Electoral Commission of Papua New Guinea v Solo [2015] PGSC 74; SC1467 (30 March 2015)

SC1467

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) NOS. 58 & 59 OF 2013 (CONSOLIDATED)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND:
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant in SCR(EP) 58 of 2013

AND:
AMKAT MAI
Applicant in SCR(EP) 59 of 2013

AND:
SIMON J. SOLO
First Respondent-

AND:
JOHN TALUEH TEKWEI
Second Respondent-

Waigani: David, J, Kariko, J & Sawong, J
2014: 30^th December &
2015: 30^th March

PARLIAMENTARY ELECTIONS – Appeal prohibited by statute - Applications for review under Constitution, s.155(2)(b) legal principles for voiding elections – Distinction between appeals and review – It is a mandatory requirement for the Returning Officer to conduct scrutiny and in his absence for whatever reason by the Assistant Returning Officer - Scrutiny conducted in the absence of Returning Officer and Assistant Returning Officer – No Assistant Returning Officer appointed – Serious breach of statutory duty -Grounds of review couched as grounds of appeal – Reviews refused – By-Election ordered.

Cases cited:

Alfred Manase v Don Polye (2009) N3718
Assik Tommy Tomscoll v Ben Semri (2003) N2349
Daniel Bali Tulapi v Aiya James Yapa Lagea (2013) N5323
Dekena v Kuman(2013) SC1271
Dick Mune v Anderson Agiru & Ors (1998) SC590
Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237
Kasap v Yama [1998-1999] PNGLR 81
Kelly Kilyali Kalit v John Pundari and The Electoral Commission (1998) SC 569
Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157
Olga v Wingti (2008) SC938
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Peter Wararu Waranaka v Gabriel Dusava (2008) SC942
Philemon Embel v Robert Kopaol (2003) N2460
Philip Kikala v Electoral Commission (2013) SC1295
Sir Charles Maino v Moi Avei ( 2000) SC 633
Steve Toap Hoap v Peter Welawe Iwei (2008) N3420
Yagama v Yama & Ors (2013) SC1219
Application by Ben Sembri (2003) SC723

Counsel:

Harvey Nii, for Electoral Commission of Papua New Guinea
Paul Mawa , for Amkat Mai
Ignas Polos Mambei , for Simon J. Solo
Jason Kolo, for John T. Tekwei

JUDGMENT

30^th March, 2014

1. BY THE COURT: This is a consolidated application for review of the decision of the National Court given on 4^th October, 2013 under Section 155(2)(b) of the Constitution. The trial judge upheld two election petitions that disputed the validity of the election and return of Amkat Mai as the duly elected member for the Sandaun Provincial Electorate at the 2012 General Elections.
   
2. In the 2012 General Elections, the applicant in SCR (EP) 59 of 2013, Amkat Mai was elected as the winning candidate for the Sandaun Provincial Seat. The respondents Simon Solo and John Taluh Tekwei were runner-up and second runner-up respectively to Mr Mai.
   
3. The respondents filed separate election petitions in the National Court pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the win by Mr Mai. The petitions were consolidated for trial.
   
4. At the trial, both the applicant in SCR (EP) 58 of 2013, Electoral Commission of Papua New Guinea (the Electoral Commission) and Mr Mai challenged the competency of the petitions. The National Court dismissed the objections to competency and ordered the petitions to proceed to trial (the Competency Decision).
   
5. After hearing the evidence on trial, the National Court on 4^th October, 2013 delivered its decision whereby it upheld the petitions, declared the election of Mr Mai void and ordered a by-election (the Final Decision).
   
6. Aggrieved by those decisions of the National Court, both the Electoral Commission and Mr. Mai filed separate applications for the review of those decisions.
   
7. When the applications for review came before us on 17^th December 2014, we upheld an objection to competency in relation to the application for review of the Competency Decision. We ruled that as that decision was not a final decision after the hearing of the petitions or an order dismissing the petitions, the applicants could only seek a review of that decision if dispensation had been granted under Order 5 Rule 39 of the Supreme Court Rules, and such dispensation had not been given. For those propositions, we relied on the cases of Dekena v Kuman (2013) SC1271; Peter Wararu Waranaka v Gabriel Dusava (2008) SC942; Olga v Wingti (2008) SC938 and Yagama v Yama & Ors (2013) SC1219.
   
8. The grounds of review concerning the Competency Decision were struck out accordingly: Grounds 8 to 11 of SCR (EP) 58 of 2013 and Grounds 5.1 (1-14) of SCR (EP) 59 of 2013. The hearing of the applications for review continued only on the grounds relating to the Final Decision: Grounds 1 to 7 of SCR (EP) 58 of 2013; and Grounds 5.1 (15 to 27) of SCR (EP) 59 OF 2013.
   

GROUNDS FOR REVIEW

9. SCR(EP) 58 of 2013 raises seven (7) grounds of review:
   
   1. The trial judge erred in fact and in law in not making a determinative finding, through evidence, the actual number of votes affected by the illegal practices and errors and omission relating to underage voting and multiple voting, from each of the polling areas for Teams 67, 68, 69, 70, 71 and 72, for the Oksapmin LLG Area to ascertain if the total number of votes found to have been affected by illegal practices and errors and omissions exceeded the winning margin so that the results of the elections can be said to have been affected or margin so that the results of the elections can be said to have been affected or are likely to be affected by the illegal practices and errors and omission.
      
   2. The Court erred in drawing inferences not based on proved facts. As a matter of fact the Court had before it, through evidence, the actual number of votes which were affected by illegal practices or errors and omissions in respect of ballot boxes 70, 71 and 72 not exceeding 200 votes at the most, and obviously did not exceed the winning margin. In the circumstances, it was not open for the trial judge to infer more than what the evidence showed. In doing so, the trial judge erred in fact and in law.
      
   3. The trial judge erred in fact and in law in making findings of illegal practices and errors and omissions relating to underage voting and multiple voting in respect of polling by Teams 67, 68 and 69, for the Oksapmin LLG basing on inferences alone without direct evidence let alone any credible evidence or evidence of probative value to warrant such finding.
      
   4. In so far as the allegations at the counting centre were concerned the trial judge fell into error by misapplying the law to the facts. He did not make a definitive determination as to what stages of the scrutiny process would sections 152 and 153A of the Organic Law come into play, given the confusion surrounding the allegations. By law the Returning Officer was required to deal with objections to scrutiny of ballot boxes under section 153A. Here no objections as such were raised. After the ballot boxes were admitted to scrutiny and after the boxes were opened objections raised regarding their integrity. The officers conducting scrutiny dealt with the objections to individual ballot papers after the ballot boxes were admitted to scrutiny. Instead the trial judge erred in law in insisting that the Returning Officer ought to have been present at the counting centre throughout the entire scrutiny process to deal with all manner and form of objections. This rigid legalistic approach is erroneous and is contrary to or defeats the purpose of the scrutiny process.
      
   5. The trial judge erred in law and in fact in not making a specific finding on the issue of tampering of the 6 disputed ballot boxes from the 6 Oksapmin LLG Area. In his judgement, His Honour expressly admitted that there was no direct evidence of tampering of the 6 ballot boxes from the Oksapmin LLG area. However, His Honour left the issue open (para 9). Later in his judgment, (at para 146) when dealing with issues at the counting centre the trial judge drew a conclusion by inference from anomalies in the ballot papers that the “the ballot boxes had been tampered with”.
      
   6. The trial judge erred in law in drawing inference of tampering of the ballot boxes without direct or reliable evidence of actual tampering.
      
   7. If the Review Court finds for the Applicant that there was no tampering of the 6 ballot boxes from the Oksapmin LLG Area, then generally there was nothing wrong with the counting of votes for the Provincial Ballot Boxes at the counting centre. Therefore, His Honour erred in law in concluding that the mere absence of the Provincial Returning Officer meant that there was no scrutiny, hence no elections.
      
10. SCR(EP) 59 of 2013 raises thirteen (13) grounds of review and for this purpose we have renumbered the relevant paragraphs:
    
    1. The Learned Trial Judge fell into error of law and fact at paragraph 97 of his decision where His Honour stated that he was satisfied that lemon was used to enable double and even multiple voting at least the last polling venues by Team 72 when:
       
       • (i) there was no credible and cogent evidence adduced at all by the Petitioners and proved to the requisite standard on who did double and multiple voting and the exact number of persons who did double and multiple voting.
         
       • (ii) the Court should not have arrived at the conclusion, it did as this was a very gross and glaring error on the fact of evidence before the National Court.
         
       • (iii) the conclusion by the Learned Trial Judge is based on mere conjecture, innuendo, assumptions.
         
    2. The Learned Trial Judge fell into error of law and fact at paragraphs 99, 100, 101, 102, 103 104 and 105 of His Honour’s decision where His Honour found that there was sufficient evidence pointing to double voting and possible multiple voting when;
       
       • (i) the Petitioners did not discharge their burden of proof by producing credible cogent and dismissible evidence proving to the entire satisfaction of the Court that underage voting and double voting did occur in other polling places and that it was wide-spread.
         
       • (ii) His Honour placed too much weight on hearsay evidence, conjectures and mere speculations and grossly erred in concluding without relying on any reliable and cogent evidence that underage voting was wide-spread.
         
       • (iii) the pleadings in the Petition were not proved by the Petitioners to the requisite standard and His Honour’s decision was influenced by conjectures and speculations.
         
       • (iv) the Learned Trial Judge placed too much reliance on the evidence of the Petitioners witness Nimson Nimol when this witness was inherently conflicting and contradictory on many critical issues thus unreliable and failed to consider the consistent and credible evidence of the Respondents.
         
       • (v) the Learned Trial Judge made a gross error of fact and law when he stated at paragraph 103 of His Honour’s decision that there was wide-spread knowledge of under-age voting and double voting at Oksapmin LLG polling places when was no iota evidence adduced by the Petitioners on this issue.
         
       • (vi) the allegation of under-age voting was admitted by the Respondents but contested that there was only about 5 instances of under-age voting in two polling places only.
         
       • (vii) the evidence of the Petitioners witnesses establish at the highest, about 50 instances of under-age voting and there was no scintilla of evidence called and proved to the requisite standard of wide-spread under-age voting at all.
         
    3. The Learned Trial Judge made a gross error in law and fact when His Honour found at paragraph 118 of His Honour’s decision stated that under-age voting was done or permitted in contravention of section 191 of the Organic Law by polling officials, the child voter, the escort and supporters of candidates and that such illegal practice was serious because it involved conspiracy, false pretence and dishonest conduct when;
       
       • (i) there is no credible, cogent and reliable evidence adduced by the Petitioner which proves to the entire satisfaction of the Court that there was conspiracy, false pretence, fraudulent and dishonest conduct by unnamed and unidentified supporters of candidates and electoral officials.
         
       • (ii) the allegations of conspiracy, false pretence, fraudulent and dishonest conduct was not pleaded in the Petition to constitute the ground of illegal practice.
         
       • (iii) the conclusion drawn by the Learned Trial Judge was based on opinions, conjectures and speculations of scenarios never pleaded nor proved by evidence at trial.
         
    4. The Learned Trial Judge fell into error of law and fact at paragraphs 119 and 120 of His judgement where His Honour stated that deliberately using or permitting a child who has not reached full capacity and voting age under section 50 of the Constitution to vote is electoral fraud and corruption when;
       
       • (i) there was no evidence adduced by the Petitioners at all on electoral fraud and corruption under the Criminal code.
         
       • (ii) there was no pleading on electoral fraud and corruption under the Criminal Code in both Petitions.
         
       • (iii) there was no pleading nor was there any evidence adduced that the officers of the Electoral Commission were supporting a particular candidate and that they conspired with a particular person to corrupt the electoral process.
         
       • (iv) there is no evidence which demonstrate that the conduct of the electoral officials influenced the election result.
         
    5. The Learned Trial Judge erred in law and fact where His Honour stated at paragraph 122 of his judgment that the illegal and unconstitutional act in allowing under-age voting and double voting was widespread in the Oksapmin polling when;
       
       • (i) there was no iota of evidence adduced at all by the Petitioners in relation to underage voting at polling places for Team 67 and 68.
         
       • (ii) there was no scintilla of evidence of widespread underage voting in Oksapmin polling. The evidence called by the Petitioners, only at the very highest, established a case of 50 instances of underage voting and double voting although the electoral officials only admitted 05 isolated cases of underage voting in two polling booths out of six (6) polling places.
         
       • (iii) there was no evidence adduced by the Petitioners at all that proved to the entire satisfaction of the Court that there was double voting in that no electors were identified to have double voted and how many double voted.
         
    6. The Learned Trial Judge erred in law and fact when His Honour stated in paragraph 22 of his judgement that the elements of mistrust, corrupt and fraudulent conduct of the polling officials, the integrity and authenticity of the whole election process in a system of universal adult citizen suffrage which section 50 of the Constitution entrenches was compromised and that the result of the constitutional breach and illegal conduct affected the result of the election when;
       
       • (i) there was no evidence adduced by the Petitioners that were corrupt and involved in fraudulent conduct at all but such sweeping general statements made by His Honour are made on mere assumptions, speculations and conjectures.
         
       • (ii) the admitted cases of underage voting was only specific and isolated cases of 05 instances and that cannot affect the integrity and authenticity of the whole election process.
         
       • (iii) given the difference of votes between the Petitioners and the winner being the threshold issue of whether the number of affected votes was likely to affect the result or did in fact affected the election was not considered and determined by the Court because the number of affected votes was likely to affect the result or did not exceed the winning difference of votes was likely to affect the result of the election under section 215(3)(b) of the Organic Law.
         
       • (iv) there was no evidence adduced by the Petitioners which proved the exact, specific or precise number of votes affected by underage voting, double or multiple voting that will be deducted from the winning difference of 4,809 votes to demonstrate clearly how the result of the election was likely to be affected within the meaning of section 215(3)(b) of the Organic Law.
         
    7. The Learned Trial Judge made a gross error in law and fact when His Honour found at paragraph 123 of his judgment when the conduct of polling officials in permitting underage voting and double voting amounted to serious commission of errors and omissions that brought about a false election result and made the election a farce and shame when;
       
       • (i) applying, interpreting and constructing section 218 of the Organic Law, His Honour should have determined the exact number of votes affected by underage voting and double voting and determine if the result was in fact affected by subtracting the number of affected votes and determine if the affected votes exceed the winning difference, then the result is affected within the meaning and import of section 218 of the Organic Law.
         
       • (ii) without determining whether the result was affected by deducting the votes affected by errors and omissions from the winning difference of 4, 809 votes, the conclusion reached by the Learned Trial Judge is erroneous and devoid of any sound legal basis.
         
    8. The Learned Trial Judge erred in law and fact when His Honour found in paragraph 156 of His Honour’s judgement that there was no scrutiny of votes and therefore there was no elections, when;
       
       • (i) the evidence adduced at the trial by the Respondents and the Returning Officer for the Provincial Seat due to death threats and demand on his dual role as Provincial Election Manager, clearly shows that the Returning Officer lawfully appointed counting supervisors by way of instruments to assist him in the Scrutiny of votes at the Counting Centre.
         
       • (ii) The general scheme of things as provided under section 149, 152 and 21(3) of the Organic Law is that the counting supervisors were lawfully and properly appointed to perform the functions and role of scrutiny and they performed their delegated powers and functions under the control, watch, superintendents and counsel of the Returning Officer.
         
       • (iii) The objection by the Scrutineers at Count 39 at the Counting Centre was not on the admission of the ballot box under section 153A of the Organic Law but on the admission of the ballot papers after the ballot box for Team 69 was emptied, ballot papers sorted out and tallied up but before posting the result on the board.
         
       • (iv) This was an objection made under Section 152 of the Organic Law and therefore it does not necessarily require the Returning Officer to make the decision to admit or reject the ballot papers.
         
       • (v) If the objection was raised by the Scrutineers on the admissibility of the ballot box under section 153A of the Organic Law and followed the procedures prescribed under section 153A of the Organic Law then the Returning Officer would make the decision.
         
       • (vi) The objection was on the admission of the ballot papers under section 152 of the Organic Law and therefore, a counting official can make the decision. In this case, the Returning Officer, and Counting Officials and Legal Officer made a decision to admit the ballot papers. This was a valid decision.
         
       • (vii) Section 149 of the Organic Law does not provide that only the Returning Officer to the exclusion of others should conduct the scrutiny. This provision does not provide for an alternative person other than the Returning Officer to conduct scrutiny.
         
       • (viii) Therefore, in the absence of any Assistant Returning Officer, the provision can be read liberally to include other persons duly appointed to perform the role of Returning Officer under his control, watch, superintendent and counsel.
         
       • (ix) Section 18, 19, 20 and 21 of the Organic Law are relevant also in determining this issue. Under section 21(3) of the Organic Law, the Returning Officer has the power to appoint, by instrument in writing, a person to perform the duties of the office during the period of vacancy.
         
       • (x) the emergency situation here is that the Returning Officer was under death threat and since there was no Assistant Returning Officer, he was entitled by law under section 21(3) of the Organic Law to appoint Counting Supervisors to perform the role of Assistant Returning Officer.
         
       • (xi) this provision of section 21(3) of the Organic Law is in harmony with and does not conflict with section 149 of the Organic Law.
         
       • (xii) In the general scheme of things as envisaged under section 149, 152 and 21(3) of the Organic Law, the Counting Supervisor were properly appointed to perform the functions and role of the Assistant Returning Officer.
         
    9. The Learned Trial Judge erred in law and fact when His Honour restates the correct principles of law on the issue of whether the result of the election is likely to be affected under section 215(3) of the Organic Law but then failed to apply that proper test or consideration to the proven facts at trial and relied on speculations, innuendos, conjectures and opinions by concluding that all the 6 polling places in the Oksapmin LLG area were corrupted by instances of underage voting when the Petitioners failed to prove the exact number of underage voting, double and multiple voting in the polling places to determine if the affected votes exceeded the winning difference to show that the result was likely to be affected within the tenor, effect and meaning of section 215(3)(b) of the Organic Law.
       
    10. The Learned Trial Judge made an error in law and fact when His Honour correctly found that the exact number of underage voting was not known but then erroneously concluded that, the evidence on double and under age voting from 6 polling teams showed that irregularities were widespread when;
        
        • (i) For the polling teams 67, 68, 69, 70, 71 and 72, there was no iota of evidence adduced by the Petitioners in respect of polling teams 67 and 68 to prove the allegations pleaded and therefore it is erroneous for His Honour to find that in all the 6 polling teams, underage voting and double voting was widespread.
          
        • (ii) There was no evidence that underage voting and double voting widespread in all the polling areas. In fact, it was only admitted case of 5 underage voting in two polling teams and therefore it was not widespread.
          
        • (iii) There is no evidence of widespread manipulation and abuse of children for numbers expediency and His Honour’s conclusion are mere speculations based on His Honour’s opinion and assumptions.
          
    11. The Learned Trial Judge erred in law and fact in the interpretation, construction and application of section 215 of the Organic Law when His Honour states that section 215 of the Organic Law does not specifically require that the number of votes affected must be pleaded and shown on the evidence in that;
        
        • (i) Section 215(3)(b) require two tests or considerations and that is that when the candidate had no knowledge and authorized the illegal acts complained of, the Court must go two steps further and consider,
          
          • (a) Whether the result is likely to be affected by the illegal practices and this is where specific numbers and figures of affected votes have to be pleaded and proved at trial to show how the result is likely to be affected;
            
          • (b) How is it just that a candidate who is faultless should pay the ultimate penalty or suffer the consequences for the deeds and or omissions of other third parties.
            
        • (ii) Section 217 of the Organic Law has no application or effect in determining if the result is likely to be affected under section 215 of the Organic Law.
          
    12. The Learned Trial Judge erred in law and fact when His Honour considered the second requirement under section 215(3)(b) of the Organic Law where His Honour stated at paragraph 162 of His Honour’s judgment that because of the widespread illegal polling and general deficiencies in polling which was likely to affect the result of election thus it would be just to declare the election void when;-
        
        • (i) Section 215(3)(b) of the Organic Law envisages the situation as in this case where the Applicant (Candidate) had no knowledge and did not authorize the illegal practice of underage voting of 5 children in two polling areas. This instance of 5 underage voting was done by third parties without the knowledge and authority of the applicant so the further two considerations are;-
          
          • (a) Whether the illegal practices are likely to affect the result of the election, and
          • (b) Would it be just that the candidate should be declared not duly elected or that the election should be declared void.
            
        • (ii) The first consideration involves considering the number of votes affected and determining against the winning difference to see if the result is likely to be affected in the second consideration, the Court should direct its attention to discussing why should the Applicant pay the ultimate price of losing his seat in Parliament when he has no knowledge or authorized such illegal practices committed by other persons.
          
    13. The Learned Trial Judge erred in law and fact in his statement of the facts and law at paragraph 164 of his judgment which forms the basis of the summary of his reasons where His Honour states that the polling was tainted by widespread underage voting and double voting and that under section 215 of the Organic Law, 9, 176 votes were tainted which affected the result of the election when there was clear and cogent evidence of only 5 instances of underage voting in only two polling teams and not the other 4 polling teams.
        

RELEVANT LEGAL PRINCIPLES
Review not Appeal

11. These are reviews as opposed to appeals, so we re-iterate what has been stated by the Supreme Court regarding the distinction between the two processes. A very instructive statement regarding the distinction is that by the Supreme Court (Hinchliffe,J, Sheehan, J & Jalina, J) in the case of Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 expressed in the following terms:
    

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisor jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.

As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986 AC484)

'where .....fact is left to the judgment of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...'

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that, is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s.220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process.”

12. In Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, the Supreme Court (Kandakasi, J, Lay, J & Gabi, J) referred to the quoted passage and remarked at paragraphs 9 and 10 as follows:
    

“We endorse these views as a correct statement of the law and add that a review should only be granted where there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record. See Application of Ludwig Patrick Shulze (1998) SC572.

Bearing this important difference in mind, we remind ourselves that, we are here not concerned with the correctness or otherwise of the findings of fact as in an appeal which entitles the appellate court to conduct a hearing de novo on the record and substitute its own finding, if need be, but it concerns correctness of the procedure adopted and applied to arrive at the decision, the subject of this review.”

13. This statement of law was again endorsed by the Supreme Court in Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237 (Salika, DCJ, Manuhu,J, Poole,J).
    

Voiding elections

14. Section 215(3) of the Organic Law reads:
    

“215. Voiding Election for Illegal Practices

......................

(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void-

(a) On the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) On the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that is just that the candidate should be declared not to be duly elected or that the election should be declared void.” (Our underlining)

15. The Supreme Court (Salika, DCJ, Cannings, J & Kariko, J) in Philip Kikala v Electoral Commission (2013) SC1295 in discussing section 215(3) observed at paragraph 56 as follows:
    

“As the illegal practices were alleged to be committed by ‘persons other than the candidate and without the candidate’s knowledge or authority’ and were ‘other than bribery or undue influence or attempted bribery or undue influence’ it was necessary to plead the two matters that must be proven, given the nature of the allegations, under Sections 215(3)(a) and (b) (Amet v Yama (2010) SC1064, Karani v Silupa (2003) N2385, Kubak v Trawen (2012) N4992). These two matters should have been pleaded in a clear and concise manner:

➢ that the result of the election was likely to be affected by the illegal practice allegedly committed by the person (other than the candidate); and

➢ that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

Illegal practices/Errors and omissions

16. Section 218(1) of the Organic Law provides that:
    

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

(Our underlining)

17. We agree with the opinion of Injia. J (as he then was) in Dick Mune v Anderson Agiru & Ors (1998) SC590 and re-stated by His Honour in Assik Tommy Tomscoll v Ben Semri (2003) N2349 that the words “errors or omissions” in section 218 refers to breaches of statutory duty under the Organic Law by electoral officials, and includes breaches of duties set out in administrative guidelines for the conduct of elections.
    
18. As to the distinction between an “illegal practice” and an “error or omission”, the Court in Philip Kikala v Electoral Commission (2013) SC1295 emphasized at paragraph 52 as follows:
    

“.....There is a difference between those two types of irregularities. An illegal practice is a criminal offence that is prescribed by the Organic Law or the Criminal Code; whereas an error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction (Mune v Agiru (1998) SC590, Karo v Kidu [1997] PNGLR 28, Manase v Polye (2008) N3341). A petition must make it clear whether an illegal practice or an error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proven (Eoe v Maipakai (2013) N5066). Section 215 of the Organic Law deals with illegal practices, while Section 218 of the Organic Law deals with errors or omissions.”

19. Double voting is an offence under section 100 of the Criminal Code and is listed under section 191 of the Organic Law as an electoral offence. Section 50 of the Constitution limits the right to vote to citizens of full capacity and having reached voting age while section 126(3) of the Constitution states that the voting age is eighteen (18) years. Under-aged voting would therefore be unlawful. Double voting and under-aged voting must be regarded as “illegal practices”.
    
20. It is clearly the duty of electoral officials to check and prevent double voting and under-aged voting. Should the officials allow through negligence or dereliction of duties for such practices to occur at polling, then this would clearly amount to “errors and omissions”.
    

Setting aside election results

21. Lay, J explained in Alfred Manase v Don Polye (2009) N3718 at paragraph 6 how elections results may be set aside in the following terms:
    

“The results of an election can be set aside if it is alleged in the petition and the evidence proves that (1) there were illegal practices which might have affected the result of the election, and, if the successful candidate is not guilty of any illegal practice, it is still just and equitable that the result of the election be set aside: Section 215 of the Organic Law. (2) Or where there are errors or omissions on the part of an officer which did affect the result of the election: Section 218 (1) of the Organic Law; Dick Mune v Anderson Agiru & ors (1998) SC 590. If the integrity of the results of the whole election is in question, that is pleaded and proven by evidence, such that a judge can reasonably conclude that the results of the election as a whole was in fact affected the question should be determined by the substantial merits and good conscience of each case without regard to legal forms or technicalities: Section 217 of the Organic Law; Maino v Moi Avei (2000) SC 633, [2000] PGSC 6.”

Real justice

22. Section 217 of the Organic Law provides:
    

“217. Real justice to be observed

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not’’.

23. His Honour Injia, CJ recently in Daniel Bali Tulapi v Aiya James Yapa Lagea (2013) N5323 explained the application of this provision at paragraphs 14 and 15 as follows:
    

“Section 217 requires the Court to focus on the substantive and important issues in the case and determine the merits of those issues without pre-occupying itself with procedural issues such as whether the evidence conforms strictly to the pleadings: Application of Ben Semri (2003) SC723. It requires the Court to avoid dwelling on evidence, inconsistencies and contradictions in evidence included over points that have no material connection or significance to the substantive issues in the case and have no impact on the outcome of the case.

In performing that task, whilst s 217 empowers the Court to apply an objective standard in reaching reasonable conclusions, the Court is also required to apply a subjective standard “according to his (own) conceptions of equity and good conscience”, common sense and its perception of what is reasonable, fair, conscionable, good and right. The ultimate decision the Court makes in the case should reflect the substantive merits of the case, consistent with the requirements of the law and is consistent with good conscience of what is right, fair and just, having regard to the circumstances of the case and one that upholds the principles of a democratic election that is genuine, open, free and fair that has produced an election result that is acceptable to right-thinking ordinary persons.”

Scrutiny process

24. In Application by Ben Sembri (2003) SC 723, the Supreme Court (Kapi, CJ, Los, J and Salika, J) held that “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” and later “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.”
    
25. In Steve Toap Hoap v Peter Welawe Iwei (2008) N3420, Sevua, J observed at paragraphs 48 and 49 as follows:
    

“The counting of votes is subject to scrutiny in accordance with Part XIV of the Organic Law. By s.151 (1) (c), all the proceedings at the scrutiny must be open to the scrutineers’ inspection. There are very good public policy reasons that they must be so. One of the reasons that scrutineers are appointed is that they must carefully scrutinize the counting of votes so that the integrity of the counting process is not jeopardized or undermined by any unlawful conduct by counting officials.

The procedures for admitting or rejecting informal ballot papers are provided by s.152 of the Organic Law. That process is triggered off by an objection raised by a scrutineer. Under s.153A, the Returning Officer has the discretion to exclude from counting any ballot box which contains ballot papers, where in his opinion, the ballot papers in the ballot box were not cast lawfully or the ballot boxes were tampered with so that the integrity of the ballot papers has been compromised.”

26. In Philemon Embel v Robert Kopaol (2003) N2460, Los, J observed:
    

“The first question asked is whether the conduct of scrutiny was done properly. Scrutinizing is a compulsory process required under Part xiv of the Organic Law. Section 147 begins with a very strong command that "The result of the polling shall be ascertained by scrutiny". It is a must and the Organic Law prescribes no other way than scrutiny. Section 149 commands the returning officer or his assistant to "conduct scrutiny at the counting centre". Section 150 of the Organic Law allows a candidate to be represented at the scrutiny. And “all the proceedings at the scrutiny shall be open to the inspection of the scrutineers’’. These are not just nice words. These words import real meaning to the election process at the counting stage. First each candidate must be allowed to be represented at a distance where he (or she) must be able to see and observe the preliminaries, the counting and the declarations all the necessities that are commanded by section 151 of the Organic Law. Section 151 says -

"Conduct of Scrutiny.

The scrutiny shall be conducted as follows :-

(a) it shall commence as soon as voting in the electorate is completed; and

(b) any scrutineers duly appointed under Section 150 and any persons approved by the officer conducting the scrutiny, may be present; and

(c) all the proceedings at the scrutiny shall be open to the inspection of the scrutineers; and

(d) the scrutiny may be adjourned from time to time as necessary until the counting of the votes is completed.......

Mr.Kuwimb was lukewarm on this aspect of the case. He submitted that on the strict reading of section 154(1) subject to division 3 and 4, the Returning Officer is the sole officer of the Electoral Commission authorized to conduct scrutiny and the persons attend the scrutiny are those chosen and approved by him. Indeed if one could read the sections on scrutiny generally, the counsel ought to be correct. However, if one reads the provisions relating to scrutiny with purpose administratively and legally, to follow Mr. Kwimb is to make mockery and open up to abuse the scrutiny at counting. Administratively, what is the outcome needed at the scrutiny. The answer would be every vote must be counted excepting those that cannot be legally accepted. If the question is asked with legal reasons in mind, the answer would be that scrutiny is needed to ensure that everbody’vote which is shown on a ballot paper must be sacredly counted.......

Above all I am not convinced that there was proper scrutiny at the counting centre. There was a concession that for the sake of security, scrutiny had the low priority. I find these to be serious error going against the need to ensure each voter's vote to be properly screened and counted.

As to whether the result would have been affected at all, I consider it to be so.”

We endorse the principles set out in the above case.

SUMMARY OF GROUNDS OF REVIEW

27. The grounds of review in both applications for review may be summarised as follows:
    
    • (1) That the trial judge erred in fact and law in finding that there was widespread under-age voting and double voting in the Oksapmin LLG Area such that the election result was affected or was likely to be affected: SCR(EP) 58 of 2013, Grounds 1-3; and SCR(EP) 59 of 2013, Grounds 1, 2, 10 and 13.
      
    • (2) That the trial judge erred in fact and law in determining that there was no proper scrutiny of counting of votes: SCR(EP) 58 of 2013, Grounds 4 & 7; and SCR(EP) 59 of 2013, Ground 8.
      
    • (3) That the trial judge erred in law and fact in deciding that the integrity of the election process in the Oksapmin District had been compromised: SCR (EP) 58 of 2013, Grounds 5 & 6 and SCR(EP) 59 of 2013, Grounds 6, 7 & 9.
      
    • (4) That the trial judge erred in fact and law in his interpretation and application of Section 215 of the Organic Law: (SCR (EP) 59 of 2013, Grounds 11 & 12.
      
28. Applying the legal principles that we have set out already, we now proceed to consider each of the grounds of review as summarised.
    
29. We start with the summarised Ground 2. We propose to first deal with the ground relating to the issue of the conduct of the scrutiny at the counting centre because in our view, this is a crucial issue that goes to the heart of the review.

Ground 2

That the trial judge erred in fact and law in determining that there was no proper scrutiny of counting of votes: SCR(EP) 58 of 2013, Grounds 4 & 7 and SCR(EP) 59 of 2013: Ground 8.

30. The grounds constituting this summarised ground in effect allege that the learned trial judge erred in law and in fact in finding that there was no proper scrutiny during the counting of votes at the counting centre.
    
31. Counsel for the applicants submit that the trial judge erred in applying the law to the facts. They submit that there was proper scrutiny at the counting centre.
    
32. It is submitted by the applicants that the learned trial judge’s findings and conclusion that the Returning Officer must be physical present at all times during the scrutiny process is wrong and imposes an unreasonable obligation on the Electoral Commission.
    
33. Counsel for the applicants have made extensive submissions in regard to the procedures for scrutiny under Sections 151 and 152, but more particularly in respect of Section 153A of the Organic Law. They did not make any or even little submission in respect of Section 149 of the Organic Law. As to the submissions regarding procedures under Section 153A of the Organic Law, we are of the view that they are misconceived. Those submissions do not address the contention that no scrutiny was conducted as prescribed by Section 149 of the Organic Law.
    
34. Counsel for the respondents submit that there was no scrutiny at all as neither the Returning Officer nor the Assistant Returning Officer conducted the scrutiny in accordance with the relevant provisions of the Organic Law relating to the scrutiny of votes. The ground misunderstands the trial judge’s decision as it was a correct finding of fact and law.
    
35. At trial the Returning Officer himself conceded that there was no Assistant Returning Officer and whilst there was there was a need for one for Sandaun Provincial Seat, there was none appointed. The trial judge correctly found that there was no authorised person conducting scrutiny and there was evidence that decisions were made in respect of the objections raised by scrutineers at counting of Oksapmin boxes, hence there was no scrutiny. At paragraphs 154 to 156 of the decision, the trial judge said:
    

“There is evidence that for reasons known only to Moses Opiba and the other counting supervisors, the counting of the 6 ballot boxes from Oksapmin and possibly other ballot boxes as well were “bulldozed” with objections and complaints being summarily dismissed or simply brushed aside. There was no real or genuine scrutiny because of that and because of the absence of the Returning Officer.

Martin Anska said he stayed away from scrutiny because of threats on his life. Quite frankly he was just as good as having resigned. The situation presented an emergency situation under s.21 of the Organic Law and the Electoral Commission in that case should have appointed a Returning Officer or an Assistant in his place. The Electoral Commissioner committed an error in failing to carry out that constitutional duty in order to enforce the integrity of the scrutiny.

So effectively, there had been no scrutiny of the votes. Conversely, because there has been no scrutiny, there were no elections.”

36. In order to appreciate the arguments, in our view, it is necessary to consider the relevant provisions of the Organic Law. These are Sections 149, 150, 151, 152 and 153A of the Organic Law.
    
37. Section 149 of the Organic Law prescribes the electoral official who is to conduct the scrutiny. It reads:
    

“The scrutiny at a counting centre shall be conducted by the Returning Officer, or, in the absence of the Returning Officer for that counting centre, by an Assistant Returning Officer”. (Our emphasis).

38. This section prescribes that the proper electoral officers to conduct scrutiny is the Returning Officer and in his absence the Assistant Returning Officer. This is made abundantly clear by the expression “shall” in the section. The scrutiny must be conducted by the Returning Officer at the counting centre, but if he is unavailable then the Assistant Returning Officer is to conduct the scrutiny. It is mandatory that the Returning Officer is to conduct scrutiny. Section 149 does not authorise any other electoral official to conduct scrutiny. In our view, in practice this means that the Returning Officer must be physically present at the counting centre during counting or scrutiny. In the event that it is not possible for whatever reasons, the Assistant Returning Officer is to be physically present and oversee the scrutiny. Failure to do so would amount to errors and omissions. It would mean that no scrutiny took place during counting.
    
39. The submission by the applicants concentrates on the procedures set out under section 153A and section 90 of the Regulations. There is no submission relating to section 149 of the Organic Law. In our view, therein lies the weakness of the submissions of the applicants. Section 149 is in mandatory terms. It cannot be any plainer. It prescribes that “the scrutiny or counting centre shall be conducted by the Returning Officer or, in the absence of the Returning Officer from that counting centre, by an Assistant Returning Officer” (our emphasis). The mandatory effect of Section 149 of the Organic Law was succinctly put by Los, J in Philemon Embel v Robert Kopaol (2003) N2460 in these terms:
    

“....Scrutinizing is a compulsory process required under Part xiv of the Organic Law. Section 147 begins with a very strong command that "The result of the polling shall be ascertained by scrutiny". It is a must and the Organic Law prescribes no other way than scrutiny. Section 149 commands the returning officer or his assistant to "conduct scrutiny at the counting centre"....

40. Regulation 90 of the Regulations also refers to Returning Officer or Assistant Returning Officer. The principle from these provisions are that the scrutiny is to be conducted in the presence, or under the supervision, management and control of the Returning Officer or in his absence, for whatever reasons, by the Assistant Returning Officer. These provisions do not authorise anyone else to conduct scrutiny.
    
41. In our view, the submissions advanced by the applicants which were premised on insufficiency of pleadings, are misconceived and rejected for the simple reason that those aspects relate to competency of petitions. However, we accept the submission that if the procedural requirements prescribed by Sections 149 or 153A are not followed by the returning Officer, this would constitute a breach of statutory duty amounting to errors or omissions within the meaning of Section 218 of the Organic Law. In our view a breach of statutory duty, such as under Section 149 or Section 153A or any other relevant provision of the Organic Law or the Regulations would constitute an error or omission which in turn would be a ground upon which an election may be voided.
    
42. Section 150 provides for the appointment of scrutineers by candidates. It also provides that only one scrutineer per candidate is to be physically present at the counting centre during scrutiny.
    
43. Section 151 of the Organic Law relates to the conduct of scrutiny. It reads:
    

The scrutiny shall be conducted as follows:-

(a) It shall commence as soon as voting in the electorate is completed;
(b) Any scrutineers duly appointed under Section 15 and any persons approved by the officer conducting the scrutiny, may be present;
(c) All the proceedings at the scrutiny shall be open to the inspection of the scrutineers;
(d) The scrutiny may be adjourned from time to time as necessary until the counting of the votes is complete.

44. Section 152 prescribes the procedure relating to any objections to ballot papers, who is to deal with the objections, and how the objections are to be dealt with. It states:
    

“152. Action on objections to ballot papers

(1) If a scrutineer objects to a ballot-paper as being informal, the officer conducting the scrutiny shall mark the ballot-paper “Admitted” or “Rejected”, according to his decision to admit or reject the ballot-paper.

(2) Nothing in this section prevents the officer conducting the scrutiny from rejecting a ballot-paper as being informal although it is not objected to.”

45. Section 153A then deals with excluding ballot boxes. This provision states:
    

“153A. EXCLUDING BALLOT-BOX FROM SCRUTINY.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:-

• (a) The ballot-papers in it were not lawfully cast; or
• (b) The ballot-box was tampered with and the integrity of

the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.
(3) A ballot box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.

46. Section 153A sets out one of the duties of the Returning Officer. Both sections 149 and 153A are to be read together. Both sections prescribe the duties and the responsibilities of the Returning Officers, by implication the Assistant Returning Officer to carry the duties imposed by sections 149 and 153A. To involve other unauthorised electoral officials to conduct scrutiny or discharge or attempt to discharge the duties and responsibilities set out in these provisions would amount errors and omissions by electoral officials. Section 153A imposes a statutory duty on the Returning Officer and in his absence, an Assistant Returning Officer, to exercise the powers given under it.
    
47. In the present case, the evidence is that the Returning Officer was not present during the entire scrutiny process. There is also evidence that no Assistant Returning Officer had been appointed for the Sandaun Provincial Seat. The Returning Officer did not perform his statutory duties which led to the commission of serious errors and omissions. The effect of this was that no scrutiny had taken place. As no scrutiny had been conducted, the result of the election was affected. We find that the trial judge did not err in his interpretation of the law and applying that to the facts on this aspect. We would dismiss this ground.
    
48. In our view, on the basis of the reasons we have given addressing the summarised Ground 2 alone, we would dismiss both reviews. However, for completeness, we will consider and deal with the other summarised grounds.

Ground 1

That the trial judge erred in fact and law in finding that there was widespread under-age voting and double voting in the Oksapmin LLG Area such that the election result was affected or was likely to be affected: SCR (EP) 58 of 2013, Grounds 1-3 and SCR (EP) 59 of 2013, Grounds 1, 2, 10 and 13.

49. Counsel for the applicants submitted that the trial judge erred in not making any findings of fact as to the issue of the actual number of votes affected by illegal votes comprising under-age voting, double voting and errors and omissions by electoral officials.
    
50. Mr Mawa, counsel for Mr Mai, submitted that there was no evidence from any elector of any double voting, or under-age voting. Even if there were illegal practices of double voting or under-age voting, the evidence was not sufficient to conclude that these illegal practices were likely to affect the result of the elections. It was submitted that there was insufficient evidence to find that the illegal practices were sufficient to satisfy the requirement of Section 215(3) of the Organic Law.
    
51. Mr Mawa further submitted that it was wrong for the trial Judge to allow the two petitions to proceed to trial on the conflicting notion of whether under-age voting stood alone and was capable of invalidating the election on its own or errors or omissions by electoral officials under Section 218 of the Organic Law.
    
52. He further submitted that the trial judge erred in finding that there were widespread illegal practices of under-age voting and double voting which influenced the result of the elections, thus satisfying the requirements of Section 215(3) of the Organic Law.
    
53. As to the grounds covered by this summarised ground, Mr Mambei submitted, firstly that the grounds seek to challenge the trial judge’s findings without pleading any or any proper grounds of review. He submitted that these grounds do not amount to any ground for review in accordance with the principles set out in Moi Avei & Electoral Commission v Charles Maino and Ezekial Sigi Anisi v Tony Waterupu Aimo. He further submitted that these grounds did not specifically plead or state what law or which part of the decision contains erroneous facts. In addition, he submitted that there was no error committed by the trial Judge with regard to his analysis of the evidence adduced and the conclusion he reached.
    
54. As to the issue of the proper test to apply in relation to the application of Section 215(3) of the Organic Law, Mr. Mambei submitted that the trial judge did not fall into any error. He submits that the applicants are in effect asking this Court to make its own findings and substitute the trial judge’s decision with its own. He submits that this is wrong and not proper grounds in a review case. Mr. Kolo supported Mr. Mambei’s submissions.
    
55. As to the grounds covered by this summarised ground and submissions, we adopt the remarks made by Sheehan, J in Sir Charles Maino v Moi Avei (2000) SC 633. His Honour said:
    

“Section 220 of the Organic Law on National and Local Level Government Elections give exclusive jurisdiction to the National Court for the determination of Election Petitions. No appeal arises from that jurisdiction, but that does not exclude this Court between the parties Avei v Manio & Or Sc 584 Judicial Review is not a substitute form of appeal. An appeal involves rehearing of the trial issues and the appeal court may in such case make its own assessments of the evidence and accept or reject the conclusions of the trial Court. In Judicial Review only the decision making process may be reviewed. In relation to election petitions that means the only challenge that may be entertained by this Court on review are contentions that the National Court decision was made in excess of jurisdiction, that is the decision was not one that the National Court was entitled to make.

There may be review of contentions that a decision is flawed because there is an error on the face of the record, that the record discloses plain error of fact or law. There may be review of claims that the parties were not given a fair hearing and there may be challenge that the decision was so unreasonable that no Court could validly come to such a conclusion.”

56. These grounds either individually or collectively do not stipulate any judicial review grounds. There has been no assertion that the Court acted outside the jurisdiction accorded it by the Organic Law, no contention that the applicant did not get a fair hearing, no claim of error on the face of the record; no dispute that the decision was so unreasonable, but only that the applicants disagree with the National Court findings.
    
57. In our view, the grounds pleaded in these applications are in fact pleaded as if they were in ordinary civil appeals, citing as grounds that the learned trial Judge did not make findings of facts, arriving at conclusions based on innuendo and the like.
    
58. In these grounds, the applicants allege that the trial judge erred in law and in fact in finding that there were widespread underage voting and double voting in the Oksapmin LLG area such that the election result was affected or likely to be affected. We have considered the grounds and submissions of counsel relating to these grounds. In so far as the grounds relate to findings of fact, it cannot be reviewed as there is no right of appeal: see Section 220 of the Organic Law. Where there are findings of fact which may be considered to be so outrageous or absurd so as to result in injustice, this Court may review such findings: see Kasap v Yama [1998-1999] PNGLR 81, Kelly Kilyali Kalit v John Pundari and The Electoral Commission (1998) SC 569, Application by Ben Semri (2003) SC723. No such allegations have been raised nor demonstrated in this ground. We dismiss Ground 1.

Ground 3

That the trial judge erred in law and fact in deciding that the integrity of the election process in the Oksapmin District had been compromised: SCR(EP) 58 of 2013, Grounds 5 & 6 and SCR(EP) 59 of 2013, Grounds 6, 7 & 9.

59. Mr Nii for the Electoral Commission made the following submissions. He submitted the trial Judge erred in law and in fact in not making a specific finding on the issue of tampering of the 6 disputed ballot boxes from the 6 Oksapmin LLG Area. In his judgement His Honour expressly admitted that there was no direct evidence of tampering of the 6 ballot boxes from the Oksapmin LLG area. However His Honour left the issue open (para 9). Later in his judgment (at para 146) when dealing with issues at the counting centre the trial judge drew a conclusion by inference from anomalies in the ballot papers that the “the ballot boxes had been tampered with”.
    
60. He submitted that the trial judge erred in law in drawing inference of tampering of the ballot boxes without direct or reliable evidence of actual tampering.
    
61. Mr Mawa submitted that breach of Section 50 of the Constitution is not an offence that can invalidate an election result. Section 50 of the Constitution if proven to be in breach attracts a criminal liability on the perpetrator.
62. He submitted that the courts have held and commented extensively on the requirements under Section 215 and Section 218, being the two provisions in the Organic Law capable of invalidating an election.
    
63. He submitted that for the purposes of natural justice, it is unfair on declaring the election of a successful candidate void, when the alleged misconduct was not with the knowledge and or authority of the winning candidate.
    
64. Mr. Mawa submitted that, pleadings under sections 215 and 218 must show the number of votes, how the result is likely to or is in fact affected.
    
65. He further submitted that evidence was adduced to confirm that the Presiding Officer for Team 72 did have in his Daily Returns 5 instances of under-age voting.
    
66. He submitted that there was no evidence called to prove if the Presiding Officer for Team 72 conspired, to defraud and therefore committed electoral fraud.
    
67. Mr. Mawa submitted that the correct analysis of this evidence would be that the Presiding Officer for Team 72 through his action or inaction permitted 5 under-age voters to cast their votes. The 5 votes be removed from the total votes cast in the ballot box for Team 72.
    
68. He finally submitted that, the Court erred when it held that evidence adduced satisfied the Court that the 5 votes illegally cast through the erroneous action of the Presiding Officer did affect the result of the election.
    
69. Mr Mambei, for the respondent advanced the same submission he had advanced earlier. He submitted that these grounds did not show any serious error of law, but are simply asking this Court to reconsider the evidence which the trial Judge is alleged to have not considered properly. He submitted that these grounds do no plead or state any grounds of review and therefore should be dismissed. Mr. Kolo supported Mr. Mambei’s submissions.
    
70. We accept the submissions by the respondents. Firstly the grounds pleaded for the review do not plead any grounds for review under judicial review principles. Secondly, leaving aside the issues relating to Section 215 and Section 218 of the Organic Law for the moment, these grounds plead matters relating to inadequacy of pleadings in the petition. These aspects were dealt with at the competency hearing. These are not grounds for review. We would dismiss Ground 3.

Ground 4

That the trial judge erred in fact and law in his interpretation and application of Section 215 of the Organic Law: SCR(EP) 59 of 2013, Grounds 11 & 12.

71. This final summarised ground raises the consideration of the application of Section 215(3) and Section 218 of the Organic Law.
    
72. The applicants’ submissions in summary are that on the evidence relating to the illegal practices of under-age voting and double voting, there was insufficient evidence for the trial Judge to conclude that the results of the election was likely to be affected. It was submitted that the number of votes that was affected by the illegal practices of under-age voting and double voting was insufficient, such that the trial judge’s conclusion that the results of the elections was likely to be affected was unreasonable.
    
73. It is submitted by the respondents that the applicants in these grounds are asking this Court to make a new finding and substituting the trial judge’s decision which is not permissible and therefore should be dismissed.
    
74. The evidence of illegal practices of under-age voting and double voting, during polling in the Oksapmin LLG Area, the errors and omissions committed by electoral officials during scrutiny at the counting centre, standing alone or together would lead to the inevitable conclusion that the election results was likely to be affected.
    
75. There is evidence of errors and omissions by electoral officials during polling in the Oksapmin LLG area. The instances of errors and omission consisted of; no security personnel being present during polling, allowing under-age voting and double voting. These polling officials gave contradictory evidence regarding under-age voting and or double voting. In their affidavits, which were admitted into evidence, they denied that there had been any under-age voting or double voting. However when confronted with photographic evidence of instances of under-age voting, these witnesses grudgingly admitted that there in fact had been under-age voting. These took place at a government station in front of security officers and other electoral officials. The trial judge rejected their evidence and he found those witnesses to be untruthful. Given those scenarios, the trial judge was, entitled to, from those facts to infer that, in view of the lack of security during polling at other polling places within the Oksapmin LLG area, that similar incidents of under-age voting and errors and omission by electoral officials had occurred in the entire Oksapmin LLG area.
    
76. Further, and what is more serious is that the Returning Officer did not perform his statutory duty under Section 149 of the Organic Law. He abandoned his duty. So there was no scrutiny at all.
    
77. In our view, given that illegal practices were committed during polling in the Oksapmin LLG area combined with the serious errors and omissions committed by the electoral officials, the result of the election was likely to be affected. We are also of the view that the conclusion reached by the trial judge was not unreasonable. We therefore dismiss summarised Ground 4.
    

CONCLUSION

78. Both applicants seek orders that the final decision of the trial judge made on 29^th November 2013 following the trial of the petitions in EP 16 & 85 of 2012 be quashed and that the applicant Amkat Mai be restored to office as the duly elected Provincial Member of the National Parliament representing the people of West Sepik and remain as the Governor of the Sandaun Province. The respondents seek an order for a recount and for a declaration of winning candidate with absolute majority of votes. We have considered the submissions by the parties. We are of the firm view that the appropriate order of this Court would be to dismiss both reviews for the reasons given and order that a by-election be conducted for the Sandaun Provincial Seat pursuant to Section 212 of the Organic Law.
    
79. The applicants in both reviews shall pay the taxed costs of the respondents in these reviews and in proceedings before the National Court.
    

FORMAL ORDERS

80. The formal orders of the Court are:
    
    1. SCR (EP) No.58 of 2013 is dismissed.
    2. SCR (EP) No.59 of 2013 is dismissed.
    3. The consolidated National Court final decision delivered on 29^th November 2013 is confirmed.
    4. The Electoral Commission of Papua New Guinea shall, as soon as possible, conduct a by-election for the Sandaun Provincial Seat.
    5. The applicants in these reviews shall pay the respondents’ taxed costs in the National Court and Supreme Court proceedings which shall be apportioned and paid as follows:
       
       • (a) Electoral Commission of Paua New Guinea 75%; and
       • (b) Amkat Mai 25%.
    6. The security for costs deposited by the applicants in these reviews shall be applied and paid towards part-payment of the respective taxed costs of the respondents.
       

____________________________________________________________
Harvey Nii Lawyers: Lawyers for the Electoral Commission
Mawa Lawyers: Lawyers for Amkat Mai
Solwai Lawyers: Lawyers for Simon J. Solo
Kolo & Associates: Lawyers for John T. Tekwie