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Nomane v Anggo [2005] PGLawRp 21; [2005] PNGLR 100 (9 September 2005)

[NATIONAL COURT OF JUSTICE]
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS; AND
IN THE MATTER OF THE DISPUTED RETURNS FOR THE CHUAVE OPEN ELECTORATE

JIM NOMANE

V

DAVID ANGGO; AND
REUBEN KAIULO, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

MT. HAGEN: GAVARA-NANU J

3-6 & 10-12 December 2004; 9 September 2005

PARLIAMENT – National elections – Evidence – Hearsay evidence rejected - Basis of rejection - Names appearing twice in the Common Roll - Evidence of duplication of names - Crossings of names appearing twice in the Common Roll - Evidence of double voting.

PARLIAMENT – National elections – Correctness of the Common Roll - Electors voting for the first time in the electorate – Electors properly enrolled in the electorate during Common Roll update – Duty of the Court to assume that the Roll is correct – Organic Law on National and Local Level Government Elections s214.

PARLIAMENT – National elections – Evidence – Undue influences and other illegal practices committed by the supporters of the wining candidate – The candidate having no knowledge of such practices.

PARLIAMENT – National elections – A written blanket direction to the Returning Officer by the Electoral Commission to count all disputed ballot boxes – Such direction is an unlawful interference with the delegated powers and responsibilities of the Returning Officer – Powers of the Returning Officer to rule on the disputed ballot papers or boxes – Failure by the Returning Officer to rule on disputed ballot boxes is a material error.

PRACTICE AND PROCEDURE – National elections – Scrutiny - Power of the Returning Officer to conduct scrutiny – Such power is broad and covers disputed ballot boxes - Organic Law on National and Local Level Government Elections, ss.149 and 152.

PARLIAMENT – National elections – Evidence –Double voting resulting from material errors and omissions made by the Electoral Commission, its servants and agents – Result of the election affected – Organic Law on National and Local Level Government Elections, s218(1).

PRACTICE AND PROCEDURE – National elections – Polling – Polling officers calling out names of voters from the Common Roll to vote – Such practice is an abuse of electoral process and contrary to ss.133 and 134 of the Organic Law on National and Local Level Government Elections.

Facts

The petitioner was an unsuccessful candidate for the seat of Chuave Open Electorate in the 2002 National Elections. The first respondent was declared the winner.

The petitioner prayed to the Court for a declaration that the election of the first respondent was void on the grounds that:-

1. the first respondent and his supporters committed undue influence and other illegal practices which were likely to affect the result of the election; and
   
2. the second respondent, his servants or agents committed material errors and omissions which affected the result of the election.
   

Held

1. Undue influence, apart from it being an illegal practice under the Organic Law on National and Local-Level Government Elections, is also a crime under the Criminal Code Act and therefore the petitioner in relying on it as a ground to avoid the election must prove every element of the offence with clear and cogent evidence.

2. The petitioner failed to prove with clear and cogent evidence, every element of the offence of undue influence.

3. In repect of the ground of illegal practices, s215(3) of the Organic Law on National and Local-Level Government Elections requires the Court not to declare an election void unless the illegal practice was committed by a person other than the winner and the the winner has knowledge of the practice or authorized it. The petitioner failed to prove that the first respondent had knowledge of the illegal practices alleged or authorized their commission.

4. In respect of the ground of errors and omissions committed by the Electoral Commission, his servants or agents, contrary to s218(1) of the Organic Law on National and Local-Level Government Elections the petitioner must not only show that these were committed but he must also show that these errors and omissions were material and that they affected the result of the election.

5. The errors and omissions committed by the second respondent, his servants and agents were material and these affected the result of the election.

Orders – The election of the first respondent is void and a By-election will be held.

Papua New Guinea cases cited

Arnold Marsipal v Michael Pondros [1977] PNGLR 354.
Assik Tommy Tomscoll v The Electoral Commission of Papua New Guinea and Ben Sembri N2349.
Baki Reipa v Electoral Commission and Yuntivi Bao SC606.
Banega Isilowa v Yoto Biaguni [1980] PNGLR 140.
Daniel Don Kapi v Reuben Kaiulo and Sam Abal N2327.
Ephraim Apelis v Sir Julius Chan SC573.
In re Moresby North East Parliamentary Election (No. 2) Goasa Damena v Patterson Lowa [1977] PNGLR 448
James Togel v Michael Ogio and Electoral Commissioner [1994] PNGLR 396.
James Togel v Papua New Guinea Electoral Commissioner and Mathias Pihei N2262.
John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1997] PNGLR 645.
Mathew Poia v Electoral Commission of Papua New Guinea N2390.
Mathias Karani v Yawa Silupa and Electoral Commission of Papua New Guinea N2517.
Mokwa Mamando v Pyange Ni [19977] PNGLR 496.
Neville Bourne v Manaseh Voeto [1977] PNGLR 298.
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.
Robert Kapaol v Philemon Embel SC727.
Samson Chris Napo v John Muingepe and Electoral Commission of Papua New Guinea SC712.
The Electoral Commission and Kala Rawali and Abraham Wari and Timothy Tala v Pila Niningi SC710.
Tom Amaiu v Dickson Masa Maki and Reuben Kaiulo,Electoral Commissioner N2364.

Counsel

A Manase for the petitioner.
C Copeland for the first respondent.
R William for the second respondent.

9 September 2005

Gavara-nanu . The petitioner was an unsuccessful candidate for the Chuave Open Electorate in the 2002 national elections. The first respondent won the election with 4,495 votes and the petitioner came second with 4,033 votes. Thus the first respondent won the election by a margin of 462 votes.

Grounds for the petition.

The petitioner has petitioned this Court to declare the election void, firstly on the grounds that the first respondent and his supporters committed undue influences and other illegal practices which the petitioner claimed were likely to affect the result of the election and secondly, that the second respondent, its servants and agents committed material errors and omissions which the petitioner claimed did affect the result of the election.

(i) Cases of undue influences and other illegal practices alleged against the first respondent.

In regard to these allegations, the petitioner claimed that they were committed by the first respondent's supporters with the knowledge and authority of the first respondent, and that they were done in breach of the relevant provisions of the Organic Law on National and Local–level Government Elections (hereinafter referred to as 'the Organic Law'), and the Criminal Code Act, Chapter No. 262, (hereinafter referred to as 'the Criminal Code Act'). The petitioner claimed that the first respondent won the election because of those illegal practices.

There are 4 cases of undue influences and other illegal practices alleged against the first respondent.

The 1st case is that on 22 June 2002, at Movi Rest House during polling, at about 2.00pm, a supporter for the first respondent, namely, Mr. John Seve, threatened the Assistant Presiding Officer Mr. Ken Akia with a bush knife several times and ordered Mr. Akia to give him 100 ballot papers. It is alleged that Mr. Akia gave 100 ballot papers to Mr. Seve who then marked and cast them for the first respondent. The petitioner alleged that Mr. Akia gave 100 ballot papers to Mr. Seve because he feared for his life.

The 2nd case also occurred on 22 June 2002, during polling at Movi, Ipaku, Runungu, and Nambayufa Rest Houses. It is alleged that the first respondent's supporters with the knowledge and authority of the first respondent induced voters to vote for the first respondent more than once. The petitioner claimed that some of those voters were from Unggai-Bena Electorate in the Eastern Highlands Province. The petitioner alleged that, those people voted by using names of other voters who were resident in different wards in the Electorate thus resulting in more duplicated votes. The petitioner claimed that as a result, the first respondent gained 657 illegal votes.

The 3rd case also occurred on 22 June 2002, during polling at Ipaku Rest House. The petitioner claimed that the first respondent and his supporters induced 204 voters from Unggai-Bena Open Electorate to vote for the first respondent.

The 4th case also occurred on 22 June 2002, during polling at Movi, Ipaku, Rununga and Nambayufa Rest Houses. The petitioner claimed that the first respondent and his supporters induced some voters including 224 voters from Unggai-Bena Open Electorate to vote for the first respondent by using names of other voters. As a result, the first respondent collected more illegal votes.

(ii) Illegal and improper practices alleged against the second respondent.

In support of these allegations, the petitioner claimed that some clans were duplicated for wards 7, 8, 9, 10, 11, 12, 13 and 14, thus resulting in the voters from those wards voting more than once.

The petitioner also claimed that on 22 June 2002, at Ipaku Rest House, 204 voters from Nami clan in the Unggai-Bena Open Electorate were allowed to vote by the polling officers under the direction of the first respondent. As a result, the first respondent gained further 204 illegal votes.

Evidence.

(i) General comments.

Much of the evidence given by the witnesses has been reduced into affidavits, but all affidavit evidence is covered by oral evidence given at the trial both by the deponents of those affidavits and other witnesses.

(ii) The petitioner's case.

The petitioner had 12 witnesses including himself, and he was first to give evidence. He also swore an affidavit. However much of the evidence given by the petitioner both in the affidavit and at the trial was hearsay. The evidence relates to illegal practices alleged against the first respondent. The evidence was based on information obtained from his supporters. The petitioner conceded this at the trial, but maintained that the illegal practices were committed by the first respondent's supporters with his knowledge and authority.

The petitioner also told the Court that his evidence regarding duplication of votes and voters' names was based on what he saw in the Common Roll. He said some names were entered twice in the Common Roll and were crossed out which to him indicated duplication of voters' names and double voting.

The petitioner also gave account of the meeting that was held between all the candidates and the Returning Officer for the Chuave Open Electorate in Chuave on 14 June 2002. At that meeting, the candidates including the petitioner raised concerns about duplication of voters' names in the Common Roll as well as clans and voters' names being duplicated under various polling places. The petitioner said the Returning Officer assured all the candidates that those errors would be corrected before polling, but the errors were never corrected. This evidence is significant because it is direct evidence and the errors were acknowledged by the Returning Officer at the trial. The petitioner claimed that the failure by the electoral officers especially the Returning Officer to correct the errors resulted in widespread double voting.

The second witness was Mr. John Bungo. He was the Presiding Officer and leader for Team 53 at Movi Rest House on 22 June 2002. His Assistant was Mr. Ken Paru also known as Mr. Ken Akia. He said the voters' names were called out from the Common Roll by the polling clerk and they went forward and voted. When they voted, the first three letters of their names were crossed out in the Common Roll to indicate that they voted.

He told the Court that polling was not peaceful because of disturbances and disruptions caused by the voters. He referred to the incident that happened on 22 June 2002, at Movi Rest House where 100 ballot papers were given to Mr. John Seve after Mr. Seve demanded them and threatened him and other polling officers with a bush knife several times. He said he signed all 100 ballot papers before giving them to Mr. Seve.

Mr. Bungo said, after Mr. Seve got 100 ballot papers, others also demanded that they be given their share of ballot papers, so he gave some more ballot papers to those voters because he feared for his life. He estimated the number of ballot papers given to Mr. Seve and others to be about 300.

He told the Court that because of threats and intimidation by the voters, the sex tallies were not balanced at the polling place. They were balanced later at Chuave police station after they returned from polling. He reported the threats and disturbances to the police and the Returning Officer.

Mr. Bungo's evidence is supported by Mr. Ken Akia, who was the next witness. He was the Assistant Presiding Officer for Team 53 at Movi Rest House on 22 June 2002. He said Team 53 was set up very close to Team 52 and the distance between the two teams was about 5 meters. He confirmed that the polling clerks called out voters' names from the Common Roll to vote. When their names were called, the voters went forward and had their fingers marked with ink then the Presiding Officer signed the ballot papers before giving them to the voters to mark and cast. After they voted, the first three letters of the voters' names were crossed out in the Common Roll to indicate that they voted. That was the procedure followed until when Mr. Seve and others got several hundred ballot papers from them with threats and intimidation. He confirmed that Mr. Seve threatened them with a bush knife several times before Mr. Seve was given 100 ballot papers. After the threats by Mr. Seve and others, it was not possible to use the Common Roll to call out names of voters to vote because the situation was out of control and the voters voted without following proper procedures. That led to the polling being suspended for some time.

He said polling went smoothly from about 10.30am until about 2.00pm when Mr. Seve and the others made the threats and obtained several hundred ballot papers.

He confirmed that sex tallies were balanced at the Chuave police station after the polling. They could not balance them at the polling place because of the threats made against them by Mr. Seve and others.

At the counting center he disputed the ballot boxes in which voters cast votes without following proper procedures. But the Returning Officer allowed the boxes to be counted because of a written direction issued by the Electoral Commission for all disputed boxes to be counted and that those who still disputed the boxes were to petition the Court of Disputed Returns. He also confirmed that after Mr. Seve and others threatened the polling officers, polling was suspended for about 15 minutes. He estimated about 300 people voted without their names being called from the Common Roll.

Mr. John Duinde was the next witness. He was the Presiding Officer and the leader for Team 49 at Ipaku Rest House on 22 June 2002. He said Komuni No.1 and Nami clans voted at Ipaku Rest House although they were not registered for that Rest House. He said 204 Namis voted there.

He confirmed that voters' names were called out by the polling clerk from the Common Roll to vote. A ballot box from his team was disputed during counting by the petitioner's campaign manager because the Namis who belonged to Unggai-Bena Electorate were allowed to vote at Ipaku Rest House by the polling officers. But the Returning Officer allowed the box to be counted because of the direction by the Electoral Commission for all disputed ballot boxes to be counted.

Mr Amoe Francis Afuti, a villager from Ipaku Rest House area was the next witness. He told the Court that Komuni No.1 and Nami clans should not have been allowed to vote at Ipaku Rest House because they belonged to Unggai-Bena Electorate.

Mr Nicko Wauti was the next witness. He was at Nambayufa Rest House on 22nd June, 2002. He said voters' names were called out by the polling clerk to vote. Later in the day, he saw the people from Wando clan from Unggai-Bena Electorate voting there. The polling officers could not control the people, so they voted without their names being called by the polling clerk and without following proper procedures.

The next witness was Mr. Andrew Gagma. He was the Presiding Officer and leader for Team 46 at Nambayufa Rest House on 22 June 2002. Teams 46 and 47 were conducting polling there inside a fenced area. The two teams were 8 to 10 meters apart. There was nothing separating the two teams. Team 47 was on higher ground and Team 46 was on lower ground.

He said the voters' names were called out by the polling clerks from the Common Roll to vote and when they voted, the first three letters of their names were crossed out in the Common Roll. At one point they were surrounded and threatened by the voters so they allowed the voters to vote without the use of the Common Roll to call and identify them as electors for the Electorate. He saw voters from Team 46 went and voted in Team 47 after voting in Team 46 and the voters from Team 47 did likewise. As a result, a lot of double voting occurred in both teams.

Some ballot boxes from Teams 46 and 47 were disputed during counting because of double voting but the Returning Officer allowed the boxes to be counted because of the direction by the Electoral Commission for all disputed boxes to be counted.

He said he recommended to the Returning Officer in a memo that certain ballot boxes from Nambayufa Rest House should not be counted because of disturbances and lot of double voting. But the Returning officer allowed the boxes to be counted again because of the direction by the Electoral Commission.

Mr John Bai who was the District Paying Officer in the Department of Finance in Chuave was the Presiding Officer and the leader for Team 47. He was the next witness. He confirmed that his team conducted polling next to Team 46 at Nambayufa Rest House. He said the two teams were very close to each other and the distance between them was about 4 to 5 meters. He said, initially, the voters' names were called out by the polling clerks from the Common Roll but later, when the voters made threats to the polling officers, the situation got out of control, so the voters voted without any control in both Teams, thus resulting in a lot of double voting in both teams.

He confirmed that at the counting center, some ballot boxes for Numbayufa Rest House were disputed but the Returning Officer allowed them to be counted because of the direction by the Electoral Commission for all disputed ballot boxes to be counted.

The next witness was Mr. Paru Kairi who was the Officer In-Charge of Chuave District. He supervised the update of the Chuave Open Electorate Common Roll before the national elections in 2002. The update was in preparation for the 2002 national elections. The Master List for Chuave Open Electorate was used for the update. He said Nami clan was not in the Master List but it was included in the Common Roll during the update upon advice by the village elders and ward councilors.

Mr. Lucas Guina, a community health worker with the Department of Health in Chuave was the next witness. He was an Assistant Returning Officer. He confirmed that in a meeting between all the candidates and the Returning Officer on 14 June 2002, the petitioner and other candidates raised concerns about duplicated names and clans in the Common Roll under various Rest Houses.

He also said that during counting, there were objections raised against some ballot boxes being counted because of lot of double voting, but the ballot boxes were allowed to be counted by the Returning Officer because of the direction by the Electoral Commission. That led to the boycott of counting by petitioner's scrutineers for half a day.

In regard to the Namis, he said in 1992 and 1997 national elections, they voted in Unggai-Bena Open Electorate.

Mr David Kopi who was the campaign manager for the petitioner was the last witness. He told the Court that there were duplication of votes in wards 7 to 14 as the people from other wards also voted in those wards. He also said that Namis should not have voted in Chuave Open Electorate because they belonged to Unggai-Bena Open Electorate. That he said was the reason why the Namis were not in the Master List for Chuave Open Electorate.

During counting he was the scrutineer for the petitioner. He confirmed that some boxes were disputed but the Returning Officer allowed them to be counted because of the direction by the Electoral Commission. He also confirmed that the Returning Officer told the scrutineers that those who still wanted to dispute the ballot boxes could petition the Court of Disputed Returns.

(ii ) The first respondent's case.

The first respondent had 8 witnesses including himself and he was first to give evidence. He told the Court that during polling his name was called once by the polling clerk and he voted only once.

In this regard, it is noted that at the trial, it was established that the first respondent's name appeared twice in the Common Roll and both names were crossed out. These were conceded by the first respondent. The first respondent also conceded that the name of one of his daughters was crossed out in the Common Roll although she did not vote. He further conceded that his wife and two daughters were not present at the polling and they did not vote. He confirmed that his wife's christian name is Penny and the first three letters of her name were crossed out in the Common Roll although she did not vote.

In regard to Nami clan, he said it is a sub-clan of his tribe and 80% of them live and make their gardens in Chuave District. Therefore they had the right to vote in Chuave Open Electorate.

The first respondent also attended the meeting between all the candidates and the Returning Officer in Chuave on 14 June 2002. He confirmed that during the meeting, the Returning Officer Mr. Gande Mondo told the candidates of the problems related to the misplacement of clans under various Rest Houses. Mr. Mondo also told them that there were double entries of names and clans in the Common Roll and assured them that appropriate actions would be taken to correct those errors before polling. The Returning Officer also assured the candidates that ballot papers would be issued according to the number of eligible voters recorded for each polling place. He said some of the candidates were disappointed and demanded that exact number of ballot papers be issued to all eligible voters.

He told the Court that his clan Komuni No.1, Nami and Irafayufa clans live in the eastern side of the border between Chuave Open Electorate and Unggai-Bena Open Electorate. He said the border between the two electorates is an artificial one and his clan's border extends about 5 kilometers into Unggai-Bena Open Electorate. He said Komuni No.1, Nami and Irafayufa clans share common borders of tribal land with Chuave.

Mr. Robert Roandi was the next witness. He told the Court that sometime in 2002, before the elections, Mr. Simon Luta hired his truck to carry out update on the Common Roll for Chuave Open Electorate.

He also attended the meeting between all the candidates and the Returning Officer on 14 June 2002, in Chuave. During the meeting, the Returning Officer told the candidates that there were duplication of names in the Common Roll and assured the candidates that he would correct the errors before polling. He said the Returning Officer told the candidates that some names in the Common Roll were mixed up but assured the candidates that ballot papers would be issued according to the actual number of eligible voters.

The next witness was Mr Zakias Kereba. He said Komuni No.1 and Nami clans from the Unggai-Bena Electorate share a common border with Chuave but their territorial boundary extends well into Chuave. He also told the Court that during polling the polling clerks called out names of voters to vote.

Mr. John Seve was the next witness. He denied threatening Mr. Bungo and Mr. Akia or any other polling officers during polling at Movi Rest House on 22 June 2002. He said his name was called by the polling clerk so he went forward and voted then went to his village. He said he knew the first respondent but did not talk to him during polling. He denied that Mr. Bungo and Mr.Akia conducted polling at Movi Rest House that day. He also denied that there were disturbances. He told the Court that his name is John Seve but his church, the Seventh Day Adventist, changed it to John Mark Eli. He said although the name John Mark Eli does not appear in the Common Roll, the polling clerk called him by that name so he went forward and voted. Under cross examination, he changed his story slightly and said that his adopted name, John Mark Eli was called by one of the boys from the village so he went forward and voted.

He said the voters did not stand in a queue to vote, they just crowded around the polling area and when their names were called by the polling clerk, they went forward and voted. He did not see his name being crossed out in the Common Roll when he voted and he did not see the other voters' names being crossed out in the Common Roll after they voted.

He told the Court that the village boy who called his name was Samuel Maina. The boy was not an electoral officer. He could not recall if Samuel Maina also called other voters' names to vote.

The next witness was Mr. Nicholas Imaru. He was from Nami clan. He said at Ipaku Rest House on 22 June 2002, the voters stood in line and when their names were called by the polling clerk, they went and voted.

He said half of his clan lives in Chuave District and the other half lives in Unggai-Bena Electorate. The people have gardens in both sides and they come and go between the two electorates and there is no clear border between the two electorates.

The next witness was Mr. Simon Luta. He was involved in the update of the Chuave Open Electorate Common Roll in 2002. He said they used the Master List for Chuave Open Electorate to do the update. The Master List was provided by the Electoral Commission. During the update, the people's names were called from the Master List and they had to fill in enrolment forms to be enrolled in the Common Roll. New names were enrolled in the Common Roll on the advice of the village elders and ward councilors. They advised on who was qualified to be enrolled in the Common Roll. All the enrolment applications were endorsed by the Team Leaders and later forwarded to the Electoral Commission headquarters in Port Moresby. A number of teams were involved in the update.

The names of deceased persons were removed from the Master List and the names of new people who wanted to be enrolled for the first time in the Common Roll and whose names were not in the Master List were identified by the village elders and ward councilors.

He agreed that Foe Rumbiyufa clan was duplicated at Ipaku Rest House. That was one of the concerns raised at the meeting that was held on 14 June 2002, between the Returning Officer and the candidates. He said the names of 150 people from Foe Rumbiyufa clan which were entered under Ipaku Rest House at page 56 of the Common Roll were for Movi Rest House. Those were the types of errors which the Returning Officer highlighted and promised to correct at the meeting with the candidates on 14 June 2002.

He also agreed that Nami clan was not in the Master List and the clan did not come under Ipaku Rest House. He did not know why the clan was included in the Chuave Open Electorate Common Roll.

The next witness was David Wenegawe. On 22 June 2002, he was at Nambayufa Rest House. There were two polling booths set up about 50 meters apart. He saw many youths whose names were not called by the polling clerks voted in both booths. The same youths also voted for people who were not present at the polling. He said, he voted after his name was called by the polling clerk.

The last witness was Mr. Gopson Kamsi Kamane, a pastor with the Evangelical Lutheran Church. He was also involved in the update of the Chuave Open Electorate Common Roll. He said the update was done with the assistance of the village elders and ward councilors. He said the Nami clan was included in the Common Roll after the Team Leaders discussed the matter also with the District Officer.

(iii ) The second respondent's case.

The second respondent had 3 witnesses. The first was Mr. Steven Yakali. He was the District Administrator for Kundiawa Gembogl area and was the Provincial Returning Officer for the Simbu Province. He told the Court that during election a Proclamation from the Simbu Provincial Government was used to determine polling places and to draw up polling schedules. The Proclamation was also used as a guide to distribute ballot papers to the eligible voters in the electorates. He said the number of ballot papers distributed corresponded with the number of eligible voters.

He said the procedure used during polling was that a polling clerk called the voters' names from the Common Roll and when the voters went forward, the polling clerk crossed out the first three letters of their names in the Common Roll. Another clerk then applied the indelible ink to their left small fingers. The voters were then issued with ballot papers which were initialed by the Presiding Officers for them to mark and cast.

He told the Court that clan duplications in the Common Rolls was not uncommon and the Chuave Open Electoral was the "problematic" one. He agreed that there were cases where same names appeared under different polling places so the Returning Officers were told to direct the Presiding Officers to remove all the duplicated names. He personally did not receive any complaints from Chuave Open Electorate but agreed that if the Returning Officer received and dealt with any, then he would not have been aware of those complaints.

He also came across cases where clans were duplicated in the Common Roll and when he was asked to give specific instances, he said:

"In 2002, we had a very difficult problem especially for the Simbu Province. The problem was that the 2002 Common Rolls were arranged in alphabetical orders. As a result, the computer printed the names of eligible voters several times. The biggest problem was the list of eligible voters, for example, in polling place 'A' the same names were printed in polling place 'B' and the Common Rolls were all mixed up. So what I did was, I directed all Returning Officers and Assistant Returning Officers and field officers with the assistance from the villagers to bring back the list of eligible voters' names to their original and correct polling places.... One instance was in Kurumugl polling place in Kundiawa. The voters' names from that polling place were printed under another polling place in Gembogl. So for convenience, the Returning Officer was directed to instruct his presiding officer to find where they were originally listed. We went page by page."

He agreed that if names appeared under more than one polling place then it was an error by the electoral officers because that would have resulted in duplication of names and votes.

He said when a ballot box was disputed during counting, the procedure used was that the Returning Officer dealt with the complaint first and if the complaint could not be solved by the Returning Officer then it had to be referred to the Provincial Returning Officer who would decide on whether to put the box aside or to count it to complete the process. If the box was counted then it was up to the complainant to take the matter to the Court of Disputed Returns.

The next witness was Mr. Gande Mondo. He was the Returning Officer for Chuave Open Electorate. His responsibilities covered three Local-level Governments, namely, Chuave, Elimbare and Siane. He had Assistant Returning Officers for each Local-level Government, namely Mr. Thompson Beron for Chuave Local-level Government, Mr. Joseph Kerina for Elimbare Local-level Government and Mr. Lucas Gumia for Siane Local-level Government.

He told the Court that 2002 national elections was not peaceful for Chuave Open Electorate because there were fights between supporters of two candidates from Elimbare Local-Level Government in which guns were used. The polling officers had to walk back to Chuave police station because of the fight. So the police had to escort them back and negotiate with the people before the polling could go ahead. He said during polling, the polling clerks called the voters' names from the Common Roll to vote. That was the instruction given to all polling officers before polling. He agreed that clans were duplicated.

He confirmed that he received a report about Mr. John Seve threatening polling officers and obtained 100 ballot papers from them on 22nd June, 2002, at Movi Rest House. The report also highlighted duplication of ballot papers. He also told the Court that during counting, certain ballot boxes were disputed and the scrutineers asked for those boxes to be put aside but the Returning Officer allowed the boxes to be counted because of the direction by the Electoral Commission for all disputed boxes to be counted.

He also confirmed that the candidates complained about names being duplicated in the Common Roll, but instead of the duplicated names being removed from the Common Roll, they were simply rearranged in the Common roll by the Assistant Returning Officers. The clans were also put under wrong Rest Houses. For instance, Foe Rumbayufa clan which was not supposed to be under Ipaku Rest House was registered under Ipaku Rest House. The failure by the electoral officers especially the Returning Officer to correct such errors led to the boycott of counting by the scrutineers. He confirmed that during counting, the petitioner in a letter requested that certain boxes be not counted because of duplication of votes but the boxes were counted. He said when some scrutineers boycotted counting in protest, the counting continued because of the direction by the Electoral Commission.

The last witness was Mr. Zagoni Makali. He was a Returning Officer for the Unggai-Bena Open Electorate. He said Nami clan was not mentioned in the Simbu Provincial Government Proclamation thus the clan should have voted at Irafayufa Rest House in Unggai-Bena Electorate. Instead it voted at Ipaku Rest House in Chuave Open Electorate.

(iv ) Submissions.

Mr. Manase submitted that apart from the illegal practices committed by the first respondent through his supporters, there were errors and omissions made by the second respondent, its servants and agents which affected the result of the election. He cited in particular cases of double voting as a result of the people from Unggai-Bena Electorate being allowed by the polling officers to vote in the Electorate. An example he said was the 204 Namis from Unggai Bena Electorate who were allowed to vote at Ipaku Rest House.

Mr. Manase pressed the point that because of widespread duplication of names in the Electorate, the number of ballot papers issued was also inflated to meet the inflated voter population thus resulting in equally widespread duplication of votes. These he said were material errors made by the second respondent. It was submitted that, these and other material errors did affect the result of the election.

It was submitted that Nami clan belonged to Unggai Bena Electorate because in the previous elections, they voted in that Electorate. Mr Manase argued that there was no evidence of the members of the clan applying to be enrolled in Chuave Open Electorate Common Roll. He submitted that allowing the Namis to vote in Chuave Open Electorate by the polling officers was also in breach of s55 of the Organic Law.

Mr. Manase also submitted that the Common Roll clearly showed that the clans which appeared under Runungu Rest House in the Common Roll should not have been there because they belonged to Unggai Bena Electorate. It was submitted that that was an error which the Returning Officer had the power to correct pursuant to s62 (1) (a) of the Organic Law, but he failed to correct it. This he said was another material error by the second respondent.

Mr. Manase argued that these were the types of errors which the Provincial Returning Officer directed the Returning Officers to correct, but the Returning Officer in this case failed to correct them. It was submitted that the meeting held between the Returning Officer and all the candidates in Chuave on 14 June 2002, was convened by the Returning Officer purposely to assure the candidates that those errors would be corrected before polling, but the errors were never corrected.

Mr. Manase cited double voting at Movi Rest House as a classic example of a case where the number of eligible voters was only 439 but the population of voters was inflated to 589. He said another major abuse of electoral process also occurred in Nambayufa Rest House, where polling officers allowed the voters to vote without the voters being identified in the Common Roll. Mr. Manase relied on the evidence given by Mr. David Wenegave and Mr. Niko Wauti in pressing this argument. He submitted that evidence by Mr. Wenegave is crucial because he was a witness for the first respondent.

Mr. Manase submitted that there is overwhelming evidence of illegal practices committed by the first respondent and his supporters and material errors and omissions made by the electoral officers, which were likely to affect or did affect the result of the election. He submitted that the election should therefore be declared void.

Miss Copeland submitted that even if there were undue influences and other illegal practices committed by the supporters of the first respondent, including the threats made by Mr. Seve and others at Movi Rest House on 22 June 2002, there is no evidence that the first respondent knew about them or authorized them. She also emphasized that the first respondent did not know Mr. Seve.

Miss Copeland submitted that most of the petitioner's evidence is hearsay and it should be rejected.

In respect of the petitioner's reliance on duplicated votes based on figures prepared by the petitioner himself, it was submitted that those figures are unreliable because the petitioner did not identify the persons who he said double voted. In any case, the figures were taken from the Common Roll and therefore it was submitted that if reliance was placed on them, it would amount to inquiring into the correctness of the Common Roll which is prohibited by s214 of the Organic Law.

Miss Copeland also argued that the evidence given by the petitioner regarding crossings of names appearing twice in the Common Roll should be rejected because the polling clerks who were supposed to have made those crossings were never called to verify them.

Miss Copeland also urged the Court to reject the petitioner's evidence regarding threats allegedly made by Mr. Seve to the polling officers at Movi Rest House on 22 June 2002, because the other candidate, namely, Mr. John Kaupa in whose strong support base those threats were supposed to have been made did not make any complaints about them. She said had threats been made, Mr. Kaupa and his supporters would have complained about them.

In respect of the claims about the people who were allowed to vote in polling places where they were not registered to vote or the people who voted for and on behalf of others, it was argued that the evidence adduced by the petitioner was conflicting therefore the claims cannot be believed.

In regard to Namis being allowed to vote in Chuave Open Electorate, Miss Copeland placed reliance on the Proclamation which she said clearly placed the clan in Chuave Open Electorate. She argued that the Proclamation also clarified the border between the Unggai Bena Open Electorate and the Chuave Open Electorate.

Miss Copeland also argued that Namis voted according to the updated Common Roll for the Chuave Open Electorate which was done before the elections in 2002. She submitted that Namis were enrolled in the Common Roll following advice given by the village elders and ward councilors to the electoral officers who did the update. The Namis were therefore properly enrolled in the Common Roll and thus had the right to vote in the Electorate.

Miss Copeland urged the Court to accept the evidence by the first respondent and dismiss the petition.

Mr. William submitted inter alia, that Mr. Bungo whom Mr. Seve allegedly threatened could not say with certainty whether 100 ballot papers obtained by Mr. Seve were cast for the first respondent or for other candidates. Therefore, no reliance should be placed on Mr. Bungo's evidence and furthermore, if threats were made against Mr. Bungo and other polling officers, there is no evidence that the first respondent knew or authorized the threats.

In regard to duplication of names, Mr. William pointed out that the polling officers made arrangements to correct the errors and the ballot papers were issued according to the number of eligible voters for various polling places. Regarding the alleged double voting in various Rest Houses, he submitted that there is no evidence as to who actually double voted and the claim about people voting for others at Nambayufa Rest House was not substantiated. These allegations should therefore be dismissed.

Mr. William further submitted that according to the Proclamation, Nami clan was included in Chuave Open Electorate and therefore the Namis had the right to vote in the Electorate. He said there is no evidence that Namis also voted in Unggai Bena Electorate. Mr. William submitted that if the Court was to accept the petitioner's evidence and find that Namis belonged to Unggai Bena Electorate, then the Court would be inquiring into the correctness of the Common Roll which is prohibited by s214 of the Organic Law. It was submitted that the Court must accept the enrolments in the Common Roll as correct.

In regard to the voters' names being called by the polling clerks from the Common Roll to vote, it was submitted that the enabling provision in the Organic Law, which is s133 is open to interpretation in that it can be read to mean that it allows the names to be called from the Common Roll by the polling clerks for the voters to vote as was the case in the instant case or it can be read to mean the voters identifying themselves in the Common Roll before the polling clerks to vote.

Replying to the submissions made by Miss Copeland and Mr. William, Mr. Manase submitted that the Court cannot disregard the fact that several hundred ballot papers were obtained illegally by Mr. Seve and others at Movi Rest House on 22 June 2002. Besides this is the overwhelming evidence of double voting at various Rest Houses. These he submitted were more than likely to affect the result of the election.

Mr. Manase submitted that actions of Mr. Seve and others at Movi Rest House on 22 June 2002, was an illegal practice under s213(3) of the Organic Law. He submitted that initialing of 100 ballot papers by the Presiding Officer which were given to Mr. Seve was done under duress and therefore the respondents cannot claim any benefit from the Presiding Officer's actions. Mr. Manase urged the Court not to be too technical when considering the evidence before it, especially the evidence given by the petitioner's witnesses and asked the Court to be guided by s217 of the Organic Law.

In regard to double voting, Mr. Manase submitted that the evidence given by the petitioner's witnesses is overwhelming. For instance, various pages of the Common Roll where names appeared twice and which were crossed out have been identified and proven. It was further submitted that evidence given by Mr. Wauti and Mr. Wenegave regarding Wando clan members voting without being identified in the Common Roll as well as voting for the people who were not present at polling, provide clear proof of illegal and double voting. That evidence he said was not challenged at all by the respondents.

In respect of the Proclamation which the respondents contended authorized the Namis to vote in Chuave Open Electorate, Mr. Manase submitted that, that submission cannot be sustained because the Electoral Map which was tendered in evidence showed quite clearly that Nami clan is under Singoro Rest House which was in the Eastern Highlands Province. It was submitted that this was affirmed by Mr. Makali. Mr. Manase submitted that the Proclamation did not put Nami clan in Chuave Open Electorate, it only showed that Siane Local-level Government is in Chuave Open Electorate. Thus it was submitted that the respondents' argument was misleading.

Reasons for decision.

At the outset, I take note of the six agreed facts by the parties. The relevant one for purposes of the issues before me is agreed facts No. 6, which states that the petitioner came second to the first respondent with 4,033 votes. The first respondent polled 4,495 votes thus the difference and the winning margin of 462 votes.

The next thing I take note of is that the parties conceded certain facts during trial. These facts were in dispute until the trial when the parties made the concessions. Among those concessions was the concession by the petitioner that the first respondent did not personally commit undue influences and other illegal practices but they were committed by his supporters with his knowledge and authority. The petitioner also conceded that his evidence in this regard was hearsay. Then the concessions by the first respondent that his name appeared twice in the Common Roll and that both names were crossed out. Further concessions by the first respondent were that his wife and daughter's names were crossed out in the Common Roll although they did not vote. Then there were concessions by the electoral officers about double voting, threats of violence and intimidation by the voters during polling and allowing the voters to vote without following proper procedures.

Grounds upon which election may be avoided.

The petitioner has made two main allegations against the respondents. First is the allegations of undue influences and other illegal practices against the first respondent and second is the allegations of material errors and omissions against the second respondent. The petitioner therefore bears the onus to prove these allegations with clear and cogent evidence to the entire satisfaction of the Court for the election to be avoided. See, Neville Bourne v Manase Voeto [1977] PNGLR 298; Mokwa Mamando v Pyange Ni [1977] PNGLR 496 and Arnold Marsipal v Michael Pondros [1977] PNGLR 354.

I will discuss allegations of undue influences separately from other illegal practices against the first respondent. I will then discuss allegations of errors and omissions against the second respondent.

i. Undue influences.

Apart from it being an illegal practice under the Organic Law, undue influence is an offence under the Criminal Code Act, and therefore the petitioner must prove every element of the offence with at least clear and cogent evidence. Thus in this case, the petitioner needs to prove with clear and cogent evidence that the supporters of the first respondent committed undue influences with the knowledge and or authority of the first respondent. The petitioner needs to prove the dates and the times of the offences and the location or locations where those undue influences were committed. Furthermore, he needs to provide the name or names of person(s) whom he says was or were unduly influenced. See, Neville Bourne v Manasseh Voeto (supra); In re Moresby North East Parliamentary Election (No.2) Goasa Damena v Patterson Lowa [1977] PNGLR 448 and Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.

Applying the principles to this case, it is plain that the petitioner has not met any of them. In other words, he has not produced any clear and cogent evidence to substantiate and prove his allegations. From the evidence before the Court, there is not an iota of evidence to show that the first respondent either personally or through his supporters unduly influenced voters to vote for him. The petitioner's allegations therefore remain as allegations without proof. These allegations therefore have no basis and I dismiss them.

ii. Other illegal practices.

In respect of other illegal practices alleged against the first respondent, s215 (3) of the Organic Law is relevant. It provides:

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

Thus s215 (3) (a) makes it very plain that the election cannot be avoided if the alleged illegal practices were committed by persons other than the first respondent and without his knowledge or authority.

In that regard, it has been noted that the petitioner conceded that the first respondent did not commit any illegal practices personally. He has however alleged that the illegal practices were committed by his supporters with his knowledge and authority. However, as I have already said, there is not an iota of evidence that the first respondent either knew or authorized those illegal practices. The petitioner therefore has also failed to satisfy the requirements under s215(3) (a) of the Organic Law. Needless to say that he had conceded that his evidence in this regard was hearsay. Therefore, pursuant to s217, substantial merits and good conscience of the case dictate that this evidence must be rejected as it cannot be sustained against the respondents.

There is no question that there were illegal practices committed by persons other than the first respondent, but the petitioner has to prove to the satisfaction of the Court with clear and cogent evidence that the first respondent knew or authorized those illegal practices. See, Ephraim Apelis v Sir Julius Chan SC573; Robert Kapaol v Philemon Embel SC727 and James Togel v Michael Ogio and Electoral Commissioner [1994] PNGLR 396. He has not discharged that onus. It follows that these allegations also have no basis and I dismiss them.

iii. Errors and omissions by the second respondent.

The petitioner has alleged that the second respondent through its servants and agents committed material errors and omissions contrary to s218(1) of the Organic Law and that those errors and omissions affected the result of the election. Under this section, it is not enough for the petitioner to merely show that the second respondent committed errors and omissions, he must also show that those errors and omissions were material and that they did affect the result of the election.

In this regard, I find that there were series of material errors and omissions committed by the second respondent, its servants and agents which did affect the result of the election. For instance, the duplication of clans and names of voters in the Common Roll under various polling places which the Provincial Returning Officer acknowledged was a problem. Indeed, concerns were raised by the candidates about those errors at their meeting with the Returning Officer on 14 June 2002, in Chuave. The Returning Officer promised the candidates that the errors would be corrected before polling but they were never corrected. Mr. Mondo's affidavit evidence clearly highlights the problem (Ex.'AZ').

The lack of adequate security to prevent incidents of physical threats and intimidation by voters on the polling officers such as those that occurred at Movi and Nambayufa Rest Houses on 22 June 2002, was a serious and material omission by the second respondent as to its obligation to ensure free and fair election and to protect the integrity of the election process. See, Baki Reipa v Electoral Commission and Yuntivi Bao, SC606 and Daniel Don Kapi v Reuben Kaiulo and Sam Abal N2327.

In regard to the incident at Movi Rest House on 22 June 2002, where John Seve was alleged to have threatened the polling official and obtained 100 ballot papers, I have found Mr Seve's evidence wanting. He contradicted himself in his evidence and made false denials. I observed him in the witness box and I was not impressed with his demeanour. He was evasive and it was clear that his evidence did not contain a ring of truth. On the other hand, I was impressed by Mr Bungo and Mr Akia as honest and truthful witnesses. Furthermore their evidence was corroborated by Mr Mondo, the Returning Officer. I have therefore found that Mr Seve did threatened the polling officials and obtained the 100 ballot papers from them. I also accept evidence by Mr Bungo and Mr Akia that other voters also obtained ballot papers from them by force.

I also accept evidence by other electoral officers regarding threats and disturbances perpetrated by the voters in certain polling places which resulted in polling being disrupted in those polling places and voters voting without being identified in the Common Roll as genuine and eligible voters for the Electorate.

Thus there is overwhelming evidence that polling in Chuave Open Electorate was marred by widespread violence because of lack of adequate security. That resulted in lack of control of voters at polling places by polling officers. These can also be noted from the affidavit evidence of Mr. Lucas Gumia, Mr. Andrew Gagma, Mr. John Bai and Mr. Nico Wauti.

Mr. Gagma and Mr. Bai were Presiding Officers at Nambayufa Rest House and Mr. Gumia was an Assistant Returning Officer (Exs. 'AJ','AK','AL' and'AP').

The failure by the polling officers to cross out names of people who voted at Movi and Runungu Rest Houses from the Common Roll due to threats and intimidation by voters was a direct result of the failure by the second respondent to have in place adequate security measures.

Moreover, the decisions by the Returning Officer to allow all disputed ballot boxes to be counted without ruling on them because of the direction given by the Electoral Commission, was another of material errors made by the second respondent.

The names of electors appearing twice in the Common Roll and those names being crossed out are matters which the Court is entitled to take note of as evidence of duplication of names and double voting. It does not amount to correcting or inquiring into the correctness of the Common Roll. See, John Wemin Mili v Simon Philip Gaima and Electoral Commission of Papua New Guinea [1977] PNGLR 645. These errors were also conceded by the Returning Officer.

It is thus manifest in the errors and omissions discussed here that they were material and serious which affected the result of the election.

In regard to the Nami and Komuni No.1 clans voting in Chuave Open Electorate, the evidence in respect of the Nami clan shows that the Namis voted in the Electorate after they were enrolled in the Common Roll for the Electorate. The enrolments were effected during the update of the Common Roll. The position regarding Komuni No.1 clan is not quite clear but it suffices to say that the Common Roll shows that they were duly enrolled in the Common Roll as electors in the Electorate. I should however state here that the petitioner has not really challenged the eligibility of the members of Komuni No.1 clan to vote in Chuave Open Electorate. I will make further observations on this point later in the judgment.

The question of whether the two clans had the right to vote in Chuave Open Electorate hinges on their enrolment in the Electorate's Common Roll. This was one of the strongly contested issues by the parties and therefore it needs full deliberation. It is therefore appropriate that I discuss the evidence before me in this regard. The undisputed evidence is that the Namis were not in the Master List for Chuave Open Electorate. There is also evidence that in the previous elections, they voted in Unggai- Bena Electorate.

In that regard, it is important to note that the update of the Chuave Open Electorate Common Roll before the 2002 national elections was sanctioned by the Electoral Commission with enrolment officers appointed to carry out the update (Ex.'AM'). Mr. Gobson Kamsi Kamane and Mr. Simon Luta were two of those officers and they were members of Teams 2 and 3 respectively. There were six teams and each team had five members, another five members were reserves. Some members of the teams were public servants and some were non public servants. They were given a Manual to follow in the update of the Common Roll by the Electoral Commission (Ex.'AV").

Paragraph 3.3 of the Manual is relevant, particularly sub paragraphs 3.3.1 and 3.3.2, which are in these terms:

3.3 Completing an Enrolment Form.

3.3.1 Existing Electors.

If an elector's name appears on the Master List they are considered an existing elector but they should still complete a new enrolment form to update their details on the Common Roll.

3.3.2 New Electors.

Every eligible person who is not on the Master List has to be considered a new elector, even if the person claims to have voted previously. A new elector must complete an enrolment form to add their name to the Common Roll. This will ensure that they are enrolled for the next.

As noted, the evidence before the Court is that Namis were enrolled in Chuave Open Electorate Common Roll during the Common Roll update on the advice of the village elders and ward councilors. There is also evidence that new electors including the Namis applied to be enrolled in the Common Roll by filling in enrolment forms. Their applications for enrolment were endorsed by team leaders then later forwarded to the Electoral Commission headquarters in Port Moresby. The Current Common Roll for Chuave Open Electorate is the result of that update.

A number of Chuave Open Electorate Common Rolls were tendered in evidence. They are all same (Exs.'A','T','U','V' and 'W'). The Nami clan appears at page 37 of the Common Roll and its members are listed from pages 37 to 38 under Runungu Rest House and Komuni No.1 clan appears at page 63 of the Common Roll and its members are listed from pages 63 to 67 under Ipaku Rest House. Thus the members of both clans are listed under their respective clans with their Elector ID numbers next to their names. These are matters which the Court is entitled to take note of. Thus from these evidence, it is obvious that the Namis were enrolled for Chuave Open Electorate in accordance with paragraph 3.3 of the Common Roll update Manual and ss53 and 54 of the Organic Law. Thus by virtue of s52(2) of the Organic Law, the Namis had the right to vote in Chuave Open Electorate. Consequently, no issues can arise in respect of their enrolment in the Chuave Open Electorate and their right to vote in the Electorate.

I have considered it appropriate to discuss the evidence of how the Namis were enrolled in the Chuave Open Electorate Common Roll which entitled them to vote in the Electorate. But that is not necessary for purpose of s214 of the Organic Law. All that was needed for them to have the right to vote in the Electorate under s. 214 was their enrolment in the Common Roll, which they had. That is sufficient for the Court to find in their favour.

Thus in regard to Komuni No.1 clan, similar observations apply; in that the clan, viz. Komuni No.1 and its members were enrolled in the Common Roll in the same way as Nami clan. Thus pursuant to s214 of the Organic Law, that is sufficient for the Court to accept and regard Komuni No.1 clan and its members as having been properly and duly enrolled in the Common Roll. Thus they also had the right to vote in the Electorate.

The duty imposed on me by s.214 to take this approach is specifically spelt out in the section which is in these terms:

214. INQUIRIES BY COURT.

The National Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.

Thus by law, I must assume that the two clans were properly and duly enrolled in the Common Roll and therefore had the right to vote in Chuave Open Electorate. See, Mathias Karani v Yawa Silupa and Electoral Commission of Papua New Guinea, N2517. It follows that pursuant to s.52(2) of the Organic Law, the votes cast by the electors from the two clans were valid except for any double voting.

The enrolment of the two clans in the Chuave Open Electorate Common Roll was therefore not a matter which the Returning Officer could correct under ss.62, 63, 64 and 65 of the Organic Law as it was not an error.

It was strongly argued by the petitioner that the two clans, in particular the Nami clan belonged to Unggai-Bena Electorate and therefore they should not have voted in Chuave Open Electorate. The argument cannot be sustained for the reason that if the petitioner's argument was accepted, the Court would be required to go behind the Common Roll and inquire into how the two clans were enrolled in the Common Roll. That would be inquiring into the correctness of the Common Roll and that is what s214 specifically prohibits. The argument must therefore fail.

The respondents placed some reliance on the Simbu Provincial Government Proclamation as having provided the basis for setting up of various polling places and schedules and allocation of voters and clans under those polling places. The Proclamation was tendered in evidence (Ex. 'AY'). I note from the Proclamation that it was issued by the Head of State on 10 July, 1997, and its sole purpose was to establish the Siane Local Level Government within Chuave Open Electorate as a Rural Local Level Government. It served no other purpose. Thus, it is plain that the Proclamation has no relevance and application to this case. The Proclamation is therefore void of any legal effect on the electoral issues before me. It must be borne in mind that the only authority having the power to determine polling places and schedules is the Electoral Commission, under the Organic Law. Thus PART XIII of the Organic Law, more particularly ss113, 114 and 115 stipulate that preparation of the polling schedules in an election is the responsibility of the Returning Officers. See also, The Electoral Commission and Kala Rawali and Abraham Wari and Timothy Tala v Pila Niningi, SC710.

Having decided that the Nami and Komuni No.1 clans were entitled to vote in the Chuave Open Electorate, the issue regarding the electoral boundary between the Eastern Highlands Province and the Chuave Open Electorate for purposes of determining where the two clans should have voted is also put to rest as it no longer arises.

However, the fact that the Nami and Komuni No.1 clans had the right to vote in Chuave Open Electorate does not cure the material errors and omissions committed by the second respondent, its servants and agents to which I have adverted and which quite plainly affected the result of the election.

There was another material error made by the second respondent. This is a pertinent legal issue which must be addressed as it touches on the conduct of the second respondent and its servants and agents. That is the written direction to the Returning Officer and the Election Manager for the Chuave Open Electorate dated 18 July, 2002 for all disputed ballot boxes to be counted regardless of the merits of the objections. The direction was contained in a letter sent to the petitioner (Ex 'AD'). That letter was in reply to a letter sent earlier to the second respondent by the petitioner. The petitioner's letter was dated 16 July 2002 (Ex.'AC'). In the letter, the petitioner informed the second respondent that 24 ballot boxes from Nambayufa, Runungu, Ipaku and Movi Rest Houses were being disputed due to deliberate duplication of clans and voters' names and other irregularities and flaws in the Common Roll. The letter by the second respondent is significant, it is therefore reproduced in full hereunder:

18th July, 2002.

Mr. Jim Nomane

Candidate for Chuave Open

P.O Box 251

GOROKA.

Eastern Highlands Province.

Dear Sir,

Subject: Dispute on Ballot Boxes from Nambayufa,

Runungu, Ipaku and Movi Rest Houses – Siane LLG – Chuave Open Electorate.

I acknowledge receipt of your fax letter dated 16th instantly (sic.) and your intention together with the other candidates disputing all ballot boxes in Siane Local Level Government.

We advise that such matters as raised can only be addressed by the Court and therefore the validity of ballot boxes can only be challenged by properly filed election petition.

Meanwhile the counting must proceed for the Returning Officer to complete the due process of the election.

Yours faithfully,

REUBEN KAIULO, MBE

ELECTORAL COMMISSIONER.

cc. Abraham Wari – Election Manager

cc. Returning Officer – Chuave Open

This letter was treated by the Returning Officer as a blanket direction to count all the disputed ballot boxes. Thus the Returning Officer allowed all disputed boxes to be counted regardless of the merits of those disputes or objections. He did not rule on any of the disputed boxes. He told the candidates and their scrutineers that because of the direction by the second respondent, all the disputed boxes would be counted and those who wanted to dispute the boxes could petition the Court of Disputed Returns.

On 20 July 2002, following those decisions by the Returning Officer, 25 scrutineers for 37 candidates wrote to the Returning Officer expressing their concern about his decisions. They maintained that the disputed ballot boxes contained illegal votes and requested the Returning Officer to rule on each of the disputed boxes, but the Returning Officer refused. As a result the scrutineers wrote to the Returning Officer advising him that they would boycott counting until 22 July 2002. The letter was signed by all 25 scrutineers (Ex.'AAA').

In my opinion, the direction by the second respondent was an unlawful interference with the delegated powers and responsibilities of the Returning Officer under ss18 and 19 of the Organic Law. The direction effectively took away the delegated power of the Returning Officer to conduct scrutiny as provided under ss148 and 149 of the Organic Law. The scheme of ss18 and 19 is that the Returning Officer must in the exercise of that delegated power decide whether a disputed ballot box can be counted or not. Such decision can only be made by the Returning Officer based on the merits of the case before him. The Returning Officer must have such discretion. That is part of the scrutiny process provided for under ss147 and 152 of the Organic Law.

In this regard, the power given to the Returning Officer to conduct scrutiny is in my opinion broad and covers disputed ballot papers as well as disputed ballot boxes as in this case. So the process under which the Returning Officer conducts scrutiny on a disputed ballot paper under s152 of the Organic Law applies equally to a disputed ballot box. See, Tom Amaiu v Dickson Masa Maki and Reben Kaiulo, Electoral Commissioner, N2364; James Togel v Papua New Guinea Electoral Commissioner and Mathias Pihei, N2262; Samson Chris Napo v John Muingepe and Electoral Commission of Papua New Guinea, SC712 and Mathew Poia v Electoral Commission of Papua New Guinea and Fabian Ine N2390.

Thus in the instant case, when objections were raised against ballot boxes being counted, the Returning Officer should have ruled on whether the boxes should be set aside or be counted as part of the scrutiny process. Here, by allowing the boxes to be counted without ruling on the objections, the Returning Officer effectively allowed ballot boxes which had their integrity still being questioned to be counted.

The upshot of the decisions by the Returning Officer is that the declaration of the result of the election which was based partly on the numerical strength of the votes contained in the disputed ballot boxes is invalid and void of any legal effect. The reason being, the Returning Officer had no power to make a declaration which was partly based on votes whose validity and integrity were seriously questioned. See, Banega Isilowa v Yato Biaguni [1980] PNGLR 140 and Assik Tommy Tomscoll v The Electoral Commissioner of Papua New Guinea and Ben Sembri, N2349.

The direction by the second respondent was thus unlawful as it was contrary to the spirit and intent of ss18, 19, 147 and 152 of the Organic Law and it amounted to a material error.

In Daniel Don Kapi v Reuben Kaiulo and Sam Abal (supra), I made this very point. At page 14, I said:

"In Peter Ipu Peipul v Pila Nininga and Electoral Commission, SC580, the Supreme Court held that the direction referred to in s19 relates to the general duties of the Returning Officers. The direction given in the instant case was in respect of such a duty, but I am of the view that there is always a qualification that, any direction given under s19 must be lawful and for good reasons. In the instant case, there is no doubt that, the direction given was lawful and for good reason."

The direction given by the second respondent quite plainly was not only unlawful but it was given for no good or valid reason.

There is an added reason why the election should be declared void. The point relates to the manner in which the voters voted. It is a legal issue and it must be addressed. That is the evidence by all the witnesses including the petitioner and the first respondent that voters' names, including theirs, were called by the polling clerks from the Common Roll to vote. In my opinion this conduct was in breach of s133 of the Organic Law, which is in these terms: -

133. PERSON CLAIMING TO VOTE TO GIVE NAME AND

OTHER PARTICULARS.

(2) A person claiming to vote at a polling booth shall –

(a) state his full name or names; and

(b) if so desired by the presiding officer for the purpose of identifying the name under which the vote is claimed, give any other particulars necessary to be stated in the Roll or to enable him to be identified in the Roll.

The section is in mandatory terms and the clear intention of the section is for the person to state his full name and identify himself in the Common Roll before the polling officer. Nowhere in the section does it say the person's name has to be called by the polling officer from the Common Roll for the person to vote. Under s134 the person claiming to vote may be required to provide further particulars about himself at the request of a scrutinizer. Section 134 is in these terms: -

134. QUESTIONS TO BE PUT TO VOTER.

(3) Subject to this Law, the presiding officer –

(a) may, and at the request of a scrutinizer shall, put to a person claiming to vote the following questions: -

(i) "Have you already voted whither here or elsewhere in this election (or these elections, as the case requires)?", and

(ii) "Did you reside within this electorate for a period of more than six months before your claim for enrolment?", and

(iii) "Are you at least 18 years of age?", and

(iv) "Are you a citizen of Papua New Guinea?", and

(v) "Are you qualified to vote?"; and

(a) may, and at the request of a scrutinizer shall, also put to any person claiming to vote, whose name appears on the certified list of voters the following questions: -

"Are you the person whose name appears as (here state name) on the certified list of voters for this electorate?"

(2) If a person claiming to vote to whom any of the questions specified in Subsection (1) are put –

(a) refuses to answer fully a question so put to him; and

(b) does not answer the question prescribed in Subsection (1) (a) (i) absolutely in the negative, if so put to him; or

(c) does not answer the question prescribed in Subsection (1) (a) (ii) absolutely in the affirmative when put to him; or

(d) does not answer a question specified in Subsection (1) (a) (iii), (iv) (v) or (b) absolutely in the affirmative when put to him,

his claim to vote shall be rejected unless he is a candidate for election for that electorate.

(3) The voter's answer to a question put to him by the presiding officer under this section is conclusive, and the matter shall not, subject to this section, be further inquired into during the polling.

It is plain that the questions to be put to the person under s134 are after the person has identified himself in the Common Roll before the polling clerk under s133 and if so requested by the scrutinizer. Section 134 is therefore optional and can only be invoked if requested by the scrutinizer. The difference between the two sections is that s133 is not optional. It is a mandatory procedural requirement which must be complied with in every election. Section 134 on the other hand is although optional must also be complied with once invoked, as it is also in mandatory terms. Failure to comply with the requirements under either of these sections will amount to a material error by the second respondent as was the case here.

The point to be emphasized here is that s133 clearly does not empower the polling clerks to call out persons' names in public from the Common Roll to go and vote. The reason is obvious, if the persons' names are called in public, anyone from the crowd can pretend to be the person called and falsely identify himself in the Common Roll using the name called and can still cast his vote. Any vote cast would of course be invalid. The same person can turn up in another polling place and cast another illegal vote using the same trick. This will naturally result in a lot of illegal and double voting. Indeed in the instant case, that appears to have been the case and a lot of people took full advantage of the opportunity and voted more than once. Sections 133 and 134 are intended to prevent these types of abuses. They safeguard the integrity of the electoral process. Therefore it is not by an accident that the two sections are in mandatory terms. Thus the need to comply with s133 by the polling officers in the instant case was obligatory. It was therefore a material error by the electoral officers not to comply with the section.

The petitioner had sought Orders that he be declared the winner or in the alternative to declare the election void and order a by-election.

In the circumstances, I am not convinced that the petitioner should be declared as the candidate duly elected. There is no basis for such an Order. I therefore refuse to declare the petitioner as the duly elected member for Chuave Open Electorate.

I am however satisfied that the petitioner has proved to the satisfaction of the Court that the errors and omissions committed by the second respondent, its servants and agents were material and they affected the result of the election.

Therefore the appropriate Order I should make is to order a by-election.

Consequently, I make following Orders: -

(i) I declare that the election of the first respondent is void.

(ii) I Order the second respondent to immediately conduct a by-election for Chuave Open Electorate.

(iii) I Order that the sum of K2,500.00 paid by the petitioner as the deposit for security for costs be refunded to him forthwith.

In regard to costs, it is quite plain that the election is being avoided due to the material errors and omissions made by the second respondent, its servants and agents.

It follows that the second respondent must pay the costs for both the petitioner and the first respondent.

The Speaker of the Parliament will be advised immediately of this decision.

Orders accordingly.

Lawyers for the petitioner: Pato Lawyers.
Lawyers for the first respondent: Young & Williams Lawyers.
Lawyer for the second respondent: Nonggorr & Associates Lawyers.