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Maino v Avei [1998] PNGLR 178 (6 May 1998)

[1998] PNGLR 178

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS: AND

IN THE MATTER OF A DISPUTED RETURN IN THE ELECTION FOR THE KAIRUKU-HIRI OPEN ELECTORATE IN THE CENTRAL PROVINCE

CHARLES MAINO

V

MOI AVEI; AND
THE ELECTORAL COMMISSION

WAIGANI: AMET CJ
10-13, 17-26 March and 6 May 1998

Facts

In the 1997 National Elections the sitting member, the first respondent was re-elected to Parliament as the Member for Kairuku-Hiri Open Electorate. The petitioner challenged the election of the first respondent claiming numerous electoral irregularities. The servants and agents of the second respondent committed the alleged irregularities.

Held

1. Election irregularities which are committed by Electoral officials which may adversely affect the result of an election can result in the court invoking its powers under s 212(1) of the Organic Law on National and Local-Level Government Elections.
   
2. Where the irregularities, some of which amounted to punishable offences and illegal practices but which are not likely to affect the result of the election, the court is required to make orders which are just and sufficient.
   
3. In the circumstances where the irregularities related to the counting of votes, tampering of tally sheets and failure of electoral officials to sign ballot papers, an order for recount was sufficient.
   

Counsel

Steven Kassman, for the petitioner.
Davis Steven, for the 1st respondent.
Philip Young, for the 2nd respondent.

6 May 1998

AMET CJ. This is an electoral petition instituted pursuant to s 206 of the Organic Law on National and Local Level Government Elections (The Organic Law), by Charles Maino, a candidate in the Kairuku-Hiri Open Electorate in the 1997 National General Election, disputing the validity of the election and return of Moi Avei, the first respondent, on the following remaining grounds:

8. Irregularities at the polling:

8.1 The second respondent committed irregularities during the polling in that Polling Team One which was scheduled to go to Velei village on Monday 16th June 1997, failed to go to that polling village as scheduled or on any other days thereafter thereby denying the rights of the eligible voters from that village from voting in the 1997 elections.

8.2 The second respondent committed irregularities in respect to polling in Devadeva 1, 2 and 3 by Team Eight as scheduled, in that –

1. by failing to conduct polling in Devadeva 1, 2 and 3 on Friday 27th June 1997 as scheduled or immediately soon thereafter, the rights of the eligible voters of about 270 had been denied from voting in the 1997 elections;
   
2. it was wrong and irregular to suspend counting for one and half days after four (4) days of counting and before the final day of counting when about 6 to 7 boxes were remaining to be counted, to conduct polling in Devadeva on 2nd July 1997 without any prior sufficient notice given to 270 eligible voters in Devadeva; and
   

100. when counting resumed on Thursday afternoon (3rd July 1997) for final counting, the box for Devadeva showed or contained only nineteen (19) ballot papers which means that only nineteen (19) people voted instead of 270 eligible voters as shown in the Rolls, and eighteen (18) of those nineteen (19) votes were for the Petitioner;
     

therefore the Petitioner claims that the failure of the Second Respondent to conduct a proper polling in Devadeva 1, 2 and 3, denied him a good number of votes out of 270 eligible voters.

8.3 The Second Respondent committed irregularities during the polling in that the presiding officer or the assistant presiding officer of Team One failed to sign at the back of some of the ballot papers and as a result about fourteen (14) votes for the Petitioner were declared informal at the counting from counts one (1) to seven (7).

9. Irregularities and discrepancies at the counting:
   

9.1 The Second Respondent also committed irregularities specified hereunder during the counting of the Kairuku-Hiri Open Electorate votes at the Gordons Police Barracks and that the counting of the votes was done without diligence and due care thereby allowing the votes of the First Respondent not subjected to proper scrutiny, in that:

1. There were no security checks at the entrance to the counting room; that is, the counting officials and scrutineers were not checked at the door of the counting room whenever they walked in or out of the room.
   
2. There were also restrictions on the carrying and use of the pens, biros and pencils made to the counting officials who were engaged to distribute and count the ballot papers for the Kairuku-Hiri Open Electorate.
   

100. The distribution of ballot papers was done quickly, without diligence and due care since –
     
     1. no proper checking and sorting out of ballot papers were done at the sorting table, that is, when a ballot box was emptied on the sorting table the distributing officials separated the "Open" ballot papers from those of the "Regional" then began distributing the ballot papers as they liked without first checking and sorting out the ballot papers to the respective candidates at the sorting table;
        
     2. there was no standard procedure followed – some officials collected whatever ballot papers they could and went around distributing them to the respective candidates’ trays which were placed in numerical order on another table where other officials and Scrutineers were waiting next to and behind each candidate’s tray, while other officials collected ballot papers belonging to a particular candidate only and brought them in bundles or piles and placed them in that candidate’s tray; and
        
     3. the distribution of the ballot papers was done in such a speed and manner that left no time for the scrutineers to clearly and properly check the front and the back of each ballot paper or vote.
        

4. No proper scrutiny of the ballot papers was made of each vote during the counting of the votes due to the fact that-
   
   1. the Returning Officer or his representative repeatedly told the counting officials to speed up the distribution and counting of votes; therefore both the distribution and the counting of votes were done quickly;
      

the Returning Officer or his representative also from time to time told the scrutineers to remain close to their candidates’ trays only, not to move around and touch the ballot papers and gave them no opportunity to properly check the ballot papers; and

2. the counting of the votes was also done in such a speed and manner that left no time to both the counting officials and scrutineers to clearly and properly check the front and the back of each vote or ballot paper.
   

9.2 The Second Respondent by failing to conduct the sorting out and distribution of the ballot papers in the manner and the speed necessary to allow proper scrutiny of the votes at the counting made it possible for the First Respondent to be returned as elected. Such failures and discrepancies occurring during the counting may be many but those that were identified are provided hereunder in order to confirm that such discrepancies did occur throughout the counting therefore the Petitioner seeks an order for recount to enable proper scrutiny of the votes be made

1. Saturday night.
   

At the counting on Saturday night (28th June 1997) the counting official Marietta Yapenare admits that she was assigned to count the ballot papers from the Petitioner’s tray and in doing so she bundled the ballot papers in 20s instead of in 10s like other counting officials; and during Monday night (30th June 1997) counting when she again counted the ballot papers from the Petitioner’s tray, she then bundled them in 10s like other counting officials – this is irregular and is likely to lead to miscounting.

2. Saturday night.
   

Again on Saturday night’s counting the same official Marieta Yapenare while counting the ballot papers from the Petitioner’s tray identified one ballot paper, which had two Xs, so she voluntarily handed it to another official to put it in the "informal" tray.

100. Monday night.
     

During the counting on Monday night, a counting official Gomea Iubu who was assigned to count ballot papers from a candidate Eno Daera’s tray identified two ballot papers that were "informal" and had them put in the "informal" tray.

4. Monday night.
   

In that counting, another counting official Aloysius Korua who was responsible for the First Respondent’s tray identified three (3) ballot papers for the First Respondent’s tray identified three on three separate counts. On each of those times, he took the ballot paper and showed it to Kea Ravu a counting official who was assigned to another candidate’s tray next to the First Respondent’s tray. Kea Ravu who was also helping him to count and bundle the ballot papers from the First Respondent’s tray, told him not to waste time and worry about that but to bundle them in tens (10s), mark them and put them away as if they were for the First Respondents’ votes. Aloysius Korua did not like that therefore told the Returning officer about each of those ballot papers. The Returning Officer told him to put it (on each occasion) in the Petitioner’s tray. However, on each of those cases, the Returning Officer did not remind the counting officials to check the ballot papers properly before distributing and counting them instead he told them to speed up the counting of votes since they were running behind time.

5. Monday night.
   

Again, the same counting official (Aloysisus Korua) while counting the votes from the First Respondent’s tray identified three (3) ballot papers for another candidate Eno Daera and once again told Kea Ravu but he reacted in the same way and told Aloysius Korua not to waste time but to bundle them in tens (10s) and marked for the First Respondent. Aloysius Korua was upset and told Kea Ravu to be fair and honest in the counting of votes.

There were other counting officials who noticed what was going on between Aloysius Korua and Kea Ravu.

Aloysius Korua then brought the three ballot papers to the Returning Officer and was put in Eno Daera’s tray.

6. Monday night.
   

Later in the counting on the same Monday night Aloysius Korua again identified two (2) more ballot papers in the First Respondent’s tray that were "informal" and while he was trying to draw the Returning Officer’s attention, Kea Ravu grabbed them from his hand and put them down on the desk and said "put them here" and he went on counting and bundling the ballot papers from the First Respondent’s tray.

Aloysius Korua did not like what Kea Ravu was doing therefore asked the Returning Officer to change him. He was told to sit on the bench as a reserve and another counting official took his place.

7. Tuesday night.
   

During the counting on Tuesday night, the counting official Gomea Iubu who was responsible for the candidate Eno Daera’s tray identified four (4) ballot papers that should not have been put in that tray since one (1) was informal because it had three Xs on it and the other three (3) were for the First Respondent. They were voluntarily returned to the right trays.

8. Thursday afternoon.
   

On the final day of counting, the counting official Gomea Iubu was again assigned to the candidate Eno Daera’s tray. In so doing, she identified four (4) ballot papers in that tray two (2) were for the First Respondent one (1) for another candidate Louise Fangeke Ido and one (1) was for the Petitioner and she accordingly put them in their right trays.

10. Discrepancies both at the polling and the counting:
    

10.1 The Second Respondent by its servants, agents and employees committed irregularities and discrepancies during the polling and at the counting of votes as shown hereunder in respect to the counts relating to Teams 2, 5 and 9 enabling the First Respondent to become successful in the election for the Kairuku-Hiri Open Electorate:

1. the following table is provided to clearly show the differences and discrepancies in the number of ballot papers used at the polling and those that were counted at the counting of votes in relation to the same boxes in Team 2: (See Annexure "A" to this Petition).
   
2. Similarly, the table marked Annexure "B" is presented to illustrate the differences and discrepancies once again by using all the ballot boxes in Team 5.
   

100. Likewise, in Team 9 the Table marked Annexure "C" provides similar pattern of differences and discrepancies – the only way to verify the differences and discrepancies is to have a recount.
     

THE PETITIONER THEREFORE HUMBLY seeks the following orders by way of relief from this Honourable Court:

1. An order compelling the Second Respondent and the Returning Officer to produce the electoral documents, namely, the original Polling Tally Sheets and the original Counting Tally Sheets for the Kairuku-Hiri Open Electorate and the copies of the said documents be made available to the Petitioner; and
   
2. An order that there be a judicial recount of all ballot papers of votes cast for the Kairuku-Hiri Open Electorate; and/or
   
3. A declaration that the First Respondent was not duly elected as declared by the Second Respondent; and/or
   
4. A declaration that the Petitioner was duly elected; and/or
   
5. A declaration that the election for the Kairuku-Hiri Open Electorate is absolutely void; and/or
   
6. An order that a by-election be held in the Kairuku-Hiri Open Electorate; and
   
7. A order that the First Respondent and/or Second Respondent pay the Petitioner’s cost of the incidental to these proceedings; and
   
8. Such further or other orders and declarations as this Honourable Court may see or deem fit, just or appropriate in the circumstances of this case.
   

It is important to note at the outset in this petition that the grounds that came to trial plead allegations against electoral officials only and not any allegations of improper conduct on the part of the First Respondent the elected member or any of his supporters.

The allegations fall under three categories; Ground 8 alleged irregularities at the polling; Ground 9 alleged irregularities and discrepancies at the counting and Ground 10 alleged discrepancies both at the polling and the counting.

Ground 8.1

This ground alleged that Velei village was a scheduled polling place and that Polling Team One was scheduled to go to this village on Monday 16th June 1997, but had failed do so and thereby denied the rights of the illegible voters from that village from voting.

The polling schedule, which was exhibit C shows clearly that this village was not, a scheduled polling place. Based on this fact alone this ground must be dismissed.

The petitioner however proceeded to lead evidence attempting to rely on s 50 (1) (d) of the Constitution and s 113 (1) of the Organic Law that the second respondent through its officials, in particular the Returning Officer, by failing to include Velei Village as a polling place in the polling schedule had failed to give the electors from that village a reasonable and sufficient opportunity to vote at the election.

The Returning Officer did give evidence of publication of the polling schedule in the Bereina District and of informing village councillors of the polling schedules. Section 116 of the Organic Law provides for appeal by an elector or electors not less than 14 days before the commencement of the polling period for an electorate by appealing to the Electoral Commission for an order varying a polling schedule on the ground that it does not give to all electors in the electorate or in a part of the electorate a reasonable opportunity for voting in the Election. There was no evidence from any such elector who either lodged an appeal or deposed to not being informed of the polling schedule and was thus denied a reasonable and sufficient opportunity to vote at the elections. There was no evidence generally that the people of Velei Village were not aware of the polling schedule, which did not include their village as a polling place.

For these additional reasons this ground is dismissed.

Ground 8.2 (a)(b)(c)

The primary factual contentions in relation to these grounds as they relate to the polling in Devadeva Village are not in dispute. It is that Polling Team 8 was scheduled to conduct polling at this village on Friday 27 June 1997, but due to transport difficulties Team 8 officials could not travel to Devadeva Village. An extension was obtained for a period of one week from 28th June to 5th July to enable a suitable date for the polling to be scheduled. This was scheduled for Tuesday 1st July 1997 but was again further delayed to Wednesday 2nd July 1997.

I accept the evidence on the part of the second respondent that arrangements were made with the National Broadcasting Corporation for radio announcements to be made of the rescheduled polling date. The Polling Team conducted polling at the village on 2 July 1997, where only 19 people voted, out of a possible 270 eligible voters.

The petitioner contends that out of the 19 votes cast 18 were in his favour and therefore the failure on the part of the second respondent to conduct proper polling in Devadeva Village denied him a good number of votes out of the 270 eligible voters.

Section 115(4) of the Organic Law does authorise departure from the polling schedule in relation to a polling place, but that the presiding officer should take such action as is practicable to ensure adequate publicity for that departure at that polling place and amongst the electors likely to vote at it. I accept the evidence of the second respondents officials as to the arrangements made with the National Broadcasting Corporation for publicity of the rescheduled polling time for Devadeva village and I accept that in the circumstances the action taken was sufficient to ensure adequate publicity for the benefit of electors.

Whilst the evidence and the returns showed that only 19 persons voted out of a possible 270, it does not necessarily suggest that the actions taken were not adequate to ensure that eligible voters were informed. It is true that many eligible voters may have gone from the village to do other things but I am satisfied that when the polling team attended at the village it conducted polling throughout the day and that there was ample time for those who were interested to have attended to cast their vote. Again, no evidence has been led from persons from the village to depose to having been misinformed or not aware of the polling schedule being changed and were thus denied a right to cast their votes.

Because 18 of the 19 persons who cast their votes voted for the petitioner, the estimation as to the likely number that could have voted for the petitioner is speculative and is not permitted to be canvassed in the way that the petitioner had done so. There is no evidence as to why the other possible eligible voters did not cast their vote. The fact that 19 persons were able to cast their vote indicates also that others could also have cast their votes if they were so minded. The polling team was in the village the whole day and it would have been possible for others to have been informed or made aware of the polling taking place to attend and cast their votes.

To simply lead evidence from the Common Roll as to the number of eligible voters in a particular polling place, without any of the eligible voters giving evidence of having been denied the opportunity to cast their votes is not sufficient in itself. Because a number of voters had in fact cast their votes it is important that evidence be led directly from eligible voters as to the reasons why they may not have been able to cast their vote.

For these reasons, these grounds are also dismissed.

Ground 8.3

The petitioner has alleged that Counts 1 to 7 of polling team 1 had 16 informal votes registered out of which 14 were genuine votes for the petitioner but were declared informal as a result of the presiding officer failing to initial or sign at the back of those ballot papers as required by s 126 of the Organic Law.

The respondents had submitted that there is no direct evidence that the presiding officer or the assistant presiding officer of Team 1 failed to sign at the back of ballot papers, which were properly provided to electors. It was submitted therefore that there is no evidence that s 126 of the Organic Law had not been complied with. It was submitted that s 153 of the Organic Law provided for other reasons as well for the ballot paper being declared informal.

I am satisfied on the evidence that 14 of the petitioner’s votes were declared informal because the presiding officer did not initial or sign at the back of those ballot papers as required by the Organic Law. The presiding officer in his affidavit and oral evidence conceded that ballot papers may not have been initialled or signed at the back as a result of interruptions and alteration occasion by scrutineers at the polling booths.

Section 126 provides for ballot papers to be initialled in the following terms:

1. No ballot papers shall be delivered to a voter without being first initialled or affixed with an official mark as prescribed by the presiding officer, and an exact account shall be kept of all initialled ballot papers.
   
2. The initials of the Presiding Officers shall be placed on the back of the ballot paper in such a position as to be easily seen when the ballot paper is folded so as to conceal the names of the candidates.
   

Section 153(1) stipulates three circumstances in which a ballot paper will be informal:

(a) It is not authenticated by the initials of the Presiding Officer or by an official mark as prescribed; or

(b) Subject to Subsection (2), (3) and (4) it has no vote indicated on it, or it does not indicate the voters’ intentions;

(c) It has on it any mark or writing in (not authorised by this law to be put on it) by which, in the opinion of the Officer conducting the scrutiny, the voter can be identified.

Section 199 of the Organic Law provides that an officer who, contrary to his duty fails to initial a ballot paper or affix an official mark as prescribed, is guilty of an offence. It was submitted for the petitioner that an officer who failed to initial a ballot paper as it is his duty to do so, before delivering it to a voter is guilty of an offence which is thus an illegal practice, the result of which may lead to the result of an election being affected and for which an election could be voided.

I am satisfied, on the evidence that the presiding officer did fail to initial the back of some 14-ballot papers as alleged. Whether this is sufficient to affect the result of the election I will return to later in this judgement.

Ground 9.1

In relation to allegations (a) and (b) the petitioner had not led any evidence that as a result of these alleged irregularities as to security checks and restrictions on items to be taken into the counting room any specific illegal practice such as ballot papers being unlawfully marked or the counting was specifically affected in some way. Without any specific allegation or instance of any illegal practice taking place as a result of these irregularities, even if the facts alleged are sufficiently proven, they could not be grounds for voiding the election.

In relation to allegations in (c), I accept the evidence for the petitioner generally that the distribution of ballot papers, the scrutiny by candidate’s scrutineers and the counting by counting officials were done quickly. The distributing and counting was done with such speed and manner that there were instances of scruitineers not having adequate time to clearly and properly check the front and the back of the ballot papers.

I accept also generally that the Returning Officer or his representative officials repeatedly told counting officials to speed up the distribution and counting of votes, which is only natural in the circumstances to expedite the counting process. Similarly, I accept that there have been instances where the counting was done in such a speed and manner that it left little or no time for the counting officials and scrutineers to clearly and properly check the front and the back of each ballot paper.

However, the petitioner has not alleged or led any evidence specifically that as a result of these irregularities that there were any specific illegal practices or that the counting of the ballot papers and the votes were wrong or that some other illegal practices occurred such as to be likely to have affected the result of the election.

Also the petitioner led evidence and purported to submit that it was irregular for the Returning Officer or his representative to instruct scrutineers to remain close to or at their candidates counting trays only and not to be interested in any counting and scrutiny of other candidates ballot papers.

I cannot be satisfied, without any specific evidence as to the standard procedure to be adopted or followed in the distribution, counting and scrutiny of ballot papers, that the procedures adopted and given evidence of were necessarily irregular and or amounting to illegal practice such as could be said to affect the result of the Election.

For these reasons therefore I am not satisfied that any of these grounds can be upheld to void the result of the Election.

Ground 9.2

This ground alleges specific instances of discrepancy in the distribution, the counting and the scrutiny of the votes because of the speed with which the counting was taking place, which did not allow proper scrutiny of the counting of the ballot papers.

In all the circumstances, given the pressure under which the counting was taking place and the need to be expeditious, I accept the evidence of the witnesses for the petitioner generally. I am satisfied that the distribution, the counting and the scrutiny were conducted in such a manner that discrepancies as pleaded and deposed to in affidavit and oral evidence did in fact occur. I accept that in the haste to distribute ballot papers to the appropriate candidates’ trays wrong ballot papers were placed in some trays and were discovered. I am satisfied also that in the counting of those ballot papers the Counting Officials may not have had time to show to the scrutineers every ballot paper in the appropriate manner. I accept the evidence of one witness Marietta Yapenare that in the bundling together of the ballot papers on the Saturday night, she made a mistake in bundling them into groups of 20 instead of in groups of 10.

I am also satisfied and accept the evidence for the petitioner from some of the witnesses that they were advised by the returning officer to speed up the counting and the scrutiny of votes.

In spite of the fact that no specific error in counting has been demonstrated by the deficiencies of the counting processes, a number of specific instances of procedural irregularities and discrepancies during the counting process have been established by independent witnesses, a number of whom were in fact counting officials assigned to counting ballot papers for other candidates as well as the petitioner.

I am satisfied on the totality of the evidence, largely of independent witnesses who were not supporters of the petitioner who in fact were officials involved in the counting that the counting process was quite fast, not allowing adequate time for scrutiny of the ballot papers resulting in evidence of a number of instances of informal ballot papers being placed in some candidates trays and ballot papers being put into wrong trays.

I will return to the effect of these irregularities later.

Ground 10

This ground also alleges discrepancies both at the polling and more particularly during counting. The petitioner produced tables and schedules of voting tallies taken by his own scrutineers and election team to demonstrate differences and discrepancies in the number of ballot papers used at the polling and those that were counted at the counting of votes. Also, after examination of the official returns; Forms EC 507, EC 510 and EC 602 that were tendered by the second respondent’s officers, it was submitted they demonstrated substantial discrepancies in the figures. Evidence was adduced from the electoral officials who gave evidence that some of the forms had been corrected by correction fluid to change the original figures and also some of the votes marked in the sex tally sheets had been erased.

In particular the assistant presiding officer of Team 2, George Keru gave frank evidence of a systematic exercise of reconciling figures in the sex tally sheets and the presiding officer’s Return of Voters and Ballot Papers, EC Form 510 after the polling each day. This was an honest explanation of what appeared to the polling officials to be an important matter, the need to ensure that the ballot papers used and that remaining at the end of each day’s polling, reconciled with the ballot papers started with at each polling place. Unfortunately, with good intentions though this practice may have been, it was flagrantly unlawful and irregular. It is fundamentally unlawful to tamper with what was recorded as being the number of votes cast at a particular polling place.

Also there was physical evidence and oral evidence from other electoral officials attempting to reconcile and tally up the different figures on the face of the different electoral forms. There was evidence of presiding officer Kevin Unobo who attended at the Electoral Commission Office in Boroko with the permission of a senior officer Mr Veri to obtain access to polling documents for Team 5 to crosscheck figures in those returns after the Petition had been filed.

This sufficiently demonstrates serious and substantial irregularities by Electoral Officials in the conduct of the Elections.

Summary of findings

I have made the following findings in relation to the allegations.

Grounds 8.1 and 8.2 have both been dismissed.

In relation to Ground 8.3, I have accepted the evidence generally that in the course of polling the presiding officer or the assistant presiding officer of Team One failed to sign at the back of some of the ballot papers resulting in about 14 being declared informal at the counting.

In relation to Ground 9 relating to allegations of irregularities during the counting process, I have accepted generally the evidence for the petitioner. I am satisfied that on the totality of the evidence of a number of independent witnesses who are in fact counting officials for the second respondent that the counting took place with speed and haste at the instructions of the Returning Officer or his subordinate officials resulting in ballot papers not being properly scrutinised, ballot papers for other candidates being put in other candidates’ trays, informal ballot papers being put in trays for counting and ballot papers being bundled up in groups of 20s in some instances instead of 10.

In relation to Ground 10, I have not been prepared to accept the tally sheets and documents produced by witnesses for the petitioner because they were demonstrated to have been quite inaccurate and I am not prepared to rely on them as opposed to the official returns. I have however, accepted the evidence adduced from a number of the polling teams, in particular Team No. 2 wherein it was sworn that a practice was systematically undertaken of erasing marks for votes in the sex tally sheets and also correcting the original figures in the Presiding Officer’s returns to make the figures reconcile with the ballot papers remaining at the end of polling at each polling place. This exercise was apparently undertaken after polling at each polling place.

The Organic Law

What then are the effects of these findings of irregularities? What relief if any is the petitioner entitled to as a consequence of these several findings of irregularities by officers of the Electoral Commission in the conduct of the polling and the counting of the votes in particular?

The principal powers of the court are enumerated under s 212 of the Organic Law. They include under Subsection (1), amongst other powers, the following:

(d) declare a recount of ballot papers in an electorate; and

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

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part.

Subsection (3) provides 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."

Section 218 (1) provides that:

"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 effect the result of the elections."

Section 217 provides for real justice to be observed in the determination of the dispute by injuncting the National Court to; "be guided by the substantial merits and good conscious of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."

The first irregularity that I am satisfied of is the neglect by the presiding officer in delivering a certain number of ballot papers to voters without first initialling or affixing with an official mark on the back of the ballot papers as a mandatory obligation under s 126 of the Organic Law. How important and mandatory this obligation is, is demonstrated by s 199 of the Organic Law which prescribes that; "an officer who, contrary to his duty fails to initial a ballot paper or affix as official mark as prescribed, correctly to mark a certified list of voters, or properly to attest a declaration is guilty of an offence."

In my judgment therefore the neglect on the part of the presiding officers to initial the ballot papers pursuant to s 126, which is an offence under s 199, is an error on the part of officers of the Electoral Commission, which can constitute such grounds falling within the ambit of s 212 (3). I will return to the application of this provision shortly.

The second category of irregularities that I have found to have been sufficiently established on the evidence is procedural irregularities during the counting of the ballot papers. They were in my judgment errors or omissions by officers of the Electoral Commission, which fall within the ambit of s 218, and which could also constitute such grounds within the purview of s 212(3).

Finally the finding that the assistant presiding officer of Team 2 tampered with and erased the markings on the sex tally sheets and changed figures in the presiding officer’s returns with the correction fluid are in my view amounting sufficiently to illegal practices to fall within the ambit of the s 215 (3) as well as being errors under s 218 (1). Again they are conducts that can constitute grounds upon which the court may exercise any of its powers pursuant to s 212 (3).

In applying s 218 (1) to the facts as I have found them, I cannot be satisfied that the acts or omissions or errors by the electoral officials did effect or would have affected the result of the election. Similarly pursuant to s 215(3) the illegal practice committed by electoral officials as I have found under Ground 10 does not satisfy me that the result of the election was likely to be affected such that it would be just that the candidate, the first respondent, should be declared not to have been duly elected or that the election should be declared void.

Notwithstanding these two very specific qualifications to the power of the court to make several of the specific orders under s 212 (1), s 212 (3) does however suggest that the Court may exercise any of those powers on "such grounds as the court in its discretion thinks just and sufficient". This provision, to my mind, prima facie, suggests that in spite of the qualifications under s 215 (1) and (3) and s 218 (1), the Court may nevertheless make any of the orders under s 212 (1)(f)(g) and (h).

Finally it is important to be guided by the general intent and the spirit of s 217 which injuncts the court to be "guided by the substantial merits and good conscience of its case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. I have adopted a very liberal and purposive interpretation of s 217 and have in the course of the trial allowed evidence that did not conform to the strict rules of evidence. I consider also that this section could be applied to the manner in which the evidence is assessed and weighed.

I consider also that s 212 (3), read in conjunction with s 217 empowers the Court to administer "real justice" and to make any of the orders under s 212 (1) on such grounds as the court in its discretion thinks just and sufficient.

In the circumstances, as I have indicated, I am not persuaded that the totality of the irregularities that I have found to have been established to my entire satisfaction, some of which amounted to illegal practices, are such that the result of the election was likely to be effected or would have been affected, that the election should be voided or that the person returned as elected was not duly elected, and so make no orders to these effect as sought by the petitioner.

I am however, entirely satisfied that the circumstances and incidences of irregularities, some of which amounted to punishable offence and illegal practices are such serious circumstances of irregularities acts or omissions by electoral officials, as amounting to such grounds, which in my discretion, pursuant to s 212(3) I consider just and sufficient that I should exercise the Court’s power under s 212 (1) (d) to order a recount of all the ballot papers in the election in this electorate.

I accordingly so order that the second respondent, the Electoral Commission shall conduct a recount of all the ballot papers in the election for the Kairuku-Hiri Open Electorate in the 1997 National Parliament Elections.

The recount shall take place at a suitable venue to be determined by the second respondent in consultation with the lawyers representing all the parties and with the approval of the court; on a day or days as are agreed to by all the parties represented by lawyers and with the approval of the court; during such times also as agreed to by the parties through their lawyers and with the approval of the court and to be under the general superintendence of the court. The results of the recount shall be provided to the court with all the appropriate official documentation. The court shall then provide copies of all the documentation to the parties and the court will then reconvene on a date to be announced following the recount and the presentation of all the documentation to the court, at which time the court would be at liberty to consider and invite any further submissions or to take any other course it considers appropriate and necessary before final judgment is delivered as to the result of the recount.

Costs of this trial are awarded to the petitioner. And the deposit of K2,500.00 is ordered to be refunded to the petitioner.

Lawyers for the petitioner: White and Kassman.
Lawyers for the 1st respondent: Maladinas Lawyers.
Lawyers for the 2nd respondent: Gadens Lawyers.