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Agarobe v Peter [2023] PGNC 31; N10141 (27 February 2023)

N10141


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO 67 OF 2022


IN THE MATTER OF A DISPUTED RETURN FOR THE
CENTRAL PROVINCIAL ELECTORATE


ROBERT AGAROBE
Petitioner


V


RUFINA PETER
First Respondent


ELECTORAL COMMISSION
Second Respondent


Waigani: Cannings J
2023: 22nd, 27th February


ELECTIONS – PETITIONS – objections to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether petition adequately sets out facts relied on to invalidate election – s 217 (real justice to be observed) – whether s 217 is to be applied when determining objections to competency of petition – whether a ground of a petition needs to observe distinction between illegal practices under Organic Law, s 215 and errors or omissions of electoral officers under Organic Law, s 218.


The respondents to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) objected to competency of the petition, which consisted of eight grounds of challenge (one of which was abandoned). All grounds of the petition alleged errors or omissions by the returning officer or other electoral officers of the Electoral Commission in the counting of votes. The respondents argued that each ground of the petition failed to comply with s 208(a) of the Organic Law on National and Local-level Government Elections in that it: (i) failed to give sufficient details of the alleged facts relied on; and (ii) was confusing and internally inconsistent as, having set out a number of alleged errors and omissions of electoral officers, it alleged (without sufficiently specifying) commission of criminal offences by those officers, and invoked a wrong provision, or in some instances no provision, of the Organic Law to claim the relief sought (a declaration that the first respondent was not duly elected, an order for a recount of ballot-papers, an order for a by-election etc). The respondents claimed the petition was incompetent and should be dismissed. The petitioner opposed both objections to competency and argued that the Court should invoke s 217 (real justice to be observed) of the Organic Law and find that the respondents are nit-picking and relying on technicalities in an attempt to divert the court’s attention from the substantial merits of the case.


Held:


(1) Section 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”. The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition. Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed.

(2) A ground in a petition will meet those requirements when it identifies the facts said to invalidate the election in terms of the Organic Law. It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on. It will also specify, in terms of the Organic Law, if necessary, how the illegal practices or errors or omissions affected the result of the election and any other matters required by the Organic Law to be proven.

(3) Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency.

(4) The respondents’ complaint that the petition lacked detailed facts was not sustained. The underlying facts alleged to be errors and omissions on the part of electoral officials were adequately stated in each ground of the petition.

(5) However, each ground failed to observe the distinction drawn by the Organic Law between illegal practices (eg bribery and undue influence) by a candidate or another person with the candidate’s knowledge or authority (recognised in s 215 of the Organic Law) and errors or omissions of electoral officers (recognised in s 218 of the Organic Law). Each ground, having alleged and set out details of errors or omissions by electoral officials, failed to clearly allege, as required by s 218(1), that those errors or omissions affected the result of the election. Instead, the grounds alluded confusingly to matters required to be proven under s 215 of the Organic Law and/or introduced vague and scandalous allegations of commission by electoral officials of the criminal offence of conspiracy under the Criminal Code.

(6) As a consequence, each ground of the petition failed to set out the facts relied on to invalidate the petition in a comprehensible, orderly and logical manner and failed to state the petitioner’s case in a way that fairly put the respondents on notice as to the case that they had to meet.

(7) The petition failed to meet the requirements of s 208(a) of the Organic Law and was entirely dismissed.

Cases Cited:


The following cases are cited in the judgment:


Amet v Yama [2010] 2 PNGLR 87
Beseoh v Bao (2003) N2348
Eoe v Maipakai (2013) N5066
Hagahuno v Tuke (2020) SC2018
Holloway v Ivarato [1988] PNGLR 99
Kamma v Itanu (2007) N3246
Karo v Kidu [1997] PNGLR 28
Kikala v Electoral Commission (2013) SC1295
Kopaol v Embel (2003) SC727
Manase v Polye (2009) N3718
Mune v Agiru (1998) SC590
Potape v Undialu (2018) SC1680
Saonu v Dadae (2004) SC763
Sauk v Polye [2004] 2 PNGLR 241
Tulapi v Lagea (2013) N5235
Yama v Yagama (2012) N4928


Counsel


T Waisi, for the Petitioner
S Tadabe, for the First Respondent
A Ninkama, for the Second Respondent


27th February,2023


  1. CANNINGS J: This is a ruling on objections to competency of an election petition. The petition, consisting of eight grounds of challenge, all alleging errors or omissions by the returning officer or other electoral officers of the Electoral Commission in the counting of votes, was filed by unsuccessful candidate Robert Agarobe (the petitioner) disputing the election of first respondent Rufina Peter as member for Central Provincial in the 2022 general election. The petitioner seeks a declaration that the first respondent was not duly elected, an order for a recount of ballot papers and an order for a by-election. The Electoral Commission is the second respondent.

GROUNDS OF THE PETITION


  1. The eight grounds are described in the following terms:
    1. Errors and omissions committed by the returning officer and the assistant returning officer in inclusion of disputed/suspected tampered votes in the primary count.
    2. Errors and omissions – unexplained decision by returning officer to round off the absolute majority margin by an additional 802 ballot papers from 77,599 to 80,000.
    3. Errors and omissions – unexplained discrepancies and variances in figures during eliminations.
    4. Errors and omissions – addition of a large number of formal votes were declared as exhausted votes without explanation or notice from the returning officer.
    5. Unauthorised, suspicious possession of unused ballot papers, remnants of used ballot-papers (butts) and ballot-box seals by counting officials outside counting periods.
    6. Errors and omissions – continuation of counting in the absence of scrutineers, without notice or consultation.
    7. Errors and omissions – discrepancies in the distribution of votes.
    8. Errors and omissions – proceedings at the scrutiny not open to the inspection of scrutineers.

GROUNDS OF OBJECTION TO COMPETENCY


  1. The respondents argue that each ground of the petition fails to comply with s 208(a) of the Organic Law on National and Local-level Government Elections. Section 208 (requisites of petition) states:

A petition shall—


(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).


  1. The respondents argue that each ground of the petition:
  2. The respondents claim the petition is therefore incompetent and should be dismissed.

METHOD


  1. The respondents have each filed a notice of objection to competency. The grounds of objection overlap to a large extent, so I will deal with both objections together.
  2. I will set out each ground of the petition, and then in relation to each ground, address and determine the grounds of objections.

GROUND 1 OF THE PETITION


  1. This ground of the petition states:
    1. ERRORS & OMISSIONS COMMITTED BY THE RETURNING OFFICER AND THE ASSISTANT RETURNING OFFICER IN INCLUSION OF DISPUTED/SUSPECTED TAMPERED VOTES IN THE PRIMARY COUNT
    2. On Saturday, 30 July 2022, between 3-4 am the Assistant Returning Officer Ian Karo announced the commencement of quality checks on primary votes on Count 125 from Team 68 from Woitape LLG. Sorting and distribution of Votes 2 and 3 to candidates began, during which time:

(i) Assistant Returning Officer Ian Karo advised scrutineers that he believed there had been tampering of votes therein as he had observed an initial 200 votes cast using similar writing pen and handwriting, with the same style and pattern marking. These 'tampered votes' were marked Vote 1 to Rufina Peter and Votes 2 and 3 to other candidates.


(ii) As counting continued a total of 7000 votes bearing the same pattern as those suspected of being tampered votes were discovered in Counts 115 to 125 (11 ballot boxes). The Assistant Returning Officer described this as "extraordinary, not normal, and irregular". He advised scrutineers that in his view there were serious errors on these 7000 ballot papers.


(iii)The scrutineers objected to the inclusion of these 7000 ballot papers, demanding that they be declared informal and excluded from the primary count.


  1. Counting was suspended at 4:30 am (30 July 2022). Counting recommenced at 11 am that same day during which time:

(i) The scrutineers asked the Returning Officer Peter Malaifeope (in the presence of Assistant Returning Officers Ian Karo and Salome Veali) for information on the status of the disputed 7000 ballot papers by virtue of Section 153A(1) (a), (b) and (4) of the Organic Law on National and Local-level Government Elections.


(ii) The Returning Officer announced that he had decided not to exclude the disputed 7000 ballot papers. He decided that they would be included as formal votes.


(iii) No further explanation or justification for this decision was provided by the Returning Officer. He advised candidates and their scrutineers to bring any concerns they had with his decision before the National Court.


  1. The disputed 7000 ballot boxes were subsequently included as formal votes in the primary count and impacted the aggregated total primary votes that were used to determine the Absolute Majority.

24. On 5 August 2022:


(i) First Respondent Rufina Peter was declared the winner with 62,361 votes.


(ii) The Petitioner was the runner-up with 58,917 votes.


  1. The difference between the total votes collected by First Respondent Rufina Peter and the Petitioner was 3,444 votes.
  2. By including the 7000 disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, and with no explanation or justification for his decision the Returning Officer's act and conduct contravened Sections 168, 169, 147, 151 (c), 152 and 153(1)(a) and (b) of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual.
  3. The inclusion of the disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, is or was likely to or did affect the outcome of the election, as envisaged by Section 215(3) Organic Law on National and Local-level Government Elections as the winning margin was 1721 votes and the difference between the Petitioner and the First Respondent was 3444 votes and the Petitioner was short of 1723 votes to reach the absolute majority.
  4. The alleged acts and omissions by the Returning Officer and the two Assistant Returning Officers in including the 7000 disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, and with no explanation or justification for his decision the Returning Officer's act and conduct contravened Sections 516 (a) and 517 (g) or (h) of the Criminal Code Act 1974.
  5. In summary, this ground of the petition alleges that during quality checks on primary votes from the Woitape Local-level Government area, assistant returning officer Ian Karo identified 7,000 ballot papers in similar writing pen and handwriting that were marked Vote 1 to Rufina Peter, the first respondent. He told scrutineers that was extraordinary and irregular. But, despite objections raised by scrutineers, the returning officer Peter Malaifeope decided without explanation to include the 7,000 ballot papers as formal votes.
  6. This was contrary to ss 168, 169, 147, 151(c), 152 and 153(1)(a) and (b) of the Organic Law and “is or was likely to or did affect the outcome of the election, as envisaged by s 215(3)” of the Organic Law “as the winning margin was 1,721 votes and the difference between the petitioner and the first respondent was 3,444 votes and the petitioner was short of 1,723 votes to reach the absolute majority”.
  7. Furthermore, it was alleged that the acts and omissions of the returning officer and two assistant returning officers in including the 7,000 disputed votes contravened ss 516(a) and 517(g) of the Criminal Code.
  8. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. Ms Tadabe for the first respondent, supported by Mr Ninkama for the second respondent, submitted that ground 1 of the petition failed to set out “base facts” to identify what the lawful procedure for dealing with objections is, what actually transpired and how procedures were not followed and there should have been cross-references to the relevant law. The petitioner is guilty of making general allegations in the hope that something favourable might happen along the way at the trial proper, which is not permissible (Tulapi v Lagea (2013) N5235).
  2. The respondents, Ms Tadabe submitted, require further particulars to properly understand this ground of the petition, which, as pointed out in Manase v Polye (2009) N3718, is a clear indication of non-compliance with s 208(a) of the Organic Law. Particulars should have been given of facts, such as:
  3. I agree with the respondents’ contention that s 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”. The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition. Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed under s 210 (no proceedings unless requisites complied with) of the Organic Law, which states:

Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 [deposit as security for costs] are complied with.


  1. A petition is required to set out the basic factual allegations that will allow the respondents and the Court to appreciate the petitioner’s case. The petition is not required to set out the evidence by which the allegations will be proven (Holloway v Ivarato [1988] PNGLR 99, Mune v Agiru (1998) SC590, Karo v Kidu [1997] PNGLR 28).
  2. I uphold the submission of Mr Waisi for the petitioner that the level of detail in the particulars sought by the respondents is unrealistic and unnecessary. The facts stated are sufficient. The kernel of ground 1 is that assistant returning officer Karo informed scrutineers that it appeared that 7,000 ballot papers had been tampered with, that objections were made to those ballot papers being counted, and that returning officer Malaifeope decided without explanation to count them.
  3. I consider that the respondents are asking, unreasonably, for evidence in addition to facts, which is unnecessary.
  4. I find that ground 1 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. Mr Ninkama, for the second respondent, supported by Ms Tadabe for the first respondent, submitted that the way ground 1 is drafted is very confusing. It is described as “Errors and omissions committed by the returning officer and the assistant returning officer in inclusion of disputed/suspected tampered votes in the primary count”. It gives details of those errors and omissions: there were 7,000 ballot papers identified as being tampered with, which were objected to, which were counted without explanation. It gives every indication through the heading of the ground and in paragraphs 21 to 26, that it is a ground based on s 218(1) (immaterial errors not to vitiate election) of the Organic Law, which states:

... 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.


  1. But suddenly at paragraph 27, the ground departs from the course set by its heading and the preceding paragraphs by introducing the allegation that “the inclusion of the disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, is or was likely to or did affect the outcome of the election, as envisaged by s 215(3) Organic Law on National and Local-level Government Elections”.
  2. That allegation is vague due to use of the alternative propositions “is or was likely to or did affect the outcome of the election”, and is confusing due to the reference to s 215(3) of the Organic Law.
  3. Section 215(3) is part of s 215 (voiding election for illegal practices), which is the other provision of the Organic Law, apart from s 218, which can be relied upon by a petitioner to invalidate an election or return. Section 215 states:

(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.


  1. Section 215 provides the circumstances in which the court can declare that a person returned was not duly elected or that an election can be (or in some cases shall be) declared void. Section 215 requires proof of commission of an “illegal practice”. The Supreme Court in Mune v Agiru (1998) SC590 held that an “illegal practice” means a criminal offence of the sort created by s 178 (illegal practices) of the Organic Law or Division III.3 (corrupt and improper practices at elections) of the Criminal Code. It therefore includes the offences of undue influence and bribery under ss 102 and 103 of the Criminal Code.
  2. An “illegal practice” is not the breach of Organic Law provisions such as those in Part XIV (the scrutiny), containing ss 147 to 172, which regulate the manner of counting votes. Breach of any of those provisions will not amount to commission of a criminal offence and can only be properly described as an “error” or “omission”, which is the terminology used in s 218(1) (Eoe v Maipakai (2013) N5066).
  3. I uphold those submissions of Mr Ninkama and Ms Tadabe. Paragraph 27 of the petition has incorrectly and confusingly invoked s 215(3) of the Organic Law, when it should have invoked s 218(1), and that being the case, it should have alleged that the errors or omissions referred to in the preceding paragraphs “did ... affect the result of the election”. Injia J as he then was explained this in Beseoh v Bao (2003) N2348:

Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.


  1. The Supreme Court in Amet v Yama [2010] 2 PNGLR 87 emphasised the importance of pleading both that the result of the election was affected and how it was affected. Ground 1 of the petition fails to meet these requirements.
  2. Another problem with ground 1 is the general allegation in paragraph 26 of the breach of multiple provisions of the Organic Law:

... the Returning Officer's act and conduct contravened Sections 168, 169, 147, 151(c), 152 and 153(1)(a) and (b) of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual.


  1. This is confusing, for the reasons explained by Salika J as he then was in Kopaol v Embel (2008) N3319 (which is consistent with what Injia J said was required in Mune):

In this case the allegation relates to an alleged breach of a statutory duty by the Electoral Commission but the statutory provision that provides that duty has not been specifically pleaded in the petition. To me that is fatal because the petitioner alleged unlawful actions by the second respondent by its servants and agents by moving or shifting polling from a gazetted polling place to another place, but has not stated what law they broke by doing that. It would be only fair if he was to clearly state what law the servants and agents of the second respondent broke.


  1. Mr Ninkama, supported by Ms Tadabe, highlighted further confusion in the case to be met in ground 1 of the petition arising from its final paragraph, 28, which states:

The alleged acts and omissions by the Returning Officer and the two Assistant Returning Officers in including the 7000 disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, and with no explanation or justification for his decision the Returning Officer's act and conduct contravened Sections 516(a) and 517(g) or (h) of the Criminal Code Act 1974.


  1. Paragraph 28 makes an extraordinary allegation against the returning officer, and apparently the two assistant returning officers named earlier in ground 1, that they have each committed serious offences under the Criminal Code.
  2. Section 516 (conspiracy to commit other offences) of the Code states:

A person who conspires with another—


(a) to commit an offence that is not a crime; or

(b) to do an act in any part of the world that if done in Papua New Guinea would be an offence that is not a crime, and that is an offence under the laws in force in the place where it is proposed to be done,


is guilty of a misdemeanour.


Penalty: Imprisonment for a term not exceeding three years.


  1. Section 517 (other conspiracies) of the Code states:

Subject to Section 518, a person who conspires with another—


(a) to prevent or defeat the execution or enforcement of any law; or

(b) to cause any injury to the person or reputation of a person; or

(c) to depreciate the value of any property of a person; or

(d) to prevent or obstruct the free and lawful disposition of any property by its owner for its fair value; or

(e) to injure a person in his trade or profession; or

(f) to prevent or obstruct, by means of any act or acts that if done by an individual person would constitute an offence on his part, the free and lawful exercise by any person of his trade, profession or occupation; or

(g) to effect any unlawful purpose; or

(h) to effect any lawful purpose by any unlawful means,


is guilty of a misdemeanour.


Penalty: Imprisonment for a term not exceeding three years.


  1. These allegations in paragraph 28 are noxious for the following reasons:
  2. Paragraphs 27 and 28 have, as highlighted by Mr Ninkama in his submission, introduced into a ground of the petition that purported to expose errors or omissions of electoral officers, allegations of criminal offences. These paragraphs conflate the two categories of grounds on which a petition can be based:
  3. This is what is known as ‘alternative pleading’, which is impermissible (Kopaol v Embel (2003) SC727, Potape v Undialu (2018) SC1680).
  4. I uphold the respondents’ arguments that ground 1 of the petition is defective in the following respects:
  5. The upshot is that the petition appears not to properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It appears not to meet the requirements of s 208(a) of the Organic Law.
  6. Mr Waisi for the petitioner had no effective counter-argument to any of the above individual propositions but did raise a significant point as to the approach that should be taken by the court if the court accepts them. Well, I do accept them. The respondents have raised pertinent points, the sort relied on in many previous cases to dismiss grounds of a petition and sometimes the whole petition. Criticism of the drafting of ground 1 is warranted. Ground 1 is clearly defective.
  7. Mr Waisi relies on s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.


  1. Mr Waisi submitted that the respondents are nit-picking and relying on technicalities in an attempt to divert the court’s attention from the substantial merits of the case.
  2. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies from the beginning of an election petition case (including during hearing of objections to competency), throughout the trial, and right to the end. That has not always been accepted to be the law, but definitely is now, due to the recent five-Judge decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018.
  3. Mr Waisi has rightly placed emphasis on that decision. Being the product of a five-Judge Supreme Court bench (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J, Makail J) its authority is overwhelming; and it is worth noting that it is not without precedent.
  4. The question of whether s 217 applies when hearing objections to competency was addressed in the 2013 decision of the Supreme Court (Salika DCJ, Cannings J, Kariko J) in Kikala v Electoral Commission (2013) SC1295 in these terms:

For many years the conventional view has been that s 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency s 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:


It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.


With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to s 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.


The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:


With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.


In Jimson Sauk v Don Pomb Polye (2004) SC769, the Court (Sakora J, Sevua J, Gavara-Nanu J) urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency:


We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama ... is as aptly described by Hinchliffe J in another election case, Benias Peri v Nane Petrus Thomas EP 73 of 2003 20.04.04 unreported, when commenting on another National Court decision that had been relied on and referred to him:


With all respect to the trial Judge, it seems to me that his requirements to satisfy s 208(a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard.


This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of his Honour. Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.


We also note that in more recent times the National Court has in some cases taken s 217 into account when determining objections to competency, eg Steven Pirika Kamma v John Itanu (2007) N3246 (Kandakasi J) and Peter Charles Yama v Anton Yagama (2012) N4928 (Cannings J).


  1. So, what was stated so momentously and forcefully by the five-Judge Supreme Court in Hagahuno v Tuke in 2020 has a strong lineage going back at least to 2004 with the decisions in Saonu v Dadae (2004) SC763 and Sauk v Polye [2004] 2 PNGLR 241 and continuing in 2013 with Kikala v Electoral Commission (2013) SC1295, and supported along the way by the National Court decisions in Kamma v Itanu (2007) N3246 and Yama v Yagama (2012) N4928.
  2. What this means is that in determining this objection to ground 1 of the petition, I must:
  3. Applying those principles to the respondents’ objections, I consider, still, that the defects in ground 1 of the petition are so fundamental and extensive, they prevent this ground from being properly regarded as meeting the requirements of s 208(a) of the Organic Law.
  4. Ground 1 of the petition makes no sense. Yes, it raises a serious allegation: that 7,000 suspect ballot papers showing the No 1 vote for the first respondent were improperly counted. But the allegation is made in such a vague and illogical way as to render it incapable of being proven.
  5. The confusing reference to s 215 of the Organic Law in paragraph 27 and the scandalous and unsustainable allegations in paragraph 28 cast doubt on the substantial merits and good conscience of this case. I do not think I am being overly-technical. Nor am I nit-picking. The respondents’ objections – at least as they concern the second category of objections – are well founded.
  6. Having close regard to s 217 of the Organic Law, the defects in ground 1 of the petition warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 1 is struck out.

GROUND 2 OF THE PETITION


  1. This ground of the petition states:
    1. ERRORS & OMISSIONS - UNEXPLAINED DECISION BY RETURNING OFFICER TO ROUND OFF THE ABSOLUTE MAJORITY MARGIN BY AN ADDITIONAL 802 BALLOT-PAPERS FROM 77,599 TO 80,000
    2. At 9:30 am on 2 August 2022, the Returning Officer (in the company of Assistant Returning Officers Ian Karo and Salome Veali) commenced proceedings for the day at the Control Centre at the Ben Moide Club, Murray Barracks, National Capital District:

(i) The first order of business was to ascertain the Absolute Majority.


(ii) In consultation with the Returning Officer and in the presence of scrutineers, the formal votes were firstly listed for each of the 22 candidates on the tally sheet. This was then used to arrive at and confirm the aggregate total primary votes as 159,196 votes for all 5 districts in Central Province.


(iii) The lawful, absolute majority is derived by dividing the aggregated total primary votes by 2 and adding 1:


159,196 divided by 2 = 79, 598

79,598 + 1 = 79, 599 (as the Absolute Majority)


  1. With no explanation or justification the Returning Officer decided to "round off" the figure of 79,599 to 80,000. This was an addition of 802 votes without explanation as to where these additional votes originated from. A declaration was then made by the Returning Officer that the Absolute Majority for the Central Province was 80,000 with the Returning Officer stating words to the effect of:

"I as the Returning Officer will use my discretion to round off the 79, 599 absolute majority to the nearest 100 by making 80, 000 formal votes as the absolute majority votes."


  1. Demands/objections by scrutineers to the calculation of the Absolute Majority of 80,000 and the addition of 802 unexplained votes were not responded to by the Returning Officer and the two Assistant Returning Officers.
  2. Subsequently, figures throughout Eliminations No. 1 to 20 were not balanced. Variances were noted showing extra ballot papers were introduced throughout the tally board with no explanations given by the Returning Officer or counting officials despite objections by scrutineers.
  3. In so doing, the Returning Officer's act and conduct contravened Sections 168, 168 (4), 147, 191 (4) and 191 (11) of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual.
  4. The Returning Officer's unlawful use of discretion likely to or did affect the outcome of the election, as envisaged by Section 215 (3) Organic Law on National and Local-level Government Elections as figures throughout Eliminations No. 1 to 20 were not balanced. Variances were noted showing extra ballot papers were introduced (or removed) throughout the tally board with no explanations given by the Returning Officer or counting officials despite objections by scrutineers. Variances were as follows:
Exclusion Number
Candidate Number
Primary Count Total
Total Exclusion
Votes Distributed
Total Votes Exhausted
Total of Votes Distributed & Exhausted
Difference
Exclusion 1
17
144
144
110
0
110
-34 ballot-papers
Exclusion 2
20
560
563
566
0
566
+3 ballot-papers
Exclusion 3
12
644
660
660
0
660
+16 ballot-papers
Exclusion 4
15
748
764
762
2
762
0
Exclusion 5
31
956
985
981
5
986
+1 ballot-paper
Exclusion 6
27
1,121
1,174
1,152
21
1,173
-1 ballot-paper
Exclusion 7
21
1,138
1,198
1,187
12
1,199
+1 ballot-paper
Exclusion 8
16
1,266
1,343
1,304
27
1,331
-12 ballot-papers
Exclusion 9
29
1,494
1,734
1,643
81
1,724
-10 ballot-papers
Exclusion 10
19
1,635
1,792
1,716
77
1,793
+1 ballot-paper
Exclusion 11
26
1,728
1,860
1,691
170
1,861
+1 ballot-paper
Exclusion 12
13
2,178
2,465
2,276
188
2,464
-1 ballot-paper
Exclusion 13
23
4,606
5,855
5,136
720
5,856
-2 ballot-papers
Exclusion 14
25
5,517
6,050
5,439
611
6,050
0
Exclusion 15
14
6,086
7,126
6,117
1,009
7,126
0
Exclusion 16
22
7,108
8,629
7,183
1,455
8,638
+15 ballot-papers
Exclusion 17
11
10,129
13,139
9,874
3,312
13,186
-7 ballot-papers
Exclusion 18
24
13,522
19,725
13,188
6,525
19,713
-12 ballot-papers
Exclusion 19
28
13,985
21,740
12,014
9,656
21,670
-70 ballot-papers
Exclusion 20
30
14,529
25,551
11,618
13,908
25,526
-25 ballot-papers

  1. In addition to the above tabulation, hereunder is the standard tally board that demonstrated that the tally board was never balanced throughout the entire exclusion process:
No.
Parameter
(Fixed Character of LPV)
PNGEC
Tally Board
Team Robert Agarobe
Tally Board
Comments
1
Total Exhausted Ballot-Papers
37.779
37.780
1 vote difference
2
Ballot-Papers running in Count
121,278
121,416
138 votes difference
3
Absolute Majority
60,640
60,709
69 votes difference

  1. The differences of 1 vote, 138 votes and 69 votes, shown above, reveals that the Returning Officer and his Assistant Returning Officers committed errors and omissions of not balancing the tally board.
  2. Furthermore, the calculation at Exclusions 1 to 20 revealed that 1,546 ballot-papers (as shown below) were missing in the Count and never accounted and reconciled leaving the tally board unbalanced throughout the Elimination:
Ex 1
Ex 2
Ex 3
Ex 4
Ex 5
Ex 6
Ex 7
Ex 8
Ex 9
Ex 10
566
30
15
15
14
15
151
26
36
35

Ex 11
Ex 12
Ex 13
Ex 14
Ex 15
Ex 16
Ex 17
Ex 18
Ex 19
Ex 20
35
25
34
34
34
25
32
44
241
139

  1. In rounding off the Absolute Majority to 80,000.00 resulted in 802 new Ballot-papers being introduced into the Elimination. These 802 ballot-papers were never accounted and resulted in the inflation of total ballot-papers which affected the running total of ballot-papers in count, and the running Absolute Majority. The retrospective effect of the inflation affect the total ballot-papers in the primary count and the quality check.
  2. The sum of 1546 missing ballot-papers and the inflated 802 from the 80,000 absolute majority is 2343 votes. The difference between the Respondent and the Petitioner is 3444 and 2343 is 1096. The balance of 1096 would have negated and exceeded the other errors and omissions such as the 7000 allegedly tampered ballot-papers pleaded in Ground 1 herein. The error is therefore significant to affect the winning margin.
  3. The alleged acts and omissions by the Returning Officer and the two Assistant Returning Officers in rounding off the 79, 599 absolute majority to the nearest 100 by making 80, 000 formal votes as the absolute majority votes with no explanation or justification for his decision the Returning Officer's act and conduct contravened Sections 516 (a) and 517 (g) or (h) of the Criminal Code Act 1974.
  4. In summary, this ground of the petition alleges that the returning officer inexplicably rounded out the absolute majority from 77,599 to 80,000, then committed errors and omissions by not accounting for 1,546 ballot papers in the exclusion process.
  5. This is alleged (in para 33) to be contrary to ss 168, 147, 191(4) and 191(11) of the Organic Law and (in para 34) an unlawful use of discretion “likely to or did affect the outcome of the election, as envisaged by s 215(3)” of the Organic Law.
  6. Furthermore it is alleged (in para 40) that the acts and omissions of the returning officer and two assistant returning officers contravened ss 516(a) and 517(g) of the Criminal Code.
  7. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 2 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 2 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 2 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 2 is struck out.

GROUND 3 OF THE PETITION


  1. This ground of the petition states:
    1. ERRORS & OMISSIONS - UNEXPLAINED DISCREPANCIES AND VARIANCES IN FIGURES DURING ELIMINATIONS
    2. Eliminations were conducted for Central Province between 2 to 5 August 2022. During this time numerous variances in figures were noted and objected to by scrutineers of candidates. Their objections were not responded to by the Returning Officer and the two Assistant Returning Officers, and eliminations proceeded in spite of their objections.
    3. A summary of these discrepancies observed during Eliminations between 2nd to 5th August 2022 are as tabulated on page 9: [seven pages of tables are included in ground 3 between paras 42 and 43, which are not reproduced here] ...
    4. By not resolving the numerous variances as demonstrated in the table above, of addition and removal of votes, and permitting the scrutiny to proceed under the circumstances, led to the integrity of scrutiny allegedly compromised, and with no explanation or justification for his decision the Returning Officer's act and conduct contravened Sections 168, 169, 147, 151 (c), of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual.
    5. In addition to the above tabulation, hereunder is the standard tally board that demonstrated that the tally board was never balanced throughout the entire exclusion process:
No.
Parameter
(Fixed Character of LPV)
PNGEC
Tally Board
Team Robert Agarobe
Tally Board
Comments
1
Total Exhausted Ballot-Papers
37.779
37.780
1 vote difference
2
Ballot-Papers running in Count
121,278
121,416
138 votes difference
3
Absolute Majority
60,640
60,709
69 votes difference

  1. The differences of 1 vote, 138 votes and 69 votes, shown above, reveals that the Returning Officer and his Assistant Returning Officers committed errors and omissions of not balancing the tally board.
  2. Furthermore, the calculation at Exclusions 1 to 20 revealed that 1,546 ballot-papers (as shown below) were missing in the Count and never recovered and reconciled leaving the tally board unbalanced throughout the Elimination:
Ex 1
Ex 2
Ex 3
Ex 4
Ex 5
Ex 6
Ex 7
Ex 8
Ex 9
Ex 10
566
30
15
15
14
15
151
26
36
35

Ex 11
Ex 12
Ex 13
Ex 14
Ex 15
Ex 16
Ex 17
Ex 18
Ex 19
Ex 20
35
25
34
34
34
25
32
44
241
139

  1. In rounding off the Absolute Majority to 80,000.00 resulted in 802 new Ballot-papers being introduced into the Elimination. These 802 ballot-papers were never accounted and resulted in the inflation of total ballot-papers which affected the running total of ballot-papers in count, and the running Absolute Majority. The retrospective effect of the inflation affect the total ballot-papers in the primary count and the quality check.
  2. The sum of 1546 missing ballot-papers and the inflated 802 from the 80,000 absolute majority is 2343 votes. The difference between the Respondent and the Petitioner is 3444 and 2343 is 1096. The balance of 1096 would have negated and exceeded the other errors and omissions such as the 7000 allegedly tampered ballot-papers pleaded in Ground 1. The error is therefore significant to affect the winning margin.
  3. Failing and neglecting to resolve the numerous variances as demonstrated in the table above, of addition and removal of votes, and permitting the scrutiny to proceed under the circumstances is or was likely to or did affect the outcome of the election, as envisaged by Section 215 (3) Organic Law on National and Local-level Government Elections.
  4. In summary, this ground of the petition alleges that eliminations were conducted despite numerous variances in the figures that were noted and objected to by scrutineers of candidates. However, the objections were not responded to by the returning officer and the assistant returning officers and the eliminations continued despite their objections.
  5. This is alleged (in para 43) to be contrary to ss 168, 169, 147 and 151(c) of the Organic Law and it is further alleged (in para 49) that it “is or was likely to or did affect the outcome of the election, as envisaged by s 215(3)” of the Organic Law.
  6. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 3 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 3 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 3 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 3 is struck out.

GROUND 4

  1. This ground of the petition states:
    1. ERRORS & OMISSIONS – ADDITION OF A LARGE NUMBER OF FORMAL VOTES WERE DECLARED AS EXHAUSTED VOTES WITHOUT EXPLANATION OR NOTICE FROM THE RETURNING OFFICER
    2. On 3 and 4 August 2022, at Exclusion 1 to 17, at total of 55,518 ballot-papers were distributed.
    3. On 5 August 2022, at Exclusion counts 18 to 20, 67,016 ballot-papers were distributed through the exclusion.
    4. In a very short time, the counting process was done in haste and speedy manner, without duty of care and neglecting ignored the need for scrutiny to meet the deadline for declaration at 4 pm.
    5. In the process what the Returning Officer and the two Assistant Retuning Officers ignored all the objections and as a result, it cumulative erred in declaring 37,779 formal votes as Exhausted Votes.
    6. The process of declaring, announcing and recording was deliberately ignored or compromised.
    7. No announcement of this decision or explanation for doing so was given to the scrutineers, nor were they notified to whose candidates Vote 2 and 3 were distributed to. The redistribution of vote 2 and 3 were done is a hasty or speedy manner, without audible announcement and by the counting officials, hence there was no transparency in the exclusion process and honesty was wanting.
    8. Resulting variances and discrepancies in the tally of figures entries in the tally sheet Form 66B and on the Electoral Commission Tally Board during Exclusion 1 right up to Exclusion 20 were noted.
    9. The resulting scores or tally of each candidate were distorted and misleading, and the final result for the winner (First Respondent) and the runner up (Petitioner) cannot be correct.
  2. By including the 37,779 formal votes into the Exhausted Votes with no explanation or justification for his decision the Returning Officer’s act and conduct contravened Sections 168, 169, 147, 151 (c), and 152 of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer’s manual and his act or omission is or was likely to or did affect the outcome of the election, as envisaged by Section 215(3) Organic Law on National and Local-level Government Elections.
    1. The alleged acts and omissions by the Returning Officer and the two Assistant Returning Officers in including the 7000 disputed, suspected and tampered votes in the primary count, whose integrity were allegedly compromised, and with no explanation or justification for his decision the Returning Officer’s act and conduct contravened Sections 516 (a) and 517 (g) or (h) of the Criminal Code Act 1974.
  3. In summary, this ground of the petition alleges that the 18th to 20th exclusion counts were done in haste, resulting in many objections from scrutineers being ignored and 37,779 formal votes being wrongly declared as exhausted.
  4. This is alleged (in para 58) to be contrary to ss 168, 169, 147, 151(c) and 152 of the Organic Law and “is or was likely to or did affect the outcome of the election, as envisaged by s 215(3)” of the Organic Law.
  5. There is also a curious allegation in paragraph 59 of contravention of ss 516(a) and 517(g) or (h) of the Criminal Code. This appears to be a typographical error. It is a replica of para 28 of the petition, which is the final paragraph of ground 1 (re the 7,000 disputed ballot papers from Woitape). I will disregard paragraph 59.
  6. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 4 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 4 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 4 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 4 is struck out.

GROUND 5


  1. This ground was abandoned, without objection and with the leave of the Court, on the day of hearing the objections to competency.

GROUND 6

  1. This ground of the petition states:
    1. ERRORS & OMISSIONS - CONTINUATION OF COUNTING IN THE ABSENCE OF SCRUTINEERS, WITHOUT NOTICE OR CONSULTATION

66. On 2 August 2022:


(i) reports of numerous complaints made by candidates and their scrutineers was received by Warrant Officer Philip Waibauru and his Joint Operation Centre team at the PNGDF Election Operations Command Post. These complaints were made against the Returning Officer and Assistant Returning Officers and the manner in which disputed informal votes were being handled for the Central Province Regional count. Frustrations were growing at a perceived lack of response by the Returning Officer to the issues being raised by candidates and scrutineers.


(ii) At 10 pm the PNGDF team responded to the Counting Centre after further reports of an impending strike by scrutineers, frustrated at the Assistant Returning Officer Ian Karo's decisions.


(iii) At 11 pm a meeting was called between the Joint Operation Centre team. Scrutineers were informed to attend and bring their respective candidates so that disputes and issues regarding variances in the counting could be discussed. Candidates that attended this meeting included the First Respondent, Nelson Saroa and others.


(iv) Between 2 am and 4 am PNGDF personnel observed that counting and redistribution of ballot papers was continuing in the absence of scrutineers. The counting was being overseen by Assistant Returning Officer Ian Karo.


67. On 3 August 2022:


(i) At 3 am the candidates attended at the Boroko Police Station to lodge a formal complaint. They were advised that all election related complaints must be lodged in writing.


(ii) Upon returning the counting venue at approximately 3:30 am the candidates and scrutineers observed that Assistant Returning Officer Ian Karo had not suspended counting and redistribution of votes during their absence. No notice had been given to them that counting would continue throughout this period of their absence.


(iii) The counting officials were questions as to why they didn't advise the Assistant Returning Officer that a breach had occurred and yet counting continued. Some counting officials were afraid when questioned by security personal but said they were not instructed to stop so had continued.


  1. Between 11 pm on 2 August 2022 and 3:30 am on 3 August 2022 for a period of approximately 6 hours the counting and redistribution of ballot papers had continued without the presence of scrutineers and without any notice to scrutineers.
  2. The absence of scrutineers and Police personnel in the counting venue was suspicious and undermines Election efforts for a Free, Safe and Fair elections, bringing the integrity of the final election results into question.
  3. In continuation of counting in the absence of scrutineers, without notice or consultation the Returning Officer's act and conduct contravened Sections 147, 151 (b) (c ) and (d), 152, 153(a) and/or (b) and 153A(a) of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual. The act and conduct of the Returning Officer, is or was likely to or did affect the outcome of the election, as envisaged by Section 215 (3) and or vitiate the election.
  4. The alleged acts and omissions by the Returning Officer and the two Assistant Returning Officers to continue counting in the absence of scrutineers with no notice or consultation and or no explanation and justification for his decision the Returning Officer's act and conduct contravened Sections 516 (a) and 517 (g) or (h) of the Criminal Code Act 1974.
  5. In summary, this ground of the petition alleges that for at least six hours on 2 and 3 August 2022 counting continued without scrutineers and police, and without notice to or consultation with scrutineers.
  6. This is alleged (in para 70) to be contrary to ss 147, 151(b) and (c), 152, 153(a) and/or (b) and 153A of the Organic Law; and the returning officer’s acts and conduct “is or was likely to or did affect the outcome of the election, as envisaged by s 215(3) and or vitiate the election”.
  7. Furthermore, it is alleged (in para 71) that the acts and omissions of the returning officer and two assistant returning officers contravened ss 516(a) and 517(g) of the Criminal Code.
  8. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 6 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 6 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 6 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 6 is struck out.

GROUND 7

  1. This ground of the petition states:
    1. ERRORS & OMISSIONS – DISCREPANCIES IN THE DISTRIBUTION OF VOTES
    2. At Exclusion No. 20 of Candidate Nelson Saroa has 14,529 primary votes, then at redistribution of vote 2 and 3 he collected 7,755 votes to give a new total of 25,551 votes.
    3. After actual redistribution, his primary votes stands at 25,526 votes. That is, 11,618 votes distributed, 13,908 votes were put to Exhausted Box without Counting Officials showing to Scrutineers whose candidate vote 2 and Vote 3 was redistributed to. There was a variance of 25 minus votes or 25 formal votes removed.
    4. No explanation was given by the Returning Officer, Mr. Peter Malaifeope on the latter discrepancies and in so doing the Returning Officer's act and conduct contravened Sections 147 and 168 of the Organic Law on National and Local-level Government Elections and the procedures in the LPV Returning Officer's manual.
    5. The act and conduct of the Returning Officer, is or was likely to or did affect the outcome of the election, as envisaged by Section 215 (3) and or vitiate the election.
  2. In summary, this ground of the petition alleges that there was a discrepancy of 25 votes in the distribution of a candidate’s second and third preferences at exclusion No 20.
  3. This is alleged (in para 74) to be contrary to ss 147 and 168 of the Organic Law; and it is alleged that the returning officer’s acts and conduct (as alleged in para 75 ) “is or was likely to or did affect the outcome of the election, as envisaged by s 215(3) and or vitiate the election”.
  4. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 7 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 7 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 7 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 7 is struck out.

GROUND 8 OF THE PETITION


  1. This ground of the petition states:
    1. ERRORS & OMISSIONS - PROCEEDINGS AT THE SCRUTINY NOT OPEN TO THE INSPECTION OF SCRUTINEERS
    2. Between 3 August - 4 August 2022 the Returning Officer Peter Malaifeope, Assistant Returning Officers Ian Karo and Salome Veali (and security personnel under the control and authority of the Returning Officer) ordered all scrutineers to be kept at a distance of approximately 15 - 20 meters from the counting and distribution tables during the counting of :

Elimination No. 1, 2, 3, 4, 5, 6, 7, 8, 9 (3 August 2022)

Elimination No. 10, 11, 12, 13, 14,15 (4 August 2022)


  1. Being kept at a distance of 15 - 20 meters prevented the scrutineers from being able to openly inspect the counting as they could not clearly see what was being done nor could they hear what was being said between counting officials during counting. As such, they were prevented from duly inspecting the counting and raising any objection to the distribution of Votes 2 and 3 to candidates.
  2. Numerous discrepancies during eliminations resulted in the Scrutineers raising numerous objections and demands for explanations to the anomalies being detected created a situation whereby the Counting Officials do not wish to be disturbed so the Returning Officer instructed the Security Forces personnel to move the Scrutineers 15 meters away from the table since the Counting of Exclusion or Elimination 1 right up to the 20th Elimination.
  3. Scrutineers could not see and hear clearly how vote 2 and 3 are being redistributed and even query as to which Candidate Vote 2 and 3 were to be redistributed to and or moved to the Exhausted Votes. The scrutineers were intimidated and heavily guided in that respect up until the declaration of the First Respondent as the winner.
  4. The Returning Officer notified scrutineers on 4 August 2022 that he would not accept disruptions caused by questions or objections from scrutineers to the counting of eliminations due to time constraints and threatened to have scrutineers removed from the counting centre.
  5. On 5 August 2022 the Returning Officer decided to have the tables in the counting centre rearranged in a square with 6 counting officials manning 6 tables and conducting sorting and redistribution of Votes 2 and 3 at the same time. Only 2 scrutineers for each of the last 6 candidates (who were not yet eliminated) were permitted by the Returning Officer to inspect 2 counting on 2 out of the 6 tables being used.
  6. No loud or audible announcement was made by the Returning Officer as to what was happening. Proceedings were conducted in a very fast manner at all 6 tables simultaneously resulting in scrutineers (both those at the 2 tables and those who were not permitted to be at the tables) not being able to properly inspect the redistribution of Votes 2 and 3 during this period.
  7. The errors and omissions and the alleged illegal practice significantly affected the outcome or result of the election as envisaged by Section 215 (3) and 218 (1) of the Organic Law on National and Local-level Government Elections.
  8. Owing to the illegal practices and errors and omissions constituted by the Second Respondent and its electoral officers and agents, the integrity of counting or scrutiny (of votes) process was compromised and tampered with, as pleaded in various paragraphs above, which were sufficient to affect the result or outcome of the election.
  9. In summary, this ground of the petition alleges that in the final days of counting from 3 to 5 August 2022 the returning officer kept scrutineers 15 to 20 metres away from the counting and distribution tables, which prevented effective scrutiny, and rearranged the counting tables in a way that prevented proper inspection of redistribution of votes.
  10. The returning officer’s actions are alleged (in para 83) to be errors and omissions “and the alleged illegal practice significantly affected the outcome or result of the election as envisaged by s 215(3) and 218(1)” of the Organic Law.
  11. Furthermore it is alleged (in para 84) that “owing to the illegal practices and errors and omissions constituted by the second respondent and its electoral officers and agents, the integrity of counting or scrutiny (of votes) process was compromised and tampered with, as pleaded in various paragraphs above, which were sufficient to affect the result or outcome of the election”.
  12. I now address the two types of objection to this ground of the petition.

Failure to give sufficient details


  1. I find that ground 8 of the petition gives sufficient detail of the facts and to that extent the objection to it is refused.

Confusing and internally inconsistent


  1. I uphold the respondents’ arguments that ground 8 of the petition is defective in the same way that ground 1 is defective:
  2. Ground 8 does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law. It is not saved by the application of s 217 of the Organic Law. Its defects warrant it being struck out for being non-compliant with s 208(a) of the Organic Law. Ground 1 is struck out.

CONCLUSION


  1. All grounds of the petition are struck out for being non-compliant with s 208(a) of the Organic Law. The petition must be dismissed. The question of costs of the petition, including the hearing of the objections, is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the petitioner pay the first respondent’s costs of the petition. The second respondent filed and served its notice of objection to competency late. Though it has been successful, respondents must be encouraged to file and serve their objections in accordance with the Rules. It is a good practice, in my view, to visit a respondent who has succeeded with an objection that does not comply with the Rules with an order that it pay its own costs. That is the order I will make.

ORDER


(1) The respondents’ objections to the competency of the petition are sustained.

(2) The petition is entirely dismissed.

(3) The petitioner shall, subject to any specific costs orders made in the course of the proceedings, pay the first respondent’s costs of the petition, on a party-party basis, which shall, if not agreed, be taxed.

(4) The second respondent shall, subject to any specific costs orders made during the proceedings, bear its own costs of the petition.

(5) The Registrar shall forthwith refund to the petitioner the security for costs deposited under s 209 of the Organic Law on National and Local-level Government Elections.

(6) The Registrar shall under s 221 of the Organic Law on National and Local-level Government Elections promptly forward to the Clerk of the National Parliament a copy of this order.

_____________________________________________________________
Waisi Lawyers: Lawyers for the Petitioner
Mel & Henry Lawyers: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent


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