Baiyer, Re [1977] PGLawRp 568; [1977] PNGLR 496 (7 November 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 496 - Re Baiyer-Mul Open Parliamentary Election: Mokwa Mamando v Pyange Ni 

[1977] PNGLR 496

N120

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE BAIYER-MUL OPEN PARLIAMENTARY ELECTION MOKWA MAMANDO

V

PYANGE NI

Mount Hagen

Saldanha J

7 November 1977

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Error or omission by officer - Omission by officers to supply sufficient envelopes for electors not on certified list claiming to vote - Error by officers in omitting to initial ballot-papers “on the back” - Principles applicable - Power to determine whether irregularities did or did not affect result of the election - Organic Law on National Elections, s. 126(2), s. 141, s. 218(2)[dxxvii]¹.

N1>PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Petition for declaration that losing candidate duly elected, or for declaration that election void - Error or omission by officers - Principles applicable - No power to declare invalid votes valid - Organic Law on National Elections s. 212.

On the hearing of a disputed election petition brought under s. 206 of the Organic Law on National Elections, by a losing candidate for a declaration that he was duly elected or for a declaration that the election was void on the grounds inter alia that there had been diverse breaches of the provisions of the Organic Law on National Elections, and in particular breaches of s. 126(2), s. 145 and s. 153;

Held

N1>(1)      Where there have been irregularities such as absence or an error of, or an omission by, an officer which prevented electors from voting in an election the Court has the power by implication, under s. 218(2) of the Organic Law on National Elections to determine whether such irregularities did or did not affect the result of an election;

N1>(2)      In s. 126(2) of the Organic Law on National Elections, which provides that “The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position so as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates”, the words “on the back of the ballot-paper” are to be given their normal meaning, and where ballot-papers were initialled on the front instead of the back this amounted to an “error of or an omission by an officer” within s. 218(1) of the Organic Law on National Elections.

Dunbier v. Mallam, [1971] 2 N.S.W.L.R. 169 followed.

N1>(3)      A failure by a presiding officer to supply sufficient envelopes as required by s. 145 of the Organic Law on National Elections for three electors not on a certified list and claiming to vote under s. 141(1) thereof (albeit because the supply of envelopes had run out) amounted to “an error of or an omission by an officer” within s. 218(1) of the Organic Law on National Elections.

N1>(4)      Excluding four votes which were rightly rejected as informal under s. 154(1)(b) and s. 155(2)(b) of the Organic Law on National Elections, if irregularities had not occurred the petitioner would have received a majority of one vote.

N1>(5)      The power under s. 212(1)(g) of the Organic Law on National Elections, to declare a petitioner disputing an election duly elected can only be exercised if the petitioner can show that under the Organic Law on National Elections, he had sufficient valid votes actually to win;

In re Moresby Northwest Parliamentary Election; Gavea Rea v. Mahuru Rarua Rarua [1977] P.N.G.L.R. 338 followed.

N1>(6)      The invalidity of the votes by electors not on a certified list and claiming to vote under s. 141(1) of the Organic Law on National Elections and the invalidity of the votes by electors where the ballot-papers were not initialled on the back as required by s. 126(2) of the Organic Law on National Elections followed as a mandatory consequence of non-compliance with those sections, and the Court having no power to declare them valid, the petitioner could not be declared duly elected.

In re Moresby Northwest Parliamentary Election; Gavea Rea v. Mahuru Rarua Rarua [1977] P.N.G.L.R. 338 followed. Dunbier v. Mallam [1971] 2 N.S.W.L.R. 169 referred to.

N1>(7)      In the circumstances the election should be declared void pursuant to s. 212(1)(h) of the Organic Law on National Elections.

Petition

This was a petition to the National Court, sitting as a Court of disputed returns, pursuant to s. 206 of the Organic Law on National Elections, contesting the validity of the election of a member of Parliament on the ground of irregularities in electoral procedures.

Counsel

D. L. O’Connor, for the petitioner.

W. J. Karczewski, for the respondent.

B. B. Sakora, for the Electoral Commission.

Cur. adv. vult.

7 November 1977

SALDANHA J: The petitioner, Mokwa Mamando, was a candidate for the Baiyer-Mul Electorate in the National Elections held in June and July, this year. Among other candidates was the respondent Pyange Ni. At the final scrutiny Pyange Ni was declared duly elected by a majority of six votes, with 2151 votes to the petitioner’s 2145. The petitioner prays for an order declaring that Pyange Ni was not duly elected, or, alternatively, that the Court declare the election absolutely void and order a new election.

Ignoring alleged irregularities which even if true are not likely to have affected the result of the election the grounds for the petition can be classified into four broad categories with allegations as follows:

N2>1.       That owing to certain irregularities on the part of the presiding officer 24 votes were declared informal by the electoral commissioner, and, that, if they had not been rejected the petitioner would have had a majority of the votes; and that one vote had been wrongly credited to Pyange Ni.

N2>2.       That Pyange Ni procured children under the age of eighteen to vote.

N2>3.       That 20 men who were not entitled to vote by reason of the fact that they had not resided within the electorate for six months had been allowed to vote and that 15 others who had been registered as electors in another electorate had also been allowed to vote.

N2>4.       That Pyange Ni had been guilty of acts of bribery.

The petitioner had attached to the petition an annexure giving reasons why ballot papers had been rejected or admitted and indicating how the candidates whose ballot-papers had been rejected had voted. As it was clear that on the assumption that what was stated in the annexure was true, the petitioner would have received more votes than Pyange Ni, it was agreed among all three counsel that if the issue could be decided upon a consideration of grounds alleged in category (1) above only it would not be necessary for the Court to consider the other grounds.

The grounds in category (1) above are allegations of irregularities such as errors and omissions on the part of the presiding officer and a wrong decision by the Electoral Commissioner. The grounds in categories (2), (3) and (4) are allegations of illegal practices and bribery. An election can be avoided if bribery or undue influence can be proved, or, if it is proved that there had been illegal practices such as were likely to have affected the result of an election. But as it is possible for me to make a decision upon a consideration of the grounds contained in category (1), which are allegations of irregularities I need consider only the law regarding this aspect and need not concern myself with the law regarding bribery, undue influence and illegal practices at elections.

Section 218(2) of the Organic Law on National Elections provides as follows:

“Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

There is in this provision a clear implication that where there have been irregularities such as absence or an error of, or an omission by, an officer which prevented electors from voting in an election, the Court has the power to determine whether such irregularities did or did not affect the result of an election.

Two of the ballot-papers had been rejected on the ground that the presiding officer had initialled the papers on the front instead of on the back. Section 126(2) of the Organic Law on National Elections provides as follows:

“The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position so as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.”

In Dunbier v. Mallam and Another[dxxviii]² it was held that the words requiring the initials to be placed “on the back of the ballot-paper” are to be given their normal meaning. The ballot-papers were rightly rejected and the presiding officer was clearly in error in initialling them on the front instead of on the back.

Three ballot-papers marked s. 141 were rejected. These should have been inserted in envelopes endorsed with a declaration in a prescribed form. Apparently the presiding officer ran out of envelopes so he contented himself by writing the names and addresses of the electors on the back of the ballot-papers and depositing them in the ballot box. They were rightly rejected and again the fault was that of the presiding officer.

There were four ballot-papers in which the electors had omitted to register their votes. They were rightly rejected as being informal: see s. 154(1)(b) and 155(2)(b).

In the result twenty of the ballot-papers[dxxix]³ would have been admitted if the presiding officer had not been at fault, in which case, the petitioner would have received nine additional votes and the respondent two. The petitioner would have received a total of 2154 votes and the respondent 2153, giving the petitioner a majority of one vote.

One vote which had been referred to the Electoral Commissioner had been admitted in favour of the respondent. The comment which appears in the annexure is: “Ordinary vote marked in two squares but with vote for Moka possibly obliterated (or emphasized)? clear mark in Pyange’s square”. As this ballot-paper had been deposited in the ballot box it might have been necessary to go through some thousands of ballot-papers before finding it for the purpose of enabling the Court to scrutinize it. But it was unnecessary to undertake this laborious task because it is possible to make a decision without looking at this ballot-paper. If the vote had been rightly credited to Pyange Ni the petitioner would have had a majority of one vote, but if wrongly credited to Pyange Ni the petitioner would have had a majority of two votes, in either event a clear majority over the respondent.

Among the powers conferred on this Court under s. 212 of the Organic Law on National Elections are the powers to “declare that a person who was returned as elected was not duly elected” (s. 212(f)), “declare a candidate duly elected who was not returned as elected” (s. 212(g)) or “declare an election absolutely void” (s. 212(h)). Although I have come to the conclusion that if it were not for errors and omissions made by the presiding officer, the petitioner would have been returned as duly elected, there is no way in which informal votes can be made formal by the Court: see Dunbier v. Mallam and Another[dxxx]⁴ and In re Moresby Northwest Parliamentary Election; Gavera Rea v. Mahuru Rarua Rarua[dxxxi]⁵. Therefore, in the circumstances of this case for reasons mentioned above it is not possible for me to declare the petitioner duly elected.

I now declare that the general election for Baiyer-Mul Open absolutely void and order that the deposit be paid to the petitioner. A new election will be held: see s. 226(c) of the Organic Law on National Elections. The Registrar will forward a copy of this order to the Clerk of the Parliament.

Declaration that election void.

Solicitor for the Electoral Commissioner: C. Maino-Aoae, Acting State Solicitor.

> R>

[dxxvii]Infra p. 498.

[dxxviii][1971] 2 N.S.W.L.R. 169.

[dxxix]Editorial Note: His Honour has subsequently indicated that he omitted an analysis of the 20 votes referred to, the destination of which make clear the necessity for a fresh election.

[dxxx] [1971] 2 N.S.W.L.R. 169 at p. 175.

[dxxxi][1977] P.N.G.L.R. 338.