N2327

PAPUA NEW GUINEA

[In the National Court of Justice]

EP No. 57 of 2002 (NCD)

IN THE MATTER OF THE ORGANIC LAW ON
NATIONAL AND LOCAL-LEVEL GOVERNMENT
ELECTIONS AND IN THE MATTER OF THE
DISPUTED RETURNS FOR THE WABAG OPEN
ELECTORATE

Between:

DANIEL DON KAPI
-Petitioner-

And:

REUBEN KAIULO,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
-First Respondent—

And

SAMUEL ABAL
-Second Respondent-

MT. HAGEN: GAVARA-NANU J.
2002: 3rd,4th,5th,6th,10th,11th & 12th December
2003 : 21st February

NATIONAL PARLIAMENT - Elections – Organic Law on National and Local – level Government Elections ( ‘ the Organic Law ‘ ), ss.18 & 19 – Powers of the Returning Officers being delegated powers are subject to the overriding and supervisory powers of the Electoral Commission.

NATIONAL PARLIAMENT – Elections – ss. 18 & 19 are designed to give effect to s.126 (7) of the Constitution to safeguard the Constitutional independence of the Electoral Commission and to protect its powers from being abused.

NATIONAL PARLIAMENT – Elections – The power of the Returning Officer to make a declaration under s.175 is a delegated power – Section 175 is to be read together with s.147. 

NATIONAL PARLIAMENT – Elections - Duty of the Electoral Commission to protect the ballot boxes and cast ballot papers.

NATIONAL PARLIAMENT – Elections – Declaration made on the writ which is not returned on its return date is void – The appointment of a Returning Officer under s.19 takes effect upon notice of such appointment been given in the National Gazette by the Electoral Commission.

NATIONAL PARLIAMENT - Election – Power to make a declaration under s. 175 belongs to the Returning Officer – Such power and function cannot be performed by another officer or person without good reason – The meaning of ‘public declaration’ as used in s.175.

Cases cited:
Application by Daniel Don Kapi – N2259
Peter Peipul Ipu -v- Pila Nininga & Electoral Commission – SC580
Baki Reipa –v- Electoral Commission & Yuntivi Bao – SC606
Melchior Kasap & Peter Yama ( SC Rev. No. 5 ) [1988-89] PNGLR 197
Sorenu –v- Nyara [1985] PNGLR 445
Peter Simbi –v- John Masueng and Richard Koronai – N1965

Counsel:
R. Pato for the petitioner
J. Nonggor & T. Sirae for the first respondent
D. Stevens for the second respondent 

GAVARA-NANU J: The petitioner is disputing the election of the second respondent as the member for Wabag Open Electorate (hereinafter referred to as ‘Wabag Open’) which was declared in Port Moresby on 1st August, 2002.

Agreed Statement of facts

At the commencement of the trial, the lawyer for the petitioner filed the Agreed Statement of Facts by all three parties pursuant to the Election Petition Rule 12 (3) (e) (iii). In the Agreed Statement of Facts, the parties agreed that - Mr Morris Kwadogi was appointed as the Returning Officer for Wabag Open by the Electoral Commission by notice in the National Gazette No. G55 dated 03rd April, 2002. That appointment was made pursuant to s. 19 of the Organic Law on National and Local - level Government Elections (hereinafter referred to as ‘the Organic Law’). The writ for Wabag Open was addressed to Mr Kwadogi who upon the receipt of the writ on 10th April, 2002, endorsed it, in accordance with s. 82 of the Organic Law. The writ was issued by the Governor General on 04th April, 2002, and was fixed to be returned on or before 15th July, 2002, pursuant to s. 105 of the Constitution and s. 73 of the Organic Law. However, upon advice from the Electoral Commission, the Governor General extended the return date of the writ to 29th July, 2002, pursuant to s. 177 of the Organic Law.

Mr Kwadogi was replaced as the Returning Officer for Wabag Open on 25th July, 2002, by Mr Henry Kyakas. The revocation of Mr Kwadogi’s appointment as the Returning Officer for Wabag Open was gazetted in the National Gazette No. 139, on 28th August, 2002. In the same Gazette the appointment of Mr Henry Kyakas as the new Returning Officer for Wabag Open was gazetted. But prior to these changes, the counting of votes for Wabag Open under Mr Kwadogi, proceeded until after count 34, when Mr Kwadogi decided to declare the petitioner as the member elect for Wabag Open on 24th July, 2002, at about 5.45 pm at the Wabag Provincial Administration Centre (hereinafter referred to as ‘the Ipatas Centre’). 

 On or about 26th July, 2002, the writ for Wabag Open which was signed by Mr Kwadogi and the petitioner as the member elect for Wabag Open was returned to the Electoral Commission by Mr Kwadogi. Despite the return of the writ, the Electoral Commission directed the counting to continue under the new Returning Officer, Mr Kyakas, until 29th July, 2002. However, no declaration was made by Mr Kyakas in Wabag. The second respondent was later declared and returned as the member for Wabag Open on 01st August, 2002, in Port Moresby either by the Electoral Commission or Mr Kyakas.

The Electoral Commission made an application to the National Court in Waigani, through O.S No. 420 of 2002, for the return date of the writ for Wabag Open to be extended beyond 29th July, 2002. However that application was refused by the National Court.

On or about 01st August, 2002, the second respondent signed the writ after being declared as the member for Wabag Open, and the writ was delivered to the Governor General on the same day.

A total of eight ballot boxes containing ballot papers for Wabag Open were destroyed by a bomb blast by unknown persons at the Wabag Police Station prior to the commencement of the counting of votes. The details of where the pollings were done in respect of each of the destroyed ballot boxes, and the number of ballot papers issued for those ballot boxes are as follows: -

Rest House	Box No.	Ballot Papers Issued	
IRELYA NO. 1	O31	2725	
KAMA NO. 1	015	795	
YAKANANDA	007	1546	
TABITANIS	003	1065	
WEE NO. 2	042	829	
LENDI NO. 2	034	1280	
BIRIP NO. 2	O44	1125	
KOROKET 	071	224	
TOTAL		9,589	

From these particulars, it can be noted that, the total number of ballot papers issued for the destroyed eight ballot boxes was 9,589. 

The foregoing are the agreed facts by all parties and the lawyers for the respective parties have endorsed them. Therefore, there is no dispute by the parties in respect of these facts. Thus, all the parties having subscribed to these facts are bound by them.

Evidence

There is evidence that there were constant interjections during the scrutiny process from counts 1 to 34, however, Mr Kwadogi was able to manage and control those interjections and continued with counting until count 35 which was disputed and rejected several times. When the counting proceeded to count 35 in the afternoon of 24th July, 2002, that was going to be the fourth time it was going to come in to the counting room for counting. It was at that point that, the scrutineers and supporters of the candidates became rowdy and started assaulting each other and over turned and threw tables and chairs in the room. At that point Mr Kwadogi was assaulted, one witness said, Mr Kwadogi was punched. As the result, the police went into the counting centre and forced everyone out. All the scrutineers and the supporters were told to put their hands on their heads and were marched out. One of the witnesses described the actions of the police as excessive and the others said the police used excessive force to remove people from the counting centre.

Following that, Mr Kwadogi suspended the counting, by telling everyone in the counting centre, that he was suspending the counting indefinitely and he would decide on the fate of the boxes which were rejected due to being tampered with, then he would decide on the next course of action. The respondents’ witnesses testified that Mr Kwadogi in fact said that, he was suspending the counting briefly and would resume at 6.00 pm, but that was denied by both Mr Kwadogi and the petitioner’s other witnesses. The incident which caused Mr Kwadogi to suspend the counting was described by some witnesses as a commotion which gave rise to a lot of confusion and as such, those in the counting room, did not know what was to happen next.

There were about 30 boxes from Maramuni and Wabag Central which were disputed during counts 1 to count 34 by the scrutineers because, those boxes were tampered with, in that, the boxes either had knife and axe marks or had no proper seals, or that there were evidence that the polling in respect of those boxes were conducted on road sides or other undesignated places. 

Following the suspension of counting on 24th July, 2002, Mr Kwadogi proceeded to the Ipatas Centre and declared the petitioner as the member elect for the Wabag Open at about 5.30pm. Mr Kwadogi said the declaration was made in front of the Ipatas Centre and it was witnessed by the Administrator, some policemen and some members of the public. He said, he and the petitioner signed the writ in the presence of the Provincial Administrator. 

On 25th July, 2002, Mr Kwadogi travelled to Port Moresby and delivered the writ with the returns to the Electoral Commission. There, he met with Mr Morea Veri and Mr Andrew Trawen. Although Mr Kwadogi’s appointment as the Returning Officer for Wabag Open was revoked on 25th July, 2002, he was not made aware of that revocation.

The writ which was returned by Mr Kwadogi was not transmitted to the Governor General. It was held back in the Electoral Commission’s Office

It is not disputed that, there was only one writ issued for Wabag Open, thus both the petitioner and the second respondent were declared on that same writ. The petitioner signed a copy of the writ and the second respondent signed another copy of the same writ. Thus, there was only one writ upon which the petitioner and the second respondent had their returns made to the Electoral Commission. The copy of the writ which was signed by the second respondent was transmitted to the Governor General then to the Parliament.

The plaintiff tendered 32 letters of complaints about how the polling for Wabag Open was conducted. Those complaints related to the pollings being conducted at undesignated places, the polling officials openly showing bias towards particular candidates, voters being denied the right to cast their votes and so on. All the letter were received by Mr Kwadogi.

Although Mr Kwadogi and the petitioner’s witnesses said the declaration of the petitioner on 24th July, 2002, at the Ipatas Centre was made before a crowd of people, between 5.30pm and 6.00pm, the respondents’ witnesses, who said, they were at the Ipatas Centre between 5.30pm and 6.00pm said they did not see Mr Kwadogi making such declaration. 

Mr Kwadogi also testified that, during polling a complaint was made to him by the supporters of the petitioner against the second respondent. As the result of that complaint, Mr Kwadogi proceeded to the residence of the second respondent and there he found polling being conducted inside the second respondent’s residence. Mr Kwadogi then ordered the people who were conducting the polling there to leave the second respondent’s residence, and the polling continued at the market place.

There were eight ballot boxes for Wabag Open which were being kept at the Wabag Police Station for safe keeping, but some unknown persons destroyed them with a bomb blast. The particulars of the number of boxes and the number of ballot papers issued for those boxes and the areas for which they were issued have been stated in the agreed facts. 

When the petitioner was declared on 24th July, 2002, he had scored 7,872 votes and the second respondent was running second. But at the conclusion of counting on 27th July, 2002, under Mr Kyakas, the second respondent scored 12,438 votes to the petitioner’s 10,234 votes, a difference of 2,204 votes. With 9,589 ballot papers destroyed as shown in the agreed facts, the winning margin would have been exceeded by 7,385 votes. 

It was contented by the respondents that the declaration by Mr Kwadogi of the petitioner on 24th July, 2002, was in defiance of the Electoral Commission’s written direction to all the electoral officials including the Returning Officers, not to make any declarations for Enga seats without first consulting the Electoral Commission. It was submitted by the respondents that the authority for Mr Kwadogi to make that declaration was withdrawn by that letter. The relevant paragraph of that letter is paragraph 3, which reads:

"Counting should be conducted day and night with specific intentions of concluding the process well before 29th July, 2002. At the end of counting for each open electorate including the Provincial Electorate, no official declaration is to be made pending further advice from my office. A senior officer from the Electoral Commission will also be dispatched to Wabag to assist you and my Election Manager with the whole counting process".

That letter was sent by the Electoral Commissioner to Mr Cleopas Roa, the then Provincial Returning Officer for Wabag Open. Mr Kwadogi in his evidence, denied having any knowledge of the letter and said that, he had never seen that letter. However, Mr Roa testified that, that letter was given to all the electoral officials including Mr Kwadogi on 19th July, 2002, and therefore Mr Kwadogi was aware of it when he made the declaration on 24th July, 2002.

Mr Kwadogi said, when he suspended the counting on 24th July, 2002, and later declared the petitioner as the member elect for Wabag Open, he did not consider it necessary to inform Mr Roa or the Electoral Commissioner because he had the power under the Organic Law to make the declaration. 

As to the destruction of the eight ballot boxes at the Wabag police station, the first respondent submitted that, that was not an event which the Electoral Commission could foresee and therefore, the Electoral Commission cannot be held responsible for the acts of the criminals, who destroyed those ballot boxes.

The Issues

The issues to be determined by the Court are: -

1.	Was there a declaration made by Mr Kwadogi of the petitioner as the member for Wabag Open on 24th July, 2002, at the Ipatas Centre, and if so, was that declaration valid?

2.	Was the declaration made either by the Electoral Commission or Mr Kyakas of the second respondent as the member for Wabag Open, on 01st August, 2002, valid? 

3.	Was the Electoral Commission responsible for the security of the eight ballot boxes destroyed at the Wabag Police Station and was the result of the election likely to be affected by the number of ballot papers in those eight boxes?

Reasons for decision

There are three other legal issues put forward by the parties, but I think the above three substantively cover them. I therefore do not intend to state them here and the answers to these three issues should answer all the issues raised. 

1. Was there a declaration made by Mr Kwadogi of the petitioner on 
24th July, 2002, at the Ipatas Centre, and if so, was that 
declaration valid?

This issue raises two questions, first is whether there was a declaration made by Mr Kwadogi of the petitioner as the member for Wabag Open, on 24th July, 2002, at the Ipatas Centre. I must confess that I had difficulty in deciding as to whose evidence I should believe. That is because the evidence by the petitioner in support of the declaration being made was as strong as the evidence by the respondents denying such a declaration, but in the end, and on the balance, I found that there was a declaration made.

I came to that finding for two reasons. Firstly, the power given to the Returning Officer in respect of making a declaration under s. 175 of the Organic Law, is in my view very broad, in that, apart from the place of nomination, the Returning Officer can appoint any other place and make a public declaration of the result of the election and the name of the candidate elected. The Returning Officer is thus given a very broad discretion by s. 175 to decide on a place where a declaration should be made as long as there are members of the public present to witness the declaration, and as long as the result of the election that is to be declared has been duly ascertained. This point is discussed further in the judgment. Secondly, s.175 does not define the word ‘public’ for public declaration, therefore as to what meaning is given to the word is a matter of construction for the Court; and in my opinion, giving the word its ordinary and liberal meaning, a declaration made in front of any number of the members of public would be sufficient to constitute public declaration.

The petitioner’s witnesses said there were at least 30 to 50 people present when the petitioner was declared by Mr Kwadogi on 24th July, 2002, at the Ipatas Centre. I have found that there was a declaration made, thus the declaration made before such number of the members of the public as I said was a public declaration. 

But was that declaration made in accordance with s.175, in order for it to be valid? This is the second question raised by the issue. To answer this question, the starting point is the letter of instruction given by the Electoral Commission on 17th July, 2002, to the Provincial Returning Officer Mr Roa, in respect of the scrutiny process. As it can be noted from the passage quoted from that letter, the instruction or the direction was specifically given to the Provincial Returning Officer that no declarations were to be made in respect of all the electorates in Enga, without first seeking advice from the Electoral Commissioner. 

It is clear from the evidence that Mr Kwadogi declared the petitioner as the member for Wabag Open on 24th July, 2002, in defiance of that instruction. As noted earlier in the judgement, Mr Kwadogi in his evidence, denied having any knowledge of the letter, but Mr Roa, the Provincial Returning Officer, to whom the letter was addressed, told the Court that Mr Kwadogi was given a copy of the letter.

But, in any case, whether Mr Kwadogi was aware of that letter or not would have made no difference because in his evidence, Mr Kwadogi made it clear that he had no intention of seeking anyone’s permission or consulting anyone before making the declaration because he believed he had power under s.175 of the Organic Law to make the declaration as and when he saw fit.

I have already stated in my published judgment in the case of Application by Daniel Don Kapi N2559, that the powers exercised by the Returning Officers, are delegated to them by the Electoral Commission, under ss. 18 and 19 of the Organic Law, therefore, the Returning Officers, do not exercise those powers independently of the Electoral Commissioner. I have no reason to depart form that view in this case. Section 18 (2) of the Organic Law says that every delegation made under s. 18 (1) is revocable in writing at will. And s. 18 (3) says that no delegation would prevent the Electoral Commission or Commissioner from exercising powers and functions which had been delegated to an officer. Then s. 19 makes it very clear that, the Returning Officers are ‘charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission’.

These provisions in my view put it beyond any doubt, that the Electoral Commissioner or Commission has the overriding and controlling powers in respect of the delegated powers and functions exercised by the Returning Officers under ss. 18 and 19 of the Organic Law. The reason being, the Returning Officers exercise those powers and functions on behalf of the Electoral Commission. They perform the powers and functions of the Electoral Commission in respect of the electorates to which they are appointed. Sections 18 and 19 of the Organic Law are designed to give effect to s. 126 (7) of the Constitution which provides for an organic law to safe guard the Constitutional independence of the Electoral Commission. They are also there to safeguard and prevent the Constitutional powers and functions of the Electoral Commission from being abused. The Returning Officers therefore only administer the scrutiny process under the control and direction of the Electoral Commission and the declaration under s.175 is the final result of that scrutiny process. 

Therefore it is plain that, the declaration made by Mr Kwadogi of the petitioner on 24th July, 2002, was in breach of s.19 of the Organic Law as it was made in defiance of the specific instructions given by the Electoral Commissioner in its letter of 17th July, 2002, that no declaration was to be made without consulting the Electoral Commission. 

The reason for the control by the Electoral Commission of the Returning Officers and other electoral officials in the performance of their duties is because, it is the responsibility of the Electoral Commission to ensure proper conduct of the elections. This is significant because, the election process is intended to facilitate and to ensure that the people exercise their democratic and constitutional rights to vote into parliament the candidates of their own choice. Those candidates also exercise their constitutional rights to stand for the public office pursuant to s.50 of the Constitution. The Electoral Commission therefore has the duty to ensure that the elections are fair, open and free from any form of illegal practices.

Thus the electoral officials including the Returning Officers and others who act contrary to the directions given by the Electoral Commissioner, do so in abuse of the delegated powers given to them by Electoral Commission under ss 18 and 19 of the Organic Law. 

Mr Kwadogi told the Court that even if he had been aware of the letter, he would have still gone ahead and made the declaration, because he had the powers under s. 175 of the Organic Law to do so. But the power given to him under s.175 to make such declaration was a delegated power given to him under ss.18 and 19, thus he could only exercise that power validly if the Electoral Commission had not given the specific direction against making declarations. The declaration was therefore a flagrant abuse of his delegated powers under ss. 18 and 19 of the Organic Law, consequently, the declaration was invalid.

In Peter Ipu Peipul –v- Pila Nininga and Electoral Commission – SC580, the Supreme Court held that the directions referred to in s.19 relate to the general duties of the Returning Officers. The direction given in the instant case was in respect of such a duty, but I am of the view that there is always a qualification that, any direction given under s.19 must be lawful and for good reasons. In the instant case, there is no doubt that, the direction given was lawful and for good reasons.

The other reason why the declaration of the petitioner on 24th July, 2002, by Mr Kwadogi was invalid, is because Mr Kwadogi specifically told the scrutineers that he was suspending the counting indefinitely and he would decide the fate of the disputed ballot boxes later and then, he would consider the next course of action. The reason why counting was suspended was because of the violence that erupted in the counting centre, not because the result of the election was ascertained as provided by s. 175 of the Organic Law.

It is now public knowledge that Mr Kwadogi did not do what he said he would do, because he went on to declare the petitioner as the member elect for Wabag Open. The scrutineers, the other electoral officials and the members of the public in the counting centre were left with the understanding that the counting would resume later, but instead Mr Kwadogi went and made the declaration and had the writ signed by the petitioner and returned it to the Electoral Commission in Port Moresby the next day. In that regard, the conduct of Mr Kwadogi was in breach of s. 151 (c) of the Organic Law, which) provides:-

151. CONDUCT OF SCRUTINY.

(c)	all the proceedings at the scrutiny shall be open to the inspection of the scrutineers. 

The conduct of the scrutiny process is a public affair, therefore it must be done fairly and openly for the scrutineers to see and inspect. That is the intent and the purpose of s.151. 

Section 175 of the Organic Law empowers the Returning Officer to declare the result of the election, as soon as the result of the elections is ascertained. This in my opinion refers to the result being ascertained after all the scrutiny process is properly concluded after all the votes cast in all the boxes allowed in the scrutiny process are counted and the result is ascertained in the presence of and by the general consensus of all the scrutineers present in the counting centre. This is significant because the scrutineers have the right to know on behalf of their candidates the result of the election, before it is declared by the Returning Officer. Without this, there cannot be any ascertainment of the result of the election and for which no valid declaration can be made. This is clear from s. 147 of the Organic Law, which provides: -

s. 147. SCRUTINY

The result of the polling shall be ascertained by scrutiny.

In my opinion, ss.147 and 175 compliment each other and must be read together. The former refers to the ascertainment of the result of the polling by scrutiny and the latter refers to the ascertainment of the result of the election, but it is implicit from the provisions that they refer to the total and the final number of votes scored by each candidate including the winning candidate. The end result is that under both provisions the winning candidate would be ascertained.

In the instant case, Mr Kwadogi was still in the scrutiny process when he declared the petitioner as the member for Wabag Open, on 24th July, 2002. The result of the election was therefore not yet ascertained when he made the declaration because, he suspended the counting and was to determine the disputed boxes then determine the next course of action. These were not done but instead, he proceeded to make the declaration.

Under the circumstances, and for the reasons given, I find that the declaration made by Mr Kwadogi of the petitioner on 24th July, 2002, as the member elect for Wabag Open was invalid as it was not made in accordance with s.175 of the Organic Law.

2. Was the declaration made either by the Electoral Commission 
or Mr Kyakas of the second respondent as the member for 
Wabag Open Electorate, on 1st August, 2002, valid?

After Mr Kwadogi left for Port Moresby on or about 25th July, 2002, Mr Roa instructed Mr Kyakas to conduct the counting at the counting centre. On the same day Mr Kyakas was appointed Returning Officer for Wabag Open by the Electoral Commission. Following his appointment, Mr Kyakas conducted the counting from 25th to 27th July, 2002. At the end of the counting Mr Kyakas did not make the declaration in Wabag, but travelled to the Electoral Commission Office in Port Moresby with a copy of the writ for the Wabag Open.

The appointment of Mr Kyakas as the Returning Officer was made under s. 19 of the Organic Law. At the time of his appointment, he was an Assistant Returning Officer, duly gazetted in April, 2002.

Section 19 of the Organic Law provides that the appointment of a Returning Officer is to be by notice in the National Gazette. This means, Mr Kyakas’ appointment could not take effect on the date he was appointed which is 25th July, 2002, it could only take effect on the date it was gazetted, which is 28th August, 2002. The revocation and the appointment of Mr Kwadogi and Mr Kyakas as Returning Officers were by an instrument, which is reproduced hereunder: -

THE INDEPENDENT STATE
OF
PAPUA NEW GUINEA

ELECTORAL COMMISSION

Organic Law on National and Local-level Government Elections

ENGA PROVINCE

REVOCATION AND APPOINTMENT OF RETURNING OFFICER

THE ELECTORAL COMMISSION, by virtue of the powers conferred by Section 19 of the Organic Law on National and Local-level Government Elections, and all other powers it enabling, hereby revokes the previous appointment of Returning Officer for Wabag Open Electorate and appoints Henery Kyakas to be the Returning Officer.

Dated at Port Moresby this 25th day of July, 2002.

REUBEN T. KAIULO, MBE
ELECTORAL COMMISSIONER

This instrument of appointment conirms that the appointment was made under s. 19 of the Organic Law. However, I am of the view that the circumstances in which the appointment was made and the purpose of which it was made, suggest that the appointment was made under s. 21 of the Organic Law, because the appointment was made as the result of the sudden departure of Mr Kwadogi and the Electoral Commission wanted Mr Kyakas to conduct the counting immediately from 25th July 2002. There was therefore a case of emergency, for which only s. 21 could be invoked. The intention was for My Kyakas’ appointment to take effect immediately through the instrument of appointment, but the appointment was to be gazetted later as required by s.21(2) which is what happened, when Mr Kyakas’ appointment was gazetted on 28th July, 2002.

Section 21 (1) provides, that in the event of a vacancy occurring in an office of the Returning Officer or the Assistant Returning Officer or in the absence from duty of any such officer, the Electoral Commission may by notice in writing appoint a person to perform the duties of the office during the period of the vacancy or absence. Subsection 2 provides that the Electoral Commission shall publish each notice under Subsection1 in the National Gazette.

Section 22 provides that, a person appointed to be a Returning Officer or a Assistant Returning Officer under s. 21 shall be deemed to have been appointed as from the date specified in his appointment or if no such date is specified, as from the date of his appointment. Under s. 21, the date on which the appointment was gazetted was not immediately significant, what was immediately significant was that, the appointment would have taken effect on the date of appointment which is what was intended by the Electoral Commission because they wanted the counting to continue on 25th July, 2002, when Mr Kwadogi could not perform his duties. 

The question now is, can I disregard the fact that, the appointment of Mr Kyakas was made under s.19, although for all practical purposes, the appointment was made under s. 21? The answer to this question, must be in the negative, because the decision by the Electoral Commissioner to appoint, Mr Kyakas under s. 19, was deliberate for which there is the instrument of appointment. I cannot disregard the instrument of appointment, and hold that the appointment of Mr Kyakas was made under s. 21 or under any other provision of the Organic Law.

It follows that, the appointment of Mr Kyakas was made under the wrong provision of the Organic Law. That is an incurable error, and as such, the appointment of Mr Kyakas was invalid. As I said, the appointment of Mr Kyakas under s. 19 could only take effect upon gazettal, which was on 28th July, 2002. Thus all the duties Mr Kyakas performed prior to the gazettal of his appointment, were without authority and thus illegal. This was the view expressed by Sevua J. in Peter Simbi –v- John Masueng and Richard Koronai – N1965, which I respectfully agree with and adopt. I am informed by counsel that, that decision was overruled on appeal by the Supreme Court, but the reasons for the decision by the Supreme have not been published. I also have not seen the reasons for the decision by the Supreme Court. It may well be that the Supreme Court’s decision was based on other aspects of the trial judge’s reasoning and not on his ruling that the appointments of the Returning Officers under s.19 take effect on the date of gazettal, in which case, it can be distinguished and therefore cannot have a binding effect on me. I am left to speculate. But to my reading of s.19, I am of the view that the construction given to the provision by Sevua J. is correct. Therefore, with the Supreme Court decision not being at hand, I remain unswayed and unrepentant of the view I hold on this point. 

The fact that Mr Kyakas was an Assistant Returning Officer does not remedy the situation, because, the appointment was for a substantive Returning Officer under s. 19. This must also affect the declaration of the second respondent on 1st August, 2002.

Even if the appointment of Mr Kyakas on 25th July, 2002, was legal, there are other reasons why the declaration of the second respondent made on 1st August, 2002, cannot be valid. For instance, the declaration was made on the same writ the petitioner was declared by Mr Kwadogi on 24th July, 2002. That was a fatal error because the Electoral Commission did not have the power to make another declaration on the same writ. The Electoral Commission should have left it to the loosing candidates to challenge the result if they so desired. This was the approach adopted by the Supreme Court in Kasap and Yama SC REV. No.5 of 1988 [1988-9] PNGLR 197 where the Court at pages 203 and 204 said:

"After the declaration of Mr Kasap as the winner was made, election officials altered the progressive tally sheets (Exhibit B). There were 25 of them but, when the results from the Madang Open were counted, three more sheets were added. These were done without the sanction of the only competent authority, that is, the National Court. I say this because it is clear from the Organic Law that after the declaration of a winner, only the National Court may have the results altered; even the Electoral Commission has no power to alter any electoral documents after the winner has been declared.

When error in counting were discovered, the Electoral Commissioner should have notified the candidates and left it at that. There was no power in him or his officials to alter anything in the tally sheets without a court order " (my underlining).

See also Sorenu –v- Nayara [1985] NGLR 445. The same principle applies in this case.

It is also unclear as to whether the declaration of the second respondent was made by Mr Kyakas or the Electoral Commission. There is also no evidence as to the venue for that declaration and because the declaration was made in Port Moresby, as to who appointed the venue for such declaration, and whether the declaration was made in public to make it a public declaration. Further more, there is no evidence that the result of the election for that declaration was ascertained and confirmed by scrutiny.

Section 175 provides for the manner in which a declaration is to be made, viz. the declaration is to be made as soon as conveniently after the result of an election has been ascertained at the place of nomination or any other place appointed by the Returning Officer and publicly declare the result of the election and the name of the candidate elected and by the endorsement under his hand certify on the writ the name of the candidate elected, and the writ is to be returned through the Electoral Commission to the Head of State who would then forward the writ to the Speaker of Parliament. As I said it is implicit, in s. 175, that the result ascertained must be by scrutiny and in the presence of all the scrutineers. Section 175 is in mandatory terms, by virtue of the word ‘shall’ in the section.

There is no evidence before the Court to indicate that the mandatory requirements under s. 175 were complied with by the first respondent. The declaration of the second respondent made on 01st August, 2002, was therefore in breach of s. 175 of the Organic Law. That declaration also could only be made by Mr Kyakas as the Returning Officer, pursuant to s. 175. The Electoral Commissioner could not make that declaration. To do so would be interfering with the powers given to the Returning Officer. There was nothing which could justify the Electoral Commissioner taking that function away from the Returning Officer. These pre-requisites had to be complied with for the declaration of the second respondent to be valid. 

Coupled with these breaches was that the declaration of the second respondent could only be validly made if it was made on or before the date of the return of the writ which was 29th July, 2002. In this case, the declaration was made a few days after 29th July,2002. There is evidence that Mr Kyakas returned the writ on 27th July, 2002, thus, there were two clear days before the return date in which the declaration could have been made. Therefore, there was no excuse for the declaration to be made a few days after the return date, on 1st August, 2002. As noted earlier in the judgement, the reason why the second respondent was not declared until 1st August, 2002, was because the Electoral Commission went to the National Court and applied for the date for the return of the writ to be extended beyond 29th July, 2002, but the application was refused by the National Court. That was another fatal error made by the Electoral Commission. 

Was the Electoral Commission responsible for the security of the eight ballot boxes destroyed at the Wabag Police Station and was the result of the election likely to be affected by the number of ballot papers in those eight ballot boxes?

I am of the firm view that the Electoral Commission did have the duty to protect those eight ballot boxes. I reject the submission by the first respondent that it was not an event which could be foreseen. I hold this view because, the Electoral Commission was made fully aware before and during the election that there was high likelihood of violence during the election period in Enga. This is evidenced by the fact that their lawyer had travelled to Wabag before the polling to assess the security situation, which resulted in the combined police and military presence to provide security throughout the election period in Enga. That in my view, placed greater responsibility on the Electoral Commission to be vigilant and to ensure the safety and the security of the eight ballot boxes which were an important component of the election process. 

The ballot boxes were not destroyed in a remote area. They were destroyed at the police station where there should have been guards guarding them. That cannot be excused. The Electoral Commission had the police and the military at its disposal, and for that reason, I cannot see why those ballot boxes could not be given the special protection, given the highly volatile environment prevailing at that point in time. After all, that was the purpose for having the presence of the police and soldiers throughout the election period. 

The Electoral Commission had a continuing obligation to ensure that those ballot boxes were protected until they were counted. Therefore if there was lack of protection to those ballot boxes, it was the direct result of the neglect by the Electoral Commission of that obligation. Similar views were expressed by the Supreme Court in Baki Reipa –v- Electoral Commission and Yuntivi Bao, SC606, see at pages 3 to 4, which I respectfully adopt. I consider the circumstances in which the Supreme Court expressed the views in that case cannot be differentiated in their significance to those in the instant case.

As to whether the result of the election would have been affected by the number of ballot papers issued in respect of those destroyed eight boxes, which is 9,589, I have no doubt that the result would have been affected, because the winning margin would have been exceeded by 7,385 votes. This has been conceded by the first respondent.

There is another aspect of the elections for Wabag Open, which in my view would have affected the result of the election, and that is the overwhelming evidence of gross violation of the electoral process by the electoral officials during polling. The petitioner tendered 32 letters of complaint against the conduct of the polling by the electoral officials during polling, where those officials are said to have openly supported certain candidates, pollings were allowed to be conducted in undesignated places and so on. The substances of these complaints are in evidence from Exhibits L1 to L32, and the Court cannot ignore them. I have no doubt that, that was the manner in which the overall election was conducted by the electoral officials for Wabag Open. In such circumstances, it cannot be said that the conduct of the election for Wabag Open was free and fair. The fight that erupted in the counting room on 24th July, 2002, among the electoral officials and the polling that was conducted in the second respondent’s residence to my mind only go to confirm the level of gross violation of the electoral process by the electoral officials for Wabag Open. 

The polling which took place in the second respondent’s residence went on for quite some time before Mr Kwadogi went and investigated it after complaints were made to him. The polling continued at the market place after Mr Kwadogi told the polling officials to leave the second respondent’s residence. That evidence stands unchallenged by the respondents. That polling no doubt would have boosted the number of votes for the second respondent. 

The other significant factor is that from 25th to 27th July, 2002, when Mr Kyakas was conducting the counting, the scrutineers for the other candidates were absent, in particular the petitioner’s scrutineer. That was in breach of s. 151 (c) of he Organic Law, because the counting could not be in the scrutiny of those scrutineers who were absent. 

There is one last matter which I need to comment on, that is, the respondents have taken issue on certain matters which they contend were not pleaded or were insufficiently pleaded by the petitioner. I am disposed to immediately dismiss them for two reasons. Firstly, the matters raised are some of those agreed to by all the parties in the Agreed Statement of Facts. Therefore, all the parties having subscribed to those matters are bound by them, and they cannot now turn around and dispute their existence. Secondly, the matters should have been raised by the respondents when they were put to them by the petitioner either at the pre-trial conference under r.13 of the Election Petition Rules or at the start of the trial of the petition, but they did not. Instead, the respondents allowed the matters to be litigated. In these circumstances, it is unfair for the respondents to complain about them. I therefore dismiss the arguments as having no basis.

Section 215 of the Organic Law, provides the grounds on which the election of the second respondent can or cannot be declared void.

As it can be deduced from the judgement, there is no evidence of any illegal practice by the second respondent. However, I have found that serious errors and omissions amounting to illegal practices were committed by the first respondent, its servants and agents. Therefore, although, I cannot declare the second respondent’s election void under s.215 (1) and (3) (a) of the Organic Law, as there being no illegal practice committed by him, I can declare the second respondent’s election void under s.215(3)(b), for the reason that, in my view, the serious and widespread and blatant errors and omissions committed by the first respondent, its servants and agents which included blatant breaches of the Organic Law were illegal practices which were likely to affect the result of the election for Wabag Open. It is therefore, in my view just that, I declare the second respondent who was returned as the elected member for Wabag Open was not duly elected.

Therefore, pursuant to the powers given to the Court under s.212 of the Organic Law, I make following Orders and Declarations:-

1.	I declare that the second respondent, Mr Samuel Abal who was returned as the elected member for Wabag Open on or about 1st August, 2002, was not duly elected.

2.	I declare that the election in respect of Wabag Open is absolutely void.

3.	I Order that a By-election be conducted by the first respondent for Wabag Open. 

COSTS

When the petition by Mr Kelly Aiyok which is EP 54, which was consolidated with this petition was withdrawn in Mt Hagen during the trial, the issue of costs was raised and arguments were advanced by counsel, but I reserved my ruling. I will now make my ruling on that matter together with the issue of costs in this case.

The petitions filed by both Mr Aiyok and the petitioner were totally occasioned by the serious errors and omissions made by the electoral officials and the Electoral Commission as I discussed in the judgment. In that regard, both petitioners were forced to come to this Court to seek redress. This also means that the costs incurred in prosecuting the petitions were totally occasioned by the first respondent, its servants and agents. It is therefore only fair that the costs incurred by the petitioners in respect of EP 54 and EP 57 be paid by the first respondent.

Consequently, I Order that, the first respondent pay the costs for the petitioners in EP 54 and EP 57.

I am also of the view that the second respondent has been forced to defend the petitions which are not of his doing. He has been forced to defend the petitions resulting from the errors and omissions committed by the first respondent, its servants and agents. The first respondent must therefore also bear his costs in EP 54 and EP 57.

Consequently, I also Order that the first respondent pay the second respondent’s costs in EP 54 and EP 57.

I also Order that the deposits paid by the petitioners in respect of the EP 54 and EP 57 be refunded to the respective petitioners forthwith.

Orders accordingly.

Lawyers for the petitioner	 :	Pato Lawyers
Lawyers for the first respondent:	Nonggorr & Associates Lawyers
Lawyer for the second respondent:	Stevens Lawyers