Embel v Kopaol [2003] PGNC 43; N2460 (18 September 2003)

N2460

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EP NO. 66 OF 2002

BETWEEN:

PHILEMON EMBEL
Petitioner

AND:

ROBERT KOPAOL
First Respondent

AND:

REUBEN KAIULO
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani : Los J
2003 : 18 September

Counsel:
A Amet Jnr, for Petitioner
J Kwimb, for First Respondent
T Sarea, for Second Respondent

The Petitioner was an unsuccessful candidate for the Nipa-Kutubu Open Electorate in 2002 Election. He has challenged the election of the First Respondent, Kopaol, who polled 14,556 votes to the Petitioners votes of 12,560 a difference of 1,996 between him and the petitioner. There were 13 grounds listed to support the petition. They ranged from illegal practice to threats and intimidation. Most of the grounds were struck out or dismissed at the competency stage leaving paragraphs 9 and 13 for trial. These were the subject of the hearing before me in Mt Hagen for 3 days in May and then submissions were made before me at Waigani on 12th June 2003.

Paragraph 9

In paragraph 9 under different parts from case (1) paragraphs (a) to (f), the Petitioner alleges and has sought to show various acts of undue influence and illegal practices conducted or had taken place at certain places and times with the knowledge or acquiescence of the First Respondent through his agents.

The Paragraph pleads that these acts had contravened section 102 and 105 of the constitution, sections 171 and 215 of the Organic Law and various sections of the Criminal Code.

The introductory statement of allegation reads -

"It is alleged that during counting on the 27th of July 2002 at the Agiru Counting Centre in Mendi by reason of the acts referred to in paragraphs 4, 5, 6 and 7(i), (ii) and (iii) the Returning Officer, Mr Stanley Komal refused entry to all Presiding Officers from all polling places in the Electorate"

The counsel for Kopaol with the use of simple logic - when, where, who and what strongly challenged the allegations and submitted that "[t]here was not any shred of evidence proving the allegations".

The First Respondent attacked the allegation by attacking the drafting which reads "during commencement of polling on 26th of July 2002 for the Nipa/Kutubu Electorate". He argued that there was not a shred of evidence of commencement of polling the 26th July 2002. Well, obviously as far as drafting goes this part of pleading cannot stand. But,in my view, the substance of the complaint is more important.

In relation to the allegation of illegal practices at Aigiru counting centre, the Respondents were lukewarm. The Petitioner claimed that -

(1) on the 4th April 2002 or soon after the First Respondent and other candidates agreed to remove the Petitioner as Parliamentary member for the Nipa Kutubu Open Electoral
(2) that all losing candidates ballots (who are part of the agreement) were illegally counted for the First Respondent.
(3) that in accordance with this understanding the Returning Officer Mr. Stanley Komal had hand picked various tribesmen or supporters and campaign coordinator of First Respondent and candidates as electoral officials at counting with the aim of returning the First Respondent
(4) With this agreement or understanding presiding officer for all polling places were not allowed to participate in the counting.
(5) All losing candidates ballots would be counted in favour of Kopaol.
(6) Most counting officials were relatives of the First Respondent.
(7) As part of the agreement Stanley Komal allowed scrutineers to touch ballot papers and allowed Defence Force and Police Force personnel to break open ballot boxes and took part in counting of votes without proper authorities.
(8) Counting officials bundled Petitioners ballots and put them aside.

The First Respondent's counsel attacked these allegations as nonsense and said where would such scheme take place and who were the candidates that had taken part in planning? Did all the presiding officers of all the polling places fail to take part in scrutiny of votes?

I would have to agree with the counsel for the First Respondent to an extent that there had been no evidence before the court on any whole sale agreement and planning to carryout the acts that had been described.

However, some facts had not been contested and they speak louder. There were -

(a) absence of a large percentage of the presiding officers at the scrutiny and or counting;
(b) no explanation/proper explanation as why each presiding officer has not been called to reconcile his/her records and certify before commencing the counts;
(c) no reconciliation of boxes with the presiding officers return to ensure each ballot box was in order for count; and
(d) little explanation had been given why 3 boxes for 3 areas namely Kum, Punte and Alamanda had not been counted.
(e) More ballot papers above the number required were issued at the election.
(f) Some unregistered voters were allowed to vote.

I do not consider that with the aspects I have pointed out there was a fair scrutiny and fair and valid election.

Paragraph 13

In paragraph 13 in a very broad term three allegations of improper practices or official irregularities are alleged. They are -

1. No polling was held at Mt Bosavi LLG
2. Illegal acts were committed at Muluma Government station

100. Returning officers at Muluma marked the ballot papers which had been returned unused.
     

No polling at Mount Bosavi

It is alleged as a matter of fact there were 3,157 eligible voters in the area. But the complaint is that 1,843 extra ballot papers were issued for this area, making it 5,000 ballot papers altogether. The Petitioner says there was no voting at all at Mt Bosavi. This is a question of fact that must be established either by direct or indirect evidence.

On direct evidence the main witness called was Mark Bosea. He was returning officer for the Lake Campbell at Mt Bosavi. He said he had not taken his ballot boxes nor his polling team to conduct polling at Lake Campbell. So if neither his team nor the ballot papers were there, who had conducted the election there? His evidence on this was confirmed by Rex Usu. Rex who was called by the Respondent said Bosea was at Didesa where polling was conducted. Only one of them has to be telling the truth.

Waima Dinawi, a witness called by the First Respondent said he personally saw all the polling teams for all areas leave by chopper. He could not say which team had gone to which place to conduct the election. Witness David Sudu said he had seen polling at six places. This, as submitted by Mr Amet is humanly impossible in such a difficult place by the features of geography and distance to do so. I accept this as a matter of logic and practicality.

I have read and re-read the two affidavits concerned. Firstly Waima Dinawi attempted to distant himself from First Respondent but could not help but telling the voters to vote for First Respondent.

The indirect evidence came from Daniel Hale, Bosea Kulu and Jimmy Wowel. Their evidence is that they had marked ballot papers at Muluma District Office on 7th and 8th July 2002. In other words, the votes allegedly took place at six scheduled places at Mt. Bosavi had not taken place but ballot papers were marked at Muluma District Office.

Then it is claimed that even though there were no polling at all conducted at 7 Rest Houses namely, Musala, Weleyo, Wawoi Fall, Somokoba, Kakademayu, Banisa, Ulude/Lake Campbell, some 1,632 votes returned in favour of the First Respondent. The submission is that some eligible voters 1,632 had missed out altogether. To some extent it was conceded in the submission by the Second Respondent that there was no clear evidence as to whether or not polling actually had taken pace at the places named. There is evidence however that Assistant Returning Officer Wicx Luvic that he had received all ballot boxes with serial tags and locks on them. It was submitted that the fact that locked boxes were seen and that polling officials seen leaving for their polling areas was sufficient. I do not consider this evidence sufficient in view of the serious allegation. Evidence of eyewitness of polling team arriving, conducting polling and re turning - all three stages are needed to assist the court.

Where and when did ballots arrive at voting place, when and where did they leave the voting places to a central place; and when and where they were flown to Mendi for counting are the most important questions answers to which could only be provided by evidence.

The simple answer the Respondents had given or attempted to give was that the boxes were taken by the personnel at Muluma Government station in Mount Bosavi Local Level Government area and personnel and boxes sent to different areas concerned from there. This arise from evidence that witnesses had seen boxes arrive and leave in certain dates by planes or helicopters. No one could as an eye witness say there were polling at Musula, Weleyo, Wawoi Falls, Somokoba, Kakedamyu, Banisa and Lake Compel. The only three witnesses who had given evidence on behalf of the Petitioner said by direct evidence that they were presiding officers assigned for certain places but they did not conduct elections at these places. They were Mark Bosea returning officer for Lake Campbell and Rex Usu, returning officer of Didesa and Jim Mowei.

As against not only the eyewitnesses but those who had been assigned to conduct polling yet did not do it and had said so, what is, if there, a direct evidence that polling had been conducted in all the areas intended? There is none.

The First Respondent attacked Bob Kay's evidence as nonsense be cause on the one hand he said he had waited at Lake Campell/Uldie with others for one week but no polling team had turned up and on the other hand he said he heard that the First Respondent had collected votes from the these very areas. Indeed that is the curiosity that arise as allegation of foul play or any other names that could be given.

Daniel Hale's evidence was attacked seriously. His evidence on the point firstly is that there was 2 day polling at Muluma Government Station on 7th July when ballot boxes and ballot papers flown into Muluma on the afternoon of the 6th July. Polling began on Sunday in the immediate villages or areas. But he had not seen any polling team leave for some seven villages which were miles and miles from the station. He has expressed surprise to learn that some 1632 votes were collected in favour of the First Respondent.

Putting all the innuendo aside, the basic point stands, that is as far as he had known and seen, no polling teams had gone to some 7 areas, so where had all those 1632 votes had come from?

Mark Bosea's evidence, the relevant part, is that teams gathered at Muluma Government Station to be flown to their respective polling places. The helicopter arrived late on 5th June 2002. It could only drop off 4 polling teams. The teams within walking distances had walked. But other teams assigned for Muluma, Waleo, Kakademaju, Wawi Falls, Somogoba and Ulidu did not leave. On the 7th June two helicopters and a twin Otto arrived but were only to fly the completed ballot papers to Mendi.

The attack on the witness' evidence by the First Respondent was limited mostly to whether result would have been affected at all even if it was for illegal marking of papers at Muluma Government Station was true. Very little attack was on whether any voting had taken place at all at the 7 mentioned places.

Bosea Kulu's evidence was attacked only on whether polling had commenced on 6th July 2002 in relation to different issue. Jimmy Mowei's evidence, in so far as relevance is concerned is whether all the registered voters had any opportunity to vote at all.

Evidence on Flight

Evidence by Timon Dagimu - load master, helicopter was referred to show that all the assigned teams and ballot papers had been taken to the designated places . The daily flight records does not answer fully the allegation that the registered voters in the rest of the areas had not voted. The flight records confirm that there were flights to Delesen, Forgomaniyu and Didesa. The records do not contradict the allegations that there had been no polling at other places. Dagima's affidavits appear not to have been tendered formally. At any rate he could only swear the truth of him flying in chopper to Muluma on 4th July 2002. The rest appear to be record of a third hand information.

Further some documents containing flight details were attached to Mr Kuwimb's affidavit sworn on 16th May 2003. It has not been formally tendered. The contents however do not give any more help then basic evidence that the helicopters and or planes seen arriving at Muluma and leaving between 4th July and 8th July.

Illegal Acts at Muluma Government Station

The head office of the Mt Bosavi, LLG is located at Muluma. The Petitioner claims under this heading that at 6 places the presiding officer, Carolyn Tapi marked various ballot papers in favour of the First Respondent against the wishes of the voters wanting to vote for the Petitioner. These were illiterate voters from Didesa, Fogomaiju, Wanekesu, Wakoweto, Muluma, and Sioni Falls where some 300 voters were used in this respect. There is a specific allegation against the presiding officer Carolyn Tapi but the evidence is not strong to support it.

Marking of unmarked ballot papers at Muluma Government Station

Under this subheading the Petitioner says some 2,000 unused ballot papers were taken back to Muluma Station and marked as returned in favour of the First Respondent. These were done at District Office, Youth Office and Typing pool. Some 12 persons and officials names as being involved. They were, Tafi Meio, Wix Sowek, Carolyn Tapi, Amos, David Sudu, Jimmy Moi, Igibe Funga, Kaluje Moiye, Simon Auabi, Francis Sogobaiye, Wambon Onwang and Salen Degebo. The result was that some 2,000 registered voters from the Rest Houses named from Usula to Lake Campbell missed out.

Obviously the two allegations are connected. They are if there was no voting at 7 Rest houses where did the ballot papers go to. It has not been pointed out to me how many ballot papers were unused. But there is some evidence that three boxes containing votes had not been counted at the Counting Centre for no officially known reasons. There had been no determination of their status officially.

Obviously if these acts complained had take place, they denied the registered voters right to vote under section 50 of the constitution. And alternatively the acts contravened sections 110 and 111 of the Criminal Code Act.

These acts either had occurred or not occurred. The Respondents deny such allegation. They do that claiming that no such act had taken place because -

(1) No unused ballot papers were at the Muluma station, all had been used up at their designated places.
(2) It was impossible for such acts to occur because all ballot boxes had been locked up.
(3) There were conflicting dates given by witnesses as to when these alleged acts would have occured because by Monday the 8th of July all the ballot boxes containing the votes would have gone to Mendi for counting.

On behalf of the First Respondent and the Second Respondent the allegations by Petitioner were attacked vigorously on all sides. The counsel argued that there was simply no clear, unambiguous and sufficient evidence to prove and sustain the allegations.

As to the first point that is voting at the station could not have occurred because no unused ballot papers had been left in any boxes is based on an assumption that the voting had taken place in all the designated places. The evidence which has been conceded to an extent is that extra ballot papers had been issued and obviously extra irregular votes had also taken place. Secondly the evidence has not established that voting had taken place in every designated place.

It was further argued that no interferences occurred to any boxes and their contents because they all had been locked up. Indeed that is a wish the Court and officials would like it to be and like to know. But the main argument by the Respondents were that the dates on which the alleged marking had taken place could not be correct. The reasons given were that firstly the boxes had been flown out on the days when alleged illegal marking had taken place. Secondly, and not too different reason is that, the days on which the alleged marking had taken place were after the ballot papers had been taken away.

Councillor Waima Dinawi, responsible for some 5 villages, appears from the content of his affidavit to be a very strong man. He could command and speak for many and every body. He could also be every where at the same time. I could understand he needed to get all the voters from all the 5 villages to go to Muluma to vote. His direction and command was for every voter from all those villages to vote for the First Respondent. I could not however understand him to be everywhere witnessing helicopter flights and fixed wing planes landing and taking off at Muluma and other places from his village—Topali. His credibility is questionable.

The complaint about counting at Counting Centre.

The petitioner has alleged that –

(1) there was no scrutiny of boxes and ballots before opening and counting of ballots;
(2) the presiding officers returns or form 58 were not presented for the purpose of scrutiny;
(3) there was collusion among election officials, counting officials and scrutinizers to make Mr. Embel lose and Mr. Kopaol win;
(4) there was cheating in the sorting of and counting of ballots;
(5) failure of scrutiny resulted in illegal ballots being counted;
(6) as a result Mr. Embel was deprived of a win;

(7) ascertaining Robert Kopaol as the winner is illegitimate and void.

The first question asked is whether the conduct of scrutiny was done properly. Scrutinizing is a compulsory process required under Part xiv of the Organic Law. Section 147 begins with a very strong command that "The result of the polling shall be ascertained by scrutiny". It is a must and the Organic Law prescribes no other way than scrutiny. Section 149 commands the returning officer or his assistant to "conduct scrutiny at the counting centre". Section 150 of the Organic Law allows a candidate to be represented at the scrutiny. And "all the proceedings at the scrutiny shall be open to the inspection of the scrutineers’’. These are not just nice words. These words import real meaning to the election process at the counting stage. First each candidate must be allowed to be represented at a distance where he (or she) must be able to see and observe the preliminaries, the counting and the declarations all the necessities that are commanded by section 151 of the Organic Law. Section 151 says -

"Conduct of Scrutiny.

The scrutiny shall be conducted as follows:-

(a) it shall commence as soon as voting in the electorate is completed; and
(b) any scrutineers duly appointed under Section 150 and any persons approved by the officer conducting the scrutiny, may be present; and
(c) all the proceedings at the scrutiny shall be open to the inspection of the scrutineers; and
(d) the scrutiny may be adjourned from time to time as necessary until the counting of the votes is completed."

I have not been shown any deliberate breaches of the statutory command for scrutiny. From the evidence however there were serious lapses. The scene at the centre was tense with sheer number of persons, demands and counter demands, and fear and intimidation. In that situation security was tight with police and army personnel guarding the doors and gates and the counting centre generally.

It was conceded generally that the records of the ballot boxes and ballot papers had not been reconciled. It was also conceded not all presiding officers were allowed in to the counting Centre. The returning officer Stanley Komal could only say he had no control over that affair; it was the level of the security provided by the police and army personnel that allowed that to happen. He said also that the time was against him, he had four days to complete the counting and make declaration to meet the dead line for return of the writ.

Mr.Kuwimb was lukewarm on this aspect of the case. He submitted that on the strict reading of section 154(1) subject to division 3 and 4, the Returning Officer is the sole officer of the Electoral Commission authorized to conduct scrutiny and the persons attend the scrutiny are those chosen and approved by him. Indeed if one could read the sections on scrutiny generally, the counsel ought to be correct. However, if one reads the provisions relating to scrutiny with purpose administratively and legally, to follow Mr. Kwimb is to make mockery and open up to abuse the scrutiny at counting. Administratively, what is the outcome needed at the scrutiny. The answer would be every vote must be counted excepting those that cannot be legally accepted. If the question is asked with legal reasons in mind, the answer would be that scrutiny is needed to ensure that everbody’s vote which is shown on a ballot paper must be sacredly counted.

In summary, I am not convinced that voting was conducted at each and every designated place. The reasons among others, is that I am not convinced that polling officials and the boxes were dropped of by plane or helicopter in every designated place. I am not even convinced, even if extra ballot papers were issued for good reasons, they had been misused. That is some were given to unregistered voters to vote. I am not even convinced that no illegal marking at all had taken place at Muluma government station.

Above all I am not convinced that there was proper scrutiny at the counting centre. There was a concession that for the sake of security, scrutiny had the low priority. I find these to be serious error going against the need to ensure each voter's vote to be properly screened and counted.

As to whether the result would have been affected at all, I consider it to be so. Three ballot boxes were not counted. Security was tight one way that was against the Petitioner.

I therefore declare the election of the First Respondent, Rober Kopaol invalid and order that bi-election be held.

Lawyers for the Petitioner : Amet Lawyers
Lawyers for the First Respondent : Kuwimb Lawyers
Lawyers for the Second Respondent : Nonggor & Associates