Titie v Yohe [2002] PGDC 39; DC362 (22 November 2002)

DC362

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 23 OF 2002

In The Matter of the Organic Law on National
and Local Level Government Elections

AND

In the Matter of a Dispute of Returns for the KAINANTU RURAL LOCAL
Level Government Elections for the WARD FIFTEEN (15)

BETWEEN

Edward Titie
Petitioner

V

Avei Yohe
First Respondent

Sivi Siad
Second Respondent

Electoral Commission
Third Respondent

Goroka: Manue F. Magistrate
2002: 22nd November

REASONS FOR JUDGEMENT

MANUE F: This is a Local Level Government Elections Petition filed by the Petitioner to over turn the return of the first respondent as the duly elected Councilor on the 19th July 2002 for the Ward fifteen (15) of Kainantu Rural Local Level Government.

GROUNDS FOR THE PETITION:

The Petitioner alleges that the Electoral Commission which is responsible in conducting Elections omitted to print a female Candidates name. As a consequence, his name was not printed in accordance to the order of the draw, in box 18; instead it was printed beside box 17 of the ballot paper.

After the draws regarding Ballot - papers in accordance to Section 725 of the Organic Law on Elections, the Petitioner and his campaign team went through out the said Ward and informed their eligible illiterate voters that the Petitioners name appeared beside box 18 of the Ballot - papers. Having educated and promoted that, the petitioner expected his voters, especially illiterate eligible voters to call the box No. 18 instead of the name when casting their votes.

However on the date of polling, to their surprise, including the petitioner, they found that the third respondent, had left out, a female Candidate, name which should have appear beside box 14 and that, the Petitioner’s name now appeared beside box 17 instead of 18.

Due to this omission on the part of the third respondent, the Petitioner claims that this created confusion among his eligible voters especially the illiterate ones.

THE LAW:

The Electoral officers are required by law to strictly comply with all the minute details of setting out the ballot papers and the nature of its lay out etc. The procedure of listing out Candidates in their order is set out in Section 125 of the Organic Law on National and Local Level Government Elections (Organic Law on Elections).

I set out in full the provision for the benefit of the Petitioner and first respondent.

125: Ballot – papers.

In printing the ballot - papers to be used in an election –

(a) the names of all candidates duly nominated shall be printed in an order determined as follows –

(i) the Returning Officer shall, at the place of nomination, immediately after the close of nominations and before all persons present, make out in respect of each candidate a slip bearing the name of the candidate as shown on his nomination or the electronic advice on his nomination, enclose the respective slips in separate blank envelopes of exact similarity and deposit the several envelopes in a locked ballot – box; and

(ii) the Returning Officer shall then thoroughly shake and rotate the ballot – box and shall permit any other person, if he so desires, to do the same; and

(iii) the ballot-box shall then be opened and an officer shall take out and open the envelopes from the ballot-box one by one; and

(iv) the candidate whose name appears on the slip enclosed in the envelopes first taken from the ballot-box shall be placed first on the ballot-papers, the candidate whose name appears on the slip enclosed in the envelope next taken from the ballot-box shall be placed next on the ballot-papers, and so on until the placing of all the candidates has been determined; and

(b) where similarity in the names of two or more candidates is likely to cause confusion, the names of those candidates may be set out with such description or addition as will distinguish them form one another; and

(c) except as otherwise prescribed, a square shall be printed opposite the name of each candidate.

The third defendant, in so far as drawing out names in order to be place on the ballot – papers in the order of draw, had complied with the legal procedure, but, that the procedure failed to be translated onto the actual ballot – papers, which in my view is a fundamental omission to the election process.

The question then is, has this omission affected the result of the election particularly of Ward fifteen (15)?

Section 218 (1) of the Organic Law makes it clear that immaterial errors do not vitiate an election.

"Subject to Subsection (2), am election shall not be voided 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".

What the Section is saying is that an error or omission may be made by the third defendant or its agents, but the errors or omission themselves would not invalidate any election.

It requires something beyond this point. It requires that the error or the omission must have been to a degree where the result of the elections has or was likely to have affected the result of the elections. The issue was raised and discussed in TAMUKA V NAMALIU and EC "(MP, 151/92) followed by BIAMI PROVINCAIL ELECTIONS [1980] PNGLR 140, and the BAIYER MUL OPEN PARLIMENTARY ELECTION [1977] PNGLR 338.

In the present matter before this Court, there were 18 candidates, one of them was omitted and only 17 names of the candidates were printed beside the boxes.

The Petitioner alleged that he expected more than 800 votes as opposed to the first respondent’s votes of 731, according to his personal statics. He however had tallied on 206 and ran fourth. The Petitioner does not say, how, the change of his name appearing beside box 17 from the initial draw order of 18, had affected the result of the elections?

If he is relying on the fact of confusion on the part of his illiterate voters, then, he has not even produced or called one witness to that effect nor has he named names to say that such voters were confused resulting in them casting votes to another candidate. Even if he had named names, he must have a list of more then 525 names which is the difference of 731 votes collected by the first respondent and 206 which Votes he collected.

I find that, on account of the omission, that it has not or was not likely to have affected the elections.

FORMAL ORDER:

The Court therefore dismisses the Petition.

FORMAL ORDER:

1. The ELG election challenging the validity of Kainantu Rural Local Level Government Elections, if Ward 15 be dismissed.

2. Security deposit fee is to b refunded to Petitioner.

In Person: Petitioner
In Person: Respondent