In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of a Disputed Return of Election Results for the Kandrian Gloucester Open Electorate in the West New Britain Province 2007 General Elections; Bob Lisio v Tony Puana and Mathew Nelson, Returning Officer for Kandrian Gloucester, and Andrew Trawen, the Electoral Commissioner, and The electrical Commission of Papua New Guinea (2008) N3463

• Jurisdiction: Papua New Guinea
• Judge: Gabi, J
• Judgment Date: 31 March 2008
• Court: National Court
• Docket Number: EP NO. 18 OF 2007
• Citation: (2008) N3463
• Year: 2008
• Judgement Number: N3463

Full Title: EP NO. 18 OF 2007; In the Matter of the Organic Law on National and Local-level Government Elections and in the Matter of a Disputed Return of Election Results for the Kandrian Gloucester Open Electorate in the West New Britain Province 2007 General Elections; Bob Lisio v Tony Puana and Mathew Nelson, Returning Officer for Kandrian Gloucester, and Andrew Trawen, the Electoral Commissioner, and The electrical Commission of Papua New Guinea (2008) N3463

National Court: Gabi, J

Judgment Delivered: 31 March 2008

N3463

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 18 OF 2007

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

AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE KANDRIAN GLOUCESTER OPEN ELECTORATE IN THE WEST NEW BRITAIN PROVINCE 2007 GENERAL ELECTIONS

BETWEEN

BOB LISIO

Petitioner

AND

TONY PUANA

First Respondent

AND

MATHEW NELSON, Returning Officer for Kandrian Gloucester

Second Respondent

AND

ANDREW TRAWEN, the Electoral Commissioner

Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Kimbe: Gabi, J

2008: 6 & 7, 10 – 12, 25 & 31 March

PARLIAMENT - Elections – Disputed election petition – election of Member of Parliament – irregularities, errors and omissions by election officials during counting – whether ballot papers removed from petitioner’s box – whether errors and omissions committed during elimination process - should the court order a recount – Organic Law on National & Local Level Government Elections, s170

Cases Cited

Papua New Guinea

Maino v Avei [1998] PNGLR 178

Niggints v Tokam [1993] PNGLR 66

Ombudsman Commission v Peter Yama (2004) SC 747

Overseas Cases:

Levers v Morris and Another [1972] 1 QB 221

Counsel

V Yobone, for the Petitioner

S Japson, for the 1st Respondent

A Kongri, for the 2nd, 3rd & 4th Respondents

DECISION

31 March, 2008

1. GABI J: This is a petition by Bob Lisio disputing the result of the election for the Kandrian Gloucester open electorate in the 2007 general election. Bob Lisio was the first runner-up with a total of 7, 099 votes while Tony Puana polled 7, 112 votes to win by a margin of 13 votes. Bob Lisio is seeking a recount of all ballot papers in the electorate.

Petition

2. To appreciate the complaint, it is appropriate to set out in full the grounds of the petition and the relief sought:

“GROUNDS OF THE PETITION

Irregularities, Errors and Omissions at the Counting

11. The counting for Kandrian Gloucester Open Electorate commenced on or about 7th July, 2007 and the counting of first votes ended on 22nd July 2007.

12. The following irregularities, errors or omissions took place at the counting centre or during the scrutiny of votes.

(a) The Second Respondent and his counting officials committed errors and omissions at the counting resulting in the removal of the counted primary votes belonging to the Petitioner despite the ballot papers having been counted, tallied and broadcasted over the media announcing the progressive tally for each candidate. The informal votes removed from the Petitioner’s box as a total of 14 votes following the recheck after the count of the primary votes.

They further failed to allow scrutineers for the Petitioner to object and inspect the “informal ballot papers” before they were removed from the petition’s box.

(b)(i) The 13th elimination of David Sui was conducted at 4.30 pm, Saturday 21st July 2007. The count was suspended midway with the following tallies:

(1) Bob Lisio 6,246

Plus 330

New Progressive 6576

(2) Tony Puana 4,272

Plus 1,194

New Progressive 5468

(3) Camilius Vovore 4,874

Plus 504

(4) Exhausted B/papers 2,830

Plus 861

New progressive 3691

GRAND TOTAL 21,113

(ii) When counting resumed the next day, Sunday 22 July 2007, the new tallies were as follows:

(1) Bob Lisio 6,246

Plus 330

New Progressive 6576

(2) Tony Puana 4,272

Plus 1,194

New Progressive 5468

(3) Camilius Vovore 4,874

Plus 534 5408

(4) Exhausted B/papers 2,830

Plus 1,543

New progressive 4373

GRAND TOTAL 21,826

(iii) The Second Respondent, failed to advise the counting officials to recheck the ballot papers to confirm the figures that appeared on the tally the previous day.

(c) On the 14th and the last elimination of candidate Camilus Vovore, the tally for the Petitioner and the First Respondent stood at 7099 and 7111 respectively. With regard to percentage, they were both tied at 50%. However the First Respondent was declared winner without considering the percentage equality of votes polled by the last two (2) remaining candidates.

(iv) The winning margin was only 13 votes which represents 0.000744857% more than the petitioner who polled the next highest number of votes which is well below the required excess of 0.25% to declare a winner.

(e) The Second Respondent was further seen removing an exhausted ballot paper and adding it to the ballot papers of the first respondents at the conclusion of the 14th elimination.

(f) Further, the Respondents failed to consider and take heed of the scrutineers’ and candidates’ concerns. The Respondents failed or committed errors and omission in the following respects:

i. On the 13th elimination count, the Second Respondent and his assistant failed to conduct proper scrutiny of the counting, at the counter centre resulting, everyone helping themselves to papers on the trays.

ii. On the 14th and the final elimination, the Petitioner and the First Respondent were on a tie at 50%. The Second Respondent illegally took one single ballot paper from exhausted ballot papers and added it to the First Respondents papers.

iii. In the end the final elimination count number 14 was not properly done and tallied where a figure of 9,737 votes were posted as the votes distributed when the actual number of votes counted should have been only 5,408 votes which was polled by the third runner up Mr. Camilus Vovore thereby resulting in a wrong declaration of results.

iv. The Second Respondent failed to do a recount when the Petitioner by way of a letter dated 22nd July 2007 requested a recount.

v. The Third and Fourth Respondents failed to order recount when the third highest polling, candidate Mr Camilus Vovore requested a recount by way of letter dated 24th July 2007.

11. As a result of the errors, omissions, of the Second and Third Respondents and counting officials alluded to immediately above, a lot of discrepancies illegal swapping and tampering of ballot papers were allowed to take place at the counting place resulting in a obviously flawed declaration on or about 24th July, 2007.

Relief

12. Accordingly, pursuant to Section 208(b) of the Organic Law, the Petitioner prays for the following relief:

(i) Re-count of the entire votes for the Kandrian/Glouchester pursuant to Section 170 of the Organic Law or alternatively on the basis of other grounds pleaded herein.

(ii) A declaration that the First Respondent who was returned as elected was not duly elected.

(iii) A declaration that the Petitioner is returned as being duly elected.

(iv) An order for refund of the K5,000.00 security deposit to the Petitioner.

(v) Costs of the Petition.

(vi) Such Other Orders the Court deems fit.” (sic)

3. Bob Lisio’s complaint is that there were irregularities, errors and omissions committed by counting officials during the counting process. There is no complaint against Tony Puana nor is there any complaint in respect of the polling process. The complaint is confined to the counting process.

4. Bob Lisio pleads that:

(a) the winning margin of 13 votes was below the required 0.25% under the law.

(b) he and Tony Puana were both tied at 50% and that a total of 14 ballot papers were removed from his box as “informal ballot papers” without his scrutineers being given the opportunity to inspect the ballot papers to establish whether they were in fact “informal” ballot papers.

(c) the tallies for the 13th elimination count, which was suspended on 21st July 2007, changed overnight as the tallies on 22nd July 2007 were different from those on the previous day.

(d) a ballot paper was taken out of the exhausted ballot papers tray by the

Returning Officer, Mathew Nelson and placed in Tony Puana’s box.

(e) Mathew Nelson failed to control and conduct a proper scrutiny of the counting at the counting centre with the result that there were discrepancies in the tallies at the end of the 14th and final elimination count.

(f) Mathew Nelson failed to conduct a recount when requested

to do so on 22nd July 2007.

(g) the Electoral Commission likewise, failed to conduct a recount when Camillus Vovore requested one on 24th July 2007.

Issues

5. The issues before me are:

(a) Whether 14 ballot papers were removed from Bob Lisio’s box? If so, whether Bob Lisio’s scrutineers were given the opportunity to inspect

the 14 ballot papers?

(b) Were irregularities, errors and omissions committed during the 13th elimination count?

(c) Were irregularities, errors and omissions committed during the 14th

and final elimination count?

(d) Was there inadequate control and scrutiny of counting at the counting centre?

(e) Were Tony Puana and Bob Lisio tied at 50%?

(f) Did a situation exist for a recount?

...