In the Matter of the Election for the Kainantu Open Electorate; Yuntivi Bao v Baki Reipa and The Electoral Commission of PNG

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 17 July 1998
• Citation: (1998) N1753
• Court: National Court
• Year: 1998
• Judgement Number: N1753

National Court: Sakora J

Judgment Delivered: 17 July 1998

N1753

PAPUA NEW GUINEA

[In the National Court of Justice]

EP No. 32 OF 1997

IN THE MATTER OF THE ELECTION FOR THE

KAINANTU OPEN ELECTORATE

YUNTIVI BAO

Petitioner

AND:

BAKI REIPA

First Respondent

AND:

THE ELECTORAL COMMISSION OF PNG

Second Respondent

Lae: Sakora, J

1998: 21, 22, 26, 27 & 28 May,

23 June & 17 July

Parliament - Elections - Disputed election return - Errors or omissions by Electoral officials - Lack of security at polling - Destruction of ballot box - Illegal practice - Destroyed and uncounted votes - Effect on the result of the election - Organic Law on National and Local-level Government Elections, ss. 15, 133, 134, 191, 200, 215, 217 and 218 - Constitution, s.126.

Mr Gamoga for the Petitioner

Mr Manase for the 1st Respondent

Dr Nonggorr for the 2nd Respondent

17th July 1998

SAKORA, J: This is the petition of Mr Yuntivi Bao who was a candidate at the 1997 national general elections for the Open parliamentary seat of Kainantu in the Eastern Highlands Province. The candidate returned as elected was Mr Baki Reipa, the first respondent.

The petition alleges two basic grounds upon which the voiding of the election and return is being sought: (1) errors or omissions on the part of electoral officials; and (2) an illegal practice by a third party. It is contended in these respects that such errors or omissions affected the result of the election, or that the illegal practice was such as to be likely to affect the result of the election, and that, therefore, it is just that the candidate returned should be declared not to be duly elected or that the election should be declared void.

It is instructive to note at this juncture those formal non-contentious aspects of this matter. The writ for the election in the Kainantu Open electorate was issued under the hand of His Excellency the Governor General on 10 April 1997, made returnable on or before 15 July 1997 (Annexure “A” to the affidavit of Morea Veri, Assistant Electoral Commissioner, sworn 20 April and filed 21 April 1998, Exhibit “S”). Polling in the electorate was to take place between 14 and 28 June 1997 (ibid). The writ was returned on 30 June 1997 following counting and declaration of the result at 5.30 am 29 June 1997 (1997 General Election Report, Annexure “B”, ibid).

The declaration had the first respondent polling and winning with 3,165 votes, and the petitioner coming second with 2,754 votes, the winning margin being 411 votes. There were 26 other candidates contesting this parliamentary seat. The first respondent, overall, received 0.32% of the votes cast (Annexure “B”, Exhibit “S”, supra).

The petitioner’s case under the two basic allegations (paras. 6 and 7, Petition) can be conveniently summarised as follows. Firstly, that the second respondent failed in the discharge of its legal constitutional duties and functions to count ballot papers from a Ballot Box numbered EHP. 1323, thereby preventing 466 electors in the electorate from exercising their constitutional right to vote in the election. Secondly, it was contended that the subsequent destruction of the said ballot papers whilst in the care, control and custody of the second respondent constituted an error of, or an omission by, an officer of the second respondent which affected the results of the said election. Finally, the petitioner contended that the unlawful interference with and destruction of Ballot Box numbered EHP. 1323 and the 466 ballot papers contained therein constituted an illegal practice likely to affect the result of the election.

The facts relied upon by the petitioner to challenge the validity of the election and return can be briefly summarised as follows. On Wednesday 18 June 1997 voting in the election was being conducted at Kingston Town Buai Market, a settlement at the edge of the Kainantu township. This was a designated “polling place”, and Ballot Box No. EHP. 1323 was being used that day. Election Team No. 23 was manning and conducting the voting. Presiding Officer John Meikwar was assisted by polling clerks Kiso Agoniso and Theresa Turea. The Assistant Returning Officer for the electorate was Solomon Tato. On the day and afternoon in question he was operating from his office at the Kainantu District Office.

Polling commenced at about 10.30 am. At about 5.30 pm., after the completion of polling the subject Ballot Box was transported in a vehicle by the presiding officer to the District Office where it was delivered into the physical custody of the Assistant Returning Officer. Whilst in the physical custody, control and care of this officer, another person, by the name of Poe Taranka, with others caused a commotion and, in the process, he (Poe Taranka) took Ballot Box No. EHP. 1323 by force from the electoral officer and destroyed it, breaking open the box and burning it and its contents, a total of 932 ballot papers (made up of 466 votes each cast for the Open and the Eastern Highlands Regional seat).

At the commencement of the trial of the allegations the second respondent did not dispute the following facts:

· That Ballot Box No. EHP. 1323 was destroyed;

· That Ballot Box No. EHP. 1323 contained 466 votes;

· That Ballot Box No. EHP. 1323 came from Kingston Town Buai Market; and

· That the first respondent’s winning margin over the petitioner was 411 votes.

The first respondent’s attitude was that he did not know whether there were 466 votes or not, and further contending that he would, thus, cross-examine the petitioner and his witnesses on the allegations (his) of numerous instances of double voting. After the trial the first respondent, in his submissions accepted the brief facts as stated by the petitioner in his submissions (written, para. 2, p.2) except what was said in the following words:

Whilst in the custody, control and care of Solomon Tato, one Poe Taranka, with other persons caused a commotion and in the process, took the box by force from the custody of the Electoral Commission Officers.

The first respondent took exception to the petitioner’s suggestion of a commotion immediately before or accompanying the forcible removal of the subject ballot box from the physical custody of the electoral officer. Thus, the fact that the box was removed in the manner described and destroyed immediately after is not disputed. Otherwise the first respondent would have to contend with (and somehow explain away?) the very fact that the perpetrator here, Poe Taranka, was duly charged and convicted of an electoral offence under the Organic Law on National and Local-level Government Elections (OLNLLGE): offence No. 14 under s.191 which reads:

Unlawfully destroying, taking, opening or otherwise interfering with ballot-boxes or ballot papers.

The offence carries the maximum penalty of imprisonment of six months. This offender was duly dealt with according to law (see: certificate of Conviction, Annexure “A” to the affidavit of Poe Taranka, Exhibit “O”). In any event, evidence at the trial did suggest some commotion taking place at the time in the gathering of a mob of some 100-120 people outside the District Office (for instance, affidavit of Roger Bao, Exhibit “B”, and oral evidence: cross-examination by Dr Nonggorr). In his cross-examination by Dr Nonggorr also, Poe Taranka estimated more than 50 people standing around at the time he took possession of and destroyed the ballot-box and its contents. See also the evidence of polling clerk Kiso Agoniso (his affidavit, Exhibit “P”, para. 13, and oral evidence). This witness suggested “100 and less” people with Poe Taranka around the District Office at the time.

The trial took six sitting days in May and June this year. The petitioner called six witnesses, including himself, to give sworn oral evidence. Their respective affidavits filed before the trial were tendered and admitted into evidence as Exhibits “A” to “F” inclusive. Two electoral officials, John Meikwar (Presiding Officer at the Kingston Town Buai Market polling booth) and Solomon Tato (the Assistant Returning Officer for the electorate) were summonsed by the petitioner to appear, and did give sworn oral evidence.

The first respondent called four witnesses to give sworn oral evidence on his behalf. They had all sworn and filed their respective affidavits before the trial, and these were admitted into evidence as Exhibits “N” to “Q” inclusive.

The affidavit of Assistant Commissioner Morea Veri (Exhibit “S”) has been referred to already here. Dr Nonggorr of counsel for and on behalf of the second respondent had this affidavit tendered by consent of the other parties. Learned counsel for the second respondent brought to the attention of the court at the conclusion of evidence the position of the Electoral Commission in terms of its ability, or lack of, in the assistance rendered to the court during the proceedings. The petitioner’s allegations were and are against the Commission in the discharge and performance of its public duties and functions under the Constitution.

The court accepts Dr Nonggorr’s explanation and fully...