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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]
SCR 22 of 2003
REVIEW PURSUANT TO CONSTITUTION
SECTION 155 (2) (B)
APPLICATION BY BEN SEMRI
AND:
SCR NO. 23 OF 2003
REVIEW PURSUANT TO CONSTITUTION
SECTION 155 (2) (b)
APPLICATION BY THE ELECTORAL
COMMISSION OF PAPUA NEW GUINEA
Waigani: Kapi CJ., Los J., Salika J.
21st July, 3rd December 2003
PARLIAMENT – Election – Disputed election petition - Judicial Review – Constitution, s 155(2)(b) – Organic Law on National and Local-Level Governments.
ADMINISTRATIVE LAW – Application to review National Court decision on election matters – Where no appeal to the Supreme Court under s 220 of the Organic Law on National and Local-Level Governments.
ELECTIONS – Petition disputing result of National Elections – Failure to affix inner and outer seal tags on the ballot box – Whether failure to affix plastic seals constitute "error of omission" under s 218 of the Organic Law – Whether error or omission affected result of the election.
Cases Cited:
Malipu Balakauv. Paul Torato [1988] PNGLR 242
Kasap and Yama [1988-89] PNGLR 197
Avia Aihi v The State [1981] PNGLR 81
Kalit v Pundari (Unreported Judgment of the Supreme Court, SC569)
Baira v Genia (Unreported Judgment of the Supreme Court, SC579)
Peipil v Niningi (Unreported Judgment of the Supreme Court, SC580)
Moi Avei v Electoral Commission & Maino (Unreported Judgment of the Supreme Court, SC 584).
Mune v Agiru (Unreported Judgment of the Supreme Court, SC590)
Maino v Avei (Unreported Judgment of the Supreme Court, SC633)
Mathew Poia v Electoral Commission & Fabian Inne (Unreported Judgment of the National Court dated 20th June 2003, N2390)).
Biri v Ninkama PNGLR 342 at p. 346
Albert Karo v. Carol Kidu [1997] PNGLR 28
Reuben Kaiulo v James Ganarabo & Ron Ganarafo (Unreported Judgment of the Supreme Court dated 5th October 1998, SC567):
Counsel:
R. K. Naru for Ben Semiri
J. Kongri for Electoral Commission
R. Pato for the Respondent
3rd December 2003
BY THE COURT: This is an application to review a decision of the National Court (Injia J as he then was) under s 155 (2) (b) of the Constitution.
The National Court tried an election petition which was filed by Assik Tommy Tomscoll against the election of Ben Sembri, member for Middle Ramu Open Electorate in the 2002 General Elections
The National Court made two interlocutory rulings during the trial of the Petition. The first relate to an objection to the competency of the Petition. On 15th January 2003, the Court ruled that all the grounds of the Petition were incompetent and dismissed them with the exception of grounds 9 D (iii), 10, 11 and 13 of the Petition as follows:
"9 D (iii) The Electoral Officials failed to secure Ballot Box No. 0056 used by Team 10 at Jamm polling booth. At the commencement of polling the Presiding Officer failed to securely fasten the cover of the Ballot Box. At the closure of polling, the presiding officer failed to publicly and securely close, fasten or lock the Ballot Box by placing the inner seal and outer seal, as a result the scrutineers were not given the serial numbers of the outer and inner seal of the Ballot Box. The Electoral Officials refused to give in to objections from scrutineers about the locking and securing of Ballot Box No. 0056.
During the trial of the remaining grounds, the affidavit of Septimus Salar sworn on 28th September 2002 was admitted in evidence. However, there was an objection to the admissibility of paragraph 7 of the affidavit which set out the total number of votes contained in ballot box No. 0056 and the distribution of the votes. On 21st January 2003, the Court ruled in favour of admitting the paragraph.
After completing the trial, the Court on 17th March 2003 handed down its decision in which he ruled that the election of Ben Samri was void and declared Assik Tommy Tomscoll as the duly elected member for Middle Ramu Open Electorate.
Mr Ben Sembri and the Electoral Commission (Applicants) filed separate reviews (SCR 22 of 2003 and SCR 23 of 2003) against all three decisions pursuant to s 155 (2) (b) of the Constitution. As the Applicants raise same grounds, the reviews have been consolidated into one. It is the consolidated review which has come before us for determination. It is convenient to set out the grounds of the consolidated review:
"Ground 1 – Error of Law on Competency Ruling
The learned trial judge erre3d in law on 15th January 2003 in refusing to strike out Allegations 9 D (iii), 10, 11 and 12 in that the allegation did not comply with the mandatory requirements of Section 208 (a) and Section 210 of the Organic Law on National and Local Level Government Election (the "Organic Law") in that "sufficient facts" were not pleaded, particulars of which are as follows:
(a) Paragraph 9D(iii) (i) No mention of names of
electoral officials of team 10
who were involved at Jamm
Polling Place.
(ii) No mention of name of
Presiding Officer.
(iii) No mention of names of
persons who objected to
Ballot Box No. 0056.
(iv) No mention of date and time
of commencement of polling.
(v) No mention of date and time
when counting took place.
(b) Paragraph 10 (vi) No mention of date and time
when counting took place.
(vii) Does not name Presiding
Officer in full.
(viii) Does not name scrutineers
present at counting centre.
(c) Paragraph 11 (ix) No mention of names of
scrutineers who objected to
Ballot Box No. 0056.
(x) Does not name Returning
Officer who rejected
objections of scrutineers.
(xi) Does not state the total
number of votes in Box No.
0056
(xii) Does not state the number of
votes scored by each
candidate out of Ballot Box
No. 0056.
(xiii) Does not state the result of
the election was affected and
how it was affected.
(xiv) Does not mention and the
date and time when the
scrutineers raised objection
against Ballot Box 0056.
(d) The learned trial judge erred in fact and in law in his ruling on competency on 15 January 2003 in holding that facts not pleaded in Grounds 9D(iii), 10 and 11 of the Petition such as the number of votes contained in Ballot Box No. 0056 and how the votes were distributed between the candidates is a matter of evidence when there is clear judicial authority for the proposition that such facts not pleaded in a petition cannot be "patched up" by evidence and pleadings that fail to plead such facts like figures and how it affected the election do not satisfy the requirements of Section 208(a) and Section 210 of the OLNE and cannot be allowed to proceed to trial.
Ground 2 – Error of Law on Ruling on Admissibility of Evidence
The learned trial judge erred in law on 21 January 2003 in allowing and admitting in to evidence facts showing the number of votes contained in Ballot Box No. 0056 and admitting evidence on how the votes were distributed between various candidates when these facts and figures were not pleaded in Grounds 9D(iii), 10 and 11 of the Petition for purposes of showing how the result of the election was affected, in terms of meeting the requirements of Section 208 (a) of the OLNE and proving the elements of Section 218 (1) of the OLNE.
Ground 3 – Error in Fact and Law
The learned trial judge erred in fact and law in his conclusion that the failure on the part of polling officials to affix inner and outer seal tags on Ballot Box 0056 and the absence of the Presiding Officer at the Counting Centre to explain the absence of the inner and outer seal tags on Ballot Box 0056 were errors or omissions that did affect the result of the election on the basis that:
(a) there was no firm evidence that Ballot Box 0056 was unlawfully tampered with;
(b) there was no firm evidence that the integrity of the votes in Ballot Box 0056 were compromised;
(c) the absence of the outer and inner serial tags on Ballot Box 0056 could not, by itself, affect the result;
(d) the absence of the Presiding Officer at the Counting Cent4re could not, by itself, affect the result of the election;
(e) the finding that the presiding officer for Team 10 did not give any explanation for failing to place the inner seal is not supported by evidence. The evidence shows that the presiding officer did give his explanation for not placing the inner seal. The evidence shows that it was the first time the presiding officer was involved in conducting polling as a presiding officer and he forgot to place the inner seal thinking that the placing of padlock was sufficient to secure the ballot box.
(f) The finding that the memo books were relevant to the issue of the non affixing of the inner seal and e outer seal for purposes of counting Ballot Box 56 is unsafe and unsound as that piece of evidence s not pleaded as a ground of challenge in the Petition. This finding also contradicted His Honours’ earlier and correct finding that evidence could not be lead on the availability or otherwise of the presiding officers r4eturns as that piece of evidence was not pleaded as a ground of challenge in the petition.
(g) The finding that the presiding officers "Statement of Records of Polling of Team 10" dated 30 September 20032 is not reliable and could be concocted as it was written up after the election was completed is a finding that is unsafe and unsound and against the evidence and against the weight of the evidence.
(h) The finding that the objections raised by the petitioner’s scrutineers at the time of counting in relation to the Ballot Box No. 0056 on the basis that it did not have inner outer seals and also on the basis of the absence of the returning officer were valid grounds for not counting Ballot Box No. 0056 is a finding that is unsafe and unsound and is against the evidence and against the weight of the evidence.
(i) The finding that the witnesses, namely the presiding officer Mr Ferdinand Kaungeri and the Returning Officer Mr Pauso Kahuli are not truthful witnesses is unsafe and unsound and against the evidence and against the weight of the evidence.
(j) The finding that the Returning Officers decision to count Ballot Box No. 0056 in the absence of seal tags and in the absence of the Presiding Officer was an unreasonable decision is a finding that is unsafe and unsound and against the evidence and against the weight of the evidence, particularly the evidence showing that the Returning Officer was consistent in his decision as he had earlier counted Petitioners strong hold) when the said Ballot Boxes Nos. 0001, 0002 and 0003 did not have inner and outer seals but only padlocks and re no different from Ballot Box No. 0056.
(k) The finding that the Presiding Officers explanation for his absence during counting of lot Box No. 0056 was an unreasonable explanation is a finding that is unsafe and unsound and against the evidence and against the weight of the evidence.
(l) The finding that the integrity of the ballot papers in Ballot Box No. 0056 were in question as a result of the non-affixing of the inner and outer seals and this affected the result of the election is a finding that is unsafe and unsound and is against the evidence and against the weight if the evidence, particularly the evidence showing that there was nothing wrong with the ballot papers, there was nothing wrong with the ballot papers, there was nothing wrong with the polling, there was nothing wrong with the security and custody of the ballot box and its contents (no evidence of tapering or interference), there was nothing wrong with the counting and reasonable and credible evidence has been given on the non-affixing of the inner and outer seals and the affixing of only padlocks on the inner and outer lids of Ballot Box No. 0056.
(m) The finding that proper valid votes totalling 604 votes from Ballot Box No. 0056 scored by the Second Respondent is to be deducted from the Second Respondents total votes scored in the election is a finding that is harsh and oppressive d is unsafe and unsound and is against the evidence, more particularly evidence showing the 4 votes were valid votes cast for the Second Respondent and there was no evidence of any tampering or interference with these votes.
(n) The finding that the error or omission by the First Respondent’s officials in not affixing the inner and outer seal is a material error or omission which raised questions concerning the integrity of the votes in Ballot Box No. 0056 and that coupled with the unreasonable actions of the First Respondents officials affected the result of the Election is a finding that is unsafe and unsound and is against the evidence and against the weight of the evidence.
(o) The finding that the Petitioner is declared to able duly elected and the Second Respondent not duly elected is a finding that is unsafe and unsound and against the evidence and against the weight of the evidence.
(p) The ruling that the Respondents pay the Petitioner’s costs in equal portion is a ruling that is unsafe and unsound and is against the evidence and against the weight of the evidence.
Ground 4 – Error of Law
(a) The learned trial judge erred in law by acting improperly, unjustifiably, unreasonably and in excess of his jurisdiction in deducting 604 validly cast votes for the Second Respondent and thereafter declaring the Petitioner as a winner.
(b) The learned trial judge erred in law in holding that an unreasonable action by an electoral official can affect the result of an election within the meaning of Section 218 (1) the OLNE.
(c) The learned trial judge erred in law in relying on the Residing Officers Manual 2002 and Returning Officers Manual 2002 in holding that the "integrity" of ballot box 0056 was in question and that affected the result of the election when there is no provision in the OLNE authorising the issuing and use of the said Manuals, the each of which can affect the result of an election.
(d) The learned trial judge erred in law in holding that the words ‘errors or omission" in Section 218 (1) of the OLNE are to be given a wide, fair and liberal interpretation on the basis of clause 4.4 of the Presiding Officers Manual and clause 14.2 of the Returning Officers Manual 2002
(e) The learned trial judge erred in law in holding that the words "errors or omissions" in Section 218 (1) OLNE are to be given a fair and liberal interpretation when there was no evidence suggesting a gross error or omission by the First Respondent to show that it would affect the outcome of the election.
(f) The learned trial judge erred in law in holding that the words "errors or omissions" in Section 218 (1) of the OLNE are to be given a fair and liberal interpretation when:
(a) Administrative guidelines issued by the Electoral Commission have not been enacted as Regulations under the OLNE.
(b) The Presiding Officer manual 2002 and Returning Officers Manual 2002 are not enacted as Regulation under the OLNE.
(c) There is no provision in the OLNE authorising and giving effect to any Administrative guidelines issued by the Electoral Commission.
(g) The learned trial judge erred in law in holding that ballot box 0056 must be sealed with inner plastic tags as required by the Presiding Officers Manual 2002 and the failure to do so, can void the election results when the only legal requirement under Section 122 (2) and 122 (3) of the OLNE is that a ballot box must be "securely fastened with a lock".
(h) The learned trial judge erred in law in relying on clause 4.4 of the Presiding Officers Manual 02 and clause 14.2 of the Returning Officers Manual when:
(i) Such Manual have not been adopted as 1 of the OLNE;
(ii) When such Manuals have not been enacted Relations under the OLNE.
(i) The learned trial judge erred in law in holding at the "integrity" of an election can be questioned a breach of the Presiding Officers Manual 2002 d Returning Officers Manual 2002 when that holding is contrary to the requirements of Section 126 (7) (c) of the Constitution which provides for only the Organic Law to make provisions for safeguarding the "integrity" of elections".
(j) The learned trial judge erred in law in holding at the words "security" and "integrity" in relation an election are words that can operate independently of each other for purposes of voiding an election when Section 126(7)(c) of the Constitution provides for or impliedly provides for the words "security" or "integrity" to be used or read together for purposes of "safeguarding the integrity of elections" such that if an election is to be declared void both the security and the integrity of an election has to be called into question.
(k) The learned trial judge erred in law by giving undue weight to the breach of an administrative guideline in the non affixing of an inner and outer seal tags by officials of the First Respondent as an error or omission that was enough to affect the result of an election without giving due weight and consideration to the due compliance by officials of the Second Respondent of the provisions of the Constitution and the OLNE.
(l) The learned trial judge erred in law in holding that tamper5ing or interfering with a ballot box or ballot box or ballot paper is not a prerequisite to voiding an election, for purposes of Section 218 (1) of the OLNE.
(m) The learned trial judge erred in law by acting improperly and unreasonably and actively participating in the trial and being overly inquisitorial in the conduct of the proceedings and in so doing acted contrary to the meaning and intent of Section 217 of the OLNE and such conduct of action affected the outcome of the trial.
Ground 5 – Failure to Act Reasonably
The learned trial judge failed to act reasonably by taking into account irrelevant considerations and not taking into account relevant considerations.
(a) Irrelevant Considerations
(i) Giving undue weight to the interpretation and application of the Residing Officers Manual 2002 and Returning Officers Manual 2002 issued by the Electoral Commission.
(ii) Giving prominent consideration to facts not pleaded such as the figures showing the number of votes scored in Ballot Box No. 0056 and the distribution of voted in that box to the various candidates to show how it affected the result of the election when such facts were not pleaded in the Petition.
(iii) Deducting 604 valid votes scored by the Applicant without proper factual and legal is.
(iv) Giving undue weight to credibility and explanations of the Respondents witnesses evidence.
(b) Relevant Considerations
(i) Failure to give due weight to the fact that there was no breach of the OLNE by the electoral officials and the OLNE was duly complied with.
(ii) Failure to give due weight to the fact that there was no problem with the polling, nothing wrong with the ballot box and the ballot papers, no problem with counting, no evidence of tampering or interference to warrant the deduction of 604 valid votes from the Applicant’s total votes.
(iii) Failure to strike out Grounds 9 D (iii), 10 and 11 of the Petition for failing to plead figures showing how the result of the election was affected.
(c) Absurd Conclusion in Decision
(i) The Decision to allow Grounds 9 D (iii), 10 and 11 of the Petition to go to trial was so absurd and unreasonable that no reasonable authority could ever have made such a Decision.
(ii) The Decision to deduct 604 valid votes was so absurd and unreasonable that no reasonable authority could ever come to arrive at such a Decision.
(iii) The Decision to declare the Petitioner as the winner of the Middle Ramu Open Electorate was so absurd and unreasonable that no reasonable authority would ever have made such Decision.
Ground 6 – Failure to comply with Natural Justice
The learned trial judge was biased towards the Petitioner in allowing the Petitioner to introduce evidence, namely the Returning Officers Manual 2002 and Presiding Officers Manual 2002 after the Petitioner had closed his case and despite objections from the respondents’ lawyers that these documents were not requested by the Petitioner for production by the First Respondent at the Directions Hearing and Pre-Trial Conference Hearing."
An appeal against a decision of the National Court in election matters is prohibited by s 220 of the Organic Law on National and Local-level Governments (Organic Law).
However, the Supreme Court has an inherent power to review a decision of the National Court under s 155 (2) (b) of the Constitution (Malipu Balakau v. Paul Torato [1988] PNGLR 242, SC Review 546 of 1988 Kasap and Yama [1988-89] PNGLR 197). Bearing in mind the prohibition to appeal by s 220 of the Organic Law, the scope of a review under s 155 (2) (b) should be given a limited scope. The Court should not allow appealable points to come in the guise of a judicial review.
In an endeavour to establish the scope of review under s 155 (2) (b), the Supreme Court in Avia Aihi v The State [1981] PNGLR 81 held that an applicant must demonstrate that:
(1) there are clear legal grounds meriting a review
(2) there are cogent and convincing reasons or exceptional circumstances
(3) it is in the interest of justice that the review be granted.
With the exception of the requirement for leave for review, these general principles have been applied to review decision of the National Court in election cases (see SC Review 5 & 6 of 1988 by Kasap and Yama (supra), Kalit v Pundari (Unreported Judgment of the Supreme Court, SC569, Baira v Genia (Unreported Judgment of the Supreme Court, SC579, Peipul v Niningi (Unreported Judgment of the Supreme Court, SC580, Moi Avei v Electoral Commission & Maino (Unreported Judgment of the Supreme Court, SC584, Mune v Agiru (Unreported Judgment of the Supreme Court, SC590, Maino v Avei (Unreported Judgment of the Supreme Court, SC633).
The present review raises the following grounds:
1. Error of law on the competency ruling
2. Error of law on the ruling on admissibility of evidence
3. Error of law and fact in the substantive decision.
4. Error of law in the substantive decision
5. Failure to act reasonably
6. Failure to comply with natural justice.
Error of law on the competency ruling
Ground 5 (1) of the consolidated review alleges that the trial judge erred in law in not dismissing pleadings 9 D (iii), 10, 11 and 13 of the Petition. These pleadings relate to the allegation that electoral officials failed to secure ballot box 0056 in that they failed to affix the inner and the outer seals in respect of the box and that officials further erred in counting the ballot box.
Counsel for the Applicants submit that the trial judge erred in law in not striking out these grounds on the basis that they did not disclose sufficient, material and relevant facts pursuant to s 208 (a) of the Organic Law. In particular, they allege that the grounds did not plead the names of the presiding officer and other polling officers, the names of scrutineers who objected to the counting of the ballot box, the date and the time when the presiding officer failed to call out the serial numbers of the seals.
The principles governing pleading of facts under s 208 (a) of the Organic Law are set out in the leading case of Holloway v Ivarato [1988] PNGLR 99. Kapi DCJ (Los J. and Hinchliffe J agreeing) stated:
"The requirement of s 208 (a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirement of s 208 (a) of the Organic Law. The facts set out under s 208 (a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
I conclude that s 208 (a) only requires pleading of material facts which would constitute a ground and not the evidence by which those facts are to be proved. Bredmeyer J came to the same conclusion in Siaguru v Unagui & The Electoral Commissioner.
In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."
The grounds of review in the present case do not question the applicable principles. Therefore, this ground does not raise any significant principle of law that would justify a review.
The ground alleges error in the application of the principles to the particular pleading in the present case. We have considered the submissions in this regard and conclude that the ground involves a valid exercise of discretion within the law. We consider that review of exercise of such discretion is prohibited by s 220 of the Organic Law.
In any case, we consider that the pleading in the present case is sufficient. The relevant particulars which are said to be in need of pleading were known to all parties and they were readily available to all parties from the results of scrutiny of the votes at the counting centre. We do not see how the lack of pleading of the particulars in the present case prejudiced the Applicants in the preparation and the conduct of the trial.
Moreover, the fact of not fixing the inner and the outer seals was not an issue. This was conceded during the trial and was confirmed by counsel before us during submissions. Once this is conceded, the lack of particulars relied upon by the Applicants are no longer an issue in respect of the inner and the outer seals to the ballot box no. 0056.
Counsel for the Applicants further submit that the remaining grounds failed to plead the number of votes contained in the ballot box no. 0056 and how the votes were distributed between the candidates (Ground 5 (1) (d) of the Consolidated Application for Review) and they ought to have been struck down for this reason. In order to appreciate this submission, it is necessary to clarify the grounds relied upon for avoiding the result of the election under s 218 of the Organic Law.
The primary ground relied upon is the failure to affix the inner and outer seals to the ballot box. As we have already pointed out this is not contested.
The alleged further error flowing from the failure to affix the inner and the outer seals was that the officials counted the ballot box when there were no inner and outer seals. In relation to this, the trial judge held:
"I am satisfied that these grounds sufficiently plead a material error or omission on the part of the electoral officials in wrongly deciding to count the votes contained in Ballot Box No. 0056 when fixture of the inner and outer seal of this box was an issue from the start, that is from the closure of polling at Jamm polling place up until at the counting when the box was disputed... The ballot box in question, the polling place, the polling team responsible, the presiding officer, the breach of electoral rules as to the placing of the inner and outer seal in an open and transparent manner, the objection to that box being handled in that manner registered by scrutineers as early as at the close of polling up to the counting of votes, are all relevant and material facts which have been clearly and sufficiently pleaded."
The error alleged in counting the ballot box 0056 flows from the failure to affix the inner and the outer seals which as we have pointed out earlier is not in dispute. We agree with the trial judge that this ground is sufficiently pleaded.
As to the ground of review in respect of not pleading the total votes in ballot box 0056 and the distribution of the votes to all the candidates in the election, this relates to the requirement that the error or omissions must affect the result of an election under s 218 (1) of the Organic Law before an election is avoided. This is a different matter. The cases have held that this requirement must be pleaded in a petition. In this regard the trial judge held:
"As to the result of the election being actually affected not being pleaded with reference to the exact number of votes contained in that box and distributed amongst different candidates. I have already said that those are matter of evidence.
I also infer from the difference of 372 votes between the petitioner and the first respondent, and the pleading in 13 that ‘The election of the second respondent was not fair’, that the result of the election was unfairly reached; in other words, the error or omission did affect the result of the election. I do not think it necessary for the petitioner to meticulously plead the result of the election was affected using the specific words in s 218 (2). It is sufficient for if other words bearing the same meaning or words to that effect are used in the petition to show that the result of the election was not fairly reached, in other words, the result of the election was affected. After all, the OLNE envisages that Election Petitions will be drafted and prosecuted by applicants in person without the assistance of lawyers on their behalf. And given the fact that the majority of the country’s population is illiterate or semi-illiterate, the court should allow greater latitude in scrutinizing the choice of English words used in a petition. Further, election is all about fairness and the integrity of the electoral process. These grounds sufficiently plead that the integrity of the ballot papers in this particular box and the fairness of the electoral process was in question from the very start to the end."
The trial judge concluded that the Petition (ground 13 of the Petition) pleaded that an error or omission by an officer did affect the result of the election in accordance with s 218 (1) of the Organic Law. The Applicants have not applied to review this aspect of the decision. Therefore, we will not consider it.
The ground of review complains about the lack of pleading of the number of votes in the ballot box and the distribution of the votes to the 19 candidates. Having found that the Petition sufficiently pleaded the error or omission, that is the failure to affix the inner and the outer seal and the error in counting the ballot box, he further held that paragraph 13 of the Petition pleaded that the error or omission affected the result of the election in accordance with s 218 (1) of the Organic Law. In this context, the number of votes and the distribution of votes amongst all the candidates are matters of evidence going to the question of whether or not the result of the election may be affected. The parties are entitled to call evidence to establish whether or not the error in question affects the result of the election. It is not necessary to plead the evidence. The evidence in this regard was known to all parties from the counting centre. The Electoral Commission should have this record. We find that the trial judge did not make any error in this regard.
For these reasons, we would dismiss the grounds of review against the ruling on competency of the remaining grounds of the Petition.
Admissibility of Evidence
At the trial, the Applicants objected to the admissibility of paragraph 7 of the affidavit of Septimus Salar which states:
"The counting of Box 0056 was 691 votes. The second respondent received 604 votes whilst the petitioner collected 26 votes."
Counsel for the Applicants objected to this paragraph at the trial on the basis that the relevant facts to which these evidence relate to were not pleaded in the grounds of the Petition. They contended that paragraph was not relevant as those facts were not pleaded. In addition, they submitted that it was also unfair to the Applicants for the Petitioner to be permitted to introduce such evidence, because they were not given notice of the relevant facts in the Petition.
This issue raises the technical rules of evidence and the trial judge ruled in the following terms:
"I accept that it is a general rule of evidence applicable in any legal proceeding in which pleadings of facts are required, such as the present case, that a party will not be permitted to call evidence on facts which are not pleaded in an Originating Process, except with the leave of the court which is granted in appropriate circumstances. But on the trial of election petitions it is different, if the OLNE, s 217, contains its own evidentiary rules of procedure. The guiding principles under this section applies to evidentiary matters when the court is dealing with the substantive merits at the hearing of an election petition which has survived the scrutiny under s 210. Section 217 provides:
"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."
See Biri v Ninkama [PNGLR 342 at p. 346.
In my view, s.217 provides the answer to the respondents objection and submissions. After the Petition passed the competency test under s. 210, the rules of procedure and evidence have not changed. Procedural issues as to pleading of facts in a Petition, pleading of evidence in a Petition and so on become irrelevant after the hearing. Likewise, technical evidentiary issues such as whether or not the evidence sought to be introduced by the Petitioner pertains to facts pleaded in the Petition on the grounds of unfairness to the respondents, become irrelevant at the trial. The guiding principle is whether the evidence sought to be introduced is relevant or material to the substantive merits or issues before the court. The evidentiary matter of how many completed ballot papers were contained in ballot box 0056 and the votes from the box scored by each candidate are relevant and material to the substantive issue of whether the error or omission alleged in the Petition; which is admitted by the respondent; that is, this ballot box did not have affixed to it inner and outer seals at the time it was delivered by the electoral officials for counting purposes did affect the result of the election. In terms of unfairness, and "real justice" or to use the words of s 217, "substantial justice and good conscience," it would not prejudice any party for such evidence to be allowed, because such evidence or information is a matter of public knowledge disclosed publicly at the time of counting that box, and it is known to all the parties in this case. Even of neither party were prepared to call this evidence, this court, in the exercise of its power conferred by s. 212 (1) (b), (c) and (e) can call that evidence itself or require the parties to call that evidence. For this trial would be incomplete and material issues as or agreed between the parties to the result of the election being affected, would not be completely resolved, without this evidence.
For these reasons, I overrule the respondent’s objection and permit the Petitioner to call such evidence or adduce it in cross-examination of the respondent’ s witnesses."
We agree entirely with the ruling of the trial judge and we would dismiss this ground of review.
Error of Fact and Law
This ground challenges the conclusion by the trial judge in relation to (a) the failure by the electoral officials to affix the inner and outer seals to the ballot box no. 0056 and (b) absence of the presiding officer at the counting centre to explain the absence of the inner and outer seals were errors and omissions that did affect the result of the election.
This ground raises numerous points (a-p). The grounds raised may be categorized into alleged errors on findings of fact and law.
So far as the ground of review relate to findings of fact, they cannot be reviewed as there is no right of appeal (s 220 of the Organic Law). Where there are finding of facts which may be considered to be so outrageous or absurd so as to result in injustice, this Court may review such findings. No such allegation has been raised under this ground of review.
The undisputed fact is that the electoral officials failed to affix the inner and the outer seals to the ballot box. It is important to set out the full circumstances of the failure to affix the seals. The trial judge set out the circumstances under the heading "Undisputed Facts" in the reasons for decision. They may be briefly stated.
So far as the ballot box 0056 is concerned, the polling commenced in Irarapi. Before the commencement of voting, electoral officials locked the inner lid with a padlock described as no. 402B-808 and the keys were thrown away into the bush. No plastic seal was affixed to the inner lid with the padlock. After the polling was completed, the presiding officer affixed the plastic seal no. 745701 on the outer lid to secure the box. No padlock was used to secure the outer lid.
The second polling took place at Wawapi and the same ballot box 0056 was used for the polling. At the commencement of the polling, the presiding officer confirmed the outer plastic tag no. 745701 that was affixed at Irarapi, removed it with scissors and the voting took place. At the end of the polling, the presiding officer affixed a new plastic seal no 745002 on the outer lid to secure the box. He did not place a plastic seal in the inner seal nor did he put a padlock on the outer lid.
The third polling took place at Lilibu using the same ballot box. The same procedure was followed as in Wawapi. At the close of polling, a new outer plastic seal no.745730 was affixed to the outer lid to secure the box. No padlock was affixed to the outer lid.
The fourth place of polling where the ballot box 0056 was used is Wobu. The same procedure was used in removing the outer plastic seal and at the close of the polling, a new outer seal no. 745704 was affixed to the outer lid to secure the box. No padlock was affixed to the outer lid.
The fifth place of polling with the same ballot box 0056 was Jamim. The same procedure was used to remove the outer plastic seal affixed at Wobu. At the end of the polling, a new plastic seal was affixed to secure the box.
The sixth place of polling was Jitibu. The same procedure was used to remove the previous seal. At the end of the polling however, the presiding officer did not affix inner and outer seals. Instead the presiding officer locked the box with a padlock described as "Gold door – Made in China" and threw the keys into Ramu River.
At the commencement of the polling, the ballot box had a padlock affixed in the inner lid at Irarapi. The outer lid was always secured by a plastic seal after polling in each place until at Jitibu, when the outer lid was secured by a padlock.
There is no suggestion that the lock was interfered with or that the contents of the box were in any way tampered with. The questions of law raised by this ground are (1) whether the failure to affix the seals is "an error or an omission" within the meaning of s 218 (1) of the Organic Law and (2) whether those errors and omissions are material and did affect the result of the election in the circumstances of this case.
In relation to the first issue, counsel for the Applicants submit (as they did in the National Court) that the non-affixing of the inner and outer seals is not a legal requirement under the Organic Law. They submit that the only requirement under the Organic Law is s 122 (3) is for the ballot box to be securely fastened with a lock. They submit that placing of inner and outer seals are administrative requirements under Presiding Officer’s Manual 2002 and Returning Officer’s Manual 2002 issued by the Electoral Commission. Therefore, they submit that a breach of these administrative guidelines on their own do not constitute errors or omissions under s 218 (1) of the Organic Law.
On the other hand, counsel for the respondent submits that the guidelines issued by the Electoral Commission are part of the responsibility given to the Electoral Commission to organize and conduct elections. He submits that the words "errors or omissions" in s 218 (1) of the Organic Law should be interpreted widely to include breach of administrative duties or guidelines made by the Commission. The trial judge held:
"In Albert Karo v. Carol Kidu [1997] PNGLR 28; and again in Dick Mune v. Anderson Agiru and 2 others SC590 (1998); in distinguishing between illegal practices and "errors or omissions" under the OLNE, I said that "errors or omissions" refers to breach of electoral duties defined in the OLNE, which do not have criminal or penal sanctions prescribed for such breaches. I do not think the words "errors or omissions’ in S.218(1) are intended to be read narrowly, to preclude other duties defined by the Commission, be they administrative or otherwise, in order to safeguard the integrity of the elections. In my view, in the absence of any definition of the wor4ds "errors or omissions" in S.218(1), or the OLNE generally, it is open to this Court to construe those words. As a constitutional provision, the words must be given their fair and liberal meaning: see Constitution Sch. 1.5. I do not see any reason why breach of administrative guidelines which imposes duties on electoral officials, such as those set out above, for safeguarding the integrity of ballot-boxes (containing ballot-papers) issued by the Commission, as part of its function in organizing and conducting elections, cannot constitute "errors or omissions" committed by electoral officers."
The provision of seals to ballot boxes is not inconsistent with safeguarding the integrity of the contents of the ballot box (see Kapi DCJ Mathew Poia v Electoral Commission & Fabian Inne (Unreported Judgment of the National Court dated 20th June 2003, N2390)).
We have considered the issue and agree entirely with the trial judge’s analysis of the issue and the interpretation given to the words "errors or omissions" under s 218 (1) of the Organic Law. We are satisfied that the failure to affix inner and outer seals constitute "errors or omissions" within the meaning of s 218 (1) of the Organic Law.
The second issue relate to whether the error or omission (failure to affix the inner and outer seals) in itself affect the result of the election. The trial judge set out fully the submissions by the parties in his judgment. The parties repeated the same submissions before us. The trial judge held:
"It is correctly stated in Kaiulo’ s case that there is no provision in the Organic Law, S. 122 in particular, which requires the placing of inner and outer plastic seal tags to secure the box and safeguard the integrity of ballot papers in the box; the only requirement being the placing of locks to securely fasten the boxes which prevents ballot papers from being inserted into the box through the cleft in the box. It follows that "simply because the boxes did not have an outer tag (or inner tag) that does not render their integrity questionable" per Amet CJ, at p.15. The Supreme Court in both Kaiulo’s case and Peter Peipul’s case did say that in a case where the absence of inner and/or outer seals is satisfactorily explained, and the absence of the inner and/or outer seal tags is not accompanied by any evidence of tampering or interference with ballot-boxes or ballot-papers in that box, there is no reasons to doubt the integrity of the ballot-boxes. The Supreme Court did not however categorically state that the absence of inner and outer seals per se is not and cannot be a valid ground constituting "errors or omissions" under S.218(1), which may or may not affect the result of an election, and that in order for an election to be voided on this ground alone, it must be accompanied by evidence of tampering or interfering with the ballot-box and its contents. To read S.218(1) in that way is inconsistent with the purpose of S.218(1) which stands in marked contrast to S.215. An election may be voided under S.218(1) alone where an error or omission committed by an electoral officer, in certain circumstances did affect the result of the election. It is not dependent on the proof of illegal practices such as bribery, undue influence, or any other illegal practices referred to in the OLNE, the Criminal Code or any other law. For instance, in OLNE, S.191 tampering or interfering with ballot-boxes or ballot-papers; see Dick Mune v. Anderson Agiru and Electoral Commission SC 590 (1997). The test for voiding an election for illegal practices under S.215 is different from the test for voiding an election under S.218(1). That is, under S.215, the test is whether the illegal practice "was likely to be affected, and that if is just that the candidate shall be declared not to be duly elected or that the election should be declared void". Whereas the test under S.218 is whether the error or omission "did not affect the result of the election". It is my view that if in the circumstances of a particular case, certain errors or omissions of electoral officers on their own raise questions concerning the integrity of the ballot-box and its contents, then if such error or omission did affect the result of the election, the election may be declared void.
In the present case, I have already decided that the non-fixing of inner and outer seal tags amounts to "errors or omissions" under S.218(1). I have no hesitation in concluding that the result of the election was affected by the decision of the presiding officer to count ballot-box No. 0056. That is votes from this ballot-box was determinative of the outcome of this election. Had this box not been counted, the Petitioner would have won the election by 206 votes."
The error alleged in the present case is the failure to affix the inner and the outer seals. It is important to set out the nature of the provision for the inner and the outer seals to the ballot box and the purpose for its provision. A ballot box is designed in accordance with s 122 of the Organic Law. The ballot box as we understand it has an inner lid with a cleft where ballot papers may be deposited into the box. The inner lid is closed so that ballot papers may be deposited through the cleft but the papers cannot be removed. The inner lid is designed so that it may be securely fastened with a lock. The plastic seal may be fastened to the same apparatus. This is what is referred to in this case as the inner seal. Provided this lid remains locked with a lock and plastic seal, no ballot papers may be removed from the ballot box. In this position, anybody can deposit ballot papers unlawfully and any foreign matter into the box.
In order to prevent any unlawful deposit of any material, the box is designed with a further outer lid so that when it is closed, no further matter may be deposited through the cleft of the box. When the outside cover is closed and securely fastened with a lock and a plastic seal, no one can withdraw or deposit ballot paper. The plastic seal on the outside cover is referred to as the outer seal in this case.
Provided that the inner cover with the cleft and the outside cover are securely fastened, the integrity of the box is safeguarded. That is to say, no ballot papers may be removed or deposited unlawfully. In this context, the provision of the plastic seals (inside and outer seals) and the provision of lock are complimentary to safeguard the integrity of the box. We say it is complimentary because as long as the lock is securely fastened, no one may interfere with the ballot papers or deposit any other foreign matter in absence of the plastic seals (see Mathew Poia v Electoral Commission & Fabian Inne (Unreported Judgment of the National Court dated 20th June 2003, N2390). Arguably the same could be said of the absence of the lock with plastic seal securely fastened.
The complimentary role of the plastic seals is consistent with the ruling of the Court in respect of the consequences of lack of provision of the plastic seals. Amet CJ in Reuben Kaiulo v James Ganarabo & Ron Ganarafo (Unreported Judgment of the Supreme Court dated 5th October 1998, SC567):
"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 elect 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 n o 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 trial judge acknowledged this in his reasons for decision. He stated:
"It is correctly stated in Kaiulo’s case that there is no provision in the Organic Law, s 122 in particular, which requires the placing of inner and outer plastic seal tags to secure the box and safeguard the integrity of the ballot papers in the box, the only requirement being the placing of locks to securely fasten the boxes which prevents ballot papers from being inserted into the box through the cleft in the box. It follows that ‘simply because the boxes did not have an outer tag (or inner tag) that does not render their integrity questionable’ per Amet CJ, at p.15. The Supreme Court in both Kaiulo’s case and Peter Peipul’s case did say that in a case where the absence of inner/or outer seals is satisfactorily explained, and that the absence of the inner and/or outer seal tags is not accompanied by any evidence of tampering or interference with ballot boxes or ballot papers in that box, there is no reason to doubt the integrity of the ballot boxes."
However he further concluded that:
"The Supreme Court did not however categorically state that the absence of inner and outer seals per se is not and cannot be a valid ground constituting "errors or omissions" under S.218(1), which may or may not affect the result of an election, and that in order for an election to be voided on this ground alone, it must be accompanied by evidence of tampering or interfering with the ballot-box and its contents. To read S.218(1) in that way is inconsistent with the purpose of S.218(1) which stands in marked contrast to S.215. An election may be voided under S.218(1) alone where an error or omission committed by an electoral officer, in certain circumstances did affect the result of the election. It is not dependent on the proof of illegal practices such as bribery, undue influence, or any other illegal practices referred to in the OLNE, the Criminal Code or any other law. For instance, in OLNE, S.191 tampering or interfering with ballot-boxes or ballot-papers; see Dick Mune v. Anderson Agiru and Electoral Commission SC 590 (1997). The test for voiding an election for illegal practices under S.215 is different from the test for voiding an election under S.218(1). That is, under S.215, the test is whether the illegal practice "was likely to be affected, and that if is just that the candidate shall be declared not to be duly elected or that the election should be declared void". Whereas the test under S.218 is whether the error or omission "did not affect the result of the election". It is my view that if in the circumstances of a particular case, certain errors or omissions of electoral officers on their own raise questions concerning the integrity of the ballot-box and its contents, then if such error or omission did affect the result of the election, the election may be declared void.
In the present case, I have already decided that the non-fixing of inner and outer seal tags amounts to "errors or omissions" under S.218(1). I have no hesitation in concluding that the result of the election was affected by the decision of the presiding officer to count ballot-box No. 0056. That is votes from this ballot-box was determinative of the outcome of this election. Had this box not been counted, the Petitioner would have won the election by 206 votes."
We have no difficulty in accepting the conclusion by the trial judge that the test under s 215 is different from s 218 (1) of the Organic Law. We consider that the trial judge accurately stated the law in respect of s 218 (1) when he concluded that:
"An election may be voided under s 218 (1) alone where an error or omission committed by an electoral officer, in certain circumstances did affect the result of the election." (our emphasis)
He stated the same principle in a slightly different way:
"It is my view that if in the circumstances of a particular case, certain errors or omissions of electoral officers on their own raise questions concerning the integrity of the ballot box and its contents, then if such error or omission did affect the result of the election, the election may be declared void." (our emphasis)
In our view the failure to affix the inner and the outer seals of itself without more does not necessarily affect the integrity of the ballot box. It is necessary to determine other relevant circumstances which would raise the integrity of the box. To put it differently, did the lack of the inner and the outer seals leave open the possibility that ballot papers were either removed or deposited unlawfully in the ballot box. These are relevant matters which should be pleaded and proven in the trial. This is consistent with the views expressed in Kaiulo’s case and Peter Peipul’s case.
The trial judge stated:
"In the present case, I have already decided that the non-fixing of inner and outer seal tags amounts to ‘errors or omissions’ under s 218 (1). I have no hesitation in concluding that the result of the election was affected by the decision of the presiding officer to count ballot box No. 0056. That is votes from the ballot-box was determinative of the outcome of this election. Had the box not being counted, the Petitioner would have won the election by 206 votes."
In his conclusion the trial judge stated:
"In arriving at this conclusion, I have not determined the validity of the votes in the ballot-box 0056 because the question does not arise in these proceedings. It is the integrity of the ballot-box which is in issue."
In our view the trial judge erred in law in coming to this conclusion. The integrity of the ballot-box must involve the validity of the votes in the ballot box. It is the counting of these votes which might affect the result of the election. The trial judge ought to have considered whether the lack of inner and outer seals affected the validity of the votes in the box. In this regard the trial judge ought to have considered all the relevant circumstances which might affect the validity of the votes. In the present case, the ballot box was securely fastened with a padlock. There is no suggestion that the lock was unlawfully removed between the period it was fastened to the box to the date of the scrutiny of the votes. In the circumstances there is no proper basis for questioning the integrity of the ballot box.
This is the central issue in this case. If there is no evidence of any interference with ballot box which gives rise to the question of integrity, there was no error in counting the ballot box. In view of our finding, it is not necessary to consider other grounds of review.
We would allow the review, quash the decision of the trial judge and reinstate the Applicant Ben Sembri as the elected member for
Middle Ramu Open Electorate. We further order that the Respondent pays the Applicants costs of the review.
____________________________________________________________________
Lawyers for Applicant Ben Simiri : NARU LAWYERS
Lawyers for Applicant, Electoral
Commission : NONGGORR & ASSOCIATES
Lawyers for the Respondent Assik
Tommy Tomscoll : PATO LAWYERS
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