N10203

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP N0. 04 OF 2022 (IECMS)

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

BETWEEN:
DR ALLAN MARAT
Petitioner

AND:
GRAHAM PINIAU RUMET
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Kokopo: Manuhu, J
2023: 20th,21st,22nd, 23rd, 29th & 31st March

ELECTIONS – Petition – 21 formal votes rendered informal in a recount – Threats and intimidation – Winning margin by 3 votes – Request for a recount – Appropriate relief - ss. 170 and 218 of the Organic Law on National and Local Level Government Elections   

Cases Cited: 

William Hagahuno v Johnson Tuke [2020] SC2018
Talita v Ipatas [2016] SC1603

Counsel:

G. Purvey with G. Kult, for the Petitioner
D. Kints, for the First Respondent
R. Williams, for the Second Respondent

31st March, 2023

1.	MANUHU, J.:  The petitioner, Dr. Allan Marat, is disputing the return of the first respondent, Graham Piniau Rumet, as the duly elected member for Rabaul Open in the 2022 National General Election after the first respondent was declared the winner by 3 votes. 

Petition Grounds

2.	The grounds of the petition are:
(a)	The second respondent committed errors and omissions when the returning officer made a declaration in circumstances that the returning officer was directed by the petitioner pursuant to the powers of the second respondent in section 19 (7) of the Organic Law of National and Local Level Government Elections (“Organic Law”) not to make a declaration because there were only 3 votes in the margin after the final court.
(b)	The second respondent committed errors and omissions when the returning officer made a declaration in the full knowledge that the petitioner had requested a recount pursuant to section 170 of the Organic Law in circumstances that the margin of votes (3) between the first respondent and petitioner did not exceed 0.25% of the number of votes polled by the first respondent as contemplated pursuant to Section 170 (1) of the Organic Law.
(c).	The second respondent committed errors and omissions when the returning officer was directed by the Provincial Elections Manager, with no authority to do so, to ignore the petitioner’s request for a recount pursuant to section 170 of Organic Law and made a declaration that the first respondent was the winner in conflict with section 19 (7) of the Organic Law and denied the petitioner the opportunity for a recount where the differences in the margin was only 3 votes.
(d). 	The second respondent committed errors and omissions when the returning officer, without authority, ordered the recount of Count No. 1 to Count No. 6. 
(e). 	The second respondent committed errors and omissions in circumstances that the returning officer changed 21 votes declared by the returning officer as formal in favor of the Petitioner to informal, without explanation, which affected the result of the election pursuant to section 218 Organic Law.
(f).	Pursuant to section 218 of the Organic Law, the election was affected when the 21 votes in favor of the petitioner were changed from formal to informal by a recount by the returning officer which affected the result of the election in circumstances that the petitioner and the first respondent after the final count were separated by 3 votes. 

Pre-trial Matters:

3.	An objection was made to the competency of the petition which was refused on the basis that it was served one day outside of 21 days as required by section 12 of the Election Petition (Miscellaneous Amendment) Rules 2022.

4.	Immediately after the refusal, the respondents attempted to raise the objection again, verbally, which was opposed by the petitioner. The court ruled that while an objection may be raised at any time, it has to be raised formally and in writing supported by an affidavit, if need be, so that the opposing side is not caught off guard. 

5.	In any event, I am of the view that the pleadings are clearly set out and easy to understand.  From the pleadings, the first issue is whether the petitioner made a call to the returning officer requesting a recount before the declaration of the winner. The second issue is whether 21 formal votes that were initially allocated to the petitioner were subsequently rendered informal thereby affecting the result of the election.

6.	Before the substantive hearing, the court’s attention was drawn to a set of orders made on 30 September 2022, one of which stated that the “trial will be for 5 days on a date to be fixed at the pre-trial conference and by affidavit material, subject to applications for cross-examination under the Evidence Act and by written and oral submissions.”  While the petitioner gave notice to cross-examine the respondents’ witnesses, the respondents did not give such notice.  On that basis, the Court upheld the petitioner’s application that the respondents should not be permitted to cross-examine the petitioner’s witnesses.

Petitioner’s Affidavits

7.	For the petitioner, the following materials were tendered by consent:

•	Affidavit of Dr Allan Marat
•	Affidavit of Steven Tade
•	Affidavit of Penticost Talvat
•	Affidavit of Sergeant Ukies Kibale
•	Affidavit of Aloysia Warkinim
•	Affidavit of Relly Mosley (Lucy)
•	Affidavit of Rorinda Raphael
•	Affidavit of Petrus Kamat
•	Affidavit of Tony Namur
•	Affidavit of Levi Benson ToViliran
•	Affidavit of Himson Marat

No Case to Answer Submission

8.	A no case to answer submission was then made by the respondents.  It was raised firstly that the evidence was insufficient.  It was secondly argued that the petition was incompetent in that the second witness did not state his full address.  His town and Province were not stated.  The court refused the first part of the submission.  In relation to the second part, it was refused on the basis of an earlier ruling that an objection must be made formally, in writing.  In this case, the objection was made orally and under the guise of a no-case to answer submission. 
 
9.	In hindsight, and I note that Mr. Williams has re-argued the point, in the Supreme Court case of Talita v Ipatas [2016] SC1603 where the witness only stated the Section, Allotment, Street, and Suburb in the address section, it was held that that was sufficient compliance.  

10.	Likewise, stating the particular Ward (Nonga Ward) and LLG (Balanataman LLG) without stating Rabaul and East New Britain Province is sufficient compliance.  As I said to counsel, you wouldn’t be looking for Nonga Ward in Milne Bay or Enga Province.

First Respondent’s Affidavits

11.	With the unsuccessful no case to answer submission, the first respondent’s affidavits were admitted into evidence by consent.  They are:

•	Affidavit of Steven Baptist
•	Affidavit of Hon. Graham Piniau Rumet
•	Second Affidavit of Hon. Graham Piniau Rumet
•	Affidavit of Philip Samuel
•	Affidavit of Penny Dokta

Second Respondent’s Affidavits

12.	The second respondent also tendered by consent the following affidavits:

•	Affidavit of Joap Voivoi – Election Manager for East New Britain
•	Affidavit of Babel Umri – Returning Officer for Rabaul Open

13.	Pursuant to a notice to cross-examine, the respondents’ witnesses were subject to cross-examination and re-examination.
		
Documentary Evidence
     
14.	Also tendered into evidence by the parties were the following documents:

•	Medical Certificate of Death of Himson Marat
•	Post Courier article: Veteran MP Dr. Marat accepts defeat after 20 years
•	Writ for the Rabaul Open Electorate Election 2022
•	Form 66A1 from 16/07/2022
•	Form 66B from 18/07/2022
•	Form 66A2 from 19/07/2022
•	Form 66A1 from 20/07/2022

15.	Those were the evidence before the Court. Parties were given a weekend to prepare for final submissions.

Final Submissions
 
16.	When the Court resumed, Mr. Kints made his submissions followed by Mr. Williams. I have heard and read their submissions.  With due respect, I do not think they adequately discussed the evidence, particularly when the issues before the Court are mainly issues of fact.   It requires the Court to consider the evidence and make findings of fact before anything else. 
 
17.	In any event, I have heard and read their submissions. I have also heard and read Mr. Purvey’s submissions. There are times when I would refer to and discuss specific matters raised in a submission.  There are times when I do not refer to the submissions at all.  When that happens, it simply means that I have not been persuaded enough to accept a particular argument.  

18.	At this juncture, may I remind myself as I usually do, that, unlike other proceedings, the Organic Law requires the courts to observe real justice.  Section 217 of the Organic Law provides: 
   
“REAL JUSTICE TO BE OBSERVED.
“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.”

19.	I shall bear that in mind as I consider the evidence.  See William Hagahuno v Johnson Tuke [2020] SC2018.   

Consideration of Evidence & Findings

20.	It is rare for opposing witnesses to support each other in a legal proceeding.  In this case, the petitioner’s evidence is virtually supported and corroborated by the respondent’s witnesses.  It gives me the impression that the witnesses in this proceeding are interested in nothing but the truth, which is commendable.

21.	Except for the evidence of Gorethy Kenneth, all the materials and affidavits tendered by consent are relevant to the issues before the Court.  I thank counsel for the work involved in the gathering of evidence and preparation of affidavits.

22.	The first issue is whether the petitioner made a call to the returning officer requesting a recount before the declaration of the winner.  The petitioner gave evidence on the call he made to the returning officer requesting a recount.  His evidence was supported by witnesses Penticost Talvat and Himson Marat.  I have no reason to disbelieve the petitioner and the two witnesses.  

23.	The petitioner’s evidence on the call he made is clear.  I accept that the petitioner called the returning officer and requested a recount.  In my view, a verbal request would have been sufficient for the purpose of compliance with Section 170 (1) of the Organic Law.  Even the first respondent is aware of the call.  The returning officer confirmed that the petitioner did call him. 

24.	In his affidavit, the returning officer said:

“Yes, the petitioner called me at the time when everyone including the winning candidate were already in the hall for declaration and asked to stop the declaration.  I said I would consult the returning officer first because the people were eager for the declaration, there were a lot of rowdiness, and it was uncontrollable in the hall with intoxicated supporters and youths.  The Provincial Returning Officer heard the background too and so he said to proceed with the declaration.”

25.	I don’t accept the argument that the petitioner only asked to stop the declaration; that he did not ask for a recount. It does not make sense that the petitioner would ask to stop the declaration without giving any reason.  It would be an absurdity to accept such a submission.  

26.	It is not in dispute, and I so find, that the petitioner called the returning officer.  I also find as fact that the returning officer was informed clearly that the petitioner wanted a recount.  He was also informed that the request would be in writing.  He was informed that as it was getting late, he was asked to stop the declaration until the request is made in writing the following day.  

27.	Unfortunately, the returning officer ignored the request and proceeded to declare the first respondent as duly elected. 

28.	Based on these findings, I find that the petitioner was denied his right under section 170 (1) of the Organic Law to formally request a recount.  I am thus satisfied that the petitioner has made out the petition grounds (a), (b), and (c). 

29.	The second issue is whether 21 formal votes that were allocated to the petitioner were subsequently rendered informal thereby affecting the result of the election.  There is no dispute that there was a recount (recheck) of Counts 1 to 5.  There is no dispute that because of the recount, 21 formal votes for the petitioner were “rendered” informal.  The only issue is whether the recount was lawful.
  
30.	For the petitioner, the witnesses say that counting was progressing in an orderly manner until it became apparent during Count 6 that the petitioner was maintaining a good lead.  The scrutineers of other candidates and some candidates were unhappy.  They walked out of the counting venue.  The returning officer was threatened and intimidated.  A recount was demanded by supporters of other candidates for Counts 1 to 5. The returning officer refused twice but the pressure continued.  Eventually, the returning officer caved in and allowed the recount to be conducted on the first preference votes that had already been checked and allocated. 
 
31.	This is how witness Sergeant Ukies Kibale described the situation before and during the recount:

“During the lunch hour on Thursday the 14th day of July 2022, I heard the candidates and scrutineers were boycotting the Rabaul Open Election Counting at the Maltech Secondary school hall.” 
“At around 02.00pm that day I arrived at Maltech Secondary School Hall only to find out that the counting had come to a stop due to scrutineers were said to demanding a recount of the first five ballot boxes that were counted; quality checked and sealed during the first and second day into the counting of the ballot papers for Rabaul Open Electorate.”
“I saw a big group of candidates, scrutineers and supporters having a meeting at the school yard.”
“Not long the big group violently barged into the counting hall with lots of noises.”
“They used insulting words the KKK word as, KAIKAI KAN, BRUKIM DISPELA OLGETA BALLOT BOX NA PUTIM PAIA LONG EN BAI YUMI BY ELECTION.”
“Some of them shouted, KUAK KUAK KUAK which is a war cry in Tolai society.”
“They barged into the counting hall demanding a recount or else they burn the ballot boxes.”
……
“As they barged into the hall, they demanded a recount of count #1 – 5 from the first five ballot boxes that were counted, quality checked and sealed on Tuesday 12/07/22 and Wednesday 13/07/22 respectively.”
“The hall was overcrowded with supporters and scrutineers of the mentioned five candidates outnumbering the security personnel on the ground.”
“They did that because they saw that Dr. Marat was taking a runaway lead in the first five of the primary counts and they did just that to interfere the counting process.” (sic.)

32.	During the recount, the witness described the proceeding, as follows:
“The RO ordered to open the sealed ballot boxes for each candidate to redo the quality check on all the counted, quality checked and sealed ballot papers in all candidates respective ballot boxes.”
“They started lightly redoing quality check from candidate #10’s ballot box, then to candidate # 11, 12. And 13.”
“When comes to Candidate #14 Dr Allan Marat’s ballot box, all the five candidates sitting on the scrutineers gallery took part in doing the requality checking instead of their scrutineers doing it.  Supporters at the public gallery also shouted in assisting the redoing the quality check.”
“The RO would bring in a ballot paper from Dr Allan Marat ballot box at a time, one by one showing it to the five candidates and those candidates decides whether the ballot papers were formal or informal.  The scrutineers of Dr Allan Marat intervene to stop what was transpiring but the crowd shouted at them and threated to fight them.”
“Total of 21 formal votes or ballot papers from Dr. Marat’s ballot box was taken off and treated as informal votes and put them in the informal tray.”
“After the redoing of quality check on Dr. Allan Marat ballot box, they just reluctantly gone through the candidates’ numbers 15, 16, 17 and 18.”
“Accumulated total of 30 formal votes were detected as informal votes during the requality check and amongst the 30 ballot papers, 21 was from Dr. Allan Marat ballot box.”
“Those 21 votes were the winning numbers for Dr. Allan Marat that was hijacked by the RO and candidates.  They are all liable for prosecution for defrauding the ballot papers during the counting for the beneficiary of the declared winner by only 03 votes difference, Graham Piniau Rumet.
“During all these mishaps, I saw candidate #14 Dr Allan Marat walking into the Counting Hall at Maltech Secondary School but was been forced out by those violent supporter and scrutineers.”
“As Dr Allan Marat walking into the counting hall, all were shouting at him and saying all sorts of insulting and threatening words to him as follows: Yupla rausim displa posin man ya igo arasaet, em karim posin blong Tavui ikam insait ya. Em wanpla useless memba ya, 20 years nogat service long Rabaul. Em wanpla arse hole ya, rausim em igo arasaet, nogut mipla kilim em long hia.”
“Many other insulting and threatening words were used but I can’t recall all.”(sic.). (my emphasis).

33.	I have no reason to disbelieve this witness.  He was not a scrutineer.  He is a senior police officer who was attached to the Provincial Headquarters Team in the 2022 General Election.  The respondents did not make any submissions on his lack of credibility if any, or his evidence.  Other witnesses gave similar evidence, but reproducing their evidence would be overkill.

34.	Suffice it to say, a total of eight witnesses, including Sergeant Ukies Kibale, gave evidence that because of threats and intimidation, the returning officer ordered a recount of Counts 1 to 5.  During the said recount, because of sustained threats and intimidation, 21 formal ballot papers for the petitioner were changed to informal votes and placed in the informal tray.  The first respondent’s 3 out of 4 witnesses confirmed that during the said recount 21 formal votes for the petitioner were rendered informal.
 
35.	The returning officer was called by the second respondent.  He also stated that during the recount, 21 formal votes for the petitioner were changed to informal votes as a result of “pressure”.  In paragraph 2 of his affidavit, the returning officer said:

“On Wednesday 13th July 2022, I as Returning Officer was called by the scrutineers and even candidates to suspend counting and recheck/conduct a quality check on boxes polled by teams 118, 119 and 120. I refused twice but after being pressured by candidates, I called the Provincial Returning Officer for advice. The Provincial Returning Officer said to go ahead seeing it was a recheck.  Candidates made it clear that counting won’t continue unless a recheck is done.  One of the scrutineers told me that if their request was not entertained, there would be trouble. We were intimidated. We did a recheck of Counts 1 to 5. Yes, 21 formal votes for the petitioner were rendered informal in the process.” (my emphasis)

36.	I accept the evidence of the returning officer as the truth on how they were forced into making the decision to conduct the recount of Counts 1 to 5.
  
37.	On all the evidence, I find that during Count 6, scrutineers of other candidates became upset when they saw that the petitioner was maintaining a good lead.  They left the counting venue and regrouped with their candidates.  After some discussion, they “violently barged” into the counting venue and presented their demand for a recount.  The returning officer refused twice. 
38.	However, due to sustained threats and intimidation, as described by Sergeant Ukies Kibale, the returning officer caved in to order a recount of Counts 1 to 5.  During the recount, up to five candidates and scrutineers were directing the returning officer on whether a ballot paper was formal or informal.  In the process, the petitioner lost 21 formal votes.
  
39.	In the circumstances, I accept Sergeant Ukie Kibale’s observation that counting was “hijacked.” On that basis, I find that recount of Counts 1 to 5 was unlawful, to say the least. I also find that the petitioner’s 21 formal votes were unlawfully “rendered” informal during the recount.
  
40.	I am so satisfied that the removal of 21 formal votes from the petitioner constitutes an error that affected the result of the election where the first respondent won by only 3 votes.  Accordingly, I am satisfied that the petitioner has made out petition grounds (d), (e), and (f).

Appropriate Relief
41.	What should be the appropriate relief? I have considered ordering a recount of all the ballot papers.  However, a recount is usually appropriate when ballot papers in question are unascertainable.  In this case, all the ballot papers have been accounted for. We know the figures from the first to the last count.  We have the benefit of tally sheets which were tendered into evidence by consent. We can see from the tally sheets how the elimination process was done. 
 
42.	In Form 66B (Distribution of Preferences) of 18th July 2022, we know that the petitioner was on 5,189 votes after the final elimination.  The first respondent was on 5,192 after the final elimination.  The winning margin was 3 votes.  These figures are not disputed, and I so find.
     
43.	The only stigma in the counting for the Rabaul Open Seat is the recount, marred by threats and intimidation, which resulted in the removal of formal votes from certain candidates including the petitioner.  As shown in the Table below, we know the number of votes that were affected in the unlawful recount.

Candidates Name	Ballot Papers	
Francis Tavatuna	0	
 Wayne Coleman Tamsak	1	
Simon Rico Kaumi Jr	0	
Tukau Ekonia	1	
Dr Allan Marat	21	
Raymond Paulias	5	
Taupa Puipui	1	
David Graham	0	
Graham Piniau Rumet	1	
  
44.	I have found that the petitioner’s 21 formal votes were unlawfully rendered informal.  On the other hand, there is no evidence that the other 9 votes distributed to other candidates were formal votes.  However, having found that the recount was unlawful, it is open to the Court, and I so find that the other 9 votes were formal votes that were also unlawfully rendered informal.  I am thus satisfied that these 30 votes were not counted as formal votes for the candidates in question.
 
45.	It should be noted that whether a vote (ballot paper) is formal or not is determined during the counting of first-preference votes.
  
46.	With all the facts and figures available, I am of the view that the Court is at liberty to remove the stigma in the counting for the Rabaul Open Seat.  Threats and intimidation during counting should not be condoned.  Results that were procured through threats and intimidation should be reversed. What was done in the unlawful recount should be undone.  The 30 votes should be returned as formal votes to the affected candidates.   This is not rocket science.  It is common sense and simple logic.  It is “real justice”, in my view.

47.	In that regard, candidates Ekonia Tukau’s final tally of 61 would increase by 1 to 62 votes.  He would still be the first person to be eliminated.  Taupa Puipui’s final tally of 1,203 would increase by 1 to 1,204 votes. He would still be the 5th person to be eliminated.  Wayne Coleman Tamsak’s final tally of 1,515 would increase by 1 to 1,516 votes.  He would still be the 6th candidate to be eliminated.  Raymond Paulias’ final tally of 3,447 would increase by 5 to 3,452 votes but he would still be eliminated as he was trailing the first respondent by more than 400 votes.  See Form 66B of 18th July 2022.

48.	With seven candidates gone, the first respondent’s final tally of 5,192 would be increased by 1 to 5,193 votes.  The petitioner’s final tally of 5,189 would increase by 21 to 5,210 votes.  If the 9 votes ended up being preference votes for the first respondent, his tally of 5,192 would increase by 9 to 5,201, which is still less than 5,210 for the petitioner.

49.	To the people of Rabaul Open Electorate, the petitioner, Dr. Allan Marat, is your winner in the 2022 General Elections by 5,210 votes.  The first respondent did not win.

Orders
            
 50.	The Orders of the Court are:
o	Pursuant to Section 212 (1) of the Organic Law, the whole of the petition is upheld.
o	Pursuant to Section 212(1)(d) of the Organic Law, the Court declares that the first respondent, Graham Piniau Rumet, was not duly elected as Member for Rabaul Open in the 2022 General Election.
o	Pursuant to section 212 (g) of the Organic Law, the Court declares that the petitioner, Dr Allan Marat, is the duly elected Member for Rabaul Open in the 2022 General Election.
o	The petitioner’s security deposit shall be refunded forthwith.
o	Costs is awarded to the petitioner which, if not agreed, shall be taxed.

51.	A copy of the decision will be provided to the Speaker of the National Parliament for his appropriate attention.
________________________________________________________________
Young & Williams: Lawyer for the Petitioner
Jema Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second Respondent