N704

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NELSON OMAGAN

V

LEO UNUMBA AND ELECTORAL COMMISSION

Wewak
Kidu CJ

24 September 1988
26-27 September 1988

PARLIAMENT - Elections - Counting of votes - Request for recount - Reasons for must be given - Provincial Government (Electoral Provisions) Regulation (Ch No 56), s 148(1).

Section 148(1) of the Provincial Government (Electoral Provisions) Regulation (Ch No 56) provides:

"At any time before the declaration of the results of an election, the Returning Officer may, if he thinks fit, on the request of a candidate setting forth the reasons for the request or of his own motion, and shall if so directed by the Electoral Commission, recount the ballot papers contained in a parcel."

Held

For a request for a recount under s 148(1) to be valid it must be accompanied by reasons for the request, such as irregularities in the counting of votes: mere suspicion that something was wrong will not be sufficient.

Petition

On a petition disputing the validity of an open parliamentary election, the petitioner/losing candidate alleged that he had been denied a recount of votes.

Counsel

J Alman, for the petitioner.
M Mosoro, for the first respondent.
J N Sirigoi, for the second respondent, the Electoral Commission.
Cur adv vult

27 September 1988

KIDU CJ: This petition arises out of the East Sepik Provincial Government election in 1987.

The petitioner, Mr Nelson Omagan, the first respondent and Mr Thomas Niaupop were the three candidates for the Yuat Constituency. On 17 October 1987 votes were counted at Yuat Constituency Hall starting at 6.30 pm for all constituencies. Next day Mr Unumba was declared elected for the Yuat Constituency. The number of votes for each candidate was:

Mr Leo Unumba 529 
Mr Nelson Omagan 518 
Mr Thomas Niaupop 450 
There were 50 informal votes.  

Before the declaration the petitioner said that he requested a recount under s 148(1) of the Provincial Government (Electoral Provisions) Regulation (Ch No 56), which provides as follows:

"At any time before the declaration of the results of an election, the Returning Officer may, if he thinks fit, on the request of a candidate setting forth the reasons for the request or of his own motion, and shall if so directed by the Electoral Commission, recount the ballot papers contained in a parcel." (My emphasis.)

The returning officer for all the constituencies in the 1987 East Sepik Provincial Government elections was Mr Steven Kaumas (National Gazette No G 52 of 13 August 1987, p 960) and he was based in Wewak. The two assistant returning officers for the Angoram District were Mr Titus Thadeus Wapapik (Yuat, Karawari, Keram) and Mr Simon Failou (Angoram, East Coast, Lower Sepik and Middle Sepik).

The counting for all these above-mentioned constituencies was done at the Yuat Constituency Hall, Angoram. If the petitioner did make a valid request for a recount, s 148 required that the request be considered by the returning officer, Mr Steven Kaumas, and if the request was made to two assistant returning officers it was their duty to convey the request to the returning officer for decision.

It is free from doubt that no such request was made to Titus Wapapik, the assistant returning officer for Yuat Constituency. The petitioner says he made his request to assistant returning officer, Simon Failou. In his evidence he said:

"I came to the returning officer and asked him for a recount. After I asked him the returning officer shouted at me and told me in English like this: ‘This is not a place for complaining. If you meant [sic] to complain you go to Port Moresby and complain and ask for a recount’. On that same day ... Sgt Wani came to me and told me that there would be a recount after the counting for all the constituencies in Angoram."

This was said in his evidence-in-chief and no mention was made as to why he wanted a recount. For a request for a recount to be valid it must be accompanied by reasons for the request. It was later, when Mr Sirigoi was examining him, that I asked whether the petitioner gave reasons for the alleged request he made to Mr Failou and he said:

"The reason why I requested the recount was that David Fungu was related to Leo Unumba and the returning officer was his drinking mate."

It is really not clear from the petitioner’s evidence whether he gave the above reason to Mr Failou or whether this reason was only in his mind and he said it only because I asked him. Indeed, his own scrutineer at the counting, Mr Albert Kina, said:

"A. Yes, I was with Nelson and maybe other people.
Q. Do you recall what Mr Omagan said to the returning officer?
A. He said, ‘I want a recount’."

So it appears that the alleged recount request did not state the reasons and therefore did not comply with the requirement of s 148(1). Even if the request with or without reasons had been conveyed to the returning officer, it is clear from the evidence of the scrutineers for Mr Omagan and Mr Unumba that there were no irregularities in the counting of the votes and there have not been any allegations of any irregularities by Mr Omagan. His request was merely based on baseless suspicion that because Sgt Wani was a friend of Mr Unumba and was at the counting area and two of the persons counting were from Mr Unumba’s village (one was a cousin), something was wrong. Sergeant Wani had nothing to do with counting votes, he was there with other police to ensure the election was peaceful. He was not a polling official and had no influence whatsoever on the outcome of the election.

As to the two officials, David Fungu and Philip Kasua were from the same village as Mr Unumba but so was the candidate, Mr Niaupop, who was also Mr Unumba’s own nephew. But there were no irregularities alleged or shown. So the mere fact that these two officers were from the same village as Mr Unumba and Mr Niaupop had no effect whatsoever on the results of the election.

As the petitioner has failed to show me any valid reasons as to why I should order a recount of the votes for the Yuat Constituency his application is denied with the costs to both respondents to be taxed. I order that the petitioner’s deposit of K200 be refunded to him.

Petition dismissed

______________

Lawyer for the petitioner: J Alman.
Lawyers for the first respondent: R Nicholas Kirriwom & Co.
Lawyer for the Electoral Commission: State Solicitor.