Polye v Manase [2021] PGNC 27; N8792 (15 April 2021)

N8792

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 73 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE
KANDEP OPEN ELECTORATE

DON POMB POLYE
Petitioner

V

LUKE ALFRED MANASE
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2021: 13^th, 15^th April

ELECTIONS – petitions – court-ordered recount of votes – challenge by first respondent (the successful candidate) to result of recount – whether recount conducted in accordance with orders of court ordering recount.

An election petition to the National Court under the Organic Law on National and Local-level Government Elections challenging the return of the first respondent as the successful candidate for the Kandep Open seat, was upheld and a recount of votes was ordered. The first respondent and the second respondent, the Electoral Commission, were aggrieved and each applied to the Supreme Court for review of the National Court decision. The reviews were dismissed and the Supreme Court affirmed the decision of the National Court and restated the order of the National Court. A recount was conducted, and the result was, in accordance with the Supreme Court’s order, presented to the National Court: the petitioner won the recount. The first respondent filed a notice of motion, supported by the second respondent, challenging the result of the recount on the ground that the new returning officer had included the votes from five ballot boxes that ought to have been excluded from the count: two had been damaged at the original counting centre and the new returning officer unlawfully exercised his discretion to allow them to be counted; and three had been excluded by the original returning officer and the new returning officer had no discretion to override the original returning officer’s decision in that regard. The respondents argued that the new returning officer had, by including votes from the five contentious ballot boxes, acted contrary to the orders of the Supreme Court. They sought an order that the Court decline to declare that the petitioner was the duly elected member and an order that a further recount be conducted, with express directions that the contentious ballot boxes be excluded from the count; or in the alternative, a declaration that the first respondent be confirmed as the duly elected member. The petitioner opposed all relief sought in the motion and proposed that the Court accept the result of the recount and without further ado declare that the first respondent was not duly elected and declare that the petitioner is the duly elected member.

Held:

(1) The Supreme Court order expressly permitted the new returning officer to determine whether the votes in the two ballot boxes damaged at the counting centre ought to be counted. It was not proven that he unlawfully decided to count them.

(2) Though the Supreme Court order did not expressly allow the new returning officer to determine whether the votes in the three ballot boxes excluded by the original returning officer ought to be counted, the order did not expressly prohibit the counting of those votes. The new returning officer was not bound by the decision of the original returning officer to exclude them. He had a discretion whether to count them. He heard objections from scrutineers for the first respondent and, though he acted contrary to the advice of the Electoral Commission’s lawyers, he was not obliged to adhere to that advice. It was evident he made his own independent decision following a fair process and in a considered manner. It was not proven that he unlawfully decided to count them.

(3) The result of the recount was accepted and the Court made declarations in accordance with the primary relief sought in the petition, which, to allow for an orderly and peaceful transfer of powers, functions, duties and responsibilities from the first respondent to the petitioner, were expressed to take effect four days after the date of judgment: (a) declared that the first respondent was not duly elected; and (b) declared that the petitioner was duly elected.

Cases Cited

The following cases are cited in the judgment:

Hagahuno v Tuke & Electoral Commission (2020) SC2018
Manase & Electoral Commission v Polye, SCREV (EP) Nos 11 & 12 of 2019, 21.12.20, unreported
Nomane v Anggo (2005) N2888
Polye v Manase & Electoral Commission, EP 73 of 2017, 04.07.19, unreported
Wingti v Olga (2008) N3286

NOTICE OF MOTION

This is a ruling on a notice of motion challenging the result of a court-ordered recount of votes, following an election petition.

Counsel

M Kipa, for the Petitioner
C Copland & E Kulai, for the First Respondent
S Ranewa, for the Second Respondent

15^th April, 2021

1. CANNINGS J: This is a ruling on a motion by the first respondent, Luke Alfred Manase, who challenges the result of a Court-ordered recount of votes for the 2017 election for the Kandep Open seat, which he presently holds.

2. The recount shows the winning candidate to be the petitioner, Don Pomb Polye. He disputes the motion and asks the Court to accept the result of the recount and declare that he is duly elected.

3. The Electoral Commission, the second respondent, supports the first respondent.

4. The respondents argue that the new returning officer who conducted the recount, Rev Tom Sine, breached the Court orders for the recount by counting votes in five ballot boxes which ought to have been excluded from the count, and as the petitioner received the large majority of those votes, their improper inclusion affected the result of the recount. That is the key issue I have to decide: did the new returning officer err by counting the votes in the five contentious ballot boxes?

HOW DID WE GET HERE?

5. The first respondent was the successful candidate in the election for Kandep Open, conducted as part of the 2017 general election.

National Court

6. The petitioner challenged the result, by election petition to the National Court under the Organic Law on National and Local-level Government Elections, on six grounds. After a trial before Justice Makail, his Honour dismissed four grounds and upheld two, and upheld the petition and ordered a recount (Polye v Manase & Electoral Commission, EP 73 of 2017, 04.07.19, unreported). The order of the National Court was in the following terms:

1. The petition is upheld.
   
2. The second respondent shall conduct and complete a recount of votes within two months of this order.
   
3. The recount of votes shall exclude those ballot papers from the ballot boxes from Mamal, Mumunt 1, Iuripak, Yumbis-Karekare and Peliyanjak.
   
4. The ballot-boxes identified, damaged or destroyed shall be subject of a further decision by the new Returning Officer at the recount of votes.
   
5. The recount shall be conducted at venue to be fixed by the Returning Officer outside of Enga Province and conducted by counting officers from outside Enga Province and not previously engaged in the election.
   
6. The final result of the recount shall be presented to the Court for further hearing at Waigani National Court on Friday 6^th September 2019 at 9.30 am.
   
7. To maintain the status quo, the first respondent shall remain Member for Kandep Open electorate until the completion of recount and presentation of result to the Court for further consideration.
   
8. Cost of the petition is reserved until further order.
   

Supreme Court

7. The first respondent and the second respondent were aggrieved by the decision of the National Court and each applied to the Supreme Court for review of the National Court decision. The reviews were dismissed. The Supreme Court (Kirriwom J, Gavara-Nanu J, Batari J) affirmed the decision of the National Court and restated the order as to the recount (Manase & Electoral Commission v Polye, SCREV (EP) Nos 11 & 12 of 2019, 21.12.20, unreported). The order of the Supreme Court was in the following terms:

1. Both Review SC Rev (EP) No 11 of 2019 and SC Rev (EP) No 12 of 2019 are dismissed forthwith.
   
2. Decision of the National Court of 4^th July 2019 in EP No 73 of 2017 is affirmed.
   
3. Electoral Commission of Papua New Guinea shall forthwith take every step to conduct and complete recount of the voters as previously ordered within one month of this order, and not later than one month.
   
4. The recount of votes shall exclude those ballot papers from ballot boxes from Mamal, Mumunt 1, Iuripak, Yumbis-Karekare and Peliyanjak.
   
5. The ballot boxes identified, damaged or destroyed shall be subject of further decision by the new Returning Officer at the recount of votes.
   
6. The recount shall be counted as a venue to be fixed by the Returning Officer outside of Enga Province and by counting officers who are not from Enga and who have not been engaged in the election.
   
7. The final result of the recount shall be presented to the Court for further hearing at the Waigani National Court on the first available opportunity when the Court Registry opens for business in the New Legal Year in Monday 1^st February 2021 at 9.30 am.
   
8. The candidate returned as duly elected in the elections shall remain as Member-elect for Kandep Open Electorate until the completion and presentation of the result of the recount to the Court for further consideration.
   
9. Costs for both review applications and for proceedings in the National Court is awarded to the First Respondent Don Polye on party-party basis and shall be borne equally by the Applicants Alfred Manase and Electoral Commission of Papua New Guinea in both SC Rev (EP) No 11 of 2019 and SC Rev (EP) No 12 of 2019.
   

Recount

8. A recount was conducted, and the result was, in accordance with the Supreme Court’s order, presented to the National Court. Normally the Court would be constituted by the trial Judge, however Justice Makail was unavailable and I, without objection by any of the parties, constituted the Court on the day set for the presentation of the result and further hearing, 7 April 2021.

9. The petitioner won the recount with 22,237 votes and the first respondent was runner-up with 21,033 votes.

Applications and motion

10. The petitioner’s counsel, Mr Kipa, on 7 April 2021, made an oral application that the result be accepted by the Court and that the primary relief sought in the petition be granted, which would see the petitioner declared as duly elected. However, I declined that application.

11. Instead, I granted leave to the first respondent to move his notice of motion, filed 1 April 2021, which seeks the following relief:

1. Pursuant to section 217 of the Organic Law on National and Local-level Government Elections (hereafter the Organic Law), section 212(1)(d) of the Organic Law, section 212(3) of the Organic Law, and Order 5 and 7 of the Supreme Court Orders made 21 December 2020 and Order 4 and 6 of the National Court Orders made 4 July 2019 (Previous Orders) that:
   

(a) the Court decline to declare the Petitioner the elected Member for Kandep Open; and
(b) the Court declare the ballot papers for Kanean, Kinduli and Kitali ought not have been counted in the recount as ordered by the Previous Orders, and as the National Court never ordered them to be counted in the first instance; and
(c) the Court order a further recount for Kandep Open excluding the ballot papers for Kanean, Kinduli, Kitali, Titip and Laguni.

2. Pursuant to section 217 and 213(3) of the Organic Law, the ballot papers for Gini 1 and Tarapis be excluded from the further recount.
   
3. Alternatively, pursuant to section 217 of the Organic Law and Section 213(3) of the Organic Law the tally of ballot papers for Kanean, Kinduli and Kitali are removed from the recount tally and the First Respondent be declared the dully elected Member of Kandep Open.
   
4. Costs of the recount and further recount and the application [of] the First Respondent to be paid by the Petitioner and Second Respondent.
   
5. Any other order the Court deems fit.
   

12. I gave directions for a hearing of that motion on 13 April 2021. It is that motion on which I am now ruling, together with the petitioner’s oral application made in response to the motion, put in the same terms as the oral application of 7 April 2021, that the result of the recount be accepted and that petitioner be declared duly elected.

KEY ISSUE

13. As I indicated earlier, the key issue is whether the new returning officer erred in counting the votes in five contentious ballot boxes. It should be noted that these are not the ballot boxes referred to in Supreme Court order No 4. All parties agree that the new returning officer did not count any of those ballot boxes.

14. The five contentious ballot boxes fall into two categories:

• two (Gini 1 and Tarapis), which were damaged during a fight at the original counting centre at Wabag on 23 July 2017; and
  
• three (Kanean, Kinduli and Kitali), which were excluded by the original returning officer.
  

GINI 1 AND TARAPIS

15. The respondents acknowledge that Supreme Court order 5 expressly conferred on the new returning officer the discretion whether to count the votes in these two ballot boxes. There was evidence in the trial that during the fight at the counting centre, the Gini 1 ballot box had been kicked and thrown on the floor, resulting in its ballot papers being scattered on the floor, and some ballot papers from the Tarapis ballot box had been torn.

16. The respondents (Ms Copland for the first respondent and Mr Ranewa for the second respondent) argue that the new returning officer improperly exercised his discretion by deciding to count the votes in both ballot boxes for the following reasons:

• the first respondent’s scrutineer validly objected to both ballot boxes being counted as the integrity of the ballot papers in them were compromised as there was no evidence or report as to how the ballot papers were gathered and stored after the fight;
  
• the new returning officer did not address the objection in accordance with the requirements of s 153A (excluding ballot box from scrutiny) of the Organic Law, which states:
  

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

(a) the ballot-papers in it were not lawfully casted [sic]; or

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

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

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

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

17. I find that there was no clear evidence before the new returning officer that the integrity of the ballot papers in either of the ballot boxes had been compromised. It is true that he conducted the recount without the benefit of a report as to what had happened at the original count of votes. He was provided ballot boxes containing ballot papers, which had been transported from Wabag to Kundiawa under lock and key. He was faced with a difficult decision. It is clear from his report of the recount (annexure D, exhibit R6) that he heard submissions from opposing scrutineers and lawyers as to whether these ballot boxes should be counted. I am satisfied that he made a careful and considered decision, which was clearly within the scope of the discretion conferred on him by Supreme Court order 5. I find no merit in the argument that he acted contrary to s 153A of the Organic Law.

18. At this juncture it is important to reflect on the power and authority of the returning officer. As Gavara-Nanu J indicated in Nomane v Anggo (2005) N2888:

The scheme of Sections 18 and 19 [of the Organic Law] is that the returning officer must in the exercise of ... delegated power decide whether a disputed ballot box can be counted or not. Such decision can only be made by the returning officer based on the merits of the case before him.

19. And as I explained in Wingti v Olga (2008) N3286, the Organic Law provides that it is the returning officer, and no other person, who:

• is charged with the duty of giving effect to the Organic Law for his electorate, subject only to directions of the Electoral Commission (s 19(1));
• conducts the scrutiny at the counting centre (s 149);
• is obliged (subject to his power to refuse to admit a ballot box to scrutiny), to open all ballot boxes and count the votes on all un-rejected ballot papers (s 154(2));
• may refuse to admit a ballot box to scrutiny where he is of the opinion that the ballot papers were not lawfully cast or the ballot box was tampered with and the integrity of the ballot papers compromised (s 153A);
• determines the result of an election, by scrutiny, in the manner prescribed by s 168; and
• declares, subject to directions from the Electoral Commission, the result of the election.
  

20. I find that the respondents have not proven that the new returning officer breached Supreme Court order 5 or otherwise erred in his decision to count the votes in the ballot boxes from Gini 1 and Tarapis.

KANEAN, KINDULI AND KITALI

21. These three ballot boxes were excluded from the original count by the original returning officer due to allegations that the ballot papers had been hijacked or otherwise unlawfully tampered with. However, the new returning officer decided to count them.

22. It is noted that there were two other ballot boxes, Laguni and Titip, dealt with in the same way by the original returning officer. However, they were not in the container brought from Wabag to Kundiawa for the recount, and there were no ballot papers from those two other ballot boxes included in the recount.

23. The respondents argue that the new returning officer erred in counting the ballot boxes for Kanean, Kinduli and Kitali, for the following reasons:

• he was conferred no discretion by the Supreme Court recount order regarding these ballot boxes, as order 5 only gave him a discretion regarding the two ballot boxes affected by the fight at the Wabag counting centre (Gini 1 and Tarapis), so he has acted entirely outside the scope of his discretion and breached Supreme Court order 5;
  
• the petitioner had attempted to prove at the trial of the petition that these ballot boxes ought to have been included in the original count, but the ground of the petition pertaining to these ballot boxes was dismissed due to deficient pleading of the facts, thus the original returning officer’s decision to exclude them remained intact;
  
• the new returning officer was bound by the decision of the original returning officer, which had been made in accordance with s 153A of the Organic Law, and perforce of s 153A(4) could only be challenged by way of a petition;
  
• instead, the new returning officer has unlawfully overturned the decision of the original returning officer.
  

24. I agree with the respondents that the discretion conferred by Supreme Court order 5 on the new returning officer only covered ballot boxes identified as damaged or destroyed during the fight at the Wabag counting centre. I reject the petitioner’s argument (which is a reflection of the new returning officer’s reasoning, as is apparent from his recount report) that Supreme Court order 5 extended to all ballot boxes identified as being allegedly damaged or destroyed in whatever circumstances. It is clear from the judgment of the trial judge at paragraph 54 that National Court order 4, which became Supreme Court order 5, was restricted to only two ballot boxes. His Honour stated:

The disputed ballot boxes identified and damaged or destroyed during the fight can be the subject of a decision by the returning officer.

25. However, it does not follow that the new returning officer breached Supreme Court order 5 by including Kanean, Kinduli and Kitali ballot boxes in the count.

26. Supreme Court order 5 does not say that he had no discretion to exercise in regard to ballot boxes other than those affected by the fight at the Wabag counting centre. Apart from Supreme Court order 4 (which dictates the five ballot boxes which were to be excluded from the recount, which was complied with), none of the other Supreme Court orders directed the new returning officer on what ballot boxes should or should not be counted.

27. It is inconsequential that the petitioner was unable to prove at the trial of the petition that these ballot boxes ought to have been included in the original count. I reject the respondents’ argument that the new returning officer was bound by the decision of the original returning officer, and this his decision could only be challenged by a petition.

28. All decisions of the original returning officer, including his decision to exclude the ballot boxes from Kanean, Kinduli and Kitali, were nullified by the upholding of the petition and the orders by both the National Court and the Supreme Court for a recount of votes. Supreme Court order 3 was that the Electoral Commission “take every step to conduct and complete recount of the votes as previously ordered”. National Court order 2 was that “the second respondent shall conduct and complete a recount of votes ...”

29. Neither the National Court nor the Supreme Court restricted the recount to the counting of votes that had been admitted to scrutiny by the original returning officer.

30. It is a misconception of the role of the new returning officer to say that he purported to overturn the decision of the original returning officer. He was authorised by the order of the Supreme Court to conduct a recount of votes. He was not bound by the original returning officer’s decisions on any issues he was faced with in the conduct of the recount.

31. I have examined the new returning officer’s report of the recount. It is apparent that the decision whether to count ballot papers from Kanean, Kinduli and Kitali was highly contentious. He changed his mind after first deciding not to count them. However, he heard objections from scrutineers for the first respondent and, though, the evidence shows, he acted contrary to the advice of the Electoral Commission’s lawyers, he was not obliged to adhere to that advice. He was subject only to a direction from the Electoral Commissioner whether to count these ballot boxes. But there was no such direction.

32. I am satisfied that he exercised his own independent judgment, in good faith, following a fair process and in a considered manner.

33. I find that the respondents have not proven that the new returning officer breached Supreme Court order 5 or otherwise erred in his decision to count the votes in the ballot boxes from Kanean, Kinduli and Kitali.

CONCLUSION

34. In hearing this matter, I have been urged by all parties to have regard to the dictates of s 217 (real justice to be observed) of the Organic Law, which has recently been confirmed by the Supreme Court in Hagahuno v Tuke & Electoral Commission (2020) SC2018 to apply at all stages of the National Court dealing with an election petition from beginning to end. 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.

35. I have indeed been guided by the substantial merits and good conscience of this case, which has been in progress for three and a half years, in arriving at a decision.

36. The respondents have failed to prove any breach by the new returning officer of the order of the Supreme Court or that he erred in any other way in the conduct of the recount. All relief sought in the first respondent’s notice of motion will be refused. No good reason has been given for not accepting the result of the recount.

37. The result will be accepted and in accordance with the oral application of the petitioner, the primary relief sought in the petition will be granted. To allow for an orderly and peaceful transfer of powers, functions, duties and responsibilities from the first respondent to the petitioner, I will order that the primary relief take effect four days after the date of judgment.

ORDER

(1) All relief sought in the first respondent’s notice of motion filed 1 April 2021 is refused.

(2) It is declared that the result of the recount of votes for the 2017 Kandep Open election, presented to this Court pursuant to the order of the Supreme Court of 21 December 2020 in SCREV (EP) 11 and 12 of 2019, through the affidavit of the returning officer, Rev Tom Sine, filed 7 April 2021, showing Don Pomb Polye as the winning candidate with 22,237 votes and Alfred Luke Manase as runner-up with 21,033 votes, is accepted by the Court.

(3) The following declarations shall take effect at 3.00 pm on 19 April 2021:

(a) it is declared that the first respondent, who was returned as elected at the 2017 Kandep Open election, was not duly elected; and

(b) it is declared that the petitioner, who was not returned as elected, is the duly elected member for Kandep Open following the 2017 election.

(4) The order of 7 April 2021 requiring Rev Tom Sine to remain in the National Capital District is discharged.

(5) The respondents shall pay the petitioner’s costs of that part of the petition pertaining to the presentation of the recount, on a party-party basis, which shall, if not agreed, be taxed.

(6) The Registrar of the National Court shall in accordance with s 221 of the Organic Law on National and Local-level Government Elections promptly forward a copy of this order to the Clerk of the National Parliament.

Pacific Legal Group: Lawyers for the Petitioner Lawyers
Simpson Lawyers: Lawyers for the First Respondent
Kawat Lawyers: Lawyers for the Second Respondent