Kaiabe v Mulungu [2008] PGNC 47; N3329 (5 May 2008)

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IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF THE DISPUTED RETURNS
FOR THE KOMO MAGARIMA OPEN ELECTORATE

ELECTORAL COMMISSIONER AND THE
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

NATIONAL ELECTIONS – Petition disputing result of National Election – Grounds of petition – illegal practices alleged – whether demanding and getting ballot papers amounts to an illegal practice – whether other people including polling officials marking the preferences on the ballot papers other than the eligible electors or voters amounts to an illegal practice – Whether voting for and on behalf of other people amounts to an illegal practice.

Whether the decisions by the electoral Officials, in the light of the Hela Memorandum of Understanding to allow all ballot boxes to be counted amounted to an error or omission.

Section 50 of Constitution – right to vote – right is an individual right and not clan or group right.

Papua New Guinea Cases
Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Kopaol v Embel SC727
Rimbink Pato v Electoral Commissioner and Micky Kaeok N2455

Counsel:
Mr A Kaiabe, in person
Mr D Kombagle, for the First Respondent
Mr M Opur, for the Second Respondent

1. SALIKA J: BACKGROUND: The Petitioner and the First Respondent in this matter were candidates for the Komo Magarima Open Seat in the 2007 National Election. They were among 29 other contestants for the seat.

2. The Second Respondent is charged by the Constitution with the responsibility to conduct National Elections in Papua New Guinea

3. Polling for the Komo – Magarima Open Electorate took place from 30 June 2007 to 1 July 2007.

4. The scrutiny of the votes for the Komo Magarima Open Seat commenced on or about 16 July 2007 and ended on 29 July 2007.

5. On 29 July 2007, the Returning Officer for the Komo Magarima Open Seat, Mr Vincent Atusa declared the First Respondent as the duly elected member for the said seat, having polled a total of 15,416 votes. The runner up candidate was Eno Tanda who polled a total of 14,601 votes a difference of 815 votes.

6. The petitioner polled 4089 votes and was eliminated on the 24th exclusion count.

7. On 5 September 2007, the petitioner filed a petition challenging the election of the First Respondent as the Member for the Komo Magarima Open Seat.

9. The illegal practices and the errors and omissions are alleged to have been committed at the following polling places.

10. The onus is on the Petitioner to prove the allegations he has alleged against the electoral officials. That law has never been altered and is not about to change since Neville Bourne v Manasseh Voeto (1977) PNGLR 298. Frost CJ in that case said:

"This brings me to the onus of proof. There are two types of cases which comes before this Court under the Disputed elections provisions of the Organic Law and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of these corrupt or illegal practices including undue influence. The onus is, of course, on the petitioner in a case such as this. What we are concerned with here is the degree of proof. Even in regard to the first class of cases, that is, those based on electoral irregularities, it is recognized, to use the words of Stephenson L. J in relation to an English provision in similar form to the Organic Law, s.218(1), that" ... as election is a serous ... and expensive... matter and is not lightly to be set aside". Morgan v Simpson (2). This has a particular application to this Papua New Guinea electorate in view of the hazardous conditions and hardships that the polling teams put up with when, taken by helicopter, they were landed in the hills far from Menyamya and had to make their way by foot through the villages back to that town.

Now, as to the other type of case, it was said in the Salford Election Petition (3) that the return by a Returning Officer is not to be lightly impeached. If the petition is based upon an independent act of bribery for intimidation as opposed to general bribery or intimidation, before such an election is set aside it should be proved to the entire satisfaction of the Judge ... per Martin B. at p. 124, Willes J said that the Judge before defeated an election should be very sure. He ought not to say very sure, but ought to be sure, he ought to have reasonable assurance that the ground was really made out. Northerallerton election petition (4). Both were cases decided at common law.

In Halsbury it is said that in such a case the Court should be satisfied "beyond all doubt", Vol. 14, 3rd ed, at p. 288. similarly, "where an election ahs been properly conducted and where there is a single act of intimidation the court will require strong evidence indeed before declaration such election void." Schofield on Parliamentary elections at p.400"

11. What is the standard of proof in election petition cases? Is it "to the entire satisfaction of the Judge" or is it the court "ought to be sure to have reasonable assurance that the ground was really made out" or is it that the court must be satisfied "beyond all doubt?" The court in the Bourne v Voeto case appears to have used the "beyond all reasonable doubt" test. That was because the complaints raised in that case alleged undue influence which is a criminal offence and therefore the criminal burden of proof was applied by the Court. In this case the complaint is founded on irregularities committed by electoral officials such as polling officials marking the ballot papers rather than the voters, or criminal or supporters of candidates hijacking the polling teams and marking the ballot papers. Those actions may amount to either criminal acts or be considered electoral offences.

12. In the case of Kopaol V Embel SC 727, the Supreme Court said that if the Petitioner relies on the grounds of illegal practices other than bribery and undue influence, he must satisfy the Court to its entire satisfaction. What that means in my view is that the Court must be satisfied to its entire satisfaction by the evidence adduced and there is no shadow of a doubt in the mind of the Court of the veracity of that evidence. I am prepared to apply and use that test, i.e. the entire satisfaction of the Court test in this case. In other words the Court must be satisfied to its entire satisfaction that polling officials, supporters of various candidates, certain people as pleaded in the Petition and criminals marked the ballot papers in the various named polling places and that there was indeed no act of free choice by the registered electors or eligible voters in the pleaded polling places.

13. The Petitioner relied on certain materials which were tendered into evidence by consent.

No.	Deponent	Date Sworn	Date Filed
1	Robert Tia	22nd October, 2007	22 October, 2007
2	Henry Aki	22nd October, 2007
3	Steven Liwa	11th September 2007	18th October 2007
4	Max Pani	11th September 2007	12th October 2007
5	Andrew Sepik	11th September 2007	12th October 2007
6	Angobe Ipitali	11th September 2007	12th October 2007
7	Agobe Howe	11th September 2007	22nd October 2007
8	Fred Delago	11th September 2007	12th October 2007
9	Michael Haya	11th September 2007	22nd October 2007
10	Albert Tadabe	18th October 2007	22nd October 2007
11	Gibson Tayabe	20th October 2007	22nd October 2007
12	Albert Wayali	20th October 2007	22nd October 2007
13	Max Tayabe	20th October 2007	22nd October 2007
14	Moses Paul	20th October 2007	22nd October 2007
15	Tindibu Andalu	20th October 2007	22nd October 2007
16	Mokai Alu	20th October 2007	22nd October 2007
17	Pepena Togola	20th October 2007	22nd October 2007
18	David Tambukali	4th October, 2007	12th October 207
19	Igibe Punga	4th October, 2007	12th October 2007

All this affidavits were tendered into evidence after the deponents had been cross examined.

No	Deponent	Date Sworn	Date Filed
1	Councillor Lepani Kole	24th October,2007	26th October 2007
2	Councillor Urubu Andawi	24th October, 2007	26th October 2007
3	Joe Wiya	25th October, 2007	31st October 2007
4	Mathew Minari	29th October, 2007	31st October 2007

16. All the First Respondent evidence were tendered into evidence after the deponents had been cross-examined.

No	Deponents	Date Sworn	Date Filed
1	Nelson Langibe	24th October, 2007	1st November, 2007
2	James Andy	24th October, 2007	1st November, 2007
3	Gibson Kapo	24th October, 2007	1st November, 2007
4	Roman Tamuali	24th October, 2007	1st November, 2007
5	Samuel Mulungu	24th October, 2007	1st November, 2007
6	Dickson Tapira	24th October, 2007	1st November, 2007
7	Ngule Maliame	24th October, 2007	1st November, 2007

18. All the Second Respondents evidence were tendered into evidence after the deponents had been cross examined.

19. During the course of the evidence given by the Petitioner’s witnesses it became important for the Second Respondent to call Assistant Returning Officers Nelson Langibe, Max Muli and Tumbi Yari. These AROs were responsible for running the election for the Komo-Magarima Open Seat. Nelson Langibe and Tumbi Yari were called to give evidence. Max Muli was not called. These 2 witnesses were called on the instigation of the court and supported by the petitioner, the First Respondent and the Second Respondent. They indicated they wanted to get to the truth of what happened to the presiding officers’ returns.

20. After Nelson Langibe and Tumbi Yari had given evidence it became important for Andrew Kongri, a lawyer in the employ of Nonggor and Associate Lawyers to also give evidence regarding the whereabouts of the presiding officer’s returns. This was because both Mr Langibe and Mr Yari gave evidence that they gave all their presiding officers returns to Mr Kongri.

21. Mr Kongri gave evidence in Port Moresby after the court had adjourned in Mendi. Mr Kongri gave evidence that Mr Lagibe and Mr Yari never gave the presiding officers election returns to him. The end result is that no presiding officer’s returns were ever produced by the Electoral Commission for the Komo Magarima Open seat before the court. They were however produced by the various presiding officers who gave evidence and annexed them to their affidavits.

22. I will get back to analyse the evidence more carefully a little later on as I want to now go to the document called ‘SETTLED STATEMENT OF LEGAL ISSUES AND OF AGREED AND DISPUTED FACTS".

This document was filed on 6 November 2007, which is Exhibit A in these proceedings. The court took note of the fact that Counsel for the First Respondent did not sign this statement on the basis that "his client would not be affected by the issues of law and facts as pleaded in the petition". The court at the trial confirmed counsel’s position on this and the document was accepted into evidence.

23. Paragraphs 1 to 9 of the Petition were agreed to. For completeness I reproduce those paragraphs.

1. The Petitioner and the First Respondent together with 29 others were candidates for the Komo Magarima Open electorate, hereinafter referred to as ("the electorate") in the June 2007 National General Elections for that electorate.

2. The Second Respondent has the lawful responsibility to organize and conduct the elections and declared the First Respondent as winner of the said election at 4:30 pm on the 29th July 2007 at Momei Oval, Mendi, southern Highlands province.

3. Polling in the said electorate was scheduled to be held and except for polling areas affected by illegal practices and errors and omissions, was held on the 30th June 2007 in almost all parts of the electorate. In a few polling areas in the electorate, the purported elections were completed the next day, being 1st July, 2007.

4. In many of the polling places there were virtually no police presence. In some polling areas two unarmed elderly auxiliary policemen were attached to polling teams.

5. The Second Respondent appointed Allan Kaiabe as Returning Officer and five Assistant Returning Officers for the purposes of running the said elections in the five LLG areas of Upper Wage, Lower Wage, Hulia, Komo and Mt Bosavi. Mt Bosavi LLG Area is split into both the Nipa Kutubu and the Komo Magarima electorates. Six of the thirteen wards for Mt Bosavi LLG are inside Komo Magarima. At all material times during the period before issue of writs and thereafter, the petitioner’s brother, Allan Kaiabe was the duly appointed Returning Officer. Mr Kaiabe accepted the nomination of candidates. The Second Respondent, at all material times through the Southern Highlands Province Elections Steering Committee, had full knowledge that the Petitioner was running for the seat to which is brother had been appointed Returning Officer.

6. Only days before the polling the Second Respondent swapped the Returning officer for Komo Magarima with the counterpart for the Imbongu Open electorate. This was a last minute arrangement and the Second Respondent could not and did not in fact have time to gazette these changes. For the Komo Magarima electorate therefore, whilst nominations were received by duly appointed Returning officer, Allan Kaiabe, the conduct of polling and scrutiny was done by another returning officer, Mr Vincent Atusa following the swap, consequently, the First Respondent, purported a winner was declared winner by the said Vincent Atusa. The writ was returned also by Mr Atusa, who was not the gazetted Returning Officer for the electorate in question.

7. Because of the sudden change, the electorate’s conduct of the elections was thrown into total confusion. There were no briefs held between the Presiding Officers and the five Assistant Returning Officers. At all material times, the electorate had no access to the common roll, so the people did not and could not ascertain whether their names were ever enrolled on the common roll to vote under the new LPV system of voting. The first time the common roll appeared was at the polling areas of the polling places during the day of polling.

8. Unlike in previous cases where copies of the bulk of the common roll was distributed and was made available to the people for inspection, in this election, the common roll was divided into polling areas. During polling, only the Presiding Officer was given copy for the purposes of the purported polling.

9. Elections for Komo started very late in most corners of the District as the boxes and ballot papers arrived at Komo at about 11 am. The next hour was taken up by unloading and the distribution of ballot boxes and ballot papers at what remains of what used to be Komo station. As had been the usual practice, each of the 24 ward areas of the Komo LLG area has been converted into poling places and a ballot box had been issued for and in respect of each polling area. Then the issue of polling officials arose. Because of the chaos following the change of Returning Officer, it was not clear who would be appointed presiding officer for the various polling places in the electorate. In the confusion that reigned, presiding officers had to be selected from those who had earlier applied and who were there to check (on the day of polling) whether their application to conduct the elections as presiding officers for the 24 polling areas in Komo, was selected.

I have reproduced them because paragraphs 7, 8 and 9 read together create a chaotic scenario.

- there was no briefing by the Assistant Returning Officers and the presiding officers.

- between 11.00 am and 12.00 noon ballot boxes and ballot papers were distributed at Komo Station.

- because of changes of Returning Officers, it was not clear who were to be presiding officers for the various 24 polling places.

- presiding officers were selected on the day of polling from those who had applied earlier and who came to check if their applications to be presiding officers had been accepted.

27. While the allegations were not directly against the First Respondent or any of his supporters, the resultant effect of those allegations and the issues raised by them were always inevitably going to affect the First Respondent. For instance the allegation of the polling officials marking ballot papers for and on behalf of eligible voters and not allowing voters to mark their votes according to their conscience at the Bobole Polling place in Mt Bosavi, would without a doubt raise the issue of the validity of the entire election and therefore the issue would directly affect him as the declared Member of Parliament. Unless of course he conceded to the allegations.

28. The statement made by Counsel for the First Respondent that "the First Respondent would not be affected by the issues of law and facts as pleaded in the petition" in my view was and is misleading. Perhaps what counsel meant was "the allegations are not directly against my client so he has not sign the document." I only raise this point because the statement was made by Counsel for the First Respondent, both at the pre-trial process and during the trial, and is a cause for worry.

1. (a) Whether there was a failure on the part of the Second Respondent not to provide adequate police and defence force security personnel, and

(i) Errors and omissions within the meaning of the Organic Law on National and Local Level Government Elections, and or

(ii) A denial of the right of eligible voters to reasonable opportunity to elect their leaders and for the candidates to be elected as leaders, by the eligible voters guaranteed by the constitution.

30. Before I start analyzing the evidence of the witnesses in this matter, I note two important omissions by the Second Respondent. First, the Second Respondent after being served all the affidavits filed for and on behalf of the petitioner has not filed a notice under Section 35 of the Evidence Act to cross examine the deponents. All the allegations in the petition are against the officers, servants and agents of the Second Respondent. In the light of those allegations, the Second Respondent did not consider it necessary to file that notice. The legal effect of that is that the Second Respondent accepts the evidence of the deponents and the Court may accept that evidence as being uncontradicted.

31. The First Respondent in deciding not to be a signatory to the Statement of Agreed and Disputed Facts because no allegations were made against him, however filed a notice under Section 35 of the Evidence Act.

32. I however did allow the Second Respondent to cross examine the deponents because the Court felt that the case should be determined on "merits and good conscience" without regard to legal forms and technicalities" as stipulated under Section 217 of the Organic Law.

33. The second important omission is that after the Second Respondent was served the affidavits filed for and on behalf of the petitioner, the Second Respondent filed its own affidavits to be relied on. However the affidavits filed for and on behalf of the Second Respondents, do not rebut the allegations deposed in the affidavits of the petitioner’s witnesses. I have always been of the view (I stand to be corrected on this view) that the rebuttal affidavits must reply to the specific allegations alleged by the deponent’s paragraph by paragraph. In this case, the deponents do not reply to or rebut the affidavit of the petitioner’s witnesses. The effect of this is that the affidavits filed for and on behalf of the petitioner stand uncontradicted, not rebutted, and unanswered.

34. The same is said in relation to affidavits filed for and on behalf of the First Respondent. None of his witnesses in their affidavits specifically contradicted or rebutted the petitioner’s witnesses in their affidavits. Instead they filed affidavits of their own, not addressing their minds to the serious allegations made by the petitioner’s witnesses against them. His witnesses made general denials only.

35. That is the state of the evidence that is now before the Court. Cross examination was allowed only because that was the proper thing to do in the interest of justice and fairness.

36. The petitioner called Michael Haya. This witness was the presiding officer for Kulu Nogoli Polling place. He filed an affidavit in favour of the petitioner. That affidavit is Exhibit E in these proceedings.

37. The relevant evidence this witness gave in his affidavit was that polling started late at about 5.00 pm and that by 6.00 pm only 15 people had cast their votes. The polling was at Juni Primary School which was not the gazetted polling place for Kulu Nogoli. He said after 6.00 pm it was getting dark and most of the voters had left except for about 30 people. He said with the consent of the Police Station Commander at Juni, polling was moved to the Juni Police Station just across the road. He alleged that at the Juni Police Station reception area he was instructed to sign the ballot papers and that the leaders and the remaining people would mark their choices 1,2 and 3 on the ballot papers. He said this process started at 6.30 pm and finished at 10.30 pm. He said as a result 777 eligible voters did not vote. He said the First Respondent collected 144 votes from Kulu Nogoli. The Form 58 attached to his affidavit shows that a total of 782 ballot papers were used at Kulu Nogoli.

38. The First Respondent filed an affidavit of one, Councillor Urabu Andawi. He said he is the Councillor for the Kulu Nogoli Ward and also a registered voter. He said on Saturday 30 June, 2007 he went to the Juni Station which was "agreed as the polling site due to the fact that it was half way between Nogoli and Kulu". He further said that polling commenced at about 1.00 pm and finished at about 6.30 pm. He said public servants like, teachers, health workers, policemen and Oil Search workers for the Hides Gas Project all voted there. He said polling was normal without interference from candidates or their supporters. He said the petitioners allegation that he stirred up the people to mark the ballot papers was false.

39. Michael Haya’s oral evidence was that he was the presiding officer for Kulu Nogoli polling place. He was cross examined on where he signed his affidavit and whether he remembered the names of the other polling officials in his team and he said he did not remember their names. He was then cross examined on the presiding officer’s returns, that is forms 55, 56, 58. He was asked if 350 males voted as shown in form 55 and he said "yes" and whether 351 females voted as shown and he said yes. He was asked if 782 people cast their votes and he said "yes".

40. In the re-examination, he was asked where he filled the form 55 and he said that was done in Tari after instructions from the Assistant Returning officer Tumbi Yari to complete the forms. This was confirmed by Tumbi Yari in his own evidence.

41. The Second Respondent filed an affidavit of James Andy. This witness was the Assistant Presiding Officer for Kulu Nogoli polling place. He said in his affidavit that polling was conducted at the "Juni Police Station" which was agreed to as the polling site due to the fact that the agreed site was between Nogoli and Kulu. He said polling commenced at about 1.00 pm and finished at 6.30 pm. He said all the voters voted according to their preferences. He said polling was conducted normally without interferences by candidates or supporters.

42. James Andy gave oral evidence and on cross examination said he knew Michael Haya who was his presiding officer for Kulu Nogoli. He said Kulu is a village and Nogoli is another village as well. Michael Haya's version that there was no polling at Kulu Nogoli was put to him and he said Michael Haya lied.

43. Upon further cross examination the witness said he was now a student at the Goroka Grammer School. It was then put to him if he knew Libe Parindali who is a leader from Nogoli which is the same village as the witness. The witness denied knowing this leader. It was put to him that Libe Parindali paid his school fees and he denied that saying his father paid.

44. He was also asked if he saw Mathew Minari and Uruba Andali at the polling place and he said he did not see them there but said he only saw councillor Egawi there.

45. One alarming aspect of James Andy’s evidence and that of Uruba Andali and the other witnesses for both Respondents was that the Petitioners witnesses’ affidavits were not read to them nor did they know of their existence although the respondents had been served the affidavits. This was revealed in cross-examination. In this case James Andy was not referred to Michael Haya’s affidavit nor was it ever shown or read to him. This was a major omission in my view. He was required to respond to Michael Haya’s affidavit and deny or confirm the allegations therein. He did not to a large extent. He joined the other deponents called on behalf of the Respondents with their common expression or phrase that went like this: "voters voted according to their preference and polling was conducted normally without interference". This in my view was too general and did not specifically deny Michael Haya’s affidavit.

46. From all the evidence relating to whether there was polling at Kulu Nogoli, I find that there was no polling at Kulu or Nogoli polling place but there was polling at Juni Junction. Michael Haya in cross examination did admit there was polling at Juni. In the circumstances, I am satisfied there was polling at Juni.

47. As to whether the polling was done in an orderly manner is a matter I have doubts over. This is because Michael Haya said the polling started late and there was an argument as to where polling should take place. I accept Michael Haya’s evidence that there was an argument as to where the polling should be held. This is because the polling place as gazetted was Kulu Nogoli and not Juni.

48. I also accept Michael Haya’s evidence that as it was getting late, the polling was moved to the Juni Police Station and at the police station he was instructed by Councillors Andawi and Tayanda to sign all the ballot papers. I am satisfied he signed all the ballot papers but I have doubts that the leaders marked the ballot papers for the electors. As I indicated earlier from the witness’s people did cast their votes although the situation may have been chaotic.

49. The decision to conduct polling at a certain location and to move or shift the place of polling to another place is entirely a matter of judgment for the presiding officer as the circumstances may permit him. However it is entirely a different matter when a polling team is hijacked or commandeered to another place at the point of weapons and for fear of their own lives they move or shift. In this case Michael Haya did not suggest his team was hijacked at the point of weapons. I note that pursuant to s.117 of the Organic Law an election is not open to challenge on the ground of failure to observe a polling schedule. I also note s.43 of the Organic Law. Polling Places and Polling Schedules are two separate things but I think that when polling schedules are done, the polling schedule must include what time polling will take place at a particular polling place. In this case the polling place was not abolished, it was simply moved. The Organic Law is silent on moving or shifting of a polling place. It is therefore in my respectful view, not entirely illegal to move or shift a polling place from one location to another depending on the prevailing circumstances at the time of the move and the reasons for such a move. No registered elector gave evidence that as a result of the variation of the polling place he or she was deprived of their constitutional right to exercise the right to vote.

50. The presiding officer’s returns were not completed at Kulu Nogoli. These were done at Tari after the Assistant Returning Officer Tumbi Yari told them to fill in the forms. These forms have been with Michael Haya and are now attached to his affidavit. They were never given to Tumbi Yari as suggested by Tumbi Yari. Tumbi Yari lied about the returns being given to him and also lied when he said he in turn gave them to Andrew Kongri. Andrew Kongri denied he was ever given the presiding officer’s returns by Tumbi Yari and Nelson Langibe. They lied because they were supposed to have gone to see the Electoral Commission Office to hand over the returns to the Electoral Commission Officials but they did not go to see the Electoral Commissioner or his officers. They never made any copies of the returns which they should have if they were diligent

52. The petitioner called Agobe Howe the presiding officer for Agu Ayaga Iba polling place. He said in his affidavit evidence and also oral evidence that some men threatened him and his team at Paranda Hill and told him and his team to sign all the ballot papers and the ballot papers were then signed by him.

53. Fred Delago was also called by the Petitioner. He was the Assistant Presiding Officer for Agu Ayaga Iba Polling place. He corroborated the evidence of Agobe Howe.

56. The Second Respondent called Ngule Maliame. He filed an affidavit which is exhibit 9. He said he was the Assistant Presiding Officer. This is a direct contradiction to Fred Delago’s evidence who said he was the Assistant Presiding Officer for Agu Ayaga Iba Polling place.

57. The Respondents never cross-examined Fred Delago on that point when he gave his oral evidence. Ngule was cross examined on this aspect and it was put to him that he was the duly appointed presiding officer. He too was adamant that he was the assistant presiding officer. But he agreed that his sister Agnes Maliame was originally appointed the Assistant Presiding Officer but she did not take up the post because of study commitments. So how did he become the Assistant Presiding Officer for that polling place? Did he apply at all for the position? There was no such evidence to support his claim.

58. It is settled law that an opponent seeking to call evidence to counter his opponent’s evidence must put his version of the evidence to his opponents witnesses during cross examinations. I agree with Kandakasi J in Rimbink Pato V Electoral Commissioner and Micky Kaeok N2455 where he said:

It is settled law that where a party takes issue with any evidence called by his opponent and is going to call evidence to support his version, he must put his version of the evidence to his opponent’s witnesses in cross-examination. Where a party fails to do so, he stands the risk of the Court accepting the unchallenged evidence. This principle of law traces back to the case of Brown v. Dunn (1893)6 R 67 (HL) which has been applied in many cases. The latest application of that principle is my own judgement in, The State v. Edward Toude & Ors (No 1) (16/10/01) N2298, in the context of a criminal case. This principle of law has been adopted and applied in election petition cases too. A case on point is the case of, James Togel v. Michael Ogio [1994] PNGLR 396. In that case the Court stated that principle in these terms at p. 400:

"Failure to put a fact of evidence in cross examination of a witness has been considered in many cases dealing with the rule in Browne v Dunn [1893] 6. R. 67. One consequence of the rule can be that the Court is entitled to conclude, when considering all the weight of the evidence that a witness who gives evidence of facts not put in cross examination of the witness of an opposing party has made things up."

59. In this case the Respondents failed to cross examine Angobe Howe and Fred Delago on this point. I therefore accept the evidence of Delago that he was the Assistant Returning Officer and not Ngule Maliame. Ngule’s sister was originally appointed but she did not take it up and Ngule may have thought he could take his sister’s place. The system does not work like that.

60. Angobe Howe was cross examined at length about the presiding officer’s return and he explained that those returns were done at Tari after being instructed by the Assistant Returning Officer.

61. I discount the evidence of Ngule Maliame in its entirety because I have found that he was not the Assistant Presiding Officer. He therefore has lied and I will therefore not accept any of his evidence. In other words, if he was not the Assistant Presiding Officer there, where does that place him? I will totally disregard his evidence.

62. This means that the evidence of Howe and Delago are uncontradicted. I therefore accept their evidence that some men threatened him and his team at Paranda Hill and that while under that threat he signed all the ballot papers allocated to his team and those men filled the preferences as the ballot papers and not the eligible electors. A total of 339 ballot papers and their validity were therefore affected.

63. The Petitioner called Angobe Ipitali the presiding officer for this polling place, who gave evidence through his affidavit and also orally. He said there was no polling at Layago. He said him and his assistants were forced to sign and mark a total of 343 ballot papers.

64. The second respondent called Dickson Tapira. He said he was the Assistant Presiding Officer. He denied the allegations by the presiding officer.

65. Angobe Ipitali said in his affidavit that his Assistant Presiding Officer was Laya Koi.

66. Angobe Ipitali was never cross examined on this point by the Respondents nor was it put to him as to whether Dickson Tapira was his Assistant Presiding Officer and yet they always had his affidavit before the trial. It never occurred to them that there were 2 Assistant Presiding Officers at this polling place. Again, their failure to cross examine Angobe Ipitali means that this court must accept Angobe Ipitali’s version that Laya Koi was his Assistant Presiding Officer. Once more the rule in Browne v Dunn (1893)6 R I67 comes into play here.

67. In the circumstances I accept Ipitali’s evidence that Laya Koi was his Assistant. This finding therefore destroys the credibility and the veracity of Dickson Tapira’s evidence. The court is as a result left with the evidence of Angobe Ipitali. The effect of this is that Angoba Ipitali’s evidence is uncontested and is not contradicted and is credible.

69. I note that 343 ballot papers were affected here, which should not have been counted.

70. The Petitioner called Max Pani to give evidence on his behalf. He gave evidence by way of an affidavit and orally as well.

71. He said he and his team were held up by a group of men at Pongoli. He said he and his team members were dropped off by a vehicle further down the road.

72. He said polling should have taken place at Puba. He said the two elderly and bulky auxiliary policemen also did not want to walk to Puba.

73. He said he and his team was led by about 20 men to Chief Iruka’s house and told to sign the ballot papers there. He said under threat to his life, he signed all the ballot papers.

74. He said after signing them, the men grabbed the ballot papers and marked them among themselves and gave them back to him to be put in the ballot box.

75. He said after he signed 183 ballot papers Mathew Minari, a Councillor, arrived and told the men there that as they were in his yard he will decide where the votes would go to.

76. The effect of Max Pani’s evidence is that there was no polling at Kulu Puba and at Pongoli and that the right of the electors was unlawfully hijacked by some people

79. I note from his affidavit that Pongoli was "the agreed place of polling". Exhibit D in these proceedings is the list of appointed polling places. Kulu Puba is a ward name and is also the polling place and the polling villages are Kulu and Puba. Nowhere is it stated that Pongoli was the polling place.

80. Minari was asked how the agreement was reached to conduct polling at Pongoli. He was evasive by saying instead that if there is a helicopter they held polling at Puba and when there is no helicopter polling is held at Pongoli. When further pressed he said it was only during the last by elections that polling was conducted at Pongoli. Puba appears to be the usual place for polling.

82. The Electoral Commission had gazetted the polling place in the National Gazette which is Exhibit D in these proceedings.

83. There is no evidence that the Electoral Commission had abolished Kulu Puba as a polling place through the gazettal in the National Gazette before the writs were issued.

84. Section 43(2) is in very clear terms. No polling place is to be abolished after the issue of the writ and before its’ return. However, s.43 of the Organic Law is silent as to whether a polling place may be altered, moved or shifted to another place. Again circumstances, in my view would determine if it was proper or improper to conduct polling at Pongoli. In this case he said about 20 men led his team to Chief Iruka’s house at Pongoli and the men told him to sign the ballot papers. He said under threat he signed all the ballot papers. From that evidence, it seems to me that Max Pani’s decision in moving the polling place to Pongoli was not voluntary. It was forced on him by 20 men.

85. This should not be confused with Sections 113, 114, 115 and 117 of the Organic Law which deal with polling schedule.

86. A polling schedule may be altered by the presiding officer for cause but a polling place cannot be abolished by a presiding officer or any other polling official or by any other person through an agreement.

87. Max Pani had filed a detailed affidavit of what happened. Mathew Minari does not reply to Max Pani’s affidavit. He does not deal with Max Pani’s affidavit and answer each of the allegations in them.

88. Having observed the two witnesses, I am persuaded to believe the evidence of Max Pani. Max Pani was cross examined but his evidence was not destroyed by that cross-examination. Minari on the other hand was evasive as to how the agreement was reached to conduct polling at Pongoli. Community leaders, be it government officials or village leaders must not dictate to polling officials what they want. They must inform a polling team of whatever difficulties or circumstances are prevailing at a polling place. The decision to move or shift a polling place should be left to the presiding officer and his team. The Presiding Officer must make an informal voluntary decision taking into account the prevailing circumstances in the area. In this case he did not. A total of 408 ballot papers were affected. The actions of the 20 men in forcing Max Pani to sign the ballot papers and the 20 men then marking the preferences on those ballot papers amounted to an illegal act. This would therefore affect the validity of the ballot papers.

89. The petitioner called Andrew Sepik, the presiding officer for the Tumbite polling place. This witness said there was no polling at Tumbite polling place in that certain leaders including Councillor Lepani, Auxiliary Policeman John Tigua, a community leader Minago Tigua and the assistant presiding officer Wiya Tigili threatened the polling team with a bush knife.

90. In fear of his own life, he said the leaders and those with them distributed the ballot papers to be marked and he signed the ballot papers. He said the illegal signing of the ballot papers continued into the night at Thomas Tambo’s house.

91. He said as a result of the illegal voting 621 eligible electors were denied their right to vote.

92. He said Tumbi Yari told them to tidy up the electoral returns but the returns have remained incomplete.
Tumbi Yari in his evidence did say he told the presiding officers to fill in their electoral forms and said those forms were given to him. However, as it turned out, the returns were never given to him. Tumbi Yari said he gave them to Andrew Kongri. Andrew Kongri denied receiving the returns from Tumbi Yari.

93. Andrew Sepik was never cross-examined on the polling itself, as to whether or not there was polling at Tumbite. It was never put to him that polling did take place and that all the eligible electors exercised their free will to vote at Tumbite. Instead counsel got stuck into this witness on the filling up of the presiding officer’s returns only. His evidence on whether or not there was polling at Tumbite remains unimpeached.

94. The First Respondent called Councillor Lepani Kole. He filed an affidavit and also gave evidence orally.

95. His evidence was that polling was conducted normally "without interference by candidates or supporters".

96. Councillor Lepani in his affidavit said he did not commit any foul play and that what Andrew Sepik said was a lie.

97. Andrew Sepik alleged that even his Assistant Presiding Officer took sides and that Councillor Lepani and his brother Minago threatened him with a bush knife.

98. He said by night fall he had signed over 500 ballot papers. He said the leaders and the people distributed them and marked their choices of 1st, 2nd and 3rd preferences themselves while he did the signing. He said there was no polling at Tumbite polling place.

99. He said after night fall the election vehicle came and the balance of 131 ballot papers were brought back to Komo Station.

100. He said the rest of the 131 ballot papers were signed in Thomas Tambo’s house. He said at Thomas Tambos house during the signing of the ballot papers there was a fight between Lepani and Tape Tolape over how many ballot papers each of them should sign as they supported different candidates. He said as a result of this 621 eligible voters of Tumbite did not vote and were denied the right to vote.

101. He said he raised the matter with the Assistant Returning Officer, Tumbi Yari on the next day 1 July 2007 but he said Tumbi Yari did not want to discuss it any further. He said their attempts to object to the counting of the box for Tumbite was overruled by the Returning Officer Vincent Atusa.

102. As I indicated earlier Andrew Sepik gave a detailed account of what happened. He was the Electoral Commissions representative there and saw what happened.

103. The councillor is only able to deny in general that there was no foul play in that polling was conducted normally without any detail.

104. Councillor Lepani has not rebutted or contradicted the affidavit of Andrew Sepik.

105. Andrew Sepik was not cross examined on the polling and the allegations he made. His evidence therefore remain uncontradicted.

107. I have heard and seen the witnesses give evidence and I have assessed their credibility while they gave evidence.
108. I consider Andrew Sepik a more truthful witness than Councillor Lepani. I came to the conclusion from the way they presented their evidence.

109. Moreover I came to the conclusion because Andrew Sepik was never cross examined as to how polling was conducted. I therefore accept his version and because the Respondents did not cross examine him on the matter they have accepted Andrew’s evidence as the facts.

110. I note that 631 votes were affected at the Tumbite polling place. That is the 500 marked at Tumbite plus 131 marked at Komo. I note that the pleadings say 621 but the evidence says 631. I will accept what the evidence established which is 631. Those 631 ballot papers should not have been counted because certain leaders and other men with them illegally marked those ballot papers and not the eligible electors or votes from that polling place.

111. The petitioner called Steven Liwa to give evidence on his behalf. This witness filed an affidavit and was called to be cross examined on his affidavit.

112. This witness has given a detailed account of what happened at the Pami Polling place.

113. He said there were 416 voters enrolled to vote at Pami Polling place and he was allocated 421 ballot papers.

114. He said there was no polling at Pami because about 50 men who were at the polling place said as Pami was the immediate ward of candidate Arawi Maga all the ballot papers from Pami should be marked for him. He said many others who supported other candidates objected to this and angry men from Tobani clan tried to break down the polling compartment.

115. Eventually Councillors Liwa, Peter Pawa and Ngani Bau all of Tobani clan intervened and agreed that as this was Tobani land and Arawi Maga was a Tobani all the votes from Pami must go to Arawi Maga. He said all the supporters of other candidates were chased away.

116. He said about 8 men with bush knives and two men with home made guns were keeping a close watch on the proceedings.

117. He said his team was not allocated any security personnel and he and his team were helpless.

118. He said at about 3.00 pm 3 men ordered him as the presiding officer to sign at the back of the ballot papers and he said he did so out of fear for his life. The signed ballot papers were then distributed to other men who marked their preferences on behalf of the 421 eligible voters from Pami.

119. He said after this he brought the matter up with his Assistant Returning Officer Tumbi Yari but he said Tumbi Yari did not show any concern.

120. He said he objected to the inclusion of the ballot box from Pami for counting but his objection fell on deaf ears and that Vincent Atusa, the Returning Officer and Tumbi Yari told him that the "Memorandum Of Understanding" (MOU) signed at Tari between the Security forces and the Electoral Commission effectively stopped them from raising those issues. He said Vincent Atusa told them that the MOU specifically prevented any objection from being raised at the counting centre.

121. This witness still had the presiding officer’s returns with him and annexed them to his affidavit.

122. He said the forms were filled at the Tari Station after Tumbi Yari told them to fill and complete them.

123. That evidence is confirmed by Tumbi Yari that he did tell them to complete their returns at Tari after the polling was completed.

124. The Respondents called no evidence in rebuttal to Steven Liwa’s evidence.

125. Steven Liwa was cross-examined on the forms attached to his affidavit. It was put to him that the form showed that people did vote at Pami.

126. The witness said people did not vote at Pami and that he was told to just fill the forms at Tari by Tumbi Yari.

127. Steven Liwa’s evidence while he appeared to be a bit confused, is generally that people did not vote and he stuck to that story in cross examination.

128. The Respondents have asked the court not to accept his evidence. However, they have not discredited the witness to suggest he was making up a story. Moreover there is no contrary or contradictory evidence to suggest otherwise.

129. The court is therefore left with the witness’s testimony that voters did not vote at Pami and that voting was rigged there.

130. I cannot just ignore his story. In the absence of another version put to him and having being vigorously cross examined he has stood his ground.

131. In the circumstances I accept his evidence that eligible voters did not vote at Pami and that 421 votes for Pami should not be counted. The pleadings say 416 ballot papers were used at Pami but the evidence says 421 and in this case I will accept what the uncontested evidence establishes.

132. I note that 421 ballot papers were therefore affected that should not have been counted because they were illegally marked by other men and not the eligible electors or voters.

133. The petitioner called Albert Wayali the Assistant Presiding Officer for the Agu Tali polling place. His evidence was that the presiding officer conspired with some men to illegally fill up the ballot papers and that he, the Presiding Officer signed them and put them in the ballot box at the Ajunaka Creek..

134. He said he and his team left Komo between 1.00 pm and 2.00 pm but because there was an on going tribal fight, some of the team members could not go with the team to Agu Tali because they would be going through enemy territory and in fear of their lives did not go with the team. Only the Presiding Officer Joe Wiya and the witness went.

135. He said they went only as far as Ajunaka creek when the Presiding Officer gave him K20.00 to go back and buy Coke and biscuits. He got the money and went back to buy the coke and biscuits. While there the presiding officer and some men started marking the ballot papers and put them in the ballot box. When he came back he saw them doing this. He said they never arrived at the Agu Tali polling place.

136. He said altogether the Presiding Officer signed 449 ballot papers and put them in the ballot box.

137. Joe Wiya the presiding Officer was called to give evidence by the First Respondent. He filed an affidavit and briefly stated in his affidavit that on Saturday 30 June 2007, he went to Komo Station to pick up the ballot box and the ballot papers.

138. He said after picking up the ballot box and ballot papers he and his team of the Assistant Presiding Officer, doorkeeper, poll clerk and finger painter walked to Agu Tali with the ballot box and ballot papers.

139. He said polling commenced at about 2.00 pm and continued to 5.30 pm. He said all 449 ballot papers were used after all the voters had voted according to their preferences.

141. He said his polling team was not held up, threatened or intimidated by candidates or supporters and that the petitioner’s allegations were false.

142. The witness was cross examined on his credibility and it was put to him that at the time of the election he was a teacher and that now he was the First Secretary to the First Respondent. He agreed to that and said it was a promotion for him.

143. He denied his team was held up at the Ajunaka creek but said polling was conducted at Agu Tali polling place.

145. In cross examination he introduced two other members of his polling team and they were two armed policemen.

146. The witness in his affidavit did not reply to Albert Wayali’s affidavit. All he said in his affidavit is a general statement similar to others filed for the Respondents. Instead of replying to the specific allegations made by Albert Wayali, this witness tells a story of his own of what happened.

147. While he can tell his own story, he should reply specifically to Albert Wayali’s allegations in his affidavit. This he failed to do.

148. In his oral evidence when it was put to him that he and other men had marked the ballot papers, he evaded answering the questions and said there were two armed policemen there, inferring that the two armed policemen would have stopped this or that they could not do this sort of thing in the presence of two armed policemen.

149. This witness is now the First Secretary to the First Respondent. He was cross examined on that as to how as a teacher he got the job as a Parliamentary Staffer working for the First Respondent and he said he was promoted.

150. It does not make sense to me to say that he was promoted to be the First Secretary for the First Respondent, when there is no evidence that he had applied for the position and was accepted.

151. Whose evidence do I accept? Albert Wayali or Joe Wiya? As I said earlier Joe Wiya did not reply to Albert Wayali’s affidavit nor was his affidavit shown to him. Albert Wayali’s evidence was uncontested until he was cross-examined. But in cross examination his evidence has not been seriously challenged and he has stuck to his story.
152. Joe Wiya said after the polling he gave the sex tally sheet and other forms to the Assistant Returning Officers. The Assistant Returning Officers Tumbi Yari and Nelson Langibe have not been able to produce the documents and the question is where are they? It is now anyone’s guess as to what might have happened to them.

153. Considering the nature of their evidence and after observing them, I am persuaded to accept Albert Wayali’s evidence over Joe Wiya’s evidence. I treat Joe Wiya’s evidence with caution as he is now a senior staffer of the First Respondent. He was evasive in answering a crucial question straight.

154. It is agreed by Joe Wiya that 449 ballot papers were involved at that polling place. I accordingly find that the 449 ballot papers were illegally marked and should not have been counted.

155. The petitioner called Gibson Tayabe. This witness was the presiding officer for Padua Polling place.

156. His evidence was that there was no polling at Padua polling place. He said when he arrived at Padua polling place only men were there as the women and children had gone home. He said upon arrival there was some discussion as to how the ballot papers should be shared. He said the men threatened him and his team if they did not listen to them. He said the ballot papers were distributed between two clans, the Waipako and the Hambuali. The Waipako took their share of the ballot papers to Mogali Labi’s premises and marked their preferences there and returned them to him to sign and put into the ballot box.

157. He said the Hambuali took their share of the ballot papers to Reuben Hawi’s premises to mark their preferences and returned them to him to sign and put into the ballot box. He said that is how the 373 ballot papers were used and that the 373 eligible voters of Padua did not vote.

158. The witnesses were cross examined by the Respondents. In cross examination he said 373 ballot papers were given but there were 5 extra ballot papers as well. He agreed altogether there were 378 ballot papers.

Q. At paragraph 4 of your affidavit you said there was no voting at Padua and now you told the court that there was voting at Padua?

161. The Respondents submitted that his evidence should not be believed because he has changed his story in cross examination and when it suited him.

162. The question and answers as asked in the order they were asked, are as recited above and the question is, did he misunderstand the question as he says or did he change his story to suit himself?

163. It is rather unfortunate that the witness was not asked his education level and whether he was employed or not.

164. This witness used an interpreter to have his evidence recorded. The quality of interpreting in these proceedings were poor to say the least. This was demonstrated during the course of the proceedings when either counsel or the court assisted the interpreter, to interpret correctly or accurately.
165. Given that and the line of questions asked, I give the benefit to the witness when he said he did not understand the lawyer’s question.

166. The witness cleared up the ambiguity in re-examination. The purpose of re-examination of a witness, is to clear up any ambiguity.

167. The Respondents did not call any evidence in rebuttal to this witness’s evidence.

168. While it is the petitioner’s responsibility to prove his case, the Respondents should be prepared to rebut the petitioner’s evidence with credible evidence of their own.

169. In the circumstances, I accept the witness’s evidence that there was no polling at Padua and that the ballot papers were shared between the Waipakos and the Hambuali’s and illegally marked by some men from the two clans.

170. In the circumstances the 378 ballot papers from Padua should not have been counted.

171. The Petitioner called Max Tayabe in support of his petition. Max Tayabe was a polling official for Puyu Polling place in the Hulia Local Level Government area. His job was to paint the indelible ink on the fingers of the voters.

172. He said 716 ballot papers were issued for the Puyu polling place. He said of that 716 Gibson Kapo marked 616 for the First Respondent and the remaining 100 ballot papers were distributed to supporters and scrutineers of other candidates.

174. He said of the 100 ballot papers distributed for the other candidates, 45 were given to Eric Isbe who supported Eno Tanda, 28 were given to Egabi Herowe who supported Alfred Kaiabe and 6 ballot papers were given to Simon Koyai who supported Edward Aliana.

175. The First Respondent called Gibson Kapo to give evidence on his behalf. He was the presiding officer at the Puyu polling place.

176. The witness filed an affidavit which is very brief and does not reply to the allegations by Max Tayabe. In his affidavit he said on the day of polling he went to Tari Police Station in the morning to pick up the ballot box and ballot papers for Puyu polling Station. He confirmed 716 ballot papers were allocated to Puyu. He said his polling team was dropped off by a vehicle at Puyu at about 11.30 am.
He then said polling continued until about 4.30 pm and all 716 ballot papers were used and after the polling the same vehicle picked them up and took them back to Tari Station.

177. This witness again said the polling was conducted normally without any interference by candidates or supporters.

178. The witness did not say what normal polling entailed or what he meant by normal polling.

179. I note from the evidence that this Presiding Officer is from Puyu village and that his elder brother Paliya is married to the First Respondent’s sister. This evidence came out in cross examination of his credibility.

180. I also note from the witness affidavit that he has not replied to Max Tayabe’s affidavit. Max Tayabe puts this witness under the spot light in his affidavit, yet the witness does not consider it prudent to answer the serious allegations levelled against him.

181. Instead the witness said that polling was conducted normally. What does "normally" mean in the Komo Magarima electorate, when it comes to polling.
182. The witness said in his affidavit that he is a representative of the Electoral Commission and employed by the State, inferring that as such, he was an independent witness.

183. I cannot hold him to be a totally independent witness in the light of the evidence adduced in cross examination. He is from Puyu and has connections with the First Respondent, so the court must be cautious with his evidence.

184. In his oral testimony he was asked these following questions and the answers he gave.

185. The witness is a teacher by profession and I have no doubt he understood the questions put to him.

186. Whose evidence do I prefer? I have said it time and again that the Respondents witnesses have not replied to the allegations levelled against them. In this case Gibson Kapo has not rebutted or denied the specific allegations levelled against him by Max. Paragraphs 5 and 6 of his affidavit are the only relevant evidence. There he said:-

5. Polling continued until 4:30 pm. All ballot papers for Puju were exhausted wherein all voters voted according to their preferences. We then got picked up by the same vehicle that dropped us off at Puju. We used the same vehicle to pick up other polling teams in the neighboring polling areas prior to heading back to Tari Police Station to deliver ballot boxes for safe keeping there.

6. As the representative of the Second Respondent at Puju, I say that polling was conducted normally there without interference by candidates or supporters.

187. Even in cross examination as demonstrated he has not answered the questions put to him.

188. I accept the evidence of Max Tayabe because his evidence has not been discredited and also because his primary affidavit evidence has not been contradicted or rebutted.

189. Moreover, I do not know what "polling was conducted normally" means. It has never been explained to the court what that meant.

190. I therefore find that 716 ballot papers were illegally marked at Puyu polling place as stated by Max Tayabe and that there was no proper polling conducted at Puyu polling place

191. The petitioner called Tindipu Andalu. He is a villager and an eligible elector for the Dauli polling place. He said he never voted and that 931 eligible voters did not vote as well.

192. The witness gave a detailed account of what happened. He said the polling team arrived at about 11.00 am led by the presiding officer Roman Tamuali.

193. He said as soon as the polling teams unloaded the ballot box and the ballot papers, various supporters of candidates grabbed the ballot papers as follows:

194. He said the ballot papers were then distributed between supporters and the supporters marked the first, second and third preferences as they liked.

195. After they marked the preferences they gave them to the presiding officers who signed the ballot papers and then put them into the ballot box. He said by 2.00 pm all was over.

196. The petitioner also called Paul Moses in support of his petition. Paul Moses corroborated the evidence of Tindipu Andali.

197. The First Respondent called Roman Tamuali. Roman was the presiding officer at Dauli polling place.

198. This witness in his affidavit again does not address or reply to the allegations made by Tindipu and Paul Moses against him. His statement simply says that polling continued until 4.00 pm. He does not even state when polling started and what happened before polling started. He does not say if the polling booth was set up or not and how polling was conducted.
199. Once again this witness says "polling was conducted normally" without interference by candidates or supporters.

200. The allegations by Tindipu and Paul Moses are serious and should be properly addressed by the respondent’s witnesses and answered appropriately. The allegations relate to the issue of the validity of the ballot papers for that polling station. It is that important.

201. The evidence of Tindipu and Paul Moses have not been contradicted and even after cross-examination has not been discredited.

202. I accept the evidence of Tindipu and Paul Moses and find that the ballot papers from Dauli were illegally marked by supporters of candidates which were then signed by the Presiding Officer and cast into the ballot box.

203. Accordingly the 931 ballot papers from Dauli polling place should not have been counted.

204. The petitioner called Mokai Alua who is from Paye village is an ordinary villager but an eligible voter. He said there was no polling at Hogombe which is about 4 kilometres from Dauli on a hill top.

205. The First Respondent called Samuel Mulungu. This witness said polling for Hogombe was conducted at Kambotali.

206. The respondents never put to the petitioners witness Mokai Alua that polling for Hogombe was held at Kambotali.

207. Mokai Alua’s credibility was however destroyed after he admitted that he heard from other people how the ballot papers were distributed and after he discussed it with other people.

208. In that regard I give the benefit of doubt for that polling place to the First Respondent’s witness.

209. The petitioner called Papena Togola in support of his petition. He is from Peri Yangali and is an eligible voter enrolled at the Peri Yangali polling place.

210. He said on 30 June 2007 he waited at Peri Yangali polling place for the polling team for his village to arrive. The polling team did not arrive and so at about 12.00 noon he walked towards Hambuali in search of the polling team. He went with Egawi Maliwa.

211. He said they met Paul Poyo, an auxiliary policeman from Magarima and asked him about the polling team for Peri Yangali.

212. Paul Poyo told them that the team was further upstream on the Hanaja creek.

213. He said they followed and found the team with 8 other men marking the ballot papers. He said there were 4 polling officials.

214. He said when they arrived, the men were marking the ballot papers as they liked and they were invited to join them. He named the men present there as Tapi Karepe, Terrence Tandale, Andayo Bubiria and a son of Tandali Punga.

215. He said from his observation it appeared as if the polling officials had conspired or collaborated with the mentioned men to mark and sign the ballot papers on behalf of the Peri Yangali people.

216. He said as a result 500 eligible voters from Peri Yangali did not vote, including him.

217. The witness was cross-examined if he voted and he said he did not cast his vote.
218. This was the petitioner’s home base and it was put to him that the petitioner polled 456 votes from there. This witness said he did not know. All he knew was that people of Peri Yangali did not vote and that some men marked the ballot papers for and on behalf of the people.

219. It appears from this evidence that even in the petitioner’s home village polling was rigged.

220. The witness said the men who marked the ballot papers were not from Peri Yangali.

222. The difficulty I have of this witnesses evidence is that while Peri Yangali was the petitioner’s home base area, he was only able to name the supporters of other candidates and not the petitioner’s supporters. If only supporters of other candidates marked the ballot papers the petitioner would not have fared so well at that polling place. But as it turned out from Form 66A which is an exhibit in court, the petitioner polled 456 votes from Peri Yangali. The results do not give credence to this witness’s evidence, that men not from Peri Yangali came and marked the ballot papers at Peri Yangali. When one follows the general pattern of the evidence, it is not likely that people from another area would go to another village to do this.

224. The Petitioner called David Tambukali in support of his petition. This witness is from Hangapo village Tari and was appointed presiding officer for Moran polling place.

225. He said on 30 June 2007, the Electoral Commission hired helicopter did not pick his team up and so the next day 1 July 2007 in the afternoon they arranged with the Oil Search helicopter to pick up his team from Tari and drop them off at Moran.

226. The Oil Search helicopter did come at 3.25 pm, picked his polling team and dropped them off at one of the helipads nearest to the polling area at about 4.30 pm.

227. After being dropped off they set off by foot to the junction of the Moran 8 and Moran 10X where polling in previous elections took place.

228. He said when they arrived some men ambushed his team and directed them to hand over the ballot papers to them. He said his team resisted and they set up a polling booth.
229. He said 20 men lined up to vote and soon after this was done, the men took over from them and marked the ballot papers. He said these men then told him to sign as the presiding officer which he did. He said he did sign out of fear for his own life as the men were armed with bush knives.

230. This witness however did not say how many total ballot papers were used at this polling place.

232. The common roll for Moran which is Exhibit C12 says there were 272 eligible voters from that polling place.

233. The Respondents did not call any evidence from this polling place. The evidence of David Tambukali is therefore uncontradicted and uncontested even after cross examination.

234. While I accept his evidence generally of what happened, the witness did not say how many ballot papers are affected from that polling place. Form 66A shows 276 ballot papers were issued for that polling place. Those ballot papers should not have been counted as they were illegally marked by some armed men and not by the eligible voters.

235. The petitioner called Igibe Punga. This witness is from Tani village, Tari. He is a teacher by profession and at the material time was teaching at Dodomona Community School at the Komo Magarima side of Mt Bosavi Local Level Government area.

236. He said 6 teams were assigned to conduct polling in the 6 Local Level Government Wards. He said the 6 Presiding officers assigned were:

237. He said some of the presiding officers were flown from Tari to Muluma on different days before the 30 June 2007. Some were flown on 30 June 2007 in the afternoon together with the ballot boxes and ballot papers.

238. He said the helicopter was to come back on 1 July to drop them in their various respective polling places many kilometres apart in the rugged mountainous areas of Mt Bosavi.

239. On 1 July the helicopter did not come to pick them up from Muluma. On 2 July again the helicopter did not turn up.

240. With time running out and fearing that the Mt Bosavi people would miss out on voting in the elections the 6 presiding officers and their assistants made a decision to mark all the ballot papers on behalf of the 1960 eligible voters enrolled.

241. He said all of them then walked form Muluma to Walagu and arrived at 3.30 pm. At Walagu they reaffirmed their decision to mark the ballot papers on behalf of the people of Mt Bosavi.

242. He said at the Walagu bushes each team went into the bushes and marked their respective ballot papers and they put them in their respective ballot boxes.

243. He said the reason they did that was, in the 1997 elections the people of Mt Bosavi did not vote and it was going to happen again and so they as presiding officers decided that they would mark the ballot papers for and on behalf of the 1960 eligible voters of Mt Bosavi.

244. What the presiding officers did was unlawful. If the ballot papers for all the polling areas for Mt Bosavi were counted then it was wrongly counted because the votes were illegally marked.

245. The Respondents did not call any evidence to refute the evidence of Igibe Punga.

246. The Respondents have submitted that Igibe’s evidence only affects his own polling team’s ballot papers and not the other 5 polling teams.

247. Igibe said they allowed the 1960 Mt Bosavi votes to be counted because the "Hela MOU" prevented any objection from being raised at the counting centre. He said the Returning Officers Vincent Atusa told them that because of the MOU no objection would be entertained at the Counting Centre.

248. Vincent Atusa and the Electoral Commission have not refuted that evidence from Igibe Punga.

249. Igibe said there was strong opposition from scrutineers during the counting in Mendi but he and his fellow presiding officers and Vincent Atusa and Max Muli allowed the 6 ballot boxes from Mt Bosavi LLG to be counted.

250. Andrew Kongri in his evidence at Waigani gave some independent evidence on this to say that there were objections from scrutineers not to count ballot boxes for the Komo Magarima seat. He was present some of the time at the Mendi Counting Centre.

251. The issue with respect to Igibe’s evidence as it relates to other polling place is whether Igibe’s evidence can be used to include all the other 5 polling places from Mt Bosavi area apart from his own place.

252. Before that issue is determined I think the evidence of Henry Aki is also relevant. Henry Aki’s evidence is contested to an extent by Tumbi Yari’s evidence when he said no one complained at the Counting Centre but Aki’s evidence in some respect is supported by the independent evidence of Andrew Kongri that there were objection from scrutineers.

253. In paragraph 11 of his affidavit Henry Aki says that advise by John Nonggorr was that any dispute or complaints against the conduct of election at polling places be registered first before disputing ballot boxes during the counting and that disputed boxes would be dealt with one by one during the counting.

254. The advice by John Nonggorr is consistent with s.90 of the Election Laws (National Elections) Regulations and s.153A of the Organic Law.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot box containing marked ballot papers where he is of the opinion that:-

(b) the ballot box was tampered with and the integrity of the ballot papers in it were compromised.

(2) Where objection is taken to a ballot box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.

257. Paragraph 14 of Henry Aki’s affidavit suggests there was an actual hearing of the complaints against the acceptance of ballot boxes from the Komo Magarima Electorate before the Returning Officer Vincent Atusa. Oral evidence was placed before Vincent Atusa but he ruled against the objections.

258. Vincent Atusa’s decision could only be challenged by way of an election petition and this is the election petition.

259. I accept Henry Aki’s evidence that there was objection raised not to allow certain boxes including boxes from Mt Bosavi to be counted. I do not believe Tumbi Yari on this aspect as he has lied on oath on a number of matters.

260. It is rather disappointing that the Electoral Commission has been tight lipped on this as Vincent Atusa and Max Muli were not called to give evidence relating to this petition.

261. Vincent Atusa could have been called on summons to give evidence relating to the dispute over the ballot boxes from Mt Bosavi and he might have been asked to explain why the Mt Bosavi ballot boxes were allowed when there was a strong objection not to allow them in for counting.

262. Henry Aki said in his oral evidence that one of the reasons for the Memorandum of Understanding was to avoid any objection or dispute at the counting centre in Mendi. The Electoral Commission has not disputed this.

263. Was Vincent Atusa’s decision to include the Mt Bosavi boxes for counting based on the evidence before him or was it based on the MOU. Vincent Atusa was not called and other witnesses were not specifically asked.

"We (him and the other 5 presiding officers) allowed the 1960 Mt Bosavi votes to be counted, because the "Hela MOU" prevented any objection from being raised at the Counting Centre. Mr Atusa told us that because of the existence of these (sic) MOU signed by the Electoral Commission and the army and the police security forces, we could not entertain any objection at the Counting Centre at Mendi...."

265. Igibe at the time was part of the electoral Team that was making very important and powerful decisions at the Counting Centre in Mendi. It is from being part of that team that he had that knowledge of why the ballot boxes from Mt Bosavi would have been included for scrutiny.

266. Igibe has turned the table over on Vincent Atusa and has "let the cat out of the bag" so to speak, of the inner power play that was going on at the Counting Centre in Mendi.

267. I appreciate that Vincent Atusa may not have had this same evidence of Igibe before him when he was confronted with the objection to the counting of the Mt Bosavi ballot boxes but I wonder what his decision would have been if he had this same Igibe story on one hand and the MOU on the other hand.

268. As the evidence is now Vincent Atusa made the decision to count the Mt Bosavi ballot boxes because of the Hela MOU.

270. Take out the MOU what would have been the decision of Vincent Atusa with the strong opposition from the scrutineers not to count the Mt Bosavi boxes.

271. This is probably just an academic exercise because it does not matter any more how Vincent Atusa would have decided and it is now a matter for speculation.

272. Coming back to the issue of whether Igibe’s evidence should be relied on to exclude other ballot boxes from the scrutineers.

273. I refer to the pleadings in paragraphs 14.18 to 14.18.4 of the Petition, more particularly paragraph 14.18.1. This paragraph alleges what each of the named presiding officers in each of the named polling places allegedly marked the ballot papers themselves thereby denying the eligible voters their right to vote.

274. As the pleadings name each of the presiding officers and the fact that it is a serious allegation it is only fair that each of the presiding officers speak for themselves. Igibe has spoken about his and he admitted his wrong doing. The other 5 have not.

275. In that regard I rule that the evidence of Igibe goes towards the counting of the ballot box from his allocated polling place Bobole only.

276. This ruling means only 215 ballot papers which were illegally marked by Igibe are affected and should not have been counted.

279. The affidavit of Robert Tia in these proceedings is treated with utmost caution because a lot of the matters he deposed to are hearsay and speculative and also for the reason that he is not an independent witness in that he was a loosing candidate and as such has an interest in the outcome of this petition.

280. However his affidavit is relevant for the purpose of assisting the court as to whether there were objections raised at the Counting Centre in Mendi relating to counting of ballot boxes for the Komo Magarima Open Seat.

281. His affidavit is also relevant in that the MOU entered into by the Electoral Commission as one party, the candidates as the other party and witnessed by the Chiefs of Security Forces is attached to this affidavit.

282. Paragraph 20 of Mr Robert Tia’s affidavit refers to a letter or a petition to the Electoral Commissioner dated 3 July 2007. This letter alleged that the elections for Komo Magarima had failed and petitioned for a supplementary election.

283. The Electoral Commissioner has not denied receiving this letter or petition. This letter corroborates the evidence of Henry Aki and Igibe Punga who said there were strong objections to the counting of the boxes for the Komo Magarima Seat.

284. Moreover, paragraphs 5 and 6 of the MOU (especially paragraph 6) says that the Electoral Commission agrees that "all ballot boxes from Hela transported into Mendi at the Counting Room SHALL be accepted for counting purposes and that no objection etc raised will be entertained during the counting".

285. It is very obvious to the court why no objections were entertained at the counting centre. This document gives credibility to the evidence of Henry Aki and Igibe Punga but destroys the credibility of Tumbi Yari and Nelson Langibe who said the boxes were counted because no one complained at the Counting Centre or that no one raised any complaints or objections about the validity or integrity of the ballot boxes for Komo Magarima seat at the Counting Centre. The MOU effectively denied the disgruntled scrutineers the right to object to the counting of the disputed ballot boxes. I find that complaints and objections were raised at the counting centre regarding the Komo Magarima Seat.

286. The MOU also unlawfully contravened sections 151, 152 and 153 of the Organic Law and Section 90 of the Electoral Law (National Elections) Regulations 2007.

288. The nature of the errors and omissions and illegal practices allegedly committed by the polling officials were:-

289. By signing the ballot papers and allowing the supporters of candidates to fill in the preferences on the ballot papers other than allowing individual eligible voters to cast their votes amounted to illegal practices under s.286(1)(h)(i)(n)

290. The nature of the errors and omissions and illegal practices allegedly committed by certain leaders, supporters of candidates and criminals were:-

291. By threats of intimidation and demanding the polling officials to give them the ballot papers and upon being given the ballot papers, they marked the preferences amounted to an illegal practice under s.286(1)(h)(n) and (q) of the Organic Law.

292. The petitioner alleged that well over 12,034 voters were affected by such illegal practices committed by polling officials, certain leaders, supporters of candidates and criminals. The evidence establishes 4,882 were affected.

293. Section 215(3) of the Organic Law on National and Local Level Governments is the relevant provision the petitioner relies on. It reads:

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority;

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence, unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

294. I have heard the evidence and have made findings of fact where those illegal practices have been proved to my entire satisfaction. The polling places are:-

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind

296. The right to vote is an individual right to every citizen who is of full capacity and has reached voting age. This right is not a group right, a clan right, or a tribe right such that one or two persons exercise that right for and on behalf of a particular group or clan or tribe. This is a sacred right given to one individual only to exercise that right himself or herself.

297. In this case certain leaders, supporters and polling officials marked the preferences for and on behalf of eligible electors or votes in certain polling places. I have made such findings in those polling places. Where this has occurred, it has amounted to breaches of s.50 of the Constitution in that those eligible electors or voters have been denied their individual rights to vote for a candidate of their own free choice.

298. The effect of the breach is that 4,882 eligible electors or voters have been denied their rights under s.50 of the Constitution to vote for a candidate of their choice.

299. The votes of those 4,882 eligible electors or voters who have been denied the right to vote for a candidate of their choice is important because their votes will affect the outcome of the final result. Their votes outnumber the winning difference between the declared winner and the runner up.

WHETHER OR NOT NUMBER OF VOTES AFFECTED ARE LIKELY TO AFFECT THE RESULT OF THE ELECTION

300. As demonstrated in paragraph 299 above the total votes affected are 4,882 from the various polling places.
301. The difference between the winner and the runner up was 815 votes. The winner polled 15,416 votes and the runner up polled 14,601 votes.

302. The total vote casted illegally are 4,882. This number is more than the difference between the winner and the runner up.

303. The court is therefore satisfied to its entire satisfaction that the results of the election was likely to be affected because 4882 votes illegally casted is more than the difference between the winner and the runner up.

304. The court therefore declares that Francis Potape was not duly elected and further declares the election for the Komo Magarima Open Seat absolutely void.

2. The Election for the Komo Magarima Open Seat was absolutely void; and order that

4. The Second Respondent is to also meet the First Respondent’s costs as well.

5. Security deposit of K5,000.00 is to be refunded to the Petitioner.
___________________________________________

Petitioner in person
Parua Lawyers: Lawyer for the First Respondent
Nonggorr & Associates: Lawyer for the Second Respondent

National Court of Papua New Guinea

Kaiabe v Mulungu [2008] PGNC 47; N3329 (5 May 2008)