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Pini v Nukunji [2018] PGNC 243; N7342 (28 May 2018)

N7342

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 60 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURN FOR THE DEI OPEN ELECTORATE

BETWEEN
JAMES PINI
Petitioner

AND
WESLEY NUKUNDI NUKUNJI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Mt. Hagen & Waigani: Makail, J

2018: 21^st, 22^nd, 26^th & 28^thMay

ELECTION PETITION – Trial – Allegations of errors or omissions at counting – Failure to admit six ballot-boxes to scrutiny – Reasons for refusal – Lack of polling – Marking of ballot-papers by community leaders – Proof of – Conflicting accounts – Credibility of witnesses’ account – Whether discretion properly exercised by Returning Officer – Whether error or omission by Returning Officer established – Organic Law on National and Local-level Government Elections – Sections 153A &218

Cases cited:

James Pini v. Wesley Nukundi Nukunji & Electoral Commission (2017) N7243
Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2015) N6050

Counsel:

Mr. C. Mende, for the Petitioner
Mr. P. Mawa, with Ms. N. Mawa, for the First Respondent
Mr. T. Topo, with Mr. L Okil, for the Second Respondent

JUDGMENT

28^thMay, 2018
1. MAKAIL, J: This election petition for the Dei Open electorate of the Western Highlands Province was on, 8^th May 2018, found to be competent and allowed to proceed to trial on the ground that the Returning Officer erred in refusing to admit six ballot-boxes to scrutiny at counting. If they had been admitted, it was alleged, the result would have been affected. This finding was based on the further finding by the Court that Section 153A(4) of the Organic Law on National and Local-level Government Elections (“Organic Law”) conferred jurisdiction on the Court to “review” the exercise of discretion by the Returning Officer and a “review” is independent of a claim based on breach of procedure for objection under Section 153A: see James Pini v. Wesley Nukundi Nukunji & Electoral Commission (2017) N7243.

2. Section 153A of the Organic Law provides for this “review” and states:

“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.” (Emphasis added).

3. Thus, it will be a hearing de novo to determine whether the decision of the Returning Officer was valid. The Returning Officer Mr. Batamai Tipi refused to admit the ballot-boxes to scrutiny because he formed a view on the evidence before him that no polling took place and a fight occurred at the polling locations.

Disputed Ballot-Boxes

4. The allegation is that, the six ballot-boxes comprised of two from Ruti polling location, two from Kondopina 1 polling location and two from Kondopina 2 polling location. Mr. Tipi refused to admit them to scrutiny because there was no polling at Ruti and ballot-papers were marked elsewhere and in the case of Kondopina 1 and 2, there was a fight and people fled and ballot-papers were marked by someone else. The presiding officer of each polling location denied the allegations of lack of polling and fight. Each claimed that polling was conducted peacefully and freely.

5. As this is a hearing de novo,the Court will look at the evidence afresh to determine whether polling took place and a fight occurred at one of the polling locations. Eyewitness account at each polling location is material and crucial in this regard and the onus of proof is on the petitioner to prove these allegations. Further, evidence at counting at Kimininga Police Barracks consistent with the eyewitness account at poling will either corroborate the petitioner’s assertion of polling or respondents’ claim of lack of polling.

Ruti Polling Location

6. For Ruti polling location the eyewitness account about the peaceful and free polling came from Robert Kewa and Amos Poiya. For the defence, the eyewitness account came from Policewoman Mary Gele and Philip Kond.

Kondopina 1 and 2 Polling Locations

7. For Kondopina 1 and 2 polling locations the eyewitness account about the peaceful and free polling came from Yer Bom, Danny Luther and Wilson Kupo. For the defence, the eyewitness account came from Policewoman Bathseba Bulingu and Pati Das.

8. Police officer Samuel Gwasamun who was summoned by the petitioner to gave evidence said that he and his Task Force Unit escorted the ballot-boxes from Kitip Secondary School to Ruti for delivery around 11.30 am and 12 noon. He left before polling started. He returned midway during polling and then left. When he next returned, polling had ended. It was late in the afternoon. As he was not present right through-out polling, his eyewitness account of the events that occurred at Ruti is of no assistance. But Mrs. Gele has denied his assertion that he provided his mobile number to her to call him if she needed any back-up assistance.

9. In his affidavit (exhibit “D5”), the field commander for the security operations in the electorate, Chief Inspector of Police Mathew Makure gave a vague account of travelling the “various polling places” checking on how polling was conducted. However, he missed saying that he was present right through-out the polling at Ruti and Kondopina 1 and 2. For this reason, his evidence is of no assistance. But as the field commander it is relevant in relation to the shortage of manpower and assignment of two police personnel to provide security at Ruti and Kondopina 1 and 2 polling locations respectively.

10. At paragraph 4 of his affidavit (exhibit “P1”), Robert Kewa vaguely referred to people voting at Ruti. As for himself, he did not say if he had voted. He did not say if he was given two ballot-papers; one for the Provincial electorate and the other for the Open electorate and by whom. He did not say if he went to the polling booth with the papers, marked each of them with candidates in order of preference from number one to number three and placed in each ballot-box. This is important because he was expected to cast votes for two electorates. The first one was for the Provincial electorate and the second for the Open electorate. A vague reference to voting is insufficient and unconvincing.

11. Secondly, he did not name others who were present and cast their votes. It is important to state that because polling was held in the village where family members and relatives reside and those of voting age would be expected to attend and cast their votes. A failure to give this sort of detailed evidence would refute the assertion by the defence that no polling occurred and ballot-papers were marked elsewhere by someone.

12. In addition, there is no corroboration for the petitioner would have a strong case if he had called persons who had voted to explain how he or she voted. For there is an established procedure for polling which included identification of a person by the polling officer whose name appeared on the Common Roll and once it has been established, the presentation of one ballot-paper for the Open electorate and the other for the Provincial electorate to the voter. Next, the voter must mark each ballot-paper in order of preference of candidates from one to three and place it in the appropriate ballot-box. This evidence is crucial to establish the allegation that polling took place. The petitioner failed to call this evidence.

13. Thirdly, Mr. Kewa did not say if Reverend Samuel Wani prayed and after that, community leaders gave speeches before polling commenced. It was when he was challenged by counsel for the first respondent that he admitted that Reverend Samuel Wani prayed and Councillor Wapi gave a speech before polling commenced. He was quick to deny a further suggestion that there were other community leaders who spoke, like John Moka. Further, he denied the suggestion that the petitioner was present at the start of polling but admitted that the petitioner and another candidate James Pok Kraip arrived in a vehicle during the polling and then left.

14. While witnesses’account of events may vary from one witness to another, in this case, Mr. Kewa’s failure to mention these events in his evidence in chief is significant because if Mrs. Gele was one of the police officers who was present at the polling location and witnessed these events, it would not be unreasonable to expect Mr. Kewa to mention them. The failure to mention them and later disclose them when challenged in cross-examination leaves open the inference that it was a deliberate decision by the witness to omit them so as to avoid a possible admission that the speech led to the polling being compromised.

15. For, there may be some truth in the invitation by the defence to find that polling was compromised. This conclusion can be drawn from the evidence of Mrs. Gele who deposed at paragraph 11 of her affidavit (exhibit “D1”) that there was a councillor who spoke in the local dialect which she did not understand. After the speech, the presiding officer came to her and her colleague police officer and told them that they wanted to “mark all 1^st votes for their candidate Mr. James Pini”. She took no position on this suggestion and left it to the presiding officer to make the call.

16. What was more important to Mr. Kewa was the presence of Mr. Tipi and what Mr. Tipi uttered when he arrived at polling. At paragraph 5 of his affidavit (exhibit “P1”), Mr. Kewa deposed that when they were ready to load the ballot-boxes onto the bus, Mr. Tipi arrived and told the crowd that he was happy with the “smooth conduct of election”.The inconsistency is that, because he said that Mr. Tipi arrived after polling had ended, Mr. Tipi could not have seen what had happened at the start and during polling. This aspect of Mr. Kewa’s evidence is unconvincing and discounted. Even if Mr. Tipi had uttered the alleged words, he may have been misled to believe that polling was not compromised because he arrived after polling had ended and did not see what had happened at the start and during polling. In any case, at paragraph 12 of his affidavit (exhibit “D8”) Mr. Tipi has refuted this assertion and denied uttering the alleged words.

17. Mr. Amos Poiya was one of the witnesses summoned to give evidence. As a general rule, the same considerations for assessing credibility and reliability of a witness’s evidence apply to a witness who is summoned unless, declared hostile. They will be applied to this witness and others who were also summoned to give evidence. Mr. Poiya was the presiding officer for Ruti 2 Polling location. He mentioned Reverend Samuel Wani praying and a councillor giving a speech in relation to how election was to be conducted. He vaguely talked about the process of polling, polling officials who assisted him and named some of them like Tepra Rokra and Steven Pake.

18. He mentioned two police personnel providing security at the polling location and that there were two polling stations set up not so far apart. He denied the suggestion that he was the author of a written statement dated 10^th July 2017 because his level of education of Grade 6 did not match the level of English language used in the statement. That document may be found at annexure “A” to the affidavit of Mr. Tipi (exhibit “D8”). Based on the statement, it was claimed that no polling occurred at Ruti and ballot-papers were marked elsewhere. But comparing the statement and the Statutory Declaration form (exhibit “P4”) which he said he wrote, the kind of English language used in both documents appeared to be the same.

19. When he was challenged by counsel for the first respondent if he had two types of signatures, he denied. Yet when shown a signature which appeared on page 44 of an Election Journal for Presiding Officer for Ruti (exhibit “P5”), he conceded that he had two types of signatures; the first one appeared at page 45 of the Election Journal (exhibit “P5”) and the second one on the Statutory Declaration Form (exhibit “P4”). The second type of signature also appeared at page 2 of an undated letter he wrote to Mr. Tipi (exhibit “P3”) where he denied making the statement of 10^th July 2017. Significantly, he did not say that his signature on the statement was forged.

20. The admission to having two types of signatures appearing on the mentioned documents put a big dent in the petitioner’s case. The conflicting response threw into doubt the veracity of the Election Journal (exhibit “P5”) which Mr. Poiya said was prepared by him after polling had ended and also his evidence that he was not the author of the statement dated 10^th July 2017.

21. It has been held that an election journal is a contemporaneous note by a presiding officer: Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2015) N6050. If the purpose of an election journal is a record of events at polling or report of polling by a presiding officer to a Returning Officer, then in this case, exhibit “P5” must be found wanting because it was not completed or filled in many parts by Mr. Poiya. Significantly, page 30 was left blank or incomplete. This is the part for recording of “Scrutineer Objection”. Mr. Poiya said no scrutineer came forward to sign it.

22. A further significant omission may be found at page 34 which is the part on “Polling Team Incident Report”. It was left blank or incomplete. Mr. Poiya said that there was no need to complete it because there was no incident which warranted it being recorded. Mr. Kewa’s statement is incorrect. The report is drafted in such a way that it must be completed even if there may have been no incidents at polling to be reported.

23. He had more than enough time since the end of polling on 7^th July 2017 and commencement of counting on 15^th July 2017 to complete the report and his explanation that he had insufficient time or ran out of time to complete the report is self-serving and unconvincing.

24. These discrepancies or inconsistencies are not minor but significant. They cast doubt in relation to the credibility of Mr. Poiya’s claim that polling went well at Ruti. Where a contemporaneous note of a presiding officer is incomplete in many material respects, it is not difficult to see why the defence has questioned its veracity.

25. A further discrepancy in his evidence was that, as a presiding officer, he was required to verify the ballot-boxes before admission to scrutiny at the counting centre. It was required of him then to be present at the counting centre to ensure that it is done. His counter-parts from Kondopina 1 and 2, Mr. Luther and Mr. Kupo admitted that they were present at the counting centre. If a presiding officer is required to be present and his counter-parts were present, it defied logic and common sense for him to stay back in the village, as he asserted, when challenged by counsel for the first respondent.

26. It might be added that a witness who struggles to give an accurate account of events will invariably be found out. Mr. Poiya has placed himself in this precarious position. It was quite difficult to say he was a witness of truth. He was so engrossed in defending the position that polling went well despite the eyewitness account by Mrs. Gele to the contrary.

27. According to the Court’s observation of Mrs. Gele, she was an impressive witness. She was confident and responded to the challenge by counsel for the petitioner in a consistent and coherent manner as she recounted the events at polling including the marking of ballot-papers by unidentified community leaders without voters queuing up to cast their votes except in a case of a handful of voters. In her affidavit (exhibit “D1”), she made it clear that a presiding officer approached her and told her to wait and give time to the leaders to hold a meeting. The meeting took about two hours from 1:00 pm to 2:30 pm. After that, the presiding officer approached her and her colleague and told them that they will “mark all 1^stvotes for their candidate Mr. James Pini”.

28. The presiding officer and the leaders “went to a place surrounded by trees, (sic) flowers at the back of the polling place.” She did not see what they did but after two hours, the presiding officer came and told her and her colleague that “they want to close the base vote-meaning sign-off based vote”.Apart from this, she said that the ballot-boxes were not opened and shown to the general public and that the “leaders, candidates and youths all surrounded the Presiding Officer’s table and all stood surrounding them on (sic) two tables, trying to see what really the officials would do”.

29. Significantly, she said that “The ballot papers were filled in for the voters, the voters had no freedom to vote as it was going to afternoon, only a handful selected people walked in and out of the polling place and the Presiding Officer with this assistant were tearing ballot papers which were signed and marked, given to them to put it in the boxes”. Her evidence clearly show that giving a pre-marked ballot-paper to a voter to place in the ballot-box does not right a wrong, the wrong being the pre-marking of the ballot-paper. Such conduct is an illegal.

30. She did not stop the marking of the ballot-papers as they were the only two security personnel providing security and were out-numbered by the crowd. The petitioner’s counsel sought to discredit her evidence by pointing out that as a person providing security on the ground, her inaction inferred that polling went well. It was also her inaction to call for back up assistance from Mr. Gwasamun and the Task Force Unit that gave the impression that polling was conducted peacefully and freely. It was also her failure to report the incident immediately to Mr. Gwasamun and his team when they returned to escort the ballot-boxes to Kitip that gave the further impression that polling was conducted peacefully and freely.Finally, it was her inaction that brought into question the veracity of her subsequent report to Mr. Makure in exhibit “D2” and should be rejected.

31. However, a finding that she and her colleague were out-numbered by the crowd at the polling location and powerless to stop the marking of the ballot-papers is also open. She explained that she did not have Mr. Gwasamun’s mobile phone number to call him for back-up assistance. This is because he did not give one to her. This explanation is open to find.Also there is no evidence that she was armed with a police radio and could have used to call for back-up assistance. If a doubt is to attach to her belated report to Mr. Makure (exhibit “D2”), she has sufficiently explained that it was not an immediate priority at the time until it was, at counting. When requested by her superior, she obliged.

32. Her statement (exhibit D2”) was one of the documents which Mr. Tipi relied on to form the view that polling was compromised at Ruti and excluded the Ruti ballot-boxes from counting. Except for a claim of an attempt to talk her out of giving evidence for the first respondent by persons aligned to or supportersof the petitioner early this year at her home in Minj, the content of the statement is consistent with her evidence before this Court. Her evidence that polling at Ruti was compromised is sufficient and the Court does need to take into account her further evidence of being induced to change her allegiance to the petitioner to find her as a witness of truth.

33. Her response to questions and the explanation about the polling at Ruti proved that she was a witness of truth. Her recollection of the events appeared consistent with the evidence of the second defence witness Mr. Kond. It was observed from the demeanour of this witness that this was a person who had grave concerns about the polling at Ruti. It could be sensed from his body language and facial expression that something was terribly wrong and yet nothing was done to stop it.

34. He is a local from Mala 1, Ward 13 of Kotna LLG and a scrutineer of one of the candidates named James Pok Kraip who saw four ballot-boxes being brought in by polling officials in a convoy of motor vehicles that day. Two ballot-boxes were for the Provincial seat and two for the Open seat. They were taken to the back of the polling compartment, about 20 metres away and the petitioner James Pini followed them.

35. Pre-speeches were made by polling officials and village leaders before voting at 1.00 pm. The petitioner interrupted and suggested that all first preference votes be marked for him, second and third preference votes be marked for other candidates. Other village leaders identified as Mathew Apa, Peter Erima, Mathias Pukarin and John Moka agreed. Peter Perry, one of the presiding officers endorsed the suggestion. However, a minority group of leaders such as Pelem Riung and Dickson Aii disagreed. They were out-numbered and all the first preference votes were marked for the petitioner outside the polling booth. The second and third preferences were brought back to the polling compartment and marked.

36. He was not broken down by counsel for the petitioner in relation to his recollection of how he was able to know the number of votes collected by the petitioner, first respondent, Tui Ekil and James Pok Kraip. And asking vague questions in an attempt to get an admission from this witness without getting to the specifics does not advance the petitioner’s case at all. Yet it was submitted by counsel that Mr. Kond’s recollection of the number of votes of each mentioned candidate is questionable and should be rejected.

37. The evidence remained intact and established that, for the first preference votes, the petitioner scored 1,615, the first respondent scored 100, Tui Ekil scored 50, and James Pok Karip scored 50 votes. Because he was one of those who objected and insisted that not all first preference votes should be given to the petitioner, he was able to secure only 50 votes for his candidate James Pok Kraip. As the saying goes, “If you can’t beat it, join it”. This was what happened here.

38. Notwithstanding Mr. Kewa’s denial of the petitioner being present at the polling area that day, except for a brief appearance with James Pok Kraip and departure, Mr. Kond’s evidence identified and placed the petitioner right at the heart of the controversy. The petitioner supported by community leaders marked ballot-papers for the first preference votes for the petitioner while a handful identified by Mr. Kond were marked for the other candidates including candidate James Pok Kraip. There was no evidence of violence or threat of violence but peace except that the people’s right to express their choice of candidate through the secret ballot was taken away from them by the petitioner and the identified community leaders.

39. It is then not surprising to note at paragraph 12 of Mr. Titpi’s affidavit (exhibit “D8”) that when Mr. Tipi arrived at Ruti, he saw the petitioner at the “voting compartment and after he saw me, he came out and shook hands with me”. After Mr. Tipi received a complaint about lack of polling at Ruti, it reminded him of the time he saw the petitioner in the “voting compartment”and confirmed his preliminary view that polling was compromised.

40. Turning to Kondopina 1 and 2, Yer Bom whose affidavit was tendered as exhibit “P2” also suffers from the same sorts of deficiencies identified in the evidence of Mr. Kewa. He denied the suggestion that people did not vote and 200 ballot-papers were marked for candidate Nekints Tiptip but again, the petitioner failed to call evidence from someone who had voted to corroborate this evidence. As in the Ruti case, the evidence is lacking.A further reason based on the first respondent’s submission is that it is doubtful because the content of his affidavit (exhibit “P2”) is an exact replica of the affidavit of Gigmai Kama which was marked for identification purposes.

41. Instead, the petitioner summoned the presiding officer of Kondopina 1 polling location Mr. Luther to give evidence. It is unclear from his evidence how polling was conducted at Kondopina because he talked very little about the polling. This is because he did not say howit was conducted except to say that he sat with one polling clerk at one of the desks and told people that election was not a new thing and they must follow the procedure for polling. As to the procedure for polling, he did not explain. It is a significant deficiency in evidence because it cannot be assumed that at polling, there is a certain procedure to follow to achieve a successful polling. The lack of evidence goes to support the inference that people did not vote. Another significant aspect of his evidence was that, he observed that there were two security personnel present, one male and one female but he did not say what they did.

42. In addition to the lack of evidence pointed out above, there is doubt in Mr. Luther’s evidence because even the Election Journal for Presiding Officer (exhibit “P6”) suffered from the same deficiencies as exhibit “P5” and Mr. Luther did not explain why it is incomplete. He was more focused on the counting at Kimininga Police Barracks where he accused Mr. Tipi of contradicting himself about counting of the ballot-boxes, in that, at the commencement of counting, he said that he would admit all the ballot-boxes to scrutiny but later, changed his mind and set aside the subject ballot-boxes. It was because someone had claimed that there was a fight at polling at Kondopina and Mr. Tipi decided to exclude the ballot boxes from scrutiny. The decision was against legal advice of a legal officer and his objection as the presiding officer. He said that he told Mr. Tipi that no problem was encountered at polling at Kondopina but Mr. Tipi did not listen to him.

43. The presiding officer for Kondopina 2 polling location Mr. Wilson Kupo was another witness summoned by the petitioner. He tried to improve the petitioner’s case with his eyewitness account that all went well at polling where at its commencement, a Nazarene Church Pastor Peter Degene prayed followed by a short speech by Mr. Kupo. Then the gate-keeper called names of voters, they came in, had their index finger marked and they cast their votes. He said Kondopina had a big population and so polling ended at 5:00 pm.

44. Notwithstanding his explanation that there were no incidents to report on, the Election Journal for Presiding Officer (exhibit “P7”) which he said he had completed is in many material respects, incomplete and suffered from the same deficiencies as exhibit “P5” for Ruti polling location.

45. It is quite startling that he said there were no incidents to report,even though he admitted when challenged by counsel for the first respondent that, Pati Das’ younger brother was shot dead the day after polling. It was a result of Mr. Das’ entry into the polling booth and removal of 200 ballot-papers from him and marking for candidate Nekints Tiptip during polling the previous day. He tried to distance himself from the tribesmen of the petitioner within the polling area that day by asserting that he did not see them.

46. At paragraphs 3 to 5 of her affidavit (exhibit “D3”), policewoman Ms. Bulingu deposed that she was one of the police personnel providing security at polling at Kondopina 1 where the Enga people will vote and in Kondopina 2, his male colleague Peter Konts was based where the Simbu people will cast their votes. The voters at Kondopina 1 agreed that their leaders can mark their ballot-papers on their behalf and sat patiently waiting for their leaders to cast their votes. It was peaceful and polling ended at 6:30 pm.

47. Comparing their evidence, Mr. Kupo’s evidence is quite the opposite to Ms. Bulingu’s evidence. Which one of them is credible and gives an accurate account of what happened at polling? Ms. Bulingu was not challenged by counsel for the petitioner that she had a conflict of interest in the case because she was induced to give evidence for the first respondent. Thus, the submission of counsel for the first respondent that she had no motive to deviate from the truth is upheld.

48. Her evidence is consistent with the evidence of Mr. Das. It was the latter’s evidence that, having arrived at Kondopina from Kinjipi after voting there, he observed that people were locked out of the polling area because polling officials and Walgpe tribesmen were inside the school ground. They took control of the polling area. They were armed with bush knives and were aggressive and refused to allow people in. He climbed over the fence near his uncle’s house and jump into the school ground. His young brother Lucas Das followed him. Their uncle was Wilson Kupo. He observed that polling officials were threaten by the armed men and his uncle Mr. Kupo and polling officials signing and marking ballot-papers. Other men were marking ballot-papers in the classroom.

49. His uncle refused to give him some ballot-papers and he grabbed 4 bundles from him totalling 200 of them. As he was a supporter of Nekints Tiptip and he marked first preference for him, second preference for candidate Tini Ekol and third preference for the petitioner. The Walgpe tribesmen were not happy with him and his brother and assaulted and chased them out of the polling area. The next day, the Walgpe tribesmen attacked him and his people and despite resisting the attack, they were defeated and his brother was killed. The death was due to the interference with the illegal polling the day before by the Walgpe tribesmen.

50. It has not been firmly established by the petitioner that Mr.Das’ account of events is grossly inconsistent with the overall evidence of Ms. Bulingu. On the other hand, it refuted the allegation by the petitioner that no fight occurred at Kondopina polling location. And the evidence of Mr. Luther and Mr. Kupo lacked credibility and unreliable because it is lacking, vague in many material respects and not consistent with logic and common sense.

51. Mr. Jameson Nukundi was the last witness for the petitioner. Except for arriving at Kondopina at the end of polling at about 5:30 pm, his evidence did not establish how polling was not compromised. Even an inference that polling was conducted peacefully based on his assertion that he congratulated the people for conducting a peaceful polling is untenable because he was not present right through-out polling and would not have seen any fight or disturbances at that time, such as Mr. Das’ claim of being assaulted and chased away by the Walgpe tribesmen.

52. Further, it may be, as he asserted, that the channel of communication for lodging a complaint about polling must be him first as the Assistant Returning Officer before referral to the Returning Officer Mr. Tipi and that Mr. Tipi must consult him before making a decision. In this case, Mr. Tipi did neither. But Mr. Tipi’s evidence is preferred over Mr. Nukundi’s evidence because ultimately, it is the Returning Officer who is conferred discretion to make a decision pursuant to Section 153A of the Organic Law.Mr. Tipi’s decision was based on the statements of candidates Nekints Tiptip and Tui Ekil including police woman Ms. Bulingu’s statement which were consistent with the evidence of Mr. Das while Mr. Nukundi’s evidence fell short of giving a complete account of the polling on that day. This is because he was not present at the start to finish of polling.

53. Mr. Tipi based his decision on the information supplied by these witnesses and other persons at the counting centre. Looking at his evidence in more detail, the presiding officers for each polling location objected to the setting aside of the ballot-boxes but he decided to set them aside because he received and referred to the information at annexures “A” to “ H” of his affidavit (exhibit “D8”) including the statements of Mr. Tiptip and Mr. Ekil. He was also transparent in reaching the decision because he consulted the Electoral Commissioner as noted from the letter dated 17^th July 2017 at annexure “F”) of his affidavit (exhibit “D8”). Overall, they are consistent with the evidence of the defence.

Conclusion

54. The petitioner has failed to establish by credible evidence that polling was not compromised and that it was free and fair. It follows that no material error or omission was made by the Returning Officer to exclude the six disputed ballot-boxes from scrutiny, his decision will not be set aside and the petition must be dismissed.

Order

55. The orders are:

1. The petition is dismissed.

2. The petitioner shall pay the costs of the proceeding, to be taxed, if not agreed.

3. The security deposit in the sum of K5,000.00 held by the Registrar shall be paid to the respondents in equal shares forthwith.
________________________________________________________________
Wantok Legal Group: Lawyers for Petitioner
Mawa Lawyers: Lawyers for First Respondent
Kimbu& Associates: Lawyers for Second Respondent