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Soloma v Waigavara [2014] PGNC 42; N5658 (4 April 2014)

N5658


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 83 OF 2012


IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURNS FOR THE OKAPA OPEN SEAT IN THE EASTERN HIGHLANDS PROVINCE


BETWEEN


SAKI HACKY SOLOMA
Petitioner


AND


ISAAC WAIGAVARA
First Respondent


AND


ANDREW TRAWEN, ELECTORAL COMMISSIONER
OF PAPUA NEW GUINEA
Second Respondent


AND


THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent


Goroka: Batari J
2013: 3, 4, 5, 6 & 10 December
2014: 4 April


NATIONAL PARLIAMENT ELECTIONS – Evidence – illegal practices – polling places – variation of – insufficiency evidence of – polling - allegation of illegal marking of ballot papers for voters – insufficiency of evidence of – Scrutiny - errors and omissions –no evidence of.


NATIONAL PARLIAMENT ELECTIONS – Organic Law – variation of polling place not subject to challenge – Organic Law Section 115, 117, considered and applied


Facts


An election petition claimed that 3 polling places were unlawfully re-located, that agents of the winning candidate marked the first preferences for all voters, only allowing voters to mark their second and third preferences and that at the count the Returning Officer failed to consider and determine on objection to counting the affected boxes. It was also submitted that the winning candidate made an election speech at the polling place and that polling officials swapped their roles, contrary to law.


Held


  1. The polling places were not abolished, they were moved, consequently the prohibition against abolition of polling places after issue of the writ, contained in s 43 of the Organic Law, has no application, [56-58];
  2. Section 115 of the Organic Law permits alteration of the polling schedule in unforeseen circumstances, at [58-59]
  3. Variation or departure from a polling schedule is not a ground on which an election petition can be challenged, pursuant to s 117 of the Organic Law and a petition based on those grounds is liable to be dismissed as incompetent, at [60-61];
  4. The allegations concerning pre-polling campaign speeches and swapping by polling officials were not pleaded and do not form grounds of the petition, at [101].

Case Cited


Neville Bourne v. Manasseh Voeto [1977] PNGLR 298;
Luke Alfred Manase v. Don Pomb Polye (2009) N3718.
Sir Arnold Amet v Peter Yama (2010) SC 1064.
Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342.
Mathew Poia v Valerian Valai [1990] PNGLR 388
Mathias Karani –v- Yama Silupa (2004) N2517
Andrew Kumbakor –v- Joseph Sengi (2012) N5002
Ben Semri –v- Tommy Tomscoll (2013) N5067;
Kuman –v- Dakana (2013) N4941;
PNGBC –v- Jeff Tole (2002) SC694;
MVIT –v- James Pupune [1993] PNGLR 320.


Counsel


J. Napu, for the Petitioner
P. Mawa, for the First Respondent
C. Lari, for the Second & Third Respondents


4 April, 2014


  1. BATARI, J: Background: This Petition survived the challenge to its competency on the three grounds of:
  2. The ground of bribery was dismissed following a successful no case submission. This judgement is on the two remaining grounds.
  3. Saki Hacky Soloma and Isaac Waigavara contested the Okapa Open Electorate, Eastern Highlands Province, amongst many other candidates in the 2012 National Elections. Isaac Waigavara won the peoples' votes, polling 9,731. Saki Hacky Soloma polled 9,086, a difference of 645 votes.
  4. Isaac Waigavara scored the substantial number of his first preference votes from his home area of Ofafina. That result is now being disputed on allegations that he and his supporters unlawfully relocated three polling booths and conducted illegal polling. The dispute also raises the issue of proper scrutiny of votes.

Parties Positions


  1. The Petitioner's case is that, Isaac Waigavara and his supporters by design and deception, unlawfully relocated three polling places to Famiya rugby field in contravention of s43 of the Organic Law. Hence, there was no legitimate polling. The voters were also denied the free exercise of their choice to vote as Isaac Waigavara and his supporters controlled voting by appointing five persons to mark ballot papers for and on behalf of the voters. In that scheme, the first preference votes went to Isaac Waigavara. That illegal conduct marred a free, fair and genuine election. Consequently, the election was a farce and sham.
  2. Furthermore the Returning Officer failed to consider and determine objections to Ofafina community ballot boxes containing illegally casted votes.
  3. The respondents' common contention is that the relocation of the polling places was necessary and authorised. It was at the behest of the people, desirous of trouble free elections for Karu, Famiya and Tiarana villagers. The people voted freely and voters were only assisted if illiterate. On scrutiny, there was no valid objection to counting of the purported disputed ballot boxes.

Issues


  1. From the foregoing, factual issues may be stated thus:
    1. What were gazetted polling places for Polling Teams 47, 48, 49?
    2. Whether the designated polling places were unlawfully re-located by Isaac Waigavara or done with his knowledge or authority?
    3. Whether the First Respondent and his supporters controlled polling by marking first preference votes for and on behalf of voters?
    4. Whether the Returning Officer failed to determine an objection to counting of ballot papers from Ballot Boxes 47, 48, 49?

Evidence – Common or Agreed Facts


  1. The common or undisputed facts are these:

Evidence: Disputed facts – Petitioner Saki Soloma's Witnesses' Evidence


  1. Saki Soloma called five witnesses. His first witness, Bernard Naki is a policeman. He spoke of seeing three polling booths set up at 10 – 15 metres apart upon arrival at Famiya rugby field. Isaac Waigavara said the polling venue has been moved to the rugby field and a community leader also announced that the polling venues had been relocated together because they form the support base for Isaac Waigavara's first preference votes.
  2. The second witness, Constable Simon Sap testified that on the way to Tiarana, a polling officer showed him two polling places but they kept going. Their vehicle turned into a smaller road and stopped at a field where three booths had been set up. A villager then addressed those present. Isaac Waigavara also spoke making it known that the primary votes were his.
  3. The PNGDF group commander asked about the change of polling places and Isaac Waigavara responded that they had to get his supporters together in one location as the other two voting places were further apart. The First Respondent also said it was not the first time a polling venue had been changed.
  4. Simon Sap also testified that;
  5. The third witness, Mathew Aricko was the Assistant Presiding Officer for Team 47 polling at Karu 1 & 2. He was unaware that the polling places for Teams 47, 48 and 49 had been relocated to Famiya. He also spoke of the welcome speeches and the announcement that three men would mark the ballot papers for voters. For Karu 1 & 2 polling, a Noel Monde marked all the first preference votes and asked the voters for their second and third preferences.
  6. The fourth witness, Maika Yanai was the Polling Clerk for Team 49. He spoke of the Team's Assistant Presiding Officer, Dominic Yiuna informing him and others on the way to Okapa,the polling places had been changed to Famiya.
  7. His story on events preceding the polling is consistent with other witnesses. Contrary to his affidavit statement, he testified that three persons only marked the first preference votes for Isaac Waigavara. The voters filled in the other two preferences. He said voter names were not called out and fingers were not marked. The people moved freely between the polling booths casting votes while he did practically nothing.
  8. The fifth witness, Marex Hoki was an official at scrutiny. He testified that the introduction of ballot boxes 47, 48 and 49 for counting was objected to by scrutineers on allegations of hijacking, threats and undue influence but the Returning Officer over-ruled them saying; "...... we will still count the disputed boxes unless and until there is in place, a court order not to count the boxes."
  9. He asserted that every single first preference votes went to Isaac Waigavara and that there was no informal vote. The ballot papers were in the same hand-writing and ink. He clarified that those were for the first preference votes only and conceded that 13 votes in different ink and hand-writings went to other candidates.
  10. Inase Tunge was the sixth and final witness. He gave evidence on allegations of bribery. That ground was dismissed on a no case application by the respondents.

EVIDENCE: Disputed Facts – Respondent's Evidence


  1. Isaac Waigavara gave evidence and called three supporting witnesses. The Electoral Commission called five.
  2. The First Respondent conceded making a welcome speech prior to polling on behalf of his Ofafina community. He explained that the Electoral Commission had approved the variation to the polling places at the behest of Ofafina community leaders because of fighting within the three villages. The Returning Officer for Okapa Electorate, Trexy Anakime later informed him of the approval. He also saw the notice of the change of polling places at the Westpac Notice Board in Goroka. Being the only candidate from the area, he would get the primary votes. His only interest in the variation of the polling places was to ensure the people voted at a safe and secure venue and to avoid post elections disharmony.
  3. Noel Monde gave evidence next. He was named as one of the three persons appointed to mark the ballot papers. He generally denied the allegation but spoke of urging the voters at the start of polling to maintain peaceful voting. He said the 2007 elections resulted in a lot of disharmony and in-fighting within Ofafina community and hence, community leaders resolved to put the three polling places together. At polling, voters stood in lines and freely caste their votes. The illiterate or older people were assisted by polling officials or by their educated relatives.
  4. The third witness, Sam Aigori was also named as one of those who filled in ballot papers on behalf of voters. He generally denied the allegations. He operated a PMV business and had voted on the first day before returning to his PMV runs. His evidence also agreed generally with the other respondents on the relocation of the polling places and polling being preceded by speeches.
  5. The fourth witness Kina Winaga was the Ward 12 Councillor in 2012. He testified that prior to and during the elections period, there were fighting at Karu 1 & 2 and Tiarana villages resulting in destruction of properties and lost of lives. It was feared the internal fighting may dampen the elections. There was also general trepidation of neighbouring villages taking advantage of the fragile security situation to disrupt the election process. So, the community leaders resolved to re-locate Karu 1 & 2 and Tiarana polling places to Famiya. They wrote to the Election Manager for Eastern Highlands Province on 29 June, 2012 and he responded on 3 July, 2012 approving their request.
  6. The witness was thoroughly quizzed on the justification for the relocation. It was suggested that tribal fighting is not a valid reason for change of polling place. It was also suggested the security issue was exaggerated. It was put further, that it is inconceivable to bring warring enemies together to the same polling location.
  7. Despite the extensive grilling, Kina Winaga maintained, that community leaders took a conscious decision to safeguard the election process. They also informed and urged the people to vote together and freely. He conceded the in-fighting had stopped before the elections but maintained the continuing threats particularly from outsiders and outside influences were ever present.
  8. Senior Constable Ben Bayam of Mt. Hagen based Police Mobile Squad 06 (MS 06) was the last witness for the First Respondent. When his squad arrived at Famiya field about noontime of the first day polling, he saw the three polling places were adequately separated and that voting was proceeding smoothly. One team completed polling and the remaining two completed theirs the next day.
  9. The Electoral Commission's first witness, Alwyn Jimmy testified that in 2002 and 2007 he conducted elections in Eastern Highland Province. In 2012 he was elevated to Provincial Election Manager. On 29/6/12 Councillor Kina Winaga requested him to change Karu and Tiarana polling places to Famiya. Tribal fight and the apprehension of disruption to the election process were cited as the underlying reason. Village leaders, Jason Kuta, of Karo 1 & 2, Timothy Aegobi of Famiya and Freddie Namana of Tiarana, endorsed the request.
  10. Following the request, he sought and received a situational report from the Returning Officer, Trexy Anakime. He then communicated the approval to the Returning Officer and instructed him to; (i) inspect the proposed polling site; (ii) publish the relocation and (iii) ensure polling proceed without trouble.
  11. Alwyn Jimmy was thoroughly cross-examined on his power to change a gazetted polling place. He maintained that he had power to approve changes in emergency cases like natural disasters and that tribal fighting is one of those situations that could disrupt the election process. When Mr. Napu suggested there was no in-fighting amongst the three villages, I reminded Counsel that the witness had acted on his information. Besides, the Petitioner has not adduced any evidence to the contrary.
  12. Trexy Anakime gave evidence, next. He was the Returning Officer for Okapa. The Election Manager briefed him on the request from Ofafina community leaders and he confirmed from his own information, knowledge and observations, that villagers have been displaced as a result of in-fighting amongst villagers in the Ofafina area. He confirmed the veracity of the request and responded that the proposed changes would be necessary for orderly election process.
  13. Trexy Anakime said he used the radio toksave program to publicise the change of polling venues and also posted public notices in Goroka and Okapa. The security forces were also briefed on the changes before polling. In the absence of complaints and adverse reports from the security personnel, presiding officers and the Returns Journals, he concluded that the polling was fair and trouble free.
  14. On scrutiny of votes, the witness denied any serious objection ever being made against counting of Teams 47, 48 and 49 ballot boxes. Scrutineers had complained generally of illegal voting but did not specify the nature of the irregularity. So, he dismissed their claims as speculative and unfounded. He also said it is not unusual to find counting being completed without informal votes.
  15. Mr Napu attempted to challenge the legitimacy of Returning Officer's appointment but abandoned that line when reminded not to venture outside the grounds of the petition.
  16. The third witness, Korito Homoas was the Assistant Returning Officer for Okapa Open Electorate. A day before polling was to start; he met with Sonny Wande, Presiding Officer for Team 52 and Stanley Sopi, Presiding Officer for Team 47. In that meeting the witness approved a swap between the two presiding officers for security reasons. Sonny Wande feared retaliation against him for the wrong-doing of his brother at Tawaina village where he was to conduct polling. His brother had badly assaulted his wife and chased her away with the children. Besides, the brother had not paid bride price.
  17. Counsel attempted to cross examine on the legitimacy of the swap but was reminded, this was not a ground on trial from the pleading.
  18. Sonny Wande was the fourth witness called. He swapped with Stanley Sapias Team 47 Presiding Officer. At the new polling place, voters stood in lines and voted freely. Those who could not read or write were assisted by polling officials, or by their relatives to vote.
  19. The legitimacy of his swap with Stanley Sopi and the authenticity of the Returns Journals were again ineffectively pursued in cross-examination. Those facts were not pleaded as illegal practices or errors and omissions by electoral officials. The witness on the other hand maintained that there was no irregularity voting at his polling booth. He also denied Noel Monde being posted to his booth to mark ballot papers.
  20. Stanley Sopi the fifth witness gave consistent evidence to that of Korito Homoas on the events and reasons for his swap with Sonny Monde.
  21. The sixth witness, Emmanuel Kasieng was the Presiding Officer for Team 48. Prior to polling, he and others were briefed on in-fighting amongst the three villages in the Ofafina area. At the start of polling, he asked scrutineers to take their place and only one, Eto Toki responded. Voters waited in two lines of males and females to vote. Those who could not read or write were assisted by polling officials. Voters voted freely and there were no complaints of any irregularity received. His team polled again the next day.
  22. The last witness, Dominic Yiuna gave much the same story as the other two polling officials. He was the Assistant Presiding Officer for Team 49. Voting proceeded smoothly with those unable to read or write being assisted by polling officers or their relatives. He spoke of voters standing in two lines of males and females to cast their votes. Everyone voted and polling ended the same day.
  23. Dominic Yiuna also said that before polling, he and others were told of the change of polling venues by the Returning Officer at Okapa. He denied in-fighting in Ofafina area. He also denied voters moving around to cast repeated votes.

Gazetted polling places for Polling Teams 47, 48, 49


  1. There is no documentary evidence on the gazetted voting places for Okapa Open Seat in the Ofafina area. However, it is common ground that the polling places were; Karu Market for Karu 1 & 2 villages; Famiya market for Famiya village and Kintara Primary School for Tiarana village. Polling Teams for those places were; 47, 48 and 49 respectively. The polling places for Karu and Tiarana were moved to Famiya rugby field.

Whether the relocation of the polling venues was unlawful and with the knowledge or authority of Isaac Waigavara?


  1. There are two parts to this issue. The first concerns the validity of relocation of the polling venues. If the relocation is found to be unlawful, the second issue then arises as to whether the illegal practice was committed with the knowledge or authority of the First Respondent under s 215 (3) (a) of the Organic Law. The Petitioner must further show that the illegal act affected the result of the election and it is just that the First Respondent be declared not to be duly elected or that the election should be declared void.
  2. The facts pleaded in support of this ground of illegal practice were that;
  3. The relocation of polling places to Famiya is a conceded fact. The estimated distances between the polling booths ranged from 10 to 50 meters. I think the booths were further apart. This would be logical to avoid overcrowding and confusion. The wider spaces would also enhance the physical separation to avoid any misapprehension of the separate polling places. The huge voter turnout with some degree of control and understanding as to which group would vote where is also clear on the evidence.
  4. The onus is on the Petitioner to show the unlawfulness of the relocation.
  5. It is trite law that the one who alleges must prove his or her claim and the entitlement to (or the award of) the relief sought. The standard of proof in election petition cases is high, almost to the criminal standard of beyond reasonable doubt: Neville Bourne v. Manasseh Voeto [1977] PNGLR 298; Luke Alfred Manase v. Don Pomb Polye (2009) N3718.The Petitioner must prove to the entire satisfaction of the court, each and every element or particular of the illegal practice alleged, or risk dismissal of the entire ground for want of evidence or cogent and credible evidence.
  6. In this case, the particulars of illegality of the relocation were not pleaded nor were evidence led to demonstrate the illegality of there location. The broad statement of fact claiming an illegal act keeps one guessing as to the nature of that act. Counsel for the First Respondent, Mr Mawa quite aptly described the thrust of the allegation as suggestive of forceful relocation and therefore, illegal. Indeed, that is the clear implication from the pleading as set out.
  7. There is not an iota of evidence on any such aggression or violence. Neither is there any evidence that the First Respondent and/or his supporters deliberately relocated the polling venues. The highest the Petitioner has put his case is this; the polling officials had not been told or were unaware; their respective polling venues had been moved. They were surprised when they all ended up in one location.
  8. Mr. Napu submitted that the evidence and the inferences to be drawn strongly point to deception and dishonesty. The speeches made at the start of polling by the First Respondent and his supporters were consistent with a deliberate ploy to relocate the polling venues to unduly influence the voters. The fact that polling officials were unaware of the changes showed that Isaac Waigavara and his group had deliberately and without lawful authority abolished the legitimate polling places and had set up illegal polling booths contrary to s 43 of the Organic Law. They also illegally controlled voting at those booths.
  9. I find the version from the respondents meritorious and compelling. Their evidence on the variation and the reason for that has substance; it is precise and more convincing than those inferences and innuendos from the Petitioner's witnesses. The respondents are only required to prove on the balance of probability that the relocation was lawful. They have met that requirement with ease. The burden remains with the Petitioner to prove to the entire satisfaction of the court, the alteration to the three polling places was illegal. He has an insurmountable task because of the high probability of the respondents' case.
  10. The respondents' evidence strongly points to the relocation of the polling places being authorised. On 29 July, 2012 leaders from the Ofafina community wrote to the Provincial Election Manager requesting that the polling places for Karu and Tiarana villages be relocated to Famiya. Tribal fighting and threats thereof and the risk of disruption to the election process were cited as the underlying reason to make the changes. The Election Manager responded immediately with due diligence to issued instructions to relocate the polling places. He also instructed the Returning Officer to publicise the changes.
  11. The Petitioner attempted to rely on cross-examination of the witnesses to show that the Election Manager had acted on false and misleading information to vary the polling schedule. He also suggested that the decision making process leading to the Election Manager's decision was flawed.
  12. There are two fundamental flaws with the Petitioner's claims. First, he did not plead nor did he call evidence to show there was no, or no legitimate circumstances to support the change of polling venues. Second, he did not call rebuttal evidence when he had the opportunity to disprove the respondents' evidence.
  13. There are however, two pertinent issues of law open to the Petitioner, that are arguable and possibly not without merit. The first is the appointment and abolishing of a polling place. Section 43 of the Organic Law vests in the Electoral Commission, the power to appoint and abolish a polling place with a caveat that no polling place shall be abolished after the issue of the writ and before the appointed time for the return of the writ. This provision reads:

"43. Polling places.

(1) The Electoral Commission may, by notice published in the National Gazette or in a newspaper circulating in the electorate—

(a) appoint such number of polling places for each electorate as it thinks necessary and practicable; and

(b) abolish a polling place.

(2) No polling place shall be abolished after the issue of the writ and before the time appointed for its return."


  1. The Petitioner's contention is that the election manager has no power to abolish a polling place and that his abolition of the three polling places contravened s.43 (2). Therefore, polling at Famiya field was unlawful and of no effect.
  2. I agree with Ms Lari and Mr. Mawa that the polling places were merely relocated, not abolished. Strict adherence to polling places and variation of polling schedules are govern by s. 115 of the Organic Law. Section 115 reads:

"115. Adherence to Polling Schedule.


(1) As far as possible, polling booths shall be open in accordance with the polling schedule, and the Returning Officer and presiding officers shall take all such action as is necessary or desirable for that purpose, whether expressly authorized by this Law or not.


(2) Subject to any directions given by the Electoral Commission, the Returning Officer may, where it becomes impracticable to adhere to a polling schedule, vary the schedule, in which case the provisions of Section 114 shall, as far as practicable, be observed in relation to the variation.


(3) Subject to any directions given by the Returning Officer, a presiding officer may where in his opinion it is necessary or desirable in order to meet an unforeseen contingency of emergency and it is impracticable for the Returning Officer to vary the polling Schedule under Subsection (2), depart from the polling Schedule in relation to a polling place, and shall advise the Returning Officer of the departure and of the reasons for it as soon as practicable.


(4) Where the presiding officer departs from the polling Schedule in relation to a polling place, he shall take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it."


  1. This provision provides a safety catch for unforeseen contingencies or emergency situations that may affect or disrupt the election process. It vests in the Returning Officer and the presiding officer the power to vary a polling schedule (s 115 (2), (3)) where in the opinion of the relevant officer, it is necessary or desirable to meet an unforseen contingency of emergency. Varying a polling place by relocating it or moving it from A to B is not the same as abolishing the polling place under s 43 of Organic Law.
  2. Abolishing a polling place has the same meaning as extinguishing a polling place. Karu and Tiarana polling places were not abolished or extinguished. They were simply moved to another location. It is not unlawful to relocate polling places in the last minute due to such exigencies as bad weather, transport difficulties, and the like. I would add to this, civil unrests, tribal fights and threats thereof. Furthermore, variation to or departure from a polling schedule is not a ground to challenge an election under s 117 of the Organic Law. See, Mathew Poia v Valerian Valai [1990] PNGLR 388.
  3. Grounds of a petition based on allegations of variation to a polling schedule including a polling place are liable to be dismissed for want of competence. See, Mathias Karani –v- Yama Silupa (2004) N2517; Andrew Kumbakor –v- Joseph Sengi (2012) N5002; Ben Semri –v- Tommy Tomscoll (2013) N5067.
  4. There is however, a caveat to the exercise of power by the Returning Officer or presiding officer. There must be adequate notice of the change of polling schedule given to the voters directly affected so that they are well informed and have reasonable and sufficient opportunity to exercise their right to vote at a different place or at a different time. Conversely, a variation to a polling schedule will be incontestably bad where voters are prevented from or are denied reasonable access and opportunity to vote at the relocated place or at a different time.
  5. I am satisfied based on strong evidence that there was sufficient publicity of the variation of the polling schedule through the media (radio) and public notice boards. This evidence is uncontested. There is also evidence from the Petitioner's own witness, Maika Yanai of his prior knowledge of the variation. The huge turnout of voters is also testimony to the changes of polling venues being well published. The Petitioner has not discharged the standard of proof on this aspect.
  6. In the upshot reliance on s43 of the Organic Law is untenable. That provision has no application to the circumstances of this case. The variation of the polling places was due to tribal fighting and the threat of fighting erupting during the elections. The elections manager aptly described this as an emergency situation warranting relocation of the polling places. By virtue of s 115 and s 177of the Organic Law, the variation of the polling place is not open to challenge.
  7. The second issue open to the Petitioner that is arguable, is the power of the Provincial Election Manager to make changes to a polling schedule under s 115. The Petitioner challenged the power of the election manager to make the changes under s 43 of the Organic Law. He did not raise the provision of s 115 in his pleadings and it is not part of his case. I have raised this for completeness. Section 115does not specifically vest in a Provincial Election Manager or any electoral official the power to vary a polling schedule. That power is vested in the Returning Officer (s 115(2 )and the presiding officer (s 115(3), (4)).
  8. A Provincial Election Manager is not established under the Organic Law. The position is administratively created. There can however, be no doubt that the office-holder is an electoral officer for all intents and purpose of the Organic Law and electoral laws. Under s 115 (2), the exercise of power by the Returning Officer and presiding officer is subject to directions given by the Electoral Commission, the office-holder of which is the Electoral Commissioner under s. 5 of the Organic Law. Powers of the Electoral Commission and the exercise thereof may be delegated to electoral officers under s 18 of the Organic Law. Therefore, in my view, the Elections Manager has the delegated power to alter, change or vary polling schedules under s 115 (2). The onus is on the Petitioner to show otherwise.
  9. What adds to the necessity for change of polling venues is the sobering fact that the election process in our country can be sensitive, high pressured and challenging. So, it is reasonable to assume that the Electoral Commissioner and electoral officials would be on alert and vigilant against indicators, whether real or perceived, that may likely disrupt the elections. Maintaining the integrity of a free and safe election process is a very onerous and expensive exercise and one which the Commissioner and his officers no doubt take seriously and will act quickly to alleviate or lessen the impact of any likely threat to the elections.
  10. Indeed, the Organic Law in s 115 recognises the existence of unforseen contingency of emergency by vesting in the Returning Officer and the presiding officer, the power to change polling schedules including polling places as necessary or as desirable and at short notice.
  11. Furthermore the results of polling quite clearly show that no one was denied the opportunity or prevented from casting his or her vote as a result of the variation to the polling places. If anything, it is quite clear that the relocation resulted in a huge turnout in a show of what may be appropriately described as block-voting. There is nothing wrong with block-voting unless such voting is pleaded and proven on the facts to have resulted from undue influence, duress, intimidation or force contrary to s 102 of the Criminal Code.
  12. The grounds of illegal variation of polling places have not been substantiated. Nor has it been shown that the Election Manager lacked the power to give directions under s 115 of the Organic Law. And the Petitioner is quite clearly barred from challenging the issue of variation of a polling schedule under s 117 of the Organic Law.
  13. It is relevant to note here, the undisputed fact that a similar variation of polling place was approved for polling places in the Petitioner's stronghold. That was possibly done to the advantage of block-voting as well. And one must also bear in mind that under the preferential voting system, all the votes have the same or equal value, and candidates can use that for vote bargaining.
  14. The ground of illegal relocation of polling places fails on no or insufficient evidence and by virtue of s 117 of the Organic Law application.

Whether the First Respondent and his supporters controlled polling by marking first preference votes on behalf of voters?


  1. This issue arises from the pleading that:
  2. There are two basic contentions by the Petitioner. The first relates to the welcome speeches and swapping by polling officials. It is contended, that the announcement that the three polling booths and the first preference votes were reserved for the First Respondent, was calculated to unduly influence voting. And the swapping by polling officials is said to be illegal. The second relates to control of voting by ballot papers being marked for and on behalf of voters.
  3. The Petitioner's case is that having relocated the polling places, the First Respondent and his supporters perpetrated the illegal act further by dictating and controlling how the voters voted at the new polling places. It is alleged that appointed persons marked the ballot papers while voters waited in the queue to merely place the votes in the ballot boxes. Those persons rotated around the three polling booths processing the ballot papers for the voters in that manner.
  4. I will deal first with the uncontested evidence on the welcome speeches and swapping by the presiding officers.
  5. Facts which would have driven the evidence on these two aspects were not pleaded in support of grounds of the petition. Mr. Napu was at pains to argue, that despite the failure to plead the facts, the Court should accept the uncontested evidence as admissible and find against the respondents. The evidence, Mr. Napu submitted blends in well with the allegations of illegal voting at Famiya rugby field. Therefore the Court should find against the respondents that they committed an illegal act in campaigning and unduly influencing voters at the time of voting. The Court must further find that the swap by two electoral officers on the 11th hour was unlawful and that it affected the result of the elections.
  6. Counsel relied on the cases of Kuman –v- Dekena (2013) N4941; PNGBC –v- Jeff Tole (2002) SC694 and MVIT –v- James Pupune (1993) PNGLR, 320for the proposition that if at the trial, parties by their conduct allow evidence to be led on matters not pleaded, one cannot cry foul that it was not pleaded. The two latter cases which involved ordinary civil suits are of little assistance as the process involved in election petition cases and the evidence to be called are well settled in this jurisdiction. The higher standard of proof in election petition trials makes it necessary to regard such propositions of law with care and caution.
  7. The evidence on the welcome speeches is said to add to the illegality of voting. This submission is misconceived and mischievous. The statements attributed to the First Respondent and his supporters go to the issue of undue influence. It is a substantive ground against which the respondents should have been properly alerted, to prepare their defence. It is an illegal act under s 215 of the Organic Law and s 102 of the Criminal Code. The electoral laws also make campaigning at the time of the polling, an offence.
  8. Similarly, the evidence of swapping by polling officials and the submissions that this supports the ground of illegal polling is misconceived. The evidence of the swap not only forms an illegal act but it also forms a separate ground of errors or omissions by electoral officials under s 218 of the Organic Law. The facts supporting those grounds are different and will support a substantial ground. The facts should have been specifically pleaded under s 208 of the Organic Law.
  9. The evidence on the substantive ground of undue influence or an illegal act of wooing voters at the time of polling and the evidence of alleged illegal swapping that would constitute errors or omissions by electoral officials, cannot simply ride on the grounds that were supported by specifically pleaded facts in paragraph 7 of the Petition. One cannot simply put into evidence a set of substantial facts and ask the court to widen the scope of the ground of the Petition to cater for those facts.
  10. The facts that clearly constitute a separate ground of the Petition must be properly pleaded in strict compliance with s 208 of the Organic Law. There is no room under the strict requirements for election petition process, to mend substantial omissions and flaws in the pleading of facts that constitute separate grounds of the Petition as suggested in this present case, save for minor factual omissions or extensions that are of no real significance or consequence.
  11. What the Petitioner has done here is an attempt to mend a fundament omission or oversight in pleading particular facts that would constitute substantial grounds of the Petition. Each of those grounds can stand or fall on its own. To entertain the submissions by the Petitioner at this belated stage will be untenable against settled principles of law and an abuse of the court process. It will also be tantamount to amending the Petition outside the statutory time limit.
  12. Those contentions are dismissed.
  13. Returning to the issue of illegal voting, the gist of the Petitioner's contentions are that the First Respondent and his supporters were involved in a collaborative scheme with electoral officials to influence, coerce and control voting at the relocated polling booths. Eligible voters from Ofanina did not freely exercise their rights to vote as polling was conducted in contravention of ss130,131, 136 and 138of the Organic Law. Those provisions regulate the process to be followed at polling and preserve the free exercise of the right to vote.
  14. The respondents were on the other hand, adamant there were no illegal practices or errors and omissions committed at polling.
  15. Only one of these opposing positions is highly probably as both cannot be true on the whole of the evidence. Mr Napu submitted that the Petitioner's version is more reliable because his witnesses are believable and they gave consistent and convincing evidence from independent witnesses in the policemen and polling officials assigned for duties at the polling places.
  16. The crux of the whole of this issue of illegal voting is that the people, the voters were deprived the opportunity and the free exercise of choice to vote as individuals, along family lines, clan and tribal lines or party lines. The purpose and idea of pre-polling campaigns is to secure the numbers. In Papua New Guinea and more particularly so in the highlands region, it is a notorious fact that votes are commonly distributed along community and tribal groupings than party lines.
  17. Because elections are such an important democratic process, conducted at great public expense and often under extreme conditions, real cause must be shown in an election petition that, that process must be overturned. The presumption is always that the election process was properly and legitimately conducted whereby a representative of the people is chosen in a free and fair electoral process. This is the precursor to the higher standard of proof in election petitions. See Sir Arnold Amet v Peter Yama (2010) SC 1064. See also, Delba Biri v. Bill Ninkama & Ors [1982] PNGLR 342.
  18. It is clear that the principal witnesses from both sides were involved in the polling either as a polling official or as security personnel. The respondents called other witnesses as well in support of their version of no irregularity of voting.
  19. The evidence of the policemen called by the Petitioner is a suspect. It begs the question of their own credibility and reliability in failing to uphold the Constitution and the electoral laws. If there were indeed, apparent blatant disregard of the rule of law during polling, why did they help hush it up in failing to report the illegal activity immediately to the Electoral Commission or to their superiors and allowed it to go on for two days? Why didn't they stop Isaac Waigavara and his group or make arrests for the purported illegal activities. The primary reason and the primary duty of police involvement in the election process are to ensure a free, fair and secure election. They cannot be seen to condone apparent illegal practices, errors and omissions at elections and then belatedly complain about it in an election petition. Their constitutional duty behoves them to act independently to enforce the electoral laws. I do not think that polling at Famiya happened in the manner described in the evidence of the Petitioner's police and polling official witnesses.
  20. Constable Bernard Naki was the only reliable witness for the Petitioner. He spoke of people lining up to cast their votes. He also said polling officials explained the different ballot papers before the people voted. His evidence contradicted that of Constable Simon Sap, polling official Mathew Aricko and the facts pleaded by the Petitioner.
  21. A related issue is the pleading of five named persons appointed to mark the ballot papers. The evidence is that only three persons were appointed. The roles of the three persons are also confusing on the evidence. The pleaded facts supported by parts of the evidence are that the named persons rotated around the polling booths marking the ballot papers before returning these to the voters to place in the ballot boxes. However, the evidence also point to the three persons being stationed at each polling booth while voters moved around casting their votes. There was further evidence which I find unconvincing that polling officials did nothing while the people helped themselves to the ballot papers and voted. I think the most likely scenario is as spoken of by witnesses for the respondents, one of them Const. Ben Bayan who appears to be more reliable.
  22. A further issue that lessens the weight of the petitioner's evidence is the absence of aggrieved eligible voters. There is not an iota of evidence before this Court on any complaint by an eligible voter that his right to a free choice to vote was unduly influenced, coerced or suppressed prior to or during polling.
  23. If the people in a show of block-voting which I think happened in this case, decided to cast their votes in a particular way, there is no law against that unless it can be shown that they voted under duress or their votes were involuntarily caste. The evidence shows the majority gave their first preference to Isaac Waigavara while 14 did not. The evidence also suggests that the voters exercised their free choice for the second and third preferential votes. This supports the contention that the people had the free exercise of choice. And the variation to the polling schedule no doubt, assisted the huge voter turnout.
  24. The evidence on same handwriting is also sketchy. The impression I got from the witnesses is that the entries on some 3,000 plus ballot papers were made by the same person and possibly in the same ink. This is difficult to comprehend because of the amount of time, energy and enduring resilience required for the same person to be moving around, marking every single voting paper over two days. I think that is stretching the imagination a little. It is also against common sense.
  25. Then again, the evidence is that three named persons made entries on the ballot papers. If that is so then one would find three different hand-writing styles and possibly in three different inks. This is where I find the evidence of counting official Marex Hoki difficult to believe. He obviously gave selective evidence and fell into error in asserting there were no informal votes and that every single first preference votes went to Isaac Waigavara. The opposite is true that there were some informal votes and 14 first preference votes went to other candidates.
  26. The evidence also suggests, voters were given the ballot papers to mark their second and third preferential votes. If that is so, then one is likely to find numerous hand-writing styles on the ballot papers. I also think it will require a great deal of skill with highly trained power of discernment to look at thousands of entries and conclude the first preference votes are all in the same hand-writing. None of the Petitioner's witnesses is an expert in that area. The evidence on the same handwritings is not convincing. It is more likely that the people voted personally or were assisted by polling officials and relatives as witnesses for the respondents spoke of.

Objection to Count of Ballot Boxes 47, 48, 49


  1. On issue of proper scrutiny, the evidence of Marex Hokiis at the highest, unreliable against the evidence of Trexy Anakime who I find to be more truthful. The petitioner would have done better by calling scrutineers who he alleged objected to the count of ballot boxes for teams 47, 48 and 49. The petitioner has not proven the ground of errors and omission at counting on the requisite standard.
  2. In the upshot, the petition fails to establish by cogent and convincing evidence to the entire satisfaction of the Court that the Respondents:
  3. The collateral issues of pre-polling speeches and swapping by polling officials are belated. They are dismissed for being misconceived as they do not form the substantial grounds of this petition. The allegation of bribery was dismissed at the outset.

The formal orders of the Court are that:


  1. The entire petition is dismissed for want of or sufficient evidence.
  2. The Petitioner is to pay the costs of the respondents to be taxed if not agreed.
  3. The security for costs is to be apportioned in equal parts between the First Respondent on the one part, the Second and Third Respondents on the other.

_____________________________________________________________
Napu & Co. Lawyers: Lawyer for the Petitioner
Mawa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second & Third Respondents

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