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Mond v Okoro, Tualir, and Electoral Commission; Re Sinasina Yonggumugl Electorate [1993] PGNC 83; [1993] PNGLR 385 (10 February 1993)

PNG Law Reports 1993

[1993] PNGLR 385 - Ludger Luker Mond v Kerenga Ben Okoro, Leo Tualir, and Electoral Commission; Re Sinasina Yonggumugl Electorate 

[1993] PNGLR 385

N1136

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND DISPUTED RETURNS FOR THE SINASINA-YONGGAMUGL OPEN ELECTORATE; LUDGER LUKER MOND

V

KERENGA BEN OKORO; LEO TUALIR AND THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Kundiawa

Woods J

8-10 February 1993

PARLIAMENT - Elections - Disputed returns - Alleged unlawful second polling day - Alleged irregularities with common roll - Disturbance in counting room - Petition dismissed.

Facts

The petitioner was a candidate in the election for Sinasina-Yonggamugl Open Electorate in Simbu Province in the 1992 elections for the National Parliament. He challenged the validity of the election, alleging improper conduct of electoral officials, in that:

N2>(a)      an unlawful second day of polling occurred during which persons whose names appeared on a list which was not part of the principal roll of voters for the electorate were permitted to vote;

N2>(b)      the returning officer failed to declare formally the winner, and

N2>(c)      the first respondent's entry into the counting room adversely affected the counting process.

Held

N1>1.       The second day of polling was not unlawful, as s 117 of the Organic Law on National Elections (the Organic Law) permitted departure from a polling schedule.

N1>2.       The list of persons was a list of voters accidentally omitted from the principal roll of voters. In permitting those on the list to vote, the returning officer was correcting an omission in the principal roll, as permitted by s 61 of the Organic Law.

N1>3.       There was no merit in the allegation about failure to declare the winner.

N1>4.       The Court can act only on evidence of illegal acts or irregularities which may have affected the results of an election. There was no evidence that the entry of the first respondent to the counting room affected the counting process or the result.

Counsel

D Lambu, for the petitioner.

P Niningi, for first respondent.

J Bray, for second and third respondents.

10 February 1993

WOODS J: This is a petition disputing the validity of the election for the Sinasina-Yonggamugl Open Electorate in the Simbu Province in the 1992 national elections.

The petitioner has made a number of allegations, one of which was struck out at a preliminary hearing. The remaining allegations concern, firstly, the actions of electoral officials. It is alleged that they allowed a second day of voting at Dumun polling place and used an unauthorised list of voters as a supplementary electoral roll. It is then alleged that the Returning Officer counted wrongly some informal votes, although this ground was not pressed at the trial so I do not need to consider that. Then it is alleged there was an irregularity in the declaration of the winner. Finally, there is an allegation concerning the entrance of the first respondent into the counting room and that this affected the counting process. I will deal with each allegation separately.

DUMUN POLLING PLACE

I do not find that the second day of polling at Dumun was unlawful or affected the results as such. Section 117 of the Organic Law on National Elections (hereafter Organic Law) provides that an election shall not be challenged on the ground of failure to observe a polling schedule or of a variation or a departure from a polling schedule. However, here the thrust of the allegation is that on this second day a large number of persons whose names were not on the common roll were allowed to vote. It is alleged this was done with the use of a typed list which was not officially prepared by the Electoral Commission. The Electoral Commission does not deny that a number of voters were enabled to vote from a set of typed pages. I note here also that Dumun Village is the first respondent's home village. However, the evidence from the second respondent, Mr Tualir, who was the Returning Officer for this electorate, was that just prior to the polling at Dumun polling place it was discovered that there was a mistake in the compilation of the principal roll of voters such that a number of pages supposed to be included in the principal roll had been left out. The principal roll is a large volume of lists of voters, all paginated in order with an index referencing the villages and clans and all put together with fold back pins. The Returning Officer, on discovering the omissions, went to his master roll, which is a large volume of all the names compiled from the work of officers during their village surveys the previous year. He found the missing pages of names and gave them to the presiding officer of the relevant team for Dumun. The missing pages were four pages of members of the Droku Clan of Dumun Rest House and two pages of members of the Kutanku Clan of Dumun Rest House. It is noted that actually the Kutanku Clan take up three pages, but the third page was actually in the principal roll book. It is submitted for the Electoral Commission that the use of the pages was a lawful and obvious solution to the accidental omission of the pages in the compiled principal roll. This was no more than the Returning Officer acting under s 61 of the Organic Law and correcting an omission in the roll and reinstating a name removed by mistake. The master roll or master volume was produced to the Court.

A close study of the principal roll shows some carelessness in the compilation of the pages. Pages 110 to 206 do not follow the index. The Returning Officer certified the principal roll, but it appears he only did that by certifying the index. He did not closely examine the over 600 pages to check that the compilation followed the index. And it is in the area between pages 110 and 206 where the 6 missing pages were supposed to be, according to the index. The Returning Officer has shown where these pages are in his master volume, and there is no evidence before me to show that the names on these pages are not eligible people. Actually, one of the witnesses for the petitioner agreed that his name was on those pages, and that is how he was able to vote.

I am satisfied that the typed pages produced and used were valid lists of enrolled voters and that there was an accidental omission by the officials in the compilation of the principal rolls. This was not a case for a supplementary roll; that is, for newly enrolled voters. These voters had been properly enrolled in 1991. The index shows that, as does the master roll. I am satisfied that the Returning Officer was empowered to act as he did. The converse is that if he had not so acted, those persons on those lists may have been denied the right to vote. By virtue of the fact that there was evidence that they had enrolled properly, they would have been able to make a challenge to the election for being denied that right. Of course, I must make the point that I do not want to be seen to be sanctioning Returning Officers making mistakes like this. The lesson here is that by so erring the Returning Officer may have brought the trouble of this petition on his own head and has cost his office and everyone a lot of time and trouble. But I find no error or omission here to invalidate the election.

THE DECLARATION OF THE WINNER

The petitioner gave evidence that, although he was around the provincial government buildings after the counting of votes had concluded, there was no formal declaration of the winner by the Returning Officer. Whilst I am not sure how this alleged failure could actually affect the final tally, the Returning Officer has given evidence that he made the declaration at 1.30 pm on 2 July 1992 outside the provincial government building in the presence of a large number of people. His evidence on this is corroborated by reference to his diary of events and by a police constable who accompanied him at the time. I find there is no merit in this allegation.

THE INTRUSION BY THE FIRST RESPONDENT INTO THE COUNTING ROOM

There is no dispute that the first respondent did enter the counting room during the counting. The evidence for the petitioner, from persons in the counting room, was that this entry was unauthorised and forced and that, in the counting room, the first respondent threatened people, created fear and terror, and generally disrupted the counting process so that many people fled the room and did not return. Therefore, the rest of the counting was done without a proper scrutiny. It is submitted that this intrusion was an offence under the Criminal Code of unlawfully interfering with the election and, therefore, the first respondent should be found guilty of an offence and the election, thereby, invalidated. Whilst this intrusion may have been highly irregular or inadvisable, there is no evidence of any criminal or other charge having been laid against the first respondent and any conviction being recorded.

The evidence of the first and second respondents is that the first respondent was given permission to go to the counting room, and there was no actual interference with the votes or the counting process. The first respondent does admit to talking strongly and angrily, but I ask myself what was the effect of this on the counting. There is no evidence from anyone that there was any tampering with the votes for the electorate. There was talk of fear, but even if some people may have been frightened of the first respondent, noting that prior to the election he had been a special police squad commander in the Simbu Province, what was the effect of that? There must have been many people in the counting room at the time. There were 48 candidates for the open seat and 22 for the regional seat, so that is two lots of counting officials, 70 counting trays, and as many scrutineers. Were they all frightened off from the counting process or unable to count properly? There is no evidence to support such a contention. The Returning Officer agrees that he had a lot of people to control and supervise and that, after this intrusion, he did do a recheck of the credentials of everyone in the room. But there has been no evidence to suggest that the counting was in any way affected such that there was a miscounting, or misdirecting of votes to trays, or a failure to count votes.

The overriding consideration in election petitions is that the court should be guided by the substantial merits of the case and good conscience. The question I ask myself is: was there a true election? No one has come to this court and said: "I was prevented from exercising my right to vote". No one has come to this court and proved that boxes were "stuffed" and that, therefore, the result must be suspect. As I have said in previous cases, it is not enough to come to this court and say I am suspicious or I have doubts and, please, will the court look at the whole election and remove those doubts or take action. This court can only act on evidence of illegal acts or of clear irregularities which may have affected the results of the election.

I note that in this electorate there were 48 candidates and a possible 39,000 votes. With the first-past-the-post system that we have, this can create quite strange situations. With so many candidates, the winning margin may be very close. The eventual winner may have polled very few votes even almost till the end of the counting but may suddenly surge ahead when his village or resting place is counted. With so many candidates for such a population, candidates may only get their votes from their own village or resting place. So a close vote or a surge on one or a few boxes is not, of itself, a reason to seek a recount or a fresh election.

There is nothing on the evidence before me for this Court to find that there has not been a true and fair election.

I dismiss the petition.

Lawyer for the petitioner: David Lambu & Associates.

Lawyer for the first respondent: P Niningi.

Lawyer for the second and third respondents: Pato Lawyers.