SC712

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 20 OF 2003

SAMSON CHRIS NAPO

And

JOHN MUINGEPE

And

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

WAIGANI: LOS, SALIKA, SEVUA, JJ
19 June, 5 August, 2003

Election Petition - Application to review – S.118(1)(b) of the Organic Law – duty of Returning Officer to provide and furnish proper ballot boxes – s.19 of the Organic Law – appointment and duty of Returning Officer – s.20 of the organic Law – Appointment and duty of Assistant Returning Officer have authority to direct that boxes be numbered in a certain way – the duplicate boxes became distinct boxes after being numbered – In the absence of foul play boxes counted.

Counsel:
Mr R A Saulep for the Applicant
Mr D Stevens for the First Respondent
Mr J Nonggorr for the Second Respondent 

05 August, 2003

BY THE COURT:	This is an application made pursuant to s.155(2)(b) of the Constitution seeking to invoke the inherent power of the Supreme Court to review the decision of the National Court given on the 10 March 2003 when the National Court dismissed the election petition EP2 of 2002 and ordered costs against the petitioner, now the applicant.

The applicant Samson Chris Napo was the runner-up for the Bulolo Open Seat and was the former member for the seat in the last Parliament. He polled 4032 votes finishing second behind the First Respondent by 45 votes.

GROUNDS FOR REVIEW

The following are grounds for the review.

4.	GROUNDS 

4.1	His Honour Kirriwom J, erred in fact and in law in holding that the issuing of duplicate ballot boxes by Presiding Officer Peter Yasaro, of ballot boxes MOR 0184 (x2) and MOR 0186 (x2) was acceptable or excusable on the grounds that:

(a)	at the time of the issuing of the said duplicate Ballot Boxes, the following ballot boxes were empty and available for use, namely MOR 0187, MOR 0188, MOR 0189, MOR 0190 and MOR 0191; and

(b)	His Honour erred and was swayed by irrelevant considerations or evidence namely;

(i)	that polling was running behind schedule;
(ii)	officers forced to make hard decisions under enormous pressure of the elections whilst on the ground;
(iii)	this was the first time that the national and local level government elections were held together and thus, the boxes were numbered the same.

(c)	In so far as the Presiding Officer exercised his discretion to issue the duplicate ballot boxes, such exercise of discretion was unwarranted, wrongful and contrary to s.118(1)(b) of the Organic Law on National & Local Level Government Elections ("the Organic Law"), alternatively, rendered the duplicate boxes unofficial or not proper ballot boxes within the meaning of s.118(1)(b) of the Organic Law. 

(d)	His Honour erred in holding that the matters referred to in paragraphs 4.1(a) – (c) did not constitute errors or omissions within the meaning of s.218(1) of the Organic Law.

4.2	His Honour erred in fact and in law in holding that Presiding Officer Peter Yasaro’s exercise of discretion to renumber-redesignate or rename the disputed duplicate ballot boxes as MOR 0184 "No 1" and "Team 2" and MOR 0186 "1" and "2" was lawfully acceptable or excusable, on the grounds that:-

(a)	at the time of the issuing of the said duplicate Ballot Boxes, the following ballot boxes were empty and available for use, namely MOR 0187, MOR 0188, MOR 0189, MOR 0190 and MOR 0191; and

(b)	His Honour erred and was swayed by irrelevant considerations or evidence namely;

(i)	that polling was running behind schedule;
(ii)	officers forced to make hard decisions under enormous pressure of the elections whilst on the ground;
(iii)	this was the first time that the national and local level government elections were held together and thus, the boxes were numbered the same.

(c)	In so far as the Presiding Officer exercised his discretion to do so, such exercise of discretion was unwarranted, wrongful and by reason thereof, rendered the boxes unofficial or not proper ballot boxes within the meaning of s.118(1)(b) of the Organic Law.

(d)	His Honour erred in not concluding that the grounds referred to in Paragraphs 4.2(a) – 9c) above constituted errors or omissions within the meaning of s.218(1) of the Organic Law.

4.3	His Honour erred in fact and at law, when he held that the re-numbering, (by the use of a marking pen), of the two MOR 0184 boxes as "1" and "Team 2" and the two MOR 0186 boxes as "1" and "2" to differentiate the duplicate ballot boxes, made them distinct and separate boxes and no longer duplicate boxes on the grounds that:

(a)	such addition is not or was not an official addition; 
(b)	such addition is not contemplated by or contrary to s.118(1)(b) of the Organic Law.
(c)	The handwritten descriptions or re-numberings rendered the boxes "unofficial" and no longer within the scope and meaning of s.118(1)(b) of the Organic Law as being "proper ballot boxes" or official ballot boxes.
(d)	His Honour failed to accept and apply evidence agreed to by the parties by way of Amended List of Agreed facts (Doc.57).
(e)	His Honour should have held that the matters referred to in paragraphs 4.3 (a) – (c) constituted errors and omissions within the meaning of s.218(1) of the Organic Law.

4.4	His Honour erred in fact and at law in holding that the failure and/or refusal by the Returning Officer to reject the duplicate ballot boxes at the counting was a proper and valid exercise of discretion by such Returning Officer or Assistant Returning Officer on the grounds that:

(a)	Peter Yasaro, being the Presiding Officer who authorised the use of the duplicate ballot boxes was not in a position, as a matter of law, to validly exercise such discretion at the counting.
(b)	He was biased in favour of his own earlier decision to issue, and renumber the duplicate ballot boxes.
(c)	His Honour erred in not holding or not finding that the grounds referred to in paragraph 4.4(a) and (b) constituted errors or omissions within the meaning of s.218(1) of the Organic Law

4.5	His Honour Kirriwom J erred in not adequately considering or at all, the meaning and effect of s.118(1)(b) of the Organic Law.

(a)	In so far as s.118(1)(b) prescribed the use of "proper ballot boxes".
(b)	In so far as s.118(1)(b) related tot he use of Duplicate Ballot Boxes used during the Bulolo Open Electorate; and 
(c)	In so far as the applicant’s Final Written Submissions dealt with s.118(1)(b).

4.6	His Honour erred, when he should have, but did not consider, determine and rule on the First Relief Sought by the Applicant/Petitioner, namely:

"A Declaration that in an election, no two ballot boxes shall have or share the same serial number and if they did, both should be regarded as informal and disallowed for the purposes of counting".

4.7	His honour erred at law in holding that in order for the duplicate Ballot Boxes to be rejected, there must have been evidence of foul play, on the grounds that:

(a)	Section 118(1)(b) of the Organic Law does not require or contemplate such evidence, reasoning or requirement;
(b)	Section 218(1) does not necessarily require proof of foul play or criminal intent.

At the hearing of the review Ground 4.3 was abandoned.

FACTS

The applicant is a loosing candidate in the last National Elections. He was the runner up to the First Respondent in the elections. After the First Respondent was declared winner for the Bulolo Open Seat the applicant mounted a petition seeking a recount of all the ballot boxes for the Bulolo Open Electorate except for boxes marked: MOR O184(1), MOR O184(2), MOR O186(1) and MOR O186(2). These 4 boxes were counted at the time of scrutiny after polling had been completed. In the recount the applicant wanted the ballot papers in those 4 boxes to be excluded and the winner to be declared minus the votes in the 4 boxes.

The complaint by the applicant is that the Electoral Commission used 4 duplicate boxes: MOR O184(1), MOR O184(2), MOR O186(1) and MOR O186(2). He challenged the inappropriateness of the Electoral Officers using the ballot boxes with the same serial numbers at Upper Waria in the Garaina area. Just before polling in the area Peter Yasaro the Assistant Returning Officer for that electorate directed that to distinguish the 4 boxes, the boxes be numbered which was done. Upon the boxes being numbered they became separate distinct boxes. They became: MOR O184(1), MOR O184(2), MOR O186(1) and MOR O186(2).

The applicant argued at the time that duplicate boxes should never be used because of the possibility of fraud being committed and the difficulty in differentiating a good box from a fraudulent one.

The applicant further alleged at the trial that the Provincial Electoral Officer, the Returning Officer and Peter Yasaro the Assistant Returning Officer were collaborating with each other to use the duplicate boxes.

The applicant argued that the 4 boxes should not have been allowed to be counted. He submitted through his Counsel that the boxes ought to have been rejected as being invalid.

In the end the learned trial judge ruled that the Assistant Returning Officer Peter Yasaro was a truthful witness and accepted his explanation as to what had happened. He ruled that the boxes were no longer duplicates as soon as additional distinguishing marks or features were added onto them. The learned trial judge went on to say:

The petitioner has not shown to my satisfaction that the use of those ballot boxes were illegal. I find no evidence of deliberate and or intentional act or omission by the Electoral Commission through its servants or agents to use other than but reliable and legitimate methods or practice in the conduct of the election in Bulolo in the polling at Garaina, especially where the boxes under challenge came from. Therefore there was no reason for the boxes concerned to have been rejected or excluded from counting. Without evidence of foul play there is no reason to exclude 2727 votes counted from those four boxes. This complaint is therefore unmeritorious and must be dismissed".

It is these findings that the applicant seeks review of:

Ground 4.1

His Honour Kirriwom J erred in fact and in law in holding that the issuing of duplicate ballot boxes by presiding officer Peter Yasaro of ballot boxes: MOR O184(1), MOR O184(2), MOR O186(1) and MOR O186(2) was acceptable or excusable on the grounds that:

(a)	At the time of the issuing of the said duplicate ballot boxes, the following ballot boxes were empty and available for use; namely MOR 0187, MOR 0188, MOR 0189, MOR 0190 and MOR 1091."

The learned trial judge at page 17 and 18 of his judgement when addressing this issue said:-

"It was strongly argued that duplicate boxes were never used in elections because of the possibility of fraud being committed and the difficulty in differentiating or distinguishing a good box from a fraudulent one. This is a perfectly valid argument and sustainable only if there is evidence to suggest that there has been foul play, and one of the boxes is not legitimate. On its own this contention is superfluous and is unfairly attacking the exercise of discretion by the presiding officer who had to make hard decisions under enormous pressure of the elections whilst on the ground. It has not been proved to me that it was illegal to use duplicate boxes although common sense would say so. But the issue of duplicate boxes is raised by the petitioner alone. It is not conceded to directly by the respondents.

I accept Peter Yasaro’s evidence as to why these boxes were used. Electoral Commission would not have authorised the use of the same serial numbers for two ballot boxes (one for LLG and another for National) during General Elections without good reasons and if it was illegal or unconventional. They did this for good reason except that the words "National" and "LLG" were not on the labels thus for convenience sake, the Assistant Returning Officer Peter Yasaro, in the interest of completing the polling in those very trying and demanding time, deciding in his discretion that those boxes with same serial numbers be used but to be distinguished from each other by figures (1) and (2) handwritten on each of them in permanent marker pen".

His Honour concluded that what Peter Yasaro did was a matter of discretion open to him. We agree with what the learned trial judge said bout the decision of Peter Yasaro. We are also of the view that the decision was entirely a matter of discretion and good common sense for Peter Yasaro whether to use the two MOR 0184 boxes and the two MOR 0186 boxes or to use the other available boxes namely MOR 0187, MOR 0188, MOR 0189, MOR 0190 and MOR 0191. Peter Yasaro in our view was at liberty to choose any of those boxes available. He choose the two MOR 0184 and two MOR 0186 boxes and in doing so marked them with figures 1 and 2 on each of the said boxes in permanent marker pen to distinguish them from each other.

It was submitted by the applicant that only the Electoral Commission could mark the boxes and not Peter Yasaro. He submitted through counsel that once Peter Yasaro made markings on the boxes, the said boxes became invalid and or unofficial and were not proper ballot boxes within the meaning of s.118(1)(b) of the Organic Law and that they must be rejected and the votes therein too must be rejected and not counted. The applicant insists that the ballot boxes were improper because they had:-

•	Duplicate numbers
•	Numbering of ballot boxes could only be done by the Electoral Commission and only the Electoral Commission numbered ballot boxes are official.
•	The renumbering, re-designation or renaming of the 4 ballot boxes doing at the direction of the Assistant Returning Officer in the addition of numbers "1" and "2" to the boxes was not an official numbering.
•	Peter Yasaro did not have the authority and therefore acted improperly in directing that the 4 boxes be numbered "1" and "2" to respectively to differentiate them.
•	Because of the unofficial numbering re-designation renaming of the 4 boxes they were improper ballot boxes within the meaning of s.118(1)(b) of the Organic Law.
•	Consequently the ballot boxes could not be admitted to scrutiny and the votes in the boxes ought not to be counted.

In answer to the applicant’s submission the Electoral commission through Counsel submitted that s.118(1)(b) of the Organic Law does not say that the ballot boxes have to be numbered by the Electoral Commission nor does it say that Commission must issue ballot boxes. It does not say that only the Commission can number or renumber ballot boxes: Section 118(1)(b) says:-

"(1)	If, on the day of nomination, the proceedings stand adjourned to the commencement of the polling, the Returning Officer shall immediately make all necessary arrangements for taking the poll and in particular shall:

(a)	…………
(b)	provide and furnish proper polling booths and
ballot boxes; and 
(c)	…………..
(d)	…………..

We are in agreement with the respondents submission that s.118(1)(b) requires the Returning Officer to provide and furnish proper ballot boxes. In the practice the Electoral Commission would purchase the ballot boxes, number and provide them to the Returning Officer to use but in law it is the responsibility of the Returning Officer.

The respondents further submitted the following:

"20.	If, by law, it is the responsibility of the Returning Officer to provide "proper ballot boxes’, it is the lawful responsibility of the Returning Officer to ensure that the ballot boxes meet the minimum requirements of the law, including the regulations. The numbering of the ballot boxes is also the responsibility of the Returning Officer.
21.	Again in practice, the Electoral Commissioner may provide numbered ballot boxes for use by Returning Officers, but the law says that it is the Returning Officers responsibility to do so. If a Returning Officer decides to wipe out the numberings provided by the Commissioner and adopts a different numbering, the Returning Officer has the authority to do this. By doing so, the ballot boxes are not rendered "improper ballot boxes".
22.	Section 20 of the Organic law says that, subject to the provisions of the Organic Law, the Regulations and to the control of the Returning Officer, an Assistant Returning Officer may "perform the functions and exercise the powers of the Returning Officer, in, or in relation to, that portion of the electorate.
23.	…………
24.	…………

We respectfully agree with the submissions of the Electoral Commission. We are of the same view that Peter Yasaro had the authority to direct that the boxes be numbered in a certain way. As Assistant Returning Officer he had the lawful authority to so direct. It was his responsibility to provide and furnish proper ballot boxes as the Assistant Returning Officer performing the function of what would normally be the Returning Officers. The line of argument by the applicant that the 4 ballot boxes became invalid after they were renumbered in our view are unmeritorious. Peter Yasaro in his uncontradicted evidence said he had sought instructions from his Returning Officer but "since there was no instructions, I used my discretion to allow the duplicate boxes…… Electoral Commissioner did not direct me."

We are of the view that the Trial Judge did not fall into any error when he ruled that there was nothing wrong done to reject the 1288 votes from the 4 disputed boxes.

We are also satisfied that no error was committed by the trial judge because of the concession by the applicant that Peter Yasaro was a truthful witness and that his renumbering of the boxes was done in good faith. That was why the trial judge said he would only disallow the boxes from scrutiny if foul play was established. There was no foul play established.

The end result is that we dismiss the application to review because we find that the learned trial judge did not fall into any error in the way he determined the matter. Costs are awarded to the Respondent.
__________________________________________________________
Lawyer for the Applicant:		Saulep Lawyers
Lawyer for the First Respondent:	Stevens Lawyers
Lawyer for the Second Respondent:	Nonggorr & Associates lawyers