In The Matter of Organic Law on National and Local-Level Government Elections; Steven Pirika Kamma v John Itanu, Returning Officer for South Bougainville Open Electorate and Andrew Trawen, Electoral Commissioner of Papua New Guinea and Michael Laimo (2008) N3261

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 21 February 2008
• Court: National Court
• Citation: (2008) N3261
• Docket Number: EP. NO. 11 OF 2007
• Year: 2008
• Judgement Number: N3261

Full Title: EP. NO. 11 OF 2007; In The Matter of Organic Law on National and Local-Level Government Elections; Steven Pirika Kamma v John Itanu, Returning Officer for South Bougainville Open Electorate and Andrew Trawen, Electoral Commissioner of Papua New Guinea and Michael Laimo (2008) N3261

National Court: Kandakasi, J

Judgment Delivered: 21 February 2008

N3261

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

� EP. NO. 11 OF 2007

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

�

BETWEEN

� STEVEN PIRIKA KAMMA

� Petitioner

AND:

� JOHN ITANU, RETURNING OFFICER FOR SOUTH BOUGAINVILLE OPEN ELECTORATE

� First Respondent

AND

� ANDREW TRAWEN, ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

� Second Respondent

AND

� MICHAEL LAIMO

� Third Respondent

(No. 2)

Buka: Kandakasi, J.

2007: 6 – 7 & 13 December

2008: 5 & 21 February

PARLIAMENT – National General Elections – Disputed return – Illegal practices and errors and omissions – Illegal polling and lack of proper counting of votes – Two separate polling for one polling place – One conducted at the residence of the eventual winner of the elections supporter’s house – No evidence of publication of variation to polling schedule and scrutiny - Number of voters less than number of votes included in count – Obvious errors on Tally sheet – No proper accounting for and of missing votes and number of votes entered not matching actual votes – Difference between former election process and limited preferential system - Every vote and preference require proper accounting for and counted - All errors in the counting process must be corrected before declaration of winner - Need to protect integrity of election process and the need to account for every vote cast considered – Whether returning officer has power to determine if unaccounted for votes would make a difference in the elimination of candidates and eventual outcome of the election – Appropriate remedy for erroneous electoral records and their import.

ELECTION PETITION – PRACTICE & PROCEDURE – Pleadings in election petition – Evidence not strictly establishing matters pleaded but something others coming within main ground pleaded – Evidence of matters not strictly pleaded allowed into evidence and opposing party adducing the evidence – Whether Court should ignore the evidence? – Court to be guided by substantial merits and good conscious of each case without regard to legal forms and technicalities - Court not precluded from considering and acting on the evidence before it – Court’s duty is to protect the integrity of the election process and make such orders or grant such relieves as are appropriate – Organic Law on National, Provincial and Local- Level Government Elections ss.113, 114, 212, 215, 217, 218

Cases Cited:

Papua New Guinean Cases:

Delba Biri v. Bill Ninkama [1982] PNGLR 342.

Igiseng Investments Limited v. Starwest Constructions Limited and Igiseng–Okmanip Business Group Inc (17/12/03) N2498.

Rimbink Parto v. Ruben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeko & Ors (29/08/03) N2455

Robert Kopaol v. Philemon Embel (2003) SC727.

James Marabe v. Tom Tomiape and Electoral Commission (2006) SC827.

Charles Maino v. Moi Avei and Electoral Commission of Papua New Guinea (2000) SC633.

Motor Vehicle Insurance (PNG) Trust v. John Etape [1994] PNGLR 596.

Motor Vehicle Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694.

Charles Maino –v- Moi Avei & Ors [1998] PNGLR 178.

Applications by Ben Semri and The Electoral Commission of Papua New Guinea (2003) SC723.

Steven Pirika Kamma v. John Itanu, Electoral Commission and Michael Laimo (05/12/07) N3246.

Jimson Sauk v. Don Polye (2004) SC769.

Ginson Saonu v. Bob Dade (2004) SC 763.

EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004).

Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03),

James Togel v. Michael Ogio [1994] PNGLR 396.

Kasap and Yama SC REV. No.5 of 1988 [1988 – 89] PNGLR 197.

Daniel Don Kapi v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Samuel Abal (2003) N2327.

Overseas Cases Cited:

Brown v. Dunn (1893) 6 R 67(HL).

Counsel:

A. Manase, for the Petitioner.

R. William, for the First and Second Respondents.

J.B. Nanei, for the Third Respondent.

21 February, 2008

1. KANDAKASI J: Mr. Steven Pirika Kamma is challenging the election victory of Honourable Michael Laimo as member for the South Bougainville Electorate in the 2007 National General Elections. Honourable Laimo polled 6,346 votes while Mr. Kamma polled 6,329, giving a winning difference of 17 votes.

2. The petition is based on two main grounds (1), there was an illegal polling or double voting conducted at Ibirari village by polling officials and (2) there was no proper accounting for and counting of votes at the counting as confirmed by the relevant tally sheet, form 66B which affected the results of the election.

Main Issues

3 The main issues therefore for the Court to determine are clearly as follows:

a Was there an illegal polling or double voting at Ibirari village by polling officials? and

a Were there errors and omissions in the accounting for and counting of votes at the counting as confirmed by the tally sheet, form 66B which affected or had the effect of likely affecting the outcome of the election?

4 In order to determine these main issues, it will be necessary also to consider and determine a number of subsidiary issues. I propose to mention and determine the subsidiary issues in the course of the judgment, which will eventually form the foundation for a determination of the main issues.

The Parties’ Arguments

5 At the end of the trial, Mr. Kamma submitted that, even though he may not have strictly proven the grounds of the petition as per his pleadings, he has nonetheless proven the main thrust of his allegations. The main thrust of his allegations is that, the integrity of the polling, accounting for and counting of votes for the South Bougainville Open Electorate has been compromised to the extent that it affected or did have the likelihood of affecting the results of the election. Accordingly, he argues for a recount of the votes but excluding the votes cast in the illegal polling conducted at Ibirari. This is to rectify the apparent errors in the Electoral Commission’s records and properly declare a winner of the election after properly accounting for and counting of the votes properly and legally cast.

6 The Electoral Commission on the other hand with the support of Honourable Laimo, argues for a different result. They argue that, since Mr. Kamma has not strictly speaking, proven the case he has pleaded in terms of the particulars of the grounds of his petition, the Court should ignore the evidence before it and dismiss the petition.

7 The evidence before the Court includes apparent errors in recording of polling, the accounting for and counting of votes which are confirmed by the relevant tally sheet form 66B and other records adduced in evidence with the consent of all the parties. It also includes an admission by the Electoral Commission that, it conducted two polls for the Mongai area in the Konnoc Constituency, one of which it conducted at Ibirari, which Mr. Kamma alleges was illegal. Also, evidence mainly coming from the Electoral Commission through cross-examination and records of the second polling at Ibirai (exhibit “E” form 55 dated 07/07/07 and others) clearly indicate that, the actual polling for Mongai at Ibirari was at the residence of one, Andrew Kiata who is a supporter of Honourable Michael Laimo. Further evidence coming from the Electoral Commission in the form for the presiding officers’ returns for the polling in question, shows that, only 128 names where crossed out on the Common Roll used as having cast their votes but the actual number of votes included at the count as coming from the relevant ballot box was 212, giving an unexplained addition and an increase by 84 votes.

Subsidiary Issues

8 As can be seen, these presents a number of subsidiary issues, namely the pleadings, the evidence before the Court and what the evidence demonstrates. I will first consider the pleadings issue in terms of just what is it that Mr. Kamma pleaded, then turn to a consideration of the evidence the parties called and what do the evidence establish followed by a consideration of whether the evidence establishes what was pleaded and if not, just what do they establish and whether the Court should ignore what the evidence establishes.

Petitioner’s Pleadings

9 In the first ground of the petition, Mr. Kamma alleges that, on 9 July 2007, after the completion of the proper polling for the Ibirai areas, which is in the Lule constituency, the Returning Officer set up another illegal polling booth at Honourable Laimo’s Ibirai village (“the second polling at Ibirai”) using ballot box number 0219 to unlawfully poll 212...