PNG Law Reports 1993
[1993] PNGLR 454
N1135
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CORNELIUS KAKALE
V
JOHN THOMAS PUNDARI AND THE
ELECTORAL COMMISSION
Mount Hagen
Woods J
20-22 January 1993
PARLIAMENT - Elections - Disputed returns - Irregularities by officers of the Electoral Commission in the counting.
Facts
The petitioner disputes the validity of the election of the first respondent as the member for Kompiam-Ambun Electorate in 1992. He alleges irregularities in the counting procedure by the second respondent and undue influence by the first respondent on the electoral officials, which affected the counting. 
Held
1.       A declaration of the winner in an election is made only after the counting sheet is ruled off and signed by the officials and the scrutineers.
2.       It is not sufficient for a petitioner to come to the National Court with suspicions and doubts as to the validity of an election. The National Court is able only to act on evidence where there has been clear irregularity or illegal acts which may have affected the results of the election.
Counsel
R Vaea, for the petitioner.
P Niningi, for the first respondent.
J Bray, for the second respondent.
22 January 1993
WOODS J:  This is a petition disputing the validity of the election for the Kompiam-Ambun Electorate in the Enga province in the 1992 national elections.
The petitioner has made a number of allegations. They are all concerned with alleged irregularities or undue influence at the counting of the poll held at the Wabag Community School between 27 June and 3 July 1992. He firstly alleges irregularities by Electoral Commission officials such that there were two declarations of winners and, next, that there was undue influence by the first respondent on the electoral officials which affected the counting and led to a "second count" and thereby to the declaration of the first respondent as the winner.
The evidence brought by the petitioner is that, at the beginning of the counting for the Kompiam-Ambun seat on 27 June, the Assistant Returning Officer discussed the procedure for the counting with all the assembled officials and scrutineers and divided all the boxes from the polling into three lots. The first lot was of 73 good boxes, which were all satisfactorily identified. The second lot was of 18 boxes, which had been taken to Kompiam station from a different place. There were questions about the security of those boxes. The third lot was of 8 boxes, which arrived late and were brought in privately. The petitioner's evidence was that there was agreement that the 73 boxes would be counted, but the remaining 26 would not be counted, as they were suspect. The leader at the end of the 73 boxes would be declared the winner. At the end of the counting of the 73 boxes, the petitioner said, the Assistant Returning Officer declared him as the winner, but, because of pressure from the first respondent and others, the Assistant Returning Officer, after a delay and after consulting with other commission officers and others, continued counting more boxes. After this so-called "second count" of a further 14 boxes, the petitioner said, the Assistant Returning Officer declared the first respondent as the winner. The evidence suggested that this count of the further 14 boxes was not done under proper scrutiny. The petitioner alleged that the first declaration after the conclusion of counting the 73 boxes was the valid declaration, the further counting of the 14 boxes was irregular, and that the result after that counting was invalid. The petitioner has referred to the actions of Mr Romalu Bapu, the Assistant Returning Officer, as supporting his allegations. Mr Bapu was in charge of the counting, and he stopped the counting after box 73 and sought advice from his superiors and indicated in a letter to the Provincial Returning Officer that he was concerned with the validity of the remaining 26 boxes. The petitioner said Mr Bapu followed the direction from his superiors to continue the counting, but he then stepped down from being responsible for the counting and another officer was appointed to take over responsibility for being in charge.
The petitioner also brought evidence that the first respondent came into the counting room at the relevant time and applied pressure on the electoral officials to continue the counting to the "second count".
The Electoral Commission brought evidence which, while agreeing with the petitioner about the original separation of the boxes into three lots, stated that there was no declaration of a winner after the count of box 73. Mr Bapu agrees that there was a pause in the counting after box 73, but he said that was because the remaining boxes needed to be properly identified. Because of certain questions raised about the remaining boxes, he sought clarification from his superiors and, following advice, he continued counting those boxes that could be properly identified. Mr Bapu attests that there was no declaration nor any agreement to make a declaration after the counting of box 73. He agrees that he did step aside after they had started to count box 74, but that was because of certain pressure from some scrutineers. The master tally sheets for the counting were produced. Whilst the sheet on which the count of boxes 73 and 74 was not a completed sheet, half the sheet was unused and a fresh sheet was used for count 75, there is nothing on that sheet and at the end of count 73 to show that the final counting had finished and a declaration was made. If box 73 was the final count, then the count would have been ruled off at that stage and the sheet properly signed off, as required by the officials and scrutineers before any declaration. Mr Bapu gives a reasonable explanation for the failure to use the whole of that sheet for the continuation of the counting. He says that when the queries arose after count 73 and over count 74, that sheet was taken to the provincial counting centre office and left there; and when they continued the count of box 75; they used a new sheet.
The Electoral Commission evidence denies any unauthorised intrusion or use of force by the first respondent in or around the counting room.
The Electoral Commission also brought evidence suggesting either illegal practices by the petitioner at Kupin, one of the polling places during the poll, or active knowledge by him of illegal practices there.
The first matter I must consider is the allegation that there was a first declaration. The evidence of the tally sheets suggests that the counting was not properly finished off to show that the counting had finished. Mr Bapu clearly admitted that he had some difficulties after the counting of the first 73 boxes, but he expressed his concern to his higher authority and, as directed, continued to count further boxes after they were properly identified. I note that during the further counting some of the counts were properly verified by some scrutineers by way of their signatures on the tally sheet. There has been no challenge in this case to the validity of any of those 14 boxes, no challenge or evidence that the ballot papers in those boxes were or should have been declared invalid. So I must assume that those ballot papers were valid votes. Of course, the converse of that is that one could assume that if those boxes had not been counted, then there may have been an objection that valid votes were omitted from the count.
On the evidence before me, I am not satisfied that the so-called first declaration after the conclusion of the counting of box 73 was ever made, and I am further satisfied that, if it had been made, it would clearly have been open to challenge.
The overriding consideration in election petitions, as submitted to me by both petitioner and respondent, is that the Court should be guided by the substantial merits of the case and good conscience. The question I ask myself is was there a true election. No one has come to this Court and said, "I was prevented from exercising my right to vote." No one has come to this Court and proved that boxes that were counted should not have been counted or that boxes which were counted were "stuffed" and, therefore, led to an invalid result. As I have said before in previous cases, it is not enough to come to this Court and say, "I am suspicious" or "I have doubts and, please, will the Court look at the whole election and remove those doubts or take action." This Court can only act on evidence that there may have been clear irregularities which may have affected the results of the election or illegal acts.
I note that with 18 candidates seeking the votes of just over 23,000 voters, of course, the winning margin may be very close and the winner may only obtain around 10 percent of the vote. But the system of elections, as presently used, allows this to happen. A close vote, of itself, is not a reason to seek a recount or a re-election.
I note that I do not have to go into the allegations raised against the petitioner as to the conduct of the poll at Kupin village.
There is nothing on the evidence before me for this Court to find that there has not been a true and fair election.
I dismiss the petition.
Lawyer for the petitioner: Ray Vaea Lawyers.
Lawyer for the first respondent: P Niningi.
Lawyer for the second respondent: Pato Lawyers.