SC1981
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 8 OF 2019

BETWEEN
PHILIP UNDIALU
Applicant

AND
FRANCIS POTAPE
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Makail, Polume-Kiele & Dingake JJ
2020: 16th March & 7th August

APPLICATION FOR REVIEW – Review of National Court decision – Election petition – Order for recount of votes – Errors or omissions by electoral officials at counting – Constitution – Section 155(2)(b)

ELECTION PETITION – Illegal practices – Errors or omissions – Allegations against Electoral Officials at counting – Proper tests to apply – Organic Law on National and Local-level Government Elections – Sections 215 & 218

ELECTION PETITION – Allegations of tampering and manipulation of Form 66B and final results of election – Whether tampering with or manipulation constituted illegal practices or errors or omissions – Organic Law on National and Local-level Government Elections – Sections 215 & 218

PLEADINGS – Pleading of grounds of review – Grounds must be clear and unambiguous, brief, specific and comprehensible but not convoluted and riddled with longwinded argumentative statements – Supreme Court Rules – Order 5 – Rule 19(c) 
       
Facts

This is an application to review the decision of the National Court to uphold an election petition and order a recount of votes.  The petition was based on allegations of illegal practices and errors or omissions.  The allegations of illegal practices were withdrawn prior to the trial.  The National Court upheld the allegations that the Returning Officer “tampered” with or “manipulated” Form 66B by changing the final figures on it and his actions and or omissions may have affected by the final result of the election.  The first respondent asserted that the application for review comprised of multiple grounds totalling thirty and are so convoluted and vague because they do not clearly and succinctly identify the important point of law that is without merit or an obvious error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice. 

Held:

1.	While the grounds are multiple thirty in totality, they are not inadequate or failed to sufficiently articulate and identify the issues for determination.  Nor are they vague, lacked particulars or details but comprehensible.

2.	A petition must make it clear whether an illegal practice or error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proven.  Section 215 of the Organic Law on National and Local-level Government Election deals with illegal practices and Section 218 Organic Law on National and Local-level Government Election deals with errors or omissions: Phillip Kikala v. Electoral Commission (2013) SC1295 adopted.

3.	The allegation that the Returning Officer “tampered” with or “manipulated” the final figures on Form 66B which may have affected the final results of the General election constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

4.	The allegation that the Returning Officer “tampered” with or “manipulated” the final figures to which the declaration of the applicant was made on 24th July 2017 constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

5.	As the allegations of illegal practices by Returning Officer and electoral officials at counting were withdrawn, there were no allegations of illegal practices for the first respondent to rely on to prove at trial.

6.	The trial judge erred when he held that the Returning Officer “tampered” with or “manipulated” the final figures on Form 66B which may have affected the final results of the General election constituted an error or omission under Section 218 of the Organic Law on National and Local-level Government Election.

7.	The trial judge erred when he held that the Returning Officer “tampered” with or “manipulated” the final figures to which the declaration of the applicant was made on 24th July 2017 constituted an illegal practice under Section 215 of the Organic Law on National and Local-level Government Election.

8.	The misapplication of the different allegations (illegal practices and errors or omissions) not only constituted an error on the face of the record (judgement) but the finding that Form 66B is “manifested with glaring instances of tampering or manipulation” is not supported by pleadings and has resulted in an injustice. 

9.	The application for review is upheld, the decision of the National Court is quashed and petition is dismissed with costs.

Cases Cited:

Francis Potape v. Phillip Undialu & Electoral Commission: EP No 3 of 2017 (Unnumbered & Unreported Judgment of 24th January 2018)
Francis Potape v. Phillip Undialu & Electoral Commission (2018) SC1680
Application of Ludwig Shulze (1998) SC572
Applications of Kasap and Yama [1988-89] PNGLR 197
Kalit v. Pundari (1998) SC569
Waranaka v. Dusava (2006) SC98 
Jurvie v. Oveyara (2008) SC935
James Marape v. Tom Tomiape (2006) SC827
John Kekeno v. Phillip Undialu & Electoral Commission (2014) SC1428
Sandy Talita v. Peter Ipatas (2016) SC1603
Phillip Kikala v. Electoral Commission (2013) SC1295
Jamie Maxton-Graham v. Electoral Commission & Ors (2013) N5385
Mathias Karani v. Yawa Silupa (2003) N2385
Robert Sandan Ganim v. Lino Tom Moses (2018) N7233
Electoral Commission & Amkat Mai v. Simon Solo & Anor (2015) SC1467
Simon Solo v. Amkat Mai & Electoral Commission (2013) N5562
Samson Malcolm Kuli v. James Apamia & Ors (2013) N5275
James Pini v. Wesley Nukundi & Electoral Commission (2018) N7342
Kelly Kilyali Kalit v. John Pundari and Electoral Commission (1998) SC569

Counsel:

Mr. P. Mawa with Mr. G. Gileng, for Applicant
Mr. P. Othas, for First Respondent
Ms. A. Kimbu, for Second Respondent

JUDGMENT 

7th August, 2020

1.	BY THE COURT:  We heard parties and read their written submissions including documents in five bound volumes of review book in relation to the application to review the decision of the National Court of 28th June 2019 pursuant to Section 155(2)(b) of the Constitution.  By that decision, an election petition by the first respondent was upheld and a recount of votes was ordered.  

2.	It arose from the 2017 General election where the applicant was declared the successful candidate after scoring the highest votes and the first respondent was runner-up.

3.	On 24th January 2018 the National Court upheld objections to competency and dismissed the petition.  A Supreme Court review of that decision was upheld, the petition was reinstated, and a retrial was ordered: We refer parties to the full reasons for decision in Francis Potape v. Phillip Undialu & Electoral Commission: EP No 3 of 2017 (Unnumbered & Unreported Judgment of 24th January 2018) and Francis Potape v. Phillip Undialu & Electoral Commission (2018) SC1680.

Issues

4.	We consider that the review can be decided on three principal issues:

4.1.	Whether the grounds of review sufficiently articulate and identify the issues for determination.
		
4.2.	If so, whether the finding by the trial judge that Form 66B was manifested with glaring instances of “tampering” or “manipulation” constituted an illegal practice or error or omission.

4.3.	Whether the finding by the trial judge that the final figures to which the declaration of the applicant was made on 24th July 2017 were “tampered” with or “manipulated” and constituted an illegal practice or error or omission.	

Sufficiency of Grounds of Review

5.	There are thirty (30) grounds of review.  Despite the withdrawal of his written notice of objection to competency due to its belatedness and not being listed for hearing before us, the first respondent asserted that even though the applicant relied on a high number of grounds, each ground failed to meet the tests for grant of review and the review should be dismissed.  

6.	First, each ground failed to identify an important point of law that is not without merit or an obvious error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice: see Application of Ludwig Shulze (1998) SC572; Applications of Kasap and Yama [1988-89] PNGLR 197; Kalit v. Pundari (1998) SC569; Waranaka v. Dusava (2006) SC98 and Jurvie v. Oveyara (2008) SC935

7.	Secondly, the multiple grounds are so convoluted and vague such that the entire review is beyond comprehension and adverse to the respondents defence of the review.  For these reasons, the review should be dismissed as being incompetent: see James Marape v. Tom Tomiape (2006) SC827; John Kekeno v. Phillip Undialu & Electoral Commission (2014) SC1428 and Sandy Talita v. Peter Ipatas (2016) SC1603.

Pleading of Grounds of Review

8.	As to the requirement of pleading of grounds, we note that Order 5, rule 19(c) of the Supreme Court Rules (SCR) places an obligation on the applicant to “state briefly by specifically the grounds relied upon in support of the review”.  (Emphasis added).  

9.	What must constitute “briefly” but “specifically” the grounds is not defined in Order 5, rule 19 or anywhere in the SCR.  It is a matter of construction.  The Supreme Court cases cited above speak of the need for clarity in the grounds of review and avoidance of longwinded argumentative statements which will only result in congested pleadings and hostile to a reader.  

10.	We further note that in Kekeno v. Undialu (supra), the applicant relied on five grounds to review the decision of the National Court to dismiss an election petition for being incompetent.  While the grounds were not that many or convoluted, they were poorly drafted because they were too general, vague and lacked particulars or “specifics” and rendered the entire application defective.  The Court held that the grounds failed to identify the error made by the trial judge to strike out the allegations of fact on the grounds that they were inadequate, vague, convoluted and confusing. 

11.	By way of illustration, at [14] of the judgment, the Court referred to Ground 2 of the review.  This ground is reproduced below:

“His Honour by going through each ground of the petition and striking down each grounds of the petition erred in law in that, His Honour went beyond the requirements of section 208(a) of the Organic Law on National and Local Level Government Election (Organic Law) and the decision in Sir Barry Holloway v. Aita Ivarato [1998] PNGLR 99”.

12.	The Court held that not only was it too general and vague but the first part of the ground was misleading because the trial judge was entitled go through each ground of the petition and strike them out for being incompetent.  

13.	The second part did not point or refer to a specific principle of law which the case of Holloway v. Ivarato stood for and which the trial judge failed to apply.

14.	A further example is at [19] of the judgment.  The Court referred to Ground 3 of the review which is reproduced below:

“The learned Judge erred in not considering the petition which on the face of it provided sufficient and material facts to proceed to trial”.

15.	The Court held that this ground failed to provide particulars with reference to specific finding in the judgment where the trial judge erred.  For instance, it failed to specify:

-	What sufficient and material facts were pleaded either under Section 215 or Section 218 of the Organic Law or both;
-	Which of the 36 grounds had sufficient and material facts supporting them; and
-	Which the trial judge failed to uphold and allowed to go to trial.

16.	Taking those into consideration, we decline to dismiss the review for the reasons advanced by the first respondent because we are not satisfied that the grounds are inadequate or failed to sufficiently articulate and identify the issues for determination.  

17.	Comparatively, while the grounds of review are many thirty in totality, they are not as bad as those in Kekeno v. Undialu (supra).  They are not vague or lacked particulars or details but comprehensible.  We explain below.

Illegal Practice

18.	The allegation of illegal practice may be briefly stated thus; at completion of the elimination count, the first respondent was the candidate who scored the highest votes.  It was at exclusion no 19 of candidate Dr. Hamiya Hewali on 23rd July 2017 that the first respondent scored 67,435 votes while the applicant scored 65,836 votes and was runner-up.  The absolute majority was 66,637 votes.  The difference was 1,599 votes.

19.	However, the Provincial Returning Officer Mr. John Tipa entered the counting centre, chased and removed all the counting and security officials including scrutineers from the counting centre.  He appointed his own men to conduct a recount of the completed ballot-papers.

20.	The hand-picked counting officials tampered with figures on the Tally Board, Form 66A and Form 66B.  Mr Tipa changed the figure of 65,836 to 69,241 of the total number of votes received by the applicant on Form 66B.  As a result, the applicant scored the highest number of votes.  These were the allegations of fact.

Errors or Omissions

21.	The allegations are these, there were no errors or omissions at counting and counting went well right to the final count and elimination of Dr. Hewali.  Votes from Dr. Hewali were distributed to the applicant and first respondent and exhausted votes to the exhausted votes on 23rd July 2017.

22.	Instead of Mr Tipa publicly declaring the first respondent as the candidate-elect as stipulated in Section 175(1)(a) of the Organic Law, he erroneously endorsed the applicant who was the runner-up, on the Writ and returned it to the second respondent.  

23.	As a result, there was no public declaration of the candidate-elect.  The failure by Mr Tipa to make a public declaration of the candidate-elected constituted an error or omission under Section 175(1)(a) of the Organic Law.

Difference between Illegal Practices and Errors or Omissions

24.	We note that the trial judge identified the allegation as one of “tampering” or “manipulation” of the final figures and or the failure by the Returning Officer to make a declaration of the result of the election.  He observed that Form 66B was manifested with glaring instances of tampering or manipulation.

25.	We further note that these were the reasons why his Honour held that the final figures to which the declaration was made on 24th July 2017 were “tampered” with or “manipulated” and amounted to serious or material “errors” or “omissions” which may have likely affected the final result of the election and ordered a recount of votes.

26.	From these considerations, we consider that the important point of law that is not without merit is whether the allegation relied upon by the first respondent at trial was one of illegal practice or errors or omissions.  In other words, whether the allegation which the trial judge upheld that the final figures to which the declaration was made on 24th July 2017 were “tampered” with or “manipulated” constituted an illegal practice and may have likely affected the result of the election?  This issue is postulated in Grounds 5.1, 5.16, 5.17, 5.18, 5.19, 5.20, 5.21, 5.25, 5.26, 5.28 and 5.30 of the application for review.

27.	Similarly, the other issue postulated in the above stated grounds of review (supra) is whether the allegation which the trial judge upheld that the final figures in Form 66B were changed by the Returning Officer constituted an illegal practice.

28.	There is a difference between illegal practices and errors or omissions.  An illegal practice is a criminal offence.  An error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction: see [52] of the judgment in Phillip Kikala v. Electoral Commission (2013) SC1295.

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

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

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

31.	Illegal practice is provided in Section 215 of the Organic Law. It states:

	“215.	Voiding election for illegal practices.

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

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

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

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

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

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

32.	Section 218 of the Organic Law provides for an error or omission in these terms:

	“218.	Immaterial errors not to vitiate election.

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

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

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

34.	For illegal practice, the material facts are: 

(a)	The illegal practice;
(b)	The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority;
(c)	The result is likely to be affected by the illegal practice; and
(d)	It would be just that the candidate should be declared not duly elected or the election be declared void.

35.	As to an error or omission, the material facts are:

(a)	The error or omission;
(b)	The error or omission was committed or made by the electoral officer;
(c)	The error or omission did affect the result of the election.

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

37.	An example of a confusion between the two allegations occurred in the case of Talita v. Ipatas (supra).   At [84] to [88] of the judgment, the Supreme Court referred to Ground 5.9 of the review which stated that the National Court overlooked the facts pleaded in paragraphs 20 to 25 of the petition while paragraph 26 (and paragraph 27) simply tied those facts into the Organic Law provisions. 

38.	The Court noted that paragraphs 20 to 27 of the petition raised allegations of illegal practices, errors and omissions during polling at Lumbapes Ward of Mulitaka LLG, Lagaip-Porgera Electorate.  The allegations were based on the same chronology of events in paragraphs 7 to 19 of the petition in relation to polling at Tombaip 1 & 2 and Tombaip Ward of the same Maip Mulitaka LLG.  The Court held that the factual allegations in the petition were badly drafted and superficial and said this at [87]:

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

39.	At the National Court level, we refer to the Wabag Open electorate case of Robert Sandan Ganim v. Lino Tom Moses (2018) N7233 where the statement of facts in the petition identified numerous instances of hijacking of ballot-papers at polling at different locations but the petitioner maintained that the alleged acts and or omissions by polling officials were errors or omissions.  The Court held that they were contradictory and confusing and struck them out.

Examples of Illegal Practices

40.	Illegal practices are many and wide ranging and may be committed at polling or counting.  What is commonly referred to as “hijacking of ballot-boxes” is an example of an illegal practice at polling.  Another example of illegal practice at polling is marking of ballot-papers prior to polling by polling officials and/or supporters of candidates.  

41.	A further example is where the polling officials allow under-age persons to vote contrary to the age requirement of 18 years under Section 126(3) of the Constitution.  Another is double voting.  It is an offence under Section 100 of the Criminal Code and listed under Section 191 of the Organic Law as an electoral offence as pointed out by the Supreme Court at [19] of the judgment in Electoral Commission & Amkat Mai v. Simon Solo & Anor (2015) SC1467. 

Examples of Errors or Omissions

42.	There is a multitude of acts and/or omissions by electoral officials that may constitute “errors” or “omissions” within the meaning of Section 218 of the Organic Law.  An error or omission may be committed by an electoral official at polling or counting.

43.	An example of an error or omission at polling is where the polling officials allow under-age persons to vote through negligence or dereliction of duties as in the case of Simon Solo v. Amkat Mai & Electoral Commission (2013) N5562, see also Electoral Commission & Amkat Mai v. Simon Solo & Anor (supra). 

44.	Double-voting through negligence or dereliction of duties by polling officials may be regarded as “errors or omissions” as pointed out by the Supreme Court at [20] of the judgment in Electoral Commission & Amkat Mai v. Simon Solo & Anor (supra) . 

45.	Failure by counting officials to properly count votes and misallocation of ballot-papers are two examples of errors or omissions committed at counting as was held in Samson Malcolm Kuli v. James Apamia & Ors (2013) N5275.

46.	Failure to admit a ballot-box to scrutiny under Section 153A of the Organic Law is another example of an error or omission committed at counting as was the unproven allegation in James Pini v. Wesley Nukundi & Electoral Commission (2018) N7342.

Tampering and manipulation – Illegal Practice or Error or Omission?

47.	In his decision the trial judge identified the allegation as one of tampering or manipulation of the final result of the election and went on to uphold the allegation as being proven.  His Honour did not grant a relief declaring the applicant not duly elected or election void prescribed by Section 215 of the Organic Law, but invoked the discretion conferred on him to do real justice to the case under Section 217 of the Organic Law by ordering a recount of votes.  The real question is, is tampering or manipulation of final result of the election an illegal act or error or omission?  

48.	In our view, tampering is an illegal act because the verb “tamper” is defined in Oxford Advanced Learner’s Dictionary 7th ed, Oxford University Press, 2005 at page 1511 as “to make changes to something without permission, especially in order to damage it”. It connotes a deliberate act.

49.	Similarly, manipulating is an illegal act because there is an element of dishonesty.  The verb “manipulate” is defined by the same dictionary at page 898 as “to control or influence somebody or something, often in a dishonest way so that they do not realise it”.

50.	On the other hand, an “error” is defined by the same dictionary at page 494 as “a mistake, especially one that causes problems or affects the result of something” and an “omission” is defined by the same dictionary at page 1017 as “the act of not including somebody or something; the fact of not being included or done”.

51.	Based on these definitions, we are of the view that tampering or manipulation of Form 66B and the final results of the election are illegal practices.  It follows that it is inconceivable that they could be regarded as errors or omissions.  As illegal practices, they must be proved according to the test under Section 215 of the Organic Law.  Relevantly, that the result was likely to be affected by the Returning Officer’s illegal actions and it would be just that the candidate should be declared not duly elected or the election be declared void.

Withdrawal of allegations of illegal practices

52.	However, it is significant to note that the allegations of illegal practices were withdrawn by the first respondent prior to the trial.  This position is reinforced by the trial judge at [3] of the judgment where he stated and we quote:

“At the hearing of the competency of the petition in December 2017 the petitioner [first respondent] abandoned the grounds relating to illegal practices.  Consequently, the only ground that remained and is now the subject of the trial in the proceeding concerns errors and omissions allegedly committed by the Second Respondent through its servants, officers or agents [electoral officials]”.

53.	Despite the withdrawal of these allegations, we note that the first respondent led evidence at trial to prove them.  In his defence of the course he took in the National Court, the first respondent submitted that in its earlier decision against the ruling on objections to competency which dismissed the petition, the Supreme Court held that the pleadings were not contradictory and confusing but identified an issue in relation to the two sets of figures at the final and conclusion of the count.   One favoured him as scoring the highest votes and the other in favour of the applicant.  It was, therefore, important that the different results be resolved by the National Court.

54.	With respect, this submission is not entirely correct.  While it is acknowledged that the Supreme Court had identified the issue as one of conflicting results (figures) and the need to resolve them, it is not clear whether the proof of it was based on allegations of illegal practices or errors or omissions.  On the one hand, it would appear that the Supreme Court was referring to illegal practices when it stated at [22] to [23]:

“22.	The Petition clearly claims that the true result of the election, following the scrutiny, was that the Petitioner won.  It is possible of course that the Provincial Returning Officer conducted some undisclosed and unscrutinised recount as a result of which the First Respondent won the election.

23.	The Petitioner is not precluded from alleging, as he does, that such a process, even if undertaken, was irregular.  The remedy for that would be a properly conducted re-count.  That alternative relief is requested by the Petitioner in paragraph C3 of the Petition”.  (Emphasis added).

55.	On the other hand, the Supreme Court made no mention of errors or omissions as being the allegations to be proved at the retrial.  Thus, that decision does not assist the first respondent. 

Tampering or manipulation of Form 66B

56.	As to the allegation of tampering or manipulation of Form 66B, the first respondent led evidence that the figures posted on the Master Tally Sheet and Form 66B was manipulated.  The Master Tally official Mr Alex Andaija said that he entered scores on to the Tally Board using a permanent ink marker.  The final scores were 65,836 for the applicant and 67,435 for the first respondent.

57.	Another counting official Mr Wilson Habe who was responsible for recording the final figures onto Form 66B from the Tally Board said both figures balanced up at the end of the counting were 65,836 for the appellant and 67,437 for the first respondent.
 
58.	Counting officials waited for the arrival of Mr Tipa to formalise the final result and make a declaration.  When Mr Tipa eventually arrived, he chased out the counting officials including Messrs Andaija and Habe.  At the same time Mr. Tipa hand-picked a number of other officials and conducted a quality check on the distributed ballot-papers that were on the trays in the counting centre after the final counting.

59.	We note that Form 66B is an Electoral Commission official document and contains a list of the names of candidates and number of votes each has scored at the end of the counting for an electorate.  It is used by the Returning Officer for the purpose of identifying the candidate with the highest number of votes.

60.	The trial judge accepted the evidence of the first respondent and rejected the evidence of Mr Tipa that counting continued.  According to his Honour’s own observation of the exhibited photocopy of the Tally Board and Form 66B, the figures on them were “tampered” with.  As his Honour held at [43] of the judgment:

“Despite the evidence by the respondents in particular Mr Tipa and Ms Pame that the counting process continued, I am satisfied that there is sufficient evidence of manipulation because the figures on the Tally Board and Form 66B were clearly tampered with”.

61.	This finding and the repeated use of the words “tampering”, “tamper”, “tampered”, “manipulating”, “manipulate” and “manipulated” in the judgment support the applicant’s submissions all along which we accept that the petition was grounded on allegations of illegal practices under Section 215 of the Organic Law and were withdrawn prior to trial.  

62.	Thus, there was nothing before the Court for the first respondent to prove in relation to the allegations of illegal practices.  With respect, there lies the error.  We are satisfied that the trial judge erroneously applied the law under Section 218 of the Organic Law (supra) and treated the allegations of errors or omissions as illegal practices. 

Tampering or manipulation of final figures

63.	As to the allegation of tampering or manipulation of final figures by the Returning Officer, the first respondent led evidence that Mr Tipa was not always present during the counting and at the final exclusion.  It was Mr Rex Humbi, the Assistant Returning Officer who was present and supervised the counting.

64.	The trial judge accepted this evidence and held that the counting and scrutiny process was at times supervised by an unauthorised person being Mr Humbi contrary to law particular, Section 149 of the Organic Law. The unauthorised supervision was not only illegal but also constituted “serious errors or omissions” by the second respondent and Mr Humbi.

65.	However, the allegations of illegal practices to the extent that Mr Humbi was unauthorised to supervise the counting in the absence of Mr Tipa was withdrawn or moreover, did not form part of the pleadings in the petition.  This is a glaring error on the face of the record (judgment).

66.	Even if it was an error or omission as was held by the trial judge, the confusion between the allegations is that, there is no allegation and proof by evidence from the first respondent’s witnesses that, by Humbi’s unauthorised supervision, the final result of the election was affected within the meaning of Section 218(1) of the Organic Law.  This explains why there was no further finding that the “serious errors or omissions” on account of the unauthorised supervision by the second respondent and Mr Humbi affected the final result of the election.  This is a further glaring error.

67.	The allegations of errors or omissions were targeted at Mr Tipa because of his irregular attendances at the counting centre to supervise counting and importantly, his arrival at the final exclusion and removal of counting officials and hand-picking of selected counting officials to re-check the ballot-papers.  In our view, the specific nature of these allegations against Mr Tipa does not constitute errors or omissions under Section 218 of the Organic Law but go beyond that.  In other words, the conduct of Mr Tipa as described is far beyond a conduct which can be described as a mistake or slip or omission.  They constitute illegal practices under Section 215 of the Organic Law.  

68.	Furthermore, where the allegations of errors or omissions included Mr Tipa’s refusal to declare or omit to declare the first respondent as candidate-elect and evidence was led at trial went beyond that to show that he removed counting officials and hand-picked other counting officials and did a re-check of the ballot-papers, not only do the allegations go beyond or outside the pleadings but constituted illegal practices where the final results were tampered with or manipulated.

69.	What all these come down to is, the finding of tampering with or manipulation of the final figures to which the applicant was declared as candidate-elect is unsupported by pleadings and constituted an error on the face of the record (judgment).  Furthermore, this finding was based on a misapplication of the law on illegal practice under Section 215 of the Organic Law and errors or omissions under Section 218 of the Organic Law and constituted an error on the face of the record (judgment).

Errors or omissions by electoral officials

70.	On the other hand, the allegations left to be proved at trial were errors or omissions.  The allegations were that, there were no errors or omissions at counting and counting went well right to the final count and elimination of Dr. Hewali.  Votes from Dr. Hewali were distributed to the applicant and first respondent and exhausted votes to the exhausted votes on 23rd July 2017.

71.	Instead of Mr Tipa publicly declaring the first respondent as the winner as stipulated by Section 175(1)(a) of the Organic Law, he erroneously endorsed the applicant who was the runner-up, on the Writ and returned it to the second respondent.  

72.	As a result, there was no public declaration of the winning candidate.  The failure by Mr Tipa to make a public declaration of the candidate-elected constituted an error or omission under Section 175(1)(a) of the Organic Law.

73.	It follows that the first respondent must prove by evidence that there were no errors or omissions at counting and counting went well right to the end and he scored the highest votes.  As the candidate scoring the highest votes, he should have been declared as the candidate-elect but the Returning Officer Mr Tipa made a mistake and declared the applicant as the candidate-elected.

74.	Where the evidence accepted by the trial judge was that, the figures posted on the Master Tally Sheet and Form 66B were manipulated resulting in the applicant scoring the highest votes and compounded by Mr Tipa’s arrival at the counting centre on 23rd July 2017 and removal of counting officials and hand-picking of his own men to do a re-check of the ballot-papers, these series of events could not categorically be described as errors or omissions or what is commonly referred to as a mistake or accidental slip by Mr Tipa when he did not publicly declare the first respondent as candidate-elect. 

75.	On the evidence and the facts as found by the trial judge, they are illegal practices under Section 215 of the Organic Law. Additionally, subject to pleading and proof of knowledge or authority of the candidate-elected, they may also constitute an offence of undue influence under Section 102 of the Criminal Code.

76.	In our view, the failure by Mr Tipa to declare the first respondent as candidate-elect or make what the first respondent asserted a “public declaration” based on the evidence that he scored 67,435 votes and the applicant scored 65,836 is a conclusion.  We explain below.

77.	Section 175(1)(a) of the Organic Law states:
	
“Return of writs

(1)	Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained: 

(a)	At the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected…….”

78.	Although it was not mentioned or parties were not referred to it, there must be a cause or reason for the conclusion that the Returning Officer did not declare the first respondent as candidate-elect.  This may explain why there is no finding that the Returning Officer committed an error or omission when he failed to make a public declaration of the first respondent as candidate-elect either on 23rd July or 24th July 2017 and furthermore, the error or omission did affect the result of the election within the meaning of Section 218(1) of the Organic Law.  In our view, this allegation, on its own, was unnecessary and superfluous.

79.	The other reason is that the trial judge rejected the applicant’s counsel’s submissions in relation to the obiter dictum of the Supreme Court in Kelly Kilyali Kalit v. John Pundari and Electoral Commission (1998) SC569 that a declaration that was made based on final figures on the Writ and Form 66B and these documents are official documents and therefore, their veracity, authenticity and integrity must be accepted and respected “….unless there is clear evidence of fraud on the part of the Returning Officer or any other Electoral Commission official in completing the Writ……”.

80.	With respect, the trial judge contradicted himself.  If the final figures on a Writ and Form 66B can only be set aside on grounds of fraud, then it was not open to him to find that the final figures on Form 66B can be set aside on the grounds of errors or omissions. 

81.	On the other hand, fraud is an illegal act and may constitute a criminal offence but certainly, not an error or omission if we apply the definition of an error or omission (supra).  In this instance, where the trial judge concluded that “the Form 66B is manifested with glaring instances of tampering or manipulation”, it cannot categorically be described as an error or omission for the trial judge to conclude that it was an error or omission and on this finding, set aside the final results of the election and/or order a recount of votes.  This is another obvious error on the face of the record (judgment).

Conclusion

82.	To sum up, the first respondent misapprehended the factual allegations as constituting errors or omissions when he pleaded them in the petition.  They were, in fact, allegations of illegal practices but were withdrawn prior to the trial.  In so doing, the trial judge proceeded to determine the petition on allegations which were not before him and misapprehended them as allegations of errors or omissions which resulted in the petition being upheld and a recount of votes was ordered.  The allegation of failure by the Returning Officer to publicly declare the first respondent as the candidate-elect contrary to Section 175(1)9a) of the Organic Law, per se or on its own is a conclusion and is unnecessary to prove that by the error or omission, the result of the election was affected. 

83.	With the greatest respect, the misapplication of the different allegations (illegal practices and errors or omissions) not only constituted errors on the face of the record (judgment) but the finding that Form 66B is “manifested with glaring instances of tampering or manipulation” is not supported by pleadings and has resulted in an injustice.  It must be corrected.

84.	And we do so by upholding the application for review, quash the decision of the National Court of 19th June 2019 and dismiss the petition with costs, to be taxed, if not agreed.

Order

85.	The orders are:
	
	1.	The application for review is upheld.

	2.	The decision of the National Court of 19th June 2019 is quashed.

	3.	The petition is dismissed.

4.	The respondents shall pay the costs of the application, to be taxed, if not agreed.
	
5.	The security deposit of K5,000.00 shall be refunded to the applicant forthwith.
________________________________________________________________
Gileng & Co. Lawyers:			Lawyers for Applicant 
Paul Othas Lawyers:			Lawyers for First Respondent
Kimbu & Associates Lawyers:		Lawyers for Second Respondent