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Manase v Polye [2016] PGNC 536; N7977 (2 May 2016)

N7977

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP. NO. 14 OF 2012


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


AND
IN THE MATTER OF THE 2012 NATIONAL ELECTION FOR KANDEP OPEN ELECTORATE


BETWEEN:
LUKE ALFRED MANASE
Petitioner


AND:
DON POMB POLYE
First Respondent


AND:
THE ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent


Waigani: Yagi J
2015: 19th– 23rd, 26th – 30th January
02nd – 06th February
22nd & 28th April
2016: 02nd May


ELECTION PETITION – PRACTICE & PROCEDURE – admissibility of affidavit evidence – deceased witness – principles for consideration – power of the Court is discretionary – statement of the deceased must be bona fide – the witness can be produced – statement must be relevant and admissible – it is in the interest of justice to admit the statement.


ELECTION PETITION – PRACTICE & PROCEDURE – Costs – application for cost of adjournment – failure to inform the oppose party of intention to apply for adjournment – professional courtesy – Lawyers Professional Conduct Rules, r20(1) and (2) – power to award cost is discretionary – general principle cost follow the event – adjournment may be granted on terms as to cost.


ELECTION PETITION – errors and omissions – failure to appoint a Returning Officer – Returning Officer coerced under threats and intimidation to resign – involuntary resignation - whether resignation was valid and lawful - whether a vacancy was created under circumstances of a forced resignation – procedure for removal of a Returning Officer not implemented.


ELECTION PETITION – errors and omissions – discrepancy in the entry of the figures – discrepancy between the Manual Tally Sheet and Electronic Tally Sheet – patent errors in the Electronic Tally Sheet – Electronic Tally Sheet unreliable – Manual Tally Sheet although has alterations did not affect correct number of votes counted and the final entry of figures.


ELECTION PETITION – errors and omissions – failure to count 5 remaining ballot boxes –due process and procedure not followed – rejection of the ballot boxes unlawful.


ELECTION PETITION – errors and omissions – allegation of extra ballot papers stuffed into the ballot boxes – sufficient explanation offered by the second respondent – no contradictory evidence provided by the petitioner.


Cases Cited:
Papua New Guinea Cases


Commodore Peter Ilau v Sir Michael Somare(2007) N5511
Ila Geno, Paul Lawton and Florian Mambu v The State [1993] PNGLR 22
Public Services Commission v The State [1994] PNGLR 603
Pila Ninigi v Electoral Commission of Papua New Guinea & Another (2013) N5322
Paias Wingti v Kala Rawali& Another (2008) N3286
State v Miskus Maraleu & Sebulon Wat [1994] PNGLR 579
State v Peter Raima [1993] PNGLR 230
State v Misari Warun[1988-89] PNGLR 327


Overseas Cases Cited:


Achal v Electrolux Pty Ltd (1993) 50 1R 236
International Pilots Association v Captain Michael Glynn [2011] FWA 1233
NGO V Link Printing Pty Ltd (1999) 94 IR 375
Re Rodney Birrel v Australian National Airlines Commission [1984] FCA 378


Counsel:


Mr. I. Molloy with Ms. C. Copeland, for the Petitioner
Mr. P. M. Dowa, for the First Respondent
Mr. R. William, for the Second Respondent


DECISION


02nd May, 2016


  1. YAGI J: The trial of the petition commenced in mid-January and concluded at the end of the first week of February last year. The parties concluded making submissions at the end of April last year and the decision was reserved. During the trial witnesses were called and cross examined by the parties. Most of the witnesses had their affidavits filed pursuant to directions issued by the Court during the pre-trialling process. A number of documents were also tendered into evidence by consent or through witnesses. This is the decision on the petition.
  2. The petitioner petitions this Court disputing the election of the first respondent as the duly elected member of the National Parliament for the Kandep Open electorate in the Enga Province. This dispute arose from the conduct of the National General Elections by the second respondent in 2012.
  3. The substance of the complaint by the petitioner in the petition relates to allegations of errors and omissions by the second respondent through its officers, servants and agents. There are in total four grounds raised by petitioner in the petition. All grounds were subjected to the competency test and were allowed to proceed to trial save and except the fourth ground where part of it was struck out. The offending paragraph that was struck out is paragraph 57. All others proceeded to trial.
  4. Before proceeding further, it is necessary for the Court to determine two preliminary issues. The first relates to the admissibility of evidence of a deceased witness. The second relates to the issue of cost of adjournment of the hearing in Goroka on 22 April 2015.
  5. With regards to the first issue, the deceased witness is Peter Pesera. He is a witness for the second respondent. This witness deposed to an affidavit filed on 9 November 2012, however, he died sometime thereafter. His affidavit had been served on all other parties including the petitioner. In response, the petitioner has filed and served a notice under s. 35 of the Evidence Act. The witness could not be produced by the second respondent at trial for the purposes of the petitioner exercising his right to cross examine the witness on the evidence he deposed to in his affidavit. Likewise, the second respondent is unable to tender into evidence the deceased’s sworn affidavit.
  6. Counsel for the second respondent submits the Court has discretion in admitting into evidence the affidavit of the deceased pursuant to s. 34(1)(b) of the Evidence Act (Chapter 48). Counsel relied on the decisions in State v Miskus Maraleu & Sebulon Wat[1994] PNGLR 579 and State v Peter Raima [1993] PNGLR 230 in support of the contention. It is submitted the Court has discretion in admitting the affidavit into evidence in the interest of justice; however, it is a question of what weight is to be given to the evidence.
  7. Counsel for the first respondent did not make any submission on this issue.
  8. The petitioner, in opposing the application, submits that the discretion should not be exercised in favour of the second respondent because the witness is not available for cross examination. However, it is nevertheless submitted that the Court has discretion. Moreover, because the witness is unavailable that is in itself a good reason not to exercise its discretion.
  9. Section 34 of the Evidence Act states as follows:

“34. Evidence by affidavit.


(1) Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a) a particular fact or facts may be proved by affidavit; or

(b) the affidavit of a witness may be read in the proceedings on such conditions as the tribunal thinks reasonable; or

(c) a witness whose attendance ought to be dispensed with be examined by interrogatories or before an examiner named by the tribunal.


(2) Where it appears to the tribunal that a party to, or a person interested in, the proceedings bona fide and reasonably requires the production of a witness for cross-examination and that the witness can be produced, an order shall not be made under Subsection (1) authorizing his evidence to be given by affidavit.

(3) Nothing in an order under Subsection (1) affects the power of the tribunal to refuse to admit evidence tendered in accordance with any such order if, in the interests of justice, the tribunal thinks it proper to do so.”


  1. The cases cited by the second respondent discussed s. 34 (1) of the Evidence Act. The Maraleu (supra) case concerns a criminal trial. The prosecution sought to tender a statement from a witness who had left the jurisdiction and went to work in a country in Africa. That witness was uncontactable although the State had tried its best to contact the witness and have the witness brought back to give evidence in the trial. The Court (per Doherty J) considered the provision and held that there are 3 pre-conditions in which the discretion of the Court is to be exercised. The Court emphasised that the witness must not only be a bona fide but also reasonably required to give evidence. The Court said:

“This is a discretionary power vested in the Court. It is not a discretion which becomes mandatory and obliges the court to admit affidavit evidence on the fulfilment of certain conditions.

However, s. 43(2) is mandatory, once certain findings of facts are made by the tribunal, ie that the party interested is bona fide and reasonably requiring the witness and the witness can be produced. The section fetters the court’s discretion. There are actually three pre-conditions:


1. That the witness is bona fide required.

2. That the witness is reasonably required.

3. That the witness can be produced.”


  1. The Raima(supra) case was also a criminal proceeding. The Court (per Brown J) was faced with a situation where a principal eye witness was present, available, ready and willing to give evidence in the trial of an accused charged with aggravated armed robbery, however, the witness was very apprehensive about the potential threat of violence from the accused’s tribal connections and therefore refused to give evidence in court. The prosecution sought to tender a statement of the witness made during the police investigation which was annexed to an affidavit deposed to by the witness that was used in the committal proceeding.
  2. Although the defence strenuously objected to the admissibility of the statement on the basis that the accused would be denied a right to a fair trial under s. 37(4)(a) of the Constitution to the extent that the accused would be denied the right to cross examine the witness, the Court, nevertheless held that the requirement of s. 158(2) of the Constitution in “dispensing justice” was equally paramount and hence the need to strike a balance. In deciding the issue, his Honour in the final analysis held, amongst other important considerations, that where the statement is “relevant and admissible” it may be admissible in the “interest of justice”.
  3. In State vMisari Warun [1988-89] PNGLR 327, a case which was heavily criticized and not followed by Brown J in Raima (supra), involved the trial of an accused charged with murder in which the charge was denied by the accused. A question arose as to whether an unsworn record of interview and a medical report on a deceased could be tendered by consent into evidence. The trial Judge ruled that the documents could not be tendered by consent except as provided by law and in particular under the provisions of the Criminal Code, s. 589 and the Criminal Practice Rules, Order 4, r. 1. The basic reasoning for the ruling is twofold; firstly an accused person is entitled to the full protection of the law under the Constitution, s. 37(4)(a), and secondly, where a charge is denied by an accused person in a criminal trial, the prosecution must prove each and every element of the offence on the required standard of proof, that is, beyond reasonable doubt.
  4. There are a number of principles that can be drawn from the two cases cited by the second respondent. Firstly, the power of the court is discretionary. As such, the exercise of discretion must be made on proper principles and good grounds. Secondly, the statement must be bona fide and reasonably required. Thirdly, the witness can be produced. Fourthly, the statement must be relevant and admissible and fifthly, it is in the interest of justice to admit the statement.
  5. In this case the witness has died and could not be produced in court. In this regard I accept that the petitioner’s right to cross examine will be prejudiced. However, in applying the principles as discussed, I find the application satisfies all the requisite tests except for the fact that the witness cannot be produced. The affidavit is reasonably required because it relates to a specific allegation or issue in the proceedings. It is a bona fide statement of a witness who appears to have personal knowledge of the facts in issue. On the face of it the affidavit was properly sworn. There is no suggestion of any irregularity or defect in respect to the form of the affidavit. In that regard the affidavit is a statement made under oath and is an admissible statement. It is also relevant to the facts in issue. Given this, I consider that it is in the interest of justice that the affidavit be admitted and read into evidence. However, the affidavit will be given its appropriate weight against other tested evidence before the Court.
  6. With regards to the second issue of the cost of the adjournment on 22 April 2015, the petitioner seeks cost whilst the first and second respondents oppose the application and submit that costs be in the cause.
  7. The facts are that at the conclusion of the trial on 6 February 2015 the following directions were made by the Court for the purpose of filing submissions:
    1. The parties shall file and exchange submissions by Friday, 27 February 2015.
    2. Thereafter the parties shall liaise with my Associate with a view to setting a date for the hearing of oral submissions.
  8. By 27 February 2015 the parties were unable to comply with direction 1 in terms of filing written submissions. Consequently, on application, an order was made on 3 March 2015, by consent of all parties, for the extension of time to 6 March 2015 to file submissions. None of the parties took out the minute of the order. However, it is significant to note that there was no order or direction issued in relation to exchange or service of the submissions. It was a general order simply extending time to file written submissions.
  9. Accordingly, and in pursuance of the extension order all parties had their respective written submissions filed on 6 March 2015.
  10. The hearing of submissions was subsequently fixed before the Court in Goroka on 22 April 2015 at 1.30 pm. The fixture was made after all parties, through their respective lawyers were consulted. I note the period of time from the date when extension was granted to the date fixed for hearing of submissions is a little over 6 weeks.
  11. The court record indicate that all parties were informed by way of facsimile, through their respective lawyers, of the date of hearing of submissions by a letter dated 13 April 2015 from my chamber but under the hand of my Associate.
  12. On 22 April 2015, the hearing was adjourned from Goroka to Waigani on 28 April 2015. The cost of the adjournment was reserved to be argued in Waigani.
  13. The Petitioner filed and relied upon an affidavit sworn on 27 April 2015 by Ms. Christine Copland, a lawyer in the employ of Simpson Lawyers and junior counsel representing the Petitioner in the proceeding. Ms. Copland deposed, amongst others, the following relevant facts.
  14. On 10 April 2015 she received from Paulus M. Dowa Lawyers a letter requesting for a copy of the Petitioner’s written submissions. She responded in a similar manner 3 days later and advised that written submission had been filed on behalf of the Petitioner; however, sealed copies were yet to be retrieved from the court registry. She also advised that once the sealed copies have been received and a date for hearing of submissions confirmed, Paulus M. Dowa Lawyers would be informed accordingly. I note the response was faxed on the same date.
  15. The following day (14 April 2015) Ms. Copland faxed a letter to Paulus M. Dowa Lawyers notifying the law firm of the date and time of the hearing of oral submissions in Goroka.
  16. Ms. Copland further deposed that since writing to Paulus M. Dowa Lawyers on 14 April 2015, her law firm did not receive any correspondence or notice from Paulus M. Dowa Lawyers about the adjournment of the hearing. Similarly, her law firm received no correspondence or notice from Niugini Legal Practice in relation to the adjournment.
  17. She also deposed that the Petitioner had incurred at least K8,313.00 in expenses in terms of return air tickets, accommodation and meals for his court party to attend the hearing in Goroka. These expenses do not include the lawyers’ professional fees.
  18. The first and second respondents have not filed any responding affidavits.
  19. The adjournment was granted by the Court in the interest of fairness. The respondents needed adequate and reasonable time to properly consider a response to the Petitioner’s written submissions. The lawyers for the respondents were aware, by virtue of the consent order of 3 March 2015 that the Petitioner, and indeed the respondents, were given a deadline to file written submissions. The deadline was 6 March 2015. The written submission would be used or relied upon during hearing of oral submissions on 22 April 2015.
  20. The undisputed fact is that there is no expressed order or directions for service or exchange of written submissions by the parties and therefore there is no obligation on any of the parties to serve on other parties a sealed copy of his or its written submissions. The court direction for exchange of written submissions issued on 6 February 2015 lapsed or expired on 27 February 2015. The Election Petition Rules 2002 (EPR) is silent as to the requirement for general service of court documents. Rule 6(1) of the EPR deals only with service of the petition and notice to appear. There is no specific rule relating to service of other court documents. It would appear that the requirement for service of other documents would necessarily be made by way of directions pursuant to the inherent powers vested in the Court.
  21. The requirement for service of a court document is an integral part of the court process and ordinarily there is an implied obligation, in the absence of a specific rule or court order/direction, on parties to conduct their cases fairly and appropriately in the interest of justice. It goes without saying that lawyers must be able to conduct their professional business bona fide and with utmost courtesy to another professional colleague. Indeed, Lawyers Professional Conduct Rules 1989 ensures that fair play and courtesy is extended amongst lawyers. I refer specifically to Rules 20(1) and (2) where it is provided as follows:

“20. PROFESSIONAL COURTESY.


(1) A lawyer shall treat his professional colleagues with the utmost courtesy and fairness.


(2) If a lawyer observes that another lawyer is making or is likely to make a mistake or oversight which may involve the other lawyer’s client in unnecessary expense or delay, he shall not do or say anything to induce or foster that mistake or oversight and shall, except where so doing might prejudice his own client, draw the attention of the other lawyer to that mistake or oversight.


(3) .........................................


(4) .........................................


(5) .........................................”


  1. In this case, all parties were on equal footing. No party was unfairly or unjustly disadvantaged. I say this because each party, either intentionally or otherwise, did not serve a copy of their written submission on other parties. The substantive issues in the trial have been made crystal clear through the statement of agreed and disputed facts and legal issues already filed pursuant to court directions. No party can rightly protest that they have been ambushed in terms of the issues before the court. Neither can there be a valid argument that the facts have not been disclosed. Therefore, all parties attended the court hearing on 22 April 2015 on equal footing.
  2. In my respectful opinion the adjournment was a result of inactions or omissions by lawyers on both sides of the divide. As for the petitioner’s lawyer, the failure to provide a copy of the written submission to the first respondent. A request was made on 10 April 2015 and has never been withdrawn. As for the first respondent, the failure to accord professional courtesy to the petitioner’s lawyer by giving reasonable and sufficient notice of his intention to apply for adjournment for failure to provide a copy of the written submissions. However, the conduct of the respondents’ lawyers appears to be more blameworthy and serious, because if they had given notice to the petitioner’s lawyer, an adjournment would have been averted and thus avoiding unnecessary inconvenience, cost and expenses by all parties.
  3. It is trite that cost is a matter of exercise of discretion by the Court. Generally, the principle is that cost would follow the event. That is a successful party would be entitled to costs. In this case the respondents were successful in obtaining an adjournment and therefore would be entitled to cost. However, an adjournment may also be granted on terms as to cost. In this case I find that the fact that the respondents did not act fairly and in a courteous manner in terms of giving notice to the petitioner I hold them accountable. In the circumstances and in the exercise of the Court’s discretion I award cost of the adjournment to the petitioner to be paid by both respondents in equal amounts on indemnity basis.
  4. I now turn to consider the substantive issues in the trial.

Ground 1 – Appointment of the Returning Officer


  1. Underground 1 of the petition, the petitioner alleges that the Returning Officer for the Kandep Open Electorate, Mr. Naipet Keae, resigned from Office on 27 June 2012 and purportedly appointed Mr. Leo Talipan who performed the functions, duties and responsibilities of the Returning Officer. That Mr. Keae did not perform the duties of the Returning Officer during the elections until 3 July 2012 when he commenced his duties and took charge of the counting of the ballot boxes.
  2. The petitioner claims that the second respondent failed to ensure that a Returning Officer is duly appointed to perform the powers and functions of the office of the Returning Officer as required under the law during the relevant period in respect to the conduct of the elections. The alleged failure is based on ss. 19(1), 118 and 149 of the Organic Law. It is clear from the petition that the allegation by the petitioner is that the conduct of the Kandep Open Electorate election was not conducted by a duly appointed Returning Officer.
  3. The petitioner submits the legal process of appointment of Mr. Talipan as the Returning Officer was not followed and therefore Mr. Talipan had no lawful authority to perform the duties of a Returning Officer and the fact that Mr. Talipan performed the duties between 27 June to 3 July 2012 constituted an error and omission.
  4. The second respondent submits Mr. Talipan was never appointed by the Electoral Commissioner as required by law under s. 19(1) of the Organic Law nor did Mr. Keae’s purported resignation legally effective and therefore at no time during the period 27 June and 3 July 2012 was there a vacancy in the Office of the Returning Officer for Kandep Open Electorate. However, it was submitted if it was determined by the Court that errors and omissions did occur, the errors and omissions did not materially affect the election results to the extent that it is insufficient to warrant the election to be voided.
  5. The first respondent submits based on the evidence of Mr. Keae who said he did not resign despite the pressure borne on him by the petitioner and his group, there was no vacancy in the office of the Returning Officer during the relevant period. A submission similar to the second ground was advanced, in that, if one is to accept that Mr. Keae did tender his resignation, the resignation was not legally effective because the Electoral Commission refused to accept the resignation letter. Therefore, it follows that there is no vacancy in the office of the Returning Officer and Mr. Keae for the purpose of the law was in office and performing his functions, duties and responsibilities as the Returning Officer, hence, no error or omission had occurred. Moreover, it is submitted, and for argument sake, accepting that there was error and omission, such did not affect the outcome of the election because the election proceeded and was concluded well.
  6. Section 19(1) deals specifically with the manner of appointment of a Returning Officer. It also provides for the powers, functions and responsibilities of that office. Section 118 provides for the specific functions and responsibilities of a Returning Officer in relation to polling activities. Section 149 is in general terms and deals briefly with the responsibility of a Returning Officer to conduct scrutiny at the counting centre.
  7. For convenience I reproduce these provisions below:

“19. Returning Officers.


(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.


(2) A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.


(3) A Returning Officer may, following consultations with the Electoral Commission, seek the assistance of such persons, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or in accordance with this Law remain the functions and powers of the Electoral Commission.


(4) Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under Subsection (3).


(5) The Electoral Commission may, on the nomination of a Returning Officer, appoint authorized enrolment agents in a Ward under the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.


(6) Regulations may make further provisions for the duties and responsibilities of authorized enrolment agents appointed under Subsection (5).


(7) A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.”


“118. Returning Officer to make arrangements.


(1) If, on the day of nomination, the proceedings stand adjourned to the commencement of the polling, the Returning Officer shall immediately make all necessary arrangements for taking the poll, and in particular shall—


(a) appoint a presiding officer to preside at each polling place and all necessary assistant presiding officers, poll clerks, and door-keepers; and


(b) provide and furnish proper polling booths and ballot-boxes; and


(c) provide ballot-papers and all necessary certified lists of voters.


(2) The presiding officer shall, on or before the day of polling, determine the whole or the part of the polling place that shall be the polling booth in relation to that polling place.


(3) In an emergency during the polling due to the absence of an assistant presiding officer, poll clerk or door-keeper, or to unforeseen and continued pressure at the polling which cannot be met by the duly appointed electoral officers, the presiding officer may appoint a person to act as assistant presiding officer, poll clerk or door-keeper, and the person so appointed or acting shall be deemed to have duly been appointed if the Returning Officer afterwards ratifies the appointment.”


“149. Officers to conduct scrutiny.


The scrutiny at a counting centre shall be conducted by the Returning Officer or, in the absence of the Returning Officer from that counting centre, by an Assistant Returning Officer.”


  1. In my view, the evidence is clear. Mr. Keae was the duly appointed Returning Officer for the Kandep Open Electorate in the 2012 National General Election. His appointment is not disputed.
  2. His appointment was first made by the Electoral Commission sometime in 2011. According to Mr. Naepet Keae, he was appointed the Returning Officer on 13 March 2011. That appointment was published in the National Gazette on 20 June 2011. The appointment was subsequently revoked pursuant to an instrument dated 20 April 2012 published in the National Gazette No. G165 dated 7 May 2012. Mr. Keae’s appointment was re-instated on 14 May 2012. This was done pursuant to instrument dated 11 May 2012 and published in the National Gazette No. G178 dated 14 May 2012. All these facts are also undisputed.
  3. The Electoral Commission also made an appointment for a Assistant Returning Officer for the Kandep Open Electorate. He was Mr. Joseph Yanga. His appointment was made pursuant to instrument dated 23 April 2012 and published in the National Gazette No. G165 dated 7 May 2012. This fact is also not in dispute.
  4. There is also evidence that the appointment of Mr. Keae was disputed and challenged by the petitioner and others including some candidates contesting for the Kandep Open seat. However, not everyone disputed the appointment. There were other candidates and their supporters who accepted and supported the appointment. According to the petitioner and his group the appointment was a controversial decision by the Electoral Commission. It was controversial because of what they say Mr. Keae’s involvement in previous elections where the results were subsequently overturned by the Court because of manifest irregularities, illegal practices, errors and omissions, etc. Based on the past experience the petitioner and his group strongly believe the 2012 election for the Kandep Open Electorate will be history repeating itself. The petitioner’s group petitioned the Electoral Commission to review the appointment with a view to having another person appointed. They also held public protests and rallies to advocate their displeasure about the appointment. Court actions were also taken to challenge the appointment. All these challenges were unsuccessful. It appears the Electoral Commission was resolute and unwavering on its decision.
  5. As regards the court actions, the first was an application for judicial review filed in the National Court in Wabag, Enga Province in proceedings OS No. 726 of 2011. In that proceeding the petitioner sought to have the decision of the Electoral Commission to appoint Mr. Keae as the Returning Officer reviewed and nullified. The action was subsequently dismissed under Order 12 Rule 40(1) of the National Court Rules for disclosing no reasonable cause of action. The main reason for the dismissal was that the Court did not have the jurisdiction to interfere with the decision of the Electoral Commission in respect to the appointment of Mr. Keae. The petitioner appealed against the decision to the Supreme Court; however, the appeal was discontinued for technical and procedural reasons.
  6. The second court action was by proceeding OS No. 391 of 2012 filed in the National Court at Waigani. In this proceeding, the petitioner asked the Court to invoke its inherent powers under s. 155(4) of the Constitution to restrain Mr. Keae from exercising the powers, functions and responsibilities of a Returning Officer in respect to the scrutiny and counting of ballots cast during the election for the Kandep Open Electorate. The Court refused to grant the relief sought holding that the application was premature as the grounds relied upon are proper grounds for a dispute by way of a petition after the declaration of results under ss. 206 and 207 of the Organic Law.
  7. The polling for the Kandep Open electorate was conducted for only a day; that is, on 29 June 2012. Ballot boxes that contain the cast ballot papers were delivered to Wabag Police Station and stored in containers for safe keeping before the counting.
  8. Lack of positive or favourable responses to the grievances perpetuated general discontentment on the part of the petitioner and his group and this was compounded by the fact that polling under the stewardship of Mr. Keae was imminent. This resulted in desperate measures being exerted on Mr. Keae to step aside. Traditional means of expressing dissatisfaction and disgust were also used against Mr. Keae. There is evidence that a dead dog with a rat stowed away in its stomach was left hanging on the gate to Mr. Keae’s office. This is a traditional method of expressing disgust and anger in the Enga custom.
  9. There is also evidence that between 24 to 29 June 2012 there were protest marches by groups of people in Kandep station. It was a sort of last-ditch effort to either draw attention of the Electoral Commission to do something about the appointment of Mr. Keae or get Mr. Keae to voluntarily resign from the appointment.
  10. The security forces which comprised of the Defence Force soldiers, Police and Correctional Officers were deployed during the elections. They were present on the ground in the Enga Province including Kandep Station since the anticipated commencement of polling on 24 June 2012. However, due to the issues and concerns raised by the disgruntled candidates including the petitioner with regards to the independence, neutrality, impartiality and the integrity of Mr. Keae as the Returning Officer for the Kandep Open Electorate, polling was delayed for few days. One of the major consequences of that is that the security forces were running short of the necessary supplies to sustain their operations in the District. This also forced the security forces to apply pressure on Mr. Keae who succumbed to the demands of the protesters.
  11. As I said the polling was supposed to commence on 24 June 2012 but was delayed because of the ongoing opposition and public protests. It was at the verge of becoming a failed election for the Kandep District. On 27 June 2012 Mr. Keae was confronted in his office in Kandep Station by a senior member of the security forces, Lt. Colonel Tony Aseavu, where threats were exerted on Mr. Keae. He was told to tender his resignation as the Returning Officer for Kandep Open Electorate. As a result, Mr. Keae reluctantly and involuntarily signed the letter of resignation addressed to the Election Manager, Electoral Commission Office, Wabag, Enga Province. That letter was tendered into evidence and marked as an Exhibit. It was prepared by someone and Mr. Keae was coerced by the senior security force officer to sign the letter. The relevant parts of the letter read:

“Subject: Resignation of RO Kandep


I wish to advise that due to people’s pressure I am now tendering my resignation as Returning Officer for Kandep as of 27/6/201. In place, I am appointing Leo Talipan as new Returning Officer for Kandep electorate. Advise same to the Electoral Commissioner.

Naipet Keae (Signed)”


  1. Mr. Keae gave evidence that although he signed the letter under duress he did not actually resign from his duties as the Returning Officer. He was still operating and performing his normal duties and responsibilities as the Returning Officer, but in a secluded office. He delegated some of his functions, duties and responsibilities to Leo Talipan but still calling the shots as it were.
  2. The question is did Mr. Keae resigned from his Office as the Returning Officer? What is the legal effect of his letter of resignation? The appointment to the Office of the Returning Officer is provided by s. 19(1) of the Organic Law. It states:

“19. Returning Officers


(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.”


  1. The appointment is quite significant because it is not ordinary. It is an appointment pursuant to a constitutional provision therefore by virtue of Schedule 1.3(3) of the Constitution, it is a constitutional appointment. There is however, no specific provision under the Organic Law providing for the resignation, vacancy or removal from the Office of Returning Officer. However, assistance can be gained by reference to the provision of Schedule 1.10(4) of the Constitution where it is provided that where a constitutional law confers power to make an appointment, there is corresponding power to remove or suspend the appointee. It states:

“(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.”


And Subsection (5) reads:


“(5) The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.”


  1. This provision had been considered and applied by the Courts in the past: see Ila Geno, Paul Lawton and Florian Mambu v The State [1993] PNGLR 22, Public Services Commission v The State [1994] PNGLR 603 and more recently Commodore Peter Ilau v Sir Michael Somare (2007) N5511. The Courts in these cases have held that where there is a process for appointment and there is no expressed provision for removal of an appointee the same process for appointment should be used to remove the appointee. In the Commodore Ilau case (supra), he was appointed as the Commander of the PNG Defence Force and subsequently removed. The Court found that there were 3 steps involved in the appointment process –

1. Appointment made by the Governor General


  1. The Governor General acts with the advice of the National Executive Council
  2. The National Executive Council advice must be given after consultation with the Public Service Commission
  3. The Court in that case applied the same principle in determining the issue of removal and found that one of the 3 steps was not followed and consequently held that the removal of Commodore Ilau was unlawful.
  4. In the present case, the issue is not about the removal of Mr. Keae from Office, but his resignation as the Returning Officer. The petitioner submits Mr. Keae had resigned and he relies on a decision of the Fair Work Australia tribunal in International Pilots Association v Captain Michael Glynn [2011] FWA 1233 and also a decision of the Federal Court of Australia in Re Rodney Birrel v Australian National Airlines Commission [1984] FCA 378.
  5. In the Captain Michael Glynn (supra) case, Captain Glynn was elected a member of the Committee of Management (CoM) in the Pilots Association. He was to formally take office at the next Annual General Meeting (AGM) of the Association. However, prior to the AGM, Captain Glynn tendered his resignation by email to the Secretary of the Association which was accepted. Captain Glynn was shortly thereafter requested by the Association to provide a signed letter for the purpose of the conduct of a fresh election of a new member to replace him. About 2 days prior to the AGM, Captain Glynn sought to withdraw his resignation. The Association referred the matter to a Delegate of the Fair Work Australia for an opinion as to whether the resignation of Captain Glynn was effective and a vacancy existed for an election to be conducted for a replacement. The opinion was inconclusive. The Association appealed to Fair Works Australia. One of the grounds raised was whether Captain Glynn effectively resigned from his position. Captain Glynn argued that his email amounts to conditional resignation which is depended on a pre-condition which is the happening of the AGM. The Association argued that the email amounted to unconditional resignation and the date of effect constitutes a notice period and not a condition precedent. The Fair Work Australia held that Captain Glynn’s email amounts to a notice of termination because it stated that the resignation would take effect at the conclusion of the AGM which is not a condition precedent on which the effect of resignation was depended. It held that “Resignation is a unilateral act. It is not a legal requirement that resignation be accepted by the other party despite it being a common practice.”The Fair Work Australia relied on a decision of Gray J in the Birrel (supra) case which stated the general legal principle as:

“It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of notice at the last minute. Such a withdrawal, if possible, could lead to an employee being bound by contracts of employment to employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to extricate from his position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.”


  1. And the Court (Gray J) further in explaining the reason or purpose of the requirement to give notice said:

“The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee giving notice to his or her employer has a period of time to in which to seek another job, an employer who receives notice has time to arrange for a substitute employee.”


  1. However, the Court also acknowledged that there are exceptions to the general principle. These exceptions include notice of termination in circumstances where notice is given “involuntarily” or in the “heat of the moment”. In that same case Gray J cited decisions of the Court of Appeal which discussed the general principles and exceptions I earlier referred to. The case of Achal v Electrolux Pty Ltd (1993) 50 1R 236 is authority for “involuntary resignation” as an exception to the general principle whilst the case NGO v Link Printing Pty Ltd (1999) 94 IR 375 stands for “heat of the moment” as an exception to the general rule. However, these cases relate to general employment situations. The present case as I said is no ordinarily employment situation. Therefore, these principles do not have any application to the facts of the case.
  2. In this case, the question of resignation is without doubt involuntary and certainly none of the procedures pertaining to the appointment under s. 19(1) of the Organic Law was implemented to effect Mr. Keae’s removal as the Returning Officer for Kandep Open Electorate. It follows that the purported resignation of Mr. Keae as the Returning Officer was unlawful and have no legal effect.
  3. There is evidence that Mr. Keae continued to perform his powers and functions as the Returning Officer, although remotely, I am nevertheless satisfied that as a matter of law there was no vacancy during the relevant period. I dismiss this ground of the petition.

Ground 2 – Errors in the Progressive Tally for Counts 1 - 6 and 63 - 67


  1. As regards ground 2, the petitioner alleges that the figures for counts 1 – 6 and 63 – 67 were altered which is likely to or did affect the result of the election. The petitioner relied heavily on the discrepancies in figures between the Manual Tally Sheet and then Electronic Tally Sheet.
  2. A copy of the Manual Tally Sheet for Kandep Open was produced and tendered into evidence as Exhibit“P1”. This document shows that counting was held on 03 July 2012 to 12 July 2012 at the Wabag Counting Centre. The original of the document was tendered by the second respondent and marked Exhibit “SR8”.It was produced as a result of a Court Order. Form 66A was used to record the figures of the ballots counted from various polling stations and the number of votes scored by each of the candidates for the Kandep Open Electorate.
  3. The Manual Tally Sheet on the face of it presents clear evidence of alterations made to figures. This is very obvious as from counts 6 onwards.
  4. The petitioner alleges that the first respondent did not score any votes from count 1 – 6 when surprisingly the Manual Tally Sheet recorded a tally of 2,832 votes.
  5. The evidence surrounding this allegation is based on the affidavit and the testimony of Menchie Numi. This witness deposed to an affidavit on 26 February 2013. That affidavit was admitted into evidence and marked Exhibit “P10”. She is employed by Young & Williams Lawyers as a legal assistant. Young & Williams Lawyers were at the relevant time lawyers acting for the petitioner in the proceeding. She stated that she was instructed by the lawyer involved in the case to go through the Electronic Tally Sheet for the Kandep Open to confirm the correctness of the figures from count 1 to count 67. She undertook the exercise and found discrepancies in the Electronic Tally Sheet from count 1 – 6. She says, the first respondent received zero votes from count 1 to count 6, however, surprisingly enough he received a tally of 2, 832 votes at the start of count 7.
  6. I have carefully perused and analysed the electronic tally sheet and noted a number of errors in counts 1 – 6 not only for the first respondent but also for other candidates as well including the petitioner. For example, the Manual Tally Sheet recorded no entry of votes for the petitioner and few other candidates including the first respondent. The other candidates are candidate number 54 (Sam Rau), candidate number 53 (Kandar Misia) and candidate number 51 (Herman Lyamungi Anep). According to the Manual Tally Sheet each of them scored votes from count 1 to 6, but yet the Electronic Tally Sheet failed to record these figures. So, it seems there are general discrepancies appearing from the Electronic Tally Sheet. On a closer examination of the Electronic Tally Sheet it also appears the entry of the figures were done contemporaneously. For instance, the figures for count1 to count 5 were entered on 6 July 2012. The undisputed evidence is that count 1 and count 3 were completed on 3 July 2012. Counts 4 and count 5 were conducted in 4 July 2012 and count 6 to count 13 was conducted on 5 July 2012.
  7. The evidence is that the Electronic Tally Sheet was compiled by an electoral official for the purposes of sending the results of the counts electronically to the Central Tally Room. The officer responsible for entering the figures was not called to explain these discrepancies including procedures used and the times the entries were made. Obviously, the witness (Menchie Numi) relied on these discrepancies to produce incorrect results. In my view, the Electronic Tally Sheet cannot be regarded as the official record and therefore cannot be relied upon. The entries made in the Electronic Tally Sheet are therefore unreliable for the reasons given. In any event Menchie Numi’s evidence is in direct contradiction to the evidence of another of petitioner’s own witness in Herman Peter who gave evidence that he kept a record of the progressive scores from count 1 – 67 and according to his record the progressive total after count 3 showed the petitioner scored 608 votes and the first respondent scored 1325 votes and after count 5 the progressive tally for the petitioner was 689 votes and the first respondent scored 2,462 votes. These are the same figures as shown on the Manual Tally Sheet. This evidence is given by the petitioner’s own witness in his affidavit sworn and filed on 4 October 2012. (Exhibit “P6”, see paragraph 15). The effect of the contradiction further discredits the evidence of Menchie Numi and renders it very unreliable.
  8. As I said I have closely examined the number of entries made on the Manual Tally Sheet in respect to all candidates from count 1 to count 6 against the progressive tally entries and cannot find any serious anomaly or discrepancies in the figures. The allegation against the first respondent that he suddenly collected 2,832 votes after count 6 is unfounded. The votes the first respondent collected as recorded in the Manual Tally Sheet from count 1 to count 6 in fact tallied a figure of 2,832. The entries made in respect to these counts (1 to 6) were clearly and neatly entered for all candidates. No suspect alternations were made. All figures have been checked and re-checked a number of times. For instance, according to the Electronic Tally Sheet, the petitioner also did not collect votes from count 1 to count 6. But at count 7 his progressive tally score was 743. Where did this figure come from? The Manual Tally Sheet provides the answer. He scored 50,200, 358, 123, 58 and 54 from count 1 to count 6 which totalled 743 votes. This is the same for first respondent and other candidates as well.
  9. As regards the allegation that the second respondent made an error in tallying up the correct number of votes and hence relying on incorrect figures in declaring the first respondent duly elected, the petitioner points to two areas in the evidence in support of this allegation. First the discrepancies between the figures recorded in the Electronic Tally Sheet and the Manual Tally sheet. I have already found this assertion to be unsubstantiated. Secondly the general evidence that there were extra ballot papers in the ballot boxes from counts 7 to counts 67 totalling 2,130. The petitioner relies on the same evidence on this issue. He has not clearly and specifically pointed to this evidence. The assertion is too general. I am not satisfied that this allegation is clearly supported by the evidence.
  10. I find no errors or omissions in terms of discrepancies in the entry of correct figures for count 1 to count 6 and count 63 – 67. This ground of the petition is also dismissed.

Ground 3 – Failure to Count 5 Ballot Boxes


  1. Ground 3 of the petition relates to the allegation that the Returning Officer failed to allow for the counting of 5 ballot boxes containing ballot papers cast at 5 polling stations namely Lungutenges No. 1, Kombros No. 1, Kambia No. 1, Maru and Imipiaka. The ballot boxes are alleged to contain a number of ballot papers as follows:

1. Lungutenges No. 1 - 479 ballot papers
2. Kombros No. 1 - 635 ballot papers
3. Kambia No. 1 - 520 ballot papers
4. Maru - 772 ballot papers
5. Imipiaka - 842 ballot papers
Total: 3,248 ballot papers


  1. The Petitioner alleges that the 5 ballot boxes were unlawfully rejected from counting on 13 July 2012.
  2. The petitioner says the ballot papers in these five ballot boxes were not counted but should have been counted. He says these boxes were unlawfully rejected from scrutiny and counting.
  3. The petitioner relies principally on the evidence of Major Adrian Soti, Mathew Lale, Sally Tadabe, James Pore, Jacob Johnley Akai and Sam Mandasi. Major Soti is a senior officer in the Defence Force and was part of the security forces contingent involved in the National General Elections. He was in charge of the security forces during the counting at the Wabag Centre at Wabag Primary School. Sally Tadabe is a senior lawyer with the law firm Niugini Legal Practice engaged by the Electoral Commission during the 2012 National General Election. The other witnesses are scrutineers for various candidates engaged during the counting of the votes at the Counting Centre.
  4. I have considered their evidence. Their evidence is consistent. They say that a number of ballot boxes were set aside by the Returning Officer during the counting for no obvious reasons. The ballot boxes were to be counted at the end of the counting process but before the declaration of the result. Then on last day of counting on 12 July 2012, the Returning Officer adjourned the counting to the following day, which is 13 July 2012, for counting to continue. However, on 13 July 2012 the counting did not continue for unknown reasons. The ballot boxes are from the following polling stations; Lungutenges 1, Kombolos 1, Kambia 1, Maru and Imipiaka. He claims that the Returning Officer, Mr. Naepet Keae, for no apparent reasons and to their surprise made a declaration on that day. They essentially say that no reason was given for abandoning the 5 ballot boxes from the counting or scrutiny process.
  5. The respondents contend that each of the 5 ballot boxes were subject of objections during the counting process and were therefore properly and lawfully rejected from counting by the Returning Officer. The evidence in support of this contention were given by a number of witnesses including Balo Kuringi, James Kunda, Willie Bui, Charles Kon, Collin Koi, Moto Yapis, Top Yokotati, Japhet Yakapo, Sam Begofa, Sakip Marahe, Yapis Kaia Anthony Paul, Mark Wasun, Luiya Napatu and the Returning Officer, Mr. Naepet Keae. The essence of the evidence is that objections were raised by polling officials or scrutineers in relation to each of the 5 ballot boxes on the basis that the polling was either not conducted or that ballot papers were unlawfully tempered with and hence the votes should not be counted. On that basis the Returning Officer was authorised by law to reject the ballot boxes from counting.
  6. The law governing the scrutiny of ballot boxes is s. 153A of the Organic Law and s. 90 of the Regulations. Section 153A of the Organic Law deals with the power of the Returning Officer to exclude a ballot box from scrutiny and s. 90 of the Regulation deals with the procedures for admitting or rejecting a ballot box for scrutiny. For convenience I set out these provisions:

“153A. Excluding ballot-box from scrutiny.


(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:—


(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.


(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.


(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.


(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.


90. Objection to admission of ballot box to scrutiny.


(1) A scrutineer who wishes to object to a ballot-box being admitted to scrutiny shall lodge the objection in writing with their reasons to the Returning Officer or Assistant Returning Officer.


(2) An objection under Subsection (1) is to be made by a scrutineer who was present at the polling place where the ballot box was used for polling.


(3) A candidate who did not have a scrutineer at a polling place where a ballot box is used for polling and who wishes to object to the ballot box from be admitted to scrutiny shall lodge the objection in writing with the Returning Officer or Assistant Returning Officer.


(4) A scrutineer or candidate who lodges an objection under Subsection (1) or (3) shall state in a statutory declaration the facts supporting the objection.


(5) An objection under this section shall be made within three days of the end of polling or within such further period as the Returning Officer or Assistant Returning Officer extends


(6) A Returning Officer or Assistant Returning Officer, upon receipt of an objection under Subsection (1) or (3), shall register the objection and may require the presiding officer, other polling officials or such other person as he considers necessary to comment on or respond to the objection in writing.


(7) The Returning Officer or Assistant Returning Officer is to receive a ballot box the subject of an objection under this section at the scrutiny centre and is to make a decision on the objection as to whether or not the ballot box will be admitted to scrutiny.


(8) A decision of a Returning Officer or Assistant Returning Officer on an objected ballot box made under Subsection (7) shall not be challenged other than by way of petition.


(9) The Electoral Commissioner may require a Returning Officer or Assistant Returning Officer not to make a decision on an objection under this section, until the Electoral Commissioner or other person acting under the Electoral Commissioner’s authority for the purpose reviews the objection.


(10) Where an objection is reviewed under Subsection (9), the Electoral Commissioner may direct a Returning Officer or Assistant Returning Officer to accept or not to accept a ballot box into scrutiny and a Returning Officer or Assistant Returning Officer is to give effect to such direction.


  1. There is no doubt that the evidence relating to the 5 disputed ballot boxes is diametrically opposed.
  2. Mathew Lale is the scrutineer for the petitioner. He gave evidence in relation to what happened on 12 and 13 July 2012. He said on 12 July the counting for Kandep Open resumed at count 58 and ended with count 67 at about 6.00 pm on that day. The counting officials were ready to count ballot boxes for Lungu tenges No. 1, Kombros No. 1 and Kambia No. 1 however, the presiding officers were not present resulting in suspension of the counting to the following day. He said apart from the 3 mentioned ballot boxes 2 other ballot boxes also remained uncounted. These were for Maru and Imipiaka polling places. He said out of the 5 boxes the ballot boxes for Maru and Imipiaka were disputed by the presiding officer on the grounds that the polling officials were threatened and the boxes have been tampered with. He said he heard the Returning Officer, Mr. Naepet Keae announced in the counting room before the suspension of counting that the 5 ballot boxes would be counted the following day, 13 July 2012. He said in the morning on 13 July 2012 he went to the counting centre but could not gain entry into the counting area. He waited outside until about 11.30 am when he was informed by a security personnel that the Returning Officer was about to declare the elected member for Kandep Open. At about 12.15 pm a chopper landed and to his surprise he was thereafter shortly informed by a soldier that the first respondent was declared the member-elect for Kandep Open.
  3. The witness Herman Peter gave general evidence in relation to the purported resignation of Mr. Naepet Keae and the counting process. He is a Primary School Teacher and a scrutineer for a candidate namely Yapat Kowale. He said he kept records of the progressive figures for all the candidates as the counting progressed and he restated these figures for the petitioner and the first respondent in his affidavit evidence. In respect to the specific issue at hand he gave evidence that he was present at the counting room on 12 July 2012 when counting was stopped at 6.00 pm. There were 5 ballot boxes remaining for counting when the counting stopped. These boxes were for Lungutenges No. 1 which contained 479 ballot papers, Kombros No. 1 containing 635 ballot papers, Kambia No. 1 containing 520 ballot papers, Maru containing 772 ballot papers and Imipiaka containing 842 ballot papers.
  4. On the following day, 13 July 2012, he and other scrutineers presented themselves early at the counting centre to continue with the count. They waited for the Returning Officer to turn up at the usual time but he did not appear. Later at about 11. 30 am the Returning Officer was driven into the counting centre. He and other scrutineers were then informed by an Electoral Officer that the Returning Officer was about to declare the first respondent as the winner without counting the 5 remaining boxes. He said after count 67 the total allowable ballot papers was 48,963 with a total number of informal votes, the first respondent’s total votes did not reach the absolute majority, that is, 50% plus 1 or more votes.
  5. The witness James Pore is a policeman stationed in Tari and a security officer during the 2012 National General Elections. He gave evidence that the counting for Kandep Open Electorate was conducted on 3 July to 12 July 2012 and he was present throughout at the counting place. He gave evidence as to what happened at the counting centre on 12 and 13 July 2012. He said when counting was suspended at about 4. 00 pm on 12 July 2012 there were 5 ballot boxes yet to be counted. Two of the boxes had problems. He does not know where the 2 boxes are from but recalls that the 2 presiding officers for these 2 boxes were unable to present the boxes for counting because one was killed and the other was hospitalised. For these reasons the Returning Officer made a decision to defer counting to a later time. He said the Returning Officer, Mr. Naepet Keae, then told everyone present in the counting room that the 5 ballot boxes would be counted the following day, 13 July 2012. On 13 July 2012 he and his team of policemen went to the Police Station and waited for the arrival of the Returning Officer to load the 5 ballot boxes for counting. This was in accordance with the usual security procedure. The Returning Officer arrived about 1½ hour later and he unlocked the container and the 5 boxes were loaded onto a motor vehicle and taken to the counting centre. He and his team of Police Officers provided the security escort. When they arrived at the counting centre there was no counting officials present so they waited. After about half an hour the driver of the motor vehicle loaded with the ballot boxes wanted to drive the boxes back to the Police Station. The police team sternly refused to allow the driver to drive away. A Defence Force Officer also intervened and removed the car keys from the driver. At about 10.45 am he asked Mr. Naepet Keae as to the whereabouts of the counting officials to which he received the response “I don’t know. They are probably frustrated about their outstanding allowances or maybe they are human beings and I cannot control them to come.” About 15 minutes later Mr. Keae said to him and others present “I want to declare Don Polye because the other candidates are way behind and we don’t want to waste time.” It was not long thereafter that a helicopter landed on the school playground and the first responded jumped off. The first respondent was shortly thereafter declared the member-elect for Kandep Open. He and his team then returned the 5 ballot boxes back to the container at the Police Station.
  6. The witness Daniel Alupis from Tingiba village, Kandep District and works as a Community Health Worker. He gave evidence that he was the presiding officer for Kambia No. 1. He was appointed by Mr. Leo Talipan on 27 June 2012 replacing the previous appointment. He conducted polling at Kambia No. 1 on 29 June 2012. The polling team comprised of security personnel (2 police officers and 2 soldiers) and polling officials. They were airlifted by helicopter and dropped off at Kambia No. 1 at about 10.00 am. They were greeted and welcomed by the Councillor. He said polling went well without any incident and ended at about 5.00 pm. He then put a final seal to the ballot box and released the box to the custody of the security personnel whilst waiting for the chopper’s arrival to uplift them back to Kandep Station. However, the chopper did not arrive until the following day when they travelled back. Whilst waiting to be airlifted back and during the night the security personnel provided the security over the ballot box. The village councillor and a youth group also assisted in providing additional security. On arrival at Kandep Station the ballot box was presented to Leo Talipan who registered it and had the box loaded onto a motor vehicle for transportation to Wabag Station for safe keeping and counting. He also travelled to Wabag and waited for counting of the box. On 7 July he went to the counting centre at Wabag Primary School and waited to be called to present the Kambia No. 1 ballot box for counting. He waited with a friend namely John Kepa at the gate. Whilst waiting some people believed to be supporters of the first respondent attacked him and John Kepa with bush knives. He was cut on the left shoulder and was seriously wounded however he managed to escape. He was admitted to hospital and was hospitalised. His companion John Kepa unfortunately met his fate at the hands of the attackers. When Kambia No.1 ballot box was called for counting he was not available to present the box for counting because of his hospitalisation.
  7. The witness Major Adrian Soti is a senior Defence Force Officer. He is based at Moem Barracks in Wewak East Sepik Province and was a member of the security forces engaged during the 2012 National Elections. He has been involved in at two previous General Elections and is familiar with his role and responsibilities and generally the conduct of the elections.
  8. Major Soti gave evidence under a summons. His evidence relates generally to the events that occurred at the counting centre, the non-counting of the 5 ballot boxes and the declaration of the first respondent as the member-elect for Kandep Open.
  9. His evidence in essence is that he was present throughout the counting at the counting centre at Wabag Primary School. There were other security personnel including the Police also present during the courting. He was in charge of the Defence Force contingent at the counting centre. During the counting he ensured that about 2 or 3 defence force soldiers are posted on location at various counting room for each electorate in the Enga Province and he regularly visited the counting rooms everyday to observe. His soldiers, the electoral officials including the Returning Officer and others provide him with necessary information which are then incorporated into his daily reports to his superior.
  10. He said he was not aware of any dispute raised in relation to the 5 ballot boxes. He was present on 12 July 2012 when counting for Kandep Open was suspended and to be continued the following day. He said when counting was suspended the first respondent had yet to reach the absolute majority in the number of votes. According to him the absolute majority figure was 25,000 plus. He says the first respondent progressive tally was only about 23,000 plus. On that basis he was of the belief that counting was to continue on 13 July 2012. However, he was surprised that declaration was made on 13 July 2012. He expressed concern about the news of the impending declaration to the Provincial Police Commander and was told that the issue is a matter for the Electoral Commission. He also expressed similar concern to the lawyer for the Electoral Commission, Ms. Sally Tadabe. According to the witness Ms. Tadabe was also unhappy about the decision relating to the declaration.
  11. The evidence by the second respondent is basically that each of the 5 ballot boxes were disputed and therefore not admitted for counting. The ballot boxes Muru was disputed on 6 July 2012. The boxes for Imipiaka and Kombolos No. 1 polling stations were presented for counting but disputed on 11 July 2012. The other 2 ballot boxes for Lungutenges No. 1 and Kambia No. 1 were presented and disputed on 12 July 2012. The evidence came mainly from the Returning Officer, Mr. Neapet Keae and Willie Bui. There are also some evidence from the other witnesses whose names I have mentioned earlier.
  12. It is apparent from Regulation 90 that the procedure to be observed by the Returning Officer must satisfy the following criteria -
    1. An objection to a ballot box being admitted to scrutiny must be in writing and must state the facts and reasons supporting the objection.
    2. An objection can only be made by a scrutineer or candidate. As regards the scrutineer, he or she must be present at the polling place where the ballot box, the subject of objection, was used.

3. The objection must be in a form of a statutory declaration.


  1. The objection should be made with 3 days from the last day of polling or such other period as allowed by the Returning Officer.
  2. The objection must be registered and relevant polling officials including the Presiding Officer for the polling place and other persons be given the opportunity to comment on the objection.
  3. The Returning Officer or his Assistant should receive the ballot box at the counting or scrutiny centre and he or she must make a decision on the objection.
  4. The Courts have previously considered the requirement of the Regulations, s. 90. In Pila Niningi v Electoral Commission of Papua New Guinea& Another (2013) N5322 the National Court (Injia CJ) observed that the provision is an elaborate and almost exhaustive process which the Returning Office must strictly follow. The Court further held that the procedural requirements are mandatory and the Returning Officer is duty-bound to follow. In Paias Wingti v Kala Rawali& Another(2008) N3286 the National Court (Cannings J) said that where an objection is raised as to whether a ballot box should be admitted to scrutiny the Returning Officer is obliged to document the objection and record his decision making process including his reasons for rejecting the ballot box from scrutiny. It is not difficult to appreciate the reasons why the Court took that view. The Returning Officer is performing a very important constitutional function and is required to act impartially and fairly in the interest of a free, fair and democratic election in terms of discharging his onerous duty and responsibility. He should not conduct himself in a manner that compromises the integrity of the process and his office.
  5. As a matter of fact, Mr. Keae’s impartiality and integrity was already at the very outset under serious question and therefore it was absolutely important that he performs his duty and responsibility not only diligently and objectively but also fairly and transparently.
  6. In this case the Returning Officer, Mr. Naipet Keae, in answer to or by way of explanation as to how he dealt with the objections is essentially these. In respect to the Lungutenges No. 1 ballot box he gave evidence through his affidavit (Exhibit “SR9”) that this box was brought into the counting centre for counting on Thursday 9 July 2012 however the presiding officer disputed the box claiming that the box had been hijacked and the ballot papers were marked by unauthorised persons. The objection was supported by other village leaders. He therefore made a decision to reject the box from counting.
  7. As for Kombolos No. 1 ballot box, the box was rejected from counting on Wednesday 11 July 2012. He gave a similar account in his affidavit evidence. He said the box was brought in for counting however the presiding officer objected to it being counted on the basis that the box was hijacked and the ballot papers were marked by unauthorised persons. He also said the allegation was supported by local communities and councillors. On those basis he rejected the box from counting.
  8. In relation to Kambia No. 1 ballot box he did not clearly say the date when the ballot box was brought in for counting and was rejected. However, it appears this was also on 12 July 2012. His evidence in the affidavit is that the assistant presiding officer claimed the box was also hijacked and unauthorised persons marked the ballot papers. The allegation was supported by a written statutory declaration by a candidate and some community leaders.
  9. With regards to Maru ballot box, Mr. Keae stated that the box was rejected from counting on 6 July 2012 after the presiding officer presented the box and at the same time strongly opposed the counting of ballot papers in the box on the basis that formal procedures were not observed during the casing of the ballot papers. He said the objection was supported by two candidates in the form of statutory declarations. He said based on this solid evidence he rejected the box from counting.
  10. As to the Imipiaka ballot box, the box was rejected from counting on 11 July 2012. The presiding officer when presenting the box for counting also objected strongly to the counting of the ballot papers in the box. He said the objection was also supported by a candidate who provided a statutory declaration.
  11. I have considered the evidence relating to the process and procedure adopted by the Returning Officer in rejecting these ballot boxes. In my view the procedure adopted by the Returning Office did not follow the mandatory legal requirements. The evidence presented by the Returning Officer is very unsatisfactory and unreliable. It is unsatisfactory because his evidence is very general. For instance, he makes general references to polling officials and the complainants. No names and other details have been stated. The written statements and the statutory declarations annexed to his affidavit as documents purporting to support and validate the objections appear to be documents constructed and produced much later after the event and used to simply verify his assertions. The evidence is not credible and reliable and I am not satisfied that these evidences can safely be accepted as reliable evidence especially in circumstances where the evidence presented by the petitioner and his witnesses are compelling.It is clear to me on the evidence that the Returning Officer failed to reduce the objections into writing and record his reasons. Furthermore, all objections by the polling officials were made orally during the scrutiny process and none was made by way of a statutory declaration. The Returning Officer also failed to record his reasons for rejecting the ballot boxes. Moreover, the objections by the polling officials were not only made orally but also made after the expiry of the 3 days prescribed period and the Returning Officer failed to give his reasons why he accepted the objections after the expiry period. There may be basis for rejection, however, the Retuning Officer failed to observe the strict legal procedure in dealing with the objections.
  12. In the end I conclude that the mandatory legal process and procedures were flouted. The consequence is that the second respondent had committed fundamental errors and omission in respect to the refusal in counting of the 5 ballot boxes. I am satisfied on the preponderance of the evidence that the second respondent through the Returning Officer had committed serious errors and omissions in that regard.

Ground 4 – Extra Ballot Papers


  1. With regards to this ground the evidence presented by the petitioner, in my view, is not very clear, strong and convincing. The petitioner relies on what he says are discrepancies in terms of the figures in the Manual Tally Sheet, the Electronic Tally Sheet and the electoral roll for the Kandep Open electorate. He submits that the figures between these electoral documents indicate that there was a total of 2,130 extra ballot papers cast during the election.
  2. For a start the Court had found the Electronic Tally Sheet to be a very unreliable document. Therefore, it cannot be relied upon to assist in determining the correctness and accuracy of the number of extra ballot papers. The only reliable documents are the electoral roll and the Manual Tally Sheet. These documents are in evidence.
  3. The total number of eligible voters on the electoral roll is 53,886. According to the Manual Tally Sheet the total allowable ballot papers is 47,713. There were total of 123 informal ballot papers bringing the grand total to 47,841.
  4. The explanation given by the second respondent is detailed in the affidavit of Mr. Naepet Keae (Exhibit “SR 9”). The relevant paragraphs are 21 – 42. His evidence is basically that the ballot papers were packed by the Electoral Commission officials at the Headquarters and forwarded to Kandep. He was not cross examined on this aspect of his evidence. The number of ballot papers distributed depends on the number of the eligible voters on the common roll. Extra ballot papers, numbering about 5, are included for distribution for each ward to cater for spoilt ballot papers or for the polling officials to also cast their votes. The total number of ballot papers for each ward is then recorded on the pre-count ballot paper distribution sheet.
  5. According to the petition, 42 ballot boxes contained extra ballot papers and these ballot boxes belonged to the polling stations or rest houses which are enumerated in the schedule in paragraph 55. The petitioner relied on the 2 electoral documents to make his case. One of the important electoral documents that is referred in the evidence of Mr. Naepet Keae is the pre-count ballot paper distribution sheet. This is the electoral document that records the official number of ballot papers distributed to each polling station in the Ward.
  6. This document has not been produced in evidence and therefore no verification can be made on the exact number of ballot papers that was issued by the Electoral Commission, hence the extra ballot papers is in my view unconfirmed and speculative. It is true generally the ballot papers should be consistent with the number of registered eligible voters on the common roll. However, it seems that the extra number of ballot papers is constant between 2 and 7. The explanation provided by Mr. Naepet Keae seems logical. The polling team comprised of a number of officers including security personal who maybe eligible voters. The ballot papers may also be spoilt which would require issuing of a replacement. The number of extra ballot issued by the Electoral Commission does not appear to be excessive. However, there are a few ballot boxes which may have extraordinary number of extra ballot papers according to the Manual Tally Sheet. For instance, count number 49 for Kokas No. 2 the total allowable ballot papers was 906. The figures from the Electoral Roll showed the number of registered voters is 694. This is a difference of 212 suggesting that there were extra ballot papers by that number. However, the evidence is that the ballot papers were counted, issued and packed in Port Moresby. If that is the case, it seems there is little or no chance of the number of ballot papers being improperly inflated or increased by such a huge number at the polling stations. There is obviously a void or vacuum in the evidence. The onus is on the petitioner to demonstrate this allegation by appropriate evidence.
  7. The petitioner did not provide any other evidence that directly contradicts the evidence of the second respondent through the Returning Officer, Mr. Naepet Keae. In the circumstances I am not satisfied that the allegation has been sufficiently proven. Consequently, this ground of the petition is dismissed.

Summary


  1. In summary the petitioner has succeeded in proving only one of the four grounds in the petition. The ground proven relates to the five ballot boxes which were rejected from scrutiny and counting. This is ground number 3 in the petition.

What is the appropriate relief in the circumstances?


  1. The petition seeks a number of reliefs including a recount. The powers of the Court are specifically provided under s. 212 of the Organic Law. I have considered this provision. The relief that is appropriate in the circumstances and consistent with the finding of the Court, in my view, would in general be in terms of paragraph 61(v)(b) and (c) of the petition. As to the question of cost in the proceeding, I consider that the petitioner is entitled to his cost only to the extent of his success.

Orders


  1. The orders of the Court will therefore be as follows:
    1. The declaration of the election of the first respondent made on 13 July 2012 is set aside.
    2. The second respondent shall forthwith count the five ballot boxes for the respective polling places namely Lungutenges No. 1, Kombros No. 1, Kambia No. 1, Maru and Imipiaka. The counting shall be undertaken and completed within 30 days as from todayin accordance with the law.
    3. The candidate scoring the absolute majority after the completion of the counting shall be declared duly elected by the Returning Officer as member-elect for Kandep OpenElectorate.
    4. The K5,000.00 security deposit shall be refunded forthwith to the petitioner.
    5. The petitioner shall be entitled to one fourth of the cost in the petition which shall be paid by the second respondent on party-party basis to be taxed, if not agreed.
    6. The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.

___________________________________________________________
Simpson Lawyers: Lawyers for the Petitioner
Paulus M. Dowa Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent


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