Mokuno v Peter [2002] PGDC 43; DC289 (18 December 2002)

DC289

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO LEP 9 (6) OF 2002

In The Matter Of The Organic Law On National And Local Level Government Elections

And

In The Matter Of Disputed
Returns For "Banz Town Ward No. 07" Council Ward Election 2002

BETWEEN

Philip Mokuno
Petitioner

V

Angelie Simbil Peter
First Respondent

Siwi Kondi Guan
Second Respondent

The Electrol Commissioner of PNG
Third Respondent

Mt. Hagen: Appa, P.M.
2002: 29th November, 18th December

JUDGMENT

Council Election Petition – Disputed returns – Request for re-count of ballot papers – Criteria for recount - section 170 (1) of the Organic law on National and Local Level Government Elections.

Held: The marginal of votes scored between the Petitioner and first respondent did not reach the 25% mark. No evidence produced on the actual number of people voted for the Petitioner. The claim on irregularities on counting process is based on assumption.

18th December 2002.

Counsel
P. Mokuno For Himself
P. A. Simbil For Himself

APPA –P.M. This is a petition disputing the election of the first respondent as a councilor for Banz Town Ward No. 07 council election of 2002. The Petitioner alleged that the winning of the said election was obtained by fraud and raised the following grounds:-

(a) The counting of votes was conducted by the winning candidate scrutineers.

(b) The votes casted for the Petitioner were misplaced in the winning candidate’s tray by the said scrutineers.

(c) That partial re-check discovered that 22 votes for the Petitioner were misplaced and hence request for full re-count was refused.

The relief sought was that there be a full recount of the Banz Town ward 07 ballot box No. 0205.

The Petitioner relied on his own affidavit and written submission and those of his three witnesses who were his scrutineers. They said on the day of counting, the Returning Officer and 2nd Respondent announced that Box No. 0205 was in dispute so would be counted once approval was given by the presiding officer Mr. Kawa. While the scrutineers were out waiting for the authority, the 2nd Respondent authorized the counting and counting took place while not all the scrutineers were present. The Petitioner claimed that the winning candidate had five scrutineers at the counting place. Petitioner had one scrutineer. The other (10) ten candidates did not have their scrutineers at the counting place because security at the gate was so tight. The Petitioner further claimed that because the winning candidate had five scrutineers at the counting, they manipulated the counting and gave away votes casted for other candidates to the winning candidates which affected the result.

The Petitioner admitted that there was a partial re-count conducted on request but was called off because of shortage of time. At the re-check they found 22 ballot papers wrongly placed on the wining candidate’s tray, of which three votes belonging to the petitioner and the rested belonged to other candidates. This had created suspicion in the mind of the petitioner that some more votes were misplaced so asked for a full re-count.

The Respondent relied on his own affidavits and written submissions and those of his five witnesses. Eka Wi, Fredy Aire were scrutineers for the winning candidate. Thomas Walep was appointed counting official, Christopher Mellin was the scrutineeer for another candidate Gabriel Murange and John Goru was the counting supervisor. To those witnesses the Petitioner made comments in his submissions that they were one way or the other related to the winning candidates so were not honest.

The combined effect of their (Respondent’s case) evidence was that counting of the ballot papers was conducted in a transparent manner and that the required member of scrutinizers were present. Police personnel and other electoral and counting officials were present to oversee that counting was conducted properly. They all said there was a request for a re-check of the ballot papers which was done and some errors were eradicated before the declaration was made.

I must also mention here that all returning officers had full authority of the Electoral Commission to make decision as dictated by the given circumstances. Therefore any partial re-checking of ballot papers or suspension of counting was within the implied authority and could not amount to material errors to invalidate the election result.

The law in relation to recounting of ballot papers is found under section 170 (1) of the Act. It says on the final count, the margin of votes between the candidate who polled the highest number of votes and the candidate who polled the next highest number of votes does not exceed 0.25% of the number of votes polled by the candidate who polled the highest number of votes, the candidate who polled the next highest votes may request the Returning Officer for a recount. The 0.25% is interpreted to be about 99.5 margin of votes, very narrow margin.

In the present case, after the recount, the Petitioner scored 140 votes and the winning candidate polled 172 votes, a difference of 32 votes which is not within the ambit of section 170 (1) criteria. A recount would have been justified if the difference was between 1-3 votes.

We have no way of knowing how many more Petitioner’s votes could be in the Banz Town ward box No. 0205 unless otherwise proven in evidence. For example, we hear from those eligible voters who casted their votes for the Petitioner. To do otherwise would be against the spirit of section 170 of the act.

I therefore make the following orders:-

1. The petition for re-counting of Banz Town Council ward No. 07, Box 0205 is refused.

2. The first Respondent remains the duly elected councilor of Banz Town Council ward No. 07.

3. The Petitioner is entitled to the refund of his security cost deposit of K50.00.

4. Cost followed the event.

In Person: Applicant
In Person: Respondent