Unreported National Court Decisions
N1753
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 32 OF 1997
IN THE MATTER OF THE ELECTION FOR THE
KAINANTU OPEN ELECTORATE
YUNTIVI BAO
PETITIONER
AND
BAKI REIPA
FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION OF PNG
SECOND RESPONDENT
Lae
Sakora J
21-22 May 1998
26-28 May 1998
23 June 1998
17 July 1998
PARLIAMENT - Elections - Disputed election return - Errors or omissions by Electoral officials - Lack of security at polling - Destruction of ballot box - Illegal practice - Destroyed and uncounted votes - Effect on the result of the election - Organic Law on National and Local-level Government Elections, ss. 15, 133, 134, 191, 200, 215, 217 and 218 - Constitution, s.126.
Counsel
Mr Gamoga for the Petitioner
Mr Manase for the 1st Respondent
Dr Nonggorr for the 2nd Respondent
17 July 1998
SAKORA J: This is the petition of Mr Yuntivi Bao who was a candidate at the 1997 national general elections for the Open parliamentary seat of Kainantu in the Eastern Highlands Province. The candidate returned as elected was Mr Baki Reipa, the first respondent.
The petition alleges two basic grounds upon which the voiding of the election and return is being sought: (1) errors or omissions on the part of electoral officials; and (2) an illegal practice by a third party. It is contended in these respects that such errors or omissions affected the result of the election, or that the illegal practice was such as to be likely to affect the result of the election, and that, therefore, it is just that the candidate returned should be declared not to be duly elected or that the election should be declared void.
It is instructive to note at this juncture those formal non-contentious aspects of this matter. The writ for the election in the Kainantu Open electorate was issued under the hand of His Excellency the Governor General on 10 April 1997, made returnable on or before 15 July 1997 (Annexure “A” to the affidavit of Morea Veri, Assistant Electoral Commissioner, sworn 20 April and filed 21 April 1998, Exhibit “S”). Polling in the electorate was to take place between 14 and 28 June 1997 (ibid). The writ was returned on 30 June 1997 following counting and declaration of the result at 5.30 am 29 June 1997 (1997 General Election Report, Annexure “B”, ibid).
The declaration had the first respondent polling and winning with 3,165 votes, and the petitioner coming second with 2,754 votes, the winning margin being 411 votes. There were 26 other candidates contesting this parliamentary seat. The first respondent, overall, received 0.32% of the votes cast (Annexure “B”, Exhibit “S”, supra).
The petitioner’s case under the two basic allegations (paras. 6 and 7, Petition) can be conveniently summarised as follows. Firstly, that the second respondent failed in the discharge of its legal constitutional duties and functions to count ballot papers from a Ballot Box numbered EHP. 1323, thereby preventing 466 electors in the electorate from exercising their constitutional right to vote in the election. Secondly, it was contended that the subsequent destruction of the said ballot papers whilst in the care, control and custody of the second respondent constituted an error of, or an omission by, an officer of the second respondent which affected the results of the said election. Finally, the petitioner contended that the unlawful interference with and destruction of Ballot Box numbered EHP. 1323 and the 466 ballot papers contained therein constituted an illegal practice likely to affect the result of the election.
The facts relied upon by the petitioner to challenge the validity of the election and return can be briefly summarised as follows. On Wednesday 18 June 1997 voting in the election was being conducted at Kingston Town Buai Market, a settlement at the edge of the Kainantu township. This was a designated “polling place”, and Ballot Box No. EHP. 1323 was being used that day. Election Team No. 23 was manning and conducting the voting. Presiding Officer John Meikwar was assisted by polling clerks Kiso Agoniso and Theresa Turea. The Assistant Returning Officer for the electorate was Solomon Tato. On the day and afternoon in question he was operating from his office at the Kainantu District Office.
Polling commenced at about 10.30 am. At about 5.30 pm., after the completion of polling the subject Ballot Box was transported in a vehicle by the presiding officer to the District Office where it was delivered into the physical custody of the Assistant Returning Officer. Whilst in the physical custody, control and care of this officer, another person, by the name of Poe Taranka, with others caused a commotion and, in the process, he (Poe Taranka) took Ballot Box No. EHP. 1323 by force from the electoral officer and destroyed it, breaking open the box and burning it and its contents, a total of 932 ballot papers (made up of 466 votes each cast for the Open and the Eastern Highlands Regional seat).
At the commencement of the trial of the allegations the second respondent did not dispute the following facts:
*        That Ballot Box No. EHP. 1323 was destroyed;
*        That Ballot Box No. EHP. 1323 contained 466 votes;
*        That Ballot Box No. EHP. 1323 came from Kingston Town Buai Market; and
*        That the first respondent’s winning margin over the petitioner was 411 votes.
The first respondent’s attitude was that he did not know whether there were 466 votes or not, and further contending that he would, thus, cross-examine the petitioner and his witnesses on the allegations (his) of numerous instances of double voting. After the trial the first respondent, in his submissions accepted the brief facts as stated by the petitioner in his submissions (written, para. 2, p.2) except what was said in the following words:
Whilst in the custody, control and care of Solomon Tato, one Poe Taranka, with other persons caused a commotion and in the process, took the box by force from the custody of the Electoral Commission Officers.
The first respondent took exception to the petitioner’s suggestion of a commotion immediately before or accompanying the forcible removal of the subject ballot box from the physical custody of the electoral officer. Thus, the fact that the box was removed in the manner described and destroyed immediately after is not disputed. Otherwise the first respondent would have to contend with (and somehow explain away?) the very fact that the perpetrator here, Poe Taranka, was duly charged and convicted of an electoral offence under the Organic Law on National and Local-level Government Elections (OLNLLGE): offence No. 14 under s.191 which reads:
Unlawfully destroying, taking, opening or otherwise interfering with ballot-boxes or ballot papers.
The offence carries the maximum penalty of imprisonment of six months. This offender was duly dealt with according to law (see: certificate of Conviction, Annexure “A” to the affidavit of Poe Taranka, Exhibit “O”). In any event, evidence at the trial did suggest some commotion taking place at the time in the gathering of a mob of some 100-120 people outside the District Office (for instance, affidavit of Roger Bao, Exhibit “B”, and oral evidence: cross-examination by Dr Nonggorr). In his cross-examination by Dr Nonggorr also, Poe Taranka estimated more than 50 people standing around at the time he took possession of and destroyed the ballot-box and its contents. See also the evidence of polling clerk Kiso Agoniso (his affidavit, Exhibit “P”, para. 13, and oral evidence). This witness suggested “100 and less” people with Poe Taranka around the District Office at the time.
The trial took six sitting days in May and June this year. The petitioner called six witnesses, including himself, to give sworn oral evidence. Their respective affidavits filed before the trial were tendered and admitted into evidence as Exhibits “A” to “F” inclusive. Two electoral officials, John Meikwar (Presiding Officer at the Kingston Town Buai Market polling booth) and Solomon Tato (the Assistant Returning Officer for the electorate) were summonsed by the petitioner to appear, and did give sworn oral evidence.
The first respondent called four witnesses to give sworn oral evidence on his behalf. They had all sworn and filed their respective affidavits before the trial, and these were admitted into evidence as Exhibits “N” to “Q” inclusive.
The affidavit of Assistant Commissioner Morea Veri (Exhibit “S”) has been referred to already here. Dr Nonggorr of counsel for and on behalf of the second respondent had this affidavit tendered by consent of the other parties. Learned counsel for the second respondent brought to the attention of the court at the conclusion of evidence the position of the Electoral Commission in terms of its ability, or lack of, in the assistance rendered to the court during the proceedings. The petitioner’s allegations were and are against the Commission in the discharge and performance of its public duties and functions under the Constitution.
The court accepts Dr Nonggorr’s explanation and fully appreciates the Electoral Commission and its lawyers’ difficulties in obtaining assistance from the responsible electoral officials in the electorate. These had directly to do with the officers withholding necessary documents and information, demanding payments of outstanding entitlements or allowances. And these demands have come from the Commission’s own salaried officers in the electorate as well as other public servants seconded to the Commission for the purpose and duration of the elections. The difficulties encountered in the Kainantu Open electorate in this respect are symptomatic of a nation-wide general attitude. It really is a sad reflection of how drastically attitudes and the public service culture have changed for the worse in such a short time since political independence. The ordinary people of Papua New Guinea are of course the losers in this situation, when those wonderful attributes of public service, impartiality and dedication do not feature at all in the conduct of government business.
The court has been assisted also by the tender and admission into evidence of the following documents:
*        Presiding Officer’s Return of Voters and Ballot Papers, 18/06/97, for Kingston Town Buai Market, Ballot Box No. 1323.
Exhibit “I(a)”
No. of people who voted:	- 245 Males }	
 	- 221 Females } 466	
*        Presiding Officer’s Return of Voters and Ballot Papers, 19/06/97, for Kingston Town Buai Market, Ballot Box No. 1778/1781.
Exhibit “I(b)”
No. of people who voted:	- 222 Males }	
 	- 174 Females } 396	
*        Presiding Officer’s Return of Voters and Ballot Papers, 18/06/97, for Kainantu High School, Ballot Box 1325.
Exhibit “I(c)”
No. of people who voted:	- 100 Males }	
 	- 101 Females } 201	
*        Presiding Officer’s Return of Voters and Ballot Papers, 18/06/97, for Kingston Town Buai Market, Ballot Box No. 1323.
Exhibit “K(a)”
(see Exhibit “I(a)”
*        Summary of Presiding Officer’s Return of Voters and Ballot Papers, Kingston Town Buai Market, Ballot Box No. 1778/1781.
Exhibit “K(b)”
222 Males	 	
174 Females	396	
*        Summary of Presiding Officer’s Return of Voters and Ballot Papers, Kainantu High School polling place, Ballot Box No. 1325, 20/06/97.
Exhibit “K(c)”
100 Males	 	
101 Females	201	
*        Uminifintenu Community School polling place, Ballot Box Nos. 1312/1375/1799.
393 Males	 	
358 Females	751	
*        Sex Tally Sheet, Kingston Town Buai Market, Ballot Box No. 1323, 18/06/97.
Exhibit “L(a)”
*        Sex Tally Sheet, Kingston Town Buai Market, Ballot Box Nos. 1781/1778, 19/06/97.
Exhibit “L(b)”
*        Sex Tally Sheet, Kainantu High School, Ballot Box No. 1325, 18/06/97.
Exhibit “L(c)”
*        Polling Schedules - EHP.
Exhibit “J”
*        Tally Sheet, Election Form EC. 601 - 14 Sheets
Exhibit “M”
In the assessment of the evidence before me, and the discussion and application of the pertinent law on the issues raised, I have had the benefit of full exhaustive submissions from all three counsel.
FACTS IN ISSUE
The trial has “thrown up” two basic issues of fact for the court’s consideration and determination. And these are set out hereunder as follows:
1.       Whether or not the second respondent failed to or defaulted in its public Constitutional duty to provide and maintain proper and adequate security during and at the conclusion of the polling on 18 June 1997 at the Kingston Town Buai Market polling place, and subsequently at the District Office, which failure or default resulted in the destruction of Ballot Box No. EHP. 1323.
2.       Whether or not the petitioner would have received all of the 466 votes contained in Ballot Box No. EHP. 1323 and destroyed with it.
ISSUES OF LAW
The above issues of fact necessarily raise the following issues of law for the court’s consideration and determination:
1.       Whether or not the failure or default of the second respondent in providing proper and adequate security as alleged constitutes an error or omission recognised by law as affecting the result of the election.
2.       Whether or not the failure of the second respondent to count the 466 votes as required by law constitutes an error or omission such as recognised by law to affect the result of the election.
3.       In the alternative, whether or not the illegal practice committed by another person, Poe Taranka, without the knowledge or authority of the first respondent, was likely to affect the result of the election.
ASSESSMENT OF EVIDENCE: FACTS IN ISSUE
It is the contention of the second respondent that the petitioner produces no evidence to suggest what sort of precaution it should have taken and failed to do so. And, thus, it is argued, all reasonable protection necessary had been taken by the second respondent’s officers and agents: the transportation of the box from the polling place to the District Office and handing it over to the Assistant Returning Officer. It was while the box was in the office that the man, Poe Taranka, forcibly took possession and destroyed it.
In support of this general denial of direct responsibility for what happened to the box, learned counsel for the first respondent submitted that providing adequate security to ensure safe custody, control and care of Ballot Box No. EHP. 1323 was not a proper function and responsibility of the second respondent.
Taking the second argument first, to advance such a proposition as has been done seriously here is to make light of the Constitutional importance of the ballot box in a democracy; the vital importance of holding and conducting free and fair elections at regular intervals. And to liken this responsibility to a mere “administrative duty or function performed in corroboration with the Government and not a legal duty or function imposed upon the Second Respondent by the Organic Law...”, as learned counsel for the first respondent does, is to ignore the Constitutional place and purpose or role of the Electoral Commission.
Section 15 of the OLNLLGE provides for the prime function of the Electoral Commission in the following terms:
It is the prime function of the Electoral Commission to organise and conduct all elections for the Parliament and the legislative arms of the Local-level Governments.
This function emanates from the power vested in the Commission by the Constitution under s.126, which reads (the pertinent parts for our present purposes):
126.    Elections
(1)      Elections to the Parliament shall be conducted, in accordance with an Organic Law by an Electoral Commission.
(2)      General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.
(3)      ......
(4)      A citizen’s right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).
(5)      ......
(6)      ......
(7)      An organic Law shall make provision for and in respect of:
(a)      .......
(b)      the electoral system; and
(c)      safeguarding the integrity of elections; and
(d)      ......
In respect of the first argument, advanced by learned counsel for the second respondent, the first point that has to be made is that the very fact that the subject ballot box was forcibly removed by an unauthorised person, from the direct physical custody, control and care of the electoral officials, and destroyed immediately speaks volumes about the failure, the negligence, of the responsible servants and agents of the second respondent: res ipsa loquitor. It was the legal Constitutional duty of the second respondent, through its officers, servants and agents, to ensure the security of the ballot box, and to count the votes contained therein.
It is a fact of life, such that judicial notice could properly be taken of it, that disturbances and violence are associated with conduct of elections in Papua New Guinea. More serious incidents involving lives and safety of persons have taken place at or near polling places. Thus, the need for the second respondent and its servants and agents to be more vigilant, and cautious, in the discharge of its Constitutional duties and functions.
There was ample evidence before me at the trial of disturbances and commotion both at the polling place and later at the District Office to alert the electoral officials of possible “trouble”. These evidence came from witnesses called on behalf of both the petitioner and the first respondent (for example, the evidence of Roger Bao, Poe Taranka, and polling clerks Theresa Turea and Kiso Agoniso).
It is not without consequence to note that had the electoral officials, especially the Presiding Officer and the Assistant Returning Officer, attended to complaints raised during the day, especially by the Poe Taranka, what happened at the District Office would not have come about. There was evidence that the electoral officials and the police (at the District Office) stood by and watched the ballot box being seized and destroyed.
To try to deny responsibility under these circumstances is, with respect, to engage in mischievous nonsense. The incident involving the ballot box could hardly be said to be an act of God. Nor could it properly be said to be an act of man not in the contemplation or expectation of the officials.
Section 200 of the OLNLLGE is in the following terms:
200.    Offender maybe removed from Polling Booth
(1)      A person who, in a polling booth during the polling, misconducts himself, or fails to obey the lawful direction of the presiding officer, may be removed from the polling booth by a member of the Police Force or by a person authorised by the presiding officer.
Because of what usually happens at polling places in Papua New Guinea during elections, and because of what was “brewing” once Poe Taranka started complaining and yelling at the Kingston Town Buai Market polling place on the afternoon of 18 June 1997, the officers, servants and agents of the second respondent had a legal Constitutional duty to ensure the security of Ballot Box No. EHP. 1323. For a start, police presence at the polling place and at the District Office would have been requested. But no precautionary security measures were taken by the second respondent’s servants and agents. Default in this respect constituted, in my opinion, negligence of duty on the part of the second respondent.
It is my considered opinion, therefore, that this failure, this default, this dereliction of duty on the part of the officers, servants and agents of the second respondent resulted in the unlawful seizure of the subject ballot box and its destruction.
As to whether or not the petitioner would have received all of the 466 votes contained in the Ballot Box No. EHP. 1323, there was no, and there cannot be any, direct evidence on this. The 466 Ballot papers were destroyed by fire along with the ballot box. Thus, what the petitioner himself and his witnesses said on this aspect has been quite properly described or characterised by the two respondents as mere opinion. My assessment of the evidence does confirm this characterisation. It is noted, however, that part support for the petitioner’s contention came from the results of the polling at the same polling booth the very next day, 19 June 1997. It was not disputed that Ballot Boxes 1781 and 1778 were used and they contained a total of 396 votes, allocated as follows:
Box 1781	Petitioner	- 239 votes	
 	Informal	- 1 vote	
Box 1778	Petitioner	- 151 votes	
 	Jerry Dedeti	- 1 vote	
 	T.S. Taranka	- 1 vote	
 	R.B. Tesanave	- 1 vote	
 	Informal	- 2 votes	
These emerge from the oral evidence of the petitioner’s witnesses and from Exhibit “M” (tally sheet).
It has been the petitioner’s case that these figures demonstrated the validity of his contention that this particular polling place/booth was situated in his “stronghold”, his “base”, the area he was born into and raised. Therefore, he expected to received most of, if not all, the votes from here. In his evidence the petitioner said this (affidavit, Exhibit “A”, para. 4):
The Kingston Town polling place is located within my home, that is Arona, where I was born and raised up (sic) and regard it as my base area to pick up heavy block vote. The main reasons being my natural birth right and very strong customary, social and cultural ties with my people from the Arona area.
The petitioner elaborated and expanded on this theory (home base advantage) in the remaining parts of his affidavit. And this was the basis of the supporting opinions expressed by his witnesses. His brother Roger Bao said this in his cross-examination by Dr Nonggorr:
Q:      You said all 466 votes would have gone to Yuntivi Bao. How do you know this.
A:       Yuntivi Bao, that is his base, where he was born and brought up, family relationship. Strong base support area. As can be seen from votes cast on Thursday (19 June). He collected all the votes.
The last sentence is an exaggeration, but the figures (supra) demonstrate he received a large majority of the votes cast on Thursday 19 June 1997, and the first respondent’s name did not feature there at all.
It was suggested in cross-examination of the petitioner and his brother, and taken up in the submissions of both respondents, that the area “harboured” settlers from other areas and provinces, and that these settlers and long-term residents would have voted for other candidates. Both the petitioner and his brother were not moved in their stand that, firstly, there were no settlers in the area, and, secondly, that those who may have originally come into the area as settlers were now long-term residents, absorbed and assimilated into the Arona clan. As such, it was maintained, “These people, we regard them as Arona clan, they are part of us”
In view of his close association and affinity with the area in question, it was the petitioner’s claim and contention that he would have collected 466 votes (the contents of the destroyed Ballot Box No. EHP. 1323), resulting in his overtaking the declared winning candidate by a majority of 55 votes.
I agree with the respondents that there is no direct evidence that this would have been the result if 466 ballot papers had not been destroyed. Similarly, there is no direct evidence that the 466 votes would not have the result the petitioner suggests. But there is indirect evidence (opinion of the petitioner and his witnesses, and Exhibit “M”) to suggest that the petitioner would have received most of the 466 votes. I am guided and strengthered in this by what s.217 OLNLLGE obliges the court to do:
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 and technicality or whether the evidence before it is in accordance with the law of evidence or not.
The evidence called on behalf of the first respondent were intended to demonstrate what learned counsel for the first respondent described as “numerous instances of double voting which we have noticed and other illegalities of the Petitioner and his supporters.” The second respondent takes this up also in his submissions. It is submitted in this respect by the two respondents that because of these “numerous instances of double voting”, the election and return should not be voided. The petitioner, their argument goes, does not come to this court “with clean hands”, in the language of equity.
Putting it another way, because of the numerous instances of double voting by the petitioner and his supporters, the court should do justice to the innocent party, the first respondent, by not declaring his election void, even if the court is satisfied that an error or omission was committed which affected the result of the election, or, in the alternative, an illegal practice was committed which was likely to affect the result. If there were evidence of double voting on a large scale, that would be a very good reason for the court to order that the election be conducted properly and fairly the second time.
Evidence of double voting was sought from four witnesses: Poe Taranka, Kiso Agoniso, Theresa Turea and Gill Tony. Poe Taranka, a vocational school teacher in the district and a brother of a candidate in the election in question, said that he was a scrutineer for his sister, Susan Taranka. But there was no evidence of such an appointment pursuant to s.127 OLNLLGE. It would seem there were two scrutineers operating at that polling booth that day: gentlemen by the names of Mamiso and Seket. There was no evidence that this witness actually relieved any of the two scrutineers as required: s.127(i) OLNLLGE. Be that as it may, his evidence about double voting cannot be relied upon. It was short on specifics and long on generalities. He talks about seeing “a lot of people” voting against other voters names that were called out (see: his affidavit, Exhibit “O”, paras. 10, 11 and 12).
Generally this witness (Poe Taranka) seemed to be making up stories as he went along. He is highly suggestive; appeared to me to be a person who would go along with anything put or suggested to him. Except for one name he gave (a Charlie from Okapa), he generalised about “supporters” of Yuntivi Bao. In his evidence he said he brought the matter of double voting to the attention of the Presiding Officer but nothing was done. The Presiding Officer, John Meikwar, maintained that no complaints about double voting were brought to his attention.
In his eagerness to “help” this witness said (under cross-examination by Dr Nonggorr) he believed voters used lemon and a cleaning substance to rub off the ink marks which enabled them to vote twice. But the system as described by polling clerks Kiso Agoniso and Theresa Turea was such that it would not have been possible for what Poe Taranka says to take place. It is noted, however, that the two polling clerks made no mention of lemon or some substance being used to rub off the ink marks on voters’ fingers. In fact Theresa Turea, who was responsible for placing ink marks on voters’ fingers before they voted, said that she noticed that there were still ink marks on their fingers when those same people came back to vote. She allowed them to vote because: “I could not do anything to correct the situation in fear (sic) of being assault (sic) under threats issued by supporters. In cross-examination by Mr Gamoga of counsel for the petitioner, this witness said she saw four people who still had ink marks. She could not remember their names. In re-examination by learned counsel for the first respondent, the witness said she was able to identify a supporter of the petitioner because “when Yuntivi came, they were all looking at him.” When asked by counsel how many of those people at the polling place looked at him, she answered: “There were not plenty, just one here and there”. So this is the only basis for her connecting them to the petitioner as his supporters!
Polling Officer Gill Tony was at the Uminufintenu Community School polling booth on 19 June 1997 when she says she saw the petitioner arrive with his wife and daughter and cast his vote. And here we have an identifiable person alleged to be double voting. The petitioner denied this, saying he had voted at the Kingston Town Buai Market polling booth on Wednesday 18 June 1997, and that the next day he had been summoned to the District Office for briefing or information on the destruction of Ballot Box No. EHP. 1323 the previous afternoon.
In the end result I find the evidence of the three polling clerks unreliable. I would, therefore, place no credence on their allegations of double voting. It has to be noted that they make these allegations and say nothing about their duties and responsibilities under ss.133 and 134 OLNLLGE. These two provisions set out the procedures for scrutinising the voting, and determining who was or was not eligible to vote. If these officers had been properly discharging their responsibilities under the law, as required, what they allege would not have taken place. And in respect particularly of the evidence of Gill Tony, I prefer the version of the events of 18 and 19 June 1997 given by the petitioner as the true account. Apart from suggesting to him in cross-examination that he did vote twice, no questions are asked about his whereabouts and what he was doing on Thursday 19 June 1997, to counter or contradict his own account.
Finally, it is noted in respect of the allegations of double voting that such an act constitutes a criminal offence under s.191 OLNLLGE, carrying a penalty of K400.00 fine or imprisonment for three months. It is a serious charge. Thus, if the allegations had any factual basis, then prosecutions ought to have been mounted against the perpetrators. No such course of action was taken, particularly on the part of the second respondent in due discharge of its public duties and functions under the Constitution. And yet the Commission comes to the trial of this Petition and claims multiple voting at the election. If this really were the case then such electoral offences (s.191, No. 1, OLNLLGE) were facilitated by the servants, officers, of the second respondent in failing to police or implement the provisions of ss.133 and 134 OLNLLGE as they were legally bound to. Such a failure was, or would have been, a grievous dereliction of duty on their part, and constituting errors or omissions envisaged by s.218 OLNLLGE.
FINDINGS OF FACT
In the light of the foregoing discussions on the evidence before the court, I hold that the following have been established to my entire satisfaction:
1.       The second respondent failed or defaulted in the discharge of its Constitutional duties and functions to provide and maintain proper and adequate security for the Ballot Box No. EHP. 1323, resulting in the destruction of that box.
2.       The petitioner would not have collected all of the 466 votes cast and contained in the said ballot box.
3.       The petitioner nevertheless would have collected a substantial portion of the 466 votes cast and contained in the said ballot box.
4.       The petitioner did not vote twice in the election, i.e., on 18 and 19 June 1997 at the Kingston Town Buai Market polling booth and at the Uminufintenu Community School polling booth respectively.
5.       There were no direct credible evidence of “double voting” by the supporters of the petitioner or by anybody else.
6.       As admitted by both respondents, Ballot Box No. EHP. 1323 containing 466 ballot papers for the Kainantu Open electorate were destroyed, in the commission of an illegal practice, by a person named Poe Taranka.
THE LAW
The law regarding errors and omissions on the part of electoral officials is well-established in this jurisdiction. Similarly the law as to what constitutes an illegal practice. The legal consequences of these are also well-established.
Section 218 OLNLLGE provides under sub-section (1) that:
(1)      Subject to Subsection (2), 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.
(2)      .....
Upon my finding of facts, under paragraph (1)(supra), it is the judgment of this court that that failure and default on the part of the electoral officials constituted errors or omissions as envisaged by s.218(1) OLNLLGE. This case is somewhat similar, in its result or consequence, to the case of In the Matter of Charlie Maino Auki [1973] PNGLR 243. What happened there could properly be described as the consequence of an act of God, whereas here the “mishap” was the direct consequence of a preventable, avoidable, human action.
It is the judgment of this court that what Poe Taranka did with and to the ballot box and its contents could have been prevented or avoided by the responsible electoral officials taking proper and adequate security measures.
Did these errors or omissions affect the result of the election? The answer is in the positive. The winning margin between the first respondent and petitioner was 411 votes. Ballot Box No. EHP. 1323 contained 466 votes which were destroyed. They were cast at a polling booth in an area claimed by the petitioner and his supporters to be his “stronghold”, where he expected to receive a large block vote. This was the polling booth that returned a majority of votes in favour of the petitioner in the voting on 19 June 1997. It is not without consequence to note that the first respondent did not earn any votes from there on that day.
Whilst I am not persuaded to the requisite degree that the petitioner would have received the entire 466 votes, I am nevertheless satisfied that he would have received a substantial number of those votes. It is the judgment of this court that, furthermore, those substantial number of votes would affect the result of the election.
In respect of the allegation of illegal practices, the pertinent provision here is s.215(3) OLNLLGE, which reads:
(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 an 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.
To summarise this provision, in the light of the facts of this case, if a person other than the winning candidate commits an illegal practice, the court must be satisfied that the result of the election was likely to be affected and that, therefore, it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
What Poe Taranka did with Ballot Box No. EHP. 1323 on the afternoon of 18 June 1997 in front of the Kainantu District Office constituted an illegal practice envisaged by s.215(3) OLNLLGE. And, upon the same reasons as for the errors or omissions of the electoral officials, I hold that the destruction of the 466 votes was likely to affect the result. Furthermore, under the circumstances of the entire conduct of the elections in question, and the subsequent events, it is the considered opinion of this court that the election and return under challenge here should not be allowed to stand.
It is, therefore, the judgment of this court that as a consequence of the errors and omissions of the electoral officials resulting in the destruction of the 466 ballot papers, the result of the election were affected. But if I am wrong in this conclusion, which I hold I am not, the result of the election was likely to be affected by the illegal practice committed by Poe Taranka. Thus, the court concludes the election and the return should be declared void, as being just under the circumstances.
THE COURT SO ORDERS AS FOLLOWS
1.       The Petition is granted.
2.       The first respondent, Baki Reipa, was not duly elected
3.       The 1997 election is the national Parliamentary seat of Kainantu Open is void.
4.       A by-election for the said electorate be held according to law.
Lawyers for the Petitioner: Gamoga & Co. Lawyers
Lawyers for the 1st Respondent: Pato Lawyers
Lawyers for the 2nd Respondent: Nonggorr & Associates