Wararu v Maru [2023] PGNC 168; N10358 (22 June 2023)

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IN THE MATTER OF A DISPUTED RETURN FOR THE
YANGORU SAUSSIA OPEN ELECTORATE

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Shepherd J
2023: 17^thMay, 22^nd June

ELECTION PETITION - Challenge by petitioner to respondents’ Objections to competency – whether failure to cite reference to Rule 12 of Election Petition Rules 2017 as jurisdictional basis for objection is a ground for dismissal of the objection – Rule 12 of Election Petition Rules requires Objection to be in Form 4 – no requirement in Form 4 to cite Rule 12 as jurisdictional basis for Objection – whether filing of Objection outside 14-day time limit stated in Rule 12 of Election Petition Rules 2017 is fatal to validity of Objection – issue of competency of an Objection can be raised at any stage of the proceedings including at trial – Rule 12 of Election Petition Rules is directory not mandatory – petitioner’s challenge to respondents’ Objections refused.

ELECTION PETITION – Objection to competency – petition stating witness’s occupation as “subsistence farmer” – Section 208(d) of Organic Law on National and Local-level Government Elections – term “subsistence farmer” sufficiently descriptive of occupation of witness for purposes of Section 208(d) – objection on this ground rejected.

ELECTION PETITION – Objections to competency – Organic Law on National and Local-level Government Elections, s.208(a) – mandatory requisites of petition – whether petition adequately sets out facts relied on to invalidate election – Organic Law, s.217 – real justice to be observed – whether a ground of a petition should observe distinction between illegal practices under Organic Law, s.215 and errors or omissions of electoral officers under Organic Law, s.218 – the distinction is important for purpose of identifying known grounds for invalidating election – the distinction is also important because penalties and standard of proof differs between “illegal practices” and “errors or omissions” - facts set out in petition must be material facts – material facts include facts to establish the winning margin by reference to total votes cast for winning candidate and runner-up (margin of 50% plus one) – insufficient material facts set out in subject petition to establish foundation to invalidate the election – failure to specifically seek relief by way of re-count of ballot-papers under Organic Law, ss. 208(b) and 212(1)(d) – Objections to competency upheld - petition dismissed.
Cases Cited:

The following cases are cited in the judgment:
Agarobe v Peter (2023) N10141
Aihi v Avei (No. 2) (2003) SC720
Amet v Yama (2010) SC1064
Chan v Apelis [1998] PNGLR 408
Elemi v Sir Ano Pala and Electoral Commission (2023) N10112
Hagahuno v Tuke (2020) SC2018
Kamma v Itanu (No. 2) (2008) N3261
Karani v Silupa [2003] PNGLR 403
Koimanrea v Sumunda (2003) N2421
Kramer v Duban (2012) N4884
Kubak v Trawen (2012) N4992
Manase v Polye (2009) N3718
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1144
Mond v Nape (2003) N2318
More v University of Papua New Guinea [1985] PNGLR 401
Mussau Timber Development Pty Ltd v Mangis [1994] PNGLR 1
National Capital District Commission v Central Provincial Government (2015) SC1429
Olmi v Kuman (2003) N2310
Opi v Telikom PNG Ltd (2020) N8290
Papua New Guinea Banking Corporation v Tole (2002) SC694
Parkop v Juffa and Electoral Commission (2023) N10153
Paki v Motor Vehicles Insurance Limited (2010) SC1015
Pogo v Zurunuoc (2003) N2341
Powi v Kaku (2022) SC2290
Talita v Ipatas (2016) SC1603
Tulapi v Luta [2000] PNGLR 120
Undialu v Potape and Electoral Commission (2020) SC1981
Wararu Waranaka v Maru and Electoral Commission (2018) N7346
Warison v Arore (2015) SC1418
Yama v Yagama (2012) N4928
Zeming v Bomareo and Electoral Commission (2019) N8216

Legislation:
Constitution, s.155(4)
Criminal Code Chapter 262, Division 3 of Part 111, ss.99, 102, 103, 105, 106, 108, 110
Election Petition Rules 2017, Rules 12, 16, 19(1), 22(1), Schedule 2, Forms 1 and 4
Electoral Law (National Election) Regulations 2007, ss.7, 86(1), 87
Organic Law on National and Local-level Government Elections, ss. 129, 138, 152, 153A, 208, 209, 210, 215(1) and (3), 217, 218(1)
National Court Rules, Order 4 Rule 49(5)

Counsel
David Datoana, for the Petitioner
Tony Waisi, for the First Respondent
Warep Pep, for the Second Respondent

(2) Error by second respondent in setting up specific voting compartments for the first respondent in all polling places in Numbo LLG area.

(3) Consumption of alcohol by polling officials at Saussia LLG chambers where ballot boxes were stored.

(b) irregularities, errors and omissions in counting of votes for the electorate;

A respondent who objects to the competency of a petition shall, within 21 days after service of the petition—

(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and

(b) serve a copy of the objection on the petitioner and on each of the other respondents; and

The ....... (state whether first or second or other) respondent OBJECTS to the competency of this petition on the following grounds:

(set out concisely the grounds of the objection in numbered paragraphs, by reference to specific provisions of the Organic Law that it is claimed have not been complied with, eg, sections 206, 208 and/or 209).

......................................................
(Insert number ie first, second or third) respondent
(To be signed by the respondent or the respondent’s lawyer)

“ Clearly, it makes no sense proceeding to trial if the Court sees merit in an objection to competency notwithstanding the objection being raised late. If the objection succeeds, that is the end of the matter and much time and money is saved.”

“ It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds ... It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed... Any prejudice caused to the petitioner can be accommodated by an order for costs.”

22(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

(1) Whether the petition pleads sufficient material facts to invalidate the election for the purposes of s.208(a) of the Organic Law. The respondents contend that the petition has failed to plead sufficiency of material facts to clearly demonstrate how alleged illegal practices and alleged errors and omissions by electoral officials and others could have affected the result of the election within the meaning of s.215(3) and s.218(1) of the Organic Law.

(2) Whether the term “subsistence farmer” sufficiently describes the occupation of the two attesting witnesses to the petition for the purposes of s.208(d) of the Organic Law.

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.

(1) an illegal practice committed by a person other than the candidate where that illegal practice has been committed without the candidate’s knowledge or authority; or

(2) an illegal practice other than bribery or undue influence or attempted bribery or attempted undue influence,

unless the Court is satisfied that the result of the election was likely to be affected.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that candidate should be declared not to be duly elected or that the election should declared void.

(1) Subject to subsection 2, an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

(1) In deciding whether a petition meets the various requirements of s.208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s.217 of the Organic Law on National and Local-level Government Elections.

(2) Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions, especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s. 217 only applies once a petition has been held to comply with the requirements of s.217, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decisions were no longer suitable to the circumstances of the country.

If the petition had properly adhered to Form 1 of the Electoral Petition Rules, the “FACTS” should have been set out in Section B and the “GROUNDS” should have been set out in Section C, not vice versa. However, this is the very sort of technical infringement which the Court is required to disregard by operation of s.217 of the Organic Law, and as recently emphasised by the Supreme Court in Hagahuno v Tuke. I therefore take no judicial issue with the erroneous layout of the content of Sections B and C of the petition.

43. Papua New Guinea adopted the Limited Preferential Voting system (LPV) in 2007 for national and provincial elections. The LPV replaced the previous electoral system, known as First Past the Post. Generally, the LPV system requires a candidate to secure 50% plus (+) 1 of the total allowable ballot-papers during the scrutiny phase. Where no candidate achieves this objective after the preliminary (or first or primary) count, the count proceeds to the elimination process which triggers scrutiny of the second and third preference votes, starting with the candidate with the lowest number of votes whose votes are re-distributed to the others who are still in the race, until the objective of 50% + 1 is achieved, and a candidate is declared the winner.

“Under the previous election system, a candidate who secured the highest number of votes on the first count usually got declared as the winner of an election. This changed under the new limited preferential voting system or LPV in short. That is a system that allows for accounting of every voter’s votes in his ballot paper not once but three times unless they become exhausted. This becomes relevant if no candidate contesting an election secures 50% plus one of the primary votes. With the exception of one or two seats in Parliament, it has been practically impossible for one candidate to master such votes on the count of primary votes. Hence, the LPV system has proven a very useful system with a voter’s second and third preference being counted and ensuring that a candidate who eventually wins becomes a representative of the majority of an Electorate rather than only a part of the Electorate as was the case under the previous system. Given that, every process of elimination until a candidate secures the 50% plus one vote to become the winner is critical and important under the LPV system. Consequently, the distribution of the preferential votes of a candidate that is being eliminated also becomes very important because they add to the tally of the candidates who are still in the race, again excepted for exhausted votes. It follows therefore that, except for the votes that become exhausted, the eliminated candidate’s votes remain useful and do have the potential to affect the eventual outcome of the election.”

“1.6 This decision made by the Presiding Officer and the illegal practice by scrutineers of the First Respondent has caused influence on the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law on National and Local-level Government Elections and in breach of sections 99, 102, 108, 110 of the Criminal Code Act.”

“ To prove the s.215(3) allegation(s), the Petitioner needs to plead as required and satisfy the court according to the required standard the following:

“So, it must be pleaded that the illegal practice or conduct of a supporter, agent or servant [of the petitioner] with his knowledge or authority was likely to affect the election results. It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected.”

“ 28. There is a difference between illegal practices and errors or omissions. An illegal practice is a criminal offence. An error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction: see [52] of the judgment in Philip Kikala v Electoral Commission (2013) SC1275.

29. Earlier in Jamie Maxton-Graham v Electoral Commission & Ors (2013) N5385, David J sounded the warning to petitioners when upholding the first respondent’s submission that one of the paragraphs in the petition did not plead whether the conduct complained of was an illegal act or error or omissions where he said at [93] of the judgment: “It is important to make a distinction because considerations to apply may differ”.

30. Given their difference, a clear statement in the pleadings to identify the conduct that which is said to be an illegal practice and that which is an error or omission is not an option but necessary by virtue of Sections 208(a), 215 and 218 of the Organic Law. As the Supreme Court pointed out at [52] of the judgment in Phillip Kikala case (supra) and we respectfully adopt:

“A petition must make clear whether an illegal practice or error or omission is being alleged, as the test of what has to be proven in order to void the result of the election differs according to which ground is proven (Eoe v Maipakai (2003 N5066). Section 215 of the Organic Law deals with illegal practices, while Section 218 of the Organic Law deals with errors or omissions”.

33. A useful guide to pleading what may constitute an illegal practice and vice versa, error or omission, may be found in the judgment of Sawong J in Mathias Karani v Yawa Silupa (2003) N2385 which we respectfully adopt.

(b) The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidates’ knowledge or authority;

(d) It would be just that the candidate should be declared not duly elected or the election be declared void.

36. We cannot stress enough the importance of the difference between them because one can easily overlap the other in terms of pleadings and proof and can be overwhelming and overbearing on a petitioner, we may suggest. A petitioner may not even realise that he or she may be relying on allegations of illegal practices to prove an error or omission and vice versa. This is why it is so critical to get them right from the start.”

“ The core material facts were not pleaded in relation to each different charge of illegal practice and charges of errors or omissions. The charges are lumped together at paragraphs 26 and 27, supported by conflicting and confusing statements of fact.”

(1) Section 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”. The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that has to be met and would if proven support the relief sought in the petition. Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed.

(2) A ground in a petition will meet those requirements when it identifies the facts said to invalidate the election in terms of the Organic Law. It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on. It will also specify, in terms of the Organic Law, if necessary, how the illegal practices or errors or omissions affected the result of the election and any other matters required by the Organic Law to be proven.

“ There are seven grounds in the election petition. The grounds alleged are errors and omissions by electoral officials that affect the result of the petition.”

“ The decision made by the Presiding Officer and the illegal practice by the scrutineers of the First Respondent influenced the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law and sections 99, 102, 108 and 110 of the Criminal Code.”

(1) the first respondent himself committed any illegal practice in connection with the election (s.215(1) of the Organic Law);

(2) the scrutineers of the first respondent committed any illegal practice with “the knowledge or authority” of the first respondent (s.215(3)(a) of the Organic Law).

“1.5 By removing 1059 votes from the total of 37,714 allowable ballots casted for Yangoru Saussia Open Electorate total allowable ballot casted and counted would have reduced to 36,655 which will eventually affect the absolute majority, therefore invalidates the return, of the First Respondent as member elect for Yangoru Saussia Open.”

(a) that the alleged “illegal practices” were committed by third parties with the knowledge or authority of the first respondent;

(b) whether the petitioner objected to the ballot-box polled by Team 5 being admitted into scrutiny, but if objection was made, then by whom, to whom, when and other material facts relevant to the circumstances of such objection to that ballot-box being admitted into scrutiny;

“ If the petitioner is serious about it, then “facts” that he relies on to overturn that election must go beyond mere statement or assertion that certain things were done by or to electoral officials or by or on behalf of the winning candidate and with his knowledge and consent which affected or were likely to have affected the result. So the pleadings, in order to constitute “facts” within the requirement of s.208(a) of the Organic Law, must state the names of people who were involved, numbers, names of place the incident took place, dates and even time.”

“ It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208(a) and form the foundation for evidence to be led for a relief under s.215(3)(b). This is necessary because without the pleadings, no evidence can be led. After all, the pleadings drive the evidence.”

“ The allegations are too general. They fail to name the electoral official who allegedly committed errors and omissions at polling. This is contrary to s.218 of the Organic Law which requires by implication, naming of alleged electoral office offenders for good reasons that it will inform the opposing party to prepare and respond to the allegation. The necessity to plead the names of the polling officials in this case and what they did or omitted to do is crucial. This is because by operation of law, it is incumbent on public officials to perform their public duties in compliance with set procedures. In this case, any allegation of failure to carry out a public duty in dealings with electoral matters is an error or omission for the purpose of s.218 of the Organic Law.”

“ In the present case, the petition lumped together allegations of illegal practices, errors, omissions and irregularities into one lot of pleadings. This made the petition incoherent, unclear, incomplete and confusing. That formed the foundation for me to find the alleged grounds of errors, omissions, illegal practices and or irregularities offending the law by failing to plead these grounds separately with sufficient particulars and demonstrate how each of the grounds on their own or collectively affected the outcome of the Yangoru Saussia Open Electorate’s election outcome.”

GROUND 2 OF THE PETITION – ERROR SETTING UP SPECIFIC VOTING COMPARTMENTS IN ALL POLLING PLACES IN NUMBO LLG AREA

“The actions by the scrutineers for the First Respondent has amounted to a breach of sections 99, 102, 108, 110 of the Criminal Code Act and section 129 of the Organic Law on National and Local-Level Government Elections.”

2.19 As a result, 976 voters were influenced to vote for the First Respondent. If 976 votes are removed from the total of 37,714 allowable ballots casted for the Yangoru Saussia, the total will be reduced to 36,738 which will also affect the absolute majority and this case the absolute majority would be 18,370.

2.20 The result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open.

2.21 On 07th July 2022, it was the final polling day for team#5 where the team conducted polling in Nungori#1 village Ward#21 of Numbo LLG in which the Second Respondent through its Presiding Officer one Mr Benard Masarun conducted polling after suspension on 05^th July 2022 due to 6 missing ballot books.

2.22 As a result of this, 1366 voters were influenced to vote for the First Respondent, result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open. Because the total allowable ballots will be reduced to 36,348.

2.23 The same error by the Presiding Officers were done in all polling places at Numbo LLG and as a result of this, a total of 3201 voters were influenced to vote for the First Respondent which as a result will affect and invalidate the return of the First Respondent as member elect for Yangoru Saussia Open.

2.24 This decision by the PO has caused influence on the voters to vote for the First Respondent thereby contravening sections 129 and 138 of the Organic Law on National and Local Level Government Elections.

2.25 The above happened throughout polling in the Numbo Local Level Governments, therefore affects a total of 9,905 votes. By removing 9,905 influenced votes from the total of 37,714 allowable ballots casted for Yangoru Saussia Open Electorate total allowable ballot casted and counted would have reduced to 7,809 which will eventually affect the absolute majority and in this case would be 13,905.

2.26 Therefore the above reduced figure invalidates the return of the First Respondent as member elect for Yangoru Saussia Open and shall be declared void pursuant to sections 215 of the Organic Law on National and Local Level Government Elections.

- total number of allowable ballot-papers, the total number of exhausted ballot-papers, after which exclusion, and of which candidate, were distributed.

- the absolute majority of votes (50% +1) which were required by the first respondent to win the election.

- the winning margin and the first respondent’s votes collected in excess of the absolute majority.

- the difference in the number of votes cast for the petitioner and the first respondent.

GROUND 3 OF PETITION - CONSUMPTION OF ALCOHOL BY POLLING OFFICIALS AT SAUSSIA LLG CHAMBERS WHERE BALLOT-BOXES WERE STORED

3.1 On 11.07.22 after polling, ballot boxes were stored at the Sausso [sic] LLG Chambers where polling officials were heavily drunk and doing returns around 9:30 pm which was witnessed by:

3.2 On 12.07.22 between the early hours of 2am to 6am, polling officials were having a drinking spree.

3.3 And from 08:00am to 06:00pm, polling officials with the Assistant Returning Officer Dominic Huaiari were doing returns with the chambers doors wide open including the room where ballot boxes were stored. We can clearly see polling officials carrying polling journals and walking in and out of the room and chamber saying they were doing returns.

3.4 As a result of their unlawful actions, total votes for Sausso [sic] Local-Level Government have been tempered [sic] and affected thereby contravene section 110 of the Criminal Code Act.

(1) A person who places, or is privy to placing, in a ballot-box a ballot-paper what has not been lawfully handed to and marked by an elector is guilty of a crime.

4.1 Update on all returns for all Numbo LLG was not given before, during or after polling by all Presiding Officers including all wards in the 4 LLG of Yangoru Saussia District. This contravenes sections 7 and 86 of Electoral Law (National Elections) Regulations 2007.

4.2 As normal process, all returns must be finalise and balance up to give returns on number of ballot papers casted for all polling teams but this didn’t happen, instead we were rushed to do polling and to continue with counting. Some officials have not completed their journals to put down their returns thus gave an imbalance returns.

4.3 During counting for open seat on Friday 15^th July 2022, our journals were not returned to the Returning Officer and his Assistant Returning Officers and that’s where we clearly identified Mr Philip Wafihie the Presiding Officer for team#3 in the West Yangoru LLG being picked up with his Journals of returns on hand in a tinted white 10 seater Plate# WAF 787 by the First Respondent’s executive officer one Emanuel Huasiwahin at 10p.m. to 11 p.m. on 3 consecutive times.

(ii) proper safekeeping of all electoral documents and other equipment used in the polling; and

(iii) ensuring that ballot-boxes with marked and unused ballot-papers, marked Rolls, returns and other equipment supplied for polling are returned to the Returning Officer.

(1) A presiding officer is to property complete all election forms and documents that he is required to complete and, at the end of polling, return these together with the ballot-box to the Returning Officer.

(1) the facts as presented for Ground 4 fail to clearly identify whether the matters complained of by the petitioner can be categorised as “errors or omissions” of electoral officers for the purposes of s.218(1) of the Organic Law;

(2) Ground 4 is speculative as the facts in its support fail to clearly demonstrate, as required by s.218(1) of the Organic Law, how the conduct of the polling officers complained of by the petitioner affected the result of the election or the return of the first respondent;

(3) it is confusing and does not clearly state the petitioner’s case, making it difficult for the respondents to respond to the allegations and for the Court to appreciate the petitioner’s case for this ground.

(4) it does not properly or adequately set out the material facts necessary to invalidate the election or the return of the first respondent and it therefore does not meet the requirements of s. 208(a) of the Organic Law.

“For instance if the petition is grounded on illegal practices (other than bribery or undue influence) under s.215, the petitioner must plead relevant material facts. Any allegations in a petition alleging illegal practices must plead material facts to show the following:

(b) The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority;

(d) It would be just that the candidate should be declared not duly elected or the election may be declared void.

Failure to plead any material facts supporting any of the elements under s.215 would offend s.208(a) and would there be fatal to the petition.

5.1 Despite the illegal practices by Presiding Officers during polling in the Numbo LLG from 4^th to 11^th July 2022, and despite objections raised by the scrutineers, the 5 ballot boxes for Numbo LLG were authorized by the Returning Officer Francis Kambaka in the absence of scrutineers from the 15 candidates.

5.2 As a result of their unlawful actions, total votes for Sausso Local-Level Government have been tempered and affected thereby contravening to section 110 of the Criminal Code Act.

5.3 The action of the Returning officer Mr. Francis Kambaka contravenes section 152 of the Organic Law on National and Local Level Government Elections.

(1) If a scrutineer objects to a ballot-paper as being informal, the officer conducting the scrutiny shall mark the ballot-paper “Admitted” or “Rejected”, according to his decision to admit or reject the ballot-paper.

(2) Nothing in this section prevents the officer conducting the scrutiny from rejecting a ballot-paper as being informal although it is not objected to.

(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—

(b) the ballot-box was tampered with and the integrity of the ballot-papers within 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 objections to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding 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.

Mr Waisi submits that all of these facts should have been set out in the petition in support of Ground 5 if it was intended that reliance was to be placed by the petitioner on s.153A(2) instead of erroneously referring to s.152 of the Organic Law.

6.1 Counting for the Yangoru Saussia Open Electorate started on Thursday 14.07.22 at around 3:30 pm with both the Regional and Open Seat.

6.2 However, due to reasons unknown, Returning Officer Mr. Francis Kambaka decided to count 4 ballot boxes for 4 LLG at once for the Open ballot boxes and not Regional boxes to balance scores for both Regional and open.

6.3 Error during counting by the Returning Officer together with his Assistant Returning Officer when they fail to apply the counting models and layouts in counting of the ballot boxes (papers) for the Regional and Open simultaneously.

6.4 On the 19^th July 2022, scrutineers and candidates disputed the idea and scrutineers boycotted the counting which left only the First Respondent’s scrutineers and one other scrutineer Clement Wagia for candidate Jeremiah Jerifia who witnessed everything during the counting.

6.5 The decision by the Returning Officer to count ballot papers for Kamatoku disputed ballot boxes (papers) by team#5 have invalidates the return of the First Respondent. Because the influenced ballots of 1059 were objected by the scrutineers of the other 15 candidates during counting.

6.6 It is also evident on the same error done by the Presiding Officer Ambrose Soru during polling for team#1 where he illegally allocated voting compartments for the First Respondent and authorized witness voting in these polling places in Numbo Local Level Government and they are:

6.7 Thus contributed in influencing, tempering and affecting a total of 9905 votes from the First Respondent.

6.8 Consumption of alcohol by polling officials at Sausso LLG chambers where ballot boxes for Sausso LLG were stored and doing of returns in off (early) hours of the morning witnessed by:

6.9 Amounts to error done by the Assistant Returning Officer Dominic Huaiari who unlawfully authorize the balancing of returns and as such the total 11,525 votes of Sausso LLG has been tempered and influenced.

6.10 It is also evident that there were no returns for polling for all wards per LLG for balancing of figures by almost all Presiding Officers in the Numbo LLG including other Local Level Governments as well.

6.11 It was also witnessed by Clemet Wagi that there were no quality checks after the primary count, even the 5 disputed ballot boxes for Numbo LLG were authorized to be counted by the Returning Officer Francis Kambaka in the absence of scrutineers from the 16 candidates and went straight to elimination process.

6.12 During last day of counting on 20.07.22 at around 10am, the error caused by the RO Mr Kambaka and his ARO Sengi Kintaro on instructing the counting officials to place the informal ballot papers with the exhausted ballot papers to be counted during the 14^th exclusion process as witnessed by one Clement Wagia who questioned the RO in the presence of other scrutineers and election observers when also the Presiding Officer for team#8 Mr. Samuel Maisen raised the same issue.

6.13 Since the exhaust ballot papers play a significant role in drawing down the Absolute Majority then technically the total of 10,000 exhaust ballot papers gives a fake figure to draw down the Absolute Majority.

6.14 The Returning Officer Francis Kambaka knowingly and unlawfully instruct his officials to place the informal ballot papers with the exhausted ballot papers.

6.15 Returning Officer and Assistant Returning Officer, both before some scrutineers and election observers when caught apologised for that technique. But as a result of their actions, a total of 37,714 votes were drastically influenced and tempered which gave win for the First Respondent.

6.16 Therefore, content that there have been serious and obvious errors and omissions during the counting of the boxes containing votes of the people of Yangoru Saussia during the counting of the East Yangoru LLG Chambers.

6.17 It is also apparent that the declaration of Mr Richard Maru with the absolute majority of 17,075 was based on figures which did not reflect the inclusion of the 10,000 exhausted ballot papers.

6.18 It is clear that through errors, omissions, undue influence and irregularities by the unlawful conduct of the Electoral Officials, their agents, supporters and Police personals together with the First Respondent, his agents and supporters have miserably invalidated the figures and fraudulently declare the First Respondent as the member elect for 2022 Yangoru Saussia Open Electorate.

(1) Facts relating to the exclusion process referred to in para. 6.12. For example, in respect of which candidate was the 14^th exclusion process conducted? What was the total number of allowable ballot-papers after that exclusion process? What was the total number of exhausted ballot-papers? What was the total number of votes distributed as a result of the exclusion process complained of by the petitioner?

(2) Facts which would clearly demonstrate that number which was the absolute majority of votes (50% +1) required by the first respondent to have won the election.

(3) The winning margin and the votes for the first respondent which were cast in excess of the absolute majority.

(4) The difference in the number of votes between the total of the votes for the petitioner and the total of the votes for the first respondent.

(6) the ballot-box identification credentials and number of ballot-papers in the ballot-boxes, which information should be verifiable from the presiding officers’ journals.

GROUND 7 – DISCREPANCIES DURING COUNTING FOR YANGORU SAUSSIA OPEN ELECTORATE AND REGIONAL COUNT

(a) “Annexure 19A East Sepik Regional Score Sheet from the Electoral Commission Website” (first preference count tally sheet for East Sepik Regional Seat);

(b) “Annexure 19B East Sepik Regional Scrutineer Timothy Kanawi Score Sheet”;

(e) “Annexure 21A Yangoru Saussia Open 14th Elimination and Exclusion Score Sheet” (Yangoru Saussia score sheet/tally as per declaration by Yangoru Saussia returning officer Mr Kambaka).

6. Post-counting period during which the Return of the Writ is made to the EC (indefinite prior to calling of Parliament).

*Para. No.*	*Stage of Electoral Process*	*Alleged Electoral Misconduct*	*Commentary*
1	Pre-nomination	General complaint regarding 2022 National Election	Except for fact that petitioner was nominated as a candidate on 12 May 2022, para. 1 contains irrelevant material.
2-3	Campaign	Allegations that Electoral Commission’s appointment of Returning Officer Mr Kambaka was improper,	No indication whether these allegations, even if proven, relate to any known ground under s.208(a) Organic Law to invalidate the result of the election. Appointment of the Returning Officer (RO) is the prerogative of the Electoral Commission (EC), which is not bound by recommendations made by any person or entity. The allegation that First Respondent’s recommendation to EC that Mr Kambaka be appointed as RO jeopardized the “conduct of a free, fair and safe election” is conjecture. Petitioner must prove that RO Mr Kambaka used his powers arbitrarily to unfairly favour the First Respondent.
4	Campaign	Allegation that during campaign period the first respondent predicted he would win the election by collecting 300 votes from each of the 96 wards in the Electorate.	Irrelevant point. Campaign speeches and a candidate’s own projections of future voting success do not per se constitute any known ground to challenge an election result.
5	Campaign	Petitioner asserts that the 16 candidates who opposed the first respondent in the election all advised their supporters not to give even their 2nd and 3rd preference votes to the first respondent.	Relates to campaign strategy of petitioner and 15 other candidates. Irrelevant except as possible general background to specific allegations of electoral misconduct by EC officials and others. Para. 5 is the first occasion in the petition when the petitioner has actually named the other 15 candidates who were standing in the election against the first respondent. The names of all 17 candidates should have been clearly stated as facts much earlier in the petition (under section B, not erroneously under Section C) as per Form 1 of the Election Petition Rules 2017.
6	Campaign	Allegation that limited time was given for the campaign period when compared to earlier elections in the Electorate.	Irrelevant except as general background to allegations of specific electoral misconduct by EC officials and others. Limited time for a campaign period is not a known ground for invalidation of an election result under s.208(a) Organic Law.
7-8	Counting	Change of gazetted counting venue from Moem Barracks and subsequent transfer of ballot-boxes to new venue at East Yangoru LLG Chambers alleged to be “illegal” or “irregular”.	No indication whether these allegations, if proven, are to be categorised as “illegal practice” under s.215(3) or as “errors” under s.218(1) Organic Law. In practice, the EC can change counting venues at any time for security reasons, but such decision should be authorized in writing by Electoral Commissioner himself notifying candidates and scrutineers of the change.
9-10	Counting	Ballot-boxes opened, sealed and tagged without verification by all candidates and scrutineers.	No indication if these allegations, if proven, are to be categorised as “illegal practice” under s.215(3) or as “errors” under s.218(1) Organic Law. Names of those candidates and scrutineers who were: (a) in attendance; and (b) absent, when ballot-boxes were opened, sealed and tagged by RO not stated. .
11	Polling	Allocation of 3 x extra polling teams and provision of 6 x extra ballot-boxes for Numbo LLG (3 x for Open Seat and 3 x for Regional Seat) said to be “illegal practice”.	Pre-count takes place before the polling period starts. Each ballot-box is allocated for a specific gazetted ward in an LLG. Sometimes a ward can be allocated 2 or 3 boxes at the Pre-count, should the election authorities accept that an exceptional situation in a particular ward warrants it. An exceptional situation includes, but is not limited to, tribal warfare or environmental hazards that may restrict movement of the populace within the ward. When such is the case, all candidates and scrutineers are informed accordingly at the Pre-count of the ballot-boxes. Petitioner has failed to name the particular wards in Numbo LLG which allegedly had 6 extra ballot-boxes allocated to them. These are material facts. In the absence of those material facts, the aggregate of ballot-papers for the Open Seat cannot be balanced against the total number of electors for those unidentified 3 wards. The Court and the respondents cannot reasonably be expected go sifting through the petition looking for these essential facts.
12-13	Polling	1. Allegation that allocation by RO Mr Kambaka of additional 3 x polling teams for Numbo LLG contributed about 6,000 extra ballot-papers and 3 extra polling teams for Numbo LLG was “illegal”. 2. Allegation that failure to follow gazetted polling schedule was “illegal”.	No indication if these allegations, if proven, are to be categorised as “illegal practices” under s.215(3) or “errors” under s.218(1) Organic Law. Petitioner must balance the total elector numbers for the respective wards in Numbo LLG against the aggregate amount of ballot-papers issued. The Pre-count figures for unidentified 3 x wards need to be confirmed against figures stated in Form 66A (the master tally sheet) for the same wards. Only this can confirm that about 6,000 extra ballot-papers were used during polling. The material facts to substantiate these allegations are missing. Para. 13 incorrectly and confusingly refers to polling schedules attached to the petition as “Annexure “B”. The polling schedules are in fact attached and marked “Annexure 19A” and “Annexure 29B”. The barely legible copies of polling schedules in miniscule print incorporated into the matters set out under para. 30 of Ground 7 are in the nature of evidence, not facts.
14	Polling & Counting	1. Use of 2017 Polling Schedule by RO Kambaka alleged to be “illegal practice”. 2. Allegation of further “illegal practice” in that reconciliation of ballot-papers for Open Seat and Regional Seat is difficult and has yet to occur because the counting of ballot-papers for Open Seat and the counting of ballot-papers for the Regional Seat were conducted separately and in isolation from each other.	Petitioner has to show by material facts that the EC did not give ample notice that time constraints was an exceptional circumstance that warranted use of 2017 Polling Schedule. Petitioner has failed to state which wards had ballot-papers counted for Open Seat and which wards had ballot-papers counted for Regional Seat. Reconciliation of these two countings is not possible unless the counting is reconciled at ward level.
15 & 18	Polling & Counting	Allegation of appointment of polling and counting officials said to be biased in favour of the first respondent.	Names of “majority of the polling and counting officials” said to be relatives of CEO of Yangoru Saussia District Development Authority (YSDDA) Mr Jack Yafai and assumed by petitioner to be biased in favour of the first respondent not stated. Although names of “majority of the polling and counting officials” said to be relatives and supporters of the first respondent are stated in para. 18, there are no material facts which could tend to substantiate allegation of bias on the part of those polling and counting officials. The allegation of bias is conjecture on the part of the petitioner.
16-17	Polling & Counting	General allegations of bias and influence by DDA CEO Jacob Yafai and RO Mr Kambaka.	The allegations are in the nature of submissions made without factual foundation. The names of the polling stations/wards where the DDA CEO Mr Yafai is alleged to have influenced electors not stated. What are the alleged facts which would tend to substantiate the means by which YSDDA CEO Mr Yafai and RO Mr Kambaka are said to have influenced particular electors? These allegations are conjecture.
19	Campaign & Polling	Allegations that Police personnel aided and abetted polling officials to poll in favour of first respondent.	No facts to support these allegations. These allegations are conjecture.
20-23	Counting	Alleged “illegal counting omissions and practices” because corresponding Open (District) and Regional (Provincial) ballot-boxes not counted together	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. Best practice for transparency reasons is that corresponding Open (District) and Regional (Provincial) ballot-boxes should be counted together during the preliminary count. The reason for this is because the PO for each ward is required to later verify the serial numbers and tags for the two sets of ballot-boxes which conform to journal notes and figures derived from the preliminary count. It is unclear from the facts alleged in paras. 20-23 whether the protest made by the petitioner’s scrutineers to the counting of Open Seat ballot-papers done in isolation from Regional Seat ballot-papers was made during the preliminary count or during subsequent counts.
24-26	Counting	Allegation of “illegal practice” in that that between 9,000 to 10,000 “live” ballot-papers are said to have been illegally exhausted and removed.	In the LPV, exhausted ballot-papers cannot be further re-distributed to candidates who are still in the running during elimination rounds of the counting process. Live ballot papers cannot be set aside as exhausted if the second and/or third preference votes name a candidate in the race. It would be an illegal practice to exhaust live ballot papers in those circumstances. However, the Petitioner has failed to substantiate by facts how 9,000 to 10,000 “live” ballot- papers were said to be illegally exhausted and removed. If the 14th elimination paved the way for only 5,098 ballot papers to be re-distributed, and assuming that all 5,098 ballot-papers were “live”, where did the remainder of the alleged “live” ballot papers come from to add up to 9,000 or 10,000?
27	Counting	Allegation that declaration by RO Mr Kambaka of first respondent as winning candidate was made without reconciliation of Open (District) Seat and Regional (Provincial) Seat ballot-papers.	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. It is not necessary to reconcile the counts for Open Seat and Regional Seat after the preliminary count is over. The elimination rounds can be separate as there is no need to verify serial numbers and tags anymore.
28	Post-counting	Statement that Electoral Commissioner would not receive the Return of Writ from first respondent on 22 July 2022 as the latter was not the legally authorised person to deliver the Return of Writ.	Irrelevant facts which could not affect the result of the election.
29	Counting	Allegation that journal entry reports not properly done in respect of counting of East Sepik Regional ballot-papers at Moem Barracks.	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. A PO, being the master invigilator during polling of votes at a ward, has a duty to report on the time, place and manner of polling for his ward. Before a ballot-box is opened and the ballot- papers within counted, a PO has to declare a ballot-box valid for counting substantiated by his reports. This is during the preliminary count. If a candidate’s scrutineer wishes to dispute the integrity of a ballot-box, he can make his objection known to the PO if there are good grounds for doing so. If that objection is overruled by a PO, the RO or his delegate can make the final decision, whether to admit the ballot-box for counting or not. No facts alleged as to whether the petitioner’s scrutineers raised any objection with RO Mr Kambaka or pursued any such objection. .
30-31	Counting	Allegation of “Irregular and illegal practice” in that it is said that the counting method used by RO for Yangoru Saussia Regional Seat was improper and that this resulted in a difference of about 10,000 ballot-papers between the totals for Yangoru Saussia Open (District) Seat and East Sepik Regional (Provincial) Seat and which difference could not be reconciled from the respective score sheets for the two Seats.	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. The Petitioner alleges that there was a difference of about 10,000 ballot-papers between the Yangoru Saussia Open Seat and the East Sepik Regional Seat as shown in the electoral counting records which could not be reconciled (the inference being that this adversely affected the result of the election by favouring the first respondent). Material facts needed to prove these allegations should demonstrate that the 10,000 difference was apparent at the conclusion of the preliminary count and before the elimination rounds commenced. No such facts are stated in para. 30 and 31. The allegations are incohesive and are predicated on facts which have not been properly stated.
32	Post-Counting	Statement that Commonwealth Election Observer Group reported on YouTube social media that there was electoral fraud in Yangoru Saussia Open Electorate	Irrelevant fact Social media reportage is often incomplete and biased and is not admissible as evidence of electoral fraud
33-44	Polling & Counting	Multiple matters complained of which are said to be “irregular and illegal”	The various allegations made in paras. 32 to 44 are largely repetitive of earlier allegations made in the petition and are predominantly assumptions and conjecture made without factual foundation.
45	Counting	(1) Signing of Form 66B alleged to be “irregular and illegal”. (2) Allegation that the signature of petitioner’s scrutineer on Form 66B (certification of final elimination of electoral figures) was forged by first respondent’s scrutineer Jethro Jenduo.	No indication if these allegations, if proven, should be categorised as “illegal practice” under s.215(3) or “errors” under s.218(1) Organic Law. They have been lumped together. It is clearly an “illegal practice” to forge the signature of another candidate’s scrutineer’s signature for the purpose of validating Form 66B. However, even if this allegation of forgery could be proven “to the entire satisfaction of the Court”, no factual material is stated, or allegation made, that the first respondent authorised or had knowledge of the alleged forgery as required by s.215(3)(a) of the Organic Law.
46	Post-Counting	Statement that the first respondent’s attempted delivery of return of Writ to Electoral Commissioner on 22 July 2022 was “not proper and illegal”.	This is not an “illegal practice”. Even if proven to be an “error” or irregularity, the refusal of the Electoral Commissioner to accept the return of the Writ by the first respondent was proper, pending the return of the Writ by the RO. Para. 46 is a repetition of the matter complained of by the petitioner in para. 28. It is irrelevant to the result of the election of the first respondent.
47	Counting	Summary of petitioner’s case. Alleged that the 10,000 or more difference in votes between first respondent (17,075), petitioner (8,357) and second runner-up Micha Vines (7,137) affected the result of the election of the first respondent.	The factual foundation for the petitioner’s case that 10,000 or more votes are unaccounted for is lacking. The petitioner has not stated facts which concisely or coherently enable the Court to understand how the difference of approximately 10,000 votes could be calculated. As per the above commentary for para. 26, if the 14th elimination resulted in only 5,098 ballot-papers being redistributed, and assuming that all of those 5,098 ballot-papers were “live”, where did the remainder of the valid ballot-papers come from to add up to 10,000 or more votes?

(1) Following which exclusion, of which candidate and what was the total number of allowable ballot-papers after the exclusion process?

(2) The total number of votes distributed and the total number of exhausted ballot-papers?

(3) Facts which would clearly demonstrate that number which was the absolute majority of votes (50% +1) required by the first respondent to have won the election.

(4) The winning margin and the votes for the first respondent which were cast in excess of the absolute majority.

(5) The difference in the number of votes between the total of the votes for the petitioner and the total of the votes for the first respondent.

I, GEORGE KWAIMANI, SUBSISTENCE FARMER of NINDIPOLE VILLAGE, WARD 17, WEST YANGORU, YANGORU SAUSSIA DISTRICT, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

I, LEO WAFI, SUBSISTENCE FARMER of NIAKOMBI VILLAGE, WARD 7, NUMBO LLG, YANGORU SAUSSIA DISTRICT, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.

210. Proceedings shall not be heard on a petition unless the requirements of sections 209 and 209 are complied with.

“ 18. Section 208(d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. ... The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.

19. Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid.”

“ In the final analysis, as we have already concluded, a “villager” is descriptive of a person who comes from or lives in the village, but in our PNG context it has a much wider meaning; and it includes a person who lives in the village and does all the things a village person in PNG does to make a living. In other words, it is also descriptive of his “occupation” ”

208. A petition shall—
...
(b) specify the relief to which the petitioner claims to be entitled;

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(f) declare that a person who was returned as elected was not duly elected; and

1. A declaration that the said election in the Yangoru Saussia Open Electorate is absolutely void, and or

2. A declaration that the First Respondent who was returned as duly elected member for Yangoru Saussia Open Electorate on the 21^st day of July 2022 is not duly elected.

4. An Order that the Respondents pay the Petitioner’s costs of this Petition.

“ ... an order or finding should not be made if it is not sought in the originating process or in the case of judicial review, in the statement or notice of motion referred to in Order 16 Rule 5 National Court Rules.

We find support for our view in the majority decision in Medaing v Ramu Nico Management (supra). In that case the majority were satisfied that the trial judge fell into error in making declaratory orders that were not sought in the pleading, were not applied for during the trial and in respect of which no notice was given to the parties that it was contemplated that such orders were to be made.”

47. The 10,000 plus difference of the missappropriate votes between the candidates Richard Maru (17,075), Peter Wararu (8,357) and Micha Vines (7,137) can be affected when the court orders recount will change the result of the election between the winner, first and second runner ups.

(1) The respondents’ objections to the competency of the petition are sustained.

(a) the petitioner shall pay the first respondent’s costs of this proceeding on a solicitor-client basis, such costs to be taxed if not agreed;

(b) the petitioner shall pay the second respondent’s costs of this proceeding on a party/party basis as per the costs, fees, expenses and allowances prescribed in Schedule 3 of the Election Petition Rules 2017, such costs, fees, expenses and allowances to be taxed if not agreed.

(4) The Registrar shall forthwith release to the first respondent the petitioner’s security deposit of K5,000 paid by the petitioner to the Registrar pursuant to s.209 of the Organic Law on National and Local-level Government Elections, the security deposit to be applied by the first respondent towards settlement of the costs of this proceeding payable by the petitioner to the first respondent pursuant to term 3(a) of this Order.

(5) The Registrar shall, pursuant to s.221 of the Organic Law on National and Local-level Government Elections, promptly forward to the Clerk of the National Parliament a copy of this Order.

Judgment accordingly
_________________________________________________________________
Dotaona Lawyers: Lawyers or the Petitioner
Waisi Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

National Court of Papua New Guinea

Wararu v Maru [2023] PGNC 168; N10358 (22 June 2023)