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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 73 OF 2017
IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE KANDEP OPEN ELECTORATE
BETWEEN
DON POMB POLYE
Petitioner
AND
LUKE ALFRED MANASE
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail, J
2018: 13th, 14th, 15th, 16th, 17th, 21st, 22nd, 23rd, 24th August
& 3rd, 7th September & 9th November
ELECTION PETITION – No case submission – One allegation of bribery – Lack of evidence on identity of person bribed – Multiple allegations of undue influence – Lack of evidence of candidate’s knowledge or authority – Multiple allegations of illegal practices and errors or omissions at polling and counting – Lack of candidate’s knowledge or authority – Lack of evidence to show results likely to be affected or was affected by the illegal practices and errors or omissions – Organic Law on National and Local-level Government Elections – Sections 215 & 218- Criminal Code – Sections 102 & 103
Cases cited:
Anton Francis Yagama v. Jimmy Uguro & Electoral Commission (2018) SC1682
Counsel:
Ms. H. Masiria with Ms. E. Tohora, for Petitioner
Ms. C. Copland with Mr. S. Sabarei, for First Respondent
Mr. S. Raneva, for Second Respondent
RULING ON NO CASE SUBMISSION
9th November, 2018
1. MAKAIL, J: This is an election petition for Kandep Open electorate in the Enga Province. After close of the petitioner’s case on 3rd September 2018 the defence sought an adjournment to make a no case submission. Due to a large number of allegations which resulted in a total of 35 witnesses being called by the petitioner, on 7th September extensive written submissions were received in addition to oral presentation by respective counsel.
2. A no case submission is permitted in an election petition as established by case law, some of which were referred to by counsel in their submissions and need no introduction needless to say that all parties took no issue with the Court’s jurisdiction on this point. The case law also established that a petition can be stopped from proceeding further where the evidence is lacking on a material aspect of the petitioner’s case or even if there is evidence to enable such a finding, the evidence would be unsafe and unsatisfactory to base a conviction.
3. The allegations which survived the competency test and evidence led to prove them were bribery, undue influence, illegal practices (hijacking of ballot-papers) and errors or omissions at polling and counting.
Bribery
(a) Bribery by the first respondent at Rugutengesa, Ward 28, Kandep Rural LLG
4. According to the pleadings, the alleged bribery of Wita Henry was by the first respondent at the polling venue of Rugutengesa, Ward 28 on Saturday 8 July 2017, at around 9:00am. The first respondent personally gave cash of K5,000.00 to Wita Henry, an elector in the presence of other voters namely Kipul Konabin, Lynette Tumbin Kepas and Top Yokrair for the purpose of procuring their votes.
5. Except for the contest to the identity of Wita Henry, the first respondent relied on very broad grounds to have the allegation dismissed and it was quite difficult to establish firstly whether he contests the assertion that he was present at the material time, secondly gave K5,000.00 to Wita Henry and thirdly, uttered words to the effect that the voters use the money and cast their votes for him. The contest to the identity of Wita Henry was based on the ground that Wita Henry was not called to give evidence that he was the person who received the money from the first respondent and that he was an elector. The other ground was that, it was doubtful if the petitioner’s witnesses Top Yokotati and Kipul Konambin identification of Wita Henry was correct because on the one hand, they accepted the suggestion during cross-examination that he was a young man between the age of 20 and 30 years and on the other hand, the Preliminary as well as Final Common Rolls (exhibits “P12” and “P13”) referred to him as being born in 1961 and was 57 years of age. Thirdly, the witnesses Top Yokotati and Kipul Konambin including Lynette Tumbin Kepas were not electors.
6. The second respondent adopted the first respondent’s submissions. In addition, it submitted that the names of the witnesses for the petitioner were inconsistent with the names pleaded in the petition. That is, in their respective affidavits, they went by the names Kipuli Konambin and Top Yokotati but the pleadings referred to them as Kipul Konabin and Top Yokrair.
7. Other than to pointing out the differences between the spelling of the names of witnesses Kipuli Konambin and Top Yokotati, it was no put that they were not the one and same persons. This being the case, their evidence is sufficient to identify Wita Henry as the person who received the money from the first respondent. Their evidence is reinforced by the defence not contesting these witnesses evidence that the first respondent was present at the material time and gave cash of K5,000.00 to Wita Henry.
8. There is no rule of law or practice that the person alleged to have received money from a successful candidate must be called to give evidence. If there is evidence from other persons identifying him, it suffices. In this case, Top Yokotati and Kipuli Konambin said that they saw the first respondent give cash of K5,000.00 to Wita Henry and Julias Henry to distribute evenly among the voters. The purpose of giving K5,000.00 was to prevent voters from freely voting for their preferred candidates and to ensure that votes cast for Rugutengesa would be for the first respondent. I am satisfied that the evidence point to the first respondent as being the person who gave cash of K5,000.00 to Wita Henry to induce voters from freely voting for their preferred candidates and to ensure that votes cast for Rugutengesa were for him.
9. As to whether Wita Henry was an elector, other than to pointing out the differences between the ages of Wita Henry, the first respondent did not demonstrate that he is not the one and same person. For that, it is open to rely on the evidence of these witnesses. In any case, the Common Roll is the best evidence to confirm if a person is an elector. In this case, the name of Wita Henry appears on both the Preliminary and Final Common Rolls (exhibit “P12” and “P13”) and show that he was an elector.
10. This allegation will be allowed to progress further.
Undue Influence
11. There were four cases of undue influence alleged against the first respondent by his supporters with his knowledge or authority. The particulars of undue influence constituted threats and intimidation of voters by supporters of the first respondent with firearms and bush-knives at four identified polling venues on Saturday 8th July 2017. They were:
(b) Undue influence at Rumbipak Ward 6, Wage LLG
(c) Undue influence at Wapi Village Ward 2, Wage LLG
(d) Undue influence at Pura No. 2, Ward 39, Kandep Rural LLG
(e) Undue influence at Kambia No. 1, Ward 11 (Papalya), Kandep Rural LLG
12. The first respondent relied on two grounds to have these allegations dismissed. Firstly, there was no evidence to show that the persons who claimed to be victims of the alleged threats and intimidation were electors. Secondly, that the actions of the supporters of the first respondent were without the knowledge or authority of the first respondent.
13. The second respondent relied on lack of knowledge or authority of the first respondent and sought to dismiss the allegations. Otherwise it endorsed the other ground of the first respondent’s submission to have the allegations dismissed.
14. Both respondents did not contest the identities of the persons who threatened and intimidated voters at the respective polling venues. The petitioner submitted that the victims of the threats and intimidation were electors and that while there was no evidence that the persons who were identified as supporters of the first respondent acted with the knowledge or authority of the first respondent, it is sufficient to infer that they did.
(b) Undue influence at Rumbipak, Ward 6, Wage LLG
15. I will consider the first case at Rumbipak, Ward 6. The alleged victims were identified in the pleadings as John Lakai, Hoep Horal and Albert Mundumi and the supporters of the first respondent were James Kepas and others. Hoep Horal’s name appeared on the Preliminary as well as the Final Common Rolls (exhibits “P12” and “P13”). The others did not have names on either of the Common Roll. Mr. Horal’s evidence showed that a group of armed men with firearms, bows and arrows, bush-knives arrived in a Toyoya blue ten seater. They chase away the people and carried away the two ballot-boxes. He identified about ten of these men, some of them were, James Maip, James Kepas, Jeffrey Kepas and Buka Pyaso.
16. But I am not satisfied that it can be inferred from the evidence that these men identified as supporters of the first respondent acted with the first respondent’s knowledge or authority. Neither can Section 217 of the Organic Law on National and Local-level Government Elections (“Organic Law”) which provides for real justice to be observed assist the petitioner to overcome the heavy burden bestowed upon him to prove each and every element of undue influence under Section 102 of the Criminal Code and Section 215 of the Organic Law.
17. An act constituting an undue influence is a criminal offence and must be proved on a higher standard than the ordinary standard of balance of probabilities. It is for this reason that the evidence of knowledge or authority must be clear and unequivocal. Such evidence must show when, where, who and what to establish the knowledge or authority. For example, one of the petitioner’s witnesses must assert that he was present at a given place and time when the first respondent told the supporters to arm themselves with firearms and bush-knives, go and hijack ballot-box and papers at a given polling venue. This would constitute a case of the first respondent authorising his supporters to carry out an illegal act on his behalf and he would be bound by their illegal actions. It would be a case of the first respondent having knowledge of the illegal acts if a petitioner’s witness is able to testify that at a given place and time, he was present when a supporter or group of supporters of the first respondent told the first respondent that he or they would hold up voters at a given polling venue with firearms and bush-knives and hijack the ballot-box and papers.
18. No such evidence was given by Hoep Horol and the other witness, Keae Sakaroa. I agree with the respondents that there is no evidence that, the first respondent knew or authorised James Kepas and others to do what they did. I am satisfied that the evidence is lacking or failed to establish the connection between the illegal act and the first respondent. This allegation is dismissed.
(c) Undue influence at Wapi Village, Ward 2, Wage LLG
19. In the second case at Wapi Village, Ward 2, the alleged victims were identified as Lupi Angaup, Ken Kuni and Michael Kus. There is no evidence of their names appearing on the Preliminary as well as Final Common Rolls (exhibits “P12” and “P13”). A Paul Pito gave evidence that a group of men arrived in a brown ten seater vehicle whom he identified as Minat Ponap, Thomas Minap, Nupela Korr and Naal Paap with Kii Nom as the driver and threatened him and others with guns and bush-knives and took the ballot-boxes away. But the name which appeared on both Common Rolls is different. It was Paul Piro.
20. But for the reasons given at [16] and [17] above, there is no evidence that the first respondent knew or authorised the persons identified in the pleadings as Minat Ponap, Thomas Minap, Nupela Korr and Naal Paap and others to do what they did. This allegation is dismissed.
(d) Undue influence at Pura No. 2, Ward 39, Kandep Rural LLG
21. In the third case at Pura No. 2, Ward 39, the evidence of witness for the petitioner, a Reserved Policeman, Kuku Yano was that, on the direction of the Councillor for Pura No. 2, Ward 39, no polling was conducted and 100 ballot-papers were given to the petitioner’s supporters to mark for the petitioner. The rest were taken to the Councillor’s house and marked. The other witness, Anthon Timothy corroborated Mr. Yano’s evidence and further stated that the rest of the ballot-papers were taken away and marked for the first respondent. However, his evidence does not establish that he was an elector. Other than this, both witnesses did not say that the first respondent knew or authorised the Councillor to do what he did. In addition to the reasons stated at [16] and [17] above, this allegation is dismissed.
(e) Undue influence at Kambia No. 1, Ward 11 (Papalya), Kandep Rural LLG
22. In the fourth case at Kambia No. 1, Ward 11, the pleadings identified Torom Leseri, Sos Tangui and others as the supporters of the first respondent who threatened and intimidated polling officials and eligible voters including Yalo Toani and Mark Wasun at the polling venue. Instead of calling Yalo Tonai and Mark Wasun, Ben Pirin was called and gave evidence about the threats and intimidation by Torom Leseri Wass, Sos Tangui and others with firearms, axes and bush-knives and the campaign manager of the first respondent one Buka Towang arriving with a ballot-box in a helicopter at the polling venue. The name of Ben Pirin appeared on the Preliminary as well as Final Common Rolls (exhibits “P12” and “P13”) that he was an elector.
23. But for the reasons given at [16] and [17] above, Ben Pirin did not say that the first respondent knew or authorised Buka Towang to do what he did. Similarly, he did not say if the first respondent knew or authorised Torom Leseri, Sos Tangui and other supporters to threaten and intimidate polling officials and voters at Kambia No. 1, Ward 11. This allegation is dismissed.
24. In the end, each and every allegation of undue influence is dismissed.
Illegal Practices by Other Candidates and their servants and agents
25. There were five cases of illegal practices alleged against the other candidates by their supporters. They were:
(f) Hijacking of ballot-papers at Mamal, Ward 12, Wage LLG
(g) Hijacking of ballot-papers at Mumunt 1, Ward 2, Kandep Rural LLG
(h) Hijacking of ballot-papers at Iuripak, Ward 3, Kandep Rural LLG
(i) Hijacking of ballot-papers at Karekare, Ward 21, Wage Rural LLG
(j) Hijacking of ballot-papers at Peliyanjak, Ward 20, Wage LLG
(f) Hijacking of ballot-papers at Mamal, Ward 12, Wage LLG
(g) Hijacking of ballot-papers at Peliyanjak, Ward 20, Wage LLG
26. The alleged hijacking of ballot-papers at Mamal, Ward 2 and Peliyanjak, Ward 20 was done by the supporters of a candidate by the name of Jonathan Praia on Saturday 8th July 2017. According to the pleadings, at Mamal, Ward 12, the supporters were led by Poo Kolapin and the ballot-papers were taken to Michael Marabe’s house and marked. At Peliyanjak, Ward 20, the pleadings identified the leaders of the group as Michael Tambai, Frank Tindi, Ken Longaup and Willie Kai.
(h) Hijacking of ballot-papers at Mumunt 1, Ward 2, Kandep Rural LLG
(i) Hijacking of ballot-papers at Iuripak, Ward 3, Kandep Rural LLG
27. For these two cases of hijacking of ballot-papers, it was alleged that the supporters of candidate Peter Mission committed these illegal acts. At Mumunt 1, Ward 2, the supporters were led by Yapi Aum and Jeffrey Mission. At Iuripak, Ward 3, Yapi Aum and Jeffrey Mission led the supporters.
(j) Hijacking of ballot-papers at Karekare, Ward 21, Wage Rural LLG
28. For the hijacking of ballot-papers at Karekare, Ward 21, the people identified in the pleadings as being responsible and were supporters of candidate Bill Minjikuli Tindiwi were Kep Lowape, Win Lukas, John Longap and James Lowepa.
29. For all these five allegations, both respondents submitted that the evidence so far did not show that each identified candidate knew or authorised the illegal act.
30. As was submitted in the cases of undue influence, the petitioner submitted that because the supporters of these identified candidates hijacked ballot-papers, it is sufficient to infer that they were committed these illegal acts with the knowledge or authority of these candidates. Further, the respondents failed to establish during cross-examination that these persons were not supporters of these candidates. It must follow that they were supporters of these candidates and these candidates were bound by what their supporters did.
31. I reject the petitioner’s submissions. It must not be assumed that these identified candidates knew or authorised the illegal acts committed by their supporters. Where the evidence fell short of establishing the knowledge or authority of these identified candidates, the respondents were under no obligation during cross-examination to obtain an admission from the petitioner’s witnesses that they were not supporters of these candidates or elicit from the witnesses if these identified candidates knew or authorised the illegal acts. That obligation is on the petitioner to discharge.
32. In each case, none of the witnesses said that each identified candidate knew or authorised the supporters to hijack the ballot-papers. As stated earlier, the evidence should include when, where, who and what to establish the knowledge or authority of the identified candidates. The examples given in the case of undue influence are equally applicable to hijacking of ballot-papers. Typically, one of the petitioner’s witnesses must assert that he was present at a given place and time when the candidate told the supporters to arm themselves with firearms and bush-knives, go and hijack ballot-box and papers at a given polling venue. This would constitute a case of the candidate authorising his supporters to carry out an illegal act on his behalf and he would be bound by their illegal actions. In the case of a candidate having personal knowledge of the illegal act, a petitioner’s witness must be able to testify that at a given place and time, he was present when a supporter or group of supporters of the candidate told the candidate that he or they would hold up voters at a given poling venue with firearms and bush-knives and hijack the ballot-box and papers.
33. None of the witnesses made these sorts of assertions. For this reason, I uphold the respondents’ submission and dismiss each and every allegation of illegal practice namely, hijacking of ballot-papers.
Errors or omissions
34. There was one main allegation of error or omission at polling and four main allegations of errors or omissions at counting. I say main allegations because they are broad and wide ranging.
35. The sole allegation of error or omission at polling was:
(k) Failure to provide security at polling venues
36. The first respondent submitted that the Court ruled in the objection to competency that this allegation formed part of the allegations of illegal practices at polling venues of Mambal, Mumunt, Iuripak, Yumbis, Karekare, Imapiak and Peliyanjak. If the allegations of illegal practices are dismissed, this allegation should also be dismissed. The second respondent submitted that if the allegation was that it did not provide security at polling venues, the evidence of the petitioner’s witnesses established that, there was presence of a policeman at each polling venue and this allegation is misconceived. A further reason given was that, it is a misconception for the petitioner to expect a group of fully armed police and defence force personnel at each polling venue. Such a reason is untenable and should be dismissed.
37. The petitioner conceded that not all polling venues had the presence of a policeman. Where they had, it was inadequate. I consider that this allegation was supposed to be a stand-alone ground but given the way it was drafted, in the ruling on objection to competency, it was held that it be considered together with the allegations of illegal practices to determine whether or not the error or omission did affect the result of the election under Section 218 of the Organic Law. This is because an allegation of errors or omissions is quite distinct and separate from an allegation of illegal practice although, in this case, they are based on the same facts. For, to prove an error or omission under Section 218 the test is different to the one for an offence of illegal practice under Section 215. All that is necessary to prove is that firstly, the error or omission is attributed to the Electoral Commission and its officers and secondly, by the error or omission, the result of the election was affected: Section 218.
38. In this case, it is not entirely correct to say that the petitioner is restricted by the pleadings to prove that the second respondent failed to provide security. On the contrary, it is also pleaded that the second respondent failed to provide adequate security. In my view, it is open to the petitioner to prove either or both of them. When the factual allegations are read together, it will then be the allegation that due to lack of or inadequate provision of security at polling venues of Mamal, Ward 12, Mumunt 1, Ward 2, Iuripak, Ward 3, Karekare, Ward 21 and Peliyanjak, Ward 20, supporters of candidates Jonathan Praia, Peter Mission and Bill Minjikuli Tindiwi armed themselves with firearms and bush-knives and used threats and force to hijack ballot-papers from these polling venues. It is then the case that regardless of whether the allegations of illegal practices (hijacking of ballot-papers) were dismissed, the allegation of failure by the second respondent to provide security or adequate security at the polling venues remained and must be proved. In terms of proof, the evidence must show absence of security personnel or inadequate provision of security by the second respondent and as a result, ballot-papers were hijacked by supporters of these candidates and the result of the election was affected.
39. There is evidence from Senior Inspector Daniel Yangan that he and his team of policemen were tasked to provide security for Kandep Open electorate. The total manpower of policemen included police reservists was inadequate and he was unable to deploy more than one policeman to each polling venue. The deployment exercise was also hampered by lack of vehicles and as a result, some polling venues had no presence of policemen.
40. There is also evidence from the police reservist Moses Puni that he and another police reservist were outnumbered by a group of armed men including Ben Minjikuli and four ballot-boxes for Karekare and Peliyanjak were carried away by the armed men. The police station commander of Kandep Police Station Jack Waso also confirmed deploying three police reservists to Yumbis/Karekare, Peliyanjak and Imapiak polling venues.
41. The evidence show that there was either lack of or inadequate provision of security by the second respondent and establish a prima facie case of errors or omissions by the second respondent. This allegation will progress further.
42. The four errors or omissions at counting were:
(l) Failure to conduct scrutiny of votes at counting process.
(m) Counting of Hijacked Ballot boxes.
(n) Apprehension of bias by the Returning Officer, Ben Besawe.
(o) Errors and Omissions in counting process.
(l) Failure to conduct scrutiny of votes at counting process
43. Firstly, the ground relied upon by the first respondent to have this allegation dismissed was that, the petitioner’s witnesses Yapis Kaia, Paul Elias and Luke Angart did not say that they and other candidates’ scrutineers were refused to inspect other candidates’ trays. For, they must make the same assertion to corroborate Noel Sandal’s statement that scrutineers of candidates were refused to inspect other candidates’ trays. Secondly, it was also pleaded that Mr. Sandal saw one of the counting officials misplaced a ballot-paper for Jonathan Praia by placing it in the tray of the first respondent and that at count no. 40, the Returning Officer Mr. Ben Besawe refused scrutineers of identified candidates from the scrutiny process. However, there is no mention of these incidents by Mr. Sandal in his affidavit.
44. The second respondent submitted that the assertions that candidates’ scrutineers were stopped from inspecting other candidates’ trays and were excluded from the scrutiny process are misconceived because they part of the process put in place by the Returning Officer to ensure a smooth and orderly scrutiny of votes and within his discretion.
45. As to the first respondent’s submission, I consider that the question of corroboration to establish the truth or otherwise of an assertion is a matter for consideration at the close of all evidence. It should be added that it was not contended by the first respondent that the evidence of Mr. Sandal is inconsistent with the evidence of the other witnesses and should be rejected. Even if it is raised, the question of credibility is a matter that should be left until close of all evidence and the Court will be better placed to assess it.
46. The second respondent’s ground is not on the lack of evidence but the entitlement by the Returning Officer to put in place rules for the orderly and smooth conduct of scrutiny of votes. In my view, this sort of ground supports the petitioner’s case that the scrutineers were stopped from inspecting other candidates’ trays. It will be for the Returning Officer to explain why these rules were put in place and if scrutineers were stopped by him to inspect other candidates’ trays. The evidence of Noel Sandal is sufficient to the extent that the Returning Officer was said to have put in place some conditions for scrutiny of votes in relation to 10 ballot-boxes, one of them being that, scrutineers were not allowed to inspect other candidates’ trays (para. 51(2) of Noel Sandal’s affidavit-exhibit “P9”). This allegation will be allowed to progress further.
47. The further allegation that ballot-papers were misplaced during scrutiny is not supported by evidence because at para. 76 of his affidavit Mr. Sandal on the one hand deposed that he saw one of the counting officials and tribesmen of the first respondent by the name of Nanes Kamakan placed four ballot-papers marked for Jonathan Praia in the first respondent’s tray. Then he said that the error was later rectified by removing them from the first respondent’s tray and placing them in Mr. Praia’s tray. Finally, while I accept the respondent’s submissions that Mr. Sandal did not state in his affidavit that scrutineers of candidates were excluded from scrutiny of votes this evidence came from witnesses Yapis Kaia and Paul Elias. These aspects of the lack of scrutiny will not be dismissed but will progress further.
(m) Counting of Hijacked Ballot boxes
48. The alleged error or omission was not the Returning Officer’s failure to observe the objection process under Section 153A of the Organic Law but one of being aware of the alleged tampering of 10 ballot-boxes at identified polling venues and yet allowed them to be admitted into scrutiny.
49. It was submitted by the first respondent and supported by the second respondent that no evidence was led in relation to the ballot-boxes of 6 identified polling venues to show that they were tampered with. They were Kandep Station, Porokale, Testes 2, Kupanda, Supa 2 and Kombolos 1. For the remaining 4, if the allegations of hijacking of ballot-boxes at Lugutenges 1, Wapi, Peliyanjak and Karekare were struck out, this allegation should also be struck out.
50. I accept the respondents’ submissions that no evidence was led in relation to tampering or hijacking of ballot-boxes for polling venues of Kandep Station, Porokale, Testes 2, Kupanda, Supa 2 and Kombolos 1. The allegations of tampering or hijacking of ballot-boxes at these polling venues are struck out.
51. As to the remaining 4 polling venues, there is no evidence of tampering or hijacking of ballot-boxes at Rugentenges 1. It will be struck out. But there is evidence from Mr. Paul Pito at para. 7 of his affidavit (exhibit “P46”) that ballot-boxes were hijacked by Minat Ponap, Thomas Minap, Nupela Korr and Naal Paap at Wapi village, Ward 2 on 8th July 2017. The hijacking of ballot-boxes at remaining polling venues of Imapiak and Lungetenges 2 were struck out at the competency stage and so will not be considered.
(n) Apprehension of bias by the Returning Officer, Ben Besawe
52. The first respondent submitted that the Court held as being competent the allegation that the Returning Officer committed errors or omissions when he refused to admit into scrutiny 21 ballot-boxes and gave no reasons for it. Secondly, the decision was contrary to the direction of the Electoral Commissioner, whose direction was to admit them to scrutiny. Thirdly, the Returning Officer proceeded with counting despite suspension of counting and finally, without the presence and participation of the candidates’ scrutineers.
53. It was further submitted on behalf of the first respondent that there was no evidence that on 17th July 2017 the Returning Officer refused to admit 21 ballot-boxes and contrary to the contention that he continued to count ballot-boxes until 7 were left. The evidence also indicated that there was a direction from the Electoral Commissioner on 22nd July 2017 that the Returning Officer excluded ballot-boxes from being admitted to scrutiny. Finally, the evidence also indicated that counting was not suspended and eliminations were done in the presence of candidates’ scrutineers. All these matters point to a case where the discretion conferred on the Returning Officer was improperly exercised or abused and the no case submission should be upheld.
54. The second respondent’s grounds for a no case were that Mr. Sandal conceded during cross-examination that the Returning Officer had informed him to challenge his decision by way of an election petition, thus that advice was correct. Secondly, Mr. Sandal denied the defence assertion that he was aware of the direction of the Electoral Commissioner of 22nd July to exclude ballot-boxes. It was submitted that decision of the Returning Officer to act on this direction and exclude the ballot-boxes from scrutiny was valid. Finally, the allegation that the recommencement of counting on 2nd August was contrary to the direction of the Provincial Election Steering Committee Chairman Dr. Samson Amean, Provincial Election Manager Mr. Anton Iamau and Acting Provincial Police Commander Mark Yangan failed to appreciate the powers conferred on the Returning Officer to conduct scrutiny of votes. If they did, the Returning Officer is conferred with the requisite authority to exclude the ballot-boxes from being admitted to scrutiny.
55. Putting these submissions into perspective, the petitioner was called and 10 other witnesses were called to give evidence in relation to these allegations. They were Mr. Sandal, Stanley Bernard, Sergeant Smith Kamefa, Yanson John Poro, Luke Angart, Paul Elias, Yapis Kaia, Christopher Was, Anton Iamau and Chief Inspector Redmond Danjiri.
56. A quick review of the evidence of these witnesses shows that there is a dispute in relation to the decision of the Returning Officer to refuse to admit 21 ballot-boxes to scrutiny. The petitioner asserted that there was a letter from the Electoral Commissioner directing the Returning Officer to admit them. The direction was in a form of a letter dated 19th July 2017. Contrary to this direction, the Returning Officer did not admit to scrutiny these ballot-boxes. The Returning Officer’s decision was based on a subsequent direction from the Electoral Commissioner, whose direction was not to admit these ballot-boxes to scrutiny. It was also in a form of a letter dated 22nd July 2017. The petitioner was aware this letter but did not sighed it.
57. The combine effect of the evidence of the petitioner’s witnesses is that despite the Returning Officer’s undertaking to the scrutineers that he would not admit 21 ballot-boxes to scrutiny, he did. Even he did not comply with the direction from the Electoral Commissioner of 19th July. He claimed that he acted on a subsequent direction from the Electoral Commissioner of 22nd July directing him to admit these ballot-boxes to scrutiny.
58. The Electoral Manager Mr. Anton Iamau recalled receiving the letter of 19th July but was not certain when he delivered it to the Returning Officer. Its delivery or receipt by the Returning Officer is important to the decision to exclude these ballot-boxes from scrutiny. On 23rd July a fight broke out at the counting centre between scrutineers of candidates, counting officials and security personnel. It was sparked by an altercation between a scrutineer of the first respondent by the name of Michael Mai Philipo and a police officer after the former refused to leave the counting room. The ballot-box for Gini 1 was flung to the floor and damaged while the ballot-papers for Tarapis ballot-box were torn up by counting officials.
59. Later counting progressed but still there were disagreements like on 25th July where seven ballot-boxes from Gini 1, Laguni, Kindule, Titip, Kitali, Kanean and Tarapis were not counted. On 29th July counting was suspended by the Returning Officer and without notice to scrutineers and candidates, on 2nd August elimination of candidates took place without completing the remaining ballot-boxes. In my view there was already a case of failure by the Returning Officer to take charge and control of the scrutiny process from that point which resulted in the integrity of the votes being counted and allocated to candidates being compromised.
60. I am further of the respectful view that the second respondent’s grounds for a no case are based on law rather than evidence. For instance, the ground that Mr. Sandal conceded that the Returning Officer had informed him to challenge his decision by way of an election petition is a question of law. The real question is whether the advice by the Returning Officer is valid and should be left until the close of all evidence. Similarly, the submission that decision of the Returning Officer to act on the direction of the Electoral Commissioner of 22nd July and excluded the ballot-boxes from scrutiny is a question of law. The real question is whether the decision by the Returning Officer to exclude the ballot-boxes based on this direction was valid. Finally, the submission that the recommencement of counting on 2nd August was contrary to the direction of the Provincial Election Steering Committee Chairman Dr. Samson Amean, Provincial Election Manager Mr. Anton Iamau and Acting Provincial Police Commander Mark Yangan failed to give prominence to the powers conferred on the Returning Officer to conduct scrutiny of votes is a question of law.
61. On the evidence, I am satisfied that a prima facie case has been established in relation to these allegations and the defence will be called upon to answer to them.
(o) Errors and Omissions in counting process
62. The allegations of errors or omissions which survived the objections were that the Returning Officer failed to allow quality check or purity check before and after elimination round of each candidate, elimination numbers 13 to 24 were conducted with the knowledge and presence of candidates’ scrutineers even though counting was supposed to be suspended. I add that there are a combination and continuation of the previous allegation of apprehension of bias by the Returning Officer and they demonstrate that the manner in which the counting was conducted resulted in a number of discrepancies, they being, at elimination no. 29, a total of 7,948 votes were distributed to the petitioner and first respondent which included exhausted ballot-papers and secondly, less number of exhausted ballot-papers (7) recorded at elimination no. 21 and a high number (210) recorded at elimination no. 24. Despite scrutineers’ queries, no remedial action was taken by the Returning Officer.
63. The ground relied upon by the first respondent to show that he has no case to answer is not on the lack of evidence in relation to the suspension and recommencement of counting and absence of scrutineers at counting but that of lack of evidence of objection to the figures in Form 66A. It was submitted that in the absence of such evidence and from the figures in Form 66B from exclusion nos. 21 to 24, the tally indicated that it was not completed correctly and when the figures of distributed ballot-papers are added, the number of exhausted ballot-papers show that at the end of elimination no. 29 the number of ballot-papers not accounted for are 30. Thus, 30 ballot-papers would not affect the result, it was submitted, as the winning margin is 3,004 votes.
64. The second respondent grounded it’s no case submission on the proposition that except for witness Stanley Bernard, all the other witnesses’ evidence including that of the petitioner is hearsay and inadmissible. As for Mr. Bernard, he admitted during cross-examination that he was not a scrutineer for any of the candidates for Kandep Open electorate. Based on this admission, it was submitted on behalf of the second respondent that he was an illegal scrutineer and his evidence should be rejected.
65. If the first respondent does not contest the sufficiency of the evidence presented so far in relation to how the counting was conducted and the errors or omissions identified by the petitioner’s witnesses except for the assertion that the errors or omissions did not affect the result of the election, the evidence is sufficient. As to whether the result was affected, it is quite obvious that there is conflicting evidence on this issue. According to the petitioner the exhibits of Forms 66A and Form 66B contained a number of discrepancies some of them have been identified in his written submissions. For instance, on 29th elimination the ballot-papers distributed to each of the candidates, the petitioner and the first respondent received a total of 7,948 votes inclusive of exhausted votes when the actual votes was 8,452 for candidate Peter Mission.
66. The petitioner alleged that these discrepancies were a result of a combination of factors, some of them, as was noted earlier, are related and connected to the previous ground on apprehension of bias by the Returning Officer. For instance, the absence of scrutineers at the counting apparently due to the suspension of counting at the relevant time and as a result the scrutineers were not able to verify the correctness of the votes before the entry of tally and no quality check or purity check at the elimination round.
67. These are serious allegations and evidence to prove them must be clear and unequivocal. As to the question of proof, I reject the submission of the second respondent that the petitioner’s witnesses’ evidence is hearsay and inadmissible. It is not. Mr. Bernard’s evidence highlighted these matters which show a prima facie case of flaws in the counting process and the evidence of Yapis Kaia, the scrutineer for Hoep Horol who was absent, Yanson Poro the scrutineer for Dir Ambone who was also absent and Mr. Sandal the scrutineer for the petitioner who was also absence go to show that they were absent on the dates when counting was supposed to be suspended but proceeded without their knowledge.
68. It is said that Form 66B is authentic or genuine if it is countersigned by a scrutineer of each eliminated candidate. In this case the Form 66B was countersigned by Rueben Sei for the first respondent and Langan Muri for Jonathan Praia on 25th July, Rueben Sei again for the first respondent and Mathew Lale for Peter Mission on 26th July and Rueben Sei again for the first respondent and Mathew Lale again for Peter Mission on 2nd August. What is apparent is that the Form was not countersigned by Mr. Sandal, the scrutineer of the petitioner as the final eliminated candidate on 2nd August 2017.
69. Mr. Sandal’s evidence is corroborated by Chief Inspector Redmond Danjiri who said in his oral evidence that he did not see scrutineers of candidates countersign Form 66B in addition to his evidence that he saw figures on the tally board did not match the number of ballot-papers. If the scrutineer for the petitioner who was last to be eliminated did not countersign Form 66B before the declaration was made by the Returning Officer, the question is why did the Returning Officer allow this to happen, especially when there are apparent flaws or discrepancies in the counting process and he must be called to explain. Finally, Constable Christopher Was said in his oral evidence that he did not see any quality check being done before the elimination round.
70. On the evidence presented, I am satisfied that a prima facie case has been established for this allegation to process further.
Order
71. The orders are:
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Fairfax Legal Lawyers: Lawyers for Petitioner
Simpsons Lawyers : Lawyers for First Respondent
Kawat Lawyers: Lawyers for Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2018/457.html