Bawa v Parkop [2018] PGNC 208; N7297 (15 June 2018)

N7297

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP Nos. 57 & 61 of 2017 (CONSOLIDATED)

IN THE MATTER OF DISPUTED RETURN FOR THE NATIONAL CAPITAL DISTRICT PROVINCIAL SEAT

BETWEEN:
ANDY BAWA & MICHAEL KANDIU

First Petitioner & Second Petitioner

AND:
HON. POWES PARKOP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Higgins, J

2018: 15^th June

ELECTION PETITIONS – claim that election declared before leading candidate attained an absolute majority – engagement of s.217 and 218 of Organic Law on National and Local Level Government Elections – whether result of election likely to be affected thereby – no reasonable likelihood thereof – Petitions fail

OBJECTIONS TO COMPETENCY – Test whether factual allegations if proved would render election result unsafe and defective – different result unlikely - objections upheld

Cases cited:

Ludger Mond v. Jeffery Nape N2318
Marabe v. Tomiape [2006] PGSC 6
Okuk v. John Nilkare [1983] PNGLR 28
Wingti v. Olga [2016] SC REV. (EP) NO. 1 OF 2015
Yali v. Yama [2018] PGNC 56; N7145

Counsel:

Mr. C. Mende, for the First Petitioner
Mr. P. Korowi, for the Second Petitioner
Mr. T. Dawidi, for the First Respondent
Ms. R. Kukari, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY

15^th June, 2018

1. HIGGINS J: This is the hearing of objections to the competency of two electoral petitions each disputing the declaration of the National Capital District Provincial Seat in favour of the First Respondent, the Hon. Powes Parkop as the member, and hence Governor, for the National Capital District Regional seat. In each case, the Second Respondent is the Electoral Commission of Papua New Guinea (The Electoral Commission).

2. The first Petition is that of Mr. Andy Bawa (EP No. 57 of 2017) the declared runner-up, his petition alleges that the final exclusion no. 35, led to the First Respondent being declared the winner.
   
3. The first complaint is that the exclusion process (elimination of the candidate with the least number of votes and subsequent distribution of his/her next preferences) occurred up to the 35^th exclusion without “quality checks’, despite a protest from a scrutineer for Mr. Bawa, Mr. Kilata (also an attesting witness to his petition).
   
4. The polling numbers then reported by the Provincial Returning Officer (PRO), were, First Respondent 54, 870 votes. Mr. Bawa had 28, 025 votes. The absolute majority, calculated by the PRO, was 54, 865 votes hence, the First Respondent exceeded that figure by 5 votes. Mr. Bawa was the runner up. Mr. Bawa complains, first of “discrepancies” being the distribution at the 32^nd exclusion of 8,088 votes from candidate Mr. Noel Anjo. That distribution was, he alleges:
   

Powes Parkop 1, 035

Andy Bawa 1, 496

Michael Kandiu 1, 180

Robert Agen 461

Paul Paraka 360

Bakel Ono 88

Exhausted 3, 221

Total 8, 088
(The total of those votes as stated, is 7, 818 not 8, 088)
The distribution was allegedly of 8, 088 votes.

5. The next complaint relates to the 35^th exclusion. That of Mr. Robert Agen. The distribution was, it is alleged, verbally declared as:

Powes Parkop 2, 359

Andy Bawa 1, 702

Michael Kandiu 1, 681

Exhausted 6, 594

Total Remaining valid votes 109, 768

Absolute majority 54, 885

The final tally sheet, however, recorded

Powes Parkop 54, 870

Exhausted 6, 594

Total allowance

Ballot papers 109, 772

Absolute majority (50% + 1) 54, 864 votes (the figure for the majority is in fact, mathematically, 54, 887)

6. On the declared figure, Mr. Parkop exceeded the absolute majority by 6 votes.
   
7. On the recorded figures, the First Respondent was 17 votes, not 15 as alleged in the petition, short of an absolute majority.
   
8. However, the allegation is that the Provincial Returning Officer declared the result incorrectly by 15 votes, having declared incorrect figures at exclusion 32, contrary to ss151(c) and 168 of the Organic Law and in addition to the mathematical errors referred to in relation to exclusion 35.
   
9. Mr. Bawa, therefore, seeks a recount.
   
10. It is important to note that at this stage it is not relevant to ascertain how those alleged errors occurred or whether the figures were actually declared as alleged. The question is whether on the facts alleged, if proved, the relief sought may be granted.
    
11. The Notice of Objection of the Second Respondent points out that the errors set out fail to lead to any clear ground to challenge the declared result.
    
12. In this respect, s. 218 of the Organic Law is relied upon. That is:
    

“(i) Subject to subsection (2) an election shall not be avoided on account of a delay in the declaration of nominations, 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.”

13. The “result of the election” refers, obviously enough, to the declaration of the winning candidate. An omission or error in ascertaining or declaring a runner-up or the order of exclusion of candidates is not something that, per se, affects, or is likely to affect, the result of the election.
    

14. The First Respondent’s Notice of Objection is in similar, though not identical terms.

15. At the outset, it should be noted that if an error or omission is sufficiently identified, it is not incumbent on a petitioner to allege how or why it occurred. The question is whether or not that which is alleged constitutes a material error.

16. Also relevant is s. 217:

“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.”

17. As the title to the Section says: “real justice is to be observed.”

18. “Real Justice” in this context is not, of course, confined to the interests of candidates. It embraces the Second Respondent and, most relevantly, the electors.

19. These issues have been addressed ably and comprehensively by all counsel.

20. Mr. Bawa has alleged clearly enough, in my view, those errors in mathematical calculations of votes cast and allocated which may have occurred.

21. The approach to such allegation of error is succinctly stated in Marabe v. Tomiape [2006] PGSC 6; Wingti v. Olga [2016] SC REV. (EP) NO. 1 OF 2015:

[42] “......It is necessary to plead how the errors or omissions on the part of electoral officials are material as (sic) such that the result of the election is likely to be effected (per Murray, J).”

22. In some cases that conclusion may be self-evidently apparent as, for example, where which of the final three candidates to be excluded could result in the election of either of the remaining two, not as a mere possibility, but as a real possibility. See also re An Election Petition for the Tari – Pori Open Electorate; Marabe v. Tomiape [2006] PGSC 6; SC 827.

23. In that case, the Returning Officer allegedly counted votes absent the relevant returns and forms. Their Honours commented:

“...... we cannot see that the apparent breach ..... by the presiding officer on the Returning Officer meant that the result of the election was in any way in doubt.”

24. In the present case, the allegations by Mr. Bawa do not demonstrate any link between the alleged error and the final result.

25. At best, for the Petitioner, the Provincial Returning Officer declared the election result 6 votes before an absolute majority was reached. However, if the lowest scoring candidate, according to the figures alleged by Mr. Bawa, had been excluded, it is impossible to conclude that any other result than the election of the First Respondent could have been achieved.

26. Indeed Mr. Bawa’s counsel was obliged to concede that.

27. It follows that the Petition discloses no case, even if supported by evidence to support the facts it alleges.

28. It was also objected that attesting witnesses failed to sufficiently state their addresses being stated as “Badihagwa Secondary School Hanuabada NCD” and “Morata 2 Settlement, Port Moresby [NCD]”.

29. In the absence of evidence I am not satisfied that those addresses are manifestly inadequate.

30. Possible irregularity of service of the Petition was abandoned as a ground of objection.

31. It follows, however, that the Petition of Mr. Bawa must be dismissed on the simple ground that the case he pleads, even if proved, would not suffice to invalidate the declared result of the election. The Petition is, therefore, fundamentally flawed.

32. I turn now to the Petition of Mr. Michael Kandiu (no. 61 of 2017).

33. The first feature to note is that it differs from Form 1 in the Election Petition Rules of 2017 in that it pleads the grounds for challenge to the election before, instead of after, the facts on which the Petitioner relies.

34. The purpose of a prescribed form is to ensure that all required information is collated so that the Court and other parties know clearly and completely the case put forward by the Petitioner. It does not follow, for example, that misspelling of words or an obvious accidental omission will require a finding of incompetence of the petition. The want of form, in other words, must be material judged against the purpose of the form.

35. In the present case, whilst it can hardly be regarded as good legal drafting to depart from a prescribed form, the transposition of these two sections of the prescribed form is clearly immaterial. This ground of objection is dismissed.

36. The Petition alleges, by way of “Background” that the First Respondent was declared elected with 54, 870 votes, the First Runner Up was Mr. Andy Bawa, allegedly polling 28, 085 votes, the second was Mr. Kandiu, allegedly polling 26, 785 votes. The absolute majority was declared by the Provincial Returning Officer to be 54, 848 votes. Figures initially declared by the Provincial Returning Officer (Verbally) allegedly allotted 54, 848 votes to the First Respondent.

37. Mr. Kandiu’s petition then complains of the absence of the officials referred to in Sections 147, 151 and 154 of the Organic Law. It may be that this breach could explain alleged discrepancies. However, it could not otherwise be causative of an erroneous result being declared. It is alleged that 19, 727 votes were thus admitted without scrutiny. There is no allegation that any particular vote or votes were erroneously counted or allocated.

38. The Petition then alleges that, at elimination 34, candidate Paul Paraka’s next preferences were distributed allegedly resulting in counts as follows:

Powes Parkop 52, 331
Andy Bawa 26, 383
Michael Kandiu 25, 192
Robert Agen 12, 475
Exhausted 4, 610
Absolute Majority 58, 162

39. The next elimination, it is alleged, was that of Mr. Robert Agen. It may be noted that the quoted figures do not add up to an absolute majority of 58, 162 as cited. It should have been, if the constituent figures were accurately cited, 60, 496. These were figures allegedly “called” by an electoral officer.

40. The figures posted are alleged to have shown Mr. Agen’s votes being distributed as follows:
(Total Progressive)

Powes Parkop 2, 514 54, 845
Andy Bawa 1, 290 27, 673
Michael Kandiu 2, 057 27, 249
Exhausted 6, 627
Absolute Majority 54, 848

If the underlying figures were accurate the absolute majority should be 54, 884.

41. The Provincial Returning Officer, after a delay of 2 hours, posted figures on the Tally Board showing distribution as follows:

(Total Progressive)

Powes Parkop 2, 539 54, 870
Andy Bawa 1, 702 28, 085
Michael Kandiu 2, 057 26, 873
Exhausted 6, 549
Absolute Majority 54, 865

42. Again, if those underlying figures are accurately cited, the absolute majority should be 54, 915 not 54, 856.

43. The Petition alleges, however, that the total tally for the First Respondent should have been allotted as 54, 845, short of the alleged then calculated absolute majority by 3 votes.

44. What the Petitioner does not do is to allege what the figures should have been. It does allege, however, as the previous petition did, that the declaration of the poll was, to a small extent, premature.

45. The facts referred above are referred to as “Case One (1)” and Case Two (2). The latter alleged that 18, 723 ballot papers were admitted to the count despite the appearance of “tempering (sic)” – tampering.

46. The Second Respondent gave Notice of Objection to the Petition on 29^th September 2017. That Notice in essence, disputes that the facts alleged by the Petitioners, if proved, would provide a ground for invalidating the result of the election.

47. Additionally, in respect of Mr. Kandiu’s Petition, there is allegedly a failure to date the petition. It was filed 8^th September, 2017. The signature of the Petitioner is dated 8^th September 2017. The alleged omission is therefore, immaterial. This ground was not pursued at the hearing.

48. The First Respondent’s Objection to Competency (6^th October 2017) challenges the particularisation of the alleged errors and omissions and asserts that, in any event, the nexus between those errors or omissions and the result is not pleaded.

49. Further, it is contended that the Petition, if supported by the evidence foreshadowed, does not demonstrate that the result of the poll was likely thereby to be affected.

50. None of the irregularities alleged by the Petitioner are at all likely to have prevented the First Respondent from attaining an absolute majority of votes.

51. The Petitioner seeks to have an application of a so-called “liberal” approach to the Petition. I do not disagree with that contention, as I decided in Yali v. Yama [2018] PGNC 56; N7145, the question is whether the Petition sufficiently sets out the facts supporting a contention the result of the election has been adversely affected by the alleged defects in the conduct of the scrutiny.

52. The definitive statements in Okuk v. John Nilkare [1983] PNGLR 28 and Ludger Mond v. Jeffery Nape N2318, for the test in cases other than bribery or undue influence is, whether the conduct in question was likely to affect the result of the election and whether it would be just to declare the successful candidate not duly elected or the election void (see ss 218 & 217).

53. The purpose of the Petition is to state clearly what the issues are and the facts relied upon to support the finding sought. It is not necessary to recite particulars that have no real bearing on the relief sought or the grounds relied upon. If it is alleged that votes were wrongly admitted to the count, for example, that could well be established without identifying each voter so affected. Indeed it would be inappropriate to do so. Similarly, if an election official has committed an error, the name of the official is not material.

54. It is clear that Mr. Kandiu complains of a lack of proper scrutiny. However, it is not alleged that the count was thereby affected save in two respects. These matters are a failure to correctly add the votes together to balance the figures, particularly at exclusion 35, and then to prematurely declare the First Respondent elected before his tally exceeded the then absolute majority.

55. The difficulty for Mr. Kandiu as it is for Mr. Bawa who complained of similar but not identical errors, is that, even if those complaints be accepted at face value, it is highly improbable that the result of the election would be different so that declared.

56. This Petition thus also fails to allege an arguable case for the relief sought. It must be dismissed.

57. Such Petition also stands dismissed. I will hear the parties as to costs.
________________________________________________________
Wantok Legal Group: Lawyers for the First Petitioner
Korowi Lawyers: Lawyers for the Second Petitioner
Mr. T. Dawidi: Lawyers for the First Respondent
Kimbu & Associate Lawyers: Lawyers for the Second Respondent