Auwo v Luluwamo [2008] PGDC 124; DC854 (16 December 2008)

DC854

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
COURT OF DISPUTED RETURNS – LOCAL-LEVEL GOVERNMENT ELECTIONS

LLGEP NO. 10 of 2008

BETWEEN

STANLEY. G. AUWO
Petitioner

AND

JOHN LULUWAMO
First Respondent

AND

KUSINDEL KALOWAI
Second Respondent

AND

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. Ipang
2008: August 14
September 12
October 02, 26, 27, 31
December 08, 12, 16

ELECTION PETITION – Re-count of ballot papers by consent of all the parties – Consent reduced in to writing and signed by all parties – Order issued by consent – Re-count conducted according to Organic Law on National and Local – Level Government Elections (s.172) Re-count of ballot papers went through scrutiny process.

Cases Cited:
Nil

Counsel:

Petitioner: In Person
First Respondent: Kamo Pilisa – Pilisa Lawyers
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers

16th December 2008

JUDGMENT

M IPANG Magistrate: Petitioner Stanley Auwo challenges the election of the First Respondent John Luluwamo as the duly elected councillor for Ward One (1) of Mimanalo Rural Local Government (Goroka).

2. The petitioner alleged that during counting, a polling official namely Jerry Gohumane wrongfully declared 100 plus ballot papers from Ballot Box 16 informal and excluded them from being counted without consulting and obtaining approval from the Second and Third Respondents.

3. Because of this error, the petitioner claimed he could have won the election as the First Respondent polled 1587 votes declaring him duly elected and the petitioner polled 1573 which is a difference of 14 votes.

4. First Respondent stated that all scrutinizers with the polling officials agreed that some ballot papers (votes) casted at Gamuga Village (Notofana) were not done in accordance with Electoral laws. He said polling officials were intimidated and forced to signed ballot papers. First Responded said Gamuga polling booth has majority relatives of the petitioner as this is where his mother is from.

5. In his paragraph 5 of his Defence, First Respondent said upon sighting and examining ballot papers from Gamuga carefully, the scrutinizers, and counting officials have agreed that some ballot papers which were seen to contained irregularities were ruled as invalid and ruled out form counting. In his paragraph6, he said “I ask this Honourable court to see this petition as null and void. I ask that all votes casted at Gamuga to be ruled as invalid and must not be counted, for it was not properly casted.” I will revert to discuss this later.

6. The first Respondent filed his Defence dated 24th September 2008 and stated the following;

1. Stanley G. Auwo wrongfully summoned me as the First Respondent. He said he has done nothing wrong from the issue of writs (17/4/08) to the declaration of the election results (18/6/08).

2. He said by virtue of the powers delegated to Jerry Ohumane, Presiding Officer for Mimanalo LLG, the declaration of the results has been exercised and implied to be proper and in order at the time of polling and counting of votes.

3. That all scrutinizers, polling and counting officials for Mimanalo LLG’s agreed that;

(a) any ballot box with papers exceeding the total ballot papers issued at the polling booth will be ruled invalid;

(b) any ballot papers which has initials or signature not corresponding to the presiding officials signature will be invalid;

(c) any other ballot papers containing serial numbers assigned for other polling booth and discovered will be invalid.

7. This matter has proceeded through Pre-trial conferences and the status conference. After the status conference, the matter was set with the consent of all the parties for trial to be conducted on the 26th and 27th of October 2008. Two days were allocated for the trial owing to the number of parties and their witnesses. On the 27th of October 2008, the matter was further adjourned to the 31st October 2008 for trial.

8. On the 31st October 2008 at 9:30 am, petitioner and the First Respondent were present so the second and the Third Respondent through their Counsel Mr. J. Nidue from Nonggorr and Associates lawyers. When the matter was called for the trial to commence, al the parties which include the First Respondent, agreed to conduct recount of ballot boxes and papers (votes) for Mimanalo Rural LLG (Goroka). Based on this agreement, they applied for consent orders.

9. Based on the agreement parties had reached, and based on parties’ application for consent order, I issued the order on the 31st October 2008. The Consent Order were as follows;

1. The Third Respondent Electoral Commission (EC) is ordered to conduct a re-count of ballot boxes containing votes for Mimanalo Rural LLG (Goroka) Ward One.

2. The initial 100 ballot papers excluded from Ballot box No. 6 are included in the Re-Count.

3. Re-count shall be conducted on the 24th of November 2008.

4. The result of the re-count shall be presented to the Court on the 26th of November 2008 at 10:00 am.

5. All parties shall make submissions on the results of the re-count on the 26th of November 2008 at 10:00 am.

10. Up until the issue of the Consent Orders, First Respondent has not engaged services of a lawyer. The First Respondent did not object or raised a concern regarding the Consent Orders.

11. The re-count commenced on the 24th November 2008. there was a bit of confusion surrounding the disputed 100 rejected ballot papers. Parties’ appeared before me on the 25th of October 2008. The confusion was about 100 rejected ballot papers. Count did not declare them formal and to be counted. All the count did order was for the 100 or so ballot papers to be included in the counting and be scrutinized in the normal counting process. Which means that if a ballot paper (vote) is determined to be informal that it would be exclude, if it was declared formal then it would be included in the re-count.

12. After the re-count process was completed and an unofficial results were eminent, the First Respondent engaged the Services of Pilisa Lawyers. Pilisa lawyers then filed a Notice of Motion dated 10th of December 2008.

13. The Notice of Motion seek the following Orders;

1. First Respondent be granted leave to rely on the affidavits in the Notice under section 35 of the Evidence Act filed by the First Respondent on the 09th of December 2008 in madding this application.

2. In reviewing the Report to be furnished by the Returning Officer to this court that this court revisit and review the Consent Order made on 31st October 2008 for the recount of votes of Mimanalo Rural LLG (Goroka) and makes an order as to its appropriateness and validity.

3. That the petition be dismissed in its entirety with costs as it does not meet with and comply with strict requirements of section 208 (a) and (b) of the Organic Law on National and Local Government Elections to provide material facts relevant to raising a valid point of dispute to challenge election result.

4. If the relief sought in the above paragraph is denied, First Respondent seeks a declaration that the re-count ordered by the court has failed and the court is to decide this election petition on the question of validity of the exclusion form count in the initial counting of the 100 ballot papers from box No. 6.

5. that the Electoral Commission pay the First Respondent and his lawyer, the costs relating to this application and associated with the re-counting of votes, and for such costs to be taxed if not agreed .

14. I will allude to this motion filed by the First Respondent later. The Report on the re-count filed by the Electoral Commission stated the following;

15. The Mimanalo Rural LLG Ward One, Court ordered Re-count commenced on the 24th of November 2008 at 2.10 pm. The Returning Officer for Eastern Highlands Province 2008 LLG election engaged neutral counting Officials (10) and police personals (7). Two Scrutinizers were assigned to witness the re-count. Deputy Clerk of Court Mrs. Hellen Kerenga was present throughout the re-count form 24th of November 2008 to the 2nd of December 2008.

15. The electoral Commission maintained the following process during the re-count.

1. On the 24th of November 2008 at 2:10 pm, the re-count of ballot papers commenced by distribution of first preference to each 23 candidates. Time caught up with the counting officials so the counting was suspended at 4:30 pm. The next day, all ballot papers including 100 plus informal and the disputed ballot papers in one ballot box 5 was opened for counting. The suspended count tag serial numbers were inner A221038 and the outer A221037. The outer was locked and the keys were given to Mrs. Hellen Kerenga for safely purposes.

2. On the next day Tuesday 25th November 2008, the re-count resumed at 10:20 am, after confirming the serial tag number (A221038 Inner and Outer A221037). The report submitted stated that during the re-count process 143 ballot papers were packed together and not 100 as indicated in the petition. Total of 144 informal papers plus 143 disputed ballot papers were regarded as informal, which brought the total to 287 informal papers.

3. Since there was a Motion filed by the petitioner, the re-count was suspended at 12.24 pm. After the count, re-count continued smoothly form 26th of November to 02nd December 2008. The Report stated that on the 27th of November 2008, at 12:00 noon primary count was completed and records were contained in Form 66A. Petitioner cored 797 and the sitting councilor scored 675. This was the first preference votes.

4. The elimination process continued from Friday 28th of November and continued on to Monday 01st December 2008. On Friday 28th November ballot boxes were sealed and locked away and were re-opened on 01st December 2008. On Tuesday 02nd December 2008, after 22nd elimination, Petitioner scored 1582 votes and the First Respondent scored 1580 votes. Report stated that after the completion of the re-count, one of the parties involved in the re-count left the counting room. Attached to the report were Form 66A and Form 66B record sheet and scrutinizers sign forms.

16. Analysis of Factual Evidence as Presented.

In re-stating First Respondent’s Defence paragraph 5, I have indicated earlier that I will analyze this defence in more detail; I wish to do so now. The First Respondent said some ballot papers contained irregularities and were ruled as invalid and ruled out from been counted. In this defence , the First Respondent did not specifically make a mention of 100 plus ballot papers that the petitioner is challenging in Court.

17. This is because the only principle ground of petition is regarding 100 plus ballot papers rejected for counting for Ward One Mimanalo Rural LLG. Because of this rejection, the petitioner claimed it has affected his election result.

18. Another important point for consideration is, the First Respondent consented to the re-count on his own accord, freewill, without any inducement. The matter proceeded from pre-trial conference, compulsory conference, states conference. The Court was aware of the contents of his defence filed. He did not raise any of those concerns to be accommodated in the consent orders to be ob served during the re-count.

19. When the re-count concluded and the First Respondent discovered that the result was not when he has anticipated he quickly looked for a lawyer to represent him. In my view, if the First Respondent claimed that those 100 plus ballot papers were from irregular means, he should have maintain his ground and proceed to trial.

20. First Respondent has decided otherwise and consented to re-count including the 100 plus ballot papers initially rejected. These 100 plus ballot papers went through normal electoral counting process and were been scrutinized. The end result showed that Petitioner polled 2 votes above the First Respondent that was 1587 votes to 1573 votes.

21. I have considered the motion filed by the First Respondent and submission by his lawyer Mr. Kamo Pilisa. I consider what has been presented by Mr. Pilisa to be as over-due grounds. Most of what Mr. Pilisa submitted could have been raised at the preliminary stage. As far as I am concerned there wasn’t any irregularities with the re-count process that would convince or satisfy me to declare the result of re-count null and void. I am satisfied there was nothing wring with the re-count process.

22. As a result, I ruled that the result of re-count is accepted by this Court. Election of First Respondent John Luluwamo is declared “null and void.” Petitioner, Stanley G. Auwo who polled 1582 votes in the re-count beating First Respondent who polled 1580 is now declared as Councilor elect for Ward One (1) Mimanalo Rural LLG. Petitioner’s Security deposit fee of K50.00 be refunded to him.

____________________

Petitioner: In Person
First Respondent: In Person
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers