Kuman v Dekena [2013] PGNC 1; N4941 (15 January 2013)

N4941

PAPUA NEW GUINEA'
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 74 OF 2012

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF A DISPUTED RETURN FOR THE
GUMINE OPEN ELECTORATE

BETWEEN:

NICK KOPIA KUMAN
Petitioner

AND:

DAWA LUCAS DEKENA
First Respondent

AND:

ANDREW TRAWEN as ELECTORAL COMMISSIONER
Second Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Goroka: Kangwia AJ
2012: 10 - 15 December
2013:15 January

ELECTION PETITION - validity of return of member as elected - ground of illegal practice at polling - illegal marking of ballot papers Constituted illegal practice under s 215 (3)(b) of the Organic Law – Electoral officials failed to comply with requirements of Organic Law - Ballot papers affected by illegal practice greater than difference of votes - Ballot papers affected by illegal practice greater than winning margin - Result of election affected - Recount adverse to winning candidate and unfair in the circumstances - Declared first respondent not to be duly elected.

Cases cited

Apelis v Julius Chan (1998) SC 573;
Sir Arnold Amet v Peter Yama (2012) SC 1046;
Iambakey v John Nilkare [1983] PNGLR 28;
Neville Bourne v Manasseh Voeto [1977] PNGLR 298;
Mathias Karani v Yawa Silupa (2003) N2385;
Saweni v Pruaitch (2003) N2387;
PNGBC v Jeff Tole (2002) SC694;
MVIT v James Pupune [1993] PNGLR 370;
Delba Biri v Bill Ninkama [1982] PNGLR 342;
Ludger Luker Mond v Kerenga Ben Okoro [1992] PNGLR 50;
Raymond Agonia v Albert Karo [1992] PNGLR 463;
Alfred Manase v Don Polye & Ors (2008) N3261;
Andrew Wabiria v Payale Elo [1977] PNGLR 328;
Thomas Kavali v James Kuru Kupul (Unreported Judgement of 26 November 1982); Dick Mune v Anderson Agiru & ors (1998) SC590;
Francis Koimanrea v Arnold Sumunda & Ors (2003) N242;
Baki Reipa v Yuntuvi Bao [1999] PNGLR 232;
Korak Yasona v Castan Maibawa (1998) SC552.

Counsel

T. Sirae, for the Petitioner
G. Salika, for the 1st Respondent
K. Kepo, for the 2nd & 3rd Respondents

15 January, 2013

1. KANGWIA AJ: This is an election petition challenging the validity of the 2012 national election for the Gumine Open electorate in the Simbu Province.

Background

2. By way of background the undisputed facts are that Nick Kopia Kuman (petitioner hereon) and Dawa Lucas Dekena (1st respondent hereon) were among 40 candidates who contested the Gumine open seat in the 2012 National Elections. The election was conducted by the Electoral Commission of Papua New Guinea (3rd respondent hereon) under the leadership of Andrew Trawen as the Electoral Commissioner (2nd respondent hereon).

3. The first respondent was declared winner with 13,288 votes to be returned as sitting member. The petitioner received 12, 752 votes to become the runner up with a difference of 536 votes. The petitioner disputed the validity of the election on the grounds of illegal practice, undue influence and bribery.

4. The respondents filed separate objections to competency of the petitioner's challenge alleging that the grounds raised in the petition failed to comply with the mandatory requirements of s 208 (a) of the Organic Law on National and Local Level Government Elections (Organic Law hereon) to plead facts constituting the grounds.

5. After hearing submissions on the objections to competency, the grounds of bribery and undue influence were found to be incompetent for trial and were struck out in their entirety. However the ground of illegal practice was found to have been adequately pleaded to go for trial hence this decision.

Grounds of Petition and Relief Sought

6. The petition is now grounded on illegal practice. The allegations of illegal practice found under Clause 7, 8 and 9 of the petition have been disputed and can be summarised as follows.

7. It was alleged that there was illegal marking of ballot papers by Messer's Bepi Kapia and Kaupa Kokia who were supporters, agents and or servants of the first respondent during polling at Digibe Ward 4 on Sunday 8 July 2012 before handing the ballot papers over to voters to mark their second and third preference votes.

8. At the counting centre despite disputes raised about the illegal markings during polling, the ballot papers for Digibe Ward 4 in box 006 were counted at the direction of one Lt. Hiob out of which the first respondent received 721 first preference votes with two informal making a total of 723 ballot papers.

9. Under clause 9 of the petition it was alleged that the 721 votes were more than the difference of votes between the First Respondent and the Petitioner and therefore will affect the result of the election if these ballot papers were not counted.

10. Based on those allegations the Petitioner sought a recount of the ballot papers excluding the 723 ballot papers from Digibe Ward 4 and the Court to make a declaration there from or in the alternative a declaration that the election of the first respondent is null and void and a by-election be held.

Evidence

11. To prove the allegations the Petitioner called 11 witnesses who gave sworn evidence. Three of the witnesses appeared on subpoenas while the balance of the witnesses' evidence was reduced to writing in affidavits. Seven witnesses gave evidence in relation to the alleged illegal polling at Digibe while the evidence of four witnesses relate to the allegations at the counting centre. All witnesses were cross examined by the respondents. Documentary evidence was also tendered through the witnesses.

12. The First Respondent called three witnesses who gave evidence and were cross examined in the same manner. Their affidavits were also tendered into evidence.

13. The 2nd and 3rd Respondents tendered into evidence by consent various electoral documents and called four electoral officials as witnesses. The witnesses were not cross examined for lack of notice to cross examine and their affidavits were tendered into evidence. The evidence on affidavit stands unchallenged and it is for the Court to assess its value and weight and make findings of fact.

14. The evidence is as follows:

1. Dawa Tuna from Galma village - Dom area of Digine LLG.

The affidavit of this witness was tendered into evidence and marked exhibit 'A'. His evidence was that two men named Bepi Kapia and Kaupa Kokia went and sat next to the Presiding Officer. After the Presiding Officer signed the ballot papers Messer's Kapia and Kokia marked the first preference vote and the voters marked the second and third preference votes. One voter who was angered by the actions of Messer's Kapia and Kokia voiced his concern but was received with angry reaction from First Respondent's supporters.

It continued in this manner until rain fell when the polling was relocated to a house where voting continued in the same manner. He stated that there was no proper polling as voting was hijacked by the Presiding Officer and supporters of the First Respondent.

2. Apa Kura of Brune village Dom area- Digine LLG

The affidavit of this witness was tendered into evidence marked Exhibit 'B'. His evidence was the same as that of the first witness for the Petitioner. In cross examination the oral evidence of this witness displayed numerous inconsistencies to what he deposed in his affidavit. His evidence consisted of recent inventions and was not credible.

3. Arnold Bunat

This witness appeared on subpoena. He is a CIS member based at Boram who went to the polling as security personnel. His evidence included an audio clip of a speech made by the Ward Councillor and 05 photos he took during the polling. Objections raised by the first respondent were overruled on the basis that the witness came on subpoena and was not required to give notice of what he would present to Court. The objections were later retracted and the audio clip including the 05 photos were admitted into evidence and marked exhibits 'C' to 'H'.

He stated that the audio clip and the photos were taken as personal souvenirs but presented them in his evidence to assist the Court.

The audio clip contained a public speech by Councillor Kum Gapi who later testified for the first respondent. His other evidence was that there was no fighting or threats issued during polling apart from a commotion. A youth told him not to be afraid while showing him a firearm which he described as a SLR.

On the conduct of polling he stated that without any polling official calling names, the presiding officer signed the ballot papers and passed them on to two people on his side that marked the first preference vote. When he told the Presiding Officer that this was not proper he replied, 'let them, they know what they do'. He couldn't do anything as the presiding officer had the ultimate power.

The voters took the marked papers away as there was no compartment to mark their votes. The ballot box could not be secured because people with bush knives stood around it. Two others checked the ballot papers before depositing them in the box. This continued until rain fell at 2.30pm.

Ballot papers still remained so they relocated to a house. People had already moved into the house and there was no room so he with his counterpart remained outside. He had no idea how the balance of the ballot papers were completed. When rain stopped the box was brought outside and they were told that polling had been completed. They sealed it and waited for the chopper.

In Kundiawa his counterpart reported to their OIC for security.

In cross examination he agreed that it was normal for large number of people to gather; that there was no fight but commotion only at the start but when it stopped everything was orderly again. His photos did not show the two men who marked the ballot papers or the gun referred to.

This witness was in my view an independent witness and his evidence withstood the test of cross examination. His evidence was not discredited nor was it challenged. I find him to be a truthful witness who presented credible evidence.

4. Geoffery Torovi

This witness also appeared on subpoena. He is the other CIS officer engaged by the 3rd Respondent as security personnel for the polling. His evidence was materially the same as that of witness Arnold Bunat. Two material differences surfaced in his evidence. First is that he did not see any firearm at the polling apart from being told of a firearm by his counterpart. Second was his identification of two persons in the photo exhibit 'E' as the ones who marked the first preferential votes on the ballot papers. The second difference was inconsistent with the evidence of Arnold Bunat and Koma Alois who stated that the two persons who marked the ballot papers were not in the photos.

His failure to positively identify the two men in the photo can be attributed to recent acquaintance or honest mistake by a person not from the area given his address on the subpoena as Biru CIS in Popondetta. His other evidence not in dispute was his report on the polling to his group commander. Despite the cited inconsistency his evidence in total corroborates the illegal marking of ballot papers by two men.

5. Michael Welsh

This witness is a Chief Inspector of Police based at Kundiawa. His affidavit was tendered into evidence and marked exhibit 'I'. His evidence is that he sent CIS officers to Gumine during the polls.

CIS officers Torovi and Arnold orally reported to him of what happened at Digibe LLG. He reported to the election steering committee.

He erred by stating that polling was conducted on 9 July 2012 as it is an undisputed fact that polling at Digibe Ward 4 was on 8 July 2012.

6. Alois Koma of Anma village - Komaku clan Digine LLG

The affidavit of this witness was marked exhibit 'J'.

His evidence is identical to the evidence of Dawa Tuna. He went to vote as a Komaku voter but left disappointed at not voting for his cousin brother. In cross examination he stated that as he was from Komaku he thought his name was on the roll. He could only identify the people in the photos as the First Respondent's people which contradict the evidence of Councillor Kum Gapi that they were his people. He deposed to voters going into a compartment to vote but in cross examination he denied there was any compartment.

His material evidence about marking of ballot papers by Bepi Kapia and Kaupa Kokia was not tested in cross examination hence it stands unchallenged. The identical nature of his affidavit to that of witness Dawa Tuna could be attributed to the drafting by others. Despite the inconsistencies I am unable to find that he was lying about his presence at the polling and his observations there from as suggested by the first respondent.

7. Teine Maine Roni Iysa of Galma village - Digine LLG

The affidavit of this witness was marked exhibit 'K'.

His additional oral evidence was that in his Ward 7 which had 1,200 voters he did not score 100% as that was not possible with relatives of other candidates voting in there. He expected some votes at Digibe ward 4 from relatives but got zero and knew there was something wrong. In 2002 election the First Respondent received 4 votes. In 2007 he said he was Campaign Manager for the First Respondent who received 6 votes. In the 2012 election the First Respondent received 100% of the first preference votes. In cross examination on the 2002 and 2007 figures he stated that it was common knowledge including his personal knowledge.

The evidence of previous election figures was not corroborated. Most of his evidence was hearsay. He restated information received from his scrutineers and other candidates. This was understandable given that candidates were not permitted near polling areas and in the counting centre. Despite his evidence being mostly hearsay and opinions there is nothing to suggest that his evidence contained untruths.

8. Joe Ami Andrew of Brumu village – Gumine District

The affidavit of this witness was marked exhibit 'L'. The affidavit was annexed with two letters of objection dated 12/7/12 and 14/7/12 with affidavits of 3 scrutineers and a list of polling officials for Gumine electorate. The letters were addressed to the Returning Officer for Gumine open electorate to stop ballot box 006 from being counted.

Clause 19 to 21 of his affidavit was struck out.

His additional oral evidence was that it was 30 minutes from his ward 6 to Digibe ward 4. He expected votes from Digibe ward 4 through relatives but got none. Next day he met Siune Lui who told him that he had torn his ballot paper after he discovered it was already marked.

On cross examination he stated that after he learnt from his scrutineers of how the polling went at Digibe ward 4 he presented his dispute to the Returning Officer on 17 July 2012. He did not see what transpired in the counting centre but was told by his scrutineer that the box was counted. He received no response to his dispute.

The letters of dispute alleged by this witness were confirmed by the Assistant Returning Officer and the Returning Officer as having been given on 17 July 2012. Although most of his statements constituted hearsay I am unable to find that he told untruths or concocted evidence.

9. Jeffery Korone of Munuma village – Digine LLG.

The affidavit of this witness was marked exhibit 'M.'

He further added that the Presiding Officer James Wai Kona went to him and apologised saying he was under pressure to break the disputed box for counting.

His evidence was that counting was suspended to seek advice over disputes raised about box 006 on 20/7/12. Then one Robert Bartho a close political associate arrived at the scrutineer section and demanded the presiding officer to count ballot box 006. Ten minutes later the returning officer returned with Lt. Hiob who took over and directed counting as there was no court order stoping the box from being counted; that if anyone was aggrieved it should be taken to court after the declaration. The Presiding Officer reluctantly admitted the box for counting but a situation report on the incident was not presented.

When the ballots were counted he noted the following:

a) 733 ballot papers were registered for Digibe ward 4 but 723 were returned for counting. The 733 was arrived at after the voter population figure of 727 plus the 5 extra ballot papers that are placed for each polling area which appeared in the counting centre.

b) The Presiding Officer failed to account for the 10 missing ballot papers.

c) During first preference vote distribution the first respondent received 721 formal votes and 2 were informal.

d) From the numerical style of handwriting he concluded that one or two people consistently marked all the ballot papers as the biros used for marking were blue and pink.

In cross examination he stated that his father was also a candidate. At the counting centre he raised objection to counting of box 006 because of illegal practices involved at the polling. The Returning Officer did not say anything after returning from the suspension and broke the disputed ballot box for counting. His view of the Presiding Officer at the opening of the ballot box was that he seemed scared of Lt. Hiob and the scrutineers. He did not hear anyone say that the Electoral Commission advised for the box to be counted.

The evidence of this witness consisted of what he did and saw at the counting centre. His evidence was not discredited in cross examination. His evidence is credible and I find no reason to doubt that he told the truth. The only inconsistent evidence was his figure of 727 as the total number of electors when the electoral roll for Digibe Exhibit 'S' showed 724. This was not a material inconsistency as the actual figures relied on to invalidate the election were not in dispute.

10. Mack Mol of Boromil village - Kumai Bomai LLG.

The affidavit of this witness was marked exhibit 'N'.

He was the Petitioner's scrutineer at the counting centre. His evidence is substantially the same as that of witness Jeffery Korone. His other evidence was that by 4.30pm on 20/7/12 count 44 from a total of 46 boxes were counted with the primary votes. A heated argument erupted between Robert Bartho and Jeffery Korone over the disputed box. The Returning Officer confirmed that the heated argument erupted. His evidence withstood the test of cross examination with supporting evidence from witness for the 2nd and 3rd respondents and is therefore credible.

11. Andrew Kuri of Gomgale village – Kumai Bomai LLG

The affidavit of this witness was marked exhibit 'O'.

He was a counting official at the counting centre. His evidence is similar to witness Jeffery Korone and Mek Mol above. The only difference was that he only counted and did not keep any records. Upon cross examination he stated that he did not know what happened at Digibe polling but deposed to what he saw and did at the counting centre.

He also stated that Robert Bartho swore at the presiding officer to open box 006 for counting, however there is no other evidence in support of the alleged swearing. Apart from the evidence of swearing by Robert Bartho the evidence of this witness stands unchallenged and credible.

Evidence for the First Respondent

15. The first respondent called three witnesses and they are as follows:

1. Kum Gapi of Komaku village Digibe Ward 4 – Gumine

The affidavit of this witness was marked exhibit 'P'.

This witness in my view was not a witness of truth. His denials in his affidavit under clause 7 about making a speech in favour of the First Respondent were contradicted by the audio recording tendered through witness Arnold Bunat.

He tried to play down his statements in the audio recording by stating that he spoke as a leader and that it was a welcome speech. What was played in the audio recording of his speech was clearly a speech on how votes had to be cast in favour of the First Respondent and Fr. Garia while the second and third preferences could be given to others. It was in my view not a welcome speech.

In cross examination on his evidence that Alois Koma was not from his village he stated that if Alois Koma was at the polling he would have gone to shake hands with him which raises the question of why Alois Koma would go and shake hands with him if he was not from his village or a relative.

There are material contradictions in his evidence such that the totality of his evidence cannot be taken as containing complete truths. His demeanour held him out to be inventing answers to correct contradictions in his affidavit that were apparent. The veracity of his evidence is questionable hence not credible.

2. Siune Lui of Komaku village Digibe Ward 4-Gumine District

The affidavit of this witness was marked exhibit 'Q'.

His evidence consists of denials to statements by the Petitioner's witnesses Dawa Tuna, Apa Kura and Koma Alois that he got angry at being given marked ballot papers and of tearing them. In cross examination he denied any relationship to Petitioner's witness Joe Ami Andrew but said he was from a nearby village. He further stated that Joe Ami Andrew wanted him to sign a document but he refused to sign it. He also stated that the ballot papers were accountable forms and he had no reason to tear them.

The evidence of this witness leaves a lot of room for doubt as to whether he was telling the truth. During cross examination he stated that the voting went smoothly without being asked. His pre-emptive answers to deny what was alleged of him hold him out as inventing answers or relaying coached statements to maintain his denials.

Then there is the question of why three witnesses for the Petitioner could identify him out of more than 700 voters and alleged that he tore ballot papers to detest marked ballot papers. I am unable to accept that it was part of a concoction on the part of the Petitioner's witnesses to attribute a specific act to him only. I am more inclined to the view given the totality of the evidence, that this witness did demonstrate his resentment over marked ballot papers but denied his alleged acts in evidence. The totality of his evidence is open to doubt as containing material truths.

3. Bernard Bike of Komaku village - Digibe Ward 4 – Gumine District

The affidavit of this witness was marked exhibit 'R'.

His evidence was a denial of statements in the affidavit of Koma Alois. He stated that he was present at the polling from beginning to the end and that the polling was conducted freely and safely; that no voter was forced to vote for the first respondent; that no one else apart from the presiding officer signed on the ballot papers; that the polling was not interrupted by armed men or fighting.

He also stated that there was no person by the name of Koma Alois from Komaku clan. When shown the exhibit photos to identify persons in them he stated that the people captured in the photos were his Komaku clan members. The evidence of this witness was not discredited in cross examination.

Evidence for the 2nd and 3rd Respondents

16. The Second and Third Respondents tendered into evidence various documents and called 4 witnesses.

17. Documents tendered into evidence by consent were:

(i) Electoral roll for Ward 4 Digibe marked exhibit 'S'.

(ii)Tally sheet for Gumine Open of progressive totals marked 'T'.

(iii) Process of elimination document for Gumine open marked 'U'.

18. Witnesses called are as follows:

1. James Wai Kona of Dirima village - Gumine District

The affidavit of this witness was marked exhibit 'V'. He was the Presiding Officer for the polling at Digibe Ward 4.

The evidence of this witness was not tested through cross examination because no notice to cross examine was filed.

His evidence consisted of denials to statements made by witness Joe Ami Andrew and his scrutineers.

Two material pieces of his evidence deposed in his affidavit was contradicted by persons who would blend support to his evidence. In clause 6.2 of his affidavit he denied that individuals were allowed to come close to the polling area which the security personnel were to confirm. However two security personnel that went with him greatly contradicted him, even incriminating him of not doing anything about the two persons who sat next to him to mark the ballot papers after he signed them.

In clause 7 of his affidavit he stated that Joe Ami Andrew never disputed box 006 which is contrary to the evidence of Peter Are the Assistant Returning Officer and Surgent Gande Mondo the Returning Officer that a letter of dispute from Joe Ami Andrew was received. The letters and annexure were prima facie evidence that the dispute was for box 006 for Digibe ward 4.

His statement in clause 6.1 stated that he told voters that campaign time was over and it was time for voting was not verified by any witness at all.

His statement in clause 6.4 which stated that, Ward 4 polling place was the first respondent's strong hold, holds him out to be a person with pre conceived bias at a polling in which he as the key election official was supposed to exercise neutrality and fairness.

He was the key personnel in the conduct of polling at Digibe ward 4. His demeanour was that of a person not willing to tell exactly what went on despite incriminating evidence against him. His untested evidence with material contradictions leaves a lot of room for doubt as to the veracity of what he stated. He failed to assist the court with truths; instead he has denied the evidence of eyewitnesses without any plausible explanation. His evidence created room for doubts on the integrity of polling conducted at Digibe ward 4 as he presented no credible evidence.

2. John Bapty of Kolangol village – Kundiawa

The affidavit of this witness was marked exhibit 'W'. He was the Assistant Presiding Officer for Digibe ward 4 polling. His evidence was a disguised denial of what was alleged by the Petitioner's witnesses. He deposed to voters exercising their democratic right and having pre-determined who to vote, proceeded without disturbance to vote for the First Respondent. He helped the old people at the polling booth compartment.

There is overwhelming evidence that there was no polling compartment. He also stated in his affidavit that no leader spoke about ballot papers belonging to one particular candidate. This evidence has been discredited by the audio replay.

His evidence was not tested through cross examination because no notice to cross examine was filed. His evidence is contradicted substantially by the evidence of the two security personnel in the polling team and other witnesses for the Petitioner. His entire evidence is rendered not credible by the overwhelming and unchallenged evidence that went contrary to what he deposed and testified.

3. Peter Are of Malaria Compound – Kundiawa

The affidavit of this witness was marked exhibit 'x'. He was the Assistant Returning Officer for Digibe LLG. His evidence was similar to that of the Returning Officer. He stated in his evidence that he received an allegation letter from candidate Joe Andrew. He consulted the Presiding Officer and Assistant Presiding Officer over the allegations. He added that the Presiding Officer in his journal reported that the election was conducted peacefully and without any intimidation. The Assistant Presiding Officer orally confirmed the report by the Presiding Officer but the Digibe and Kolma boxes were shelved. The two security personnel did not report to him about any threats or irregularities.

The dispute was referred to Andrew Kongri the lawyer for the Third Respondent. The lawyer advised them to count the two disputed ballot boxes as they were not tampered with.

He also stated that the Presiding Officer informed the scrutineers of the advice from the lawyers in the counting centre and counting proceeded; that there was no election flaws reported for Digibe. He further stated that errors could have been made in the distribution of unequal ballot papers for the regional and open seats as only three persons counted them.

His evidence was not cross examined for lack of notice to cross examine being filed. The evidence is basically reliant on the report by the Presiding Officer hence it is mostly hearsay. He read from a journal which was not authored by him. His evidence of the Presiding Officer explaining the advice from the lawyer for the third respondent in the counting centre is contradicted by the evidence of the Returning Officer who gave evidence that it was he who informed the scrutineers and counting officials of the lawyer's advice.

There is no evidence of the advice of the lawyer. It may be assumed that if there was any advice it was given orally. His evidence is also contradicted by the evidence of the Returning Officer who testified that it was he who received a letter of dispute by candidate Joe Ami Andrew at the entrance to the counting centre. The contradicted evidence is not grossly adverse to the Respondents defence. His evidence is credible.

4. Surgent Gande Mondo of Pari village – Kundiawa.

The affidavit of this witness was marked exhibit 'Y'. He was the Returning Officer for Gumine Electorate. His evidence additional to his affidavit was that s 153 of the Organic Law gave powers to the Returning Officer to accept or reject all petitions. He stated that 92% of polling in Gumine Open was free, fair and safe.

He did not receive any reports from his Presiding Officer of the polling and security personnel of any threats or intimidation until he received a petition on 17 July 2012 from candidate Joe Ami Andrew which was signed by three candidates and a scrutineer. He then called the Presiding Officer who told him that polling went smoothly. The Presiding Officer gave him a hand written report from the journal.

He set aside the two disputed boxes and the petition was hand delivered to the lawyer for the Third Respondent who advised that the two disputed boxes were to be counted. He informed the scrutineers and counting officials of the advice from the lawyer and had the boxes counted where the box for Digibe was recorded as count 45. There was no evidence of the advice from the lawyer for the 3rd Respondent through this witness either.

He also stated that there was a heated argument between Robert Bartho and Jeffery Korone over count 46 for Munuma/Kolma so he brought in the Election Manager, lawyer for the 3rd Respondent and the Defence Force Commander Lt. Hiob to witness before he opened the box. Counting then proceeded smoothly until the winner was declared.

It is interesting to note that he is the only witness who deposed that a heated argument erupted over the box for Munuma/Kolma for which he brought the Election Manager, Lt. Hiob and the 3rd respondent's lawyer as witnesses when every other witness gave evidence over the box for Digibe ward 4.

The evidence of this witness is contradicted by the evidence of witnesses Jeffery Korone, Mack Mol and counting official Andrew Kuri that it was Lt. Hiob who directed counting and not him.

His evidence is also contradicted by the evidence of the Assistant Returning Officer that it was the Presiding Officer who relayed the advice from the lawyer for the 3rd Respondent to count the boxes under dispute

The credibility of his evidence is put to question with opposing and contradictory evidence. On top of this the evidence was not tested through cross examination by the lack of notice to cross examine. The untested evidence which has contradictions from co-witnesses and opposing evidence renders his evidence lacking in credibility thus less weight is attached.

SUBMISSIONS

19. Mr Sirae of counsel for the Petitioner submitted that the court must be satisfied as to whether the petitioner has satisfied the basic requirements of s 215(3)(b) of the Organic law.
It was submitted that the Petitioner had through the evidence adduced at trial showed that:

- There was illegal polling at Digibe; that first preference votes on the ballot papers were marked by two persons in favour of the First Respondent;

- The ballot box containing the illegally marked ballot papers was disputed, yet allowed to be opened and counted;

- The 721 formal and 2 informal votes in the disputed ballot box constituted illegally marked ballot papers and were sufficient to affect the election as they were more than the difference of votes between the First Respondent and the Petitioner.

20. It was submitted that the Petitioner had established illegal practice under s 215(3)(b) of the Organic Law and therefore a recount of the ballot papers excluding the ballot papers for Digibe Ward 4 be ordered and a declaration made there from.

21. Ms Salika for the First Respondent presented a submission to reflect the allegations of illegal practice at the polling and the other part to cover the allegations at the counting centre.

22. The first part of the submission was that the petition should be dismissed because the Petitioner had failed to prove that the First Respondent committed the illegal practice alleged.

It was also submitted that the Petitioner failed to prove that the alleged illegal practice was committed with the knowledge and authority of the First Respondent and therefore the requirement under s 215 (3) (a) had not been satisfied.

23. It was then submitted that the Petitioner failed to plead and establish that the election was likely to be affected, that it would be just if the first respondent be declared not duly elected or the election be declared void.

It was also submitted that there is no evidence before the court that sections 130, 131, 132,136 and 138 of the Organic Law was breached by the First Respondent.

24. Ms Salika referred to the case of Apelis v Chan (1998) SC 573, Amet v Yama (2012) SC1046, Okuk v Nilkare [1983] PNGLR 28, Bourne v Veoto [1977] PNGLR 298 and Karani v Silupa (2003) N2385 as supporting the submission that a Petitioner had failed to satisfy the requirements under s 215 (3) (a) of the Organic Law.

25. The second part of the submission was that the Petitioner failed to plead illegal and improper practices complained; that such practices were committed by an Electoral Officer; that such practices did affect the result of the election; that it would be just that the candidate should be declared not duly elected or the election be declared void.

26. It was submitted that since the Petitioner had failed to establish the requirements as referred to, the petition be dismissed with costs.

The First Respondent relied on the case of Karani v Silupa (supra); Amet v Yama (supra) and Saweni v Pruaitch (2003) N2387 to support the submission of illegal or improper practices committed by electoral officials.

27. Mr. Kepo for the 2nd and 3rd respondents submitted that there were numerous inconsistencies between the affidavit and oral evidence of the witnesses for the Petitioner. This had rendered the witnesses as lying on oath and their evidence should be rejected. It was also contended in submission that the evidence of the witnesses for the 2nd and 3rd Respondents had confidently attested without doubt that the polling at Digibe went smoothly.

28. It was also submitted that there was no illegal or improper practice committed at the counting centre as the Returning Officer was empowered to count a box in dispute upon reports received. It was therefore submitted that the petitioner had not established beyond reasonable doubt that there was illegal practices at the polling or illegal or improper practices at the counting centre and the petition must fail.

DECISION

29. This is a case that rests on who should be believed. The evidence for the Petitioner in total is that there was illegal marking of first preference votes on the ballot papers by two named persons at Digibe ward 4; that despite objections to the count of the ballot papers in box 006 they were counted. That if the disputed box had not been counted it would have affected the result of the election.

30. The respondents denied the allegations of the petitioner. They maintained that nothing like that alleged by the petitioner actually happened. Submissions for the respondents have suggested that there was no evidence of fights, threats or intimidation to influence voting by the voters; that the voters exercised their free will to vote as shown by the evidence of their witnesses; that the counting proceeded according to law and therefore no error was committed by the electoral officials.

31. The grounds to void the election for the Gumine Open revolves around allegations of illegal practice committed during polling at Digibe ward 4 and more specifically the marking of first preference votes on ballot papers by Messer's Bepi Kapia and Kaupa Kokia. The allegations made for alleged illegal or improper practice at the counting centre goes to compliment the alleged illegal practice committed at the poling.

32. However various facts not pleaded have had evidence led on them at trial as in the relocation of polling into a house when it rained. This piece of evidence is crucial as it blends material support to the allegation of how the votes were cast that is the subject of the petitioner's allegation. There was no evidence of proper scrutiny in accordance with s 127 and 128 and provision of voting compartments for secret voting when the polling was moved into the house. There is no evidence of how polling was conducted in the house apart from the evidence that polling was relocated to the house when rain fell.

33. It is settled law that if a fact is not pleaded but at the trial, parties by their conduct allow evidence to be led on matters not pleaded one cannot cry foul that it was not pleaded (See PNGBC v Jeff Tole (2002) SC694; MVIT v James Pupune [1993] PNGLR 320.

34. The proper approach in my view is to take into account and consider the totality of the evidence presented by all parties whether such evidence is in accordance with the rules of evidence or not and then determine whether the totality of the allegations pleaded in the petition have been proved to my entire satisfaction that they offended relevant provisions of the Organic law or Criminal Code to constitute illegal practice under s 215.

If on the other hand the allegations are not proved to the required standard or is found to be reasonably discredited the petition must fail.

The totality of the evidence will also be considered to determine whether the impartiality and integrity of the polling was compromised and if it was found to have been compromised whether it was likely to affect the result of the election or did affect the result of the election.

Requirements of proof

35. It is a basic principle of law that any person who alleges an illegal act, practice or conduct bears the burden of proving what he alleges and allegations in election petitions enjoy no exception to the grounded principle.

36. In the case of Neville Bourne v Manesseh Voeto [1977] PNGLR 298 the principles relating to the onus and standard of proof in election petitions have been adequately stated where his Honour Frost CJ held that:

"The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference."

37. In subsequent petitions the Courts have ascribed great importance to the principle that proof required was near to the criminal law standard in election petitions and therefore it is the duty of this court to also follow suit in this petition.

38. Although the standard of proof required of petitioners is quite high s 217 of the Organic Law provides the court the overarching guide in its substantive deliberations in the following manner:

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to the legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

39. The intent and purpose of this provision has been exposed in numerous election petition cases but a lot of case law sway towards the Supreme Court view in SCR No 04 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, that s 217 is relevant only when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. (See also Ludger Luker Mond v Kerenga Ben Okoro [1992] PNGLR 50; Raymond Agonia v Albert Karo [1992] PNGLR 463)

40. Despite s 217 being a procedural provision in nature, it is in mandatory terms.

41. Any attempt to deviate from it for all intended purposes would be deemed to be against the spirit and intent of the Organic Law that obligates how the National Court is to be guided in matters related to disputed returns.

42. This view is further enhanced by s 222 of the Organic Law which forbids representation by counsels except by consent of parties or with leave of court. The intent of the provisions relating to disputed returns such as s 217 and s222 is clear. It was intended that a simple process less cumbersome than the normal court proceedings in an adversarial system was contemplated. In practice that has not happened.

In the present case it is necessary to consider whether the petitioner has proved the allegations to the required standard in order to establish the requirements that constitute illegal practice under s 215 of the Organic Law.

Illegal practice

43. Illegal practices entail practices not allowed by law for which a criminal penalty is attached. In Alfred Manase v Don Polye & Ors (2008) N3261 his Honour Lay J adequately stated what illegal practice meant in the following way:

"Where the organic law talks about an illegal practice, it means something against the law for which the law provides a penalty, either a fine or jail term, is a criminal offence".

44. It is distinguishable from errors or omissions committed under administrative directives provided by legislation for which no penalties are prescribed.

45. In election petitions any allegation that constitutes illegal practice is capable of voiding an election pursuant to s 212 (4) and s 215 of the Organic Law. The provisions are set out as follows:

212. Powers of court.

(4) Without limiting the powers conferred by this section, the power of the court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

215. Voiding election for illegal purposes.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2)...

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

(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 the it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

46. Illegal practice as used in s 215 has a statutory definition given by s 178(1) of the Organic Law and s 105 and 106 of the Criminal Code.
However there is ample case law which show that 'illegal practice' used under s215 are not confined or limited to those practices defined by s 178 (1) Organic Law and s 105 and 106 of the Criminal Code only; it covers more than those that have statutory definitions given.

47. In Re Koroba-Lake Kopiago Open Parliamentary Election; Andrew Wabiria v Payale Elo [1977] PNGLR 328 at 335 his Honour Pritchard J while distinguishing grounds of undue influence and illegal practice described the intent in s 215 of the Organic Law as follows;

"When one looks at s 215 of the Organic Law, it is perfectly clear that the expression 'illegal practice' was intended to describe more than those offences spelt out in s 179 or those in s 105 and s 106 of the Criminal Code. If not, why in s 215(3)(b) was it necessary to exclude undue influence and bribery from the general expression 'illegal practice' if they were not by inference deemed to be included in the first place. They quite clearly were included and in my view all offences in the Criminal Code Chapter XIV 'Corrupt Practices at elections', s 98 – s 117, Chapter X 'Interfering with Political Liberty', s 78, together with the offences created under pt XVIII of the Organic Law are all included in the meaning of that expression."

48. This passage was later followed by Woods AJ in Thomas Kavali v James Kuru Kupul (Unreported Judgement dated 26 November 1982) and agreed to by Andrew J in Iambakey Okuk v John Nilkare (1983) N406 as the correct intention of s 215 of the Organic Law.

49. Subsequent election petitions have acquiesced to the view that illegal practice was not exhaustive of those offences defined by s 178 (1) of the Organic Law and s 105 and s 106 of the Criminal Code that was capable of declaring that a person returned as elected was not duly elected or voiding an election under s 215 of the Organic Law.

50. To establish the allegations of illegal practice under s 215 the Petitioner needs to satisfy the court according to the required standard a combination of any of the following:

-the illegal practice the subject of the complaint; and

-the illegal practice (including bribery or undue influence) committed by another person but with the knowledge and authority of the winning candidate; or

-the illegal practice other than bribery or undue influence committed by anyone including the winning candidate; and

-the result of the election was likely to be affected by the illegal practice; and

-it was just that the candidate should be declared not to be duly elected or that the election should be declared void.

51. In the present case bribery or undue influence are not alleged hence the requirements under s 215 (1) and (2) of the Organic Law do not apply. Also there is no allegation of any illegal practice against the first respondent and any requirement under s 215 (3) that attach to the candidate shall not apply.

That effectively left the Petitioner with the balance of the requirements under s 215 (3) of the Organic Law to be satisfied. It is necessary to consider the evidence in order to determine whether the petitioner has met the requirements of illegal practice under s 215 (3) to the required standard to attract the relief sought.

52. Firstly there is no evidence that threats or intimidation was used to commit the illegal practices alleged. It was not proved that 300 to 400 supporters of the first respondent were present with guns or knives. There was evidence of a lot of people present but that in my view is common at polling places. There is however evidence of sighting of firearms by two witnesses for the petitioner including knives. Apart from that the allegation of threats and intimidation has not been proved.

53. Secondly, on the speech by Councillor Kum Gapi it was submitted by Mr. Kepo for the 2nd and 3rd respondents that the witnesses for the Petitioner lied because the words alleged in their affidavits were different to the words that were heard on the audio recording.
Although the references to the speech made by the Petitioner's witnesses were not exactly the same, they blend strong support to the audio recording that, a speech on how the voting was to be conducted was in fact made by Councillor Gapi and in line with the words described.

54. Human nature has it that utterances with many words by one person cannot be recited word for word by another person after hearing it once. In my view this was the position of the petitioner's witnesses. Just because the witnesses did not recite the exact words of Councillor Gapi does not hold them out as liars. The part of the speech material to the allegation has been established despite the lack of exactness.

55. The issue though is whether it constituted an illegal practice. It has not been proven that the speech in the manner spoken by Councillor Gapi offended a provision of law to render it an illegal practice.

Although the speech by Councillor Gapi did not constitute an illegal practice it nonetheless set the foundation upon which the votes were to be cast. It was capable of influencing potential voters of how voting should take place.

56. Thirdly, the evidence for the Petitioner is that after the ballot papers were signed by the Presiding Officer Messer's Bepi Kapia and Kaupa Kokia took the ballot papers and marked them before handing them over to the voters to mark their second and third preferences.

57. Witnesses Dawa Tuna and Koma Alois identified by name Bepi Kapia and Kaupa Kokia as the men marking the first preferences on the ballot papers before giving them to voters. This evidence was supported in material form by witness Arnold Bunat and Geoffery Torovi who were the only security personnel at that polling who gave evidence that two men sat near the presiding officer and marked the ballot papers before giving them to voters.

58. There was an inconsistency in the evidence of the two security personnel when Geoffery Torovi identified the two men in a photo as the men who marked the ballot papers. However that can be attributed to recent acquaintance or honest mistake by a person not from the area given his address on the subpoena as Biru CIS in Popondetta. The totality of his evidence that two persons marked the ballot papers before passing them on to the voters was intact and credible.

59. There was further evidence by Arnold Bunat and Geoffery Torovi that when they raised concern with the Presiding Officer that such practice was not proper the presiding officer responded "let them, they know what they do." That evidence is material to the allegation that two persons marked the ballot papers before the voters marked their second and third preferences. The evidence of the two security personnel of raising concern with the Presiding Officer on the manner of polling stands unchallenged apart from the blanket denials by the Respondents witnesses.

60. Bias was suggested in submission for the Respondents on the basis that witnesses Arnold Bunat and Geoffery Torovi's travel and upkeep during the trial was paid for by the Petitioner. A party requiring material evidence of a witness must bear the costs associated with ensuring appearance in court. Those two witnesses gave evidence crucial to the allegations that could not have been obtained any other way. It is unfair to suggest bias when evidence does not favour a party.

61. The evidence of the Petitioner's witnesses that two persons marked the ballot papers has not been discredited in cross examination.
The Respondents have failed to rebut the evidence of the Petitioner's witnesses in any material form apart from the mere denials by the Presiding Officer, Assistant Presiding Officer, Kum Gapi, Siune Lui and Bernard Bike. All they said was that the polling went smoothly without providing any material evidence to support that contention.

62. It seems odd that none of the Respondents witnesses made any mention of Bepi Kapia or Kaupa Kokia although they were at the polling place.

The evidence that Bepi Kapia and Kaupa Kokia marked the first preference on the ballot papers at the Digibe ward 4 polling stands uncontested.
There is no evidence that these two men were either polling officials or were assisting voters as required under s 140 of the Organic Law.

63. Mr. Kepo submitted that "marking" and "signing" were two different words with different meanings and in the way it was used, the evidence of witnesses contradicted each other and contradicted evidence should be rejected. Distinction of Marking and Signing in the English language cannot have the same meaning and differentiation in the pidgin language as used in evidence. In pidgin the two words can be used interchangeably to mean one or the other. It is not a material contradiction.

64. Given the totality of the evidence it has been proved to my entire satisfaction that the first preference on the ballot papers at the Digibe ward 4 polling place were marked by Bepi Kapia and Kaupa Kokia after the presiding officer signed them.

65. It follows there from that the marking of the first preference on the ballot papers by Bepi Kapia and Kaupa Kokia was illegal as it contravened s190, s191 (11), s191 (14), s 136 and s138 (a)of the Organic Law and s 108 and s 109 of the Criminal Code. This finding is made on the basis that a finding of a breach or contravention of provisions of the Organic Law or an Act without pleading is permissible given that there is no requirement to plead the law.

Any requirement to plead the law would be contrary to the intent of s 222 which confers a primary right on a Petitioner to file and argue petitions in court without lawyers and also contrary to s 208 and 209 requirements (See Dick Mune v Anderson Agiru & Ors (1998) SC 590).

66. As a consequence of the above findings it naturally follows that the eligible electors for Digibe ward 4 were denied their right to vote freely. The marking of ballot papers prevented the free exercise of franchise by the electors.

67. As to the conduct of the polls there is no evidence that s 130 (polling), s 131 (electors are entitled to vote) and s 132 (where electors may vote) have been breached. In the absence of evidence to the contrary it can be assumed that the polling officials adequately complied with these provisions.

However, the evidence shows that s 136 (1) (right of electors to receive ballot papers) and s138 (a) (votes to be marked in private) have been allowed to be breached by the election officials at the polling. The omissions by the electoral officials at the polling allowed illegal marking of ballot papers to occur from which the result of the election was likely to be affected.

68. In respect of the allegations at the counting centre there is overwhelming evidence that Lt. Hiob gave orders to count the box by telling those present that whoever had a dispute should take the matter to court.

69. The evidence of the Returning Officer that he brought Lt. Hiob to the counting centre to witness him open the ballot box was not supported by any credible evidence. He was the only witness for the Respondents who gave evidence about Lt. Hiob. However, it is not sufficient to contradict, least of all raise a doubt that the evidence of Jeffery Korone, Mack Mol and Andrew Kuri were untrue or cannot be believed. I am satisfied that it was Lt. Hiob and not the Returning Officer who directed counting of ballot box 006.

70. That was in breach of the mandatory provisions of s 149 of the Organic Law that scrutiny at a counting centre was to be conducted by the Returning Officer or in his absence the Assistant Returning Officer. It is also in breach of s 153A that empowers a Returning Officer and no one else to refuse to admit a ballot box that has marked ballot papers for reasons of unlawfully cast ballot papers or ballot box tampering or alternatively to permit counting of a disputed ballot box.
Secondly, it was alleged that the Presiding Officer failed to present an incidence and situation report of the polling despite knowing that the polling was not conducted legally. The evidence of the Returning Officer and the Assistant Returning Officer are not challenged nor discredited that the Presiding Officer delivered a hand written report from the journal to them. The Presiding Officer did not fail to present a report apart from a delayed report.

71. As to the allegation of intimidation at the counting centre I find insufficient evidence that there was actual intimidation apart from arguments among scrutineers and the direction of Lt. Hiob to count the disputed ballot box.

72. The petitioner also alleged that the Returning Officer failed to stop box 006 from Digibe ward 4 from being counted despite allegations of illegal polling which resulted in the return of the First Respondent as the duly elected member for Gumine. There are two parts in this allegation; that is of the failure by the Returning Officer to stop the counting of box 006 and the resultant effect of his failure.

73. As to the first part it was the evidence of the Returning Officer that s 153 of the Organic Law gave powers to the returning officer to accept or reject petitions. The objection to counting of box 006 was referred to the lawyer for the 3rd Respondent who advised that the box was to be counted. Upon that advice he permitted the count of the ballot papers in the disputed box to be counted.

74. The Returning Officer has discretion conferred on him by s 153A (1) of the Organic Law to refuse to admit to scrutiny any disputed box for counting for varying reasons. Section 153A (1) provides:

153A Excluding ballot box from scrutiny

(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:-

(a) that ballot papers in it were not lawfully casted; or

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

The converse of this provision is that the Returning Officer also has discretion to direct counting of marked ballot papers in any box under objection.

75. The issue in contention seems to be on the two letters of objections to the counting of box 006 which was served on him on 17 July 2012. The provision that guides a Returning Officer when confronted with objections over a ballot box is s153A (2) of the Organic Law which provides:

153A Excluding ballot paper from scrutiny

(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.

76. Lt. Hiob ordered the counting of box 006 for Digibe ward 4 when objections were raised at the counting centre. The Returning Officer is by virtue of the mandatory provision of s 149 the officer responsible for the conduct of scrutiny at the counting centre and in his absence an Assistant Returning Officer. Section 149 provides:

149 Officers at scrutiny

The scrutiny at a counting centre shall be conducted by the Returning Officer or, in his absence from that counting centre, by an Assistant Returning Officer.

77. The Returning Officer also has the power to refuse to admit to scrutiny a ballot box containing marked ballot papers under s 153A. He failed in the lawful discharge of his responsibilities conferred on him by s 149 and 153A of the Organic Law when he permitted Lt. Hiob to direct counting of the disputed box.

78. The second part of the allegation was that the counting of the ballot papers in box 006 resulted in the First Respondent being declared winner.

79. The tally sheet for Gumine Open shows that after the counting of ballot papers in box 006, the First Respondent's progressive tally stood at 8,514 first preference votes. The records show that the First Respondent was not declared winner after the counting of box 006 for Digibe Ward 4. This part of the allegation has not been proved.

80. The final allegation was that the number of ballot papers in the disputed box 006 was 723 including the 2 informal ballot papers; that the number of ballot papers was more than the difference of votes between the first respondent and the petitioner and therefore it will affect the result of the election if these ballot papers were not counted.

81. It is an undisputed fact that the total ballot papers recorded after the count of box 006 for Digibe ward 4 totalled 723 out of which the First Respondent received 721 first preference votes while 2 were recorded as informal. The ballot papers affected by the illegal practice by Bepi Kapia and Kaupa Kokia were 723.

82. The difference of votes between the First Respondent and the Petitioner when the First Respondent was declared winner was 536 votes. It is obvious from the figures that when the ballot papers in box 006 were counted the result of the election was affected because the affected ballot papers were more than the difference of votes between the First Respondent and the Petitioner. In other words if ballot box 006 for Digibe ward 4 was not counted the result of the election would still have been affected.

Requirements of s 215 (3) of the Organic Law

83. Having considered the evidence and the findings there from the next issue is whether the requirements of s 215 (3) of the Organic Law have been satisfied.
The provisions of s 215 (3) are plain but in my view poorly drafted. The contentious provision seems to be s 215 (3)(b). Contentious in the sense that Courts have described two circumstances as satisfying the requirements under s215 (3)(b).

84. First is the view expressed by Woods J in Thomas Kavali v James Kuru Kupul (Unreported and unnumbered judgement dated 26 November 1982) relating to s 215 (3) (b) where his honour said:

'If anyone including the candidate commits an illegal practice other than bribery or undue influence or attempt of either...the National Court must be satisfied that the result of the election was likely to be affected and it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

85. The second view was held by Andrew J in Okuk v Nilkare (supra) where his Honour said:

"S 215 (3)(b) of the Organic Law is confined to illegal practice other than bribery or undue influence or attempted of either committed by the duly elected candidate. This may be seen from the opening words of s 215 (3) namely, that the National Court shall not declare that a person returned elected was not duly elected or declare an election void - (indicating that it is dealing with his conduct – and may be further seen from the concluding words of the section namely that the conduct would mean;)"that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

Further down his honour said;

"In my opinion s 215(3) (b) of the Organic Law is confined to conduct by the successful candidate."

86. I am more inclined to the former view which has its origin in Re; Koroba - Lake Kopiago election petition (supra) and further exposed by his Honour Sakora J in Francis Koimanrea v Arnold Sumunda & Ors (2003) N2421 and referred to in Sir Arnold Amet v Peter Yama (2008) SC 1064, where his Honor said:

"In relation to allegations of illegal practice, there are three types of these covered by s 215 of the Organic Law. Firstly (ss1) covers the situation of bribery and undue influence committed by the successful candidate.

Second is that alleged to be committed by a person other than the winning candidate but with the knowledge or authority (subsection (2). The third situation concerns any other type of illegal practice including those defined under the Organic Law (for example, under s 178), committed by anyone including the successful candidate himself; subsection (3).

87. I adopt his honours identification of the types of illegal practice required to be satisfied under s 215 as the correct position of the law.

88. At this juncture I am compelled to comment on the general attitude of the courts to s 215 (3) that a petitioner is required to plead and establish "that an election was likely to be affected" and "that it was just that the candidate should be declared not to be duly elected or that the election should be declared void". (See Sir Arnold Amet v Peter Yama (supra) and Koimanrea v Sumunda & Ors (supra))

89. My reading of s 215 (3) is that the two considerations (that an election was likely to be affected and that it was just that the winning candidate should be declared not to be duly elected or that the election should be declared void) are provisions to subsections (3) (a) and (b) and not standalone requirements to be pleaded or established by a petitioner. Those parts are shielded by the words "unless the Court is satisfied" which in my view suggests that it is in the domain of the Court to determine thereafter and not for a petitioner to intrude into and plead, establish as a fact or prove it as a requirement.

90. They are conditional or consequential of the Court being satisfied that the requirements under subsections (3) (a) or (b) have been established. Or to put it another way, a Court cannot be satisfied unless the requirements of subsections (3) (a) or (b) are established to the required standard. I am of the view that it is entirely a grant of power and discretion to the Court to arrive at those conclusions of law at the close of all the evidence.

91. Therefore it should not be construed as placing an onus on a Petitioner to plead or prove to the satisfaction of the Court that an election was affected and that it was just that the winning candidate should be declared not duly elected or that the election should be declared void.

92. My view has support in s 222 which confers the original right of representation to a Petitioner himself and in that respect it is not intended that a Petitioner with no legal background would plead the law. In the same context s 208 also fortifies the view that it is not a requirement to plead the law (See Dick Mune v Anderson Agiru (1998) SC 590).

93. It should be left to the discretion of the court to be satisfied or otherwise as to whether the result of the election was likely to be affected and that it was just that the candidate should be declared not to be duly elected or that the election should be declared void, and only after the requirements of subsections (3) (a) or (b) of s 215 have been established.

94. Having expressed my view of s 215 (3) I am obligated by the case authority of the higher court as in Sir Arnold Amet v Peter Yama (supra) to accept that a petitioner must also establish that the election was likely to be affected and that it was just that the candidate should be declared not duly elected or that the election should be declared void.

95. In the present case it has been proved to my entire satisfaction that the illegal practice of marking ballot papers had occurred at Digibe ward 4. The first preference on the ballot papers were marked by two other persons which was in breach of s190 of the Organic Law. Section 190 provides:

190 Making marks on ballot papers

Except where expressly authorised by or under this law, a person other than the elector to whom the ballot paper has been lawfully issued, who makes a mark or writing on the ballot paper of an elector is guilty of an offence.

Penalty; A fine not exceeding K500. 00.

96. The breach of s 190 through marking of ballot papers by Bepi Kapia and Kaupa Kokia at Digibe ward 4 constituted an illegal practice under s 215 (3)(b). The consequence of that breach was that the 723 ballot papers were affected.

97. The polling officials by permitting marking of first preference votes on ballot papers either out of bias or under duress offended s121, 133, 134, 136, 138, 139 and 200(1)of the Organic Law. The breaches constituted material errors.

98. The illegal practice of marking ballot papers by persons not authorised under the Organic Law was also reflected in the number of first preference votes counted from box 006 for Digibe ward 4. It is an undeniable fact that apart from the 2 informal ballot papers, the First Respondent received all the first preference votes from Digibe ward 4 box 006. That is no coincidence given the overwhelming evidence of ballot paper marking by unauthorised persons.

99. Mr Sirae for the Petitioner submitted that the illegal marking of ballot papers at the polling satisfied the requirements of s 215 (3) (b) of the Organic Law and the relief sought should be granted.

100. Ms Salika for the First Respondent submitted that the petitioner failed to satisfy the requirements under s 215 (3) (a) of the Organic Law that the alleged illegal practice was neither committed by the First Respondent or with his knowledge or authority and the petition should be dismissed.

101. Given the totality of the evidence the requirements under s 215 (3) (a) do not apply. The petitioner was not required to establish the requirements under this subsection. It is obvious that the First Respondent did not commit the illegal practice alleged. It is equally obvious that the illegal practice was not committed with the knowledge or authority of the First Respondent.

102. The Petitioner did not plead the test of knowledge and authority of the winning candidate hence it would be wrong and unfair to expect considerations under s 215 (3) (a) to be established without pleading.

103. Where s 215 (3) (a) did not apply it remained for the Petitioner to satisfy the requirements of s 215(3)(b). The requirements of s 215(3)(b) applies to illegal practices other than bribery or undue influence committed by anyone including the winning candidate.(see Francis Koimanrea v Arnold Sumunda & Ors(supra)

104. It has been proven that illegal practice of marking ballot papers was committed. It was an illegal practice other than bribery or undue influence. It was committed by someone other than the First Respondent. All these considerations satisfy the requirements of s 215 (3)(b). Therefore the Petitioner has proven to the entire satisfaction of the Court that the marking of ballot papers by persons not entitled or authorised by Law contravened s 190 of the Organic Law and constituted an illegal practice under s 215 (3)(b).

105. The next issue is whether the result of the election was likely to be affected. The method of calculating whether or not the result of the elections would be affected was settled in Baki Reipa v Yuntuvi Bao [1999] PNGLR 232 as follows:

"However as soon as the number of disputed or lost votes exceeds the winning margin then as the Court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the result would have been affected then the criteria is satisfied."

106. This criterion was suggested for first past the post situations where even one vote was sufficient to void an election. The winning margin is different with the limited preferential voting system. The number in excess of the 50% plus one of casted votes received by the winner is the winning margin. (See Alfred Manase v Don Polye & Ors( Supra).

107. In the present case the First Respondent was declared winner with 13, 288 votes at the 38th elimination. The total allowable ballot papers were 26, 040. The 50% plus 01 votes required to win was 13, 021 votes. Therefore the winning margin was 267 votes more than what the First Respondent was required to win. The ballot papers affected by the illegal practice were 723. Therefore the 723 ballot papers affected by the illegal practice exceeded the winning margin of 267 hence the result of the election was affected.

108. The affected ballot papers in box 006 for Digibe ward 4 was allowed to be counted despite the dispute of illegal practices at the polling and it affected the result of the election. In other words the result of the election would have been affected if the ballot papers in the disputed box 006 for Digibe Ward 4 were not counted.

Relief

109. The relief sought by the Petitioner was a recount of the votes excluding the ballot papers from Digibe ward 4 box 006 and the Court to declare the winner after the recount. In the petition the Petitioner's alternative relief sought were a declaration that the election of the First Respondent was null and void and that a by-election for Gumine Open be held. Costs were also sought.

110. In Korak Yasona v Castan Maibawa (1998) SC552 the Supreme Court decided that specific relief provided under the Organic Law need not be specifically pleaded in a petition. This therefore follows that proof of relief was not required.

111. This is a petition arising out of no fault of the First Respondent. The illegal practice was committed by others. It is also apparent that the electoral officials at the polling area did nothing to prevent the illegal marking of ballot papers from happening. It is also apparent that electoral officials at the counting centre were not prudent in the discharge of their duties in compliance with the Organic Law requirements under s 149 and153A.

112. It was the responsibility of the 3rd Respondent under the leadership of the 2nd Respondent to ensure that a fair and free election was conducted. The impartiality and integrity of the process must be protected by the 3rd Respondent as its core duty to ensure that the right of eligible citizens to vote for candidates of their choice or to stand for elective office is protected through proper and transparent processes. This does not seem to be the case for the polling at Digibe ward 4 and at the counting centre. Failures by electoral officials contributed immensely to the commission of the illegal practice that was proved.

113. It is of paramount importance that people must be made to realise that their elected leader was returned as elected according to law and not because some people were above the law or could do anything they like in the process of elections. The integrity of the electoral process must be protected to maintain confidence in the process.

114. In the present case the winning margin was 267 votes. There is the bare possibility that the First Respondent could have won anyway without the ballot papers for Digibe Ward 4 being illegally marked by Messer's Kapia and Kokia. There is evidence that he did have supporters in Councillor Kum Gapi, Siune Lui and Bernard Bike who were village leaders in their own right. However such win must be earned fairly and transparently.

115. A recount of the ballot papers in my view would act adversely to the First Respondent for something he played no part in. The affected ballot papers were 723 which were greater than the 536 difference of votes between the First Respondent and the Petitioner. The winning margin is far less than the difference of votes.

116. It would give the Petitioner as runner up an unfair advantage after the affected ballot papers were removed from the First Respondent's first preference votes. As stated earlier and according to the evidence the Petition arose out of no fault of the First Respondent hence he should not be a victim of acts committed by other persons.

117. Secondly the electors of Digibe Ward 4 would be unfairly prevented in the free exercise of the franchise for an illegal practice that was wholly not of their total doing. It may be argued that the electors of Digibe Ward 4 forfeited their right to vote by voting in the manner they did. I doubt whether the manner of voting at Digibe Ward 4 was carried out as an exercise of free choice. If they did choose to vote in that manner then it is against the law bordering on criminal offences hence they must be made to realise that act of free choice is governed by law that all citizens must comply with.

118. It may be argued that if the votes for Digibe Ward 4 were set aside for a recount they would be the same as votes of a losing candidate. This argument tramples on issues of fairness reflected in the reasons for refusal of a recount.

119. Having been satisfied that the result of the election was affected by the illegal marking of ballot papers for Digibe Ward 4, it is just that the First Respondent be declared not to be duly elected. It follows therefore that a by election shall be held for the Gumine Open seat.

120. The deposit shall be returned to the Petitioner. Costs of both the Petitioner and the First Respondent for the entire petition shall be borne by the 3rd Respondent.

Orders accordingly
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Sirae & Co. Lawyers: Lawyers for the Petitioner
Young & Williams: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second & Third Respondents