[1999] PNGLR 95

PAPUA NEW GUINEA

[national court of justice]

WAUNI WASIA RANYETA

V

MASKET IANGALIO; and
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

waigani: sheehan j
9 – 12, 16 – 19 November 1998; 4, 15 December 1998; 26 February 1999

National Elections – Petition Disputing Return – Organic Law on National and Local Level Government Election – Allegations of bribery and allegations of electoral errors and omissions.

Facts

The petitioner stood as a candidate in the Wapenamanda Open Seat in the 1997 General Election against the sitting member, Mr Masket Iangalio and lost the election to the sitting member. The Petitioner disputes the election of Mr Masket Iangalio as member for Wapenamanda Open Electorate. The Petitioner relied on a number of grounds most of which got struck out in preliminary hearing leaving one ground of allegation of bribery and an allegation of errors and omissions by the Electoral Commission. The Petitioner did not pursue the charge of bribery and this trial proceeded on the allegations relating to the alleged errors and omissions by the Electoral Officials.

Held

1.	The starting point for the determination of this petition must be the ground cited by the Petitioner. The Organic Law on National and Local Level Government Election says at s 208(a) that a petitioner shall "set out the facts relied on to invalidate the election or return". The Organic Law and the decisions of the Supreme Court show that the petitioner shall only be heard on the grounds that comply with s 208. That is, the petition enquiry is directed only to the ground as pleaded.

2.	The Organic Law and the decisions of the Supreme Court show that the petitioner shall only be heard on the grounds that comply with s 208 of the Organic Law on National and Local-Level Governments Elections which says that: "A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and

(b)	specify the relief to which the petitioner claims to be entitled; and

(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d)	be attested by two witnesses whose occupations and addresses are stated; and

(e)	be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)". This provision requires petition enquiry to be directed only to the grounds as pleaded by the petitioner.

3.	The Returning Officer of the Electorate rejected the Rupikores and Wainepakam ballot boxes on the basis that he had written evidence of irregularities and tampering from a presiding officer. However, the facts relied to support the petition, in fact support the petition, and in fact establish that the Returning Officer was authorized to carry out the actions that he did.

4.	Contrary to the Petitioners’ witnesses, who say that all votes in box nos. 104 and 376 for Yaramanda Rest House were completely in order, there can be doubt that inner lid of ballot box no. 104 had been forced up and votes inserted. As for box no. 376, the inner lid was not closed but votes in that box were stacked inside the open box.

5.	The overwhelming conclusion has to be that each of these boxes has been interfered with. There is plain evidence of tampering form the Electoral Commissioners witnesses and corroboration of that evidence in the state of the boxes.

6.	The Returning Officer in terms of s 154(2)(a) of the Organic Law on National and Local-Level Governments Elections did not receive the disputed boxes and upon the directive of the Electoral Commissioner he exercised his discretion in accordance with the letter and intent of that directive.

7.	The Returning Officer at the Wabag Counting Centre faced with reports of votes having been initialled by Presiding Officers under duress and marked by unauthorized persons, was given good reason to reject those boxes. Because had he received them he would have been obliged to count those votes which in terms of s 153(3) of the Organic Law on National and Local-Level Government Elections despite their criminal origin, would be by that Section, normally at least, formal votes. Plainly that is not intended or lawful under the Organic Law.

Counsel

A Manase, for the petitioner.
G Sheppard, first respondent.
W Kongri, for the second respondent.

26 February 1999

Sheehan J. The Petition of Mr. Wauni Wasi Ranyeta disputes the election of Mr. Masket Iangalio as Member of Parliament for the Wapenamanda Open Electorate. 

Several of the grounds cited to overturn the election have been struck out in a preliminary hearing leaving one allegation of bribery and an allegation of errors and omissions by the officers of Electoral Commission. In fact the petitioner did not pursue the charge of bribery and this trial proceeded on the allegations regarding the conduct of the election by the Electoral Officials. This is ground two (2) of the petition and it reads as follows:

"2.	Errors & Omissions Committed by the Second Respondent.

It is alleged that numerous errors and or omissions were committed on the part of the Second Respondent, the extent of errors and omissions being such that the results of the election were thereby affected, such, errors and omissions are more particularised as follows:

2.1.	Shortly prior to declaring Masket Iangalio the winner for the Wapenamanda Open Electorate Maku Kopiyalu the Returning Officer for the Wapenamanda Open Electorate failed to otherwise refuse or neglected to carry out a lawful direction or instruction of the Second Respondent dated 2nd July 1997 which required the said Maku Kopiyalu to count all ballot boxes disputed or otherwise from all Rest Houses/polling places in the Wapenamanda Open Electorate. In failing or refusing to carry out the lawful directions of the Electoral Commission as aforesaid, the said Maku Kopiyalu refused to or failed to count the following ballot boxes:

Box No. 0003 for Tupikores Polling place. Number of eligible voters 900. 

Box No. 0068 for Wainapakam polling place. No of eligible voters 650.

Box No. 0104 and 0376 for Yaramanda Polling Place. No of eligible voters enable to vote 2,700.

All of the said three polling places were the strongholds of the Petitioner such that if the votes were counted in the normal manner the Petitioner and or the runner up would have won the election, the difference between the winning candidate and the first respondent being a little over 200 votes."

Opposing the Petition, the successful candidate Mr. Iangalio and the Electoral Commissioner, the first and second respondents, contended that those boxes, and the ballots they contained were properly rejected from the count by the Electorate Returning Officer upon written complaint and after due inquiry.

For the respondents it was maintained that the Electorate Returning Officer had followed the Electoral Commissioner’s directions and counted all ballot papers from the constituency that were properly returned to the tally room. The Tupikores and Waimapakam ballot boxes were rightly rejected as invalid since they had been tampered with. The discretion to exclude those boxes was one within the authority of the Returning Officer and with also within the specific terms and the spirit of the Electoral Commission’s direction of 2 July 1997. Since no ballot boxes for Yaramanda were returned to the counting centre room there could be no count taken of them.

The Election for the Wapenamanda Open Electorate was set for one day only and polling took place on 25 June 1997. Evidence from all parties has showed that on the morning of the 25 June 1997 polling teams were dispatched from Wapenamanda District Office by Mr. Maku Kopyalu, the Wapenamanda District Administration Officer who was duly gazetted as District Returning Officer for the Electorate. 

Teams comprised of six persons; a Presiding Officer an Assistant Presiding Officer, 3 Polling Clerks including an "Ink Boy" and a Security Officer. For some Constituencies more than one team was seen as necessary to cope with the number of electors. This was the case in respect of Yaramanda Constituency, which had three (3) teams. Tupikores had two (2) Wainapakam, one only. 

Each team was issued with ballot boxes with locks and numbered sealing tags. They were also issued with serially numbered ballot papers sufficient for the numbers of electors listed on the rolls for the constituency, and return forms, including a sex tally sheet. The serial numbers of the ballots and the ballot box sealing tags were duly recorded by the District Returning Officer on issue to each team. 

Teams were instructed that polling was to close at 6.pm and all ballot boxes and election records returned to District Returning Officer, Wapenamanda, that evening. In the event of late starts and or because of lack of transport by road or helicopter, polling in some constituencies continued past the six o’clock finish time and boxes were not returned till the next day or later. The Tupikores, Wainapakam and Yaramanda teams all overnighted with their ballot boxes at their respective polling places, variously returning to Wabag on 26 June 1997. 

In support of the petitioner’s claim that the ballot boxes had been wrongly rejected from the count by Electorate Returning Officer, evidence was advanced to show that at Tupikores, Wainapakam and Yaramanda there had been in fact an orderly, uneventful polling by electors. The Petitioner’s witnesses told the Court that ballots cast were valid votes of the electors which if counted would plainly have affected the result of the election. It was maintained the ballot boxes properly sealed had been returned under Police and or Defence Force escort to Wabag for counting, and except for Yaramanda boxes had been duly registered with the Returning Officer and locked away for counting. The two (2) Yaramanda boxes had been seized by the Police at Wabag and the Electoral Officers arrested. This course was taken by the Police because it was alleged that the Security contingent accompanying the officials were unauthorised Defence personnel. The two Yaramanda ballot boxes were seized as Police exhibits. Those two (2) boxes never reached the counting centre at Wabag.

Counsel for the Petitioner said that because the Tupikores and Wainapakam ballot boxes contained only validly polled votes, there was no reason for them not to be counted. As for the Yaramanda boxes, Counsel maintained the Electoral Commission officials should have made sure that they were released from Police custody at Wabag for counting. And in pursuance of the ground cited in the petition, even if any were disputed, all boxes should have been counted in compliance with the Electoral Commission directive of the 2nd of July. 

That direction was contained in a letter from Assistant Commissioner Election Operations Mr. Malabag to Electoral Officials. The relevant passages relied on by the Petitioner reads as follows:

"Returning Officers should not reject ballot boxes because of allegations or other complaints by scrutineers or candidates because losing candidates can still bring these matters to the court of dispute returns. The only ballot boxes that should be rejected are those that were not authorised for extra day polling in particular for Tambus Rest House or those that have substantiated evidence with written facts to prove that the ballot boxes were interfered with. Otherwise all ballot-boxes must be counted with no interruption."

The Petitioners case as submitted by Counsel was that on Saturday 5th July 1997, which was the final day of counting, there were four disputed boxes with ballot papers yet to be counted in the counting centre at Wabag. There was one box from Yakaendis Rest House, one box from Yuk Rest House, one box from Tupikores Rest House and one box from Wainapakam Rest House. Those boxes together with the two from Yaramanda seized and held at the Wabag Police Station made a total of six (6) boxes uncounted at that time. The Petitioner says that the Assistant Provincial Returning Officer then coordinating the count in the absence of the Electorate Returning Officer, Maku Kopiyalu, sought instructions of the Provincial Returning Officer Mr Koma. He directed that the instructions of Mr Malabag the Electoral Commission Operations Director set out in his letter of 2 July (cited above) should be followed; namely that all boxes should be counted. At that point Mr Konu then instructed Mr Maku Kopiyalu to take over the count. This was recommenced with the counting of the Yakaendis and Yuk boxes despite vigorous objections from scrutineers that these two boxes showed signs of damage or tampering. 

Following the count of those boxes the Returning Officer Mr Kopiyalu then announced that the Tupikores and Wainapakam boxes would not be counted and declared the two boxes "null and void". Mr Kopiyalu said in evidence during the trial, that he stopped the counting of the two boxes on the grounds that they were tampered with and he had written reports from the Presiding Officers and from a scrutineer. The Petitioner in submissions says; 

"The only reason why the boxes was not counted is because of the direction of Maku Kopiyalu who said that he received the report from two Presiding Officers that there were irregularities and also a objection from a scrutineer of Masket Iangalio only. Yet, the two boxes from Yuk and Yakaendis were counted despite strong objections from most if not all of the scrutineers of other candidates ...".

The petitioner contends that if there was nothing wrong with the Yuk and Yakeandis Rest House boxes which had been so obviously damaged or tampered with and were counted, there was no reason why the Wainapakam and Tupikores should not have been counted as well. In addition the ballot box from Awas Rest House which had been kept overnight by the same Electoral Officials at the same place and transported by the same officials to Wapenamanda for counting was counted without objections so there could be no reason why one ballot box was counted and not the other. The petitioner says that the only conclusion to be drawn is that the Electorate Returning Officer Mr Kopiyalu related to the first respondent, was biased. 

As Counsel for the petitioner submitted:

"The polling was conducted smoothly, there was no pressure upon any person, voter or the Electoral Officials and no illegal practice occurred. No double voting. This was confirmed by the inspection of the ballot papers in the ballot boxes ...".

He also said that because there were unused votes remaining after polling at least in respect of Yaramanda and Wainapakam this must be evidence countering allegations of double voting.

Yaramanda

Three teams were dispatched to Yaramanda some 5 kilometres from Wapenamanda. Those teams were headed by Niso Napingi, Peter Kalak and Elias Awarim. As presiding officers Peter Kalak, Elias Awarim and Pais Norri together with Counsellor Ikis Leme, Luke Piande and Kil and the Petitioner himself Ikis gave evidence that polling was conducted properly and smoothly through the two booths, set up at Yaramanda. Peter Kalak as Presiding Officer of team Five (#5) and Elias Awarim Presiding officer of team sixty four (#64) processed electors through each booth who then cast their votes into the one box set up behind the booths. The third team of Niso Napingi was a stand by team whose members were on call to assist the others.

Polling commenced with Niso Napingi addressing voters on the voting procedure to be followed. The first ballot box (0104) was held up and shown to the electors to be empty. The inner lid was then closed and sealed. The inner lid of a ballot box has a slot through which electors deposit their votes. Electors were then called forward to each polling booth where their identity was verified against the Roll. Their fingers were inked to signify the elector had voted. The Presiding Officer then verified the elector’s ballot papers by initialling it. The elector then proceeded to the booth where in private he was able to mark his ballot paper. He then placed it through the slot in the ballot box.

These witnesses said that because, Electoral officials did not get to Yaramanda till around 10.30 a.m. polling did not commence till approximately 11.30 a.m. and by 6 p.m. many electors had still not voted. Accordingly the officials allowed voting to continue till 8 p.m. when all voting was complete. A subsequent Count in prior a proceeding disclosed 2,508 ballots in the Yaramanda boxes 0104 and 0376. 

The Police party that was intended to provide escort for the return of the Yaramanda teams and boxes to Wapenamanda arrived around 10 p.m. But the officer in charge reported roadblocks threatening safe return and recommended deferral to next day. The officials therefore overnighted at Yaramanda with the ballot boxes in their custody. They were escorted next day by a squad of Defence Personnel to Wabag. It is there that the Police intervened, arresting the officials and the security contingent accompanying them and seizing the ballot boxes. 

Niso Napingi, Presiding officer for Team 16 denied that polling at Yaramanda had been as orderly as the Petitioner’s witnesses maintained. His evidence was that serious irregularities took place from "start to finish" of polling. During his speech at the outset to advise electors on the procedures to be followed he was shouted down. Threats to his life made as he ordered electors to follow the lawful voting procedure were such that he felt obliged to step down as Presiding officer of Team 16 and arranging for his Assistant, Elias Awarim to take his place. He did continue to act as a polling official the rest of the day and observed the irregularities that he subsequently detailed in his report (Exhibit #32) to the Electoral Returning Officer Mr Kopiyalu. 

Those irregularities included supporters of the Petitioner and other candidates acting as self appointed "witnesses" marking ballots for electors without their authority. He said there were numerous instances of double voting. He records only four(4) of these in his report, saying that he was afraid to record all that he saw at that time. He noted that the correct procedure with electors being called to come forward as their names were called from the Roll was not followed. People simply ignored officials, lining up and voting without verification. This was particularly bad when rain set in. This witness said that the Presiding Officers were obliged to validate ballots and these were marked candidates by supporters, not electors. One Nanes Balakau – not an official – presented some one hundred and seventeen (#117) ballot papers that he claimed to have received from another official. Security at the Polling Stations was not and could not be enforced. The Police Officers accompanying the Polling Officials were unarmed and ignored. 

Nisa Napingi also related that when the second ballot box (#0376) came to be used, supporters and voters prevented the closing of the inner lid and votes were simply placed inside the open box. 

Mark Miuk, a Polling Clerk with Team (#5) under Peter Kalak did not support his Presiding Officer’s testimony. He said that while Polling started in a regular manner using the Common Roll and following proper procedures it quickly degenerated, with villagers lining up on their own without being called, crowding the booths and taking their own ballot papers and making the use of the Roll impossible. "I saw the same faces two or three times. Those people cast votes two or more times". He confirmed the evidence of Niso Napingi that box (#0376) was left with the inner lid unclosed and unsealed. Votes were simply placed in the open box. He told the Court that when the first box was full "they used sticks to push ballot papers in". In the second box they didn’t want to use a stick, therefore they wanted to put votes in with the inner lid still open".

He said that his Presiding Officer should have said that this was not right but he did not say any thing. Polling closed eventually at 11.00 p.m. and boxes were put in the petitioner’s car and taken to trade store of one Joe Miti and locked inside. 

Tupikores

For the Petitioner, evidence was given by Amuson Kalip Presiding Officer for one of the Electoral teams (Team #40) dispatched by helicopter to conduct polling at Tupikores Rest House. He told the Court that while polling commenced late because of transport difficulties, polling was carried out in an orderly and largely uneventful manner till 6.00 p.m. when polling closed. While minor incidents did occur these were of not any significance. When helicopter transport failed to return to pick up the Polling team, Mr Kalip said that his team and the team which had conducted polling at Awas Rest House overnighted together at Tupikores with the ballot box 0003 for Tupikores remaining in his custody throughout.

Lens Pyaka a Polling official of team #3 under Presiding Officer Paul Yange supported that evidence as did Wailo Takais an elder of Tupikores village. 

Paul Nalenk Presiding Officer for the Awas Rest House Polling team said that he had finished early at Awas and he and his team then walked the 400 meters down to Tupikores with their ballot box 379 at around 3 p.m. on that polling day. He was therefore able to observe polling at Tupikores and he saw no incidents of any kind. Polling was smooth and uneventful. He and his team joined the Tupikores team overnighting in the village with there respective boxes, Tupikores 0003, and Awas 379 in their care. Next day 26th June 1997 both boxes and their teams were escorted to Wabag. 

Paul Yange the Presiding Officer for team 3 at Tupikores told a different story. His evidence was that from the moment he arrived at Tupikores there was trouble. The pilot of the helicopter transporting them was assaulted and his pocket picked. Some villagers with home made guns ordered the pilot to take them on board. Paul Yange was punched before he escaped to the polling booth. He then made a speech to calm the people and polling commenced at around 11.30 a.m. All went well for the first 70 or 80 votes he said, that is for about the first two hours. But thereafter his desk was surrounded by people and when he tried to assert control, his life was threatened. He was told that if he tried to stop polling he would be killed. Thereafter he was obliged to sign ballot papers while others, not the proper electors, marked the papers and put them in the ballot box. The proper electoral tally sheets were seized by Miki Kaeok a candidate, who appeared to have taken over the polling place. 

Of the 855 ballot papers allocated to Tupikores only 70 to 80 were validly cast by electors four were spoiled and the remaining ballots were not properly cast at all. He told the Court that he made an oral report to the electorate Returning Officer Mr Kopyalu the next day about these incidents and a hand written and typed report was made available to Mr Kopiyala on 30th June. That report exhibited in previous proceedings was not located but its existence was not disputed. That report recommended that the Tupikores box be not counted for failure to comply with proper voting procedures.

Wainapakam

Similar to the evidence for the petitioner of the polling at Yaramanda and Tupikores witnesses reported smooth, uneventful polling at Wainapakam. John Henry, Assistant to Presiding Officer John Andoi told the Court polling was conducted in a peaceful manner:

"The man in charge of the Common Roll called names (of electors) 5 at a time. Those 5 went to the ink boy who inked their fingers. The Presiding Officer then filled in the six tally sheet – (the electors were given their ballot) papers they then went into the polling booth where they secretly marked their votes. (The elector) then went out and put their vote in the ballot box and left …… that was procedure from beginning to end".

He said that some illiterate voters were assisted by literate assistants. And when polling finished at around 5.30 p.m./6.00 p.m. the Police Officer and the Presiding Officer sealed the ballot box, showing the key and tags to the people. He said that of the 800 or so ballot papers issued some 559 were used and 223 unused ballot papers left over were marked cancelled.

Damien Nainda "ink boy" at Wainpakam Polling confirmed that polling was uneventful. He related he had overnighted with the Polling team and returning with them and box to Wabag on foot by way of Yaibos the next day. Police Constables Wamal and Yangharry give evidence of escorting the Wainapakam Team and ballot box to Wabag. The box they said was in good order at that time.

Presiding Officer John Andoi gave evidence however that there were numerous illegal practices, double voting and that the people at the Rest House took control of the polling and that he was compelled at knife point to initial ballot papers without any proper procedures linking Common Roll and elector. Those votes he said were not valid. He related that he overnighted at Wainapakam and walked out to Yaibos next day morning and travelled on foot to Wabag where he reported to the Electorate Returning Officer, Mr Kopiyalo orally that day followed by a written report which was a report Mr Kopyalo relied on to reject this ballot box on 25th of July.

Wabag

Mr Maku Kopyalo was called to give evidence on behalf of the Electoral Commission upholding the election. His rejection of Tupikores and Wainapakam ballot boxes, and the Petitioner says, his failing to ensure the count of the Yaramanda boxes, forms the sole ground argued in this petition. 

He told the Court that the reason the boxes from Wainapakam and Tupikores were rejected – declared null and void – was because, following dispute of these boxes he made enquiry and called for written reports as required by the Electoral Commissioners directive. This resulted in written reports of serious irregularities and tampering with boxes from the Presiding Officers of polling booths at each of those Rest Houses. He also had a similar written complaint from a scrutineer. The Yaramanda boxes were never brought to the Counting Centre and he had reports from the Police that they had been seized when the security contingents and electoral officials escorting them were arrested. Those ballot boxes had been retained as court exhibits. He told the Court he had reports from Presiding Officer Niso Napingi and Elias Awarim regarding the Yaramanda polling. Had those ballot boxes in fact been returned to the Counting Centre he would have made investigation pursuant to those reports. But he said, "because they were not brought in I paid less attention to the reports and because the Provincial Police Commander said they were Police exhibits I did no more". He also told the Court that on 2nd of July in company of Luke Piandi and Nanes Balakau scrutineers for the Petitioner and for Rimbink Pato, he had again approached the Provincial Police Commander for release of the boxes and was again refused, the Police claiming them as "State property" Court exhibits. 

Decision

The starting point for the determination of this petition must be the ground cited by the petitioner. The Organic Law on National and Local Level Government Elections says at s 208(a) that a petitioner shall "set out the facts relied on to invalidate the election or return". The Organic Law and the decisions of the Supreme Court show that the petitioner shall only be heard on the grounds that comply with s 208. That is, the petition enquiry is directed only to the ground as pleaded. The petitioner says that the facts he relies on to invalid the election are;

1.	Maku Kopyalu Returning Officer for the Wapenamanda Open Electorate, 

2.	Refused to carry out the lawful directions of the Electoral Commissioner contained in a letter dated 2nd July 1997, 

3.	That direction was to Returning Officers to count all ballot boxes, disputed or otherwise without exception. 

The Petitioner specifically by his pleading asserts as fact that Maku Kopyalu was the lawfully appointed Returning Officer for the Electorate and that the direction of the Electoral Commissioner of the 2nd of the July 1997 was a lawful direction. Counsel for the Petitioner cited s. 19 of the Organic Law to show the Commissioner’s powers to make lawful directions. 

Section 19 of the Organic Law provides:

"19. Returning Officers

The Electoral Commissioner, by notice in National Gazette, appoints a Returning Officer for each Electorate shall be charged with the duty of giving … to this law within or for his electorate, subject to any directions of the Electoral Commissions".

The petitioner produced that lawful direction of 2nd of July in evidence as proof of the contention that all boxes had to be counted whether disputed or not.

It was the first contention of the counsel for the first respondent that on this ground alone the petition must fail because the directive simply does not say that all boxes must be counted regardless. The operative clause of the directive reads:

"Returning Officers should not reject ballot boxes because of allegations or other complaints by scrutineers of candidates because loosing candidates can still bring these matters to the court of disputed returns. The only ballot boxes that should be rejected are those that were not authorised for extra day polling in particular for Tambus Rest House or those that have substantiated evidence with written facts to prove that the ballot boxes were interfered with otherwise all ballot boxes must be counted with no interruption".

There can be no doubt that the direction that the petitioner relies on does not support the contention set out in the petitioner’s ground. In fact it establishes that there was a right in the Returning Officer to reject the ballot boxes for cause. The direction specifically says that there should be no rejection of ballot boxes unless there is substantiated written evidence proving that the ballot boxes were interfered with. That plainly authorises the Returning Officer to conduct an enquiry into a complaint and if satisfied with substantial written evidence that proves that the ballot boxes have been interfered with, then he may reject such boxes.

It has been the petitioner’s case throughout that the Returning Officer of the electorate Maku Kopiyalu did reject the Wainapakam and Tupikores boxes on the basis that he had written evidence of irregularities and tampering from a Presiding Officer. Thus the very facts relied to support the petition, in fact establish that the Returning Officer was authorised to carry out the actions that he did. Accordingly on the very ground pleaded this petition must fail.

As well as the actual ground stipulated in the petition there were also challenges that the written reports of the Presiding Officers Yange and Andoi were not to hand when Kopyalu rejected the Tupikores and Wainapakam ballot boxes. I believe and accept the evidence of the Mr Maku Kopyalu and I am satisfied on the evidence that in fact the Returning Officer did have those reports. Lesser challenge was that Jeffery Dia was in fact the Electorate Returning Officer in charge of the counting and that Mr Kopyalu had unlawfully taken over, at the last minute. That matter is easily disposed of as the allegation has been contradicted by Mr Dia himself who was called to give evidence by the Petitioner. In any case the Petitioner is bound by his own pleadings. In the ground cited in this petition he states as fact that Maku Kopyalu was the Returning Officer of the Wapenamanda Open Electorate

The petitioner sought to support his case by evidence that the polling in each of the constituencies had been smooth and uneventful, that the ballots polled were all valid votes of the electorate of those constituencies, that all ballots including those from Yaramanda were duly deposited in the ballot boxes under seal and the custody of the Electoral Officers who gave evidence that those boxes remained in their custody throughout. The Petitioner contended that the integrity of those officials and their conduct of the polling could not be impugned. The votes they recorded were taken into their exclusive custody. The boxes still sealed at the time for counting must therefore be legitimate votes that should have been counted. The boxes themselves and the ballots in them it has been contended support the Petitioners contentions. The Petitioner’s evidence can also be said to have been advanced to show that the Returning Officer knew or should have made himself aware by proper enquiry of other electoral officials of the validity of the Polling at the respective Rest Houses. That evidence was given to show that the decision or exercise of discretion to reject must be seen as unreasonable in face of evidence of smooth lawful polling.

But as the evidence has shown that was not the case because the ballot boxes had plainly been interfered with. There can be no doubt that at Yaramanda for example, despite the petitioners witnesses who say that all was completely in order, the inner lid of ballot box No: #104 had been forced up and votes inserted. Contrary to the sworn evidence of those Polling Officers as for box #376 the inner lid was not closed but votes simply stacked inside the open box. The Court has seen the state of those boxes and those of Wainapakam and Tupikores and it is obvious the integrity of those boxes cannot be upheld.

By the evidence and submission, of counsel for the petitioner, there was further acknowledgement that the Returning Officer did have the lawful discretion to reject ballot boxes if proven to have been tampered with. This was shown in the submissions and evidence regarding Yuk and Yakaendis boxes said to have been "obviously" interfered with and which "equally obviously" should have been rejected on the petitioner submission.

The great majority of the evidence in the trial of this petition has been that of the petitioner’s witnesses asserting the polling at Yaramanda and Tupikores and Wainapakam went peacefully throughout and in accordance with wholly correct and lawful procedures. The petitioner’s witnesses, in particular those who were electoral officials swore to the integrity of the voting and of the integrity and security of the ballot boxes. They said those boxes duly sealed and kept in their custody from polling booths to Counting Centre contained only valid votes. There was no ballot stuffing; there was no tampering with the boxes. 

The evidence before the Court and Court’s inspection of the ballot boxes themselves shows that the claim of the petitioner’s witness to be untrue. 

The evidence of the petitioner’s witnesses was straightforward until cross-examination when their certainties turned to uncertainties and they were unable to maintain their stories or composure. When challenged as to irregularities they denied them or said that if they occurred they did not see them. Peter Kalak led the evidence of the petitioner. All was smooth sailing at Yaramanda and like Niso Napingi he made a report to the Electorate Returning Officer but one which upheld the polling. Yet in fact that assertion under cross-examination turned out to be "I wrote a hand written one and gave it someone to give to the Returning Officer .… I can’t recall who I gave it to and didn’t keep a copy". On the simple issue of transferring the ballot boxes to Wabag neither he nor the Petitioners witnesses could agree on whether or not the polling team and security, had stopped at the District Office at Wapenamanda en route. This was not a matter of grant issue, but the Petitioners witnesses were completely at odds swearing that they had or had not reported to the District Office on the way to Wabag. Elias Uarim after asserting that all had been in order at Yaramanda, under cross-examination said that the system broke down. The evidence of Niso Napiingi and Mark Miku on the other hand was shown to be consistent with each other and confirmed by examination of the Yaramanda ballot boxes. 

Of all the witnesses in this trial the least satisfactory was Amuson Kalip. His examination in chief asserted that all had been smooth and uneventful during polling. All proper procedures had been followed - documents were all in order – the integrity of the ballot box certain. That was plainly shown not to be so. He was most reluctant to acknowledge any story other than his own even in the face of obvious error. It was shown clearly that he had not checked the sex tally sheet figures. He insisted that he, like Paul Yange had written a report for the Electoral Commissioner, stating "that polling at Tupokores Rest House was peaceful and orderly" and he failed to understand "why Mr Maku Kopyalu, District Returning Officer, decided not to count the Tupokores Rest House ballot box despite my report". Yet it is plain that he wrote that report and attached the returns such as they were, after the election was over and then only to collect his pay. His notebook which he produced to confirm his evidence was shown to have 2, 3 pages missing. Further, there was no explanation, despite being given every opportunity to explain the discrepancies between the tag numbers issued to him and recorded by him at commencement of polling and tag numbers recorded on the box on its return to the counting centre.

The evidence before the Court and Court’s inspection of the ballot boxes themselves shows that the claim of the petitioner’s witness to be untrue.

The petitioner and his witnesses have offered no explanation for the obviously bent up inner lid of the Yaramanda box #0104. Mark Miuk said he saw voters pushing voter under the inner lid bending it by pushing votes in with a stick. Nor could the witnesses for the Petitioner give any explanation or justification for leaving ballot box 0376 inner lid open while votes were stacked inside. Mark Miuk also testified to that. The damage to 0104 was obvious upon inspection in this Court and the stacking of votes was revealed upon examination of the box 0376 in prior proceedings and accepted fact in those. 

The Tupikores box 0003 upon examination had superficial dents but the inner and out lids were in good order. But sealing tag and numbers did not tally with the numbers the Returning Officer recorded as providing to the Tupikoroes team and which Amuson Kalip wrote down in his notebook as having being received. The Wainapakam box 0068 was plainly severely damaged with an opening from a broken seam down the left side of the box when viewed from the lock mechanism side. The inner lid was plainly bent up on both sides allowing access to inside of the box. The overwhelming conclusion has to be that each of these boxes has been interfered with. There is plain evidence of tampering from the Electoral Commissioners witnesses and corroboration of that evidence in the state of the boxes. 

Once the integrity of the boxes was overturned, the credibility of all the witnesses saying that the votes in them were collected under smooth polling and correct procedures is shown to be false. Those witnesses had said they kept the boxes in their custody throughout. If they did they must have been aware of the interference with or be able to explain the breaches of the boxes integrity. They have not done so. Their failure to do so supports the evidence and the reports of Napingi, Yange and Endoi and the Returning Officer’s decision to reject Tupikores and Wainapakam box when presented at the Counting Centre. It also shows that had the Yaramanda boxes actually been brought to Counting Centre they too would inevitably have been rejected for tampering. 

The Petitioner despite the positive wording of his ground as pleaded, also submitted the contrary, namely that the Organic Law specifically requires all ballot boxes to counted. He cited s 154(2) which provides as follows:

"154(2) The Electoral Officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorised scrutineers as choose to attend and any other person approved by the Returning Officer: —

(a)	Open all ballot boxes received from polling places within the electorate; and 

(b)	Reject all informal ballot papers, and arrange the unrejected ballot papers under the names of the respective candidates by placing in a separate parcel all those on which a vote in indicated for the same candidate; and 

(c)Count the votes given to each candidates on all unrejected ballot papers; and 

(d)	Mark out and sign statement (which maybe counter-signed by the presiding officer, poll clerk or officer present and, if they so desire, by such scrutineers as are present) setting out the number of votes given for each candidates and the number of informal ballot papers; …."

That section plainly makes it mandatory to open boxes received. But here on the Returning Officer’s evidence he did not accept boxes unless they were identified to him at the Counting Centre by a Presiding Officers. In the face of challenges from Presiding Officers of Tupikoroes and Wainapakam, he had conducted an enquiry and acting on observation to the boxes and with the evidence of the Presiding Officers reports, he rejected those boxes. I find that the Returning Officer in terms of s 154(2)(a) did not receive the disputed boxes and upon the directive of the Electoral Commissioner he exercised his discretion in accordance with the letter and intent of that directive. 

There is a further point here by s 153 of the Organic Law, formal votes and informal votes are defined. Essentially it provides that a ballot authenticated by the Presiding Officer and which shows the mark indicating a voter’s intention shall be formal. But the Returning Officer at the Wabag Counting Centre faced with reports of votes having been initialled by Presiding Officers under duress and marked by unauthorised persons, was given good reason to reject those boxes. Because had he received them he would have been obliged to count those votes which in terms of s 153(3) despite their criminal origin, would be by that section, normally at least, formal votes. Plainly that is not intended or lawful under the Organic Law. 

Finally, it is the finding of the Court that the petitioner has failed to prove the ground cited namely that the Returning Officer of the Wapenamanda Open Electorate in not counting ballot boxes 0003 Tupikores 00681 Wainpakam and 0104 and 0376 at Yaramanda refused and neglected to carry out lawful directive of the Electoral Commission dated 2nd July 1997. I also find the ballots in those boxes were rightly rejected in face of proven tampering and unlawful voting procedures and interference. 

The petition is therefore dismissed. There will be orders for costs in favour of the respondents to be taxed if not agreed.

Lawyer for the petitioner: Pato Lawyers.
Lawyer for the first respondent: Maladina Lawyers.
Lawyer for the second respondent: Nonggorr Lawyers.