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Semri v Duangha [2013] PGNC 26; N5067 (4 March 2013)

N5067

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 49 OF 2012

IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTION

AND:

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE MIDDLE RAMU OPEN ELECTORATE IN THE NATIONAL GENERAL ELECTIONS

BETWEEN:

BEN SEMRI
Petitioner

AND:

ADOLF DUANGHA, Returning Officer
First Respondent

AND:

ANDREW S. TRAWEN, THE CHIEF ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND:

TOMMY TOMSCOLL
Third Respondent

Madang : Salika, DCJ
2013: 19, 20, 21, 22 February
04 March

ELECTION PETITION – Practice and Procedure – Allegations of no polling at a gazetted polling place – evidence required – allegation of eligible voters – evidence required that they were registered on the common roll – allegation of ballot box tampering – evidence requested - allegation of polling twice at some polling places – evidence required

Facts:

The petitioner and the third respondent were both candidates for the Middle Ramu Open Electorate in the National Parliament where the third respondent was declared as duly elected Member for Middle Ramu Open Electorate. The petitioner then filed this petition challenging the third Respondent's election win on allegations that there were errors, omissions and or illegal and irregular practices committed by candidates and their agents and or servants and also by electoral officials and their servants and or agents.

Held:

The Election petition is dismissed on the basis that there are no evidences to substantiate their allegations of errors and omissions by candidates, electoral officials, their servants or agents.

Cases Cited:

In an Application by Ben Semri (2003) SC 723 Unreported Supreme Court Judgment

Counsel:

Mr F. Kuvi, for the Petitioner,
Mr A. Kongri, for First & Second Respondents
Mr B Meten, for Third Respondent

04th March, 2013

1. SALIKA DCJ: BACKGROUND: The petitioner and the Third Respondent were both candidates for the Middle Ramu Open Electorate in the National Parliament. They were amongst 37 other candidates who contested the seat in the 2012 National Election.

2. The First Respondent was the Returning Officer for the Middle Ramu Open Electorate. He was charged by the Second Respondent to conduct the election in the electorate.

3. The Second Respondent is the Chief Electoral Commissioner and as such is responsible for the conduct of the National Election in the country.

4. The Petitioner was a former Member of Parliament for the Middle Ramu Open Electorate. At the time of the 2012 National Election he was the incumbent but lost to the Third Respondent at the 2012 National Election.

5. Following the National Election the Third Respondent was declared member for Middle Ramu Open Seat.

6. On 3 October 2012 the petitioner filed this petition challenging the third Respondent's election win. He drafted and filed the petition himself.

7. There are two sets of allegations raised by the petitioner. They are:

(i) Errors, omissions and or illegal and irregular practices committed by candidates and their agents and or servants; and

(ii) Errors, omission and or illegal and irregular practices committed by electoral officials and their servants and or agents.

8. The First and Second Respondents filed Objections to Competency Notices on 8 October, 2012 while the Third Respondent filed his Objection to Competency Notice on 13 October, 2012.

9. The competency applications were heard on 11 February and determined on 14 February 2013. All except four of the grounds of the petition were dismissed as being incompetent. The four remaining grounds are 16 (d), (p), (q) and (r).

THE ALLEGATIONS

10. For clarity the allegations still on foot are:-

16 (d). Still in the Arabaka LLG, in four (4) polling venues, electoral officials did not turn up to conduct polling. These polling venues were Wobu, Litibu, Itusu and Akrukai. As a result, over seven thousand (7,000) eligible voters did not have the chance to exercise their constitutional right to choose their leader for the next five years.

16. (p) In relation to box No. 100322 for Simbai Team 4 and Provincial Team 92 for count 26, the tag number of the outer seal was missing. The boxes were left in Simbai for over one week without any security personnel guarding them. Box No. 100322 had a big hole at the bottom of it. When the box was emptied for counting, it was discovered that the ballot papers were bundled together in packs of 10's and 20's.

16.(q) In relation to box No. 100202 for Kovon Team 3 this ballot box was also broken on the sides and it was pasted together with masking tapes. The ballot papers were also bundled together in packs of 10's and 20's.

16.(r) On the 18th of July 2012, the Presiding Officer for Box No. 100207, a Fr. Frank Mand presented this box for counting. This Team was not gazetted, but the box appeared to be from an area that is referred to above in (j). Later the First Respondent re-named the Team as Team 85B.

'
THE EVIDENCE

11. The parties went into evidence on the four remaining grounds. The Petitioner called 3 witnesses, including himself while the First and Second Respondents called one witness. As there were no allegations against the Third Respondent, he did not call any evidence.

12. The main witness called by the Petitioner was Zorro Tumri. His evidence was that there was no polling at Wobu, Litibu, Itusu and Akrukai villages. He said those 4 villages were polling places in the 2002, 2007 and 2012 National Elections. He alleged that as a result, over 7,000 eligible voters did not vote.

The petitioner supported Tumri's evidence on this allegation and said he raised a complaint about this with the Returning Officer, the First Respondent.

13. The First and Second Respondents called only the First Respondent. His evidence was that polling for Wobu and Litibu, was at Loralbu which was the gazetted polling place for those two villages. He said Wobu and Litibu were not gazetted polling places for the 2012 National Elections and earlier in 2007 and 2002. He produced the Electoral Commission gazetted polling schedules for 2012 and 2007 to support his evidence.

He further said polling for Itusu and Jongita was at Gokto a larger village. In relation to Akrukai he said polling was at Andamang.

ISSUES ON GROUND 16(d)

(a) Whether there was polling in Wobu, Litibu, Itusu and Akrukai.

(b) Whether over 7,000 eligible voters were deprived of their right to vote.

14. It is not disputed that the gazetted polling place for Wobu and Litibu villages was at Loralbu. The voters of Wobu and Litibu were aware of this schedule and were to go to Loralbu to cast their votes. Zorro Tumri said the distance from Wobu and Litibu to Loralbu was a 6 hour walk and that it was not easy to walk there. He suggested that even if people decided to walk to Loralbu they would not get there in time for polling

15. Relevantly however, there was not one witness from either Wobu or Litibu to verify his claims that because there was no polling at those four villages he or she, as a registered voter on the common roll, was denied the right to vote. None of the alleged 7,000.00 eligible voters was called to support the allegation. Similarly no voters on the common roll from Itusu and Akrukai were called to support the allegations that there was no polling at Itusu and Akrukai and that as a result 7,000 eligible voters were denied their right to vote.

16. The common roll for those villages was not summoned to be produced and it was not produced to show the number of people who did not vote or were denied their right to vote or whether anyone from those villages voted at all. This would have assisted the court. However the preliminary roll produced in evidence shows that Wobu had 190 registered voters, Litibu had 162 registered voters, Itusu/Jongita had 107 registered voters and Akrukai had 71 registered voters. The combined total of registered voters from the 4 villages was 530 registered voters and not 7,000 as claimed in the petition. There is no evidence as to whether any of the 530 registered voters voted at all.

17. Were those 530 registered voters likely to affect the final result of the elections? I do not think so. In the end result this ground had not been made as the gazetted polling place for Wobu and Litibu was at Loralbu and there is no evidence that 7000 voters were denied their right to vote. Similarly the polling place for Itusu was Gokto while the gazetted polling place for Akrukai was Andamang.

18. In the end result this ground has not been made out simply because there is just no evidence from any of the alleged 7,000 eligible voters that they were deprived of their right to vote.

19. The allegations in 16(d) raises an issue of whether Wobu, Litibu, Itusu and Akrukai were polling places. The tendering into evidence of the gazetted polling places has put that issue to rest. Wobu, Litibu, Itusu and Akukai were not gazetted polling places.

20. Ground 16(d) also raises an issue of the correctness of the common roll. Section 214 of the Organic Law is clear that the Court cannot inquire into the correctness of a common roll. The final common roll is usually presided by a Preliminary Common roll which is displayed in public places including the print media. Anyone including eligible voters are at liberty to correct this. When the final one comes out it is deemed correct, thus the court cannot question its correctness.

21. By the time the petitioner raised his complaint or concerns about the correctness of the common roll for this Middle Ramu Electorate it was too late, the Elections were already on. While it is the Electoral Commissions role to update the common roll, there must be some responsibility on the party of every voter and candidate to ensure their names are on the roll.

22. As it is in this case, there is no evidence if those alleged 7,000 eligible voters were registered on the common roll. Evidence only shows there were 530 voters registered on the common roll from those 4 villages.

23. Section 50 of the Constitution gives a person the right to vote. That right can only be exercised if his or her name is registered on the Electoral Roll or is also commonly known as the common roll. A person is not a voter if his or her name is not on the common roll. A person cannot be a candidate if his or her name is not on the common roll.

24. An allegation that eligible voters were deprived of their right to vote is a serious allegation, but it must be substantiated with relevant evidence.

25. In the absence of any such evidence this ground is dismissed.

Ground 16(p)

ISSUES ON GROUND 16(p)

(a) Whether the tag of the outer seal of ballot box number 100322 was missing.

(b) Whether the said ballot box was left at Simbai for over one week without any security personnel to guard it.

(c) Whether ballot box 100322 had a big hole at its bottom.

(d) Whether the ballot papers in that box were bundled together in 10s and 20s.

26. Ballot box 10322 was disputed at the counting center by Zorro Tumri the petitioner's Chief Scrutineer and campaign co-ordinator and main witness. Zorro made verbal complaints with the Returning Officer Adolf Duangha alleging that ballot box 10322 had been tampered with and therefore ballot papers in it should not be counted. The Returning Officer went ahead to have the ballot papers in the box counted. When the ballot papers were emptied for counting he noticed the ballot papers bundled in 10s and 20s.

27. The First Respondent gave evidence and said that the ballot boxes used in 2012 Election were made of plastic and were prone to crack or break. He said in this case it was merely cracked and not broken as alleged. He confirmed though that the cracks were supported by masking tape to prevent further damage.

28. As to what caused the cracks to the box or how the hole at the bottom came about is not known. There was no evidence adduced by both the petitioner and the respondents through the presiding officer or any other polling official from that box on the part of the allegation. The court is left gasping as to what to make of the hole or the cracks.

29. The court is however comforted by the production of Form 66 A which is in evidence as Exhibit 2. Form 66 A is an official Electoral Commission Form which shows that there were 2,710 ballot papers in that box, four of which were informal while 2706 were formal. Out of that box the third respondent collected 876 primary or first preference votes while the petitioner collected 135 primary votes. The remaining ballot papers of 1830 primary votes were distributed amongst the remaining candidates.

30. There is nothing shown nor is there any clear sign or pattern from this box that ballot papers were tampered with or that extra ballot papers had been sneaked into the said ballot box. There is no evidence how the box was cracked or how the hole was made. The box may have cracked through mishandling of it and broke or cracked because it was made of plastic. However, there is no evidence of the ballot papers being tampered with.

31. In the end result and in the light of the evidence adduced this ground is dismissed.

Ground 16(q).

ISSUES ON GROUND 16 (q).

(a) Whether ballot box number 100202 from Kovon Local Level Government was broken on the sides and taped with a masking tape.

(b) Whether ballot papers in box 100202 were bundled in 10s and 20s.

32. Ballot box 100202 was disputed for counting at the Counting Centre by Zorro Tumri. He alleged that the sides of the ballot box had cracked and were held together by having it taped with a masking tape.

33. He however did not know how it was broken or who might have broken or cracked it as he was not there when the box might have been broken or cracked. He also alleged that the ballot papers in that box were bundled in 10s and 20s but again did not say how or who bundled them. Tumri was supported on that by Willie Karukai who was presiding officer from another polling team in Josephtall Local Level Government area. He said box 100202 was cracked on the side and was taped with a green masking tape and that the ballot papers were bundled in 10s and 20s.

34. Form 66 A, which is an Electoral Commission form and in evidence shows that there were a total of 1327 votes in Ballot Box 100202. Six (6) of those were informal while 1321 were formal. Of those formal votes the third respondent collected 273 first preference votes. The remaining 1046 first preference votes were distributed among other candidates. When Form 66A was shown to Tumri and Karukai both agreed with the figures.

35. There is no other evidence to convince the court that the ballot papers had been tampered with or that they had been rigged other than the cracks. If they had been rigged or tampered with I would have expected a huge discrepancy in the way the votes were distributed. To me there is nothing untoward by way of one particular candidate collecting a lot more votes than others. I am not satisfied that this ground had been made out and so I dismiss it.

Ground 16(r)

ISSUES IN GROUND 16(r)

1. (a) Whether team 85b led by Fr Frank Mand was a properly appointed polling team.
   

(b) Whether team 85b polled in the same villages already polled by team 85 lead by presiding officer Godfrey Yambai.

36. Zorro Tumri and Willie Karukai gave evidence that when Fr Frank Mand the presiding officer for Team 85B introduced Ballot Box 100207 at the Counting Centre for scrutiny, he called the same polling places that presiding officer for Team 85A Godfrey Yambai had already called, meaning that there was double polling in those villages. They said as a result of this Zorro Tumri objected to the counting of ballot papers from that ballot box but that the Returning Officer went ahead to count the ballot papers for that box.

37. The Returning Officer's explanation as to why there was a Team 85B was that when he submitted the polling schedule to the Electoral Commission in Port Moresby for printing and gazettal he planned for 6 teams for the Kovon Local Level Government area. He said he had planned for the 6th team to poll at Goibam for Ward 10 and Gebrau Aid Post for Ward 12 which are different polling places to those covered by Team 85 A.

38. When he received the final polling schedule he noted there were only 5 polling teams for Kovon Local Level Government. He said because of the large areas to be covered he decided to stick to the 6 teams he originally planned and divided Team 85 into 85A and 85B. Godfrey Yambei was presiding officer for Team 85A while Father Frank Mand was appointed presiding officer for Team 85B. Team 85A was to cover Ward 11 and 13 while 85B was to cover Wards 10 and 12.

39. The point of the objection by Tumri and Karukai was that Team 85B polled at the same polling places already polled by Team 85A. The Returning Officer in his evidence vehemently denied this but said that Team 85B polled at Goibam for Wards 10 and Gebrau Aid Post for Ward 12 which are different polling places covered by Team 85A.

40. Form 66 A was shown to both Tumri and Karukai and they both confirmed that the first preference votes for box 100202 were distributed amongst the candidates. Karukai however maintained that the ballot box was tampered with, but he could not say how and who tampered with it.

41. Form 66 A also showed that out of box 100202 there were a total of 1,327 ballot papers six of those ballot papers were ruled informal while 1,321 were ruled formal. Out of that box the Third Respondent collected 273 first preference votes while Ben Semri, the petitioner collected only 2 first preference votes. The remaining 1046 first preferences votes went to other candidates. The highest first preference votes from this box went to another candidate other than the Third Respondent.

42. The Returning Officer in his evidence said there was no written complaint concerning this box and only belatedly Tumri raised objections with no substantive evidence of tampering. He said as there were no written complaints about the box he had the ballot papers in that box counted.

43. In Application by Ben Semri (2003) SC 723, The Supreme Court said:

"In our view the failure to affix the inner and the outer seals of itself without more does not necessarily affect the integrity of the ballot box. It is necessary to determine other relevant circumstances which would raise the integrity of the box. To put it differently, did the lack of the inner and the outer seals leave open the possibility that ballot papers were either removed or deposited unlawfully in the ballot box. These are relevant matters which should be pleaded and proven in the trial. This is consistent with the views expressed in Kaiulo's case and Peter Peipul's case."

The Supreme Court went further and stated:

"The integrity of the ballot box must involve the validity of the votes in the ballot box. It is the counting of these votes which might affect the result of the election. The trial judge ought to have considered whether the lack of inner and outer seals affected the validity of the votes in the box. In this regard the trial judge ought to have considered all the relevant circumstances which might affect the validity of the votes. In the present case, the ballot box was securely fastened with a padlock. There is no suggesting that the lock was unlawfully removed between the period it was fastened to the box to the date of the scrutiny of the votes. In the circumstances there is no proper basis for questioning the integrity of the ballot box."

44. In the present case, no shred of evidence was adduced by the Petitioner that the integrity of the votes was compromised. The integrity of the votes were always intact. Therefore, there was no reason for the Returning Officer to set aside these two boxes.

45. Section 153A of the Organic Law provides the procedure to be followed if a ballot box is to be disputed from being counted. The Petitioner did not avail himself of this procedure in disputing the two ballot boxes. Hence, there was no valid reason for him to set aside these ballot boxes.

46. In respect of Ballot Box No 100207, Section 117 of the Organic Law states that an election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of s.114, or of a variation or departure from a polling schedule.

47. In all the circumstances and with no evidence to substantiate their allegations I dismiss this ground as well.

GENERAL OBSERVATIONS

48. The process of election disputes is recognized by Law. The Organic Law provides for persons aggrieved by the electoral process to come to court to challenge that process or the results of the election. However, petitioners or prospective petitioners must come with evidence that is not only credible but evidence that is relevant and covers all the allegations. Lawyers can help their clients in that regard.
______________________________________________________

Elemi Lawyers: Lawyer for the Plaintiff
Harvey Nii Lawyers: Lawyer for the First & Second Respondents
Meten Lawyers: Lawyer for the Third Respondent