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Kakale v Pundari [1993] PGNC 41; N1135 (22 January 1993)

N1135

PAPUA NEW GUINEA
[In The National Court of Justice]

MP 141 OF 1992

CORNELIUS KAKALE
Petitioner

V

JOHN THOMAS PUNDARI
1st Respondent

ELECTORAL COMMISSION
2nd Respondent

Mount Hagen: Woods J
20, 21, 22 January 1993

Parliament - Elections - Disputed Returns - irregularities by officers of the Electoral Commission in the counting.

R Vaea for the Petitioner.
P Niningi for the 1st Respondent.
J Bray for the 2nd Respondent.

22 JANUARY 1993

WOODS, J. This is a Petition disputing the validity of the Election for the Kompiam-Ambun Electorate in the Enga Province in the 1992 National Elections.

The Petitioner has made a number of allegations but they are all concerned with alleged irregularities or undue influence at the counting of the poll held at the Wabag Community School between the 27th June and 3rd July 1992. He firstly alleges irregularities in the Commission Officials such that there were 2 Declarations and next that there was undue influence by the 1st Respondent on the electoral officials which affected the counting which influence led to a "2nd Count" and thereby to the declaration of the 1st Respondent as the winner.

The evidence brought by the Petitioner is that at the beginning of the counting for the Kompiam-Ambun seat on the 27 June the Assistant Returning Officer discussed the procedure for the counting with all the assembled officials and scrutineers and divided all the boxes from the polling into 3 lots, the first lot was of 73 good boxes which were all satisfactorily identified, the second lot was of 18 boxes which had been taken to Kompiam station from a different place and there were questions about the security of those boxes, the third lot was of 8 boxes which arrived late and were brought in privately. The Petitioner's evidence was that the 73 boxes would be counted but the remaining 27 would not be counted as they were suspect and that the leader at the end of the 73 boxes would be declared the winner. Then at the end of the counting of the 73 boxes the Assistant Returning Officer declared the Petitioner as the winner but because of pressure from the First Respondent and others the Assistant Returning Officer then after a delay and after consulting with other Commission Officers and others he continued counting more boxes and after this so-called "2nd count" of a further 14 boxes he then declared the 1st Respondent as the winner. The evidence suggested that this count of the further 14 boxes was not done under proper scrutiny. The Petitioner is alleging that the first declaration after the conclusion of the 73 boxes was the valid Declaration and the further counting of the 14 boxes was irregular and that the result after that counting was invalid. The petitioner has referred to the actions of a Romalu Bapu the Assistant Returning Officer as supporting his allegations. It was Mr Bapu who was in charge of the counting and he stopped the counting after box 73 and sought advice from his superiors and indicated in a letter to the Provincial Returning Officer that he was concerned with he validity of the remaining 27 boxes and following the direction from his superiors to continue the counting he then stepped down from being responsible for the counting and another officer was appointed to take over responsibility for being in charge.

The Petitioner also brought evidence that the 1st Respondent came into the counting room at the relevant time and applied pressure on the Electoral Officials to continue the counting to the "2nd Count".

The Electoral Commission brought evidence which while agreeing with the original separation of the boxes into 3 lots stated that there was no declaration of a winner after the count of box 73. Mr Bapu agrees that there was a pause in the counting after box 73 but that was because the remaining boxes needed to be properly identified. Because of certain questions raised about the remaining boxes he sought clarification from his superiors and following advice he continued counting those boxes that could be properly identified. Mr Bapu attests that there was no declaration nor any agreement to make a declaration after the counting of box 73. He agrees that he did step aside after they had started to count box 74 but that was because of certain pressure from some scrutineers. The master tally sheets for the counting were produced and whilst the sheet on which the count of boxes 73 and 74 was not a completed sheet, half the sheet was unused and a fresh sheet was used for count 75, there is nothing on that sheet and at the end of count 73 to show that the final counting had finished and a declaration was made. If box 73 was the final count then the count would have been ruled off at that stage and the sheet properly signed off as required by the Officials and scrutineers before any Declaration. Mr Bapu gives a reasonable explanation for the failure to use the whole of that sheet for the continuation of the counting by the fact that when the queries arose after count 73 and over count 74 that sheet was taken to the Provincial Counting Centre Office and left there and when they continued the count of box 75 they used a new sheet.

The Electoral Commission evidence denies any unauthorised intrusion or use of force by the 1st Respondent in or around the counting room.

The Electoral Commission also brought evidence suggesting either illegal practices by the Petitioner at Kupin one of the polling places during the poll or active knowledge by him of illegal practices there.

The first matter I must consider is the allegation that there was a first declaration. The evidence of the Tally Sheets suggests that the counting was not properly finished off to show that the counting had finished. Mr Bapu clearly admitted that he had some difficulties after the counting of the first 73 boxes but he expressed his concern with his higher authority and as directed continued to count further boxes after they were properly identified. And I note that during the further counting some of the counts were properly verified by some scrutineers by way of their signatures on the Tally Sheet. There has been no challenge in this case to the validity of any of those 14 boxes, no challenge or evidence that the ballot papers in those boxes were or should have been declared invalid. So I must assume that those ballot papers were valid votes. Of course the converse of that is that one could assume then that if those boxes had not been counted then there may have been an objection that valid votes were omitted from the count.

On the evidence before me I am not satisfied that the so-called first declaration after the conclusion of the counting of box 73 was ever made, and I am further satisfied that if it had been made it would clearly have been open to challenge.

The overriding consideration in election petitions as submitted to me by both Petitioner and Respondent is that the court should be guided by the substantial merits of the case and good conscience. The question I ask myself is was there a true election. No-one has come to this court and said I was prevented from exercising my right to vote. No-one has come to this court and proved that boxes that were counted should not have been counted or that boxes which were counted were "stuffed" and therefore led to an invalid result. As I have said before in previous cases it is not enough to come to this court and say I am suspicious or I have doubts and please will the court look at the whole election and remove those doubts or take action. This court can only act on evidence that there may have been clear irregularities which may have affected the results of the election or illegal acts.

I note that with 18 candidates seeking the votes of just over 23,000 voters of course the winning margin may be very close and the winner may only obtain around 10 percent of the vote but the system of elections as present used allows this to happen. A close vote of itself is not a reason to seek a recount or a re-election.

I note that I do not have to go into the allegations raised against the Petitioner as to the conduct of the poll at Kupin village.

There is nothing on the evidence before me for this Court to find that there has not been a true and fair election.

I dismiss the Petition.

Lawyer for the Petitioner: Ray Vaea Lawyers
Lawyer for the 1st Respondent: P Niningi
Lawyer for the 2nd Respondent: Pato Lawyers