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Aimo v Wapunai [2025] PGNC 485; N11643 (10 December 2025)

N11643

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EP NO. 25 OF 2022

BETWEEN
TONY WATERUPU AIMO
Petitioner

AND
JOHNSON WAPUNAI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

WEWAK/WAIGANI: POLUME-KIELE J
7, 8, 9, 10 & 13 OCTOBER, 10 DECEMBER 2025

PRACTICE AND PROCEDURE: No Case submission - Nature of no case submission -– To succeed in an application based on no case, it must be shown that there is no substantial evidence to substantiate the allegation – the integrity of the election process is not compromised -relevant considerations

Cases cited
Wingti v Rawali [2008] N3286
Juvire v Oveyara [2008] N3333
Ben Micah v Ling Stucky N1790
Desmond Baira v Kilroy Genia SC579
Benny Diau v Mathew Gubag SC775
John Warison v David Arore (2015) SC1418
Delba Diri v Bill Ninkama [1982] PNGLR 342
Koimanrea v Sumunda (2003) N2421
Hagahuno v Tuke [2020] SC2018
Powi v Kaku [2022] SC2290
Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Peter W'aranaka v Gabriel Dusava (2009) SC980
Ken Fairweather v Jerry Singirok (2013) SC1293
Juvire v Oveyara [2008] SC975
Tomokita v Tomuriesa [2018] N7206
Ambane v Electoral Commission and Tumun (1998) SC565
Reipa v Electoral Commission and Bao (1999) SC606
Maino v Avei [1998] PNGLR 178

Counsel
Mr. Allan Baniyamai for the applicant/first respondent
Mr. Pep for the second respondent
Mr. David Dotaona for the respondent/petitioner

RULING ON NO CASE TO ANSWER

1. POLUME-KIELE J: Trial in this Petition commenced on 7 October 2025 and on 9 October, the Petitioner closed his case.
   
2. The first and second respondents elected to make a “No Case To Answer” submission and the matter was then adjourned to 10 October at 1.30 p.m for counsel, Mr. Baniyamai and Mr. Pep to address the Court on the “No Case”. Mr. Dotaona to respond to the application.
   
3. On 10 October 2025, the court was informed that Mr. Baniyamai was taken ill so the matter was deferred to 13 October 2025.
   
4. On 13 October 2025, the Court sat to hear the application on a “No Case to Answer”” submission moved by Mr. Baniyamai for the first respondent. It is noted that Mr. Pep for the second respondent was late in attending before the Court and did attend and address the Court subsequently. .
   
5. This is my ruling on the “No Case to Answer”. .
   

Brief background:

6. The Petitioner, Mr. Tony Waterupu Aimo being aggrieved by the decision of the Returning Officer, to declare the first respondent, Mr. Johnson Wapunai as the successful candidate for the Ambunti-Drekikir Open Electorate on 29 July 2022 filed this Petition pursuant to s 206 of the Organic Law on National & Local-Level Government Elections (the “Organic Law”
   
7. The facts pleaded in the Petition to invalidate the return of the First Respondent are set out as follows:
   
   • (i) The Petitioner was a candidate for the Ambunti-Drekikir Open Electorate in the National Parliament. The First Respondent was a candidate for the Ambunti-Drekikir Open Electorate in the National Parliament. He was declared the winning candidate by the Returning Officer Pius Numbatai on Friday, 29 July 2022, at Maprik Resource Centre.
     
   • (ii) The conduct of the 2022 National General Election was the lawful responsibility of the Second Respondent under the Organic Law on National and Local-level Government Elections. The Second Respondent was and is responsible for the actions and omissions of its electoral officers and agents who were involved in the conduct of the election for the Ambunti-Drekikir Open Electorate.
     
   • (iii) The 2022 National General Election was conducted under the Limited Preferential Voting System where an elector voted for three (3) candidates in the order of first, second and third preference choices.
     
   • (iv) Writs for the 2022 National General Election for East Sepik Province were issued on 12 May 2022.
     
   • (v) Nominations of candidates for the electorate opened on 19 May 2022 and closed on 26 May 2022.
     
   • (vi) There were twenty-one (21) candidates for the Ambunti-Drekikir Open Electorate inclusive of the Petitioner.
     
   • (vii) Polling for the Ambunti-Drekikir Open Electorate commenced on 7 July 2022 and concluded on 13 July 2022.
     
   • (viii) The counting or scrutiny of the first preference votes for the Ambunti-Drekikir Open Electorate took place at two separate locations:
     
     • (a) Ambunti and Tunap Hustein Local-level Government was conducted at Maprik Resource Centre, commencing on Wednesday, 20 July 2022 at about 1:00 p.m. and concluded on Monday, 25 July 2022; and
       
     • (b) Drekikir and Gawanga Local-level Government was conducted at Drekikir sub-district office commencing on Monday, 18 July 2022 at about 3:49 p.m. and concluded on Friday, 22 July 2022 at about 4:00 p.m.
       

(vix) Quality checks on the first preference votes was conducted in Maprik Resource Centre which commenced on Monday, 25 July 2022 at 9:00 a.m. and was concluded on Tuesday, 26 July 2022, at 10:00 p.m.

(x) The elimination or exclusion counting process commenced on Wednesday, 27 July 2022 at about 10:30 a.m. and concluded on Friday, 29 July 2022, when the First Respondent was declared the winner.

(xi) The Petitioner was the unsuccessful runner-up. He polled 9,961 votes after the 19^th exclusion of the candidate Richard Rafa. Richard Rafa polled 7,523 votes.

(xii) Following the 19^th exclusion of the candidate Richard Rafa, the total allowable ballot-papers was 21,803 votes. The total number of votes distributed was 2,334 votes and the exhausted ballot-papers was 5,189 Votes.

(xiii) The absolute majority required (50%+1) to win the election was 10,902. The First Respondent scored 11,842 votes and therefore the winning margin is 939 votes as these votes was above and in addition to the absolute majority required being 10,902 votes.

(xiv) The total exhausted ballot-papers were 16,237 votes. The total allowable ballot-papers were 21 ,803 votes.

(xv) The Petitioner scored 9,961 votes and therefore he was short of 941 votes from the absolute majority required to win.

(xvi) The First Respondent at the time of the declaration of the result polled 11, 842, votes and the Petitioner polled 9,961 votes.

(xvii) The difference of votes between the First Respondent and the Petitioner was 1,881 votes.

Evidence for the Petitioner

8. The Petitioner gave sworn oral evidence and tendered his own affidavit which was sworn on 11 October 2022 in support of the petition. It is marked as “Exhibit P1”
   
9. He also called the following witnesses who all deposed to an affidavit and also gave sworn evidence during the trial. The affidavits were tendered into evidence; including his own. The details are set out in the Table below.
   

GROUNDS RAISED IN THE PETITION

10. The petition raised 7 grounds to invalidate the overall results of the Ambunti-Drekikir Open Seat Electorate, East Sepik Province. These Seven (7) grounds are:
    

Ground 1: ERRORS & OMISSIONS COMMITTED BY THE PRESIDING OFFICER REACHY HAKLAMBA IN NOT INITIALING 397 BALLOT-PAPERS FOR WARDS 4 & 5 OF TUNAP HUSTEIN LOCAL-LEVEL GOVERNMENT –

(A) BALLOT-BOX 2: EC 233591

11. Mr. Tony Waterupu Aimo gave both sworn and oral evidence in this petition. In his oral evidence, he states that he was reliably informed by his scrutineers that a total of 397 electors from Wards 4 and 5 cast their votes at the Maprik Resource Centre on Sunday, 24 July 2022. The Ballot Box 2 – EC 02359 was allocated to Wards 4 & 5. He states that from the total votes casts, these votes were distributed as set out in the table below.
    

12. Mr. Aimo says that the scrutineers are appointed by him pursuant to Section 151 (c) Organic Law on National and Local-level Government Elections.
    
13. In this regard, Section 14 of the Electoral Law (National Elections) Regulations 2007 is also relevant as it outlines the responsibilities of scrutineers at scrutiny.
    
14. Section 14 (1) and (2) provides that:
    

“14. Responsibilities of scrutineers at scrutiny.

A scrutineer appointed by a candidate to a counting centre is to observe scrutiny, and to raise lawful objections when considered necessary.

Any objections raised by a scrutineer at the scrutiny shall be raised with the Returning Officer or Assistant Returning Officer supervising the scrutiny, and a decision of the Returning Officer or Assistant Returning Officer on an objection is final.

15. One of the reasons that scrutineers were appointed was that they must carefully scrutinize the counting of votes so that the integrity of the counting process is not jeopardized or undermined by any unlawful conduct by counting officials. The conduct of the scrutiny process is a public affair, therefore it must be done fairly and openly for the scrutineers to see and inspect. That is the intent and the purpose of Section 151 of the Organic Law on National and Local Level Government Elections.
    
16. In denying the objections and protests by the scrutineers, the Returning Officer (RO) had unlawfully and irregularly prevented them from scrutinising and inspecting the ballot-papers thereby contravening Section 151 (c) Organic Law on National and Local-level Government Elections.
    
17. The petitioner states that objections were raised verbally by scrutineers (his and those of other candidates) to the 397 marked ballot-papers in the Ballot-Box 2 EC 023591 from being counted were ignored by the RO. The reasons for the objections were that there was uniform or similar marking pattern of candidate 10 (Johnson Y. Wapunai); candidate 24 (Ruben Wak) and candidate 11 (Meck A, Kama) all of whom are from the Ambunti area. Further, the allegations were that the vote markings were sequential in the order of Candidate No. 10, 24, 11 in all the 397 ballotpapers. In addition, it is also alleged that the handwriting on the marked votes on all the 397 ballot-papers were similar. In that the handwriting on the ballot paper was in the same blue biro ink.
    
18. A further allegation is that all the 397 marked ballot-papers were not initialled by the Presiding Officer (PO) at the back of the ballot papers thereby contravening Section 126 of the Organic Law
    
19. The scrutineers present and objecting vigorously were assigned by the candidates Tony Waterupu Aimo, petitioner, Richard Rafa, Minda Manuambi and Steven Y Tapteheng.
    
20. In the premise, the 397 ballot-papers in the Ballot-Box 2 — EC 023591 ought not to have been counted because the ballot-papers were not authenticated by the initials of the presiding officer and should have been marked informal pursuant to Section 153 (1) (a) of the Organic Law.
    
21. In allowing into scrutiny and or permitting the counting of the 397 ballot-papers which were not authenticated by the initials of the presiding officer, the returning officer acted in breach of Sections 126 and 153 (1) (a) of the Organic Law .
    
22. In this present case, it is clear that a scrutineer is appointed to observe scrutiny and raise lawful objections with the returning officer or assistant returning officer when considered necessary. It follows therefore that the RO / ARO is required to deal with lawful objections raised by a Scrutineer. As to what is lawful objections, I am minded to point out that any objections raised by scrutineers must be considered to ensure that the elections are conducted according to law.
    
23. Here, the petitioner’s evidence is corroborated by witnesses Petrus Hiale and David Goweap who also gave sworn and oral evidence that they raised objection with the RO regarding the fact that the RO/ARO did not place his initial on the ballot papers or authenticated pursuant to s 126 of the Organic Law: Court.
    
24. However, their objections were ignored by the RO. In Wingti v Rawali [2008] N3286 at [186] where Cannings J stated and I quote:
    

“185. Those interpretations are available in view of the wording of Section 153A of the Organic Law, which provides that where an objection is made, the returning officer "may" require the objection, reasons for it and responses to it to be reduced into writing and "may" require the presiding officer and other polling officers to comment, before making a decision. The wording of Section 153A implies that the returning officer does not have to insist on strict compliance with Section 90.

186. The Organic Law is by virtue of Sections 10 and 11 of the Constitution a superior law and governs the interpretation of the Regulation. I consider that, to the extent to which it makes written objections, supported by statutory declarations, mandatory, Section 90 is inconsistent with Section 153A, and therefore must be read down and regarded as a directory provision. Breach of its procedures will therefore not necessarily amount to an error of law.

187. By the same token, I consider that Section 153A requires a returning officer who receives an objection to a ballot box to put in place some discrete procedure that ensures that the objection is recorded and determined in an orderly and systematic fashion. The returning officer’s decision-making must be documented and demonstrate that the returning officer has properly exercised his or her discretion to admit or refuse to admit a ballot box to scrutiny. A proper exercise of discretion will occur when the returning officer’s documentation of the decision-making process shows that he or she has formed the opinion for the purposes of Section 153A(1) that:

(a) the ballot papers in the ballot box were not lawfully cast; and/or
(b) the ballot box was tampered with and the integrity of the ballot-papers in it was compromised.

189. They are the only circumstances in which the Organic Law permits the returning officer not to admit a ballot box to scrutiny. So, it must be clear to an objective observer – a reasonable person following the election – under what provision of the Organic Law the returning officer has made the decision to reject the ballot box. More importantly, if the returning officer’s decision is challenged by way of a petition (that being the only method of challenge permitted) it must be clear to the National Court (the only authority empowered to hear a petition) under which provision of Section 153A the returning officer made the decision. It must also be clear how and why the required opinion was formed.”

25. Further in Juvire v Oveyara [2008] N3333 the Court held at [13-14] that Section 126 (2) of the Organic Law does not prescribe how a ballot paper is to be authenticated. The Supreme Court also held that Section 153 (1) (a) of the Organic Law does not require that the initials of the presiding officer be placed on the back of the ballot paper as stated in Section 126 (2).
    
26. I am minded to rule that there is evidence that the ballot papers contained in Ballot-Box 2 — EC 023591 contained 397 ballot papers which are not authenticated by the initials of the presiding officer or by an official mark as prescribed under section 153 (1) (a) of the Organic Law.
    
27. In the present case, the scrutineers gave evidence that the objections they raised were accepted by the official conducting the scrutiny. The official gave an undertaking that the ballot box would be set aside but it did not happen. Thus, their grievances were lawful and ought to have been considered by the RO pursuant to s 152 of the Organic Law.. However, this wasn’t done. Besides, no evidence was called to counter this evidence, so it stands unchallenged.
    
28. Every citizen’s vote should be counted unless the vote is rendered informal by an action of the citizen and not by the action of someone else. The law in Section 126 of the Organic Law is only directory as held by Sevua, J in Juvire v Oveyara (supra) which was later endorsed by the Supreme Court in Juvire v Oveyara [2008] SC975 as stated elsewhere above. Hence the PO is not strictly required to sign at the back of all the ballot-papers. He may initialise it or place his official mark as prescribed: (see: Section 126 (1)).
    
29. The issue here is of authenticity of the ballot paper either by the initial of the PO or by an official mark as prescribed by the Organic Law. It does not necessarily mean that the ballot paper is initialled on the back by the PO.
    
30. Hence, the inclusion of the 653 ballot-papers into scrutiny had the real effect of affecting the return or outcome of the election as prescribed by Section 218 (1) of the Organic Law
    
31. Consequently, I uphold ground (1) of this Petition.
    

Ground 2. ERRORS & OMISSIONS COMMITTED BY THE PRESIDING OFFICER RONALD NOBRA IN NOT INITIALING 653 BALLOT-PAPERS FOR WARDS 14, 15, 13 & 12 OF TUNAP HUSTEIN LOCAL-LEVEL GOVERNMENT

32. The petitioner gave evidence that a total of 653 electors from Wards 14, 15, 13 and 12 cast the votes- Ballot Box 5 – EC-023594. He states further that at the scrutiny at Maprik Resource Centre on Thursday, 26 July 2022, Ballot. Box 5 — EC 023594 had 653 formal votes and zero (0) informal votes (total 653 votes). The 653 formal votes received by candidates were as follows:
    

33. The Petitioner states that he was reliable informed by the scrutineers David Kapok (Exhibit P4), Morris Mabir (Exhibit P5), Russel Malange (Exhibit P6) and Patrick Akamiau (Exhibit P7) who also gave evidence that they, vigorously objected verbally to the 653 marked ballot-papers in the Ballot Box 5 — EC 023594 from being counted because of the following reasons.
    
    • (i) Uniform or similar marking pattern of candidate 10 (Johnson Y. Wapunai); candidate 24 (Ruben Wak) and candidate 11 (Meck A. Kama).
      
    • (ii) All the three (3) candidates (IQ-Johnson Y. Wapunai, 24-Ruben Wak and Il-Meck A. Kama, are from the Ambunti area).
      
    • (iii) The vote marking was sequential; 10, 24, 11 in all the 653 marked ballot-papers.
      
    • (iv) The handwriting that marked the votes on all the 653 ballot-papers was similar / same including the same biro ink, blue in colour.
      
    • (v) The Presiding Officer did not initial at the back of the 653 marked ballot-papers, thereby contravening Section 126 of the Organic Law on National and Local-level Government Elections.
      

The petitioner states that in this ballot box, the first respondent collected 652 votes from the disputed Ballot-Box. Candidate Steven S. Pesuwes collected 1 vote, and the rest scored zero (0) votes. He adds further that this similar argument raised for Ground 1 are also raised in Ground 2 of the Petition. Here, witnesses David Kapok, Morris Mabir, Russel Malanga, and Patrick Akamiau each gave details of their observations as to the reasons for their objections which was given verbally to the RO/ARO. all gave sworn affidavit and also gave oral evidence that they raised objection with the RO regarding the fact that the RO/ARO did not place his initial on the ballot papers or that the ballot papers were not authenticated pursuant to s 126 of the Organic Law: In any case, Section 126 prescribes that the ballot paper must be authenticated by the Returning Officer or an official mark. The respondents have not challenged this ground of the petition. In fact, the witnesses were not cross-examined regarding this aspect of the petition. Their evidence remains unchallenged.

35. Whilst I accept that the discretion to admit or reject any objections and protests by the scrutineers lies in the Returning Officer, where there are allegations of accepting into counting, ballot papers not authenticated by the Returning Officer or an official mark, contrary to s 153 (1) (a) of the Organic Law. An obligation rests on the Returning Officer to ensure that proper records are kept with regard to any objections raised and to also ensure that a proper response is made to address such objections accordingly: see Wingti v Rawali (supra).
    
36. Accordingly, I find that there is evidence that the Returning Officer committed errors and omission contrary to Section 126 and 153 (1) (a) of the Organic Law in allowing and/or permitting the counting of the 653 ballot – papers contained in Ballot Box No. 5 that were allegedly objected to without proper verification and for failure to provide reasons as to admitting the ballot papers into counting: see Wingti v Rawali (supra).
    
37. Hence, the inclusion of the 653 ballot-papers into scrutiny had the real effect of affecting the return or outcome of the election as prescribed by Section 218 (1) of the Organic Law
    
38. I therefore will uphold ground 2 of the petition.
    

Ground 3. ERRORS AND OMISSIONS COMMITTED BY THE RETURNING OFFICER PIUS NUMBATAI IN ALLOWING DISPUTED BALLOT-BOX 3 - EC 023592 INTO SCRUTINY

39. The petitioner gave oral details of the particulars of the Ballot-Box: EC 023592 and also relied on his affidavit in support of the petition filed on 19 October 2022. The details of the Ballot papers are set out below:
    

40. The petitioner gave evidence that he was reliably informed by his scrutineers, some of whom gave evidence during the trial of this petition. In their evidence they all state that the Returning Officer authorized the counting of the Ballot-Box and or admitted it to scrutiny despite the agreement entered into between the scrutineers and the electoral officials including a legal counsel and the Election Manager, Mr. James Piapia on 28 July 2022,that the Ballot Box 3 (BB3) which contained 427 marked ballot-papers was supposed to be set aside. The reasons being that it took four (4) days to reach the storage center and hence there was a presumption that it could have been tampered with and its contents compromised.
    
41. However, in spite of that undertaking, the Ballot-Box was allowed into scrutiny or counted, the following were the results of the count as per the Form 66A1:
    

42. This presumption of alleged tampering is compounded by the fact the results ( that is the 432 votes counted from the Ballot-Box 3) were not published on the Main Tally Board at Maprik Resource Centre for purposes of public scrutiny in compliance with s 151 (c) of the Organic Law. The alleged 432 votes were however captured in Form 66A1.
    
43. The witnesses, David Kapok (Exhibit P4), Morris Mabir (Exhibit P5), Russel Malange (Exhibit P6) and Patrick Akamiau (Exhibit P7) gave evidence that they did not have the benefit of the scrutiny of the Ballot' Box (and its contents) and were unable to object or raise any enquiries . They say that the Returning Officer breached Section 151 (1) (c) of the Organic Law. Whilst I note that no substantive evidence has been adduced by the witnesses called by the petitioner to confirm tampering, it is my view that the fact that as set out in the statement in Wingti v Rawali (supra), the onus lies on the Returning Officer or Assistant Returning Officer (ARO), to provide reasons for his decision to allow Ballet Box 5 – Ballot-Box: EC 023592 to scrutiny or counting
    
44. Furthermore, since no evidence has been offered by way of a responding affidavit from the Returning Officer/ARO, Mr. Pius Numbatai to dispute this allegation. I find that the Returning committed errors and omissions in failing to follow proper procedures when he allowed to admit the Ballot Box to be counted without good reasons and acted in contravention of Section 153A of Organic Law. The inclusion of the 432 ballot-papers (votes) into scrutiny had the real effect of affecting the Ambunti-Drekikir Open Electorate National Elections.
    
45. I will uphold ground 3 of the petition.
    

Ground 4: BY THE RETURNING OFFICER, PIUS NUMBATAI IN ALLOWING DISPUTED BALLOT-BOX 4 - EC 023593 INTO SCRUTINY

46. The petitioner gave evidence of the Particulars of the Ballot-Box 4: EC023593 which is set out below:
    

47. The petitioner gave evidence that he was reliably informed by his scrutineers that the 875 votes counted from the Ballot-Box were not published on the Main Tally Board at Maprik Resource Centre. However, the scores were captured in the Form 66A1. Therefore, the candidates' scrutineers did not have the benefit of the scrutiny of the Ballot Box (and its contents) and were unable to object or raise any enquiries thereby the Returning Officer breached Section 151 (c) of the Organic Law on National and Local-level Government Elections.
    
48. This ground is similar to ground 3. The Returning Officer, Mr. Pius Numbatai failed to give reasons for admitting the described Ballot Box 4 — EC023593 to scrutiny, failed to properly exercise his discretion to admit the Ballot-Box and failed to follow proper procedures to admit the Ballot Box to be counted without good reasons and acted in contravention of Section 153A of Organic Law on National and Local-level Government Elections. In the premise, Ballot-Box 4 — EC023593 was illegally admitted into scrutiny by the Returning Officer when it ought to have been set aside. The inclusion of the 875 ballot-papers (votes) into scrutiny had the real effect of affecting the National Elections.
    
49. All the petitioner’s witnesses gave sworn oral evidence that Ballot Box 4 – was not subject to scrutiny and the returning officer, Mr. Pius Numbatai failed to properly exercise his discretion to follow proper procedure under s 153A of the Organic Law to allow the Ballot Papers to be admitted and counted. This evidence remains unchallenged.
    
50. Thus, it is my view that the 432 ballot papers were not subject to inspection by scrutineers contrary to s 151(1) (c ) of the Organic Law.
    
51. I uphold this ground of the petition.
    

Ground 5: ERRORS AND OMISSIONS COMMITED BY THE RETURNING OFFICER PIUS NUMBATAI IN ALLOWING DISPUTED BALLOT-BOX 8 - EC 023597 INTO SCRUTINY

52. As to this ground, the petitioner gave evidence that he was reliably informed by his scrutineers that on Thursday, 28 July 2022, the Ballot-Box 8 - EC 023597 was set aside according to consensus reached between all the scrutineers of candidates and the electoral officials, including a legal counsel and East Sepik Election Manager James Piapia because the described Ballot-Box was locked with a padlock. His evidence is corroborated by witnesses, David Kapok (Exhibit P4), Morris Mabir (Exhibit P5), Russel Malange (Exhibit P6) and Patrick Akamiau (Exhibit P7) during their respective testimony.
    
53. The petitioner gave detailed particulars of the Ballot-Box 8- EC023597 as set out below:
    

54. The petitioner also gave evidence that he was reliably informed that the Ballot-Box was allowed into scrutiny or counted, and the following were the results of the count which were captured in Form 66A1:
    

55. He further gave evidence that he was reliably informed by his scrutineers that the 828 votes counted from the Ballot-Box No. 8 were not published on the Main Tally Board at Maprik Resource Centre. Further, the Ballot Papers were also not subject to scrutiny by the scrutineers contrary to s 151 (c ) of the Organic Law. These numbers however are captured in the Form 66A1 and were counted. Due to the inclusion of the 828 ballot-papers (votes) to scrutiny had the real effect of affecting the Section Elections.
    
56. The contention is that the Returning Officer by failing to give reasons for admitting the described Ballot Box 8 — EC023597 to scrutiny contrary to s 151(c ) of the Organic Law, he failed to properly exercise his discretion under Section 153A of Organic Law on National and Local-level Government Elections to set aside the said Ballot-Box 8 — EC023597.
    
57. This evidence is unchallenged and whilst I find that the witnesses have not adduced any evidence to allege tampering of the ballot papers except that the box was secured with a padlock. I am of the view that papers contained in Ballot Box No. 8 were admitted into scrutiny without proper verification and for failure by the presiding officer or the returning officer to provide reasons as to admitting the ballot papers into counting: see Wingti v Rawali (supra).
    
58. I uphold this ground 5 of the petition.
    

Ground 6: ERRORS AND OMISSIONS COMMITTED BY COUNTING OFFICIALS RESULTING IN THE LOSS OF 4 VOTES

59. The petitioner gave evidence that he was reliably informed that on Monday, 18 July 2022, scrutiny or counting of ballot-papers from the Drekikir Local-Level Government commenced in Drekikir district office. The electoral officer in charge of the scrutiny was the Assistant Returning Officer Beno Patrick. At Count 12 of the primary votes, the Petitioner scored 890 votes which was published on the Main Tally board at Drekikir sub-district station, whilst the Second Respondent's official website recorded that the Petitioner scored 886 votes. The Petitioner went into elimination with 5,599 votes, (recorded on Form 66B which was incorrect) instead of 5,603 votes, thereby losing 4 votes as a result of errors and omissions committed by the counting officials. Four (4) electors who gave their first preference vote to the Petitioner were deprived of their choice and their constitutional right under Section 50 (1) (d) of the Constitution was significantly violated.
    

The loss of the four (4) had the real effect of affecting the return or outcome of the election as prescribed by Section 218 (1) of the Organic Law on National and Local-level Government Elections.

61. Regarding this ground of the petition, I am unable to see how the alleged 4 votes could sufficiently affect the return or outcome of the election, unless of course if the winning margin a difference of 4 votes.
    
62. I decline to allow this ground of the petition
    

Ground 7 ERRORS & OMISSIONS COMMITTED BY COUNTING OFFICIALS IN ILLEGALLY DISTRIBUTING MORE VOTES TO THE FIRST RESPONDENT DURING EXCLUSION 18 AND EXCLUSION 19 AND INCREASING EXHAUSTED BALLOT-PAPERS

63. Regarding the errors and omissions, Mr. Aimo gave evidence that the counting officials of the Second Respondent illegally distributed more votes to the First Respondent during Exclusion 18 and Exclusion 19 of the scrutiny and increasing exhausted ballot-papers. He also refer to Form 66B in his affidavit which he states captured the result of the exclusion of candidates, Ruben Wak, at exclusion 19 where the first respondent received 1898 votes of the votes cast for Ruben Wak and 1070 votes of the votes cast for candidate Richard Rafa appears inconsistent with the logic of election processes. In this case, where at exclusion, it is the cumulation of the total first preference votes which now become available for distribution to the remaining leading candidates. This is where if I am correct to say for instance that the total votes for distribution should be higher than the exhausted votes not the other way around.
    
64. Given that the second respondent has not adduced evidence to suggest otherwise, I am of the view that it is therefore necessary to have these process of elimination be re-counted commencing at Exclusion 16, 17, 18 and 19 for purposes of addressing any perceived discrepancies which appears apparent in the Form 66B as adduced in evidence by the petitioner.
    
65. The details of the figures are instances at Exclusion 18 the First Respondent received 1898 votes from candidate Ruben Wak. At Exclusion 19 the First Respondent received 1070 votes from candidate Richard Rafa. It is alleged that at Exclusion 18 and Exclusion 19, the second preference votes of the First Respondent would have been fully exhausted. Therefore, in receiving 1898 votes from candidate Ruben Wak and 1070 votes from candidate Richard Rafa is not possible.
    
66. The particulars of distributed votes are as outlined below:

67. The petitioner contends that it is unusual that in Exclusions 16, 17, 18 and 19 the Exhausted votes are more than the Distributed votes. The petitioner say that from the evidence adduced as shown in Form 66B, the exclusions 1 — 15, the figures shows that the “Exhausted votes” were less than the “Distributed votes” so he is puzzled and finds it as per Form 66B unusual to find that Exhausted votes being greater than the Distributed votes as set out in the table below:
    
    • (i) The Exclusion Vote Distribution Summary for Exclusions 16, 17, 18 and 19:
      
      • (A) Candidate Steven Pesuwes
        

(B) Candidate Steven Yah Tapteheng

(C ) Candidate Ruben Wak

(D) Candidate Richard Rafa

68. Given this assumption, the petitioner alleged that there is a likelihood of a possible 2,000 votes that were still alive in the Exhausted votes (Exclusion 17, 18 and 19) for distribution based on the preferential voting system. Whilst noting that perhaps his assumption may be correct, there is really no evidence adduced by the second respondent as to how these system works and thus it can only amount to an assumption.
    
69. In any event, the contention is that the errors and omissions and the alleged illegal practice significantly affected the outcome or result of the election as envisaged by Section 215 (3) and 218 (1) of the Organic Law on National and Local-level Government Elections. Owing to the illegal practices and errors and omissions constituted by the Second Respondent and its electoral officers and agents, the integrity of polling and counting or scrutiny (of votes) process was compromised and tampered with, as pleaded in various paragraphs above, which were sufficient to affect the result or outcome of the election.
    
70. The second respondent has not really challenged the evidence of the petitioner and has not really explain for the court as how such a preferential voting system works in terms of counting of votes, (exhausted votes and votes for distribution). The second respondent has not countered the evidence of the petitioner in re-examination and also has failed to file any responding affidavits to challenge this evidence. This leaves the court to determine the matter on the material presented and evidence adduced during trial.
    
71. Regarding the requirements of Section 90 (objection to admission of ballot box to scrutiny) of the Regulation states:
    

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

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

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

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

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

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

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

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

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

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

72. Section 153A (excluding ballot box from scrutiny) states:
    

(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 [sic]; or

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

(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.

73. It is clear that the procedures in the Regulation were not followed, in that:
    
    • (i) no Provincial electorate scrutineer or candidate objected in writing to the Provincial returning officer or ARO, as required by Section 90(1) of the Regulation;
      
74. The question I now need to address is whether those procedures are mandatory. Or are they only directory guidelines, non-compliance with which is inconsequential? Is substantial compliance with Section 90 of the Regulation sufficient? This is where I refer to and adopt the deliberations of his Honour Cannings J in the case of Wingti v Rawali (supra) at [186] where he stated and I quote:
    

“185. Those interpretations are available in view of the wording of Section 153A of the Organic Law, which provides that where an objection is made, the returning officer "may" require the objection, reasons for it and responses to it to be reduced into writing and "may" require the presiding officer and other polling officers to comment, before making a decision. The wording of Section 153A implies that the returning officer does not have to insist on strict compliance with Section 90.

186. The Organic Law is by virtue of Sections 10 and 11 of the Constitution a superior law and governs the interpretation of the Regulation. I consider that, to the extent to which it makes written objections, supported by statutory declarations, mandatory, Section 90 is inconsistent with Section 153A, and therefore must be read down and regarded as a directory provision. Breach of its procedures will therefore not necessarily amount to an error of law.

187. By the same token, I consider that Section 153A requires a returning officer who receives an objection to a ballot box to put in place some discrete procedure that ensures that the objection is recorded and determined in an orderly and systematic fashion. The returning officer’s decision-making must be documented and demonstrate that the returning officer has properly exercised his or her discretion to admit or refuse to admit a ballot box to scrutiny. A proper exercise of discretion will occur when the returning officer’s documentation of the decision-making process shows that he or she has formed the opinion for the purposes of Section 153A(1) that:

(c) the ballot papers in the ballot box were not lawfully cast; and/or
(d) the ballot box was tampered with and the integrity of the ballot-papers in it was compromised.

189. They are the only circumstances in which the Organic Law permits the returning officer not to admit a ballot box to scrutiny. So it must be clear to an objective observer – a reasonable person following the election – under what provision of the Organic Law the returning officer has made the decision to reject the ballot box. More importantly, if the returning officer’s decision is challenged by way of a petition (that being the only method of challenge permitted) it must be clear to the National Court (the only authority empowered to hear a petition) under which provision of Section 153A the returning officer made the decision. It must also be clear how and why the required opinion was formed.

190. The decision to reject a ballot box is a significant decision, which may directly influence the result of an election. It affects many people, especially voters and candidates and the exercise of their rights under Section 50 of the Constitution to vote for and be elected to elective public office at genuine, periodic free elections. It follows that the returning officer must give reasons, in writing, for the decision to reject a ballot box. I consider that this is essential even though Section 153A does not expressly require it.

191 . The duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions. It is a fundamental principle of administrative law. If no reasons are given for making a decision, the court will presume that there were no good reasons for making it. The principle of no reasons = no good reasons, developed by Amet CJ in the National Court in Niggints v Tokam [1993] PNGLR 66, has been endorsed by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747 (Injia DCJ, Sakora J, Sawong J) and in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797.

192. The reasons need not be extensive or expressed in great detail but should be clear and concise and show that the returning officer has properly exercised the onerous powers, functions, duties and responsibilities imposed by the Organic Law.

193. I am conscious of the fact that both Section 153A of the Organic Law and Section 90 of the Regulation are new laws. Section 153A was added by the National and Local-level Government (Amendment) Law 2006. Section 90 forms part of the Electoral Law (National Elections) Regulation 2007. Neither provision has a predecessor and to my knowledge this is the first case in which either provision has been interpreted by a court.

194. I have considered referring questions about their interpretation to the Supreme Court under Section 18(2) of the Constitution but decided against it as that would prolong these proceedings considerably and unnecessarily.

195. I have also considered whether I might be reading too much into Section 153A. But I do not think I am. The clear intention of both Section 153A and Section 90 is to require that the decision to reject a ballot box be made in a careful and considered way that is able to withstand review and challenge. That can only be achieved if there is a ‘paper trail’. The chances of a correct and proper decision being made are heightened considerably if the decision maker – the returning officer, subject only to direction by the Electoral Commission – is required to document and give reasons for his or her decision. This is not a radical departure from previous law.

196. To sum up this issue: if a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must document the objection, record his decision-making process and clearly state what opinion has been formed for the purposes of Section 153A(1) and the reasons for forming that opinion.

197. In the present case no objections were actually made to Mr Rawali. Nevertheless, he should have documented the objections that were made to Mr Korowa. He should then have recorded the steps he took to inquire into the objections and determine whether they were valid. He should have made a clear statement as to the opinion he had formed for the purposes of Section 153A and stated his reasons. However, nothing of that sort happened.

198. I conclude that proper procedures were not followed and that this was another error of law by the Provincial returning officer”

The No Case Submission

75. The First and second Respondents seek to dismiss the petition on the grounds that there is insufficient evidence to warrant further hearing of the matter, and the petition should be halted here without having to respond to the allegations. The 'no case submission' is usually heard in a criminal proceedings but recently adopted and applied in election petitions and several EP proceedings have proceeded under this procedure: see Ben Micah v Ling Stucky (1998) N1790, Desmond Baira v Kilroy Genia (1998) SC 579 and Benny Diau v Mathew Gubag (2004) SC 775. Hence, this court has jurisdiction to stop a trial in an election petition in an appropriate case without having the respondents adduce evidence. It would be relevant to have regard to section 217 of the Organic Law on National & Local Level Government Elections (Organic Law). See John Warison v David Arore (2015) SC 1418.
    
76. The Court may stop a trial where a critical element of the case is not proved, for instance, the registration of the name of the voter allegedly bribed. See Ben Micah —v- Ling Stuckey [1998] PNGLR 151, or the evidence led is at variance with the pleadings. A trial can be stopped, and a petition can be dismissed on a no case submission where the evidence is at variance with the pleadings.
    
77. There is no issue with the petition being in compliance with section 206 of the Organic Law. Election Petitions are not ordinary cases. Since Delba Diri v Bill Ninkama [1982] PNGLR 342 and prior to Hagahuno v Tuke [2020] SC2018, election petition cases have been treated with strict application of the law on grounds that they question the majority choice. See discussion in Koimanrea v Sumunda (2003) N2421.
    
78. Further, the case of Hagahuno -v- Tuke (supra) discussed the application of section 217 of the Organic Law wherein the Supreme Court departed from Delba Biri's case and held that section 217 is applicable throughout the petition, from the filing to the date a decision is made. In Powi v Kaku [2022] SC2290 (29July 2022, the Supreme Court confirmed that parties are required to litigate within the scope of the pleadings in a petition and bring evidence to prove the allegations. Hagahuno v Tuke is not an open license to avoid the requirements of pleadings and evidence. In this case, the no case submission should not be used to avoid the requirements of evidence. The second respondent in this case has failed to filed any responding affidavits or challenged the petitioner’s evidence through cross-examination.
    
79. The petitioner is required to prove the allegations on a standard of proof that is higher than the ordinary civil standard 'on the balance of probabilities'. The petitioner bears the onus of proof to the entire satisfaction of the Court: see Neville Bourne v Manasseh Voeto [1977] PNGLR 298, Peter W'aranaka v Gabriel Dusava (2009) SC980 and Ken Fairweather v Jerry Singirok (2013) SC1293.
    
80. In a no case submission, the petitioner's evidence will have to be assessed to discern whether he has brought in credible and material evidence to support the allegations so as to require the Respondents to respond by adducing evidence. See Tomokita -v- Tomuriesa (supra) where a petition was dismissed on a no case submission on grounds that the petitioner failed to adduce evidence from an expert witness learned in the Trobriand Island culture to show that the sum of Kl0,000.0() given at the time of the campaign, as a gift to comply with customary obligations in that culture, was improper and intended to win votes. This is not the case here. The petitioner has adduced evidence of the errors and omissions committed by the counting officials. The respondents have failed to challenge the evidence adduced by the petitioner through cross-examination. Furthermore, the second respondent has failed to file responding affidavits responding to the allegations raised by the petitioner and his witnesses.
    
81. Regarding the application for no case submission, I have had the opportunity to hear counsels on their submission, and I will address these as set out in relation to the grounds raised in the Petition. Part XIV of the Organic Law provides for the scrutiny. Section 163 of the Organic Law provides for the scrutiny of ballots, the counting process. Similarly, Section 150 of the Organic law provides that an appointment of a scrutineer shall be made by notice in writing signed by the candidate, and it shall specify the name and address of the scrutineer. In this case, it is not disputed that the scrutineers were endorsed by the Candidate, Tony Waterupu Aimo. Thus, this argument does not hold.
    
82. Further, Section 153A (4) of the Organic Law provides for the process where a declaration by a Returning Officer may not be challenged other than by way of a petition and this is where the petitioner had come. Again, I point out that s 153A (4) covers the requirement for the process prescribed under Section 90 of the Electoral Law (National Elections) Regulation 2007 (hereafter as 'Regulations'). Furthermore, no evidence has been adduced to dispute and or challenge the presence of the witnesses at the polling centre and being scrutineers for the petitioner and other candidates. Here, the evidence of witnesses, Petrus Hiale, David Kapok, David Gowep, Morris Mambir, Russel Malange, Eric Tounokon and Cyprian Mahite remained unchallenged.
    
83. Applying this principle to this current case, the second respondent failed to adduced evidence to show that the figures alleged to have affected the results of the overall elections are unfounded. I therefore will accept the petitioner’s account of the election results .
    

Consideration of the evidence

84. In considering the application on a no case to answer, as I have already upheld 6 grounds of the petition, the issue now arises as to what remedies should be granted by the Court. The petitioner wants the Court to order a recount. Such a relief can be made under Section 212(1)(d) (powers of the court) of the Organic Law. Section 212 (1) (d) states:

“In relation to any matter under this part [Part XVIII, Disputed Elections, Returns, etc] the National Court shall sit as an open court and may, amongst other things ... order a re-count of ballot-papers in an electorate”

85. On the other hand, the respondents submit that no recount should be ordered. The evidence presented by the petitioner failed to identify any errors and omissions committed by officials of the second respondent and therefore, they have no case to answer. Consequently, the result of the election should remain intact in view of Section 218(1) (immaterial errors not to vitiate election) of the Organic Law, which says that only errors or omissions that are proven to have affected the result of an election should cause the court to set aside an election result.
    
86. Section 218(1) states:

“... an election shall not be avoided ... on account of ... an error of, or an omission by, an officer which did not affect the result of the election”

87. In this regard, I refer to and adopt the statement made by Cannings J where he at [326] refer to the Supreme Court decisions in Ambane v Electoral Commission and Tumun (1998) SC565 and Reipa v Electoral Commission and Bao (1999) SC606 in support of that proposition which he adopted and applied in Wingti v Rawali (supra) where he stated and I quote:
    

“However, I am not, at this point, considering avoiding or vitiating the election. I am not considering making a declaration that Mr Olga was not duly elected or that Mr Wingti should be declared the winner or that the election was void. Those remedies are not, at this stage, being sought by Mr Wingti.

327. If all that is being sought is an order for a recount, the court does not have to be satisfied that the errors or irregularities that have been found to have occurred affected the result of the election (Maino v Avei [1998] PNGLR 178).

328. It is a matter of discretion and in exercising its discretion the court is guided by Section 212(3) of the Organic Law, which states:

The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

329. The petitioner has succeeded in proving a number of errors on the part of the Provincial returning officer and the Electoral Commission. Five ballot boxes containing about 3,181 votes were not counted, which should have been counted. There was inadequate control and security of ballot papers at or around the counting centre. There are material discrepancies in the tally sheets. Then, just before the result was declared, 3,304 ballot papers were brought in but not properly accounted for. In addition, there are reasonable grounds for suspecting that ballot papers were tampered with during the night before the result was declared.

330. Considered individually, some of those errors would justify a recount. When considered together, and in light of all the evidence brought before the court, the petitioner has presented a very strong case for a recount and that is the order that I consider would be just and sufficient, at this stage”

Conclusion

88. In conclusion, I am of the view that I do not have to be satisfied that the errors or irregularities that have been found to have occurred affected the result of the election (see Maino v Avei [1998] PNGLR 178). It is a matter of discretion and in exercising its discretion the court is guided by Section 212(3) of the Organic Law, which states that the Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
    
89. As the petitioner has succeeded in proving a number of errors and omissions on the part of the Provincial Returning Officer and the Electoral Commission. Five ballot boxes containing about 2,727 votes were counted, which should not have been counted. There was inadequate control and security of ballot papers at or around the counting centre. There are material discrepancies in the tally sheets.
    
90. Consequently, the Court will order a recount of the following Ballot Boxes:
    
    • (i) Ballot Box 2 – EC 023591
    • (ii) Ballot Box 5 – EC 023594
    • (iii) Ballot Box 3 – EC 023592
    • (iv) Ballot Box 4 – EC 023593
    • (v) Ballot Box 8 – EC 023597
    • (vi) Recount of votes at Elimination 16, 17, 18 and 19
      
91. I heard counsels on the issue of costs and make a ruling of costs in favour of the petitioner. Such costs to be taxed if not otherwise agreed.

ORDER

92. The order of the court are:

(1) A recount of the ballot papers for the Ambunti-Drekikir under Section 212(1)(d) of the Organic Law, is hereby ordered. Such recount to be conducted prior to 14 April 2026.

(2) The recount to be conducted under police supervision in camera (with two representatives each nominated by the Petitioner and the First Respondent) who will be present and observing the recount.

(3) The recount will compromise of:

• (i) Ballot Box 2 – EC 023591
• (ii) Ballot Box 5 – EC 023594
• (iii) Ballot Box 3 – EC 023592
• (iv) Ballot Box 4 – EC 023593
• (v) Ballot Box 8 – EC 023597
• (vi) Recount of votes at Elimination 16, 17, 18 and 19
  

(4) The results of the recount shall be presented to the Court on 14 April 2026 for ratification.

(5) Costs are awarded in favour of the petitioner such costs to be taxed if not otherwise agreed.

Ruling accordingly.
___________________________________________________________________
Lawyers for the respondent/petitioner: David Dotaona Lawyers
Lawyers for the first respondent: Allan Baniyamai Lawyers
Lawyers for the second respondent: Harvey Nii Lawyers