N5222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA
Petitioner

V

ANTON YAGAMA
First Respondent

STEVEN BIKO, RETURNING OFFICER
Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J

2013: 29, 31 January, 1, 4, 5, 6, 7 February, 4, 13 March,
7, 8, 9, 14, 16 May

Elections – petitions – validity of return of a member of the National Parliament disputed by petition – alleged errors by officers – alleged bias of returning officer and assistant returning officer – proof of bias – alleged delays in polling – alleged failure to control unlawful voting – alleged errors in counting.

Elections – appointment of Returning Officer – powers, functions, duties and responsibilities of Returning Officer – whether Returning Officer has power to declare a failed election – appointment of officer to perform duties of office in event of absence from duty of Returning Officer: Organic Law on National and Local-level Government Elections, Section 21.

Elections – petitions – powers of court in event of proof of errors by officers – Organic Law, Section 218.

The petitioner challenged the return of the first respondent as the successful candidate at an election on five grounds described as (1) 'bias and undue influence of electoral officials', in particular the Returning Officer; (2) 'bias and undue influence of electoral officials', in particular an Assistant Returning Officer; (3) 'other illegal practices, errors and omissions'; (4) 'failure to conduct polling at designated places and ... delays, double and underage children voting'; and (5) 'illegal practices, errors and omissions at the counting'. Ground 3 was struck out on determination of an objection to competency. The petitioner argued that the grounds of the petition should be substantially upheld and were sufficient to warrant the court ordering a recount of all ballot papers and/or declaring that the first respondent was not duly elected.

Held

(1)	The petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Returning Officer but proved the commission of an "error" by the Returning Officer in that he stopped the counting and declared a failed election, thereby exercising a power that he did not have. Ground 1 was to that limited extent upheld.

(2)	The petitioner failed to prove the facts that would warrant a finding of bias or undue influence against the Assistant Returning Officer but proved the commission of "errors" by various officers regarding the appointment of an officer to perform the duties of the office of Returning Officer contrary to Section 21 of the Organic Law, and the exercise of powers by that officer including conducting the final stages of the scrutiny and declaring the result of the election. Ground 2 was to that limited extent upheld.

(3)	The petitioner failed to prove commission of any of the errors pleaded in ground 4 and that ground was entirely dismissed.

(4)	The petitioner failed to prove commission of any of the errors pleaded in ground 5 and that ground was entirely dismissed.

(5)	Though only two grounds were partially upheld the errors disclosed in the course of determining those grounds were significant culminating in an irregularly appointed officer conducting the final stages of the scrutiny in the absence of all relevant scrutineers and declaring the result of the election.

(6)	The significance of the errors gave rise to the question whether in light of the duty of the Court under Section 217 of the Organic Law to "be guided by the substantial merits and good conscience of each case", the Court should exercise all or any of its powers under Section 212(1) including (d) ordering a recount of ballot papers, (f) declaring the person who was elected as not duly elected, (g) declaring a candidate duly elected who was not returned as elected and (h) declaring the election absolutely void.

(7)	It was not appropriate to make any of the declarations provided for by Sections 212(1)(f), (g) or (h) as that would amount to 'avoiding' the election, which Section 218(1) provides can only be done if it is clear that the errors affected the result of the election; and here it was not clear that the errors affected the result.

(8)	However, the significance of the errors and the fact that they occurred at critical stages of the election were for the purposes of Section 213(3) "just and sufficient" grounds on which to exercise the power of the court under Section 212(1)(d) to order a recount of ballot papers in the electorate.

(9)	The petition was accordingly upheld in part and a recount was ordered. The petitioner will pay the respondents' costs of the petition as the bulk of the grounds were dismissed as being without substance.

Cases cited

The following cases are cited in the judgment:

Lisio v Puana (2008) N3463
Maino v Avei [1998] PNGLR 178
Peter Charles Yama v Anton Yagama (2012) N4928
SCR No 4 of 2002, Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689
Wingti v Rawali (2008) N3286

TRIAL
This was the trial of an election petition disputing the validity of an election.

Counsel

N Kiuk, for the petitioner
T Bobor,o for the first respondent
J S Umbu, for the second, third & fourth respondents

Terminology and dates

In this judgment:

•	'the Organic Law' refers to the Organic Law on National and Local-level Government Elections;

•	dates refer to the year 2012 unless otherwise indicated.

1.	CANNINGS J: The petitioner Peter Charles Yama has filed a petition disputing the election of the first respondent Anton Yagama as the member for Usino-Bundi Open in the 2012 general election. The petition is based on five grounds described as:

(1)	'bias and undue influence of electoral officials', in particular the Returning Officer;

(2)	'bias and undue influence of electoral officials', in particular an Assistant Returning Officer;

(3)	'other illegal practices, errors and omissions';

(4)	'failure to conduct polling at designated places and delays, double and underage children voting'; and

(5)	'illegal practices, errors and omissions at the counting'.

2.	Ground 3 was struck out on determination of an objection to competency (Peter Charles Yama v Anton Yagama (2012) N4928). A trial has been held on the remaining four grounds. The petitioner argues that the grounds of the petition should be substantially upheld and are sufficient to warrant the court ordering a recount of all ballot papers and/or declaring that the first respondent was not duly elected. The respondents argue that none of the grounds are made out and that there is no good reason to grant any of the relief sought by the petitioner.

UNDISPUTED FACTS

3.	A number of undisputed facts have emerged from the evidence:

•	The Returning Officer appointed by the Electoral Commissioner was Steven Biko (the second respondent). Before the election the petitioner objected to his appointment on various grounds including unresolved allegations of official corruption against Mr Biko and Mr Biko's alleged bias against the petitioner and Mr Biko's alleged close friendship with candidate and then sitting member, Samson Kuli MP. The petitioner's objection was rejected by the Electoral Commissioner on the advice of the Madang Provincial Election Steering Committee. Mr Biko remained as Returning Officer.

•	There were three Assistant Returning Officers, each being responsible for one of the three Local-level Government (LLG) areas in the electorate: Bundi, Gama and Usino. The Assistant Returning Officers (each of whom gave evidence at the trial) who in fact conducted the election (assisting in both polling and counting) did not correspond entirely with those gazetted, as shown in the following table:

LLG area	Gazetted appointment	In fact	
Bundi	Joseph Yama	Joseph Yama	
Gama	Vincent Awin	James Aiam	
Usino	James Aiam	Doling Gembo	

•	Various presiding officers were appointed to be in charge of polling teams. The task of polling teams was to conduct polling within designated wards within each LLG area. Some of the presiding officers gave evidence.

•	After the polling was completed counting of votes took place at the counting centre at Walium. There was no significant disruption or controversy during the counting period in July until the exclusion of the 38th candidate took place on the afternoon of Thursday 26 July, when there were three candidates remaining: the petitioner, Samson Kuli MP and the first respondent. At about 5.00 pm there was a commotion outside the counting centre. A rowdy exchange took place between supporters of the petitioner and those of the first respondent. The petitioner around the same time and the same place had a verbal argument with a member of the Provincial Election Steering Committee, Pastor Kario.

•	There is conflicting evidence as to the nature and length of the commotion and who started it. The petitioner's evidence is that it was a minor incident. The respondents assert that it was a major incident, a physical fight started by the petitioner as he could see that he was to be the next candidate eliminated, and that a number of the first respondent's supporters were seriously injured and hospitalised.

•	Because of the commotion and concerns for the safety of the counting officials and his own safety and State assets Mr Biko declared at the counting centre at about 6.00 pm on 26 July that Usino-Bundi was a 'failed election'. 

•	Mr Biko made the decision to declare a failed election after speaking by phone to the Provincial Election Manager. The commotion ceased and the counting officials left the counting centre. At that stage the 38th exclusion had been made and there were three candidates remaining. Mr Biko took no further part in the election until he signed the writ, which was returned to the Governor-General, on 31 July.

•	On the morning of Friday 27 July – the day fixed for the return of the writ – an emergency meeting of the Provincial Election Steering Committee was convened. The Electoral Commissioner was consulted and the Provincial Election Manager, Emily Kelton-Siamoli instructed James Apimia, the Returning Officer for the Madang Open seat, to take a counting team to Walium and complete the counting.

•	Mr Apimia travelled to Walium on 27 July with a team of election officials arriving at 1.30 pm. Mr Biko and electoral officials who had earlier been involved in the counting were not present. The only scrutineer present was the first respondent's. 

•	Counting resumed at the point at which it had been stopped the previous evening: after the 38th exclusion. The petitioner was the 39th exclusion and Mr Kuli was the 40th. Mr Apimia declared the first respondent as the successful candidate at 6.15 pm on 27 July. 

•	The final tally sheet, Form 66B, which is intended to show progressive results received by each candidate, was not completed. Mr Apimia did not sign the writ at any stage. 

THE EVIDENCE

Evidence called by the petitioner

4.	Seven witnesses gave evidence as summarised in the following table. "A" denotes a witness who gave affidavit evidence. "O" denotes oral testimony.

No	Witness	Description	
1	Andrew Haihombo 
A, O	Election official: Presiding officer, team 3, Bundi LLG area, Usino-Bundi electorate	
Evidence	He observed a number of discrepancies in the counting process – on two occasions he saw ballot papers for other candidates in the trays of the first respondent or Mr Kuli: the first time there were 50 votes wrongly placed in the tray of the first respondent, 30 of them belonged to the petitioner.	
2	Joe Kunda
A, O	Petitioner's scrutineer	
Evidence	The Assistant Returning Officer for Bundi LLG, Joe Yama, is closely related to the first respondent, being his adopted son – Joe Yama appointed his own relatives as polling officials, including Vitus Kianunga who allowed double-voting in four wards – Joe Yama took total control of the counting including in respect of those LLG areas for which he had no responsibility.	
3	Stanley Karagabo
A, O	Election official: Presiding officer, team 4, Bundi LLG area, Usino-Bundi electorate	
Evidence	Polling started four days late – there were instances of double voting and underage voting, security was poor – the counting process was controlled by Joe Yama – many counting officials were accommodated by candidates.	
4	James Apimia
A, O	Election official: Returning Officer, Madang Open	
Evidence	He has 30 years experience as an election official – he went to Walium on 27 July as that is what he was instructed to do by the Provincial Election Manager – he was not given an instrument of appointment and has still not seen one – he acknowledged that some standard procedures were not followed on 27 July, eg Form 66B was not signed by him or the scrutineers: this is supposed to be signed before the declaration is made; also he did not sign the writ, the reason being that he had not sighted an instrument of appointment authorising him to act as Returning Officer – there was no threat to his security on 27 July – if he knew of any security risk he would not have gone to Walium.	
5	Peter Charles Yama
A, O	Petitioner	
Evidence	He complained about the appointment of Mr Biko as Returning Officer and he was assured by the Provincial Election Steering Committee that Mr Biko would be stood aside and replaced by James Aiam – he was also concerned about the appointment of Joe Yama as Assistant Returning Officer, the first respondent's son and about the connections of some Provincial Election Steering Committee members with the first respondent – he is concerned about the legality of appointment of the three Assistant Returning Officers – he arrived at the counting centre at Walium at 4.00 pm on 26 July and was surprised to see Pastor Kario there as the first respondent is a member of Pastor Kario's church – he approached Pastor Kario and expressed his dissatisfaction about the conduct of the counting and the appointment of Mr Biko and Joe Yama.	
6	Leo Sipa
A, O	Reserve Constable: member of security detail, team 6, Gama LLG area, Usino-Bundi electorate	
Evidence	Polling was delayed for seven days – there were many instances of double-voting – ballot boxes were hijacked at Bokamap village by supporters of candidate James Tadius – 600 voters in Ward 9 were deprived of their right to vote – mobile phone calls to Mr Biko were not well received – transport and logistics was very poor.	
7	Bando Jacob
A, O	Police officer, Inspector, officer-in-charge police operations, Madang Province, 2012 general election	
Evidence	He was at Walium from 24 to 26 July – there were no major security incidents – the counting centre was well fenced – 64 local police officers were stationed there, plus 6 members of a police mobile squad and 5 Defence personnel – the fight between supporters of the petitioner and the first respondent on 26 July was a minor incident lasting only 30 minutes – it was stopped by the police and tension was eased – there was no security threat to Mr Biko or the counting officials – Mr Biko did not consult him on the security situation or whether he should declare a failed election.

He was a member of the Provincial Election Steering Committee and attended the meeting of the Committee on the morning of Friday 27 July – he has concerns about the legality of Mr Apimia's appointment – Mrs Siamoli told him at 6.00 pm on 27 July that she had just received a copy of Mr Apimia's appointment.	

Evidence called by the first respondent

5.	Eight witnesses gave evidence as summarised in the following table. "A" denotes a witness who gave affidavit evidence. "O" denotes oral testimony.

No	Witness	Description	
1	John Nezungu
A, O	First respondent's scrutineer	
Evidence	He alleged that the petitioner did little campaigning and travelled by helicopter throughout the electorate and gave out large sums of money in cash and asked people to vote for him – he was present at the counting centre on 26 July when the petitioner disrupted the counting.	
2	Boney Yaka
A	Candidate, Usino-Bundi electorate	
Evidence	He alleged that the petitioner and his son were involved in a number of illegal practices, including taking control of some polling places by threats of violence.	
3	Augustine Koroma
A	First respondent's steering committee coordinator	
Evidence	He was present at Bundi Catholic Mission on Friday 22 June when the petitioner arrived in a helicopter and gave K10,000.00 cash to one of his election co-ordinators.	
4	Dominic Angia
A, O	Scrutineer for candidate Josephine Toure, Usino-Bundi electorate	
Evidence	He alleged that the petitioner engaged in improper practices at the counting centre – the petitioner's son prevented him going into the counting centre at one stage, even though he had a right to go in.	
5	Fabian Ngants
A, O	Election official: counting official for Madang Open seat –member of team engaged in counting, Usino-Bundi electorate, 27 July 2012	
Evidence	He was a member of Mr Apimia's team that went to Walium on 27 July – he saw many exhausted ballot papers in the petitioner's tray that should not have been there.	
6	Joseph Yama
A, O	Election official: Assistant Returning Officer, Bundi LLG area, Usino-Bundi electorate	
Evidence	He denied being an adopted son of the first respondent – he (the witness) is from Mendi 3 clan whereas the first respondent, and also the petitioner, are members of Mendi 2 – his view is that despite some difficulties polling was conducted fairly and freely – counting went smoothly until just after the 38th elimination (of candidate Samson Kaniku), which is when the petitioner had a heated argument with Pastor Kario, leading to the fight outside the counting centre that lasted two hours – like Mr Biko he feared for his safety and had been threatened so he left Walium on the evening of 26 July.	
7	Steven Biko
A, O	Election official: Returning Officer, Usino-Bundi electorate, 2012 general election, second respondent	
Evidence	He is a career public servant and has worked in Madang Province for 34 years – he denied having any personal association with any candidate including Samson Kuli – he made no attempt to manipulate the polling process – as to the events of 26 July: it was a very tense situation, he felt under siege, so he rang the Provincial Election Manager and discussed the situation – he felt that he was justified in declaring that the election had failed, as soon as he made the announcement the fighting stopped, the petitioner was happy with the decision and congratulated him.	
8	Anton Yagama
A, O 	Member for Usino-Bundi Open, elected at 2012 general election, first respondent	
Evidence	He did not do anything wrong and he is concerned that the election petition is unnecessary – he feels that he was properly and duly elected.	
Evidence called by the second, third and fourth respondents

6.	Five witnesses gave evidence as summarised in the following table. "A" denotes a witness who gave affidavit evidence. "O" denotes oral testimony.

No	Witness	Description	
1	Vitus Kianunga
A	Election official: Presiding officer, team 1, Bundi LLG area	
Evidence	Problems were encountered during polling at Bundikara and Karisokra: ballot boxes were hijacked and taken to Snopas (the petitioner's village), but later retrieved.	
2	Emily Kelton-Siamoli
A, O	Election official: Provincial Election Manager, Madang Province, officer of Electoral Commission	
Evidence	She has been an officer of the Commission for 20 years – she was a member of the Provincial Election Steering Committee which dealt with the complaint by the petitioner as to appointment of Mr Biko – the three Assistant Returning Officers who in fact worked in the 2012 election were those who had been recommended by the Committee; for some unknown reason there was a mix-up in the gazettal of their appointments – Mr Biko rang her (she was in Madang) late on the afternoon of 26 July to advise her of the security situation at Walium – she was sympathetic to his concerns but did not advise him to declare a failed election, which was his own decision – her understanding is that Mr Biko consulted Inspector Jacob – she consulted the Electoral Commissioner on 27 July and he agreed with the decision of the Provincial Election Steering Committee to send Mr Apimia to Walium to complete the counting – the Commissioner signed an instrument of appointment for Mr Apimia.	
3	James Aiam
A, O	Election official: Assistant Returning Officer, Gama LLG area, Usino-Bundi electorate	
Evidence	As far as he is concerned he was properly appointed as Assistant Returning Officer – he was not at the counting centre on 26 July, he was in Madang attending to administrative matters to do with the election.	
4	Doling Gembo
A, O	Election official: Assistant Returning Officer, Usino LLG area, Usino-Bundi electorate	
Evidence	As far as he is concerned he was properly appointed as Assistant Returning Officer – he was not at the counting centre on 26 July, he was in Madang attending to administrative matters to do with the election.	
5	Frex Mambu
O 	Election official: Presiding officer, team 159, Gama LLG area
(witness appearing under summons)	
Evidence	Everything that happened during the polling period was duly reported in the returns that he had already submitted.	

GROUND 1: BIAS AND UNDUE INFLUENCE OF ELECTORAL OFFICIALS, IN PARTICULAR THE RETURNING OFFICER, MR STEVEN BIKO

7.	Ground 1 of the petition alleges that:

(a)	Mr Biko was improperly appointed as returning officer over the objection of the petitioner which was based on Mr Biko's association with one of the candidates, the then sitting member, Samson Kuli;

(b)	Mr Biko continued to associate with Mr Kuli during the election period;

(c)	Mr Biko improperly appointed two Assistant Returning officers of his choice (Mr Aiam and Mr Gembo) despite having no power to do so;

(d)	Mr Biko improperly scheduled and conducted polling in a number of areas which resulted in many eligible voters not casting their votes;

(e)	Mr Biko acted outside his powers by declaring a failed election on 26 July; and

(f)	Mr Biko's actions seriously tainted the election process from polling to counting to the eventual declaration.

I rule on those allegations as follows:

(a)	Mr Biko was not improperly appointed. He was lawfully appointed by the Electoral Commissioner under Section 19(1) of the Organic Law. The petitioner was given ample opportunity by the Provincial Election Steering Committee to voice his concerns, which were considered in good faith. He should have sought leave to apply for judicial review of the appointment but he did not do that so he should not be allowed to complain after the election is over.

(b)	There is no evidence that Mr Biko had any close or improper association with Mr Kuli during the election period or at any other time.

(c)	There is no evidence that Mr Biko appointed Mr Aiam and Mr Gembo as Assistant Returning Officers. However there was an error in their appointments as Assistant Returning Officer for Gama and Usino LLG areas respectively as there was no notice of their appointments to those positions published in the National Gazette as required by Section 20(1) of the Organic Law. The consequences of this error will be addressed later.

(d)	There is no credible evidence that Mr Biko improperly scheduled and conducted polling in a number of areas which resulted in eligible voters not casting their votes.

(e)	It is clear that Mr Biko acted outside his powers by declaring a failed election on 26 July. The only person with such a power is the Governor-General acting with and in accordance with the advice of the Electoral Commissioner under Section 97(1) of the Organic Law (SCR No 4 of 2002, Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689). There is no evidence that in making the declaration Mr Biko was motivated by any bias against the petitioner. Mr Biko was motivated by a genuine concern for the safety and security of the counting officials and himself. It is difficult to say, given the conflicting evidence, whether Mr Biko had good reason to be so concerned about the security situation. Inspector Jacob gave evidence that the situation was under control. I tend to the view that Mr Biko over-reacted. However it is not necessary for the court to make a finding on that issue. Nor is it necessary to decide who started the fight and in particular whether the petitioner started the fight as he could see that he was about to be eliminated. The only necessary finding is that the declaration of a failed election was unlawful and wrong and amounted to a serious error by an election official. 

(f)	There is no merit in the proposition that Mr Biko's actions tainted the election process from polling to counting to the eventual declaration. Mr Biko made one identifiable error, the declaration of a failed election. It was a significant error and its consequences will be addressed later but it is not an error that tainted the election in the sense contended for by the petitioner.

In summary, two errors have been disclosed through ground 1:

•	the appointment of the two Assistant Returning Officers, Mr Aiam and Mr Gembo;

•	the declaration of a failed election by Mr Biko on 26 July.

Ground 1 is to that limited extent upheld. The balance of ground 1 is dismissed.

GROUND 2: BIAS AND UNDUE INFLUENCE OF ELECTORAL OFFICIALS, IN PARTICULAR AN ASSISTANT RETURNING OFFICER, MR JOSEPH YAMA

8.	Ground 2 makes two categories of allegations. First it alleges that Mr Joseph (Joe) Yama was improperly appointed as Assistant Returning Officer for the Bundi Local-level Government area as he is an adopted son of the first respondent and that Mr Joseph Yama committed a number of errors and omissions that affected the final outcome of the election, for example he deliberately permitted double voting in 11 polling areas and appointed polling officials from the first respondent's area; he became directly involved in the first respondent's campaign activities; and then he took control of the counting without allowing other Assistant Returning Officers to perform their duties; he did not conduct proper quality checks and balances.

9.	The second set of allegations concerns the circumstances in which a 'failed election' was declared on 26 July by Mr Biko and the Provincial Election Steering Committee directed Mr Apimia to complete the elimination process, which he did on 27 July, resulting in the first respondent being declared the winning candidate.

10.	The first set of allegations can be dealt with quickly. They are entirely without merit and unsubstantiated. Mr Joseph Yama gave evidence that he is not an adopted son of the first respondent. I accept Joseph Yama's evidence and find that there was no association between him and the first respondent and no reason to believe that Mr Joseph Yama would not be impartial in the discharge of his duties. The evidence of the petitioner's witnesses which was intended to support the allegations of bias or impropriety on the part of Mr Joseph Yama during the polling period and the counting periods was vague and unconvincing and not credible.

11.	The second set of allegations raises an entirely different set of issues, which are far more significant and should have, together with the allegations as to the failed election, formed a separate ground of the petition. The issues are:

(a)	Was Mr Apimia lawfully appointed as a substitute for Mr Biko?
(b)	Did Mr Apimia have the authority to continue the counting (more correctly called the scrutiny) on 27 July?
(c)	Did Mr Apimia have the authority to declare the first respondent as the successful candidate?
(d)	Was the writ lawfully returned?

I determine these issues as follows:

(a)	No. Mr Apimia was not lawfully appointed as a substitute for Mr Biko.

12.	The only way that Mr Apimia could lawfully have been appointed was by notice in writing published in the National Gazette under Section 21 (appointment in cases of emergency) of the Organic Law, which states:

(1)	Subject to Subsection (2), in the event of a vacancy occurring in an office of Returning Officer or Assistant Returning Officer, or in the absence from duty of any such officer, the Electoral Commission may, by notice in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.

(2)	The Electoral Commission shall publish each notice under Subsection (1) in the National Gazette.

(3)	In the event of a vacancy occurring in an office of Assistant Returning Officer appointed under Section 20(4), or in the absence from duty of any such officer, the Returning Officer may, by instrument in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.

(4)	An appointment under Subsection (1) is temporary only, and does not confer on the appointee any right or claim to be permanently appointed to the position.

(5)	The Failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election.

13.	There was in the present case an instrument of delegation in respect of Mr Apimia signed by the Electoral Commissioner (it was in evidence as an annexure to the affidavit of Mrs Siamoli), which stated:

I, ANDREW SEAN TRAWEN CMG MBE, Electoral Commissioner, by virtue of the powers conferred by Section 18 of the Organic Law on National and Local-level Government Elections and all other powers enabling me, hereby delegate all the powers and functions to James Apimia to be exercised in relation to all parts of Usino-Bundi Open electorate for a period from Friday 27th to Monday 30th July 2012.

Dated this 27th day of July 2012

[Signed]
ANDREW S TRAWEN CMG MBE
ELECTORAL COMMISSIONER

14.	The instrument is vague and ineffective. It does not say what powers and functions were being delegated to Mr Apimia. It is defective. It was also not published in the National Gazette as required by Section 21(2). If its intended purpose was to authorise Mr Apimia to perform the duties of the Returning Officer for Usino-Bundi Open to cater for the emergency created by Mr Biko's absence from duty on 27 July, it did not achieve that purpose. Mr Apimia was not lawfully appointed as a substitute for Mr Biko.

(b)	No. Mr Apimia did not have the authority to continue the scrutiny on 27 July.

15.	There was no written authority given to Mr Apimia to continue the scrutiny other than the defective instrument referred to above. Mr Apimia candidly admitted in evidence that he had yet to see any instrument of appointment authorising him to perform the duties of Returning Officer. He acted on the verbal instructions of Mrs Siamoli. She had consulted the Electoral Commissioner and thus acted on the authority of the Commissioner in giving the instructions to Mr Apimia. But none of this was done in accordance with the Organic Law. The conduct of the scrutiny by Mr Apimia was without lawful authority.

(c)	No. Mr Apimia did not have the authority to declare the first respondent as the successful candidate.

16.	Declaration of the successful candidate is a critical step in the election and is regulated by Section 175 (return of the writs) of the Organic Law, which states:

(1)	Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained—

(a)	at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b)	by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.

17.	The only persons who may validly declare the result of the election and the name of the candidate elected are the Returning Officer or the Electoral Commissioner. Mr Apimia was not the Returning Officer and had not been validly appointed to perform the powers and functions of Returning Officer. He was not the Commissioner and had not been validly delegated the Commissioner's powers to make the declaration. He acted without authority in declaring the first respondent as being duly elected.

(d)	No. The writ was not lawfully returned.

18.	As the final stages of the scrutiny were conducted by an unauthorised person, Mr Apimia, and the declaration of the successful candidate was made by an unauthorised person it follows that the writ was not lawfully returned. It is noted that the writ was signed and therefore returned by Mr Biko – who was still the Returning Officer – however I consider that that semblance of regularity did not cure the defects in the declaration which came about due to the preceding errors in the appointment of and performance of powers and functions by Mr Apimia.

19.	In summary, a number of errors have been disclosed through ground 2:

•	Mr Apimia was not lawfully appointed as a substitute for Mr Biko.
•	Mr Apimia did not have the authority to continue the scrutiny on 27 July.
•	Mr Apimia did not have the authority to declare the first respondent as the successful candidate.
•	The writ was not lawfully returned.

Ground 2 is to that limited extent upheld. The balance of ground 2 is dismissed.

GROUND 4: FAILURE TO CONDUCT POLLING AT DESIGNATED PLACES AND DELAYS, DOUBLE AND UNDERAGE CHILDREN VOTING

20.	This ground of the petition alleges failure to conduct polling at designated places, delayed polling, double-voting and underage voting affecting hundreds of votes at a number of villages and polling areas, including Koike, Forogo, Karisokra, Snopas, Nimbla, Gunj, Bokamamap, and Gundai.

21.	These allegations are entirely without merit and unsubstantiated. The evidence of the petitioner's witnesses which was intended to support the allegations was vague and unconvincing and not credible. Ground 4 is entirely dismissed.

GROUND 5: ILLEGAL PRACTICES, ERRORS AND OMISSIONS AT THE COUNTING CENTRE

22.	This ground of the petition alleges errors and omissions at the counting centre. It is alleged that 3,000 to 4,000 votes belonging to the petitioner were improperly exhausted or included in the count of votes for the first respondent or other candidates.

23.	These allegations are entirely without merit and unsubstantiated. The evidence of the petitioner's witnesses which was intended to support the allegations was vague and unconvincing and not credible. Ground 5 is entirely dismissed.

RECAP

24.	Two grounds of the petition have been partially upheld. The other two grounds have been entirely dismissed. Through the two grounds partially upheld the petitioner has proven that a series of errors were made in the final stages of the scrutiny extending through to the declaration of the successful candidate and the return of the writ. No illegal practices have been proven to have been committed during the polling or the scrutiny or any other stage of the election. All the errors were committed by election officials including the Electoral Commissioner. The existence of such errors means that the Court should give consideration to granting the relief sought by the petitioner.

SHOULD ANY OF THE POWERS UNDER SECTION 212 OF THE ORGANIC LAW BE EXERCISED?

25.	The question of whether to grant the relief sought by the petitioner on the ground that errors have been committed by election officials must be determined by reference to three key provisions of the Organic Law, Sections 212 (powers of court), 217 (real justice to be observed) and 218 (immaterial errors not to vitiate election).

Section 212 states:

(1)	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.

(2)	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3)	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(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.

Section 217 states:

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

Section 218 states:

(1)	Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2)	Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

26.	It would not be proper to declare under Section 212(1)(f) that the first respondent was not duly elected (nor would it be proper to make declarations under Sections 212(1)(g) or (h)) as that would amount to 'avoiding' the election, which Section 218(1) provides can only be done if the errors affected the result of the election; and here it cannot be said that the errors affected the result. However, if all that is being sought is an order for a recount the court does not have to be satisfied that the errors that have been found to have occurred affected the result of the election (Maino v Avei [1998] PNGLR 178, Wingti v Rawali (2008) N3286, Lisio v Puana (2008) N3463). The court can order a recount on such grounds as it thinks just and sufficient (Section 212(3)) provided that it is guided by the substantial merits and good conscience of the case (Section 217).

27.	I think there are just and sufficient grounds for a recount. The errors made as to the appointment of the two Assistant Returning Officers can rightly be regarded as relatively minor and do not provide good grounds for ordering a recount. However the errors that occurred on 26 and 27 July were very significant, culminating in an irregularly appointed officer conducting the final stages of the scrutiny in the absence of all relevant scrutineers and declaring the result of the election. Form 66B, a tally sheet intended to show the details of distribution of votes and how the final result was determined, was not completed. These errors have called into question the entire scrutiny, the declaration of the result and the return of the writ. I note that Section 21(5) of the Organic Law provides that "the failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election". It is arguable that this means that the errors concerning Mr Apimia's appointment ought to be disregarded. There are two answers to that proposition. First, the failure to publish the notice of Mr Apimia's appointment was not the only error that occurred, it was one of a series of errors. Secondly the failure to publish the notice is not being relied on as a ground for invalidating the election. Ordering a recount is not invalidating the election.

28.	It is noted that a number of allegations have been made against the petitioner during the course of presentation of the first respondent's case. The allegations are irrelevant to this petition and I have refrained from making any findings concerning them.

29.	I consider that the errors that have been proven to have been made can be rectified by a recount. Being guided by the substantial merits and good conscience of this case, real justice will in my view be observed by ordering a recount. I will order that it be conducted within 28 days. The justice of the case dictates that the first respondent not lose his seat, not yet anyway. Whether he retains his seat will turn on the result of the recount.

COSTS

30.	Though the petition is partially successful the large majority of the allegations comprising the grounds of the petition have been conclusively dismissed. In these circumstances it is appropriate and just that the petitioner pay the respondents' costs of the petition.

ORDER

(1)	The petition is partly upheld and partly dismissed.

(2)	Pursuant to Section 212(1)(d) of the Organic Law on National and Local-level Government Elections there shall be a recount of ballot papers in the Usino-Bundi Open electorate for the 2012 general election.

(3)	The Electoral Commission shall conduct the recount and present the result to the National Court on or before 13 June 2013.

(4)	For the avoidance of doubt Mr Anton Yagama remains in office as the member of Parliament for Usino-Bundi Open pending the result of the recount.

(5)	The petitioner shall pay the respondents' costs of the petition on a party-party basis which shall if not agreed be taxed.
 
Judgment accordingly.
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Nikiuma Lawyers : Lawyers for the petitioner
Kuman Lawyers : Lawyers for the 1st respondent 
Harvey Nii Lawyers : Lawyers for the 2nd, 3rd & 4th respondent