Singirok v Pariwa [2023] PGNC 462; N10619 (12 December 2023)

N10619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 93 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
MADANG PROVINCIAL ELECTORATE

JERRY SINGIROK
Petitioner

V

RAMSEY PARIWA
First Respondent

ELECTORAL COMMISSION
Second Respondent

CANNINGS J

Madang: 24^th, 25^th, 27^th October 2023
Waigani: 28^th November 2023
Madang: 12^th December 2023

ELECTIONS – petitions – alleged errors of electoral officers – whether errors committed during counting or scrutiny of votes – whether errors or omissions of officers affected the result of the election – Organic Law on National and Local-level Government Elections, s 218 (immaterial errors not to vitiate election).

The petitioner challenged the return of the first respondent as successful candidate on the ground of errors or omissions by officers of the Electoral Commission (second respondent) during the counting and scrutiny, relying on s 218(1) (immaterial errors not to vitiate election) of the Organic Law on National and Local-level Government Elections. He claimed that three categories of errors or omissions occurred during the counting and scrutiny: (1) scrutiny of ballot papers took place without the physical presence of scrutineers for two days and during that period 4,004 votes for the first respondent were added to the first respondent’s tally and resulted in him being declared the successful candidate on the basis of a false absolute majority figure; (2) in that two-day period of unlawful scrutiny the number of live votes changed substantially and the number of informal votes changed substantially and the returning officer unlawfully refused a request for a recount of the number of informal votes; (3) during the whole period of the scrutiny the counting of primary votes was done at district counting centres without the form 66A tally sheets being provided to scrutineers and this resulted in the elimination process being conducted contrary to the Organic Law. The petitioner claimed that each category of errors and omissions affected the result of the election and that the election should be declared void.

Held:

(1) The allegation that counting continued for two days without the presence of scrutineers was not proven. Counting was suspended for 24 hours and during that time no scrutiny occurred. The discovery of 4,004 additional votes for the first respondent was adequately explained in evidence by the returning officer. The first allegation of errors and omissions was not sustained.

(2) The substantial change in the number of live ballot papers was adequately explained in evidence by the returning officer. However, the substantial increase in the number of informal votes was not adequately explained and officers of the Electoral Commission unreasonably refused a request for a recount of those informal votes. The second allegation of errors and omissions was partly sustained.

(3) It was proven that counting of primary votes was done at district counting centres without the form 66A tally sheets being provided to scrutineers. This was confusing for the scrutineers but any errors that might have arisen were remedied by a complete and effective quality control check of all primary votes, conducted at the provincial counting centre before the start of the elimination phase of counting. The third allegation of errors and omissions was not sustained.

(4) The petitioner proved that some errors and omissions were committed by officers of the Electoral Commission during the counting and scrutiny but it was not proven that any affected the result of the election. There was no good reason for the election to be declared void or for any alternative relief, such as a recount of ballot papers, to be granted.

(5) The petition was entirely dismissed. The petitioner was ordered to pay the first respondent’s costs. The Electoral Commission would bear its own costs.

Cases Cited

The following cases are cited in the judgment:

Kandiu v Parkop (2015) SC1437
Kikala v Electoral Commission [2013] 2 PNGLR 143
Singirok v Pariwa & Electoral Commission (2023) N10457
Undialu v Potape (2020) SC1981
Yama v Singirok (2020) SC1982

Counsel

B S Lai, for the Petitioner
M Kombri, for the First Respondent
T Sua, for the Second Respondent

12^th December 2023

1. CANNINGS J: The petitioner Jerry Singirok filed a petition disputing the election of the first respondent Ramsey Pariwa as member for Madang Provincial in the 2022 general election. The Electoral Commission is the second respondent and joins with the first respondent in opposing the petition.

2. The petitioner seeks a declaration that the first respondent was not duly elected and that the election was absolutely void and that a by-election be conducted. The petitioner relies on s 218(1) (immaterial errors not to vitiate election) of the Organic Law on National and Local-level Government Elections, which provides:

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

3. The petition contained two grounds of challenge:

Ground 1 (part C1 of the petition, paragraphs 25 to 37) alleged errors and omissions by the Electoral Commission during polling in the Kovon Local-level Government area of Middle Ramu District which affected the outcome of the election for the purposes of s 218(1) of the Organic Law.

Ground 2 (part C2 of the petition, paragraphs 38 to 81) alleges errors and omissions by the Electoral Commission during counting which affected the outcome of the election for the purposes of s 218(1) of the Organic Law.

4. Both grounds survived an objection to competency (Singirok v Pariwa & Electoral Commission (2023) N10457). At the start of the trial the petitioner abandoned ground 1 with the leave of the court, leaving one ground only, ground 2, as the subject of trial.

GROUND 2 OF THE PETITION: ERRORS AND OMISSIONS BY ELECTORAL COMMISSION DURING COUNTING AND SCRUTINY

5. The petitioner claims that three categories of errors or omissions, referred to in the petition as “irregularities”, occurred during the counting and scrutiny:

(1) Scrutiny of ballot papers took place without the physical presence of scrutineers from 12 to 14 August 2022 contrary to ss 151, 168 and 169 of the Organic Law and during that period 4,004 votes for the first respondent were discovered by the returning officer, Sponsa Navi, and added to the first respondent’s tally, taking him to 109,888 votes and resulting in him being declared the successful candidate by virtue of securing more than the required figure of an absolute majority plus one.

(2) In that period of the allegedly unlawful scrutiny the number of live votes changed substantially from 285,781 votes to 281,777 votes and the number of informal votes changed substantially from 26,974 to 28,737 and the returning officer unlawfully refused a request for a recount of the number of informal votes.

(3) During the conduct of the scrutiny from 9 to 18 August 2022 the counting of primary votes was done at the six district counting centres without the form 66A tally sheets being provided and this resulted in unverified data being sent to the Electoral Commission’s website and the elimination process being conducted contrary to the Organic Law.

6. The petitioner claims that each category of errors and omissions affected the result of the election.

EVIDENCE

7. The petitioner relied on affidavits and oral testimony of five witnesses:

Eric Bus – a scrutineer for the petitioner;

Brendan Asivo – a scrutineer for candidate Steven Asivo;

Freddy Wasem – a scrutineer for the petitioner;

Stanley Gaan – chief scrutineer for the petitioner; and

Robert Keno – a scrutineer for the petitioner.

8. The first respondent relied on affidavits and oral testimony of two witnesses:

Inspector Peter Gorek – he was contingent commander of security personnel at the Middle Ramu Open electorate and then 2IC at the provincial counting centre at Holy Spirit hall at Madang; and

Brendon Masil – a scrutineer for the first respondent.

9. The second respondent relied on affidavits and oral testimony of two witnesses:

Sponsa Navi – he was the provincial returning officer; and

Albert Ului – he was the assistant provincial returning officer.

METHOD

10. I will examine each of the three categories of errors or omissions pleaded in ground 2 of the petition. I will then determine whether any proven error or omission affected the result of the election.

GROUND 2(1): SCRUTINY OF BALLOT PAPERS FROM 12 TO 14 AUGUST 2022 WITHOUT PHYSICAL PRESENCE OF SCRUTINEERS

11. There are two limbs to this ground of the petition. First, that scrutineers for all candidates vacated the counting centre from 12 to 14 August due to one of the scrutineers being assaulted on 12 August, and the scrutiny continued in their absence contrary to the Organic Law. Secondly, that when the scrutiny resumed, there was a sudden and unaccounted for increase of 4,004 votes in the first respondent’s tally.

Alleged scrutiny without scrutineers

12. The petitioner’s witnesses, Eric Bus, Brendan Asivo, Freddy Wasam and Robert Keno gave evidence verifying the allegations. They said that a scrutineer for candidate Peter Yama, Jeffrey Kassman, was assaulted on Friday 12 August, and this caused a lot of concern so other scrutineers vacated the counting centre in fear of their safety and security. Counting continued in the absence of the scrutineers and this assertion was based on the evidence of Robert Keno.

13. The most significant allegation in this ground of the petition is that the scrutiny continued in the absence of scrutineers. I find this allegation not proven. It is largely based on speculation and hearsay. Robert Keno took some photos on his mobile phone showing the lights on in the counting centre in the night with a few people apparently inside, which he says was the night of Saturday 13 August, but that falls short of proof that counting was continuing at the time. Other witnesses said they left the counting centre, so how can they say that counting took place in their absence?

14. I find the evidence of the respondents’ witnesses more convincing. Inspector Gorek, who I regard as an independent and reliable witness, said that there was an incident on the afternoon of Saturday 13 August when a scrutineer for candidate Peter Yama by the name of John Kikimbe was drunk and disorderly and pestering the officials, complaining that counting was continuing unlawfully after the day fixed for the return of the writ. Inspector Gorek said he took control of the situation by escorting Mr Kikimbe out of the counting centre.

15. Inspector Gorek’s evidence was corroborated by the evidence of the first respondent’s scrutineer, Brendon Masil and by Mr Savi and Mr Ului.

16. Brendon Masil cannot be regarded as an independent witness but I thought he was nonetheless an impressive witness. I accept his evidence that the person removed from the counting centre was John Kikimbe, who he said he identified clearly as they went to school together.

17. I thought Mr Savi and Mr Ului were convincing and honest witnesses. They verified that it was after the incident on Saturday afternoon that the scrutineers left the counting centre and that the reason they left was not because they feared for their safety but because there was a general concern that counting was continuing beyond the date, 12 August 2022, fixed for the return of the writ for the Madang Provincial seat. Mr Ului announced that counting was suspended and would resume after church on Sunday 13 August; and that is what happened.

18. I find, based on the evidence of Mr Savi and Mr Ului, that no counting or scrutiny took place between the suspension of counting on the afternoon of 13 August and its resumption on the afternoon of 14 August. When counting resumed, the scrutineers were present.

19. I find that there was no assault on any scrutineer including scrutineer John Kikimbe.

Alleged sudden increase of 4,004 votes to the first respondent’s tally

20. I accept the petitioner’s witnesses’ evidence that there was on the resumption of counting a sudden increase of 4,004 votes in the first respondent’s tally. However, I reject their evidence that this was unacceptable and unexplained.

21. I accept the explanation given in the evidence of Mr Savi and Mr Ului that when counting resumed on the afternoon of Sunday 14 August, it was discovered that a bundle of 4,004 primary votes had been mistakenly placed on the tray of candidate Benny Panti. Mr Panti was candidate #36 and the first respondent was candidate #37 and a reasonable inference to draw from the evidence was that the bundle of 4,004 votes for the first respondent had fallen into the tray for Mr Panti.

22. I accept Mr Ului’s evidence that he explained the error to the scrutineers and it was generally agreed that the 4,004 ballot papers belonged to the first respondent, and so they were added to his tally.

23. I reject the petitioner’s contention that the sudden increase in the first respondent’s tally was unacceptable or unexplained or suspicious or unlawful.

Conclusion

24. I find that no errors or omissions have been proven in ground 2(1) of the petition.

GROUND 2(2): SUBSTANTIAL AND UNEXPLAINED CHANGE IN NUMBER OF TOTAL LIVE VOTES AND SUBSTANTIAL AND UNEXPLAINED INCREASE IN NUMBER OF INFORMAL VOTES

25. There are two limbs to this ground of the petition. It is alleged that when counting resumed on 14 or 15 August, first, the number of live votes changed substantially from 285,781 votes to 281,777 votes without proper explanation and secondly, the number of informal votes changed substantially from 26,974 to 28,737 and the returning officer unlawfully refused a request for a recount of the number of informal votes.

Reduction in number of live votes

26. There is sufficient evidence to show that when counting resumed – according to the petitioner, it resumed on 15 August but according to the respondents, it resumed on the afternoon of 14 August and I prefer the respondents’ evidence on this issue – the number of live votes changed substantially from 285,781 votes to 281,777 votes, a reduction of 4,004 votes. This equates with the number of votes mistakenly found on the tray of candidate Benny Panti, and later added to the first respondent’s tally. I consider this to be an adequate explanation for the reduction in the number of live votes.

Increase in number of informal votes

27. There is ample evidence that upon resumption of counting the total number of informal ballot votes changed from 26,974 to 28,734, an increase of 1,763. I accept the evidence of the petitioner’s chief scrutineer, Stanley Gaan, that he approached Mr Ului on several occasions to recount the informal ballot papers but Mr Ului declined. Mr Ului confirmed that that is what happened. He said that he told Mr Gaan that the informal ballot papers would be recounted if they had time, but they were under pressure to declare a result as they were already running late. As it turned out, time did not permit a recount of the informal ballot papers and the result was declared using the figure of 28,734 informal votes.

28. I find that there was never any checking of the informal ballot papers at the provincial counting centre. The figure of 28,734, which was based on figures from the district counting centres, was accepted as correct. There was no scrutiny of the informal ballot papers for the purposes of s 154 (scrutiny of ordinary votes in elections) of the Organic Law, which states:

(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.

Conclusion

29. The excuse given for not checking or recounting the informal ballot papers – that time did not permit it – was unacceptable. The Electoral Commission’s failure to allow scrutiny of the informal ballot papers was an error. Ground 2(2) of the petition is therefore partly sustained.

GROUND 2(3): CONDUCT OF SCRUTINY FROM 9 TO 18 AUGUST 2022 WITHOUT FORM 66A FROM THE DISTRICT COUNTING CENTRES

30. There is ample evidence to support the petitioner’s proposition that scrutiny at the provincial counting centre was conducted without any scrutineer for any candidate sighting form 66A, which is the form conventionally used to record the voting figures for each candidate after the counting of first preference votes.

31. Mr Navi and Mr Ului conceded that that was the case. They said that situation had come about because of the decision of Electoral Commission HQ that counting of primary votes for the provincial electorate would be initially done at each of the six district counting centres. Each district returning officer had upon completion of counting at the district counting centre, taken the form 66A to Port Moresby. It seems that the figures from the original form 66As were loaded on to the Electoral Commission website, which was controlled in Port Moresby. Those forms came to be designated as form 66A-1. Mr Savi and Mr Ului said that none of their counting of votes including the elimination phase of counting was based on the figures posted on the website.

32. Mr Navi and Mr Ului said that they devised another set of forms, designated as form 66A-2, which was used to post figures on the tally board at the provincial counting centre, and it was those figures that formed the basis of the elimination phase of counting. I accept their evidence in that regard and find that there was no reliance on the figures posted on the Electoral Commission website.

33. They had a hard job in convincing the scrutineers that the counting was proceeding in an orderly and proper manner and that the scrutineers were confused and concerned due to the absence of the conventional form 66As.

34. I accept their evidence regarding the quality checks that took place. The first quality check was abandoned due to discrepancies in some figures. However the second quality check was completed without mishap and this led to the elimination process commencing on Friday 12 August. It continued on the morning of Saturday 13 August. It was suspended around 1.00 pm on Saturday when the incident concerning John Kikimbe occurred.

35. I find that the second quality check involved a complete recounting of all live ballot papers and was an effective and reliable basis for proceeding to the elimination phase of counting and remedied any errors that might have arisen due to the absence of the original form 66A.

36. There is insufficient evidence of errors or omissions being committed by officers of the Electoral Commission in connection with the absence of the original form 66A.

Conclusion

37. The third allegation of errors and omissions in ground 2(3) of the petition is not sustained.

DID ANY OF THE PROVEN ERRORS OR OMISSIONS OF OFFICERS AFFECT THE RESULT OF THE ELECTION?

38. The petitioner has proven an error on the part of officers of the Electoral Commission in the counting of the number of informal votes. Those votes were counted without any scrutiny at the provincial counting centre. The Electoral Commission relied entirely on figures provided by the returning officers at the six district counting centres. There was at no stage any checking of the figures. The quality control check, which concluded on Friday 12 August 2022, did not include the informal votes.

39. It was a significant error. It was a breach of s 154 of the Organic Law. The error was magnified by the refusal by the returning officer and the assistant returning officer to comply with repeated requests from scrutineers including the petitioner’s chief scrutineer to subject the informal votes to a quality check, and by the unexplained increase of 1,763 in the number of informal votes upon the resumption of counting on the afternoon of Sunday 13 August 2022. It was this error which resulted in ground 2(2) of the petition being partly sustained.

40. It is not enough for the petitioner to prove that such an error occurred. The petition is based on s 218(1) of the Organic Law and he must prove that the error affected the result of the election (Kikala v Electoral Commission [2013] 2 PNGLR 143, Kandiu v Parkop (2015) SC1437, Undialu v Potape (2020) SC1981, Yama v Singirok (2020) SC1982).

41. It is in evidence that the first respondent was declared the successful candidate after securing 109,888 votes. The petitioner was runner-up with 65,128 votes. The winning margin was 44,760 votes. The total number of informal votes, potentially affected by the error, was 28,734. It cannot reasonably be inferred that the error that occurred in counting the informal votes affected the result of the election.

42. There is no good reason for the election to be declared void or for any alternative relief, such as a recount of ballot papers, to be granted. The petition must be dismissed.

CONCLUSION

43. The petition will be dismissed. It follows that the petitioner will pay the costs of the first respondent, who has not been proven to be at fault in any way.

44. However, the second respondent, the Electoral Commission, has been proven to have committed errors in the counting, which led to ground 2(2) of the petition being partly sustained.

45. Furthermore, the Electoral Commission must be held responsible for the extensive delay in the counting and scrutiny and the return of the writ. There was confusion caused by the decision to count primary votes at the district counting centres. There was poor communication with scrutineers and this gave rise to the appearance of a lack of transparency in the counting and scrutiny at the provincial counting centre. The Commission should conduct its own internal inquiry into the causes of the delay and lack of communication that occurred so that the same mistakes are not repeated in the next election for the Madang Provincial seat.

46. The Electoral Commission, though it has successfully defended the petition, will bear its own costs.

ORDER

(1) The petition is wholly dismissed.

(2) The petitioner shall, subject to any specific costs orders made during the proceedings, pay the first respondent’s costs of the petition.

(3) The second respondent shall, subject to any specific costs orders made during the proceedings, bear its own costs.

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

_____________________________________________________________
B S Lai Lawyers: Lawyers for the Petitioner
Kombri & Associates Lawyers: Lawyers for the First Respondent
Sua & Sons Lawyers: Lawyers for the Second Respondent