N3261

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 11 OF 2007

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

BETWEEN

STEVEN PIRIKA KAMMA
Petitioner

AND:

JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE
First Respondent

AND

ANDREW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

MICHAEL LAIMO
Third Respondent
(No. 2)

Buka:	Kandakasi, J.
2007: 6 – 7 & 13 December
2008: 5 & 21 February

PARLIAMENT – National General Elections – Disputed return – Illegal practices and errors and omissions – Illegal polling and lack of proper counting of votes – Two separate polling for one polling place – One conducted at the residence of the eventual winner of the elections supporter’s house – No evidence of publication of variation to polling schedule and scrutiny - Number of voters less than number of votes included in count – Obvious errors on Tally sheet – No proper accounting for and of missing votes and number of votes entered not matching actual votes – Difference between former election process and limited preferential system - Every vote and preference require proper accounting for and counted - All errors in the counting process must be corrected before declaration of winner - Need to protect integrity of election process and the need to account for every vote cast considered – Whether returning officer has power to determine if unaccounted for votes would make a difference in the elimination of candidates and eventual outcome of the election – Appropriate remedy for erroneous electoral records and their import.

ELECTION PETITION – PRACTICE & PROCEDURE – Pleadings in election petition – Evidence not strictly establishing matters pleaded but something others coming within main ground pleaded – Evidence of matters not strictly pleaded allowed into evidence and opposing party adducing the evidence – Whether Court should ignore the evidence? – Court to be guided by substantial merits and good conscious of each case without regard to legal forms and technicalities - Court not precluded from considering and acting on the evidence before it – Court’s duty is to protect the integrity of the election process and make such orders or grant such relieves as are appropriate – Organic Law on National, Provincial and Local- Level Government Elections ss.113, 114, 212, 215, 217, 218

Cases Cited:

Papua New Guinean Cases:
Delba Biri v. Bill Ninkama [1982] PNGLR 342.
Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (17/12/03) N2498.
Rimbink Parto v. Ruben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko & Ors (29/08/03) N2455
Robert Kopaol v. Philemon Embel (2003) SC727.
James Marabe v. Tom Tomiape and Electoral Commission (2006) SC827.
Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633.
Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.
Motor Vehicle Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694.
Charles Maino –v- Moi Avei & Ors [1998] PNGLR 178.
Applications by Ben Semri and The Electoral Commission of Papua New Guinea (2003) SC723.
Steven Pirika Kamma v. John Itanu, Electoral Commission and Michael Laimo (05/12/07) N3246.
Jimson Sauk v. Don Polye (2004) SC769.
Ginson Saonu v. Bob Dade (2004) SC763.
EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004).
Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03),
James Togel v. Michael Ogio [1994] PNGLR 396. 
Kasap and Yama SC REV. No.5 of 1988 [1988-89] PNGLR 197.
Daniel Don Kapi v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327.

Overseas Cases Cited:
Brown v. Dunn (1893) 6 R 67(HL).

Counsel:
A. Manase, for the Petitioner.
R. William, for the First and Second Respondents. 
J.B. Nanei, for the Third Respondent.

21 February, 2008

1.	KANDAKASI J:	 Mr. Steven Pirika Kamma is challenging the election victory of Honourable Michael Laimo as member for the South Bougainville Electorate in the 2007 National General Elections. Honourable Laimo polled 6,346 votes while Mr. Kamma polled 6,329, giving a winning difference of 17 votes. 

2.	The petition is based on two main grounds (1), there was an illegal polling or double voting conducted at Ibirari village by polling officials and (2) there was no proper accounting for and counting of votes at the counting as confirmed by the relevant tally sheet, form 66B which affected the results of the election.

Main Issues

3.	The main issues therefore for the Court to determine are clearly as follows:

(a)	Was there an illegal polling or double voting at Ibirari village by polling officials? and

(b)	Were there errors and omissions in the accounting for and counting of votes at the counting as confirmed by the tally sheet, form 66B which affected or had the effect of likely affecting the outcome of the election?

4.	In order to determine these main issues, it will be necessary also to consider and determine a number of subsidiary issues. I propose to mention and determine the subsidiary issues in the course of the judgment, which will eventually form the foundation for a determination of the main issues.

The Parties’ Arguments

5.	At the end of the trial, Mr. Kamma submitted that, even though he may not have strictly proven the grounds of the petition as per his pleadings, he has nonetheless proven the main thrust of his allegations. The main thrust of his allegations is that, the integrity of the polling, accounting for and counting of votes for the South Bougainville Open Electorate has been compromised to the extent that it affected or did have the likelihood of affecting the results of the election. Accordingly, he argues for a recount of the votes but excluding the votes cast in the illegal polling conducted at Ibirari. This is to rectify the apparent errors in the Electoral Commission’s records and properly declare a winner of the election after properly accounting for and counting of the votes properly and legally cast. 

6.	The Electoral Commission on the other hand with the support of Honourable Laimo, argues for a different result. They argue that, since Mr. Kamma has not strictly speaking, proven the case he has pleaded in terms of the particulars of the grounds of his petition, the Court should ignore the evidence before it and dismiss the petition. 

7.	The evidence before the Court includes apparent errors in recording of polling, the accounting for and counting of votes which are confirmed by the relevant tally sheet form 66B and other records adduced in evidence with the consent of all the parties. It also includes an admission by the Electoral Commission that, it conducted two polls for the Mongai area in the Konnoc Constituency, one of which it conducted at Ibirari, which Mr. Kamma alleges was illegal. Also, evidence mainly coming from the Electoral Commission through cross-examination and records of the second polling at Ibirai (exhibit "E" form 55 dated 07/07/07 and others) clearly indicate that, the actual polling for Mongai at Ibirari was at the residence of one, Andrew Kiata who is a supporter of Honourable Michael Laimo. Further evidence coming from the Electoral Commission in the form for the presiding officers’ returns for the polling in question, shows that, only 128 names where crossed out on the Common Roll used as having cast their votes but the actual number of votes included at the count as coming from the relevant ballot box was 212, giving an unexplained addition and an increase by 84 votes. 

Subsidiary Issues

8.	As can be seen, these presents a number of subsidiary issues, namely the pleadings, the evidence before the Court and what the evidence demonstrates. I will first consider the pleadings issue in terms of just what is it that Mr. Kamma pleaded, then turn to a consideration of the evidence the parties called and what do the evidence establish followed by a consideration of whether the evidence establishes what was pleaded and if not, just what do they establish and whether the Court should ignore what the evidence establishes.

Petitioner’s Pleadings

9.	In the first ground of the petition, Mr. Kamma alleges that, on 9 July 2007, after the completion of the proper polling for the Ibirai areas, which is in the Lule constituency, the Returning Officer set up another illegal polling booth at Honourable Laimo’s Ibirai village ("the second polling at Ibirai") using ballot box number 0219 to unlawfully poll 212 votes from the people in that area under the pretext of that polling being conducted for the voters from the Mongai area in the Konnoc constituency which is in the "no go zone" area. Yet, there was a polling conducted for the Mongai area at the Mongai Primary School presided over by Mr. Paul Mona on the 9th and 10 July 2007. Hence there was no need for the second polling at Ibirai. 

10.	At the counting of the votes, Mr. Kamma’s and other candidates’ scrutineers disputed ballot box number 0219 as illegal because its polling had not being properly scrutinized. Also when the ballot box got opened, the ballot papers were stacked up in the box as opposed to being folded and were all marked using the same ink by the same hand writing. Despite the dispute, the votes were counted with Honourable Laimo polling 127 votes, Peter Bana 69 and Leo Paupau 15 votes and the rest of the candidates polling nothing. These votes were illegally cast and included in the count. They did seriously affect the integrity of the election and did affect the eventual outcome of the election given the winning margin of only 17 votes.

11.	Turning to the second ground, Mr. Kamma alleges that during the scrutiny, the Returning Officer committed various acts of errors and omissions, mostly consisting of either destroying, or a misplacing of his votes in the wrong tray including exhausted votes tray erroneously all aimed at affecting his progressive tally. Of all of the errors and omissions committed, two of them did or had the effect of likely affecting the results of the election. The first was that, during the scrutiny of votes, 15 votes belonging to candidate Leo, Paupau, were taken away by counting officials and not properly accounted for in the count. This came about at the time of first elimination. Candidate Leo Paupau’s primary votes were 825. After the first elimination which saw candidate F. Tsiperau eliminated, Leo Paupau received 90 votes increasing his progressive tally to 915 votes. The second elimination saw candidate, Leo Paupau eliminated and only 900 of his total 915 votes were accounted for and distributed but his 15 votes went missing in the hands of the Electoral Commission counting officials and added to Honourable Laimo’s tally. When Mr. Kamma and the other candidates’ scrutineers pressed on the Returning Officer to properly account for the votes in question, he determined that the votes were insignificant and would not make any difference and he proceeded with the count.

12.	The second error or omission was that, during the scrutiny and counting of votes, candidate J. Bemu scored 960 primary votes and collected 4 votes on the first elimination of candidate F. Tsiperau increasing his progressive tally to 964 votes. However, the electoral officials erroneously added to Mr. Tsiperau’s progressive tally the figure 1006, an increase by 42 which were not supported by any physical votes for Mr. Tsiperau but were taken from Mr. Kamma’s tray. 

13.	The allegation goes on, Electoral Commission officials involved in the counting, some of whom were supporters of Honourable Laimo, committed this and the other errors deliberately to reduce Mr. Kamma’s progressive tally so that Honourable Laimo could win. The relevant tally sheet for the electorate which has been pleaded in full confirms the errors in relation to the 15 and 42 votes. Finally, Mr. Kamma further alleges that, if these errors were not committed in the way they were, he would have won the election.

Evidence and the Facts

(i)	Undisputed Facts

14.	The following facts are not in dispute so that there is no need for a consideration of the relevant evidence:

(a)	Two polling were conducted in Ibirai village which is in the Buin area. The first one was to cater for voters in the Ibirai, Kugumaru, Laitaro and Siuru villages which have a total registered voting population of 879.

(b)	Out of the 879 voters only 431 voters were present and did cast their votes during polling conducted between 3rd - 6th and 9th of July 2007 leaving no voter yet to cast his or her vote. 

(c)	Team 4 conducted the first polling at Ibirai village which was allocated ballot box numbers 0194 and 0195 but used only ballot box number 0194, given the number of votes cast and ballot box 0195 was used to carry unused ballot papers and other electoral material.

(d)	Out of the 431 votes cast, Honourable Laimo polled 211 while Mr. Kamma polled 16 and the rest were distributed amongst the other candidates. 

(e)	The tally sheet which is form 66B, has apparent errors as to the unexplained missing 15 votes and 42 votes as alleged by Mr. Kamma in his petition. The form has not been signed by two scrutineers as it should have been.

15.	Certain evidence in the form of electoral records such as the presiding officer’s returns and others adduced into evidence with the consent of the Electoral Commission and without any objection from Honourable Laimo and evidence adduced through the Electoral Commission’s witnesses under cross-examination established a number of facts beyond any argument. These facts are:

(a)	The Electoral Commission conducted a polling at Mongai Community School for the Mongai voters and also conducted the second polling at Ibirari allegedly for the Mongai voters as well, both of which, took place on the same day or dates.

(b)	According to exhibit "D", at the second polling at Ibirai, 128 names were crossed on the relevant and used Common Roll as having cast their votes but the ballot papers accepted and included in the count despite objections or disputes and as coming from the relevant ballot box number 0219 was 212. The relevant returns which is part of exhibit "E" shows that, 211 people voted but the total ballots counted was 212.

(c)	The date of polling according to the return (part of exhibit "E") is shown as 5th, 6th, 7th, 9th 10th and were all signed on 10 July 2007, which is contrary to the Presiding Officer’s Manuel in particular clause 8.1, which requires the completion of one such return on the same day of each polling. 

(d)	Again contrary to the clear requirements of the Presiding Officer’s Manuel for one set of return to be completed and returned for each polling at the end of each day of polling, there are more than one here with more than one day of polling.

(e)	Entries in forms 58, 55 and 67 (all parts of exhibit "E") do not match. For example, for the polling conducted on 5 July 2007, the sex tally sheet shows 16 male and 3 females voting. However, the presiding officer’s return of votes and Ballot-paper in table 2 shows, out of 500 ballot papers received, 38 were used, none of them spoilt and 462 unused. There are apparent cross out of entries and write over or new entries.

(f)	Ibirai is Honourable Laimo’s village from where most of his support comes.

(g)	The Second polling at Ibirai using ballot box number 0219 was conducted at an Andrew Kiata’s residence, who is a known supporter of Honourable Laimo.

(h)	The Returning Officer, Mr. Itanu, comes from the same area as Honourable Laimo and Mr. Itanu has worked at the District level as its administrative head before the elections.

(ii) Arguments Based on Undisputed Facts

16.	Mr. Kamma does not take issue with the fact that he did not produce evidence strictly establishing the facts in terms of the particulars he has pleaded as constituting his broader allegation of the second polling at Ibirai being illegal and that there were errors and omissions in the accounting for and counting of votes leading to the eventual declaration of the results of the election. His argument however, is that, he has managed to establish the main grounds for his petition, which is that, the second polling at Ibirai was illegal and that the Electoral Commission committed serious errors and omissions which affected or did have the effect of likely affecting the outcome of the election. He argues that, the evidence before the Court does support his contention and as such the Court should take those facts into account and come to a decision in favour of his petition.

17.	The Electoral Commission and Honourable Laimo argue that, election petitions require strict pleading and prove of matters pleaded before any relief can be granted. Accordingly, they argue that, in this case, Mr Kamma is bound by his petition and particularly the particulars he has pleaded. Accordingly, they argue the Court cannot be allowed to venture out, even if there is evidence supporting Mr. Kamma’s allegations. Proceeding on that basis, the Electoral Commission and Honourable Laimo urge the Court to ignore the facts I have outlined in paragraphs 14 and 15 above and find instead that, Mr. Kamma failed to establish the grounds of his petition on the basis of which, the petition should be dismissed. In support of their submission, they refer the Court to the line of authorities led by the Supreme Court decision in Delba Biri v. Bill Ninkama. 

(iii) Disputed Facts

18.	The only factual issue remaining in the light of the undisputed facts concerns the reason for conducting the second polling at Ibirai raises the same legal issue raised in the above noted arguments of the parties. The issue is one of pleadings. Hence, I will combine these issues and deal with them at the same time.

19.	Initially, the Electoral Commission through its statement of defence and the affidavits it filed in answer to those of Mr. Kamma’s, it took the position that, polling could not be conducted in Mongai for the Mongai voters because of the "no go zone" restrictions. It was therefore, necessary to conduct the second polling at Ibirai for the Mongai voters. Given that position, Mr. Kamma had planned and in fact took steps to calling witnesses to show that, there was polling at Mongai Primary School for the Mongai voters and that the second polling at Ibirai was not for the reasons the Electoral Commission gave. However, at the commencement of the trial, the Electoral Commission admitted to a polling being conducted at Mongai Primary School for the Mongai voters. The Presiding Officer’s Returns for Mongai Primary School, (Exhibit "F") confirms the polling. This made it not necessary for Mr. Kamma to call the evidence he proposed to call and the fact of there being two polling for the Mongai voters stood admitted.

20.	In the light of the allegations that the second polling at Ibirai was illegal, I note that, there is a total lack of evidence of the relevant polling schedules for the electorate as required and published in accordance with s.113 and s.114 of the Organic Law on National Local-level Government Elections ("OLNLGE"), variations to the polling schedule if any to allow for the second polling at Ibirai in accordance with s.115(2) and (3) of the OLNLGE, evidence of a publication of the variation so voters were made aware of the change in the schedule well in advance as required by s.115 (4) of OLNLGE and that, all steps were taken to ensure that the actual conduct of the polling was at a neutral location and not necessarily at anyone of the candidates or his supporters residence or place that could question the impartiality of the conduct of the polling and the location eventually selected was accepted by all of the candidates. There is also no evidence of proper scrutiny in accordance with s.127 and s.128 of the OLNLGE at the polling by all candidates through their appointed scrutineers and that, the polling took place out in the open and not in a private or unauthorized location.

21.	The Electoral Commission with the support of Honourable Laimo, argue that, the obligation was on Mr. Kamma as the petitioner to first, plead the foundation for his claim that the second polling at Ibirai was illegal and then, produce the evidence to establish his claims. They point to Mr. Kamma’s pleadings and argue that, he was obliged to adduce evidence of the matters he pleaded namely; the polling in question was in the night, that the Electoral Commission officials he named in his petition conducted the polling and that it was the named Electoral Commission officials who marked the ballot papers. In support of their argument, they rely on the well accept principle of law that, "he who alleges must prove it." A good number of judgments in criminal and civil matters and even election petitions, some of which are my own such as my decision in Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc. and Rimbink Parto v. Ruben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko & Ors, have adopted and applied that principle.

22.	In further support of their arguments, the Electoral Commission and Honourable Laimo refer to and rely on a long list of case authorities including the Supreme Court decisions in Robert Kopaol v. Philemon Embel; James Marabe v. Tom Tomiape and Electoral Commission and Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea. These authorities stand for a number of principles. First, they make it clear that the burden is always on a petitioner to plead and then establish the facts he relies on to nullify or otherwise upset an election result. Secondly, they say that the evidence led must be within the bounds of what is pleaded and care must be exercised to ensure that no new ground is added outside the time limitations for the filing of petitions. Where there is an attempt to add a new ground through the adducing of evidence, the Court should not allow that kind of evidence. Thirdly, where allegations of bribery or conspiracy or such other criminal conduct is alleged, the standard of prove is the same as in criminal cases. Fourthly, they make it clear that, if all that the Court is left with at the end of a trial is nothing more than mere allegations without the support of any evidence, they amount to speculations only. The Court cannot act on such speculations. Finally, they say that, parties responding to an election petition such as the Electoral Commission are under no obligation to call evidence in relation to any allegations against them in relation to matters not yet made out.

23.	With these submissions, I agree and accept. However, in the case before me now, this is not a case of total lack of evidence of the matters pleaded. There are the uncontested facts as I outlined in paragraphs 14 and 15 above. They effectively point out that, the Electoral Commission conducted two polling for the Mongai voters on the same day, one at Mongai Primary School and another at Ibirai. They also show that, the Electoral Commission officials conducted the second polling at Ibirai at an Andrew Kiata, who is a known supporter of Honourable Laimo’s residence. This certainly calls into question the necessity of conducting that polling and more importantly, the impartiality and the integrity of the second polling at Ibirai. The evidence further shows that, there are serious errors and inconsistencies in the records of the second polling and the accounting for and counting of votes at the counting which remained, unexplained in any manner or form. Strictly speaking, there may be no foundation in the pleadings for all of these facts in terms of the particulars or specifics although, the main ground that the second polling at Ibirai being illegal and there being errors and omissions at the counting and eventual declaration of the election had been pleaded. The fact is, the relevant facts are now before me without any objection from the Electoral Commission and Honourable Laimo. Indeed, some of these evidence and hence the facts they support are before me with the expressed consent of the Electoral Commission. Further, most of these facts, particularly, the conduct of polling in Mongai Primary School, and the second polling at Ibirai being conducted at Andrew Kiata’s residence come from the Electoral Commission’s own witnesses and admissions and parts of records admitted into evidence and now before me. 

24.	The Electoral Commission and Honourable Laimo’s submissions do not wish the application of another well accepted and relevant principle of law. That principle of law says if a matter or a fact is not pleaded but at the trial the parties by their conduct allow it to be litigated or evidence is allowed to be led on matters not pleaded, the opposing party cannot later hark back at the lack of pleadings. Authorities that easily come to mind are the decisions of the Supreme Court in Motor Vehicle Insurance (PNG) Trust v. John Etape and Motor Vehicle Insurance (PNG) Trust v. James Pupune as reaffirmed and applied by the Supreme Court’s subsequent decisions such as the one in Papua New Guinea Banking Corporation v. Jeff Tole. 

25.	In arguing against the application of the principle I have just stated, the Electoral Commission and Honourable Laimo, rely on the line of authorities I have just discussed in paragraph 22 above. This argument is effectively asking the Court to choose and apply well accepted principles of law that only favour them and not principles that are equally well established but not favourable to them. Clearly, this kind of argument cannot be permitted because it is most unfair and goes against the core and very norms and principles of justice and fairness, which dictate that, all relevant and applicable principles must be properly considered and applied on their own merits before arriving at a decision, unless there is a clear and positive exclusion by legislation.

26.	In election petition cases, the relevant legislation here is the Organic Law on National Local-level Government Elections. The most relevant and applicable provision here is s. 217. That provision says:

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

27.	Speaking of this provision, the former Chief Justice, Sir Arnold Amet in Charles Maino v. Moi Avei & Ors said:

 "… it is important to be guided by the general intent and the spirit of Section 217 which injuncts the court to be "guided by the substantial merits and good conscience of its case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. I have adopted a very liberal and purposive interpretation of Section 217 and have in the course of the trial allowed evidence that did not conform to the strict rules of evidence. I consider also that this section could be applied to the manner in which the evidence is assessed and weighed.

I consider also that Section 212(3), read in conjunction with Section 217 empowers the Court to administer "real justice" and to make any of the orders under Section 212(1) on such grounds as the Court in its discretion thinks just and sufficient."

28.	On appeal from the above decision, the Supreme Court in Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea speaking in the context of the trial judge failing to rule on the admissibility of certain affidavit evidence and proceeding to consider and act on the evidence as he did the Supreme Court said:

"A procedural issue arises as to whether the Court erred in not ruling upon the admissibility of the four affidavits objected to and proceeding to assess the value and weight of the evidence contained therein. … All parties in this review appear to agree that the Court did not determine the issue of admissibility separately as a preliminary procedural point. … We do not consider this issue to be an important and determinative issue in this review, particularly in view of S.217 of the OLNE which provides that the "National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not". The effect of this position then is that the evidence in those affidavits stood unchallenged and were evidence before the Court for the Court to assess their value and weight and make findings of fact. And that is how the Court proceeded to deal with the unchallenged evidence."

(Emphasis supplied)

29.	The Supreme Court in its decision in the Applications by Ben Semri and another by The Electoral Commission of Papua New Guinea took a similar position. There, the National Court overruled objections to certain parts of an affidavit on the basis that there was no foundation in the pleadings. The trial judge took the view that s. 217 of the OLNLGE provided its own rules of evidence and that the normal rules of evidence did not apply, particularly after the petition had withstood the competency test. The relevant question at the trial is, whether the evidence sought to be introduced is relevant or material to the substantive merits or issues before the Court. The Supreme Court endorsed and upheld the views of the trial judge without any reservation. 

30.	In my ruling on the objection to competency delivered on 5 December 2007, speaking in the context of the case law and the principles thus far built around s.208 and s.210 I said:

"… the application of these principles have become more and more strict to the point that objections to competencies have become far too highly technical and in some cases purely nit-picking to say the least. In the process, the Courts at the instance of lawyers have effectively built into s. 208 additional requirements in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court to be "guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not." 

The unfortunate end result of this trend and approach has been a ready defeat of many good and meritorious election petitions at the very door steps of justice. That has happened in a number of otherwise clear cases of bribery or illegal practices and errors or omissions and irregularities seriously questioning the integrity of the election process and the eventual outcome of elections. Consequently, ordinary citizens of PNG who are concerned over the integrity of the election process and the duty of the Courts to inquire into any allegations of foul play and remedy them are left to marvel at why and how the Court can prevent a petition getting to a proper hearing and a determination on its "substantial merits". It is this kind of practice which only lawyers and the Courts have become familiar with and can understand that adds to a lack of respect for the integrity of the election process and the Court system because of the system’s failure to properly scrutinize the election process when faced with an allegation of illegal practices or, errors or omission or, irregularities and remedy them.

I am firmly of the view that, we have come to this result because of two important failures of lawyers and their clients as well as the Courts. Firstly, we have failed to give any due and proper consideration to the intention of Parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of s. 217 of the Organic Law. Secondly, we have failed to have a close look at the particular wording in s.208 and s. 210 from which this trend has originated."

31.	I then referred to the decisions of the Supreme Court in Jimson Sauk v. Don Polye and Ginson Saonu v. Bob Dade, which endorse the judgments of Hinchcliff J in EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission and Sakora J’s views in Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten, who expressed similar sentiments as I have. On its part the Supreme Court in the Jimson Sauk v. Don Pomb Polye (supra), case said:

"Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process, the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter." 

32.	I add that, the Electoral Commission is established under our Constitution as an impartial body or authority charged with the duty and responsibility to properly prepare and conduct National General Elections and other elections as are permitted by law. This duty and responsibility must be discharged in a fair, impartial and transparent manner in a democracy such as ours. It is hence, the Electoral Commission’s duty and responsibility to ensure that the impartiality and the integrity of the election process is protected and maintained at all times for continued confidence in its independence and integrity. The right to stand for and vote for a seat in the National Parliament is a right vested in all eligible citizens in the country which is exercised once every 5 years. It is therefore important that the Electoral Commission take all the steps it should take to ensure that, that right is properly exercised, protected, accounted for and counted in the elections in a fair, impartial and transparent election process so that it could be accepted as an election system with much integrity. 

33.	It should follow therefore that, where there is a challenge on the impartiality, impropriety or such others that questions the independence and the integrity of an election process, there is a duty on the Electoral Commission to respond not with highly technical and or knit picking arguments and technicalities but, with evidence and solid facts going into the merits of the allegations or challenges and provide satisfactory and reasonable explanations for any errors or omissions. Such evidence and facts should answer any challenge there is in the interest of demonstrating to all concerned, which includes a petitioner, and more importantly, the electorate concerned and the nation that, the election in question was conducted fairly and openly and in fact impartially and that, its integrity has not been compromised in any manner or form. The slightest display of impartiality or unfair play has the potential of tarnishing and destroying the fairness, independence or impartiality and the integrity of the election process which is too high and disastrous a risk to take in a democratic society such as ours. Thus, unless any allegation of impartiality or unfairness, breaches or errors and omissions and irregularities committed by the Electoral Commission are satisfactorily answered on their merits, the people will rightly question the independence, fairness and the integrity of the election process and eventually lose faith in the election process. We, the nation, cannot afford this in a democracy such as ours and at a time when there is much allegations of corruption in all levels of government and more so the election process without failure in every election. 

34.	Proceeding on the basis of what I have just stated, I am of the view that, in the case before me, the Electoral Commission was under an obligation to put all of the evidence, in particular, the kind of evidence that I identified at paragraph 20 above as missing, before the Court, especially in light of the evidence that is already before me. Also, it was incumbent upon the Electoral Commission to provide evidence satisfactorily providing a reasonable explanation for the various errors and omissions apparent on the face of its various records as noted above. Hence, it was necessary for the Electoral Commission to place the evidence before the Court for the Court to consider and determine the question of whether the second polling at Ibirai was legal or illegal and whether, the errors and omissions that are apparent on the face of the relevant records are minor and are not indicative of a deliberate scheme to dictate the outcome of the election in a certain way. The evidence was within the control, custody and care of the Electoral Commission but it failed to produce them. The production of the kind of evidence in question was necessary in view of the other evidence that is already before the Court. 

35.	On the authority of the decision of the Supreme Court in Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (supra) and the Application by Ben Semri and the Application by The Electoral Commission of Papua New Guinea (supra) which are consistent with the principles enunciated and represented by a long line of authorities like that of Motor Vehicles Insurance (PNG) Trust v. James Pupune, (supra), I must take into account the facts that are before me and act on them. This is necessary in order that "real justice" is done on the "substantial merits … of [the] case without regard to legal forms or technicalities, or whether the evidence before [me] … is in accordance with the law of evidence or not" as is required by the provisions of s.217 of the Organic Law. 

(iv) Findings of Fact

36.	On the basis of the authorities I have just discussed and the evidence before me as well as the failure of the Electoral Commission to adduce evidence, it was in a position to produce but did not, I find that the reason advanced by the Electoral Commission for conducting the second polling at Ibirai cannot be sustained for a number of reasons. First, the Electoral Commission’s witnesses namely Messrs John Itanu the Returning Officer and Sam Roronga, the Assistant Returning officer were present in Court throughout the presentation of Mr. Kamma’s evidence. Accordingly, I place little weight on their evidence. 

37.	Secondly, both of these witnesses impressed upon me as witness who were prepared to protect at all costs what they and the other Electoral Commission officials did under their control during the elections for the South Bougainville Electorate even in the face of apparent errors on the records without providing a reasonable explanation for the errors. Both witnesses talked about keeping correct records different from those admitted into Court particularly form 66B but did not provide them even though, in one instance, the Electoral Commission was ordered to provide a copy of the Presiding Officer’s Returns for the first polling at Ibirai using ballot box number 0194. 

38.	Thirdly, the other Electoral Commission officers, namely, the presiding officers for Ibirai and Mongai were not called to clarify the errors that are apparent on the records and coming from those polling as noted under paragraph 15 above. Similarly, the Electoral Commission did not call the officers who were directly responsible for the entries on the tally sheet form 66B to explain and clarify the errors that are apparent on the face of the record as noted in paragraph 14 above.

39.	Fourthly, Mr. Itanu, after having maintained in his affidavit evidence of effectively having only one polling for the Mongai voters, testified in his oral testimony in Court of having conducted two polling for the same voters, one at Mongai Primary School and the second polling at Ibirai. This part of their testimonies was not put to Mr. Kamma’s witnesses in cross-examination in due observance and appreciation of rule in Brown v. Dunn. There is no dispute between the parties that, the principles in Brown v. Dunn applies in election petition cases. Her Honour Justice Doherty first adopted and applied those principles in election petitions in James Togel v. Michael Ogio. There, her Honour said: 

"One consequence of the rule can be that the Court is entitled to conclude, when considering all the weight of evidence, that a witness who gives evidence of facts not put in cross examination of the witness of an opposing party has made things up."

(Emphasis supplied)

40.	In my view, the rule in Brown v. Dunn is not only a rule of practice but is more importantly a rule that allows for fair play in the trial process so that each party is made aware of what the other is saying. This is necessary so that they can have the opportunity to consider and comment on the opponent’s case and demonstrate why the Court should prefer their case to that of their opponent’s or concede. In election petitions, this rule is necessary and its observance is a must, in my view, to enable the Court do "real justice" by coming to a decision on the substantial merits of the case after being guided by rules such as this and those I have earlier discussed. 

41.	I do not find any persuasion in the Electoral Commission and Honourable Laimo’s argument that, since the witnesses called by Mr. Kamma were not at Ibirai they could not put the relevant facts to them. Some of the witnesses called by Mr. Kamma were his scrutineers and they were in a position, in my view, to know. Whether they did in fact know and were in a position to comment on the relevant facts could not be known until the question was put to them, but that was not done. The Electoral Commission instead chose not to put the relevant facts to Mr. Kamma’s witnesses. This is in addition to my earlier observation that the Electoral Commission’s witnesses did not disclose these facts in their respective affidavits that were filed and served long before the trial. In the circumstances, I find that the Electoral Commission’s witnesses were making up new facts as a cover for what is clearly showing as an illegal polling at Ibirai in terms of the second polling there. 

42.	Finally, the Electoral Commission witnesses were the men in charge of the conduct of the elections for the South Bougainville Electorate. The whole of the election process involves a lot of paper work, from the issuance of the writs to the return of the writs. This includes amongst others, the production and use of common rolls, polling schedules and any variation thereto and their publications, recording and keeping of proper records of all polling, presiding officer’s records and returns and records of counting and returns which includes the tally sheets, form 66B. Hence, it was reasonable to expect these witnesses to produce the necessary documentary evidence of the type I had earlier observed as missing, to support their claims but they did not. Instead, they sought and the counsel for the Electoral Commission strongly argues for an acceptance of their oral testimonies without the support of any documentary evidence and even to contradict other documentary evidence already admitted into evidence with the Electoral Commission’s consent, which include the returns such as the tally sheet form 66B and the used common roll for Mongai used at the second polling at Ibirai. Counsel for the Electoral Commission’s insistence is also without providing and satisfactorily and reasonably explaining the various errors that are apparent on the face of the various records that are before me as earlier noted.

43.	The law is clear in relation to the calling of oral testimony or extrinsic evidence to contradict or rebut a written record. In Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (supra), I summarized the relevant principles in this way in the context of a contract:

"It is settled law that, generally where parties have reduced their agreement in case of an agreement into writing the document should be allowed to speak for itself. No extrinsic evidence can be allowed to add to, subtract from or contradict what is stated in the document. The same goes for any other written record. An authority on point is the Supreme Court judgment in Curtain Brothers (QLD) Pty Ltd & Kinhill Kramer Pty Ltd v. The Independent State of Papua New Guinea [1993] PNGLR 285. This case has been cited with approval in a large number of cases, which includes my own judgments in Odata Ltd v. Ambusa Copra Oil Mill Ltd (06/0701) N2106 and Papua New Guinea Forest Authority v. Concord Pacific Limited, Paiso Company Limited and The Independent State of Papua New Guinea (N0.2) (12/09/03)N2456. 

However, this rule is general. Extrinsic evidence can be admitted to help resolve any ambiguity in a written document or record. Lord Davey in the Privy Council stated this principle in these terms:

‘Extrinsic evidence is always admissible, not to contradict or vary the contract: but to apply it to the facts, which the parties had in their minds and were negotiating about: Bank of New Zealand v. Simpson [1900] AC 182 at 187; Horsfall v.Braye (1908) 7 CLR 629’. 

It is apparent that this rule concerns the admissibility of evidence and the purpose for which extrinsic evidence can be admitted when there is a written record. Hence, the issue of whether or not extrinsic evidence should be allowed has to be addressed before the evidence in question is admitted. Once the evidence is admitted, the issue no longer arises. Thus, the Court is entitled to consider the evidence before it and arrive at a decision whether or not to accept it." 

44.	In the case of elections, the Supreme Court in Kasap and Yama SC REV. No.5 of 1988, said at pp 203-204: 

"After the declaration of Mr Kasap as the winner was made, election officials altered the progressive tally sheets …. There were 25 of them but, when the results from the Madang Open were counted, three more sheets were added. These were done without the sanction of the only competent authority, that is, the National Court. I say this because it is clear from the Organic Law that after the declaration of a winner, only the National Court may have the results altered; even the Electoral Commission has no power to alter any electoral documents after the winner has been declared.

When errors in counting were discovered, the Electoral Commissioner should have notified the candidates and left it at that. There was no power in him or his officials to alter anything in the tally sheets without a court order."

(Emphasis added)

45.	My brother, Gavara-Nanu J., cited this with approval and applied it in his decision in the case of Daniel Don Kapi v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal.

46.	What this, means in my view, is that, in the case of election petitions, the Electoral Commission cannot simply call extrinsic evidence to rebut the written record. This is understandable and perfectly in order. The Electoral Commission has all the time and opportunity and more so a duty and responsibility to go through its records and ensure that they are correct in every detail and respect before getting to the ultimate task of declaring a winner of an election. As the declaration of a winner would mean the end of an election and that it could see the winner in Parliament for the next 5 years while the losers lose out completely for the same period, and given the costly exercise these days of conducting an election and mounting an election petition, the Electoral Commission must exercise and discharge its responsibility here with much care and caution always ensuring not to make a mistake. For once a winner is declared, the records speak for themselves. If the records of the election clearly demonstrate errors and omissions, that could form the foundation for an election petition as in the present case. The records without more could establish the errors and omission they reveal. 

47.	Once errors and omissions are shown, the responsibility would then be in the Court to consider the errors and omissions thus established and determine whether they did or have the likely effect of affecting the outcome of the election under examination. If what is revealed in the records is clearly an erroneous entry for example, a spelling of a candidate’s name say on the tally sheet or such other errors or omissions that do not affect the progressive tally or the number of votes in the count, the Court could order either a correction or ignorance of it but if the error or omission has the likely effect of affecting the outcome of an election, the Court would not be at any liberty to make similar orders. Instead, depending on the seriousness of the errors and omissions, the Court would be obliged to exercise any of its powers under s.212, s.215 and s.217 of the OLNLGE and make such orders as are necessary to do "real justice" and remedy the situation, including a nullification of the declaration of the winner and declaration of the correct winner or order a by election or order the Electoral Commission to go back to the relevant stage and have it corrected say by a recount of the votes and properly account and count the votes under the Court’s supervision and grant such remedies as are appropriate.

48.	In the present case, I find on the evidence before me that, the second polling at Ibirai was not necessary and not required for the Mongai voters who were voting at Mongai Primary School on the same day. I further find that in the absence of any evidence showing other than that polling being illegal, I find that it was an illegal polling conducted in Mr. Andrew Kiata’s house who was a known supporter of Honourable Laimo, which compromised the impartiality and integrity of that polling. Not only that, I find that the evidence before me reveals a lot of errors and omissions in the records for example, the number of people who may have actually voted in the second polling was 128 but the Electoral Commission officials inflated the figure by 84 votes to bring the total number of votes included in the count despite objections, to 212. The various errors and omissions in parts of the record of the polling in question demonstrate a rush job, leaving a trail of errors, which is indicative of a scheme to affect the outcome of the election in favour of Honourable Laimo. The totality of the evidence before me clearly shows, beyond a shadow of doubt that, the impartiality or independence and the integrity of the election of the South Bougainville Open Seat was seriously compromised by the polling in question. Accordingly, I find that this seriously affected, if not, did have the likely effect of affecting the eventual outcome of the election given the winning margin of 17 votes only.

49.	Additionally, I find that there are various unexplained errors of various returns including the tally sheet form 66B. These shows in addition to the votes from box number 0219 from the second polling at Ibirai, a further lot of 15 and 42 votes have not been properly accounted for, included or added in the counting before declaring the winner and generally the votes distributed after each elimination were not properly distributed to the candidates remaining in the raise. Under the previous election system, a candidate who secured the highest number of votes on the first count usually got declared as the winner of an election. This changed under the new limited preferential voting system or LPV in short. That is a system that allows for accounting of every voter’s votes in his ballot paper not once but three times unless they become exhausted. This becomes relevant if no candidate contesting an election secures 50% plus one of the primary votes. With the exception of one or two seats in Parliament, it has been practically impossible for one candidate to master such votes on the count of primary votes. Hence, the LPV system has proven a very useful system with a voter’s second and third preference being counted and ensuring that a candidate who eventually wins becomes a representative of majority of an Electorate rather than only a part of the electorate as was the case under the previous system. Given that, every process of elimination until a candidate secures the 50% plus one vote to become the winner is critical and important under the LPV system. Consequentially, the distribution of the preferential votes of a candidate that is being eliminated also becomes very important because they add to the tally of the candidates who are still in the race, again excepted for exhausted votes. It follows therefore that, except for the votes that become exhausted, the eliminated candidate’s votes remain useful and do have the potential to affect the eventual outcome of the election.

50.	In the present case, after the first elimination of candidate F. Tsiperau 541 of his votes became available for distribution especially when, none of those votes could be considered as exhausted and none of them was in fact considered exhausted. Instead of distributing 541 votes after that candidate’s elimination, only 499 of his votes were distributed. The balance of 42 votes was not distributed to any of the candidates remaining in the race. So those votes are unaccounted for. After the second elimination, 915 votes were available for distribution but only 900 votes were distributed. The balance of 15 votes is the first figure Mr. Kamma claims was not properly accounted for and the Electoral Commission admits it could not locate those votes and properly account for them and add them to the candidate or candidates to whom those votes should have gone. 

51.	The Electoral Commission through Mr. Itanu, the Returning Officer took the view and did in fact announce at the counting in respect of 15 votes unaccounted for following the elimination of candidate Leo Paupau, that those votes "will make no difference" after they went missing in the hands of the Electoral Commission. Contrary to Mr. Itanu’s views, I am of the view that, the 15 votes had the potential of affecting the outcome of the elections but were not properly accounted for by the Electoral Commission. Besides, it was not for Mr. Itanu to make that decision. It was for a Court of disputed returns on an election petition. His duty was to account for and count every vote.

52.	If those votes were properly accounted for and allocated to the candidate(s) who polled them, they would have affected the subsequent eliminations and the eventual declaration of the winner of the election. My understanding of how the LPV system works aided by the demonstration by the Electoral Commission at the workshop on election petitions last year at the Holiday Inn is that, under the LPV system, a single mistake in the counting can affect the whole of the counting so there must be a careful back tracking and correction before the counting can continue. Accordingly, I find that Mr. Itanu’s attitude here was in blatant breach of his duty to properly account for and include in the count all proper and formal votes. The 15 votes represented 15 voters who had exercised their Constitutional right to vote for a candidate to represent them in Parliament. What Mr. Itanu effectively said amounted to a denial of those voters Constitutional right to have their votes counted and the candidates who were entitled to receive those votes were denied the benefit of them in their progressive tally, elimination and the eventual winner of the election. 

53.	Turning then to the third elimination, there were 1079 votes available for distribution but only 964 votes were in fact distributed. This is where the 42 votes issue comes in. If we back track in the way in which the candidate concerned, namely J. Bemu faired, it is clear that his primary votes were 960. Then on the first elimination he collected 4 votes. His correct votes should have been 964 but his total was recorded as 1006, representing an extra 42 votes. That figure increased to 1079 instead of the correct figure of 1037 after the second elimination where this candidate picked up 73 votes. This candidate was the next to be eliminated and his 1079 (1037 correct) votes were available for distribution but only 964 votes were distributed, leaving a balance of 73 votes. Yet in the exhausted votes row the figure 115 is entered. If that entry is correct, it leaves the question, where did the earlier 42 extra votes come from? Did it come from the first elimination? If so, what is the explanation for the wrong entry? If it was a wrong entry why was the error not noticed and corrected and instead allowed to be carried over? Were the other entries correct given the apparent errors? There is simply no clear and direct answer to all of these questions.

54.	Once these errors and omission became apparent and established, it was incumbent upon the Electoral Commission to call the person or persons responsible to explain these errors and omissions and provide through them a satisfactory and reasonable explanation for errors and omissions. Instead of doing that, the Electoral Commission called only the Returning Officer and his assistant. They did not personally make the entries but someone else did, who they did not identify. Sam Roronga the Assistant returning officer attempted to provide an explanation but since he was not the person making the relevant entries, his testimony is only an interpretation of what the record shows and or should read and has thus, not given the relevant and appropriate evidence bringing out the relevant facts but only is opinion. 

55.	The witnesses called by Mr. Kamma, testified amongst others as to what happened at the counting. Their evidence along with evidence from affidavits and other evidence now before show that, there were various instances of counting officials either deliberately or mistakenly trying to place ballot papers in the wrong tray. If it was not for the scrutineers’ vigilance and disputes over what was happening, a lot more errors and omission could have been committed. Those errors and omission were especially against candidates other than Honourable Laimo. The Electoral Commission and Honourable Laimo did not provide me with any convincing reason for a rejection of Mr. Kamma’s witnesses’ evidence and the import of the other evidence before me. Accordingly, I accept them and find that the counting officials at the counting committed various serious errors and omissions especially in the allocation of votes to the correct candidates some of which were corrected while others remained uncorrected.

56.	As can be seen, the Electoral Commission committed serious errors and omissions in the accounting for and counting of votes. As I have already noted, this is a continuation of a trail of errors as demonstrated by parts of the records produced in respect of the second polling at Ibirai and the counting at Buin Secondary High School Mess. It is the law that, once errors and omissions that are other than illegal practices such as bribery and conspiracy are made out, it does not necessarily follow that an election petition based on such errors and omissions should be granted. Instead, a petitioner must also show not only that the errors and omissions did affect or have the likely effect of affecting the outcome of the election, but that, it is just that the candidate who has been declared winner to be not so duly elected. 

57.	The Electoral Commission and Honourable Laimo rely on authorities like the Supreme Court’s decision in Robert Kopaol v. Philemon Embel (supra) and advanced the argument that, Mr. Kamma is obliged to adduce evidence showing that the 15 and 42 votes not properly accounted for during the counting as is confirmed by form 66B, were his votes to past the test of the errors and omissions either affecting or having the likelihood of affecting the outcome of the election and that it is just that the candidate who has been declared winner should be declared not duly elected. This argument has a number of problems which make it difficult for me to accept and hence, reject it. First, the argument ignores the fact that s.218 of the OLNLGE from which this additional test or requirement comes, does not say that, a petitioner must prove that, the votes that make up the difference was his. Instead, all that a petitioner is required to do is to demonstrate that the results of the election under consideration was either affected or that it was likely to be affected by the errors and omissions a petitioner is able to establish.

58.	Secondly, the Respondents’ argument fails to appreciate what I already said about the LPV system. Under the LPV system, every life vote or ballot in the count is important and can make a difference in the subsequent eliminations and the eventual declaration of a winner. Given that, a failure to properly account for one vote may make a huge difference. In this case, we are talking about a total of 57 votes. The winning margin is 17. Mr. Kamma is arguing for a declaration that Honourable Laimo was not duly elected as the member for South Bougainville and that there be a recount of the votes based on which, the Court should declare the correct winner of the election. If Mr. Kamma was arguing for a declaration that he is the winner of the election, it would be necessary for him to show that either all of the 57 votes or just a little over 17 of the total 57 votes was his. However, appreciating what Mr. Kamma is arguing for, there can be no argument that the results of the election for the South Bougainville seat were affected or were likely to be affected by the failure to properly account for and count the 57 votes. The decision by the Returning Officer to treat them effectively as nothing because he was of the view that the 15 votes out of the 57 "will not make a difference" was a careless discharge of his duty and deliberate decision to compromise the integrity of the counting process and the eventual outcome of the election.

59.	Thirdly, the Respondents’ argument also ignores the fact that, there is already a serious question mark over the validity of the 212 votes coming from ballot box number 0219 from the second polling at Ibirai out of which, Honourable Laimo collected 128 votes. Apart from the arguments over the legality of that polling, the evidence also reveals errors in the records, most important of which is the fact that the used common roll shows only 128 people voting but the ballot papers included in the count from that box is 212. This is a substantial figure on its own. Where did the balance of 84 votes come from? Who put them in the box and why? There is no answer to these questions. The Electoral Commission which was in charge of the polling and election was obliged to provide answers to these questions but has failed to provide any answers. When thus questionable votes are considered along with the 57 votes, the figures become more substantial given the winning margin of only 17 votes. 

(v)	Effects of Established Facts and Consequence

60.	The question then is, are these errors and omissions serious enough that they either affected or did have the likely effect of affecting the outcome of the election of the South Bougainville Electorate? I have no hesitation in finding that the errors and omission I have found to have been established are serious and they did affect or did have the effect of affecting the outcome of the election. I then ask the question, is it just to declare Honourable Laimo who was declared duly elected member for the South Bougainville Open Electorate was not duly elected? On what is before me, I would answer that question in the affirmative. Then what is the appropriate remedy? In his prayer for relief, Mr. Kamma claims amongst others a declaration of the election of Honourable Laimo null and void and a declaration that he is the winner of the election or a recount of the votes. In his submissions before me, he is arguing for a recount of the votes. I consider a recount of the votes is a fair remedy to go for, given that, there has been a failure on the part of the Electoral Commission to properly account for the votes and count them at the counting. This is in addition to not satisfactorily answering the case made out for the second polling at Ibirai as being illegal and the votes coming from there tainting the counting and the eventual outcome. The fairest thing to do in all of the circumstances is to carefully go through the votes again this time under proper supervision and scrutiny to the exclusion of the votes coming in from the illegal or compromised polling at Ibirai, and declare a winner based on the recount.

61.	Accordingly, I make the following orders:

1.	An order in the form of a declaration that the declaration of Honourable Michael Laimo as the duly elected member of South Bougainville Open Electorate in the 2007 National Parliament Elections is null and void.

2.	Subject to the immediately following order, the Electoral Commission shall conduct a recount of all of the ballot papers in the election for the South Bougainville Open Electorate in the 2007 National Parliament Elections.

3.	The Ballot papers in Ballot Box number 0219 shall be excluded from the recount ordered under term 2 of these orders. 

4.	The recount shall take place within no later than 30 days from today at a suitable venue to be determined by the Electoral Commission in consultation with the lawyers representing all the parties and with the approval of the Court; on a day or days as are agreed to by all the parties with the approval of the Court; during such times also as are agreed to by the parties through their lawyers and with the approval of the Court and to be under the general superintendence of the Court. 

5.	The results of the recount shall be provided to the Court with all the appropriate official documentation within no later than 7 days of its completion, following which the Court shall then provide copies of all the documentation to the parties and the Court will then reconvene on a date to be announced at which time, the Court shall be at liberty to declare a winner of the election unless there are real and serious issues on the results of the recount in which cases the Court shall receive such evidence submissions as are necessary and grant such remedies as appear appropriate including an order for a by-election if need be.

6.	Costs of the petition are awarded to the petitioner Mr. Kamma, which costs shall be agreed within 14 days if not taxed.

7.	The Petitioner’s deposit of K5,000.00 is ordered to be refunded to him forthwith.

Steeles Lawyers: Lawyers for the Petitioner.
Nonggorr & Associates Lawyers: Lawyers for the First and Second Respondents.
JB Nanei & Co lawyers: Lawyers for the Third Respondent.