Review Pursuant to Constitution Section 155(2)(b); Kaiulo, The Electoral Commissioner of Papua New Guinea v James Mobie Genaboro and Ron Ganarafo [1998] PGSC 37; SC567 (5 October 1998)

Unreported Supreme Court Decisions

SC567

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 50, 53 & 65 OF 1998
REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(B)
BETWEEN
REUBEN KAIULO, THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA - APPLICANT
AND
JAMES MOBIE GENABORO - FIRST RESPONDENT
AND
RON GANARAFO - SECOND RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
30 July 1998
5 October 1998

JUDICIAL REVIEW - s. 155 (2) (6) of Constitution.

PRACTICE & PROCEDURE - Amended application to Review - Leave granted.

NATIONAL ELECTIONS - Omission of names of eligible voters on Principal Roll of electors - Authorised use of Preliminary Listing as back-up lists to remedy omissions on Final Roll - s. 49 (2) of Organic Law on National and Local Level Government Elections - Typed List of names from Preliminary list not irregular or improper - Typed list not supplementary list - Valid alteration or correction to Common Roll - s. 62 (1) & (3) of Organic Law.

NATIONAL ELECTIONS - Integrity of untagged Ballot Boxes - No evidence of tampering.

Held

Not irregular or improper for Electoral Commission to authorise officials to refer to Preliminary Listing as back-up to the Common Roll where names of eligible voters on Preliminary Listing were omitted from the Final Common Roll.

Use of a typed list of names from the Preliminary Listing, that were omitted from the Common Roll was not irregular, improper or an illegal practice.

Preparation of such a typed list amounts to a valid alteration to correct the omissions, pursuant to s. 62 (1) & (3) of the Organic Law.

Counsel

J Kuimb for the Applicant

A Kongri for the First Respondent

A Kwimberi for the Second Respondent

5 October 1998

AMET CJ: These are three Applications for Review pursuant to Constitution s. 155 (2) (b), by each of the parties respectively, arising out of the same decision of the National Court in the election petition trial for the Daulo Open Electorate. It was agreed that they be heard together.

The National Court had declared that the sitting member Ron Ganarafo was not duly elected, and ordered that a by-election be held for the Daulo Open Electorate.

The single ground upon which the Court based its declaration was that the presiding officers for Teams 23 and 24 allowed persons whose names were not on the Common Roll to vote at the Kasena Community School from a typed uncertified list, which was unlawful and amounted to illegal practice, and which affected the result of the election, within the meaning of s. 215 (3) of the Organic Law.

The learned trial judge dismissed the other ground of the petition, which was that, because three ballot boxes from the Kasena Community School polling area were not tagged thus raising question as to their integrity they should not have been counted. This forms the basis for the grounds of application for review in SCR No 65 of 1998.

OBJECTIONS TO AMENDED APPLICATION FOR REVIEW NO 53 OF 1998

A preliminary objection was taken at the outset of the applications, to the amended application for review filed in SCR No 53 of 1998, on the basis that it had been filed without the leave of the Court.

The declarations of the National Court were made on 7 May 1998. The original Application for Review was filed on 13 May 1998. The Amended Application for Review was filed on 12 June 1998.

I have taken the view that an application for review pursuant to Constitution 155 (2) (b) does not require leave of the Court. In my opinion there is no stipulation in s. 155 that leave of the Court is required to invoke the inherent jurisdiction of the Court.

Furthermore, there is no stipulation in s. 155 as to when an application for review may be filed, quite unlike an appeal or an application for leave to appeal under the Supreme Court Act. I would imagine that if issue were taken on this, the most logical response would be that it should be within a reasonable time. That of course is not the issue raised here.

Because there is no time stipulation as to when an application for review may be filed by, and because I consider that it need only be filed within a reasonable time, then I do not consider that leave is necessary to file an amendment to the original application. In fact, in my view, in strict principle because there is no time stipulation within which to file application for review an applicant may withdraw an application and refile a fresh application for review without the need to obtain leave of the Court.

By analogy, an appeal or an application for leave to appeal under the Supreme Court Act, which has to be filed within 40 days, can be withdrawn and filed afresh within the 40 days without the need to obtain leave of the Court. If within the statutory period of 40 days a party chooses to withdraw the initial document and file afresh, there is no requirement to obtain leave of the Court to do that, because the party is still within the time limitation to file its appeal or an application for leave to appeal. In like manner, if an applicant chooses to withdraw an application for review filed within reasonable time, and file an amended application I do not consider that there is any requirement to obtain leave of the Court.

When the analogy of an appeal and an application for leave to appeal under the Supreme Court Act is applied to facts of the filing of the amended application for review, it becomes all more apparent that leave is not necessary in this case. The decision, which application is made to review, was made on 7 May 1998. The initial application for review was filed on 13 May 1998 and the amended application for review was filed on 12 June 1998. The amended application was filed within 36 days of the decision application is made to review.

In conclusion I do not consider that leave is required to file an amended application for review or indeed a fresh application for review, as long as they are filed within a reasonable time from the date of the decision being sought to be reviewed.

SC REVIEW NO’S 50 & 53 OF 1998

The Electoral Commission and Ron Ganarafo, the First Respondent to the petition, have applied for review of the decision on the following common grounds:

· The learned trial judge erred in concluding that, the typed list was a Supplementary list, the use of which was unlawful and an illegal practice, which affected the result of the election.

· The trial judge erred in law in failing to give consideration to whether it was just to declare the Applicant not duly elected.

SC REVIEW NO 65 OF 1998

The successful Petitioner James M Genaboro, has also filed application for review of the Courts decision on the ground that it erred, when having found that the ballot boxes numbered 0047(B) and 0024 were tampered with, it declined to uphold the Petition and to declare the Petitioner duly elected, on the basis that the Petitioner had consented to the counting of the ballot boxes.

USE OF THE TYPED LIST

The undisputed evidence relating to the compilation and use of a typed list of eligible voters is as follows. There were widespread complaints and concerns throughout many electorates including the Daulo Open concerning the omission of names of eligible voters on the final Principal Roll of Electors for the 1997 National General Elections. This resulted in the Electoral Commissioner issuing Circular Instruction No 26/97 on 18th June, 1997 to all Area Managers, Provincial Electoral Officers, Provincial Returning Officers and Returning Officers, authorising the use of the Preliminary Listing compiled in 1996 as back-up lists for the purpose of enabling eligible voters, whose names were not on the Final Roll but were on the Preliminary Listing, to vote.

In the Daulo District of the Daulo Open Electorate complaint was made to the Returning Officer for the Electorate, Mr Leo Kaka, that eligible voters from three villages had their names omitted from the Final Common Roll. They had had their names included in the Preliminary Listing of November 1996. The Returning Officer raised the concerns with the Provincial Returning Officer Mr Ben Beiyau, who advised that similar concerns had been raised in other electorates and that the Electoral Commission had authorised that the Preliminary Listings be used as backup lists. The PRO then authorised the Returning Officer for Daulo Open to type out a Supplementary List from the Preliminary Listing of November 1996, and to certify it as a true record of eligible voters in the villages affected, for use by the polling teams at the Kasena Community School polling area, together with the Final Roll.

The Returning Officer for Daulo took out the relevant pages from the 1996 Preliminary Listing and had the names of eligible voters that were omitted from the Final Roll typed out onto what he and the Provincial Returning Officer described as the Supplementary List, which he signed and certified and personally hand delivered to the Team Leaders of Teams 23 and 24 for use at Kasena Community School polling area, where eligible voters from the three affected villages were to cast their votes. The Daulo Returning Officer also provided similar Supplementary Lists to the polling booths at Nomba Plantation and another at Kongi No. 2 polling place.

The Applicant, Ron Ganarafo, first submitted that the learned trial judge erred in law in holding that the typed list was a Supplementary List and that it was additional to the Final Roll. Reliance was placed on the case of Mond v Okoro [1993] PNGLR 385, for the proposition that this was a correction to omission in the compilation of the Final Roll, pursuant to s. 62 of the Organic Law, in that the voters had been properly enrolled in the Preliminary Listing in 1996 to be entered on the Final Roll but by omission on the part of the Electoral Commission their names were omitted.

The Respondent James Genaboro responded that the learned trial judge was correct in holding that the typed list was not produced and certified in accordance with s. 49 and s. 123 of the Organic Law, and the trial judge was correct in holding that it was unlawful and amounted to an illegal practice to have used it. It was submitted that the trial judge was correct in law in holding that the illegal practice was likely to affect the result of the election because the actual number of persons who voted from the typed list was 276, which exceeded the winning margin between the Petitioner and the Respondent which was 267.

THE ORGANIC LAW PROVISIONS

Section 44 of the Organic Law provides for a Roll for each electorate. Section 46 provides that all persons who are entitled to be enrolled shall be enrolled. New Rolls for any electorates shall be prepared whenever the Electoral Commission, by notice published in the National Gazette, directs. Section 47 enables a Returning Officer who receives a new Roll for an electorate the power to make additions, alterations, corrections and remove names from it, in accordance with information received by him between the date of the notice directing the preparation of new Rolls and the date of the notification that the Rolls have been prepared. Section 49 provides for the printing of the Rolls and for the printing of Supplemental Rolls setting out additions since the latest print of the Rolls, at the direction of the Electoral Commission.

ALTERATION OF ROLLS

Section 60 provides the time frame within which claims for enrolment, transfer of enrolment and removal from a Roll may be made. Section 62 provides that:

(1) In addition to other powers of alteration conferred by this Law, a Returning Officer may alter a Roll kept by him by:

(i) correcting a mistake or omission in the Roll; and

(ii) correcting a mistake or omission in the particulars of the enrolment of an elector; and

...

(2) ...

(3) No alteration under this section shall, without the authority of the Returning Officer, be made at any time after 4 p.m. on the day of the issue of the writ for an election and before the end of the polling period for the election.

WAS THE TYPED LIST A SUPPLEMENTAL LIST?

I do not consider that the typed list of names of eligible voters omitted from the Preliminary List is a Supplemental Roll that was prepared and printed as required by s. 49 (2) of the Organic Law. Although the Provincial Returning Officer and the Returning Officer for Daulo Open described the printed list as a Supplemental List I do not consider that it is strictly a supplemental list.

ALTERATION OF THE ROLL - S. 62(1) & (3)

I consider that the production of the typed list, in the undisputed circumstances, was in the nature of an alteration to correct omissions in the Roll, pursuant to the enabling power vested in the Returning Officer by s. 62 (1). Section 62 (3) empowers the Returning Officer to authorise alteration to the Roll under s. 62, to “be made at any time after 4 p.m. on the day of the issue of the writ for an election and before the end of the polling period for the election”.

USE OF THE 1996 PRELIMINARY LIST

I consider that the 1996 Preliminary Listing is an official master list prepared by the Electoral Commission for the purpose of updating and compiling the Final Roll for the National General Election. Eligible voters who had given their names to be enrolled were first listed in the Preliminary Listing in 1996. When the Final Rolls were put out and eligible voters found their names were not on them they quite legitimately complained and showed that their names were on the Preliminary Listings but were omitted from the Final Roll through no fault on their part. In response to these omissions on its part the Electoral Commission authorised the use of the Preliminary Listings as back up to enable eligible voters to vote.

I consider the circumstances in this case to be the same as in the case of Mond v Okoro (supra). In that case the Returning Officer discovered just prior to the polling that there was a mistake in the compilation of the principal roll where a number of pages containing names of a large number of eligible voters which were to have been included on the principal roll had been left out. The Returning Officer went to his master roll, which is a large volume of all the names compiled from the work of officers during their village surveys the previous year. He found the missing pages of names and gave them to the presiding officer of the relevant team. The Court held that this was no more than the Returning Officer acting under s. 62 of the Organic Law and correcting an omission in the roll and reinstating a name removed by mistake. The learned trial judge said at p. 387:

“I am satisfied that the typed pages produced and used were valid lists of enrolled voters and that there was an accidental omission by the officials in the compilation of the principal rolls. This was not a case for a supplementary roll; that is, for newly enrolled voters. These voters had been properly enrolled in 1991. The index shows that, as does the master roll. I am satisfied that the Returning Officer was empowered to act as he did. The converse is that if he had not so acted, those persons on those lists may have been denied the right to vote.”

The trial judge considered that there was a distinction between that case and this, in that in Mond v Okoro (supra) the Returning Officer used the appropriate pages from the master roll which contained the omitted names of eligible voters. I do not consider that that is a significant distinction. The significant common factor, in my opinion, is that an official document, the Preliminary List, compiled for the purpose of updating the Common Roll was authorised to be used as back up list in order to allow eligible voters whose names were omitted from the Common Roll to cast their votes. I consider that the fact that a typed list was used is not irregular or improper. The typed list was certified and signed by the Returning Officer as containing names from the Preliminary List that were omitted from the Final Roll. I do not consider that to have typed out the names of eligible voters so omitted from the Preliminary List, to enable them to exercise their right to vote is so different from using the Preliminary List itself as in Mond v Okoro (supra). In my opinion, either practice is acceptable. The important consideration is that eligible voters who had properly enrolled are enabled to exercise their right to cast their vote.

It should be borne in mind that an important consideration in a democratic election is the responsibility or duty of the Electoral Commission to have facilitated, in an efficient and legitimate manner, the exercise of the constitutional right of all eligible voters to cast their votes for the candidate of their choice. If by its error or omission eligible voters’ names were omitted from inclusion in the Final Roll, and thus denying them a right to cast their vote, then it is incumbent upon the Electoral Commission to rectify that error or omission in an appropriate and legitimate manner to facilitate the exercise of that right.

A most important consideration in an election is the right of every citizen eligible to vote to be enabled to exercise that right, and any error or omission on the part of officials that would frustrate this right ought to be over-come wherever it is legitimately possible so that the exercise of this right is not unduly frustrated by technicalities. Officials and Courts need to be cautious in too readily disallowing and denying the count of otherwise legitimately cast votes, as a result of error or omission on the part of officials. This is a grievous denial indeed. Eligible voters can be quite legitimately aggrieved if genuine exercise of their right to cast a vote for the candidate of their choice were denied effect as a result of official error or omission.

I am satisfied that the typed list was not a supplementary list. It was a valid alteration or correction to the Roll as a result of omission of names of eligible voters whose names were on the Preliminary List and which ought to have been on the Final Roll. This is authorised by s. 62 (1) & (3). The use of such a list is in my view not unlawful, nor does it amount to an illegal practice within the meaning of s. 215 (3) of the Organic Law.

The result of this conclusion on this ground would be that the application for review would be upheld, the declaration by the learned trial judge be quashed and the declaration that the applicant Ron Ganarafo is the duly elected member for Daulo Open be restored.

SCR NO 65 OF 1998

The Applicant in this application who is the successful Petitioner has also applied to review the decision on the grounds; firstly, that the trial judge erred in law in failing to declare him duly elected after finding that 276 people from the First Respondent’s rest house voted from an illegal list, which resulted in the Applicant scoring 2,143 votes, 6 ahead of the First Respondent who polled 2,137 votes, as there was overwhelming evidence that all the voters from the illegal list voted for the First Respondent. Secondly, it is contended that the learned trial judge erred in law in dismissing ground 8 (e) of the Petition on the basis that the Petitioner consented to the counting of ballot boxes 0047 (B) and 0024, after finding that the integrity of the ballot boxes were put into question.

The Applicant has submitted that the trial judge should have held that the two ballot boxes, from which the First Respondent scored 512 votes, were wrongly counted. They should have been properly disallowed, with the resultant tally making the Applicant the winner. He thus claimed the relief that he be declared the duly elected member for Daulo Open.

THE INTEGRITY OF BALLOT BOXES 0024 AND 0047B

Normally the ballot boxes are supplied with a set of two tags with identical serial numbers; one is placed on the inner lid of the ballot box and the second is placed on the outside lid. The outside lid is also secured with a padlock to further secure the ballot box from interference.

The evidence in relation to these two ballot boxes is that ballot box No 0024 was the only one originally issued for the Kasena Community School, polling place. It was supplied with the normal two tags plus a padlock. The Provincial Returning Officer had underestimated the population of the eligible voters and so when this box was filled extra ballot boxes were required. Boxes 0047A and 0047B were thus obtained. These two boxes did not have tags, so one of the tags for box 0024 was used on the extra box 0047B. These tags were placed on the inside of boxes 0024 and 0047B and a padlock on the outside but no outer tag. Box 0047A was not counted but no issue arises in relation to it. These ballot boxes were transported to Goroka in the custody of police escort. At the police station because these two boxes did not have outer tags the police were apprehensive and did not put them into the container immediately but kept them in the back of the police vehicle until the Provincial Returning Officer arrived. After some discussion with scrutineers and the police as to the circumstances of the boxes not having outer tags, the Provincial Returning Officer arranged for outer tags to be placed on the two boxes and then they were put into the container.

The next day a general meeting was held between all 26 candidates, their scrutineers, the Provincial Returning Officer, the polling officials and the Provincial Police Commander concerning the integrity of the three ballot boxes 0024, 0047A and 0047B. After presiding officers explained the reasons for the boxes not having outer tags placed on them all the parties agreed that boxes 0042 and 0047B be counted but not 0047A, and signed a document to that effect, except the winning candidate who also wished box 0047A to be counted.

The learned trial judge made these findings in relation to this issue:

“In this case the petitioner alleges that as the three boxes were not tagged they should not have been counted because the Electoral commission and the Returning Officer could not guarantee the integrity of the ballot box and the ballot papers. There is merit in that submission. However, evidence is that on the 19th June 1997 all the candidates and their scrutineers agreed that these boxes should be counted and they were counted. The petitioner says they only agreed to count the boxes to ease the tension then. While that may be so, one cannot now come back and give that excuse. It is my view that once he gave his consent, whatever the circumstances, to have those votes counted he is bound by his own agreement to count them. In the circumstances I reject that ground on the basis that he had agreed to have those boxes counted.”

Section 122 of the Organic Law makes provision for ballot boxes in the following terms:

Each polling booth shall be provided with the necessary ballot box or ballot boxes.

A ballot-box shall have a cleft in the cover through which the ballot-papers may be deposited in the box, and shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot-papers or other matters or things can be deposited or placed in the box or withdrawn from it.

A ballot box shall be capable of being securely fastened with a lock.

It is important to note the requirements of Subsections (2) and (3), which do not specifically state that a tag on both the inside and the outside shall secure the ballot box. Subsection (2) merely states that a ballot box “shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot-papers or other matters or things can be deposited or placed in the box or withdrawn from it”. Subsection (3) also merely requires that “a ballot box shall be capable of being securely fastened with a lock”. The two boxes 0024 and 0047B were each secured on the inside with a tag and “securely fastened with a lock” on the outside, as the minimum requirement of s. 122, so that “no ballot papers or other matters can be deposited or placed in the box or withdrawn from it”. There was no allegation or evidence that any ballot papers or other matters were deposited or attempts made to deposit any in the two boxes. In my opinion, simply because the boxes did not have an outer tag that does not render their integrity questionable. They each had a lock that was intact on the outside. There was no basis therefore on this evidence for the boxes not to have been counted. Secondly, there was no allegation in the Petition that the ballot boxes were tampered with whilst being brought to Goroka. They were in Police custody all the time. There is no allegation that, at the police station they were tampered with. They always had the pad locks on the outside. They were under police custody. The agreement on the part of the parties concerned to count the ballot boxes in my view affirms their satisfaction that there was no validity to the allegations as to the integrity of the boxes. In the end result, in my opinion, this ground of application has no merit and is dismissed.

The result therefore is that Applications for Review Nos 50 and 53 of are granted, the declarations of the learned trial judge are brought up into this Court and quashed, and the declaration that the Applicant Ron Ganarafo is the duly elected member for Daulo Open is restored.

KAPI DCJ: Mr Ron Ganarafo (hereinafter referred to as the Second Applicant) was declared the winner of the Daulo Open Electorate in the 1997 National Elections.

Mr James Mobie Genaboro (hereinafter referred to as the Third Applicant), an unsuccessful candidate, filed a petition against the result of the election in EP No 44 of 1997. The petition was tried by Salika J and on the 7th May 1998, he declared that the second applicant was not duly elected and directed that a by-election be conducted for the Daulo Open Electorate.

The Electoral Commission (hereinafter referred to as the First Applicant) filed a judicial review (SCR No 50 of 1998) against the decision of the National Court under s. 155 (2) (b) of the Constitution on the 11th May 1998.

On the 12th May 1998, the second applicant filed a separate judicial review (s. 155 (2) (b)) against the same decision (SCR No 53 of 1998).

On the 27th May 1998, the third applicant filed another judicial review (s. 155 (2) (b)) against the same decision (SCR No 65 of 1998).

Each of the reviews raise similar or common issues and by agreement of the parties, the three reviews were heard together.

OBJECTION TO AMENDED REVIEW (SCR NO 53 OF 1998)

At the hearing, counsel for the third applicant raised objection to an amended review filed by the second applicant on 12th June 1998 on the basis that it had been filed without the leave of the Court.

Judicial review is governed by s. 155 (2) (b) of the Constitution and there is no Act of Parliament or Rules of Court which govern questions of amendment to judicial review. A party is not entitled to file an amendment without the leave of the Court. The Court has power to grant or refuse any application for an amendment in the exercise of its discretion.

The question is, whether, we should allow the amendments in the present case. I have considered the submissions by counsel and I am satisfied that in all the circumstances, no prejudice is caused to any party by granting the amendments. In the exercise of my discretion, I grant leave for the amendments which have already been filed and served on all parties.

These reviews raise several issues in relation to two matters: (1) use of a separate typed list of voters by the electoral officials at the election; and (2) the counting of votes in two ballot boxes which did not have outer tags. These grounds were pleaded in the petition as follows:

“8(d) On 18th June, 1997, a typed unauthorised Supplementary List of roll was used at Kasena Community School Rest House, by teams 22, 23 and 24. The Supplementary List was provided by Eddie Bowoku, the First Respondent’s Campaign Co-ordinator to the Electoral Officials to use at 1.00 pm. All the candidates for Daulo Open were not informed of the existence of the Supplementary Roll, nor it was properly certified and distributed to other polling places. It is alleged the Supplementary Roll was used to procure extra votes for the First Respondent.

(e) On 19th June 1997, all seven ballot boxes from Kasena Community School were taken to Goroka in an unauthorised vehicle by the First Respondent’s supporters and 3 of those boxes were untagged and unlocked. One of the boxes is still in the Police custody. The candidates and scrutineers of other candidates including the Petitioner disputed the boxes and objected to them being counted as they were corrupted, but the Provincial Returning Officer Mr Ben Bayau put on the tags and included those boxes for counting. It is alleged that those boxes were illegal boxes and should not have been counted. The ballot boxes numbers are 0047 (A), 0047 (B) and 0024. There were two 0047 boxes. The polling team leader for Team 24, Mr. Killen Kumono admitted that those boxes were not tagged and locked.

(f) The said boxes were taken to Asaro at about 10.30 am in the Company of the First Respondents supporters including Eddie Bowoku. The said Eddie Bowoku, used force and threats and ordered all extra unused ballot papers to be put on the vehicle with the ballot boxes. It is alleged that this was done to procure extra votes for the First Respondent.”

In relation to ground 8 (d) of the petition, the trial judge dealt with the issue in the following terms:

“The question is should the list be accepted. My view is that if this type of lists were allowed to be produced it would lead to abuse. In my view it was not proper for Mr Kaka to produce an uncertified list. In my view the list was invalid and should not have been issued without the certification. Section 123 of the Organic law in my view is clear that a list of voters to be used by a presiding officer is to be certified. The reason for this is obvious and that is to avoid any made up lists floating around. Provincial Electoral Officer had directed that the supplementary list had to be certified. The returning officer for Daulo however did not have the list certified. I therefore find that the use of the list in the way it was used was not proper and in my view was unlawful and amounts to an illegal practice.”

Later in his judgement the trial judge concluded:

“I now go back to the first ground which I have upheld that the providing of an uncertified list was an illegal practice by an electoral officer. Because it was an illegal practice, the court cannot declare that the person returned elected was not duly elected or declared an election void, unless the court is satisfied that the illegal practice may have affected final result of the election. I refer to Rea v Raurua [1977] PNGLR 338 to support that proposition.

In this the first respondent won by 267 votes from the petitioner. There were a total of 26 candidates contesting for the seat. A total of 276 people casted their votes from the illegal list. Would that affect the result. The list of names was made up of people from the First Respondent village. The Court cannot ask those people how they voted. However, because the list is made up of voters from the first respondent’s villages he was expected to get a lot of those votes. I am guided by s. 217 of the Organic Law to say that. I cannot be sure if all of them had voted for the first respondent. To answer my own question I would say that ‘yes’ the result would be affected but by how much I am not able to say. It would be very close and I am of the view that it would have affected the final outcome.”

Several issues arise for consideration. The first is, whether, the typed list used by the officials was a certified list? On the assumption that the list was not certified list, did that amount to an illegal practice under the Organic Law on National and Local Level Government Elections (hereinafter referred to as the Organic Law) What effect if any such an illegal practice or irregularity has on the result of the election?

CERTIFIED LIST

It is necessary to set out the requirements of the law with regard to what list is authorised to be used at the election. Section 123 of the Organic Law is in the following terms:

“123. CERTIFIED LIST OF VOTERS

The certified list of voters to be used by a presiding officer at a polling place shall be the list of the electors on the Roll enrolled for the electorate for which the polling place is prescribed certified by the Returning Officer, and shall before the hour of commencing the poll in the polling area be delivered to the presiding officer for his guidance during the polling.”

This provision speaks of a certified list of voters to be used by a presiding officer. This list is compiled from electors on the Roll and is certified by the Returning Officer. A certificate to this effect ensures that the names on the list are compiled from the Roll.

A Roll is established for each electorate (s. 44) and is in a form determined by the Electoral Commission (s. 45 (1)). The Rolls may be printed in accordance with the direction of the Electoral Commission (s. 49 (1)).

Supplementary Rolls may be printed setting out additions since the latest print of the Rolls (s. 49 (2)). Such additions may be made and entered on the Supplementary Roll in accordance with claims for enrolment or transfer of enrolment (s. 54).

A New Roll may be prepared at the direction of the Electoral Commission upon notice published in the National Gazette (s. 46 (2)).

It is clear from these provisions that a Common Roll contains list of all eligible voters who are entitled to vote at an election. There is no question of a Supplementary Roll (s. 49 (a)) or New Roll (s. 46 (2)) arising from the facts of the present case.

For the purposes of the election, a certified list of voters may be extracted from the Common Roll, by the Returning Officer for use for the purposes of voting (s. 123 of the Organic Law). As far as I can determine from the evidence, no such certified list was used for this electorate during the election. I will come back to the question of whether the absence of such a certified list affects the validity of the election.

What then is the status of the typed list of voters? The evidence establishes that the typed list came into existence as a result of complaints that the 1997 Common Roll omitted names of eligible voters. The nature of the complaint was that names of eligible voters were compiled in a Preliminary List about November 1996 and this was sent to the Electoral Commission Office in Port Moresby for printing of the Common Roll. When the Common Roll was printed and made available a few days before the election, it was discovered that many of the names listed in the Preliminary List were omitted. The explanation given by Mr Ben Bayan, the Provincial Returning Officer at the trial was that the omission was made at the Electoral Commission printery in Port Moresby.

Upon consideration of the complaints, the Provincial Returning Officer consulted the Electoral Commissioner who authorised the use of the Preliminary List as a back up. Returning Officer then typed a list of names of eligible voters from the Preliminary List, names which were omitted from the 1997 Common Roll.

What in fact happened here was an alteration of the Common Roll pursuant to s. 62 (1) (a) of the Organic Law. Such an alteration may be made by the Returning Officer before the end of the polling period for the election (s. 62 (3)). Section 65 requires that the reason for alteration, date of the alternation should be initialled by the Returning Officer. The evidence establishes that the typed list was initialled by the Returning Officer and 18th June was entered as the date of alteration on the first page of the list. While the reasons for the alteration is not noted, I am satisfied from all the evidence that the typed list is an alteration of the Common Roll pursuant to s. 62 (3) of Organic Law. As such it is part of the Common Roll (as altered). It follows from this conclusion that the typed list has the same status and authority as the 1997 Common Roll and therefore names of electors in both the 1997 Roll and the typed list are entitled to vote at the elections.

I find that the trial judge erred in law in reaching the conclusion that the typed list was not authorised to be used at the elections.

I come back to consider the question; whether the absence of a certified list under s. 123 of the Organic Law affects the validity of the election. A certified list is a list of electors compiled from the Common Roll (as altered from time to time). It is therefore based on the Common Roll. It appears from the evidence that electoral officials used the Common Roll itself (with the alterations made in accordance with the Organic Law) to conduct the elections. Having regard to the terms of s. 217 of the Organic Law, the validity of the election on the basis of the 1997 Roll (as altered) was proper and no question of invalidity arises.

In view of the conclusion I have reached, it is not necessary to consider the other related issues.

BALLOT BOXES WITHOUT OUTER TAGS

The trial judge set out the facts in this regard:

“Evidence is that three of those ballot boxes were brought into the Goroka Police Station without the outer tags affixed. Box 0047 (A) was broken and so was not counted. Boxes 0047 (B) and 0024 went on to be counted. Those boxes were brought in a police vehicle without the electoral officials. Those boxes were counted.

It is conceded that the ballot boxes were not tagged outside. Those tags have a function to play. The locks can be easily cut off with bolt cutters. The tags too can be easily cut off with a knife. If a lock is cut the tag too must be cut to gain entry into the ballot box. The tag has serial numbers on it. When a box is tagged the serial number is noted by the presiding officer and all the scrutineers. When the box is to be opened at the Counting Centre the presiding officer and the scrutineers check the tag number. If the tag number is the same as their record then nobody had interfered with the box, but if the serial number of the tag is different then someone has interfered with the box.

In this case the petitioner alleges that as the three boxes were not tagged they should not have been counted because the Electoral Commission and the Returning Officer could not guarantee the integrity of the ballot box and the ballot papers. There is merit in that submission. However, evidence is that on the 19th June 1997 all the candidates and their scrutineers agreed that these boxes should be counted and they were counted. The petitioner says they only agreed to count the boxes to ease the tension then. While that may be so, one cannot now come back and give that excuse. It is my view that once he gave his consent, whatever the circumstances, to have those votes counted he is bound by his own agreement to count them. In the circumstances I reject that ground on the basis that he had agreed to have those boxes counted.”

The second applicant raised the issue of not counting the broken box No 0047 (A) in his review. I do not find any convincing arguments for the submission that this box should be counted. I consider that the box was broken and therefore subject to tampering. Its integrity was called into question. If the second applicant wished to rely on counting this box, he ought to have raised this issue in a petition before the National Court. He did not. He cannot raise it now on an application for review. I dismiss this ground.

In relation to boxes 0047 (B) and 0024, counsel for the third applicant submits that the trial judge erred in approving the counting of these two boxes. He submits that while the trial judge was correct in accepting the position that the integrity of the two boxes were in question, he erred when he held that because the third applicant agreed with other candidates and scrutineers to count the boxes, he was bound by that agreement.

In view of the presence of the inner tag in the two boxes, there is no question of any ballot papers being removed from the boxes. The only question raised by the lack of outer tags is the possibility of removal of the outer lock either by cutting the lock or using the key to open the ballot box which exposes the cleft in the cover through which ballot papers may be inserted. The trial judge was rightly concerned about the integrity of the ballot boxes and the ballot papers.

In order to be satisfied of the integrity of these boxes, the electoral officials had to explain the absence of the outer tags. The evidence is not disputed that the presiding officer did not fix outer tags to the two boxes because he ran out of tags. In my view that satisfactorily explains the absence of the outer tags.

The only question that remains to be considered in respect of the integrity of these ballot boxes is the possibility of interference with these boxes by inserting ballot papers in the two boxes while they were being transported between Kasena and Goroka Police Station. The undisputed evidence is that the ballot boxes were taken into police custody and they were transported in a police vehicle to Goroka Police Station. There is no suggestion by anyone that the ballot boxes were interfered with during this period. Consistent with this, all candidates and their scrutineers agreed to count these two boxes during the counting of votes. In the circumstances I cannot find any reason to doubt the integrity of the two ballot boxes. The counting of votes in these two boxes were valid.

The net result of my conclusion is that I would quash the decision of the trial judge and reinstate Mr Ganarafo as the duly elected member for Daulo Open Electorate.

LOS J: I have read the early draft judgment by Kapi DCJ endorse the issues raised by the three reviews. The first issue relates to use of the typed list. For this issue I start on the premise that the Organic Law is meant to facilitate the citizens right to vote. Thus the Organic Law imposes obligations upon the Electoral Commissioner and the officers to facilitate and ensure that all the citizens who want to exercise their rights must do so. Certain obligations are also imposed on the citizens to fulfill hence entitling them to exercise their rights under s. 50 of the Constitution. That is clear in sections 1 (f) and 52 (1) of the Organic Law. Many people including 276 subject of this review had given their names to the electoral officers who were satisfied that these people were qualified and entitled to vote in the electorate concerned. They had nothing more to do. The obligation was on the electoral officers to put the names on the Roll. But for some reason the 276 names were not on the Roll. No ill intent was meant nor was it claimed. In my view it begs the question if it is sought to disqualify these people from voting because they were not on the Roll (sections 44, 45); not in any Supplementary Roll (s. 54); not in a new Roll (s. 46(2)); and not in a certified list of electors (s. 123). They could not be expected to be in any of these because some electoral officers appeared to have forgotten to include them. When this mistake was pointed out to them, they took steps - practical steps - to allow these people to exercise their constitutional rights to vote. And the way to do, and it seems the only way, was to exercise the powers in section 62 of the Organic Law. Subsection (3) authorizes an alteration provided the Returning Officer authorizes it “any time after 4 pm on the day of the issue of the writ for an election and before the end of the polling period for the election”. The prepared list may be outside any of the procedural steps but it is not in my view offensive to any substantive part of the Organic Law. In fact the substantive parts of the Organic Law seek to ensure that citizens exercise their rights to vote. In my view therefore the trial judge was in error when he ordered that those votes be excluded on the grounds that they were wrongly counted.

I would therefore bring up the trial judges decision in relation to the typed list and quash it.

BALLOT BOXES WITHOUT OUTER TAGS

The trial judge found as a matter of fact that three ballot boxes brought into Goroka police station from Kasena had no outer tags. Box 0047 (A) was partly damages so the ballot papers in it were not counted. The votes in boxes 0047 (B) and 0024 were counted.

The second application raised the issue of not counting the broken box 0047 (A). The trial judge had gone through the function of tags and locks. He was satisfied that because of the breakage of the box its security and integrity was in question. Aside from the value of the trial judges decision the second applicant did not raise this issue at the trial. He cannot now raise it. I would not grant any application to review on this ground.

In relation to the two remaining boxes, the third applicant submits that the trial judge erred in counting the ballot papers in them. The trial judge did raise the issue of the integrity of the boxes because they had no outer tags. But it was explained in evidence by the presiding officers that it was because they had run out of outer tags. The boxes did have padlocks outside and the inner tags. I would start with some basic trust on the election officials and those assigned to assist like the policemen in the conduct of the election unless there is some evidence that would indicate any irregularity. There was no evidence before the trial of any tampering at the polling place and at the police station. The boxes were locked up in a container at the police station.

As to the duration of the dispatch of the boxes from Asaro and delivery at Goroka, nothing was produced in court to create any suspicion. All the parties agreed that the boxes should be counted, there was no objection, opposition or production of any evidence of illegality. If it there was any evidence of interference or illegality of course an agreement by the parties to count the boxes could not nullify the illegality. If were otherwise it would run into the face of the citizens right to freely vote for a person they wished. In my view no error was shown by the applicant and therefore I would refuse the application to review.

ORDERS OF THE COURT

1. Applications SCR Nos 50 and 53 of 1998 are granted.

2. The declarations of the trial judge are quashed.

3. The declaration that Ron Ganarafo is the duly elected member for the Daulo Open Electorate is restored.

Lawyer for the Applicant: Nongorr & Associates

Lawyer for the First Respondent: Dowa Lawyers

Lawyer for the Second Respondent: Warner Shand Lawyers