "fat lies" in their general denials.
     
102. I am satisfied that underage voting was widespread and that it was entertained by all six if not, by at least four of the polling teams. The overwhelming evidence easily satisfies the criminal law standard of proof beyond reasonable doubt except, this is not a criminal proceeding.
     
103. There is similarly sufficient evidence supporting double voting and possibly multiple voting. It is enough that the evidence of double voting as I have found is cogent and convincing.
     

4. Illegal practices and Electoral offences under . 215(3).
   

104. It is not alleged and there is no proof of illegal practices or undue influence being committed by a third party with the knowledge or authority of the First Respondent. I am not satisfied, underage voting and repeated voting occurred with the knowledge or authority of Amkat Mai. Hence, a situation under s 215(3)(a) of the Organic Law has not been made out.
     
105. The extent of illegal practices alleged here in my view, falls under s 215 (3)(b). This is a stand-alone provision which applies in circumstances where the illegal act or undue influence occurred independently of the knowledge or authority of the candidate. The illegal practice may be attributed to the candidate, or a third person without the knowledge or authority of the candidate. Tampering with ballot boxes, double and multiple voting and other illegal practices committed independently of the candidate are in my view, the types of illegal practices to which s 215(3)(b) applies. The use of "or" in the provision is instructive in this interpretation. The term "or" is used conjunctively to introduce the second of the two alternative situations in s 215(3)(a) and (b).
     
106. The issue then is whether underage voting is an illegal practice. Lawyers for the respondents argued that underage voting is not an illegal practice and they relied on the Court's earlier ruling on competency of the petition. There, I suggested, underage voting cannot constitute a ground of illegal practice or undue influence under s 215 of the Organic Law. From that view point, the respondents' contention is that the petitioners are stuck with their pleadings. They cannot by evidence amend it after 40 days.
     
107. I have since reviewed the suggestion made in the competency ruling in the light of the evidence and upon a further reading of s 215(3) provision.
     
108. Part XVII of the Organic Law covers electoral offences. Section 178 defines "illegal practices". It makes it an offence to falsely or fraudulently publish, print or misinform an elector on matters relating to National Government elections. The provision also makes it an offence to obstruct public streets, assault or threaten polling officials, incite or encourage disturbances to interfere with an election. There is no specific reference to other common, "illegal practices" like voting by impersonation, unauthorised supply of ballot papers, repeated voting, bribery or undue influence. However, for all intents and purposes, these are electoral offences or criminal conduct to which s 215 of the Organic Law applies. This view is consistent with the definition of "illegal practices" in s 286 pertaining to Local-level Government elections.
     
109. Sections 178 and 286 provisions complement each other when read together with s 191 of the Organic Law. Section 191 sets out electoral offences for the purpose of National Government elections. Some of the illegal practices defined in s 286 of the Organic Law pertaining to Local Level Government elections are described as electoral offences in s 191.
     
110. Those offences and other electoral offences under the Organic Law or any other law may be pleaded as illegal acts that are likely to affect the result of the election for the purpose of s 215. For instance, the phrase, "an illegal practice other than bribery or undue influence or attempted bribery or undue influence" in s 215(3)(b) infers acts of bribery and undue influences or attempts thereof are illegal practices for the purpose of voiding or invalidating an election. Those illegal acts are however not found in s 178 or under s.191 as electoral offences. They are criminal offences under the Criminal Code. They are nevertheless, illegal practices for the purpose of s 215 and specifically defined as such under s 286 of the Organic Law.
     

5. Whether underage voting is an illegal act
   

111. The issue of underage voting must be considered in light of s 50 of the Constitution which places voting age at 18 years. It is the maturity age to vote in elections. Any person under 18 years has no right to vote. Underage voting does not specifically come under sections 178, 191 and 286 for the purpose of s 215 of the Organic Law. Compliance with the maturity age to vote and the right to vote is covered by sections 134 and 136 of the Organic Law.
     
112. Section 134 requires questions of eligibility to be put to the person claiming to vote. One of the questions to ask in s 134(1)(a)(iii) is, "are you at least 18 years of age?" The person claiming to vote may also be asked under s134 (1)(b) "Are you the person whose name appears as (here state name) on the certified list of voters for his electorate?" If the response to those questions is in the negative, then the claim to vote will be rejected.
     
113. Under s 136 the presiding officer or polling officer must hand to each person claiming to vote a ballot-paper duly initialled or affixed with an official mark if the name under which he claims to vote is on the certified list of voters for the polling place and his right to vote is not challenged. If his right to vote is challenged and his answers to the prescribed questions show that he is entitled to vote, the polling official must also allow him to vote.
     
114. In this case, polling officials were not forced, threatened, intimidated or unduly influenced to entertain underage voting and double voting. They were clear in their affidavits and oral evidence. There was no such irregularity at polling. It can be deduced then that sections134 and 136 of the Organic Law had no relevance. On the strength of the evidence and the false denials of polling officials, it is clear that polling officials deliberately allowed underage voting, double and multiple voting. Such irregularity was occasioned by the large numbers of absent registered voters which Nims Nimol spoke of.
     
115. The irregularity in underage voting may be deemed an electoral offence under s191 of the Organic Law. Section 191 reads:
     

"191. Electoral offences.

The matters specified in Column 1 of the table in this section are electoral offences punishable in accordance with the provision in Column 2 of that table opposite the statement of the offence in Column 1.

TABLE OF ELECTORAL OFFENCES AND PUNISHMENTS.

116. Double voting by a person is an offence under Column 1 offence. A child falsely claiming to vote and anyone assisting the child to vote is acting in contravention of columns 4, 6, 8, 11, 13 and possibly 5 offences. So, under s 191 of the Organic Law the child voter and anyone who procured, aided and abetted underage voting is guilty of electoral offences.
     
117. The Criminal Code specifically makes under age voting an offence. A child whose name is not on the common roll would be guilty of the offence of personation under s 99 if he or she voted. Under s 105 it is an illegal practice to vote when one is prohibited to do so by law. Hence, underage voting is an illegal practice against which s 215 of the Organic Law is intended to apply.
     
118. Furthermore, deliberately using or permitting a child who has not reached full capacity and voting age under s 50(1) of the Constitution for the numbers gain is a deceitful, corrupt and fraudulent conduct. It involved conspiracy and false pretence. These are serious offences under the Criminal Code.
     
119. In conclusion, underage voting is an illegal practice or act for the purpose of s 215(3)(b). It follows that the pleading of underage voting as an illegal practice is in order. It is also possible that breaches of constitutional rights may also be pleaded as errors and omissions under s 218 depending on the particular circumstances of each case.
     
120. For the same reasoning, I also find that s 218 of the Organic Law has relevance. It applies to the circumstances of this case. 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."

121. The conduct of polling officials in permitting underage voting and double voting amounted to serious errors and omissions. The failure to enforce the constitutional requirement for voting age; the failure to conduct polling pursuant to the provisions of ss134 and 136 of the Organic Law brought about a false election result. Their conduct made the election a farce and a sham. The polling officials failed their obligation to ensure a genuine, fair and free election. Because of that the election result was affected.
     

6. Whether the Election result is likely to be affected.
   

122. Section 215of the Organic Law requires a further proof that the election result is likely to be affected.
     
123. The respondents' case is that the petitioners have not shown evidence to the entire satisfaction of the Court that the election result would be affected. They have not adduced evidence showing the exact number of children who voted or double voted and that the numbers exceeded the winning margin.
     
124. I agree, the exact number of underage voting is unknown. But the evidence on underage voting and double voting is overwhelming. The evidence from at least four of the six polling teams indicates that these irregularities were quite widespread. It is also open to inference from the whole of the evidence that in the absence of police security at polling, the whole of the six ballot boxes in question contained tainted votes from underage and repeated voting.
     
125. This is not a case of 20 or 50 children voting or double voting. The whole of the evidence points to widespread manipulation and abuse of the electoral process for the numbers gain and political expediency. Electoral officials facilitated this dishonest and fraudulent voting. They failed to enforce the Constitution and the electoral laws. Their conduct undermines the independence and public trust in electoral officers. It undermines the spirit and integrity of fair, genuine periodical elections.
     
126. I am satisfied that the six polling places in the Oksapmin LLG area were corrupted by instances of underage voting. The total number of votes was 9,176. The First Respondent scored 6,875. There is no direct evidence of irregular voting at Team 67 and 68 polling. According to the affidavit of Simon Solo, the total votes from these two polling teams was 1, 597. This is less than the total number of tainted votes from Teams 69, 70, 71, 72 ballot boxes. On the final count, the First Respondent won by 4,000 votes. The election result will likely be affected if 9,176 or 7,579 votes were removed.
     
127. Section 215(3) does not specifically say that the number of votes affected must be pleaded and shown on the evidence. I think there is room to show that a general deficiency in polling whether through widespread double or multiple voting, underage voting, ballot papers being marked on behalf of others and other illegal practices if proven, should result in an election being declared void. Such illegal practices at elections are against the spirit of a genuine free and fair election. The courts have the higher duty to protect the integrity and authenticity of the whole election process in a system of universal, adult citizen suffrage under s 50(d) of the Constitution.
     
128. The court should not condone such illegal practices by sticking to the narrow restrictive requirement to plead and prove the exact numbers of votes affected. In a case where blatant unconstitutional and illegal practices is shown by evidence to be rampant and widespread as in this case of underage voting and double voting in a particular area of polling and the exact number of votes is impracticable to ascertain, it is sufficient to find on the whole of the circumstances that the election or polling was a farce and a sham and the total number of votes from the polling affected the result of the election.
     
129. In reaching this conclusion, I am also guided by the substantial merits and good conscience of this case without regard to legal form or technicalities, or whether the evidence before the Court is in accordance with the law of evidence or not under s 217 of the Organic Law.
     

7. Would it be just that the candidate should be declared not duly elected or that the election should be declared void?
   

130. It is apparent that the polling officials have not been transparent, honest and truthful. They were prepared to defend and conceal illegal practices that tantamount to electoral offences, fraud and corruption under the Criminal Code. The electoral officials compromised their duty to enforce the constitutional requirements for genuine periodical elections. This is a case of deliberate breaches of the Constitution and electoral laws calculated to unduly influence the election results. The courts should not overlook such irresponsible and fraudulent conduct of electoral officials. It will be just, in my view, to declare the election void under s 215(3)(b) of the Organic Law.
     

2. Illegal practices, errors and omissions at scrutiny or counting.
   

131. The issue here is in two parts. The first alleges tampering with ballot boxes, errors and omissions by electoral officers. The second relates to neglect of duty by the Returning Officer. The issues are intertwined in that the absence of the Returning Officer exacerbated the irregularities at scrutiny. Then again, the absence of the Returning Officer from scrutiny is a standalone issue on the basis of which this petition can stand or fall.
     

1. Implied Ballot Boxes tampering with and Anomalies at Scrutiny
   

132. On the first issue, I agree with the respondents' contention on there being no hard evidence to show tampering of the ballot boxes prior to scrutiny. However, it is a common ground that upon scrutiny of the six ballot boxes from Oksapmin polling, the following discrepancies were present:
     
     • Outer Ballot box seals had been replaced;
     • Ballot papers were neatly folded and placed in the ballot boxes;
     • Different signatures appeared on ballot papers;
     • Same handwritings on ballot papers.
       
133. These discrepancies appeared to be unknown before scrutiny except to the polling officials. The presiding officers who gave evidence either denied or had an explanation for each anomaly. For instance, outer seals for a number of ballot boxes broke due to mishandling. In one case, three outer seals had to be replaced. The Returns Journals also covered this aspect.
     
134. On ballot papers, polling officials instructed voters to neatly fold these in half then in quarter and or three times. This explanation is consistent with the evidence of Constable Harry Wai who said children's escorts neatly folded ballot papers and placed them in the ballot boxes. One explanation was to avoid ballot papers getting wet from rain.
     
135. Different signatures related to Team 69 ballot box. The Assistant Presiding Officers signed ballot papers during temporary absence of the presiding officer. On the issue of the same handwriting, two possible explanations were given that: (i) many well educated persons from Oksapmin area have similar hand writing; (ii) illiterate voters were assisted and hence, the same handwriting. On the other hand Tommy Amillawan said counting officials admonish scrutineers not to object as they were not writing experts.
     
136. These concessions support the reliability of witnesses for the petitioners. It also leaves an uncanny feeling that polling officials possibly tailored their evidence in a scheme to concede and trivialise serious issues affecting the integrity of the ballot boxes. The truth lies with them.
     
137. The polling officials are either believable or they are naive and evasive. The petitioners cannot be expected to prove a fact that is peculiarly within the knowledge of polling officials, just like in criminal proceedings; the prosecution is not required to prove a fact that is peculiarly within the knowledge of the accused person. I do not believe polling officials were truthful on the issue of security of ballot boxes. This leaves a strong suspicion of tampering with the ballot boxes. The evidence is however, insufficient to establish that fact.
     
138. The issues surrounding the ballot boxes may seem peripheral and insignificant until one considers that the anomalies and the adverse conduct of counting officials were exacerbated by the absence of the Returning Officer. Hence, the question arises as to whether scrutiny was properly conducted in a genuine, fair and transparent manner. More crucially, whether, given the absence the Returning Officer, there was scrutiny as a matter of law.
     

2. Whether there was lawful scrutiny
   

139. The respondents submit that the petitioners failed to plead and lead evidence establishing errors and omissions at scrutiny under s 218 of the Organic Law. I consider this argument to be belated and lacked merit. The absence of the Returning Officer from scrutiny is pleaded as neglect of duty. It is directly linked with the conduct of electoral officials at counting. Evidence has also been adduced for determination and decision on these matters.
     
140. The respondents' stronger contention is that no formal objection was raised by the scrutineers or by the candidates before or during counts 37, 38, 39, 40, 41 and 42 in compliance with s153A of the Organic Law. It is also contended that the absence of Martin Anska from scrutiny is immaterial and not crucial because there was no valid objection for the Returning Officer to deal with. Section 153A reads:
     

"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."

141. It is clear from s153A (2) that when an objection is taken to a ballot-box, the Returning Officer may require the objection and the grounds to be in writing. That discretionary quasi-judicial power vested in the Returning Officer must be exercised upon proper considerations, one of which is the principles of natural justice and fairness. Such an exercise of power can only be lawfully taken with his presence at scrutiny and having first heard the complaint. The Returning Officer can then decide whether to deal with the complaint right away or require the objection and the grounds to be in writing. The requirement for the complaint or objection to be in writing is not mandatory although regulation 90 of the Election Law (National and Local Level Government Elections) Regulations seems to suggest otherwise. Regulation 90 is of course subject to the strict application of the substantive law in s 153A(2).
     
142. In this case, the matters that prompted the objections only became apparent at scrutiny. The scrutineers were then raising objections to further scrutiny at the first opportunity. There is no law against that.
     
143. Mr. Mawa for the First Respondent submitted that the Returning Officer may have not been physically present but he was performing his electoral duties in regard to scrutiny from his office. The objections raised concerned informal ballot papers and that was properly dealt with by the officers conducting the scrutiny under s152 of the Organic Law. The decision to be made under s 152 does not require the Returning Officer to make it. It was sufficient that counting officials had consulted Martin Anska and the Legal Officer and that a decision was made to proceed with counting.
     
144. I agree with Mr. Mawa's contention on s 152 application to the extent that it applies to informal ballot papers. In this case, at count 39 when objections were accepted for determination, the consistency of the anomalies with counts 37 and 38 strongly point to ballot papers in the ballot boxes being unlawfully caste. This is the sort of complaint to which s 153A of the Organic Law in my view, applies. Section 152 has no application for that reason.
     
145. It is also argued that s 149 does not provide that only the Returning Officer to the exclusion of others should conduct scrutiny. The provision provides for an alternative other than the Returning Officer to conduct scrutiny. Section 21(3) is argued to be in harmony with s 149 of the Organic Law. Section 21(3) states:
     

"21. Appointment in cases of emergency.

(3) In the event of a vacancy occurring in an office of Assistant Returning Officer appointed under Section 20(4), or in the absence from duty of any such officer, the Returning Officer may, by instrument in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence."

146. This provision has limited application. It only applies in relation to a situation under s 20 (4) arising. Section 20 (4) provides:
     

"20. Assistant Returning Officer.

(4) Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may be made by the Returning Officer by instrument in writing, and in that case the appointment terminates upon the completion of the election."

147. Section 21(3) applies when a vacancy or absence exists in the office of an Assistant Returning Officer for the specific purpose stipulated under s 20(4). In both situations the Returning Officer has power to appoint an Assistant Returning Officer. In this case there was no such appointment made by Martin Anska. An Assistant Returning Officer in s 149 in my view refers to a substantive officer-holder appointed by the Electoral Commissioner under s 20(1) or s 21(1) of the Organic Law for the purpose of a s 149 vacancy.
     
148. Section 149 of the Organic Law imposes a duty on the Returning Officer to conduct scrutiny at the counting centre. It reads:
     

"149. Officers to conduct scrutiny.

The scrutiny at a counting centre shall be conducted by the Returning Officer or, in the absence of the Returning Officer from that counting centre, by an Assistant Returning Officer."

149. This provision is in mandatory terms. There are 3 essential components that must be satisfied:
     
     • (1) Scrutiny must be at a counting centre;
     • (2) Scrutiny must be conducted by the Returning Officer; and
     • (3) In his absence, the Assistant Returning Officer.
       
150. The intention of s 149 is clearly that in the absence of the Returning Officer, an Assistant Returning Officer will conduct scrutiny. Assistant Returning Officers are those lawfully appointed as such under s 20, 21 and 22 of the Organic Law and no other. There is no provision for ad hoc appointment of anyone to conduct scrutiny under s 149 of the Organic law. The Returning Officer or in his absence, the Assistant Returning Officer is the only electoral official authorised to conduct scrutiny under that provision.
     
151. The term "absence" in s 149 in my view, refers to the incumbent being out of office or speedy or effective communication or cannot perform the duties of the office because he is away from the jurisdiction or is conducting scrutiny at another location pursuant to s 19(2) of the Organic Law. Section 19(2) authorises the Electoral Commissioner to appoint a Returning Officer for more than one electorate.
     
152. The argument that Martin Anska need not be at scrutiny because there was no valid objection for the returning officer to deal with does not hold water. The Returning Officer cannot have it both ways. He cannot say he was not at the counting centre due threats on his life and at the same time say, he was not at the counting centre because there were no serious and formal objections requiring his attendance. The evidence of the Chairman of the Provincial Election Steering Committee is that he was the Minute Secretary and as such, he attended every Committee meeting. If that is so, then there is absolutely no reason for the Returning Officer to stay away from scrutiny.
     
153. The absence of Martin Anska from scrutiny raises a very serious issue of law. He retreated to the seclusion of an office at "The Point" premises from where he "performed" his electoral duties by "remote control". That is not permitted by law. The location of his office at a secured private property away from the counting centre was not easily accessible. The location and his choice to be "missing" from the counting centre was a serious impediment to his constitutional obligation and the legitimacy of scrutiny.
     
154. The complaint that he was incommunicado and that he could not be easily located has merits.
     

100. Effect of Returning Officer's Absence from Scrutiny
     

155. The election by Martin Anska to be absent from scrutiny is akin to having abdicated his appointment, his constitutional duties and obligations as an electoral official to conduct scrutiny. Quite frankly he was just as good as having resigned. His purported performance of scrutiny by phone is in contravention of s 149 and his other obligations under the Organic Law.
     
156. The only remedy was for the Electoral Commissioner to appoint an Assistant Returning Officer. The fact that no Assistant Returning Officer was appointed to assist the Provincial Returning Officer is no excuse. The situation at hand presented an emergency under s 21 of the Organic Law. The Electoral Commission in that case should have appointed a Returning Officer or an Assistant in his place. The Electoral Commissioner committed an error in failing to carry out that constitutional duty to enforce the integrity of scrutiny.
157. This is the kind of error under s 218 that resulted in the Court ordering a recount in the case of, Peter Charles Yama v Anton Yagama, Steven Biko, Returning Officer, Andrew Trawen Electoral Commissioner (2013) N5222. In that case, the Returning Officer at counting for an election to a seat in the National Parliament declared a "failed election" and stopped counting and left the Counting Venue. The Electoral Commissioner appointed an Acting Returning Officer but the Trial Judge found the appointment was flawed, inter alia, in failing to comply with the provisions of the Organic Law. See also, Anton Yagama v Peter Yama & Ors (2013)SC1244. The similarity with this case, is the absence of the appointed Returning Officer who abdicated his duties after assuming and exercising power he did not have to declare a "failed election."
     

SUMMARY

158. The election of the Regional Member for West Sepik Province, Amkat Mai was tainted by illegal practices and errors and omissions committed by the electoral officials at Oksapmin polling. Those illegal practices and errors and omissions involved widespread underage voting and double voting. Because of the corrupt and fraudulent conduct of the polling officials, the integrity and authenticity of the whole election process in a system of universal, adult, citizen suffrage which s 50 entrenches was compromised.
     
159. The result of the failure to enforce constitutional laws and the failure to prevent the illegal practices was the influence it had on the election result. Under s 215 Organic Law, 9,176 votes were tainted and that affected the result of the elections. Similarly under s 218 of the Organic Law, errors and omissions by the electoral officials tainted the integrity of a genuine, free and fair election. These illegal practices and errors and omissions on the part of polling officials ought not to be condoned. The court has a greater duty to protect the genuineness and integrity of the elections.
     
160. The irregularity of polling is not the only deciding factor. There is a further consideration in the lack of scrutiny or proper scrutiny at counting. The Returning Officer absconded and as a result, failed to perform his duty at the counting centre. This Petition can stand or fall on this ground alone.
     
161. Counting of the six ballot boxes from Oksapmin and possibly other ballot boxes as well were "bull-dozed" through by counting supervisors who summarily dismissed or simply brushed aside objections and complaints. There was no real or genuine scrutiny because of that and because of the absence of Martin Anska from scrutiny. The failure by the Returning Officer to carry out his constitutional duty amounted to there being no legitimate scrutiny.
     
162. Effectively, there had been no scrutiny of the votes. Consequently, there was no election. This also highlights grave error on the part of the Election Commissioner in failing to appoint a Returning Officer or an Assistant Returning Officer.
     

What Orders should follow?

163. Pursuant to s 217 and s 212 (3) which requires this court to exercise any of its powers on such grounds as in its discretion thinks just and sufficient, the appropriate course is to uphold the petition on the grounds proved.
     
164. I have considered whether to order a recount. The foreseeable difficulty and the issue on which the court had no assistance is the practicable effect of a recount in the circumstances where only certain ballot boxes and their contents were affected. There is nothing before me to show whether a recount is possible with the exclusion of those six tainted boxes. I will give the Electoral Commission the opportunity to clarify that issue. In the event that a recount will be practically impossible, and I hold that to be so after hearing from the Electoral Commission lawyer, the just and sufficient order in my view is to declare the election void. I make the following Order:
     
     1. The ground of the Petition on irregular appointment of counting officials is dismissed.
        
     2. The ground on tampering with ballot boxes is dismissed to the extent that the ground lacked direct evidence.
        
     3. The ground on Illegal practices and undue influence during polling is upheld.
        
     4. The ground on illegal practices, errors and omissions at scrutiny together with errors in neglect of duty by Returning Officer is upheld.
        
     5. Pursuant to sections 215, 218 and exercising the powers of the Court under s 212 (3) of the Organic Law the election and the returned of the First Respondent, Amkat Mai as the duly elected Regional Parliament Member and Governor for West Sepik Province and Sandaon Provincial Government is declared absolutely void.
        
     6. A By-Election is ordered to be held within three months of today's date or by 1st March, 2014.
        
     7. Costs will follow the event with a greater portion of 80% of the total cost in favour of the Petitioner Simon Solo shall be taxed if not agreed.
        
     8. The amount deposited by each petitioner with the National Court as security for costs unless it is subject to any other order shall be refunded forthwith.
        
     9. It is recommended that police take appropriate action to charge Don Freddy Taran with perjury committed in the course of his giving evidence before this court
        

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Solwai Lawyers: Lawyers for the Petitioner Simon Solo
Kolo & Associates Lawyers: Lawyers for the Petitioner John Taluh Tekwie
Mawa Lawyers: Lawyers for the First Respondents
Parua Lawyers: Lawyers for Electoral Commission & Ors