Ipu v Niningi and Electoral Commission [1998] PGSC 32; SC580 (29 September 1998)

Unreported Supreme Court Decisions

SC580

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR N0. 89 OF 1998
SCR NO. 100 OF 1998
BETWEEN: PETER PEIPUL IPU
APPLICANT
AND: PILA NININGI
FIRST RESPONDENT
AND: ELECTORAL COMMISSION
SECOND RESPONDENT

Waigani

Kapi DCJ Hinchliffe Sheehan JJ
29 September 1998
28 October 1998

PARLIAMENT – National Elections – Review pursuant to s 155 (2) (b) of the Constitution.

NATIONAL ELECTIONS – Organic Law on the National Elections and the Local Level Government Election – Absence of outer seal and evidence of tampering of ballot boxes.

PRINCIPLES OF NATIONAL JUSTICE – Reconsideration of an earlier ruling without giving opportunity to the parties to call evidence or make submissions.

Counsel

Mr C. Yalo for the Applicant

Mr J. Kil for the First Respondent

Mr J. Nonggor for the Second Respondent

28 October 1998

KAPI DCJ HINCHLIFFE SHEEHAN JJ: Mr Peter Peipul Ipu (hereinafter referred to as the Applicant) was declared the elected member for the Imbongu Open Electorate in the 1997 General Elections. The result of the election was challenged by Mr Pila Niningi (hereinafter referred to as the First Respondent) in an election petition (EP No. 20 of 1997). The petition was tried by Salika J. and on 29^th June 1998 he declared:

1. that the applicant was not duly elected;

2. that the ballot boxes from Piambil No. 1 and 2, Malga, Tona and Buiyebi be counted;

3. that the votes received by each candidate be added to their respective progress tally from the last count;

4. that the candidate with the highest votes after all boxes have been counted is to be declared duly elected.

The applicant filed a judicial review (SCR No. 89 of 1998) against this decision pursuant to s 155 (2) (b) of the Constitution on the 30^th July 1998.

Before we heard the review, the counting as directed by the trial judge was conducted and on 14^th August 1998, the result of the count was added to the tally of votes for each candidate. The end result was that the first respondent emerged as the winner with 6117 votes from the applicant with 5153 votes. The first respondent was declared the winner and he has since being sworn in as the new member for the Imbongu Open Electorate.

The Electoral Commission (hereinafter referred to as the Second Respondent) filed a judicial review (SCR No. 100 of 1998) against the same decision on the 26^th August 1998.

The applicant filed a Supplementary Review on 2^nd September 1998. This was in effect an amendment of the original judicial review. Leave to amend was sought at the hearing and we granted leave.

Both reviews raise common grounds of review and by agreement of the parties, they were heard together.

Before we deal with the merits of the reviews, we wish to deal with two preliminary matters raised by counsel for the first respondent. The first relate to a notice of motion filed by lawyers for the first respondent for orders that the applicant should pay security for costs in the amount of K50,000.00 and that the hearing of the review should be deferred until such amount is paid into Court. We indicated to counsel for the first respondent that he ought to have brought this motion earlier and not at the hearing of the reviews. We indicated that the parties are ready to argue the reviews and the question of costs will be determined at the same time. Counsel for the first respondent did not press for the orders sought in the notice of motion.

The second point raised by counsel for the first respondent relate to the competency of the reviews. There was no suggesting that the applicants have no standing to bring the reviews. In essence the objection to competency is based on two grounds:

(1) That the applications for review are without merit. In support of this ground counsel submits that the grounds of applications for review are vague, uncertain and made in bad faith.

(2) That the grounds of the applications do not disclose any serious issues to be reviewed by the Supreme Court.

We indicated to counsel for the first respondent that these are grounds relevant to the merits of the reviews rather than proper grounds for objection to competency. We invited counsel to include these submissions as part of the merits of the reviews. We then proceeded to hear the parties on the full merits of the reviews.

We should set out the relevant facts which give rise to the grounds of review for consideration. At the initial counting of the votes after the General Elections, dispute arose as to the counting of five ballot boxes, 0003 (Piambil No. 1), 0004 (Malga), 0027 (Tona), 0028 (Piambil No. 2) and 0036 (Buiyebi). These boxes were excluded from counting.

At the trial before the National Court, the first respondent sought to count these ballot boxes. After the first witness had given evidence on the 10^th June 1998, the trial judge asked to inspect the five ballot boxes. Upon inspection, the trial judge found that box numbers 0028 and box 0003 had outer seals with their respective serial numbers intact. The box numbers 0027, 0004 and 0036 had no outer seals. Upon application made by counsel for the applicant and after hearing submissions from all parties, the trial judge declared that the three boxes without outer seals had been tampered with and therefore they should not be counted.

After this ruling, the trial proceeded in respect of the other two ballot boxes. At the conclusion of the evidence, the trial judge reserved his decision. In his decision handed down on 29^th June 1998, the trial judge reconsidered his position in relation to the three ballot boxes and declared that they should be counted along with the other two boxes which had outer seals.

Counsel for the applicant and the second respondent submit that they were denied natural justice in that they were not given the opportunity to call evidence or make submissions in respect of the reconsideration by the trial judge to count the three ballot boxes.

On the other hand, counsel for the first respondent submits that there was no conclusive ruling made by the trial judge with regard to the three ballot boxes. He submits that it was a tentative finding subject to further evidence that may be called at the trial. He submits that there was evidence which was subsequently called which justified the reconsideration of the counting of the ballot boxes.

After the inspection of the ballot boxes by the trial judge, counsel for the applicant and the second respondent invited the trial judge to make a ruling in respect of the three boxes. Counsel for all parties made submissions in this regard. The trial judge made the following ruling (see page 101 of the review book):

“I have now made a ruling in relation to that application. I am now persuaded that there is prima facie evidence of tampering with three of the five ballot boxes. Without having to hear any further evidence, I am minded to make the declarations now.

There is evidence from the first witness that all five boxes yesterday, the court noted that three of the boxes did not have the outer seals. This simply means that they have been tampered with. The witness said when he received those boxes at Ialibu, they all had seals on them. If they had seals on them at Ialibu then during the course of being transported to Mendi for counting, they had been interfered with. Because they had been interfered with, their integrity is now being questioned as to whether they should be counted.

Section 154 (2) has been pointed out to me by Mr Kil that all boxes be counted, however, it has been argued that it would be absurd for the court to count the boxes if it appears that boxes had been tampered with. It certainly would be absurd to count boxes that appear to have been tampered with and I agree with the submissions in relation to that point but in the circumstances in relation to what I have said, I make a declaration now that those three boxes without the outer seals have been tampered with and that I will not consider counting them.”

It is clear to us from the terms of this ruling that the trial judge made a final ruling in respect of the three boxes. We reject the submission that this was a tentative ruling subject to other evidence in the trial.

It is important to determine the course of the trial after this ruling in so far as it is relevant to the argument based on denial of natural justice. Counsel for the applicant at page 99 of the review book submitted that if three boxes were excluded from the count, he would not lead any evidence in respect of them and that the scope of the trial would be narrowed down to the other two boxes and that he would not make any submissions in respect of the three boxes. It is apparent from the record of the trial that after the ruling was given, the applicant and the second respondent ran their respective cases in accordance with the indications made known to the trial judge. For instance, counsel for the applicant did not lead any evidence on the issue of tampering of the three ballot boxes after the ruling. On page 393 of the review book, Mr Morua for the second respondent in his final submissions made reference to the ruling on the 10^th June 1998 in respect of the three boxes and that they were no longer an issue. His Honour at no stage gave any indication that he was going to reconsider this issue in the light of other evidence. Similarly, the trial judge did not raise the issue of the three ballot boxes during submissions made by counsel for the applicant.

Counsel for the first respondent in his final submissions (on page 414 of the review book) invited the trial judge to revisit the ruling of 10^th June 1998. There was no indication by the trial judge that he was going to reconsider his decision. Mr Tilto, counsel for the applicant reminded the Court of the “clear ruling” already made and submitted that the His Honour should make his order of the 10^th June 1998 as formal part of his decision.

We find that the applicant and the second respondent conducted their case in accordance with the ruling and that the trial judge at no stage indicated that he would reconsider his decision of the 10^th June 1998. In the circumstances, there was a denial of natural justice and consequently there was miscarriage of justice. For this reason we would quash the decision of the trial judge.

Counsel for the applicant and the second respondent submit that in the circumstances of this case, we should direct that the ruling of the 10^th June 1998 should be upheld and subsequently rule that the three ballot boxes should be excluded from the count.

In support of the same order, counsel for the applicant further submit that the count of the said boxes from the 12^th to 14^th August 1998 revealed further evidence of tampering with the boxes and therefore the ruling of the 10^th June should be upheld.

When the box number 0027 (Tona) was counted, the total number of 1664 ballot papers were discovered. The evidence shows that only 1646 ballot papers were distributed. This means that there were extra 18 ballot papers discovered in the box. The evidence also shows that the inner lid had been forcefully lifted up exposing the cleft through which extra ballot papers may be pushed through. The trial judge concluded:

“Considering the state of the inner lid the 18 extra votes and the fact that this box had overnighted at Tona and the various other allegations against the conduct of polling at Tona I have decided that all the ballot papers for Tona be declared informal.

I further note from the Common Roll contains only 945 eligible voters from Tona.”

In respect of box number 0036 (Buiyebi), the padlock was cut. The hinge of the inner lid was broken and the inner lid itself was lifted upward exposing the cleft through which extra ballot papers may be deposited. The trial judge found clear evidence of tampering with this box.

These two boxes were excluded from the count.

The critical box is number 0004 (Malga). The votes counted from this box were exclusively distributed to the first respondent which made the difference in the result of the recount in the present case. All counsel agreed that if this box is excluded from the count, the result of the election would be reversed; that is that the applicant would regain the lead in the total number of votes. A total of 1574 ballot papers were issued for voting. The count of the box reveal that there were 1584 ballot papers in the box. This shows an extra 10 ballot papers. There is no reasonable explanation given for these extra votes. They could not have been deposited at the polling booth. There were only 1574 ballot papers issued. The only explanation in the circumstances is that the extra votes were deposited after the polling was closed and before the box was counted. The only way the extra votes could have found their way into the box was through the cleft to the box. There was no outer seal to secure the box. In view of clear tampering of the other two boxes whilst in custody of officials and clear evidence of tampering in terms of extra ballot papers, the integrity of this box is called into question. In the circumstances, there is grave reason to apprehend that justice has miscarried by allowing this box to be counted.

The only other point we need to consider in respect of the trial judge’s decision to reconsider the ruling of the 10^th June 1998 is the view held:

“I have reconsidered that ruling in the face of later evidence adduced that the Electoral Commissioner had directed all those boxes to be counted which direction had not been carried out. Furthermore, in the light of Mr Supiri’s evidence that he would have carried out the direction the directions had he received them, I have decided to reconsider my earlier ruling.”

The direction referred to in this passage is to be found in s 19 of the Organic Law:

“19. Returning Officer

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

These directions relate to the general duty of a Returning Officer to give effect to the Organic Law subject to any directions of the Electoral Commission. We fail to understand how a direction to count the ballot boxes would overcome counting of votes in a ballot box which has been tampered with. With respect this is not a valid ground for reconsidering the ruling of the 10^th June 1998.

In the result, we are satisfied that the learned trial judge was obliged to abide by his obviously correct ruling of 10 June 1998 excluding the three tampered ballot boxes. If he had wished to resile from that decision before final judgment he could only have done so by drawing the parties attention to this and inviting evidence and submissions that by his ruling he had excluded. Since that was not done we would direct that the votes counted from box number 0004 (Malga) should be excluded from the count. Since it follows from the votes in that box being excluded that the applicant must then take an unassailable lead in the number of votes. This establishes him once more as the successful candidate.

We therefore declare the applicant is entitled to be reinstated as the elected member for the Imbongu Open Electorate.

We further order that the applicant and the second respondent are entitled to the costs of the proceedings in the National Court and the costs of the review.

Lawyers for the Applicant: Karl Yalo & Associates

Lawyers for the First Respondent: John Kil

Lawyers for the Second Respondent: Nonggor & Associates