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Genaboro v Ganarafo [1998] PGNC 27; N1711 (7 May 1998)

Unreported National Court Decisions

N1711

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP44 OF 1997
JAMES MOBIE GENABORO
-V-
RON GANARAFO
AND
REUIBEN KAIULO

Waigani

Salika J
7 May 1998

PARLIAMENT– Elections – Disputed Election Petition – Error or omission by Electoral Officer – Electoral Officer producing an uncertified list of voters – People allowed by electoral officer to vote from uncertified list – those votes may have affected the result of the election.

Cases Cited

Mond v Okoro (1993) PNGLR 385

Rea v Rarua (1977) PNGLR 338

Mr. D Kwimberi for the Petitioner

Mr. M. Kuwimb for the 1st Respondent

Mr. A Kongri for the 2nd Respondent

7 May 1998

SALIKA J: This is a petition disputing the validity of the election of Ron Ganarafo as the duly elected Member of Parliament for the Daulo Open Seat in the Eastern Highlands province, during the 1997 National Elections. The petition seeks to have the election of Mr. Ganarafo declared invalid. The petitioner was among a total of twenty six contestants vying to get elected. He was the runner up to Mr. Ganarafo who won by a margin of 267 votes.

The petitioner made a number of allegations some of which were struck out at a preliminary hearing. The remaining allegations are grounds 8 (d), (e) and (f). They are in the following terms.

8.(d) On 18th June, 1997, a type unauthorised Supplementary List or roll was used at Kasena Community School Rest House, by teams 22, 23 and 24. The Supplementary List was provided by Eddie Bowoku, the First Respondent’s Campaign Co-ordinator to the Electoral Officials to use at 1.00 pm. All the candidates for Daulo Open were not informed of the existence of the Supplementary Roll, nor it was properly certified and distributed to other polling places. It is alleged the Supplementary Roll was used to procure extra votes for the First Respondent.

(e) On 19th June 1997, all seven ballot boxes from Kasena Community School were taken to Goroka in an unauthorised vehicle by the First Respondent’s supporters and 3 of those boxes were untagged and unlocked. One of the boxes is still in the Police custody. The candidates and scrutineers of other candidates including the Petitioner disputed the boxes and objected to them being counted as they were corrupted, but the Provincial returning Officer Mr. Ben Bayau put on the tags and included those boxes for counting. It is alleged that those boxes were illegal boxes and should not have been counted. The ballot boxes numbers are 0047(A), 0047(B) and 0024. There were two 0047 boxes. The polling team leader for Team 24, Mr. Killen Kumono admitted that those boxes were not tagged and locked.

(f) The said boxes were taken to Asaro at about 10.30 am in the Company of the First Respondents supporters including Eddie Bowoku. The said Eddie Bowoku, used force and threats and ordered all extra unused ballot papers to be put on the vehicle with the ballot boxes. It is alleged that this was done to procure extra votes for the First Respondent.

The first issue raised in the allegations is whether or not the list used by the presiding officers at Kasena Community School was authorised. There is no dispute that a list was used by presiding officers of polling teams 24 and 23 at the Kasena Community School. It was alleged by the petitioner that an Eddie Bowoku had produced the list, however upon hearing all the evidence I am satisfied that the Returning officer for the Daulo Open Seat Mr. Leo Kaka produced the list and gave it to the presiding Officer of team 24. As to when the list was introduced is not crucial in my view. It is not in dispute that the list was used by the presiding officers of polling teams in Team 23 and 24 and that people whose names are on the list were allowed to cast their votes.

Counsel for the First Respondent has made a submission that the list that was issued cannot be regarded as a supplementary list. He submitted that the word “supplementary” has a distinct meaning in law which in this case means “additional to”. He submitted that the list which was used was not “additional to” the 1996 Preliminary listing and the 1997 Final Electoral Roll. The evidence is that the 1996 Preliminary listing was done by the Electoral Commission and sent to the respective provinces to have them inspected and objected to or commented upon. After that was done it was sent back to the Electoral Commission to compile the Final Electoral Roll. The 1997 Final Electoral Roll was compiled from information from the 1996 Preliminary listing. When the 1997 Electoral Roll came out it did not contain the names of people from certain villages and clans from the Daulo Electorate. The Returning Officer for Daulo Open and the Provincial Returning Officer sought to rectify this anomaly. The Electoral Commission wrote to the Provincial Returning Officers and the Returning Officers throughout the country that because of widespread complaints and concerns about omission of names for the final electoral roll, he was directing “that the preliminary listing that was compiled late last year be used as the back up list”. The Electoral Commission was not called to clarify what he meant by that letter but given its ordinary meaning it is my view that the Electoral Commission was directing the Electoral Officials to use the 1996 Prelimary list as a back up list. The Electoral Commissioner in my view did not intend that the Returning Officers or presiding Officers should make their own lists from the 1996 Preliminary list. He meant that the 1996 Preliminary list would be used also. In this case the Returning Officer said he identified the names of those people who were in the 1996 Preliminary roll but not included in the 1997 Final roll. He then entered their names on paper in a form of a list and on the day of polling took the lists to the relevant polling booths and gave them to the presiding officers there.The facts in this case are similar to the facts in Mond v Okoro (1993) PNGLR 385 in that just prior to polling at Kasena polling place it was discovered that there was a mistake in the compilation of the 1997 principal roll of voters such that a number of names supposed to be included in the principal roll had been left out. The Okoro case differs in this regard.

“The Returning Officer, on discovering the omission went to his master roll, which is a large volume of all names compiled from the work of officers during their village surveys the previous year. He found the missing pages of names and gave them to the Presiding Officer of the relevant team for Dumun. The missing pages were four pages of members of the Droku clan of Dumun Rest House and two pages of members of the Kutanku Clan of Dumun Rest House”.

In this case the pages of the 1996 listing were not given to the presiding officers at Kasena. The Returning Officer said he extracted the missing names from the 1996 list and had the list typed out for him by an Electoral Commission typist in Goroka. On the morning of polling he took the list and gave it to the presiding officer of Team 24 at Kasena Polling place. He did not certify the list. In the Okoro case the Returning Officer had certified the roll. In this case it was not certified. The Provincial Returning Officer had authorised Mr. Kaka to prepare a supplementary list. However the Returning Officer did not show the list to him to be certified. The list compared to the 1996 Preliminary roll is a bit confusing. I find that the list was a supplementary list. It was additional to the final roll.

The question now is should the list be accepted. My view is that if this type of lists were allowed to be produced it would lead to abuse. In my view it was not proper for Mr. Kaka to produce an uncertified list. Even the 1996 Preliminary list is not certified. The returning officer did not initial the list. In my view the list was invalid and should not have been issued without the certification. S.123 of the Organic Law in my view is clear that a list of voters to be used by a presiding officer is to be certified. The reason for this is obvious and that is to avoid any made up lists floating around. The Provincial electoral Officer had directed that the supplementary list had to be certified. The returning officer for Daulo however did not have the list certified. I therefore find that the use of the list in the way it was used was not proper and in my view was unlawful and amounts to an illegal practice. The second issue relates to the alleged tampering of the ballot boxes. There were seven ballot boxes from the Kasena polling place. Evidence is that three of those ballot boxes were brought into the Goroka Police Station without the outer tags affixed. Box 0047(A) was broken and so was not counted. Boxes 0047(B) and 0024 went on to be counted. Those boxes were brought in a police vehicle without the electoral Officials. Those boxes were counted.It is conceded that the ballot boxes were not tagged outside. Those tags have a function to play. The locks can be easily cut off with bolt cutters. The tags too can be easily cut off with a knife. If a lock is cut the tag too must be cut to gain entry into the ballot box. The tag has serial numbers on it. When a box is tagged the serial number is noted by the presiding officer and all the scrutineers. When the box is to be opened at the Counting Centre the presiding officer and the scrutineers check the tag number. If the tag number is the same as their record then nobody had interfered with the box, but if the serial number of the tag is different then someone has interfered with the box.

In this case the petitioner alleges that as the three boxes were not tagged they should not have been counted because the Electoral Commission and the Returning Officer could not guarantee the integrity of the ballot box and the ballot papers. There is merit in that submission. However, evidence is that on the 19^th June 1997 all the candidates and their scrutineers agreed that these boxes should be counted and they were counted. The petitioner says they only agreed to count the boxes to ease the tension then. While that may be so, one cannot now come back and give that excuse. It is my view that once he gave his consent, whatever the circumstances, to have those votes counted he is bound by his own agreement to count them. In the circumstances I reject that ground on the basis that he had agreed to have those boxes counted.

I now go back to the first ground which I have upheld that the providing of an uncertified list was an illegal practice by an electoral officer. Because it was an illegal practice, the court cannot declare that the person returned as elected was not duly elected or declared an election void, unless the court is satisfied that the illegal practice may have affected final result of the election. I refer to REA V RARUA (1977) PNGLR 338 to support that proposition. In this case the first respondent won by 267 votes from the petitioner. There were a total of 26 candidates contesting for the seat. A total of 276 people casted their votes from the illegal list. Would that affect the result. The list of names was made up of people from the First Respondents village. The Court cannot ask those people how they voted. However, because the list is made up of voters from the first Respondents village he was expected to get a lot of those votes. I am guided by s.217 of the Organic Law to say that. I cannot be sure if all of them had voted for the First Respondent. To answer my own question I would say that “yes” the results would be affected but by how much I am not able to say. It would be very close and I am of the view that it would have affected the final outcome.

In the circumstances I allow the petition and I declare that Ron Ganarafo was not duly elected and in all fairness order that a bi-election be conducted for the Daulo Open Seat Electorate.

Lawyer for the Petitioner: Dowa Lawyers

Lawyer for the 1st Respondent: Warner Shand Lawyers

Lawyer for 2nd Respondent:Nonggorr & Associates