N7289

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

EP No. 02 OF 2017

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

AND
IN THE MATTER OF AN ELECTION DISPUTE FOR THE GOROKA OPEN ELECTORATE

BETWEEN
BIRE KIMISOPA
Petitioner

AND
HENRY TUTUWO AME
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Gavara-Nanu J
                            2018:  12 - 15 & 22 March & 25, 26 & 28 May      
   
ELECTION PETITION – Disputed Return – Organic Law on National and Local Level Government Elections; ss. 18, 19, 20, 21 & 149 – Returning Officer – Assistant Returning Officers - Duties and responsibilities – Electoral Commission - Delegated powers and functions.

ELECTION PETITION – Organic Law on National and Local Level Government Elections -–Ballot boxes – Ballot papers to be deposited in designated ballot boxes – Ballot papers deposited in non-designated ballot boxes – Ballot papers invalid and informal.

ELECTION PETITION – Organic Law on National and Local Level Government Elections; ss. 147, 149, 150, 151, 154, 168 & 218 - Errors and omissions  - Scrutiny process – Limited Preferential Voting System – Need to establish absolute majority mandatory - Scrutineers –Duties – Counting officials – Duties – Counting centre – Only authorised officials allowed into the counting centre – Security personnel being allowed into the counting room.

ELECTION PETITION – Organic Law on National and Local Level Government Elections; ss. 217 and 218 – Errors and omissions  – Returning Officer constantly absent from Counting centre during counting – Returning Officer attending to matters unrelated to scrutiny of votes – Regular long periods of absence from the Counting centre – Assistant Returning Officers performing duties of the Returning Officer. 

ELECTION PETITION – Electoral Commission – Limited Preferential Voting System – Awareness - Training workshops for scrutineers and counting officials.      	                                                         
 
Cases cited:

Alfred Manase v. Don Pomb Polye (2008) N3534
Avia Aihi v. The State (No.1) [1981] PNGLR 81
Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633
Ephraim Apelis v. Sir Julius Chan (1998) SC573
Francis Koimanrea v. Alois Sumunda (2003) N2421 
Innovest Ltd v. Hon. Patrick Puraitch and The State (2014) N5949
Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596 
Motor Vehicle Insurance (PNG) Ltd Trust v. James Pupune [1993] PNGLR 370 
Paua v. Ngale [1992] PNGLR 563 
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 
Steven Pirika Kamma v. John Itanu (No.2) (2008) N3261   
The Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd (2009) SC979
Thomas Tumun Sumono v. Father Louis Ambane (1998) N1718

Counsel:

J.Kolo, for the Petitioner
T.Sirae, for the First Respondent
J.Ole, for the Second Respondent

28th May, 2018

1.	GAVARA-NANU J:	The Petitioner was the first runner-up to the First Respondent in the 2017 National General Elections for the Goroka Open electorate with 22, 232 votes. The First Respondent won the election with 24,192 votes.  The declaration was made on 25 July, 2017.  The election was conducted under the Limited Preferential Voting (“LPV”) system.

2.	The petition is brought pursuant to s. 206 of the Organic Law on National and Local-level Government Elections (“OLNLGE”), to dispute the validity of the First Respondent’s election as Member for Goroka Open electorate. 

3.	The grounds of the petition are errors, omissions and illegal practices by the electoral officials viz; the Returning Officer (“RO”), the three Assistant Returning Officers (“AROs”) and the counting officials. The alleged errors and or omissions occurred before and during counting of votes.  The alleged errors and omissions include neglect of duties and responsibilities.  Any errors and or omissions committed by the electoral officials from start of polling to the return of a writ are subject to review by the Courts of Disputed Returns:  Ephraim Apelis v. Sir Julius Chan (1998) SC573.

4.	The Petitioner claims the alleged errors and omissions affected or had the likely effect of affecting the result of the election:  Paua v. Ngale [1992] PNGLR 563; Alfred Manase v. Don Pomb Polye (2008) N3534 and Francis Koimanrea v. Alois Sumunda (2003) N2421. 

5.	The determination of issues before the Court requires proper construction and application of the relevant provisions of the OLNLGE.

6.	Section 3, is the interpretation provision, it defines - “the Returning Officer”, as the Returning Officer of the electorate for which he is appointed.  

7.	Sections 18, 19, 20, 21 and 168 are pertinent to the determination of the issues.       
   
8.	Section 18 provides that the Electoral Commission may delegate all or any of its powers and functions, it also stipulates how the delegated powers and functions may be exercised. The section is in these terms:
	
18.	Delegation.

(1)	The Electoral Commission may, by instrument in writing, delegate to an officer all or any of its powers and functions under this Law (except this power of delegation and any prescribed power and function), so that the delegated powers or functions may be had, exercised and performed by the delegate in relation to such electorate or electorates, or to such matters or class of matters, or to the whole of the country or such part of the country, as is specified in the instrument of delegation.

(2)	Every delegation under Subsection (1) is revocable, in writing, at will.

(3)	No delegation under this Section prevents the exercise or performance of a power or function by the Electoral Commission.

9.	Section 19 sets out the procedure for appointing ROs and states their duties and responsibilities. The section is in these terms: 
	
	19.	Returning Officers.

(1)	The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.

(2)	A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.
(3)	A Returning Officer may, following consultations with the Electoral Commission, seek the assistance of such persons, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or in accordance with this Law remain the functions and powers of the Electoral Commission.

(4)	Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under Subsection (3).

(5)	The Electoral Commission may, on the nomination of a Returning Officer, appoint authorized enrolment agents in a Ward under 	the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.

(6)	Regulations may make further provisions for the duties and responsibilities of authorized enrolment agents appointed under Subsection (5).

(7)	A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.

10.	Section 20 sets out the procedure for appointing AROs and states their powers and functions. The section is in these terms:
	
20.	Assistant Returning Officer.

(1)	Subject to this section, the Electoral Commission may, by notice published in the National Gazette, appoint a person to be an Assistant Returning Officer for a portion of an electorate.

(2)	A person appointed to be an Assistant Returning Officer for a portion of an electorate may, subject to this Law and to the Regulations 	and to the control of the Returning Officer, perform the functions and 	exercise the powers of the returning Officer, in, or in relation to, that portion of the electorate.

(3)	An Assistant Returning Officer shall not be appointed for a portion of an electorate for which less than 100 electors are enrolled.

(4)	Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may be made by the Returning Officer by instrument in writing, and in that case the appointment terminates upon the completion of the election.

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

11.	Section 21 sets out the procedure for appointing officers in urgent cases where a vacancy occurs in the office of a RO or an ARO. The section is in these terms:
  
	21.	Appointment in cases of emergency.

(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.

12.	The other pertinent provisions are ss. 147, 148, 149, 150, 151, 154 and 168. The key provision is s. 168, which sets out the manner in which votes may be counted under the LPV system. The other sections set out the scrutiny process, the procedure for appointing scrutineers and the manner in which scrutiny may be conducted.  The sections are reproduced below.  

		147.	Scrutiny.

		The result of the polling shall be ascertained by scrutiny.

		148.	Counting Centres.
(1)	The scrutiny shall be conducted at such places, to be known 
as "counting centres", as are appointed by the Returning Officer for the purpose.

(2)	The counting centre shall be within the electorate where the election was held.

(3)	Where circumstances make it difficult for the counting centre to be located within the electorate, the Returning Officer may appoint a place outside the electorate to be the counting centre.

		149.	Officers to conduct scrutiny.

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

		150.	Scrutineers at scrutiny.

(1)	A candidate may appoint one or more scrutineers to represent him at the scrutiny, but only one such scrutineer for each candidate may be present in the counting centre at any one time during the scrutiny.

(2)	The appointment of a scrutineer under this Section to represent a candidate at a counting centre—

(a)	shall be made by notice in writing signed by the candidate, or by electronic advice signed by the candidate before it is tendered for transmission, given or sent to the officer who is to conduct, or who is sent to the officer who is to conduct, or who is conducting, the scrutiny at the 	counting centre; and

			(b)	shall specify the name and address of the scrutineer.

		151.	Conduct of scrutiny.

		The scrutiny shall be conducted as follows:—

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

		154.	Scrutiny of ordinary votes in elections.

(1)	In an election the scrutiny shall, subject to the provisions of Divisions 3 and 4 and Regulations be conducted in accordance with the succeeding provisions of this section.

(2)	The electoral officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorized scrutineers as choose to attend and any other person approved by the Returning Officer—

(a)	open all ballot-boxes received from polling places within the electorate; and

(b)	reject all informal ballot-papers, and arrange the unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and

(c)	count the first preference votes given for each candidate on all unrejected ballot-papers; and

(d)	make out and sign a statement (which may be counter signed by the presiding officer, poll clerk or officer present and, if they so desire, by such scrutineers as are present) setting out the number of first preference votes given for each candidate, and the number of informal ballot-papers; and

			(e)	place in a separate parcel all the ballot-papers which 				have been rejected as informal; and

(f)	where an Assistant Returning Officer conducts the scrutiny, transmit the following information, by electronic advice or in some other expeditious manner, to the Returning Officer:—

				(i)	the number of first preference votes given for 					each candidate; and

				(ii)	the total number of ballot-papers rejected as 					informal; and

(g)	seal up the parcels and endorse on each parcel a description of the contents of it, and permit any scrutineers present, if they so desire, to counter-sign the endorsement; and

(h)	where an Assistant Returning Officer conducts the scrutiny, transmit the parcels to the Returning Officer with the least possible delay, together with the statement referred to in Paragraph (d).

(3)	The Regulations may provide for the counting of votes to be done electronically following the opening of the ballot-boxes and after rejecting informal ballot-papers and ballot-boxes not admitted to scrutiny.

13.	Section 168 appears under Division 5 of PART XIV of the OLNLGE which has the heading – THE SCRUTINY.  The heading of Division 5 is - Mode of Determining the Result of the Scrutiny. The section is in these terms:

	168.	SCRUTINY OF VOTES IN ELECTIONS.

		(1)	Subject to this section and the Regulations the result of an 		election shall be determined by scrutiny in the following manner:-

(a)	the Returning Officer shall ascertain the total number of first preference votes given for each candidate;
(b)	the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;
		(c)	if no candidate has received an absolute majority of votes, a 			second count shall be held;
(d)	on the second count the sealed parcels of ballot-papers shall be opened by the Returning Officer, the candidate who has received the 	fewest number of first preference votes shall be excluded and each ballot-paper counted to him shall be counted to the candidate next in order of the voter's preference;
(e)	where a candidate then has an absolute majority of votes he shall be deemed to be elected, but where no candidate then has an absolute majority of votes the process of excluding the candidate who has the fewest votes and counting each of the ballot-papers to the unexcluded candidate next in order of the voter's preference shall be repeated until one candidate has received an absolute majority of votes;
		(f)	the candidate who has received an absolute majority of the 			votes is elected;
(g)	if, in any count, two or more candidates have an equal number of votes and one of them has to be excluded, the candidate who received the lowest number of votes in the immediately preceding count shall be excluded and if the same candidates or some of them received the same number of lowest votes in the immediately preceding count, the candidate who received the lowest number of votes in the count preceding the immediately preceding count shall be excluded and this 	process shall continue as far back as is necessary,
(h)	if, and only if, in the situation referred to under Paragraph (g), there is no further preceding count to determine elimination of candidates on equal votes, the candidate who is lowest on the candidate poster shall be excluded;
(i)	if, in the final count, two candidates have an equal number of votes, the candidate who received the highest number of votes in the immediately preceding count shall be elected and if the same two candidates received the same number of votes in the immediately preceding count, the candidate who received the highest number of votes in the count preceding the immediately preceding count shall be elected and this process shall continue as far back as is necessary; and
(j)	if, in the final count, in a situation referred to in paragraph (i), there is no further preceding count to determine a candidate to be elected, the candidate who is highest on the candidate poster shall be elected.

(2)	Where on any count being conducted in accordance with Subsection (1)(d) or (e), a ballot-paper shows no preference capable, in accordance with this Law, of being counted, in that count, to an unexcluded candidate, that ballot-paper—

		(a)	shall be deemed to be exhausted; and
		(b)	shall be excluded from that count and any subsequent count; 			and
(c)	shall not be taken into account in the calculation of an absolute majority in relation to that count and any subsequent count.
(3)	The Regulations may provide for the scrutiny to be done electronically under such electronic system as approved by the Electoral Commission but which electronic system shall be programmed to follow the scrutiny rules in this section.

(4)	In this section, "an absolute majority of votes" in relation to any count, means a greater number than one-half of the whole number of 	ballot-papers (other than informal ballot-papers and ballot-papers excluded from that count under Subsection (2)).

General comments

14.	It is convenient at this juncture to briefly state the relevant background facts. On 5 July, 2017, the Eastern Highlands Provincial Election Manager, Mr. Steven Gore Kaupa, the RO, AROs and other electoral officials convened a meeting at the National Sports Institute (“NSI”) in Goroka for the candidates for Goroka Open electorate and their scrutineers.  The purpose of the meeting was for the electoral officials to explain to the candidates and their scrutineers how the LPV system worked. The meeting started about 3.00pm and finished about 4.30pm. During the meeting, the participants were given a manual on the LPV system and other election related materials.  The participants were also instructed on the scrutiny process and protocol.   

15.	On 7 July, 2017, another meeting was convened at the NSI for the counting officials only.  In the meeting, the electoral officials explained how votes should be counted under the LPV system. The meeting started about 1.20pm and finished about 4.30pm. 

16.	Those were the only meetings convened by the electoral officials to explain voting under the LPV system to the candidates, their scrutineers and the counting officials.

17.	The counting commenced on 8 July and ended on 25 July, 2017, when the First Respondent was declared winner.

 Evidence 

18.	The Petitioner called eight witnesses, three were his scrutineers, two were scrutineers for two other candidates, and three were employed by the Electoral Commission, one as a counting officer, the other as a sorter of ballot papers or votes and the other as a tally board man.  The Petitioner therefore called five independent witnesses. The First Respondent did not call any witnesses.  The Second Respondent called three witnesses, one was the RO and two were AROs. The witnesses for the Petitioner and the Second Respondent swore affidavits which were tendered in evidence, they also gave oral evidence. 

19.	The exclusion 28 which was the last exclusion was conducted on 25 July, 2017. At that exclusion, candidate Tom Nunue was excluded. The Petitioner’s three scrutineers were present at the counting centre.  There is evidence that the RO was, as in the previous exclusions absent from the counting centre during counting of Tom Nunue’s primary votes either to seek medical treatment or to buy or cook lunch for the counting officials or to attend to “logistical matters”.  The RO was present in the counting centre in the afternoon when an army officer, Captain Allan Awangi entered the counting area and ordered counting to continue because there was mounting pressure and tension outside the counting centre. The Petitioner’s witnesses said the RO wanted to suspend counting but when Captain Awangi ordered counting to continue the RO allowed counting to continue.
 
20.	The lead scrutineer for the Petitioner, Justin Kerevo also deposed in his affidavit sworn on 12 September, 2017, that one other soldier and three policemen, one of whom was Joseph Puang who was attached to CID  Section at Goroka Police Station, who was fully armed also entered the counting centre. The Petitioner’s witnesses said the policemen physically handled the ballot papers. This evidence had not been denied or disputed by the Respondents.   

21.	The Petitioner’s witnesses who attended the meeting on 5 July, 2017, at the NSI told the Court that the meeting was not well attended by candidates and their scrutineers because there was no public notice or awareness about the meeting.  They also told the Court that the LPV system was not explained properly at that meeting.  They claimed that even the materials on the LPV system, including a manual were not properly explained to them.   

22.	The Petitioner’s witnesses said there was lot of confusion among the scrutineers and counting officials about the LPV system during counting.   That resulted in errors being made by the counting officials during counting.

23.	It was also claimed that difficulties in understanding the LPV system was compounded by the RO walking in and out of the counting centre at regular intervals at crucial times and being absent in those times for long periods. 

24.	The Petitioner’s witnesses told the Court that at exclusion 28, Tom Nunue’s primary votes were counted after the second and third preference votes collected from excluded candidates were counted and distributed between the First Respondent and the Petitioner. They said the primary votes should have been counted before the second and third preference votes in order to establish the absolute majority.  

25.	All three witnesses for the Second Respondent in their respective evidence in chief agreed with the Petitioner’s witnesses that primary votes had to be counted first to establish absolute majority, and if absolute majority was not established then second preference votes had to be counted, if absolute majority still could not be established then the third preference votes had to be counted.  They later changed their stance and said that primary votes did not have to be counted first. The ARO Jurere Marco in cross-examination emphasized that had Tom Nunue’s primary votes been counted first, it would have caused “chaos”.  He said there was no “demarcation” between primary votes and second and third preference votes as to their value and significance.  He said, it is “not mandatory” that primary votes be counted first.  He said there was nothing wrong in the second and third preference votes being counted before the primary votes.

26.	The Petitioner’s scrutineer Justin Kerevo in his affidavit deposed to two other incidents which he claims amounted to errors and omissions by the electoral officials. First incident related to 99 ballot papers being declared informal by three female lawyers from the Solicitor General’s Office. The three lawyers were among the counting officials in the counting centre, they were allowed to physically handle ballot papers, during which they declared the 99 ballot papers informal without giving the scrutineers an opportunity to see the ballot papers and comment on them. The second incident happened on or about 16 July, 2017, when counting for Goroka Open electorate was suspended; during the suspension the electoral officials retrieved 775 ballot papers for Goroka Open electorate which were mistakenly deposited in the Eastern Highlands Regional electorate ballot boxes. The 775 ballot papers were counted for the candidates for the Goroka Open electorate for whom the ballot papers were marked. The ballot papers were from Ginitoka Primary School polling station booth.   This evidence is corroborated by the RO and the ARO George Akare in their respective affidavits sworn on 25 October, 2017.  

 27.	The witnesses for the Second Respondent told the Court that LPV system was fully explained during the meetings held at the NSI on 5 and 7 July, 2017. They said during the meetings they also allowed question time. 

28.	The AROs conceded that the RO was absent from the counting centre mostly when primary votes were being counted but they said whenever RO was absent the AROs were able to perform his duties so the things that RO was supposed to have done were all done. They claimed that no errors or omissions occurred as a result of the RO being absent from the counting centre. 

29.	The RO told the Court that the total period of his absence from the counting centre would not have been any more than one and a half hours each week during the two weeks of counting. However, this was contradicted by ARO Jurere Marco. In any event, the RO also admitted both in his oral and affidavit evidence that he was absent from the counting centre during counting but the AROs were able to do his work. He explained that he was absent from the counting centre to seek medical treatment and to attend to logistical matters and to cook or to buy lunch for electoral officials. He said he had to get medical treatment because he was quite sick. He said he was put on drips and was taking prescription tablets. He was either going to be admitted at the ICU or was admitted at the ICU but he had to leave the hospital “by force” to perform his duties.
 
30.	The RO also told the Court that he invited Captain Awangi into the counting room as officer in-charge of security to ask him whether counting could continue given that it was the last day of counting and that there was tension outside the counting centre.  He said he allowed counting to continue after Captain Awangi granted his permission.

Submissions

31.	Mr. Jason Kolo of counsel for the Petitioner submitted that there were glaring errors and omissions by the RO, the AROs and the counting officials which affected or were likely to affect the result of the election.  

32.	It was submitted that the meetings conducted by the electoral officials on 5 and 7 July, 2017, were not long enough for the electoral officials to fully explain the LPV system.  The meeting held on 5 July, 2017, only lasted about one and half hours and the meeting held on 7 July, 2017 only lasted about three hours. It was submitted that lack of awareness and training, especially for the counting officers on the LPV system was the main contributing factor for the counting officials being confused and making errors during counting.    

33.	It was submitted by Mr Kolo that at the last exclusion which was exclusion 28, (in which candidate Tom Nunue was excluded), the electoral officials breached mandatory requirements of s. 168 of the OLNLGE.  It was submitted that Tom Nunue’s box No.1 which contained his primary votes was opened and counted after Tom Nunue’s box Nos. 2 and 3 which contained second and third preference votes collected from excluded candidates were counted.  It was argued that box No.1 should have been counted first to establish absolute majority as required under s. 168 of the OLNLGE.  It was argued that this error resulted in the Petitioner being denied more than 1,800 second preferential votes from Tom Nunue’s primary votes.  The error also resulted in the First Respondent collecting more votes from Tom Nunue’s third preference votes from box Nos. 2 and 3. The total number of votes from these two boxes was 9, 664 from which the First Respondent collected 3,407 whilst the Petitioner collected 2,245 votes.

34.	The box No. 1 for Tom Nunue containing primary votes contained total of 7, 944 votes from which the Petitioner collected 1800 second preference votes. It was submitted that had Tom Nunue’s 7,994 primary votes been counted first, the First Respondent would have collected only 550 votes thus reducing his total number of votes by 2, 757 which would have left him with the final total number of votes at 21,435. The Petitioner would have collected 1,800 votes thus reducing his total number of votes by 445, and thereby giving him final total number of votes at 21,787, thus possibly giving him the absolute majority and win the election. 

35.	The Respondents argued that the Petitioner’s witnesses misunderstood the LPV system, hence their argument that Tom Nunue’s primary votes from box No. 1 had to be counted before the second and third preference votes from boxes Nos. 2 and 3.  Mr Ole of counsel for the Second Respondent argued that requirements of s. 168 relate to the voters’ preferences in voting. It did not mean primary votes had to be counted before the second and third preference votes collected from the excluded candidates.  Mr Ole argued that what is of essence is that s. 168 was not breached. He submitted that there was nothing wrong with Tom Nunue’s second and third preference votes from box Nos. 2 and 3 being counted before the primary votes.

36.	Mr Sirae of counsel for the First Respondent relied on the evidence of ARO Jurere Marco, in which it was stated that Tom Nunue’s three boxes containing primary votes and second and third preference votes were emptied onto a sorting table and were counted according to the LPV system.

37.	As to the meetings that were held on of 5 and 7 July, 2017, held at the NSI, the Respondents’ lawyers argued that the electoral officials fully explained the LPV system.  

38.	In regard to the absence of the RO from the counting centre during counting, the Respondents’ lawyers argued that it did not create any errors and omissions because the AROs were able to perform the RO’s duties which they argued is permitted by s. 149 of the OLNLGE.  

39.	It was also argued that the presence of the security personnel in the counting centre did not constitute an error, but if it did, it was an immaterial error and it did not affect the result of the election.     
     
40.	On 25 and 26 May, 2018, the Court reconvened for a special hearing to give the parties an opportunity to address the Court on the issues of 99 ballot papers which were declared informal by the three female lawyers from the Solicitor General’s Office during counting and the 775 ballot papers that were retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidate. These issues were before the Court through the affidavits of the witnesses for both the Petitioner and the Respondents but were not addressed by counsel in their respective submissions during the trial held at Goroka.  

41.	Mr Kolo submitted that the two issues had been sufficiently pleaded in the Petition and the Court has power to consider them and make appropriate determinations on them.  He argued that allowing the three lawyers by the electoral officials to count and declare the 99 ballot papers informal was an error given that they were not counting officials. He also argued that counting of 775 ballot papers retrieved from the Eastern Highlands Regional electorate ballot boxes for the Goroka Open electorate candidates was an error because they were not taken and counted from the ballot boxes for Goroka Open electorate.  Both Mr Sirae and Mr Ole argued that the issues have not been pleaded in the Petition therefore the Court cannot consider them. Mr Ole also argued that the 99 ballot papers purportedly declared informal by the three lawyers did not constitute an error because the lawyers were in the counting room as legal advisors for the Electoral Commission, but if they constituted an error, then it was immaterial. He further argued that there is no evidence on what happened to the ballot papers. 

Reasons for decision

42.	I find the alleged errors and or omissions by the electoral officials relating to the meetings held at the NSI on 5 and 7 July, 2017 and counting have been sufficiently pleaded in the Petition and I will consider and address each of them. There is no doubt in my mind that the electoral officials did not allow enough time in those meetings for them to explain the LPV system and related election materials to the candidates, their scrutineers and the counting officials. The system is quite complicated and it is not easy for ordinary people to understand, it needed detailed and thorough explanation, which could have been done through proper awareness and training workshops over longer periods.  I find the lack of awareness and training on the system an error and omission by the electoral officials. The LPV system is the integral part of an election and it needed to be properly understood by those who were using it, more so the counting officials and scrutineers. In this case, it is plain that awareness and training on the LPV system were given less priority by the electoral officials.

43.	It was not surprising that some of the scrutineers were not aware of the meeting held on 5 July, 2017, and they did not attend it. Their lack of understanding of the LPV system was critical because it was bound to affect their ability to provide proper scrutiny of votes for their respective candidates. 

44.	There is compelling evidence that the RO was absent for long periods from the counting centre at regular intervals, especially during counting of primary votes.  I do not believe the maximum or the total period he was absent from the counting centre was one and a half hours per week for the two weeks of counting.  He himself appeared unsure of his claim and was contradicted by ARO Jurere Marco.  I have observed the RO closely while giving evidence and I found that his demeanour was far less convincing. His evidence was punctuated by long pauses and he struggled to answer critical questions put to him in cross-examination.  I do not think he was totally honest and truthful in his evidence.

45.	He said the times he was absent from the counting centre he was either out buying or cooking lunch for the counting officials or attending to logistical matters, apart from seeing doctors for medical treatment. Buying or cooking food for the electoral officials and attending to logistical matters were outside of RO’s delegated responsibility which was to conduct scrutiny at the counting centre. Thus, his absence from the counting centre in my view amounted to a fundamental error and omission.

46.	The absence of the RO from the counting centre to attend to matters which were unrelated to the conduct of scrutiny was in my view a clear breach of s. 149 of the OLNLGE. This section purports to state that in the absence of the RO (from the counting centre) an ARO may conduct the scrutiny. Thus the Respondents argued that the absence of the RO from the counting centre did not amount to an error or omission because the AROs were able to perform the functions of the RO during his absence. 

47.	In my view, s. 149 has been misconceived by the Respondents. The conduct of scrutiny is the core function of a RO and as a matter of statutory interpretation, s. 149 has to be read together with other relevant provisions of the OLNLGE to find its true meaning and context: The Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd (2009) SC979. Pursuant to s. 18 of the OLNGE the powers and functions of RO are delegated by the Electoral Commission, those delegated powers and functions cannot be sub-delegated. To do so would amount to a clear breach of s. 18. In my view what is envisaged by s. 149 is situations where RO may be absent from the counting centre due to an emergency such as illness or such other legitimate and lawful reasons. In such situation the Electoral Commission must authorise an ARO to conduct scrutiny in the absence of the RO. 

48.	Section 149 in my view does not envisage situations where RO constantly left the counting centre to look for lunch or even to attend to logistical matters as happened in this case. Such conduct would amount to neglect of duties and responsibilities. In my view, it is implicit under the terms of s. 149 that the Electoral Commission must know or be made aware of who is performing the RO’s delegated responsibility of conducting scrutiny. In this instance, the RO according to the evidence was “constantly” leaving the counting centre during counting to look for lunch and or to attend to logistical matters without the knowledge and authority of the Electoral Commission, thus it was conduct amounting to an error and omission by the RO.  Those tasks were outside of RO’s delegated duties and responsibilities. I have no doubt that such conduct by the RO was against the spirit of the OLNLGE and it undermined the integrity of the scrutiny process hence the election.
         	           
49.	Logistical matters were for the Provincial Election Manager and his staff to attend to. Such matters could include supply of stationery and other things needed for the proper and smooth conduct of the scrutiny.  The Provincial Election Manger and his staff could also provide meals for the electoral officials if need be. 

50. 	In any event, the RO had not explained the types of logistical matters he was attending to.  He also said, he was absent from the counting centre to receive medical attention.   He said he was put on drips at the hospital and was on prescription tablets but he failed to produce evidence to support these claims. He claimed he was either going to be admitted at the Intensive Care Unit or was admitted but left the hospital “by force”.  However there is no evidence, such as medical reports to support this claim.

51.	There is also evidence from the lead scrutineer for the Petitioner Justin Kerevo that police personnel who were part of the security entered the counting centre and spoke to counting officers and physically handled ballot papers. This evidence has not been denied by the Respondents and I accept it. This was another error and omission by the electoral officials, because security personnel were not authorized to be inside the counting area. Allowing security personnel into the counting area defeated the whole purpose of issuing ID cards to the candidates, scrutineers, and counting officials. It also affected the integrity of the scrutiny process and the election as a whole. 

52.	Obviously, the above errors and omissions may not have affected the result of the election in a clear and direct way but they need to be considered together with other errors and or omissions which either affected or would have had the likely effect of affecting the result of the election: Steven Pirika Kamma v. John Itanu (No.2) (2008) N3261.   

53. 	 A valid vote is fundamental to a free and fair election and it underpins the integrity and propriety of an election. The scheme of the OLNLGE ensures that this requirement is safeguarded. Hence s. 118 (1) (b) among other things provides that ballot papers be deposited into the ballot boxes provided by the ROs for the electorates they are appointed. Section 122 provides that ballot boxes be provided to the polling booths and they must be secure for the ballot papers to be deposited and be cleft so that, when the cleft is closed, no ballot papers or other matters or things can be deposited or placed in the box or withdrawn from it.  Section 130 (a) provides that before the first ballot paper is placed in an empty ballot box, the RO, or if he is not present, the presiding officer, shall exhibit the ballot box empty, and shall then securely fasten its cover. Section 138 prescribes the manner in which a ballot paper may be validly marked (by a voter) and deposited into a ballot box. Section 154 (2) (a) and (b) provide that an electoral officer conducting the scrutiny shall, in the presence of a presiding officer, open all ballot boxes received from polling places within the electorate, and reject informal ballot papers, and arrange the unrejected ballot papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate.  

54.	The above requirements are mandatory. The aim of these requirements is obvious it is to prevent possible fraud and to ensure that elections are transparent, free and fair. The clear legislative intent in these provisions is that the votes counted must be from correct and properly designated ballot boxes and that a vote is not a vote unless it is placed in such a ballot box. Furthermore, only proper ballot boxes are used to deposit votes and then opened for those votes to be counted. These requirements were breached when the electoral officials counted the 775 ballot papers that were retrieved from the Eastern Highlands Regional ballot boxes for the Goroka Open electorate candidates.

55.	In regard to the three female lawyers from the Solicitor General’s Office being allowed by the electoral officials into the counting area and allowing them to count and declare the 99 ballot papers informal without the scrutineers seeing and checking those ballot papers, was an error. However, evidence is unclear as to whether those 99 ballot papers were distributed and counted for the candidates. Thus, I am unable to determine whether they would have had the effect of affecting the result of the election. 

56.	In regard to exclusion 28 in which Tom Nunue was excluded, I accept the Petitioner’s argument that a fundamental error occurred when Tom Nunue’s primary votes from his box No.1 were counted after the second and third preference votes from his box Nos. 2 and 3 which he collected from the excluded candidates were counted and distributed between the First Respondent and the Petitioner.  That manner of counting was contrary to the instructions issued by the Electoral Commission in the Information booklet regarding how votes may be counted under the LPV system, which is Annexure “D” to Justin Kerevo’s affidavit sworn on 19 September, 2017. The instructions clearly state that the first preference votes (from the primary votes) to be counted first to establish absolute majority; if absolute majority cannot be established from the first preference votes then the second preference votes to be counted to establish absolute majority and if absolute majority still cannot be established then the third preference votes to be counted. This is a key requirement under the LPV system. In fact, these instructions were based on the requirements of s. 168 (a) to (f) of the OLNLGE. So the manner in which Tom Nunue’s votes were counted breached s. 168 of the OLNLGE.

57. 	It appears to me that the Second Respondents’ witnesses’ claim and arguments advanced by the counsel for the Respondents that primary votes did not have to be counted first was really to justify and defend the manner in which Tom Nunue’s votes were counted.

58.	The evidence by the Petitioner’s witnesses is that had Tom Nunue’s primary votes totalling 7,944 been counted first, the Petitioner would have collected 1800 second preference votes and the First Respondent would have only collected 550 votes. This evidence has not been challenged by the Respondents and I accept it: Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633.  It follows that the First Respondent’s total number of votes would have been reduced by 2,757 which would have left him with the final total number of votes at 21,435. After collecting 1, 800 votes (from Tom Nunue’s primary votes) the Petitioner’s total number of votes would have been reduced by 445 thus giving him the final total number of votes at 21,787, thus possibly giving him the absolute majority and the winning margin to win the election: Alfred Manase v. Don Pomb Polye (supra). 

59.	The Respondents’ counsel told the Court that the votes from Tom Nunue’s three boxes were all emptied on the sorting table mixed and counted according to the LPV system. They argued that there was no error in counting this way. There are two problems with this argument. First, the Second Respondents’ witnesses all agreed in their oral and affidavit evidence that primary votes should be counted first, before they changed their stance. Thus not only the Respondents’ witnesses contradicted themselves but they also contradicted their lawyers. Second, and more importantly the arguments are directly contrary to the mandatory requirements of s. 168 and the LPV system viz; that an absolute majority be established first from the primary votes as a necessary criteria for exclusion of a candidate. This can only be achieved by counting the primary votes first. The Respondents witnesses also conceded that the second and third preference votes for Tom Nunue from box Nos. 2 and 3 were counted before the primary votes from box No.1. There is therefore clear evidence that the LPV system and s. 168 were breached at exclusion 28.

60.	 Also for the reasons given, I find counting of 775 ballot papers retrieved from the Eastern Highlands Regional electorate ballot boxes, for Goroka Open electorate candidates by the electoral officials was a fundamental error: Thomas Tumun Sumono v. Father Louis Ambane (1998) N1718.  I also find that the 775 ballot papers (votes) also either affected or would have had the likely effect of affecting the result of the election.
         
61.	That said, I consider the evidence from the RO and the AROs regarding how counting was done, lack weight and credibility because none of them was directly involved in actual counting of votes. They could not give direct evidence especially of how Tom Nunue’s votes were counted. The Respondents should have called sorters, counting officers and other independent witnesses including the scrutineers for the First Respondent who were involved in counting.  The evidence of the RO and the AROs in that regard were largely, if not, all based on assumptions, especially in regard to exclusion 28. In Steven Pirika Kamma v. John Itanu (No.2) (supra), my brother Hon. Justice Kandakasi was faced with a similar problem and he expressed similar sentiments. His Honour said:

“Once these errors and omission became apparent and established, it was incumbent upon the Electoral Commission to call the person or persons responsible to explain these errors and omissions and provide through them a satisfactory and reasonable explanation for errors and omissions. Instead of doing that, the Electoral Commission called only the Returning Officer and his assistant.  They did not personally make the entries but someone else did, who they did not identify. Sam Roronga the Assistant returning officer attempted to provide an explanation but since he was not the person making the relevant entries, his testimony is only an interpretation of what the record shows and or should read and has thus, not given the relevant and appropriate evidence bringing out the relevant facts but only is opinion”.

62.	The claims by the Petitioner regarding the manner in which counting was conducted at exclusion 28 which affected or had the likely effect of affecting the result of the election have in my view been sufficiently pleaded in paragraph 3 of the Petition: Francis Koimanrea v. Alois Sumunda (supra), Paua v. Ngale (supra) and Alfred Manase v. Don Pomb Polye (supra).  

63.	As to the involvement of the three lawyers to count and declare 99 ballot papers as informal and the counting of the 775 ballot papers retrieved from the Eastern Highlands Regional electorate ballot boxes for the Goroka Open electorate candidates, although they may not have been specifically pleaded, I find that they have been sufficiently pleaded as errors and omissions.  But if I am wrong in this view, these issues have been raised by the witnesses in their evidence and are before the Court.  No objections have been raised by the Respondents against the evidence and issues relating to the evidence have been litigated by the parties. Thus the Respondents cannot now hark back at lack of pleadings regarding these issues. This is a general principle applicable to pleading and litigation whether in an ordinary civil suit or in an election petition:  Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596; Motor Vehicle Insurance (PNG) Ltd Trust v. James Pupune [1993] PNGLR 370 and Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694.   Thus the Court is entitled to make appropriate findings on them. 

64.	Furthermore, the parties having allowed the evidence to be received by the Court and litigated the issues the Court can in the exercise of its inherent powers under s. 155 (4) of the Constitution make appropriate orders so as to protect and enforce the primary right of the Petitioner as conferred by law which is for the Court to make appropriate determinations on the legality of those votes and to do justice in the case. 

65.	Moreover, given my finding that the electoral officials have acted in breach of various provisions of the OLNLGE, I cannot ignore those breaches. This is a court of law and it has a duty to deal with such breaches according to law.  Avia Aihi v. The State (No.1) [1981] PNGLR 81; Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 and Innovest Ltd v. Hon. Patrick Pruaitch and The State (2014) N5949.      

66.	Forms 66A and 66B were compiled by the Petitioner’s lead scrutineer, Justin Kerevo and certified by the RO, an ARO and the Petitioner’s scrutineers. These Forms are annexed as Annexure “B” and “C” to Justin Kerevo’s affidavit. 

67.	I am required by the OLNLGE under s. 217 to be guided by the substantive merits of the case and good conscience, without regard to legal forms or technicalities or whether the evidence before the Court is in accordance with the law of evidence or not.

68.	Thus, having regard to the spirit and the intent of s. 217, I consider that the requirements of s. 168 (1) (a) to (f) of the OLNLGE which are incorporated in the Information booklet issued by the Second Respondent on the LPV system, must guide me in my decision. Adopting this approach, I find that the errors and omissions by the electoral officials discussed above including those made at exclusion 28 affected or would have had the likely effect of affecting the result of the election, which was the declaration on 25 July, 2017, by the RO that the First Respondent as the winner of Goroka Open electorate: Thomas Tumon Sumono v. Father Louis Ambane and The Electoral Commission of Papua New Guinea (supra) and Steven Pirika Kamma v. John Itanu (No.2) (supra). 

69. 	For the foregoing reasons, the Court grants all the relief sought by the Petitioner in the Petition. The Court therefore makes following Orders:-

1.	The Petition is upheld.  

2.	The 775 ballot papers retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidates are declared informal.

3.	Pursuant to s. 212 (1) (d) of the OLNLGE, there shall be a recount of votes casted for the Goroka Open electorate in the 2017, National General Elections. 

4.	The Second Respondent shall conduct the recount of votes from the First (1st) exclusion to Twenty Eighth (28th) exclusion, both manually and electronically, taking also into account the 775 informal votes which were retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidates for whom those ballot papers were marked.  

5.	The recount of votes shall concern all the ballot-papers casted in favour of candidate Tom Nunue, which were placed in the container (box) marked as Tom Nunue No. 1 with inner seal No. 574555 containing 7,944 Primary Votes together with 9,664 exhausted votes contained in containers (boxes) marked 	Tom Nunue No.2 with inner seal 296066 and Tom Nunue No.3 without inner seal number.

6.	The ballot papers contained in these respective containers (boxes) shall be held in custody and control of the Eastern Highlands Provincial Police Commander and none other, until handed over to the custody and control of the electoral officer duly appointed to conduct the recount of votes.

7.	The Second Respondent and its officials who should come from outside of Goroka shall conduct the recount of votes under the supervision of the Registrar or the Deputy or an Assistant Registrar of the National Court.

8.	The Registrar of the National Court shall present the report of the recount duly certified by the Returning Officer appointed specifically for the recount to the National Court in Goroka within seven (7) days after the completion of the recount. 

9.	The Second Respondent shall pay the Petitioner and the First Respondent’s costs of and incidental 	to this Petition which are to be taxed, if not agreed.

10.	The Petitioner shall be entitled to the refund of the security deposit of K5,000.00 held at the National Court Trust Account.

Orders accordingly.

________________________________________________________________         
Kolo & Associates Lawyers: Lawyers for the Petitioner
Sirae & Co. Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent