N7679

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 02 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL -LEVEL GOVERNMENT ELECTIONS
AND:
AND IN THE MATTER OF AN ELCTION DISPUTE FOR THE GOROKA OPEN ELECTORATE

BETWEEN:
BIRE KIMISOPA
Petitioner

AND:
HENRY TUTUWO AME
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu J
2018: 14 September & 23 November
2019:  07 February

ELECTION PETITION - Petition upheld - Court ordered recount - Result of the recount not favouring the petitioner - Result of the recount disputed by the petitioner - Power of the Court - Court rejecting the result of the recount - Court declining to make a declaration - Validity of the result of the recount - Need for further determination.

ELECTION PETITION - Petition - Court ordered recount - Electoral officials – Errors and omissions - Non-compliance with Court Orders - Not possible to comply with Court orders - Effect thereof.

Cases Cited:
Bire Kimisopa v. Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2018) N7289
Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342
Electoral Commission of Papua New Guinea v. Peter Charles Yama (2014) SC1383
Ephraim Apelis v. Sir Julius Chan (1998) SC573
Michael Kandiu v. Powes Parkop (2013) N5093
Patrick Basa v. Bob Dadae (2013) N4991
The State v. Philip Soni (2008) N3694

Counsel:
J. Kolo, for the Petitioner
T. Sirae, for the First Respondent
J. Ole, for the Second Respondent

7th February, 2019 

1.	GAVARA-NANU J: The first respondent was elected Member for Goroka Open electorate in the 2017, national election with 24,192 votes. The petitioner was the runner up with 22, 232 votes. The election was conducted under the Limited Preferential Voting System (LPVS).

2.	The validity of the first respondent’s election was challenged by the petitioner by a petition filed pursuant to s. 206 of the Organic Law on National and Local-level Government Elections (OLNLGE).

3.	The petition was based on alleged errors and omissions by the electoral officials, which were made pursuant to s. 218 of the OLNLGE. The petition was tried in Goroka in March, 2018. 

4.	On 28 May, 2018, the Court gave its decision in which it found that the electoral officials were guilty of committing errors and omissions, the pivotal one being breach of the mandatory requirements of s. 168 of the OLNLGE. The breach related to the requirement for the electoral officials to first establish an absolute majority from primary votes for the purposes of an elimination of a candidate especially in the last exclusion, which resulted in the first respondent being declared the winner.  The Court found that those errors and omissions affected the winning margin between the first respondent and the petitioner, thus ordered a recount of all the votes casted for all the candidates for the Goroka Open electorate.  See, Bire Kimisopa v. Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (2018) N7289.

5.	In ordering the recount, the Court made following Orders:-

		1.	The Petition is upheld.
		
2.	The 775 ballot papers retrieved from the Eastern Highlands 		Regional electorate ballot boxes and counted for the Goroka		Open electorate candidates are declared informal.		
		3.	Pursuant to s. 212 (1) (d) of the OLNLGE, there shall be a 			recount of votes casted for the Goroka Open electorate in 			the 2017, National General Elections.

4.	The Second Respondent shall conduct the recount of votes from the First (1st) exclusion to Twenty Eighth (28th) exclusion, both manually and electronically, taking into account the 775 informal votes which were retrieved from the Eastern Highlands Regional electorate ballot boxes and counted for the Goroka Open electorate candidates for whom those ballot papers were marked.

5.	The recount of votes shall concern all the ballot-papers casted in favour of candidate Tom Nunue, which were placed in the container (box) marked as Tom Nunue No.1 with inner seal No. 574555 containing 7,944 Primary Votes together with 9,664 exhausted votes contained in containers (boxes) marked Tom Nunue No. 2 with inner seal 296066 (sic.) and Tom Nunue No. 3 without inner seal number.
		
6.	The ballot papers contained in these respective containers 		(boxes) shall be held in custody and control of the Eastern 		Highlands Provincial Police Commander and none other, 		until handed over to the custody and control of the electoral 		officer duly appointed to conduct the recount of votes.
		
7.	The Second Respondent and its officials who should come 		from outside of Goroka shall conduct the recount of votes 		under the supervision of the Registrar or the Deputy or an 		Assistant Registrar of the National Court. 	
		
8.	The Registrar of the National Court shall present the report of the recount duly certified by the Returning Officer appointed specifically for the recount to the National Court in Goroka within seven (7) days after the completion of the recount.

9.	The Second Respondent shall pay the Petitioner and the First Respondent's (sic.) costs of and incidental to this Petition are to (sic.) be taxed, if not agreed.

		10.	The Petitioner shall be entitled to the refund of the security 			deposit of K5,000.00 held at the National Court Trust 				Account.

6.	Before the recount began, trainings were conducted by the Returning Officer (RO) for the electoral officials and the scrutineers in Goroka, on or about 16 July, 2018 especially on the LPVS. The actual recount commenced on 18 July, 2018.

7.	It is not my intention to give a detailed account of how the recount was done.  I consider it sufficient just to highlight the aspects of the recount which I consider are relevant to the issue of whether the result of the recount is valid. 

8.	But before I do that, I consider it necessary at this juncture to comment on a number of preliminary issues raised by the respondents.  They argued that the Court lacked jurisdiction to further determine whether the result of the recount was valid. They argued that the Court’s power is limited to declaring the result of the recount it ordered. A further issue they raised is that it is an abuse of process for the petitioner to seek review of the result of the recount by way of a notice of motion.

9.	When Mr. Kolo, counsel for the petitioner moved the notice of motion I also queried whether I had discretion to review the result of the recount. After carefully considering the submissions by counsel, I have concluded that I do have discretion to review the result of the recount. This conclusion is based on my view that the Court has wide discretion sourced from its inherent powers to review the result of the recount if there are grounds to do so.  I consider that to properly exercise this discretion the Court should have recourse to s. 217 of the OLNLGE and be guided by its terms.  So the Court should be guided by the substantial merits and good conscience of the case, without legal forms or technicalities, or whether the evidence before it accords with the law of evidence or not. 

10. 	To me this approach also accords with basic common sense and logic. So that if there are serious and genuine legal issues raised which may or are likely to affect the validity of the result of the recount, the Court has a duty to review the validity of the result of the recount. This duty is aligned to the duty of the Court to administer and dispense justice. It would be a dangerous precedent if the Court was prevented or refrained from reviewing the result of the recount in which serious legal issues have been raised, including an alleged failure by the electoral officials to comply with the Orders of the Court. This issue is discussed further later in the judgment.

11.	In regard to the issue of whether it is an abuse of process for the petitioner to seek review of the result of the recount by way of a notice of motion, there is no prescribed form or procedure in the OLNLGE the petitioner could have used or followed to raise the issues he has raised in his application. Thus, it is in my view proper for the petitioner to seek review by way of a notice of motion.  I also think the use of a notice of motion is permitted by the terms of s. 217. 

12. 	In any event, there is nothing extraordinary or even improper about the petitioner using the notice of motion to seek relief, given the lack of prescribed procedure by which the relief can be sought. Other laws also provide for a notice of motion as a mode to seek even substantive relief. For example, Order 16 r 5 (1) of the National Court Rules and Order 10 of the Supreme Court Rules, 2012, to seek substantive relief in judicial review cases and to appeal against decisions in such cases. 

13.	The respondents have also argued that the notice of motion is incompetent because it did not plead the grounds upon which relief was sought. But there is no requirement in the National Court Motions (Amendment) Rules, 2005, which is the governing law, that grounds should be pleaded for reliefs sought in a notice of motion. For example, Rule 8 which is pertinent, only requires the jurisdictional basis of the Court to hear an application to be pleaded in a notice of motion. See, Order 4 r. 40 of the National Court Rules regarding the contents that must be pleaded in a notice of motion. See, also Form 11 in the National Court Rules.  The use of a notice of motion to seek relief here relates to procedure. It does not relate to substantive issues such as competency or validity of an election petition. Therefore, these Rules provide relevant guidance to the Court for the purposes of determining whether the notice of motion was a proper and an appropriate procedure for the petitioner to use to seek relief.  As I alluded to earlier, given that the OLNLGE is silent on how such an application can be made, I have a firm view that the notice of motion was the proper procedure for the petitioner to use to seek relief and it is competent. 

14.	I also consider that the Court is generally empowered by s. 185 of the Election Rules, 2002, (as amended) to accept a notice of motion as an appropriate procedure for the petitioner to use to seek review of the result of the recount. See, Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342 and Patrick Basa v. Bob Dadae (2013) N4991. I also consider that the approach I have taken regarding the notice of motion is in harmony with the schemes of ss. 212 (3) and 217 of the OLNLGE. 

15. 	For the foregoing reasons, it is not an abuse of process for the petitioner to seek review of the result of the recount by way of a notice of motion.

16.	Turning now to the substantive issues, I consider that the key issue for the Court to address is the 775 ballot papers which were retrieved from the Eastern Highlands Regional electorate ballot boxes which were distributed and counted for the Goroka Open electorate candidates in the 2017 national election. Those 775 ballot papers were declared informal by the Court.  In making the declaration, the Court essentially ordered the 775 informal ballot papers to be identified and removed so that they were not counted again in the Court ordered recount. See, Bire Kimisopa v. Henry Tutuwo Ame and Electoral Commission of Papua New Guinea (supra). 

17.	However, according to the RO’s evidence, it was “ambiguous, complicated and impossible” for the electoral officials to locate and retrieve the 775 informal ballot papers during the recount.  As a result, the 775 informal ballot papers were never removed from the rest of the ballot papers casted for the Goroka Open candidates, thus they were still counted in the Court ordered recount for the Goroka Open electorate candidates. The undeclared result of the recount which included the 775 informal ballot papers purportedly favoured the first respondent.  This information is contained in the Report furnished to me by the Registrar of the National & Supreme Courts of Papua New Guinea pursuant to the Orders given by the Court.  

18.	The power to declare the winner of the Court ordered recount is vested solely in the Court. Thus, the primary task of the Court now is to decide whether to declare the winner of the recount or exercise other powers conferred on it by s. 212 of the OLNLGE.

19.	The petitioner has filed a large number of affidavits mostly from his scrutineers in support of his application.

20.	The RO has also filed affidavits in which he explains how the recount was done, highlighting also a couple of trainings he conducted for the counting officials and the scrutineers on the LPVS. He has disputed all the claims by the petitioner.
    
21.	The petitioner has sworn an affidavit in which he deposed that he personally asked the Electoral Commission that the RO for the recount be a person from a Province other than the Eastern Highlands.  However, he claims that despite the Electoral Commission verbally granting his request, Mr. Terrence Hetinu who is from the Eastern Highlands Province was appointed RO for the recount.  I do not see any problems with Mr. Hetinu being appointed RO for two reasons.  First, the appointment was consistent with the Orders of the Court, viz; the RO be someone from outside of Goroka and not the Eastern Highlands Province.  Second, it was within the Electoral Commissioner’s power to appoint a person he considered suitable to be the RO.
 
22.	Other issues raised by the petitioner in my view fall into three broad categories. First, the RO being absent for at least a day during the recount, viz; 7 August, 2018. Second, the RO refusing to conduct quality checks on counted ballot papers. Third, failure by the RO to establish an absolute majority first from primary votes in the manner ordered by the Court, especially at the last exclusion thus allegedly resulting in the requirements of s. 168 of the OLNLGE being breached.

23.	It is important to bear in mind that s. 218 of OLNLGE which provides for errors and omissions by the electoral officials as a ground to avoid an election contains a fundamental proviso, which in my opinion constitutes the condition precedent that must be satisfied before an election can be avoided or vitiated. The proviso is that the errors and omissions must have the likely effect of affecting or had affected the result of the election. Errors and omissions not satisfying this proviso would be considered immaterial and would not avoid or vitiate the election.

24.	Having regard to the proviso in s. 218, the claim by the petitioner that the RO was absent for a day during the recount, although substantiated by evidence, in my view does not satisfy the proviso.   In other words, there is no evidence that the absence of the RO had the likely effect of affecting or had affected the result of the recount. 

25.	There is also evidence from the petitioner that at the last exclusion, the counting officials failed to comply with the Court Orders, thus they failed to comply with the requirements of s. 168 of the OLNLGE. The alleged errors and omissions by the electoral officials vary from their failure to establish an absolute majority from primary votes, the second and third preference votes being mixed together thus making it impossible to establish an absolute majority and so on. The RO has refuted all these allegations.

26.	The petitioner also raised an issue regarding 99 ballot papers which he argued should have been counted in his favour but were declared informal by the RO. 

27.	All the claims by the petitioner appear to be corroborated by evidence. However, counting of the 775 informal ballot papers by the electoral officials in the recount in my opinion renders the claims by the petitioner irrelevant or immaterial and insignificant. The evidence adduced by the respondents in defence of the petitioner's claims also suffer the same fate for the same reason. It is not disputed that the electoral officials including the RO could not identify the 775 informal ballot papers, thus those ballot papers were counted again and included in the Court ordered recount, the result of which purportedly favoured the first respondent. Those 775 informal ballot papers remain an integral part of the result of the Court ordered recount. The effect of this is that the electoral officials including the RO have not complied at all with the Court Orders relating to the 775 informal ballot papers.  This is a clear and glaring fundamental error which the electoral officials, in particular the RO have also effectively admitted.  This error has a flow on effect thus having a retrospective effect on the result of the 2017 national election for the Goroka Open electorate which the first respondent won. The 775 informal votes clearly affected the first respondent’s election in the 2017 national election as Member for Goroka Open electorate. In fact the whole election process, including the Court ordered recount for Goroka Open electorate is affected by the 775 informal ballot papers. This was the reason the Court ordered their removal before the Court ordered recount could be done. The electoral officials however failed to comply with the Court Orders.

28.	The end result is that I am not able to declare a winner. Had the Court Orders regarding the 775 informal ballot papers been complied with by the electoral officials and the 775 informal ballot papers excluded from being counted in the Court ordered recount, I can then be able to make an appropriate determination and declare a winner. It is important to note the various ways  in which the 775 informal ballot papers had affected the whole election process, including the result of the Court ordered recount. For example, they among other things, contributed to and had direct effect on the elimination of candidates for Goroka Open electorate throughout the counting process, thus having direct effect on the result of the 2017, national election and the Court ordered recount.

29.	The petitioner has argued that he should be declared winner because the electoral officials have repeated the errors they made in the last exclusion involving him and the first respondent during counting of votes after the 2017 national election. The errors related to the failure to comply with the requirements of s. 168 of the OLNLGE by not establishing an absolute majority first from primary votes before going on to count second and third preferential votes.  The Court found that had s. 168 been complied with, the petitioner would have scored more votes. The petitioner argued that given that the errors have been repeated in the Court ordered recount, he should be declared winner based on the number of votes he scored after the 2017 national election. The petitioner’s argument must fail for the following reasons. He cannot be declared winner on the basis of the number of votes he scored or would have scored after the 2017 national election. The result of the Court ordered recount must be decided on its own merits. This is a long and well established principle of law. See, Michael Kandiu v. Powes Parkop (2013) N5093; The State v. Philip Soni (2008) N3694 and Electoral Commission of Papua New Guinea v. Peter Charles Yama (2014) SC1383. Even if I am wrong on this view, which I do not think I am, if the petitioner was declared winner, that declaration would still be affected by the 775 informal votes. The result would be same if the first respondent is declared winner.     
 
30.	For the foregoing reasons, I reject the result of the Court ordered recount which purportedly favoured the first respondent. Thus I decline to declare the first respondent winner of the recount. 

31.	Consequently, pursuant to s. 212 (1) (f)(h) and (3) of the OLNLGE, I find that the entire election process for Goroka Open electorate has been affected by the 775 informal votes which has a retrospective effect on the result of the 2017, national election.  I therefore declare that the first respondent who was returned as elected for the Goroka Open electorate in the 2017, national election was not duly elected. I further declare the election of the first respondent as Member for Goroka Open electorate in the 2017 national election absolutely void. The effect of these declarations is that there will be a by-election for the Goroka Open electorate. See, Ephraim Apelis v. Sir Julius Chan (1998) SC573.

32.	The order for the by-election for the Goroka Open electorate is as a result of the errors and omissions committed by the electoral officials during the 2017, national election and the Court ordered recount. Thus, I order that the second respondent pay the costs of and incidental to the Court ordered recount for the petitioner and the first respondent, including the costs of and incidental to the Court hearings which were related to the recount, which if not agreed to be taxed. The second respondent will pay its own costs.

33.	The Orders of the Court are as follows:-

	1.	The result of the Court ordered recount which purportedly shows 		the first respondent as the winner is rejected.

	2.	The Court declines to declare the first respondent as the winner of 		the Court ordered recount.

3.	The first respondent who was returned as the Member for the Goroka Open electorate in the 2017, national election was also as a consequence of Orders 1 and 2 above not duly elected.

	4.	The election of the first respondent as Member for Goroka Open 		electorate in the 2017, national election is declared absolutely 			void.

	5.	There will be a by-election for the Goroka Open electorate.

	6.	The result of my ruling is that the Goroka Open electorate will 			have no Member of Parliament as today. It is for this reason that I 		order that the second respondent conduct the by-election for the 		Goroka Open electorate as soon as possible. 

	7.	The second respondent will pay the petitioner and first 				respondent’s costs of and incidental to the Court ordered recount 		and the incidental Court hearings, which if not agreed to be 			taxed.

	8.	The second respondent will pay its own costs.

34.	Orders accordingly.

____________________________________________________________
Kolo & Associates: Lawyers for the Petitioner
Sirae & Co. Lawyers: Lawyers for the First Respondent
Kimbu & Associates Lawyers: Lawyers for the Second Respondent