Unreported Supreme Court Decisions
SC559
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR NO 61(A) OF 1998
REVIEW PURSUANT TO CONSTITUTION S.155 (2)(B)
IN THE MATTER OF THE RESULTS OF THE 1997 NATIONAL ELECTIONS FOR THE CHIMBU REGIONAL ELECTORATE
BETWEEN
FR. LOUIS AMBANE - FIRST APPLICANT
AND
THE ELECTORAL COMMISSION OF PNG - SECOND APPLICANT
AND
THOMAS TUMUN SUMUNO - RESPONDENT
Waigani
Amet CJ Kapi DCJ Los J
30 July 1998
5 October 1998
NATIONAL ELECTIONS - s. 218 (1) of Organic Law on National and Local Level Government Elections - Whether error or omission did affect the result of the election - Invalid ballot papers counted - merely for purposes of determining whether result was affected.
Held
The Electoral Commission officials erred or omitted to provide adequate number of official ballot boxes.
Three unofficial ballot boxes containing 1569 valid votes were not counted.
The count of the 1569 votes resulted in the Respondent (Petitioner) winning by 202 votes.
The error or omission “did affect the result of the election”.
The Orders of the trial judge be restored; that the election of the Applicant is void; the election of the electorate is void and a bi-election be held for the Chimbu Regional Electorate.
Counsel
GJ Sheppard for First Applicant
J Nonggor for Electoral Commission
P Payne for Respondent
5 October 1998
AMET CJ:  In the judgement of the Court in the Unreported Supreme Court Judgement No SC 565 the Court determined the proper test in the application of s. 218 (1) of the Organic Law to be whether the error or omission “did affect the result of the election”.  In the circumstances of this case where the error or omission on the part of officials of the electoral commission resulted in the Returning Officer not allowing the votes contained in the unofficial patrol boxes to be counted, the Court ordered that:
The votes contained in the uncounted patrol boxes be counted by officials of the Electoral Commission and distributed to the candidates for whom they were cast.  (These are not to be counted as official formal votes.  They are to be counted merely for the purposes of determining whether the result was affected.)
The tally of this count shall be recorded separately and provided to this Court.
In the count ordered by this Court, three patrol boxes were counted producing the following tally results:
Box No	TT Sumuno	BB Kamana	Informal	
Box 1	593	1	0	
Box 2	537	0	0	
Box 3	439	0	2	
Total	1,569	1	2	
In the count the Applicants took objection to the validity of the ballot papers on the following grounds:
·         Under s. 153 (1) (a) none of the ballot papers were authenticated by the Presiding Officer, Chris Tongia as prescribed.
·         That none of these ballot papers come from a ballot box identified in the election petition and should be excluded from the count.
·         The serial numbers on the boxes do not correspond with the serial numbers which were given to the presiding officers and so the boxes should not be counted.
These objections have been referred to and argued before this Court pursuant to a further order of the Court.
The First Applicant has taken objections on the above basis, and submitted that none of the ballot papers should be counted as valid for the purpose of the order of the Court.
The Second Applicant has taken an alternative objection to the validity of the ballot papers on the basis that the number of ballot papers the Court should be concerned with should be confined to the number found as a fact by the trial judge as having been affected, which is 1300 only and not 1572 from the count, because the Respondent had not sought to review that finding of fact and so is bound by it.
It was contended that because the difference of votes between the winner and the petitioner was 1367, the number of votes affected, being confined to 1300, could not affect the result even if all the 1300 were to have been cast in favour of the petitioner.  This proposition was supported by both applicants to support the further proposition that the “result” referred to in s. 218 (1) referred to the result between the winner and the petitioner and not the result generally between all the candidates.
This proposition only needs to be made to demonstrate the folly of it.  It is mischievous to say the least.  It is trite that the “result” means the return of the particular candidate and not the numbers of his majority, which means the result as between any of the candidates as determined by the allocation of the votes upon a count, and not the result between the winner and the runner up only, or between the winner and the petitioner as suggested by this contention.
The other misconception is that somehow the Court should ignore the very direct evidence of the precise number of votes affected and confine itself to the speculative approximation made by the trial judge.  This simply ignores the purpose for which the Court ordered the count.
The Respondent has submitted that the votes should be accepted as valid for the purposes for which the Court ordered their count.  It was submitted that the grounds for the objections taken do not fall within the provisions of s. 153 of the Organic Law, which deal with Informal Ballot-Papers, as follows:
(1)      Subject to this section, and to the provisions of Divisions 3 and 4 and the Regulations, a ballot-paper is informal if:
(i)       it is not authenticated by the initials of the presiding officer or by an official mark as prescribed; or
(ii)      subject to Subsections (2), (3) and (4) it has no vote indicated on it, or it does not indicate the voter’s intention; or
(iii)     it has on it any mark or writing ( not authorized by this Law to be put on it) by which, in the opinion of the officer conducting the scrutiny, the voter can be identified.
I am satisfied that the three boxes containing the ballot-papers that were counted were sufficiently identified by the electoral officials as the three that were identified and exhibited before the trial judge as the unofficial ballot boxes that were not counted by the Returning Officer.  That, in my opinion, was all that was necessary to be done for the purposes of the count.  The boxes had been validly disallowed at the official count.  The objections taken are ones which could not be the basis for declaring ballot-papers informal, pursuant to s. 153 of the Organic Law.
Box 1 was identified by Werake Gand, who was a school teacher and the Assistant Presiding Officer for polling Team No 34, who took the polling at Kup No 2.  He identified the ballot-papers as the ones he had authenticated by identifying his signature on the back.  The box also had Team No 34 and the polling place Kup No 3 written on it.
Box 2 was identified by Chris Tongia, also a school teacher and the Presiding Officer for Mur 2B polling place.  The team number and the polling place were not marked on the box.  This box had the marking Exh “R” on it in red.  This was the exhibit marking given by the trial court when it was identified by the Provincial Police Commander Daniel Tende.  More importantly, the ballot-papers were identified by Chris Tongia, the Presiding Officer, as the ones authenticated by him by signing at the back of the ballot-papers.
Box 3 was identified by John Manguai, also a schoolteacher and the Presiding Officer at Mur No 2 for Team No 40.  The box was also marked as Exh “S” by the trial court when it was identified by the Provincial Police Commander Daniel Tende.  The ballot-papers were identified by John Manguai and an Assistant Returning Officer as having been authenticated by them by signing at the back.
This, in my opinion, was all that was necessary for the purpose of the count ordered by the Court.  The boxes had been validly rejected from counting.  The only other process that was necessary for determination was whether the ballot papers were formal or informal pursuant to the requirement of s. 153 of the Organic Law.
The Applicants made much of the fact that Box 2 did not have a tag with a serial number and that Boxes 1 and 3 had tags with serial numbers that did not correspond with the serial numbers of boxes pleaded in the petition.  It is irrelevant whether the serial numbers corresponded with the serial numbers as pleaded in the petition.  It is immaterial whether the presiding officers named in the particular grounds of the petition did actually identify the ballot-papers as having been authenticated by them.
It is not relevant to refer to the petition grounds for the purpose of determining the formality or informality of the ballot papers and votes cast.  Quite simply the ballot papers were to be scrutinised and counted as if they were contained in an official ballot box.
I am satisfied that the unofficial boxes were properly identified and exhibited before the trial judge and quite adequately identified for the purpose of the count.  No objections have been taken as to the informality of the ballot-papers, by reason of the application of s. 153.  The relevant presiding officers verifying their signatures have authenticated all the ballot papers, except two which were declared informal.
In the final analysis I am satisfied that the ballot papers are to be counted as valid for the purpose of the Court order.  The following is the result:
1.	Sumono	original figure 16, 222 + 1569	17, 791	
2.	Ambane	original figure	17, 589	
 	 	Difference	202	
The effect therefore is that the omission by the officials of the Electoral Commission in not providing adequate number of official ballot boxes “did affect the result of the election”, in that, if it were not for the omission resulting in 1569 votes not being counted the result would have had Thomas Sumono winning by 202 votes.
My conclusion therefore is that the declarations of the Court should be:
·         That the first applicant who was returned as elected was not duly elected.
·         That the General Election for the Chimbu Provincial Electorate shall be voided.
·         The deposit be paid to the Respondent.
·         That a new election shall be held.
·         Costs of the Respondent be borne by the Electoral Commission.
I should like to make some observation about the conduct of this Electorate’s election which is common to a number of other electorates’ election being reviewed by the Courts.
The only reason that this Provincial Electorates election is being voided is because the electoral Commission was inefficient, in that it did not ensure, as was its statutory duty, that there were adequate number of officially provided ballot-boxes to enable all eligible voters to cast their votes.
As the Court has now determined 1,569 votes were valid, except that they were not placed in official ballot-boxes.  These voters have been denied their constitutional right to have their votes that were cast for the candidate of their choice, being counted, because of the administrative inefficiency of the Electoral Commission.
The Electoral Commission has had five (5) years to prepare for this election.  It is unacceptable that costly elections have to be voided because of this kind of administrative inefficiency, that results in a large number of votes being excluded, affecting the result as they have in this case and necessitating another expensive election.
I believe that where administrative deficiencies are unavoidable, such as in this case where official ballot boxes were not immediately available to complete the polling within the scheduled polling period, there ought to have been ample administrative discretion exercised to reschedule the remainder of the polling to avoid this kind of result.
In a number of such incidences I do not believe enough discretionary judgments have been exercised.
KAPI DCJ:  The Court handed down its decision in the review and directed that the votes contained in the patrol boxes which were validly rejected should be counted to determine whether the error committed by Electoral Commission officials “did affect the result of the election” under s. 218 (1) of the Organic Law.
The votes have been counted under the supervision of the Registrar and the result of the count are sufficiently set out in the judgement of the Chief Justice.  His Honour has also summarized and set out the objections taken by the applicants to the counting of these votes.
With respect the objections raised are premised on a misconception of the nature of the direction given by the Court to count the votes.  The directions were given on the basis that the patrol boxes (which were validly rejected) were sufficiently identified at the trial and that they were available for counting.  The counting of the votes as directed are subject to the same rules applicable to counting of votes under s. 153 and s. 154 of the Organic Law.  The Court did not give any right to any of the parties to raise grounds of objection in relation to proof of the patrol boxes or whether or not a particular Presiding Officer signed the ballot papers.  In effect that would be allowing the parties to try new issues in the Supreme Court.  This Court has no power to conduct such an inquiry and the Court did not give any such direction.  For these reasons I would dismiss the objections.
Counsel for the Electoral Commission further submits that the Court should find that the total number of votes for the purposes of determining the issue under s. 218 (I) of the Organic Law should be a total of 1300 votes as found by the trial judge.  He submits that this finding of fact has not been questioned on review and in view of s. 220 of the Organic Law this Court has no power to disturb this finding of fact.
I find that this finding of fact has been overtaken or overruled by the Court in concluding as a matter of law that in order to satisfy the criteria set out in s. 218 (I) of the Organic Law, the Court must examine and count the total number of votes and determine the manner in which the votes may be distributed amongst the candidates and not merely speculate as was the true nature of what the trial judge did in determining the total number of votes.   The trial judge based his finding on the estimates given by Electoral Commission officials and not on an examination of the votes.  We have already determined that the trial judge fell into error in our earlier ruling.  I would dismiss this submission.
In the circumstances, the criteria set out under s. 218 (I) has to be determined in accordance with votes as counted under the supervision of the Registrar.  It is clear that only 2 votes were declared informal under s. 153 of the Organic Law; B Kamana scored one vote and the respondent scored 1,569 votes.  If the Electoral Commission officials had provided proper ballot boxes, the votes in the patrol boxes would have been counted and the respondent would have scored the most votes.  The answer to the inquiry under s. 218 (I) of the Organic Law is that the error committed by the officials did affect the result of the election.
In the result, I would declare that Fr Ambane is not duly elected and direct that there be a by-election in respect of Chimbu Regional Electorate.
LOS J:  As a result of our decision and orders made on the 3rd September 1998, votes contained in the uncounted patrol boxes were counted on the 9th September under the supervision of the Registrar of the National and the Supreme Courts.  The uncounted votes were contained in three boxes.  In the first box, 593 votes went to Thomas Tumun Sumuno, one went to Bill Kuri Kamana.  In the second box, 537 votes went to Thomas Tumun Sumuno.  In the third box, 439 went to Thomas Tumun Sumuno and two were informal.  In total 1,569 votes went to Thomas Tumun Sumuno.
At the presentation of these figures on behalf of the first applicant and to some extent the second applicant there was an attempt to revert to the issues before the National Court including that of jurisdiction.  It was argued that these issues were allowed to be raised by paragraphs 3 of our order in particular the part in the bracket.  It reads “(Any dispute on the validity of any vote is to be referred to this Court for determination)”.  It is my view that this part of the order must be read and confined to our interpretation of the test in s. 218 (1) of the Organic Law.  We determined that the appropriate test was “whether the error or omission did affect the result of the election and not whether the result may have or in all probability would have been affected”.  The trial judge speculated that there were 1,300 votes affected.  The result of the votes put before us is not by speculation but by sheer physical count.  The electoral officers went through the votes applying all the criteria under the Organic Law.  They found only two votes informal.  The finding by the trial judge is overwhelmingly confirmed with the addition of 269 votes.  On the test that we have determined the counting, indeed shows that the omission and error by the electoral officers did affect the result of the election.
So in the context of the new test and the reason for our ordering a count, I do not consider any room for any adventure trips.  There were many questions of identification of boxes and certification.  These questions involved who did what - which team, who should have certified what.  These were answered.  Looking at all the ballot papers irrespective of which team was responsible for which boxes, except for two informal votes, there was nothing wrong with the 1,569 votes.
I would grant review insofar as the test applied by the trial judge but confirm the final decision he had reached.
ORDERS OF THE COURT
1.       That the first applicant who was returned as elected was not duly elected.
2.       That the General Election for the Chimbu Provincial Electorate shall be voided.
3.       The deposit be paid to the Respondent.
4.       That a new election shall be held.
5.       Costs of the Respondent be borne by the Electoral Commission.
Lawyer for the First Applicant:  Maladinas Lawyers
Lawyer for the Second Applicant:  Nongorr & Associates Lawyers
Lawyer for the Respondent:  Kunai & Company Lawyers