Unreported National Court Decisions
N979
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
LAINA
V
TINDIWI & ELECTORAL COMMISSION
Wabag
Woods J
29-30 April 1991
1-3 May 1991
PROVINCIAL ASSEMBLY - Elections - Disputed Election Petition - Premier’s Seat - Errors and Omissions by officials - Difference between number of votes cast for Premier’s Seat and number for Constituencies - Petition dismissed.
Cases Cited:
In Re Biami Provincial Parliamentary Election 1980 PNGLR 140
Counsel:
N Kirriwom for Petitioner
R Pato for 1st Respondent
J Sirigoi for 2nd Respondent
3 May 1991
WOODS J:  This is a Petition by Ned Laina who was a candidate in the 1990 Enga Provincial Elections for the Premiership. The candidate declared elected was Danley Tindiwi.
The Petition is alleging errors and omissions by the officials of the Electoral Commission in the course of the Election and that these errors and omissions seriously affected the results.
The Petitioner’s first allegation is that because the final results of the Provincial Elections showed that only 145,710 electors voted in the 22 Constituencies and 152,370 electors voted in the Premier’s seat there thus being a difference of 6,660, the officials must have made errors either at the counting or by the entering of figures on the tally sheets.
These figures were obtained from a Document tendered to the court and marked Exhibit 2 being a set of final figures for each Constituency. This Document was challenged by Counsel for the Respondents and in his evidence the Returning Officer stated it was not an official document. However I was prepared to accept it as evidence which could assist the Court in the absence of any more authentic sets of figures. It was always open to the Electoral Commission to tender any better sets of figures.
However having said that I was prepared to accept this document as an aid to an analysis of the figures it became apparent during the evidence that there were some glaring errors in it, particularly in respect to the number of votes counted from a critical Constituency namely the Kompiam Central Constituency. Even the Petitioner’s own witnesses agreed there were errors and it appeared that the figure in Exhibit 2 for the Kompiam Central Constituency was down by around 5000 votes, according to the evidence of Peter Yange by 5,189 votes. So immediately if we rely an Exhibit 2 to get the difference of 6660 referred to in Paragraph 6 of the Petition we find that we have found over 5000 of the 6660 difference. And there is a further suggestion from Peter Yange’s evidence that the figures for Wapi/Sau in Exhibit 2 are also wrong.
But this playing with figures overlooks a fundamental point. Must the total votes cast in the Constituencies and the total cast in the Premier’s seat be the same.
The Respondents have drawn my attention to Section 18 of the Enga Constitution which suggests that as a matter of law a person who changes his residency between Constituencies may be ineligible to vote in the Constituency he now resides in but still eligible to vote for the Premier. Whilst there is no evidence of people being denied the right to vote in a Constituency but allowed to vote only for the Premier the law clearly allows for that possibility so therefore it is possible for there to be a discrepancy.
Then further what about human nature. Is it not quite possible and even probable that an elector may say I am not interested in any of the candidates for my Constituency or I refuse to vote for any of them because of a grievance he may have, yet he may still exercise his right to vote for the Premier and vice versa. So while an elector may collect the ballot papers for both seats he may only use one of them.
Therefore it cannot be said that the 2 totals must be the same. So if they do not have to equal each other then the whole basis for paragraph 6 and 8 collapses and it is not necessary to go into the difference that may in fact exist.
However the Petitioner says the difference which of course I have already shown from Peter Yange’s evidence may not be as large as alleged if it exists at all, highlights wide errors and omissions.
The Petitioner refers us to the copy Master Tally Sheet supplied by Jimmy Alwyn the Returning Officer for the Premier’s Constituency which shows the progressive results as each box was counted and recorded. The Petitioner refers us to what appears from the markings and abbreviations used to be the votes recorded from the Kompiam Constituencies for the Premier’s seat. He finds that the Master Tally sheet only shows 4955 votes from the Kompiam Constituencies when according to Exhibit 2 there should have been at least 15190 votes to be counted or if allowing for Peter Yange’s evidence 20379 votes. This calculation however must suggest that when Kompiam Boxes were opened and the 15000 or 20000 Constituency votes counted, most of the Premier’s seat votes were lost or destroyed or concealed. However, there is no evidence of that yet there must have been scrutineers for all candidates around watching. That therefore seems highly unlikely.
Further the calculation which produces the figure of 4,955 relies on a document which requires further elucidation and such was not sought by Counsel in examination of the creator of that document. There were aspects of the Master’s Tally Sheet which should have been clarified further before any such calculation could be made. There were 4 boxes without any mark as to where they come from. This could have been elucidated from the Returning Officer. There is a box the last box which is recorded as having over 19000 Premier’s seat votes. As each box also contained Constituency votes then that box must have had around 38,000 ballot papers in it. The mind bogles at the possibility. The Returning Officer was never asked to clarify this.
Then further if you do a similar extraction of figures from the Master Tally Sheet for the Laigam Consistencies you arrive at an opposite result.
·         27,895 votes counted in the Constituencies - See Ex 2
·         56,382 votes counted in the Premier’s Seat - See Ex 1
Doing calculations like this is interesting but whilst they suggest we may need further clarification of symbols and abbreviations used or further details of voters returns do they actually show errors.
If someone had come and said I was there at the counting, I saw the voters returns, I recorded the counting as it was done, and there is my copy of the count and it is so completely different from what the Master Tally Sheet shows for the box or boxes from Kompiam then I may want to look further.
And in the history of elections in PNG some scrutineers and officials and others have kept their own sets of figures in their own notebooks like Peter Yange did. And there have been cases where I have relied on a scrutineers own notes taken during counting and compared them closely with the official returns.
But no one has brought me anything to show that any individual box as counted had been misrecorded on the Master Tally Sheet or that hundreds and even thousands of votes are missing - having been secreted away and not recorded, just 2 minor queries which were immediately corrected or explained.
The Petitioner in Paragraph 7 (a) and (b) of this Petition alleges that the votes from certain boxes were not counted. The allegation concerns 3 boxes from Kompiam and 1 box from Wabag. There is no dispute that the Returning Officer refused to include the votes from the boxes in the final tally and he clearly stated in his evidence that he refused to consider these boxes because firstly they were not identified properly by Presiding Officers from the respective teams, secondly there were questions concerning how they came to hold votes and thirdly when under pressure he did open them the initials on the back of the ballot papers could not be identified.
With respect to Box 2B of 6 of Team 3 it soon became clear from Exhibit ‘7’ being a copy of the Summary of Presiding Officer’s Return of Voters that Box 2 B was not used for any votes, so it was therefore correctly excluded.
Box 4C was used according to Titus Tumae when extra voters arrived at Kanamonda because voting at Pakalilyam was disrupted. However he then agrees that the box contained a lot of votes from a group of people from Pakalilyam who came and threatened his team and he also agrees they did not use the Common Roll. So this alone casts doubts on the votes cast in the box and on that basis alone the Returning Officer was bound to exclude that box. The evidence of Mark Doa helps to confirm the influx of possible ineligible voters at Kanamanda.
Box 6B of Team 11 was apparently used at Pakalilyam although I am not sure when it was used. If after the disturbance what about according to Titus Tumae the voters who arrived at Kanamanda when Martin Nanenk went back to Pakalilyam to conclude polling. Other witnesses Mark Doa and Constable AGWI refer to irregularities at Pakalilyam which clearly cast doubts on the validity of votes supposedly placed in the box at Pakalilyam. Unfortunately I was never shown how many voters were registered on the Common Roll at Pakalilyani to clearly show how many people were entitled to vote and therefore how many voters may have been deprived of their rights to vote.
The box from Wabag appear to be a box that even according to the evidence of Reto Rasaka was badly marked and was brought in under suspicious circumstances. Unfortunately there is no Return of voters to confirm where the box came from. The Returning Officer was clearly not satisfied because of the suspicious way it arrived, of the regularity of this box.
A problem with the Petitioner’s allegations are Box 4C, 6B and the Wabag Box is that we do not have access to the Presiding Officer’s Return of Voters and record of boxes used and thus their positive verification of boxes used and counted. We were lucky that a Polling Official did keep a copy of the Return for box 2 B. Whilst we can press the Electoral Commission to supply such Returns, if Petitioners and going to question boxes like this it is essential to have evidence to support their allegation and then to take steps to secure access to any relevant documentation as soon as the possibility of errors became known. The Petitioner should have taken steps in August last year when he filed the Petition to secure access to such documents by Court Orders before the matter got too old. And of course scrutineers have an obligation to keep their own notes of boxes delivered and counted if it appears that there may be irregularities. And the same applies to the allegations made by the Petitioner about the overall figures for which he relies solely on the copy Master Tally Sheets and the Exhibit 2 lists of figures.
The errors revealed in Exhibit 2 may have been clarified at the beginning if the Petitioner had sought access to the Commission Documents immediately after the Election and again a Court Order could have been sought as soon as the Petition was filed. The Petitioner’s case is that there were errors and omissions which should vitiate the election. However the law is quite clear that such should only vitiate the election if it is clear to the court that the result of the election was likely to have been affected and that it is just that the candidate be declared not to be duly elected.
So I must first be satisfied that there have been errors and omissions such that in this case votes properly cast were not counted. Then I must be satisfied that the effect of these votes not being counted was likely to have affected the election and then that it is just that the election of the winning candidate be declared void. The principles have been clearly stated in Re Baiami Provincial Government Elections 1980 PNGLR 140.
With respect to Boxes 2B, 4C, 6N and the Wabag Box I have not been satisfied that the Returning officer erred in ruling the way he did so I cannot even order a proper counting of those boxes because quite clearly they were not validly used or they were not properly identified as being for votes regularly cast. It is not a question of let us look and see, there is no valid basis for us to even look.
With the respect of the alleged difference between the total votes cast in the 22 Constituencies and the total cast in the Premier’s seat evidence has suggested that the difference alleged does not exist and also it is rightfully submitted that there is no legal basis for any suggestion that there should not be any difference.
Whilst the Respondents point out that that is the end of this allegation, even if one goes further as the Petitioner has gone and done mathematical calculations based on the Master Tally Sheets and Exhibit 2 one can find other possible anomalies... which may not favour the Petitioner. Whilst we may be interested to have certain aspects revealed by the Master Tally Sheets explained, on its face it reveals no error and omissions such that the Election should be declared void. Even the impossibility of the 19,000 or should I say 38,000 votes in the last box counted could not improve the Petitioner’s position because he received almost all of those votes in that ‘Box’.
I need further evidence before I have to investigate all the details suggested by the Master Tally Sheets and such evidence has not been forthcoming.
It is not a matter of let us all have another look, it is a matter of proving errors and omissions.
I am not satisfied that there have been errors and omissions such that there has been no proper election.
I dismiss the Petition and thereby confirm the election of Danley Tindiwi.
Lawyer for Petitioner: Kirriwom & Company
Lawyer for the Plaintiff: Steeles
Lawyer for the Defendant: Secretary for Justice