Paiyo Bale v James Donald

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 09 February 2018
• Citation: (2018) N7124
• Court: National Court
• Year: 2018
• Judgement Number: N7124

Full : EP No 31 of 2017; Paiyo Bale v Hon James Donald and Electoral Commission (2018) N7124

National Court: Makail, J

Judgment Delivered: 9 February 2018

N7124

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 31 OF 2017

BETWEEN

PAIYO BALE

Petitioner

AND

HON. JAMES DONALD

First Respondent

AND

ELECTORAL COMMISSION

Second Respondent

Kiunga: Makail, J

2018: 2nd, 5th 6th, 7th & 9th February

ELECTION PETITION – Trial – Grounds of – Errors or omissions and illegal practices at counting – Disputed ballot-boxes – Objection taken at scrutiny – Decision made to exclude ballot-boxes from scrutiny – Decision reversed – Disputed ballot-boxes admitted to scrutiny – Reasons for exclusion of ballot-boxes from scrutiny – Alleged tampering of – Polling conducted outside gazetted polling locations in another electorate – Legality of decision

– Whether result of the election was likely to be affected – Organic Law on National and Local-level Government Elections – Sections 43, 153A, 215 & 218

Cases cited:

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

Philemon Embel v. Jeffrey Komal & Electoral Commission (2015) N5947

Samson Malcolm Kuli v. Electoral Commission & Anton Francis Yagama (2013) N5275

Counsel:

Mr. J. Lome with P. Kome, for Petitioner

Mr. D. Igolena, for First Respondent

Mr. S. Ranewa, for Second Respondent

JUDGMENT

9th February, 2018

1. MAKAIL, J: The petitioner, Mr. Paiyo Bale finished third with 4,351 votes, another candidate, Mr. Sam Bob Auwi finished second with 5,788 votes and the first respondent, Mr. James Donald finished first with 8,204 votes. On 28th July 2017, Mr. Donald was declared candidate elected and member for North Fly Open electorate in Western Province. The total number of vote difference between the first runner-up, Mr. Auwi and Mr. Donald was 2,416 votes.

2. By this petition, Mr. Bale disputes the election of Mr. Donald. He alleges that two out of four disputed ballot-boxes for Nomad LLG were wrongly admitted to scrutiny and ballot-papers were counted, hence illegal. As a result, at the final count, Mr. Donald scored the highest number of votes and won.

3. The four ballot-boxes are from Polling Teams 26, 27, 28 and 29 in Nomad LLG. Ballot-boxes from Teams 26 and 27 were admitted and ballot-papers were counted. Although ballot-boxes from Teams 28 and 29 were admitted, ballot-papers were not counted because they were found to be tampered with. It is alleged that they were marked for Middle Fly Open electorate but were crossed out with a pen and marked out for North Fly Open electorate.

4. The relief he seeks, in summary, are, a declaration that polling in Nomad LLG by Teams 26, 27, 28 and 29 for North Fly Open electorate is illegal and a declaration that the decision of the acting Returning Officer to reverse the decision of the Returning Officer and count the ballot-boxes is illegal, null, void and of no effect.

5. Further, an order that the declaration and election of Mr. Donald as member for North Fly Open electorate is null and void and an order for recount of ballot-papers for North Fly Open electorate excluding ballot-papers from ballot-boxes for Teams 26, 27, 28 and 29 from Nomad LLG. Alternatively, an order for a by-election for North Fly Open electorate, costs, and a refund of security deposit of K5,000.00.

Grounds of Petition

6. Mr. Bale relies on the following grounds to contend that the decision to admit to scrutiny ballot-boxes from Teams 26 to 29 was illegal:

6.1. Their lids were supposed to have five metal tags but instead had a combination of plastic and metal tags.

6.2. Their metal seal tags were not properly and firmly tighten or fasten;

6.3. Their plastic tags were not strong and permanent like metal tags or pad-locks, hence the integrity of the ballot-boxes was compromised;

6.4 An objection was taken by Mr. Bale and other candidates to exclude them from being admitted to scrutiny.

6.5. A decision was made by the Returning Officer to exclude them from scrutiny.

6.6. The next day, a decision was made to appoint the Assistant Returning Officer as acting Returning Officer contrary to Section 21 of the Organic Law on National and Local-level Government Elections (“Organic Law”).

6.7. It was also illegal because the Election Manager or Election Steering Committee had no power to appoint the acting Returning Officer.

6.8. A decision was made by the acting Returning Officer to reverse the earlier decision and admit them to scrutiny.

6.9. When ballot-papers were open for counting, they were found to be for the Middle Fly Open electorate.

6.10. Ballot-papers from Nomad LLG are not to be counted because Nomad LLG is in Middle Fly Open electorate and not North Fly electorate.

6.11. The decision to count the ballot-papers from Nomad LLG was contrary to the decision of the second respondent that the Nomad LLG is in Middle Fly Open electorate.

6.12. The decision of the second respondent was based on the decision of the Electoral Boundaries Commission whose decision was that, Nomad LLG was in Middle Fly Open electorate.

7. After a no case application by the respondents, Mr. Bale abandoned the allegations constituting the ground on objection taken by him and other candidates to exclude the ballot-boxes from being admitted to scrutiny. This ground will not be considered.

8. The allegations constituting the ground on tampering of the ballot-boxes were dismissed for want of pleading of facts under Section 208(a) of the

Organic Law on National and Local-level Government Elections (“Organic Law”) and/or lack of evidence.

9. The remaining allegations constituting the grounds on illegal appointment of new Returning Officer, reversal of decision to exclude the ballot-boxes and to count the ballot-papers and polling in Nomad LLG being outside the North Fly Open electorate were upheld and allowed.

Petitioner’s Evidence

10. Mr Bale gave evidence by sworn affidavit and was cross-examined. In addition, he called three witnesses. They are his campaign manager and election coordinator, Mr. Jimmy Smik, one of his campaign officials, Mr. Michael Gen Lam and Kiunga Police Station Commander, Mr. Anthony Toroipo. They swore affidavits and were cross-examined by counsel for the respondents.

11. Mr Bale’s evidence is that, on 21st April 2017 he nominated for North Fly Open electorate. There were a total of 52 candidates. Nomad LLG is part of Middle Fly Open electorate. As a result, he did not extend his campaign that far.

12. The votes he collected from Nomad LLG were from his relatives and close friends but no explanation was given by the electoral officials in Kiunga as to why they did not comply with the second respondent’s gazetted demarcation of electoral boundaries.

13. Secondly, the Returning Officer Mr. David Soni had made a decision not to count the disputed ballot-boxes. The new Returning Officer Mr. George Papin reversed that decision and allowed the disputed ballot-boxes to be counted and the ballot-papers were counted.

14. Thirdly, the disputed ballot-boxes were tampered with. The serial numbers were inconsistent.

15. Mr. Jimmy Smik’s evidence starts with the pre-polling preparation, opening and inspection of two sealed containers (one blue in colour and the other, red in colour) containing election materials were opened at Kiunga Police Station on 12th June.

16. From 12th to 25th June, appointment of polling officials and training of presiding officers and after that, eight weeks of campaign.

17. Ballot-papers were packed in ballot-boxes and sent out to the gazetted polling locations with polling teams. They were:

17.1. Kiunga Urban LLG with six polling teams.

17.2. Kiunga Rural LLG with seven polling teams.

17.3. Ningerum LLG with thirteen polling teams.

17.4. Starmountain LLG with eight polling teams.

17.5. Olsobip LLG with nine polling teams.

18. Nomad LLG is geographically in the middle of North Fly Open electorate and Middle Fly Open electorate. Administratively, provision of government services is shared between these two electorates.

19. He produces two gazettal notices published on 21st April. One for the North Fly Open electorate and the other for Middle Fly Open electorate which lists the dates of polling, names of polling teams and polling locations.

20. The gazettal notice for North Fly Open electorate does not show Nomad LLG as being one of the LLGs for North Fly Open electorate and Polling Teams 26, 27, 28 and 29. On the other hand, the gazettal notice for Middle Fly Open electorate shows that Nomad LLG is one of the LLGs for Middle Fly Open electorate and Polling Teams 26, 27, 28 and 29.

21. The election officials including the Returning Officer and Election Steering Committee did not take hind of the gazettal notices. They divided the wards with 24 to North Fly Open electorate and 17 to Middle Fly Open electorate.

22. As a result, Polling Teams from 26 to 29 were allocated and conducted polling for North Fly Open while Polling Teams from 30 to 33 were assigned to and conducted polling for Middle Fly Open electorate.

23. On 12t...