In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Usino-Bundi Open Electorate; Samson Malcolm Kuli v James Apamia, Returning Officer for Usino Bundi Open Electorate and Andrew Trawen, Electoral Commission of Papua New Guinea and Anton Yagama (2013) N5275

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 15 July 2013
• Court: National Court
• Citation: (2013) N5275
• Docket Number: EP NO 57 OF 2012
• Year: 2013
• Judgement Number: N5275

Full Title: EP NO 57 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Usino-Bundi Open Electorate; Samson Malcolm Kuli v James Apamia, Returning Officer for Usino Bundi Open Electorate and Andrew Trawen, Electoral Commission of Papua New Guinea and Anton Yagama (2013) N5275

National Court: Makail, J

Judgment Delivered: 15 July 2013

N5275

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 57 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE USINO-BUNDI OPEN ELECTORATE

BETWEEN

SAMSON MALCOLM KULI

Petitioner

AND

JAMES APAMIA,

RETURNING OFFICER FOR USINO BUNDI OPEN ELECTORATE

First Respondent

AND

ANDREW TRAWEN,

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

ANTON YAGAMA

Third Respondent

Madang: Makail, J

2013: 01st, 02nd, 03rd, 04th, 05, 12th & 15th July

ELECTION PETITIONS – Scrutiny of votes – Errors and omissions at scrutiny of votes – Objection to admission of ballot-box to scrutiny – Decision made by Returning Officer to admit ballot-box to scrutiny – Ballot-papers counted – Refusal to add results of count to total votes of candidates – Decision made pursuant to an agreement between Returning Officer and scrutineers of candidates – Reasons for refusal – Alleged tampering of ballot-box – Short fall in total number of issued ballot-papers – Lawfulness of decision – Organic Law on National and Local-level Government Elections – ss. 153A, 154 & 218.

ELECTION PETITIONS – Scrutiny of votes – Errors and omissions at scrutiny of votes – Failure by counting officials to properly count votes – Misallocation of ballot papers – Threats and intimidation of counting officers by scrutineers – Organic Law on National and Local-level Government Elections – ss. 154 & 218.

ELECTION PETITIONS – Remedy – Order for recount of votes – Discretionary – Organic Law on National and Local-level Government Elections – ss. 154, 212(1)(d), 217 & 218.

Cases cited:

Application by Ben Semri (2003) SC723

Paias Wingti -v- Kala Rawali & Electoral Commission (2008) N3286

Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5222

Counsel:

Mr R Diweni, for Petitioner

Mr A Kongri, for First & Second Respondents

Mr T Boboro, for Third Respondent

JUDGMENT

15th July, 2013

1. MAKAIL, J: The petitioner Mr Samson Malcolm Kuli and the third respondent Mr Anton Yagama were among 40 other candidates who contested the Usino-Bundi Open electorate in the Madang Province in the 2012 General Election. Mr Yagama polled 8,301 votes and Mr Kuli polled 6,160 votes. The winning margin was 2,141. On 28th July 2012, Mr Yagama was declared winner. Aggrieved by the result, Mr Kuli petitioned the Court to void the election of Mr Yagama, order a recount of votes and order the votes counted from ballot-box no 106055 to be added to the tallies for the candidates including him. Alternatively, he be declared duly elected.

Grounds

2. The grounds of the petition are summarised as follows:

2.1. Ground A - Errors and/or omissions and/or illegal practices by electoral officials,

2.2. Ground B - Failure to admit ballot-papers after being admitted to scrutiny,

2.3. Ground C - Misallocation of votes and ballot-papers,

2.4. Ground D - Failure to scrutinise ballot-papers of excluded candidates,

2.5. Ground E - Discrepancies in the number of ballot-papers, and

2.6. Ground F - Errors and omissions and illegal practices affected the result of election.

3. Part of ground 2.1 (Ground A), grounds 2.3 (Ground C), 2.4 (Ground D), 2.5 (Ground E) and part of 2.6 (Ground F) are related as they raise issues of threats and intimidation of counting officials and failure to properly count votes. Therefore, they will be determined together. Part of ground 2.1 (Ground A), ground 2.2 (Ground B) and part of 2.6 (Ground F) will be determined together because they raise the issues of whether the decision of the Returning Officer not to add the counted votes from ballot-box no 106055 is lawful and whether it constituted an error or omission.

Petitioner’s Evidence

4. In establishing these grounds, Mr Kuli called eleven witnesses whose affidavits were tendered and were also cross-examined by counsel for the respondents. These witnesses were:

4.1. Tony Aimai (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P1”),

4.2. Pius Kanume (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P2”),

4.3. Jonah Eke Boli (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P3”),

4.4. Jarret Morris (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P4”),

4.5. Nila Mori (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P5”),

4.6. Julius Kandi (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P6”),

4.7. Tony Nelson (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P7”),

4.8. Anne Parker (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P8”),

4.9. Joyce Yuka (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P9”),

4.10. Kelly Winghom (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P10”), and

4.11. Joel Pugma (Affidavit sworn on 03rd October and filed on 05th October 2012 - Exhibit “P11”).

Respondents’ Evidence

5. The respondents denied the allegations and called six witnesses to rebut the evidence of the petitioner’s witnesses. They were:

5.1. Steven Biko (Affidavit sworn on 01st November and filed on 05th November 2012 - Exhibit “R1”),

5.2. Joe Yama, (Gave oral evidence pursuant to a summons),

5.3. Anton Yagama (Affidavit sworn on 23rd October and filed on 29th October 2012 - Exhibit “R2”),

5.4. Dominic Angia (Affidavit sworn on 21st October and filed on 23rd October 2012 - Exhibit “R3”),

5.5. John Kituai (Affidavit sworn on 21st October and filed on 23rd October 2012 - Exhibit “R4”), and

5.6. John Nezungu (Affidavit sworn 17th October and filed on 23rd October 2012 - Exhibit “R5”).

Undisputed Facts

6. According to the statement of agreed and disputed facts and issues for trial filed on 28th November 2012, the following facts are not in dispute: the Returning Officer for Usino-Bundi Open electorate is Steven Biko. He was responsible for conducting scrutiny of ballot-papers in the electorate. During count 27, when ballot-box no 106055 was admitted to scrutiny, a dispute rose in relation to its admission to scrutiny. Mr Biko presented a written objection to the Electoral Commissioner. On 19th July 2012, the Electoral Commissioner responded by way of a letter directing Mr Biko “to admit into scrutiny the ballot-box for team 172, Usino LLG, open the ballot box and count the ballot-papers to be added on to the tally for Usino Bundi Open Electorate.” One of the reasons he gave was that “[j]ust because a scrutineer is not present to verify the seal number does not make a ballot-box illegal.”

7. It was admitted to scrutiny and the ballot-papers were counted. Mr Kuli scored 726 votes. However, the votes were not added to tallies of the candidates including Mr Kuli because the total number of ballot-papers counted did not balance with the total number of issued ballot-papers. On 20th July 2012, the scrutineers of 32 candidates including Mr Kuli signed an agreement with Mr Biko not to add the counted votes to the tally for each candidate. As a result, 726 votes were not added to the tally for Mr Kuli.

Disputed Facts

8. Mr Yagama and the Electoral Commission denied the allegations of threats and intimidation of counting officials by scrutineers of candidates and allocation of ballot-papers to wrong candidates by counting officials. To support his claim that ballot-box no 106055 has not been tampered with, Mr Kuli called Tony Aimai and Pius Kanume. Tony Aimai is a councillor of ward 18 at Ono station. On Friday 06th July 2012, he organised his people to vote and was present at the polling place to ensure that polling proceeded without interruption. After the polling, he saw polling officials seal ballot-box no 106055 by applying the inner and outer seals. After that, police locked it at Walium Police Station.

9. Pius Kanume is a police First Constable. He was one of the many policemen and women who provided security during the election. He was deployed to team 172 to go to Mopo, Naru, Sumai and Poine to provide security during polling. He said between Monday 25th June and Friday 29th June 2012, he accompanied the polling team to these villages for polling and observed each ballot-box sealed by the polling officials and noted the seal numbers. They were temporary seal numbers as the boxes had to be opened for voters to cast their votes as they went from one village to another. The last village was at Ono and when polling completed the ballot-boxes were sealed and the seal numbers were announced. One set for the box for the Provincial seat and...