N11421
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EP NO 80 OF 2022

BETWEEN
NICK KOPIA KUMAN
 Petitioner

AND
DAWA LUCAS DEKENA
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

GOROKA & WAIGANI: MAKAIL J
4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 18 NOVEMBER, 13 & 19 DECEMBER 2024; 12 AUGUST 2025

ELECTION PETITION – TRIAL – Grounds of – Allegations of four instances of illegal practices at polling – Allegation of illegal practices at counting – Whether number of votes from illegal practices affected results of elections – Proof of – Organic Law on National and Local-level Government Elections – Sections 208(a) & 215(3) 

ELECTION PETITION – REMEDIES – Relief – Declaration of wining candidate election void – Recount of votes – Exclusion of ballot papers from disputed ballot boxes – Whether disputed ballot boxes objected to at counting – Organic Law on National and Local-level Government Elections – Sections 153A, 212 & 215(3) 

ELECTION PETITION – Standing of petitioner – Reliance on petitioner not being a candidate at the election in dispute – Lack of standing of petitioner one of the requisites of a petition – Lack of standing of petitioner should have been taken up in objection to competency – Lack of prior notice on lack of standing of petitioner – Defence running a trial by ambush – Petitioner denied right to a fair hearing – Abuse of process – Organic Law on National and Local-level Government Elections – Section 208(c) – National Court Election Petition Rules – Rule 12 & Form 4

Cases cited
Desmond Baira v Kilroy Genia (1998) SC579
Francis Marus v Hon Francis Galila Maneke & Electoral Commission (2024) N10670
Robert Banasi v Alexander Orme & Electoral Commission (2023) N10163
Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2024) N10831
James Pini v Wesley Nukundi Nukunji & Electoral Commission (2018) N7342
Robert Kopaol v Philemon Embel (2003) SC727
Luke Alfred Manase v Don Pomb Polye & Electoral Commission (2009) N3718
Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2013) N4941
Steven Pirika Kama v Michael Laimo (2008) N3261
Dawa Lucas Dekena v Nick Kopia Kuman & Electoral Commission (2013) SC1272
Simon Solo v Amkat Mai & Electoral Commission (2013) N5562
Paias Wingti v Kala Rawali & Tom Olga (2008) N3286 
Samson Malcom Kuli v James Apamia & Electoral Commission (2013) N5275 Phillip Undialu v Francis Potape & Electoral Commission (2020) SC1981

Counsel
Mr T Sirae for petitioner
Mr N Tame for first respondent
Ms S Kapi for second respondent

JUDGMENT

1.	MAKAIL J: This is one of two election petitions disputing the results of the 2022 General elections where I am the presiding judge.  The other is Emmanul Pamea Loma v Mano Pano & Electoral Commission: EP No 75 of 2022 for the Kagua Erave Open electorate.  They raise serious allegations of illegal practices perpetrated by candidates and their supporters during the election which seriously threatens and undermines the democratic electoral process which Papua New Guinea ascribes to under Section 50 of the Constitution.  In this case, the petitioner disputes the election of the first respondent as member for Gumine Open electorate in the Simbu Province following the 2022 General elections on the grounds of illegal practices at polling and counting pursuant to Section 215 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).  He seeks the following relief: 

(a)	an order that there be a recount of the ballot papers for the Gumine Open electorate election and the Court declare the winner from this recount.
(b)	an order that 850 ballot papers from polling at Digibe polling be declared illegal votes and be removed from the recount.

(c)	an order that 1,200 ballot papers from Polling Team A at Karil Maril polling venue be declared illegal votes and be removed from the recount.

(d)	an order that 1,700 ballot papers from Polling Team B at Karil Maril polling venue be declared illegal votes and be removed from the recount.

(e)	an order that 1,400 ballot papers from Polling Team B at Munuma polling venue be declared illegal votes and be removed from the recount.

(f)	an order that exclusion 32 count was illegal and that ballot papers distributed from exclusion 32 be removed from the recount, on the grounds that exclusion 32 count was improperly conducted and that the ballot boxes and papers of that exclusion were tampered with.

(g)	alternatively, a declaration that the election of the first respondent is null and void and a by-election for the Gumine Open electorate be held.

(h)	costs of the petition.

Standing of Petitioner

2.	First, I address the first respondent’s submission to dismiss the petition on the ground that the petitioner lacked standing to bring the petition before I address the question of whether the petitioner has established the allegations of illegal practices.  At [20] and [21] of the first respondent’s written submissions, his counsel appeared to form a strong view that it is an absolute right of the first respondent to make a no-case submission at the close of the petitioner’s case and reminded me of it notwithstanding my ruling refusing his request at trial by submitting that “……..the first respondent made couple of attempts to make a no-case submission, because the petitioner failed to produce evidence and prove the material aspects of the petition that are fundamental and form the foundation of the petition and its grounds, hence there was nothing proven for the Court to go on with to determine whether the result of the election was affected or was likely to be affected.  However, the Court refused to entertain the first respondent, and ordered the respondents to call their evidence.”   

3.	However, this submission is flawed and misconceived because unlike a criminal case, in an election petition the discretion to allow a no-case submission is exercised sparingly and only in appropriate cases such as in Desmond Baira v Kilroy Genia (1998) SC579, a case of bribery where a petitioner bears the burden to prove the elements of the offence under Section 103 of the Criminal Code as opposed to illegal practices.  It is this difference that it is not for a respondent to insist to a point that it becomes a demand to be heard on a no-case submission as if it were mandatory at the close of the petitioner’s case in every election petition case.  Extreme care must be had to prevent abuse by respondents of the no-case submission hearing, and it is instructive to note the wise counsel of Kapi DCJ (as his Honour was then) in the above case that “In circumstances, whether, or not, a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court.  In considering the exercise of discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law.  The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.  In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.”  The Court allowed a no-case submission hearing in Francis Marus v Hon Francis Galila Maneke & Electoral Commission (2024) N10670 and the no-case submission was upheld, and the election petition was dismissed because the evidence did not add up to prove the elements of the offence of bribery under Section 103 of the Criminal Code.  The allegation in the present case is not based on the offence of bribery such that the first respondent is disadvantaged by not being allowed to object to the standing of the petitioner at the close of the petitioner’s case.  Rather, the parties are better served by completing their respective evidence on the allegation of illegal practices before the Court taking final submissions.

4.	Turning to the question of standing of the petitioner, in summary, the first respondent refers to the lack of pleadings and evidence in relation to the petitioner’s name on the common roll as an elector, and his candidacy to submit that the petitioner failed to satisfy one of the requisites of the petition under Section 208(c) of the Organic Law on Elections, it being “ A petition shall be signed by a candidate at the election in dispute…….”  Because of this the petitioner lacked standing to bring this petition.  To reinforce this submission, his counsel relies on several case authorities including the judgment of Cannings J Robert Banasi v Alexander Orme & Electoral Commission (2023) N10163 where after the election petition was set down for trial, the first respondent filed a notice of motion and sought summary dismissal of the election petition because the petitioner who was a candidate in the election, was not on the common roll for the electorate, and lacked standing to bring the election petition.

5.	However, the first respondent can be strongly criticised for running a trial (his defence) by ambush and as a result, has denied the petitioner a fair hearing because first, the ground on lack of standing is based on one of the requisites of a petition under Section 208(c) (supra) and goes to the question of whether the petitioner has correctly engaged the jurisdiction of the Court to hear his petition.  For this reason, it should have formed one of the grounds of competency in the notice of objection pursuant to Rule 12 (Objection to competency) and Form 4 of the National Court Election Petition Rules (“EP Rules”) and taken up at the hearing of the objection to competency on 28th March 2024.  Moreover, by pleading it in the notice of objection, the first respondent would have put the petitioner on notice of the lack of pleadings in the election petition in relation to his eligibility as a voter (elector) and candidacy as required by Section 208(c) (supra) and responded to it.  The first respondent attended to either of them.  Because of this, the objection progressed to a hearing on the grounds which formed the basis of the ruling of the Court of 28th May 2024: see Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2024) N10831. 

6.	Secondly and importantly, by taking up the ground on lack of standing after the close of all evidence is grossly unfair and prejudicial to the petitioner’s defence because he was not given prior notice of the first respondent’s intention to object to his standing to bring this petition.  Further, the petitioner’s counsel refers to the statement of agreed and disputed facts and legal issues for trial where parties agreed that the petitioner was one of the candidates at the election in dispute and strongly submits that the first respondent is estopped from contending to the contrary.  While no submissions were made in relation to whether the Court to bound by the parties agreement that the petitioner was one of the candidates at the election in dispute, it reinforces the petitioner’s case that if the first respondent intended to press the point at trial, he should have given prior notice of the change of position which would have allowed the petitioner to call the relevant evidence at trial.  He did not until the final addresses, and this is where the petitioner’s submission that he has being denied a fair hearing will be upheld.

7.	Finally, contrary to the first respondent’s submission, the case of Robert Banasi (supra) is of no assistance because as the facts of that case establish, after the election petition was set down for trial, the first respondent gave notice by way of a notice of motion and sought summary dismissal of the election petition on the ground that the petitioner who was a candidate in the election, was not on the common roll for the electorate, and lacked standing to bring the election petition.  This gave the petitioner the opportunity to contest the motion including tender of countervailing evidence.  In the present case, because of lack of prior notice, the petitioner was not informed and did not tender countervailing evidence in the form of a common roll for Gumine Open electorate and nomination form to verify his eligibility as a voter (elector) and candidacy as required by Section 208(c) (supra). In my opinion, to run the defence of lack of standing well past the close of all evidence and without prior notice to the petitioner does not only constitute a denial of a fair hearing but also an abuse of process. 

8.	For the foregoing reasons, I dismiss the defence of lack of standing.

Allegations

9.	The petitioner relies on five allegations of illegal practices.  Four of them are at polling venues and one at the counting centre at Kundiawa town.

(a)	Illegal Marking of Ballot Papers at Digibe Ward 4 Polling Venue

10.	The allegation is that the polling venue of Digibe Ward 4 moved to Balimkoa village at the instigation of Councillor Kopan Pui.  On 19th July 2022 at about 7:30 am when people gathered to cast their votes, the people and leaders disputed the relocation or change of polling venue.  Councillor Kopan Pui informed them that there will be no casting of votes and that the signed ballot papers will be distributed to representatives of candidates to mark and return to the polling officials.  The presiding officer Marcus Gale gave the signed ballot papers to Councillor Kopan Pui, and he gave 500 of them to the first respondent’s representative Taul David and 350 to John Garia to distribute to the other candidates.  They marked the ballot papers and returned them to the presiding officer who deposited them in the ballot box and the ballot box was transported to the counting centre at Kundiawa under police escort.

11.	The petitioner called two witnesses.  They are John Garia and Bruno Bike.  Their account was that no polling took place at Balimkoa.  Instead, ballot papers were distributed to the supporters of candidates, marked and returned to the polling officials.  Also, according to Bruno Bike, he observed that the presiding officer Marcus Gale gave over 500 ballot papers to Taul David a supporter of the first respondent and 350 ballot papers to John Garia for the other candidates to mark.

12.	The first respondent denied the allegations and called three witnesses.  They are Taul David, Councillor Kopan Pui and Kum Gabi.  Councillor Kopan Pui relied on a letter by him and other leaders of Ward 4 sent to the Election Steering Committee dated 20th June 2022 requesting relocation or change of polling venue from Digibe to Balimkoa to assert that the relocation or change of polling venue from Digibe to Balimkoa was in order.  This letter was tendered and marked as exhibit “D3”.  It received no feedback or response from the Election Steering Committee.  According to the account by Taul David it was the relocation or change of polling venue that led to a disagreement and commotion on the polling day of 19th July 2022 at Balimkoa.  It was Samuel Peter who started the dispute when he drove a blue five-door Toyota Landcruiser with a group of youths into the polling area and verbally abused the presiding officer and demanded an explanation for the change of polling venue.  Because of this, John Garia demanded ballot papers for his sub-clan, and it led to a compromise amongst the representatives of the candidates and an agreement was reached on the manner of polling.  Kum Gabi’s account was that there was no issue with polling and that people voted freely and fairly.  

13.	The second respondent called no witness for this allegation.

14.	The question is which account should be preferred?  Is it the petitioner’s witnesses’ account or the first respondent’s witnesses’ account?  The petitioner’s witnesses’ account is preferred for the following reasons:

(a)	each witness’s account is consistent with and corroborates the other’s account in relation to relocation or change of polling venue from Digibe to Balimkoa and polling being conducted at Balimkoa on 19th July 2022.

(b)	that a dispute arose in relation to the relocation or change of polling venue from Digibe to Balimkoa.

(c)	that following the dispute, supporters of candidates agreed that ballot papers be distributed to representatives of candidates and marked and returned to the presiding officer to place in the ballot box.

(d)	despite intense cross-examination in relation to the accuracy of the number of ballot papers given to the representatives of the first respondent and other candidates to mark, John Garia’s account in relation to there being no polling and that ballot papers were distributed to representatives of the first respondent and other candidates, marked and returned to the presiding officer Marcus Gale was not destroyed.
(e)	all in all, their account that none of the voters cast their votes by secret ballot remained intact.

15.	On the other hand, the first respondent’s witnesses’ account is rejected for the following reasons:

(a)	it is vague, inconsistent, contradictory and self-serving because while Taul David conceded that there was a dispute among the voters led by a Samuel Peter in relation to the relocation or change of polling venue from Digibe to Balimkoa, he does not give details in relation to how polling was conducted in his evidence in chief at paragraphs 14 to 25 of his affidavit (exhibit “D1”).  In cross-examination, he denied any illegal practice at polling, but this explanation falls short of contradicting John Garia and Bruno Bike’s account that there was no polling by secret ballot and that ballot papers were given to the representatives of the first respondent and other candidates, marked, returned to the presiding officer and placed in the ballot box and transported to the counting centre at Kundiawa for counting.
(b)	as the presiding officer, Marcus Gale had a duty to ensure that polling was conducted by secret ballot, and he was not called by the defence to give that account.

(c)	Councillor Kapun Pui’s account is not only consistent with but corroborates John Garia and Bruno Bike’s account that polling was relocated, or polling venue was changed from Digibe to Balimkoa at him and other leaders of Ward 4’s request.  However, it was without approval or authorisation from the Election Steering Committee. Like Taul David, he does not give details in relation to how polling was conducted in his evidence in chief at paragraphs 16 to 27 of his affidavit (exhibit “D2”) to contradict the account by John Garia and Bruno Bike.  For example, he does not say that polling was conducted by secret ballot whereby each voter was called by name by the presiding officer, identified, given a ballot paper for the Gumine Open electorate, entered the polling booth, marked the ballot paper and placed it in the ballot box for Gumine Open electorate and exited the polling booth.  Similarly, the account by Kum Gabi suffers the same fate.  This is because “[a] vague reference to voting is insufficient and unconvincing”: James Pini v Wesley Nukundi Nukunji & Electoral Commission (2018) N7342 at [10].

(d)	finally, the first respondent failed to call one of the voters who attended at the polling venue at Balimkoa to give an account that he or she was called by name by the presiding officer, identified, given a ballot paper for the Gumine Open electorate, entered the polling booth, marked the ballot paper and placed it in the ballot box for Gumine Open electorate and exited the polling booth.

16.	For the foregoing reasons, there will be a finding that polling was relocated, or polling venue changed from Digibe to Balimkoa without approval of authorisation from the Electoral Steering Committee.  It was the reason for the dispute started by Samuel Peter when he drove a blue five-door Toyota Landcruiser with a group of youths into the polling area and verbally abused the presiding officer and demanded an explanation for the change of polling venue.  Subsequently, a compromise and agreement was reached among the voters and supporters of candidates where Marcus Gale as the presiding officer gave 500 ballot papers to Taul David as representative of the first respondent and 350 to John Garia to distribute to the representatives of the other candidates to mark and return to the presiding officer to place in the ballot box and transported to the counting centre at Kundiawa for counting.  As to the number of votes affected by the illegal practice, while the first respondent strongly submits that the petitioner failed to produce Form 66A to verify the number of votes counted from Digibe (Balimkoa) Polling venue, the first respondent does not refer to a law that says that a Form 66A is necessary to corroborate an eye witness’ account of the number of votes affected by the illegal practice.  Because of this, based on the petitioner’s witnesses account, there will be a further finding that a total of 850 ballot papers were allocated to Digibe (Balimkoa) Polling venue and this number of ballot papers were affected by the illegal practice because voters missed out on casting their votes for the candidate of their own choice.

(b)	Illegal Marking of Ballot Papers at Polling Team A, Yagauma Tribe, Ward 7, Karil Maril Station Polling Venue

17.	The allegation is that no polling took place at Karil Maril Station on 18th July 2022 because when the polling team comprising of the presiding officer Zilpha Dawa, and polling clerks Wai Nul, Otto Wemin and Ms Maiki Teine set up the polling station, Nulai John and Gena Teine from Yagauma tribe announced that there will be no polling and that ballot papers will be distributed to the representatives of candidates and they will mark them for their candidates.  A voter by the name of David Watt and a candidate by the name of Teine Mane objected.  A group of youths with bush knives demanded 1,200 ballot papers be marked first preference for candidate Robert Koban and second preference for the first respondent.  An agreement was reached where Nulai John and Gena Teine announced to the people that candidate Robert Koban will receive 600 ballot papers, and the balance of the ballot papers will be shared among other candidates.  Secondly, assistant presiding officer David Kunga handed two ballot papers to Ronnie Teine Maine and his wife and one ballot paper to candidate Robert Koban and they cast their respective votes.  The presiding officer, assistant presiding officer, and the polling clerks marked the rest of the ballot papers and when they reached 800 ballot papers, David Watt and Yunus Teine stopped them.  The balance of the ballot papers of 400 were distributed to the representatives of other candidates to mark.  The polling team moved to the nearby Council Chamber and continued marking the ballot papers for third and fourth preferences and completion between 6:00 and 7:00 pm.

18.	The petitioner called two witnesses.  They are Ronnie Teine Maine and Yunus Teine.  Their account was that no polling took place at Karil Maril Station.  Instead, ballot papers were distributed to the supporters of candidates, marked and returned to the polling officials.  Also, according to Ronnie Teine Maine, after a welcome speech by community leaders and response by Returning Officer Peter Arre calling for a free and safe polling and announced a total number of 1,200 ballot papers for Karil Maril Station, Nulai John and Gena Tine asking the polling team and security personnel in relation to how polling will be conducted which led to a dispute.  Subsequently, Nulai John and Gena Tine told voters that there will be no polling and that ballot papers will be distributed to supporters to mark for their respective candidates.  He objected to Nulai John and Gena Tine’s suggestion but was given four ballot papers from the assistant presiding officer David Kunga for him and his wife to cast their votes which they did.  Candidate Robert Koban did likewise.  Further, he observed that the presiding officer Zilpha Dawa and assistant returning officer David Kunga unilaterally marked 800 ballot papers.  The balance of 400 ballot papers were distributed to supporters of other candidates to mark.  This witness was put under intense cross-examination by counsel for the first respondent in relation to his relationship with the petitioner and, that as one of the beneficiaries of the funds from Gumine District for road projects during the petitioner’s term in office as member for the electorate, has compromised his evidence such that it lacked credibility and be rejected.  In addition, there is no truth in his account because his response to a question by counsel for the first respondent that polling was not compromised because polling officials were not from Karil Maril Station is self serving.

19.	The first respondent denied the allegations and called two witnesses.  They are Sipa Yau and Kaupa Policeman.  The latter appeared pursuant to a summons.  Sipa Yau denied the allegation of no polling at Karil Maril Station and asserted that after a welcome speech by community leaders and response by Returning Officer Peter Arre calling for a free and safe polling and announced a total number of 1,200 ballot papers for Karil Maril Station, the voters formed two lines and cast their votes one at a time.  Kaupa Policeman’s account was that a perfect polling took place at Karil Maril Station. 

20.	The second respondent called two witnesses.  They are Zilpha Dawa and David Kunga. Zilpha Dawa denied the allegation of no polling was conducted at Karil Maril Station and that voters marked the ballot papers.  He gave a vague account of how polling was conducted by stating that “After the polling team and electors organised ourselves, I announced to electors to start que for voting till the last ballot paper………..The electors marked all the preferences votes and not the EC Officers to Polling Team A.  On the 18th day of July 2022, the Polling Team closed at 5:30pm.  The alleges (sic) statement 11.1, paragraph (m) stated that polling closed at 6-7 pm in the night is annulled/voided”.  However, he does not mention in his account being questioned by David Watt and/or Yunus Teine about the number of ballot papers being marked.  When further pressed, he does not know Kaupa Policeman.  Significantly, when further pressed, he admitted signing an affidavit together with Joe Sine and David Kunga at the office of the lawyers but denied being forced to sign it.

21.	David Kunga’s account is that he is the assistant presiding officer and denied the allegation that no polling was conducted at Karil Maril Station and that polling officials marked ballot papers.  After confirming that the allegation that second respondent’s polling issued two ballot papers to Candidate Rodney Teine Maine and his wife and one to Candidate Robert Koban, he’s account in relation to how the rest of the voters cast their votes is vague where “The registered candidates contestant for elections always given the priority to come forward and cast their votes creating way for the electors to follow, as usual the Assistant Presiding Officer issued the signed ballot papers to these candidates to cast their votes”.  However, he was unable to explain why a David Watt questioned the signing of ballot papers by polling officials.

22.	Based on petitioner’s witnesses’ and respondents’ witnesses’ accounts, it is common ground that after a welcome speech by community leaders and response by Returning Officer Peter Arre calling for a free and safe polling and announcement of a total number of 1,200 ballot papers for Karil Maril Station, Candidate Ronnie Teine Maine received four ballot papers from the assistant presiding officer David Kunga for him and his wife to cast their votes which they did.  Also, Candidate Robert Koban received a ballot paper and cast his vote.  The dispute is in relation to whether the rest of the voters received ballot papers from the presiding officer and cast their votes.  For this question, the question is which account should be preferred?  Is it the petitioner’s witnesses’ account or the first and second respondents’ witnesses’ account?  The petitioner’s witnesses’ account is preferred for the following reasons:

(a)	each witness’s account is not only detailed, but consistent with and corroborates the other’s account in relation to no polling being conducted at Karil Maril Station on 18th July 2022 because Nulai John and Gena Tine asked the polling team and security personnel how polling will be conducted and led to a dispute.  Subsequently, Nulai John and Gena Tine told voters that there will be no polling and that ballot papers will be distributed to supporters to mark for their respective candidates.  

(b)	while Ronnie Teine Maine was subjected to intense cross-examination by counsel for the first respondent in relation to his close association and relationship with the petitioner to procure the return of the petitioner having done so in 2012 and 2017 General elections so as to discredit the credibility of his account, I am not satisfied that this was the motive for this witness to testify against the first respondent’s win.  On the other hand, hand, demeanour wise, my observation of this witness in the witness-box gives me no reason to doubt his account.  He was not shaken nor evasion in response to the intense cross-examination by counsel for the first respondent.  

(c)	similarly, while Yunis Teine was subjected to intense cross-examination by counsel for the first respondent in relation to his close association and relationship to witness Ronnie Teine Maine to give an account favourable to the petitioner so as to discredit the credibility of his account, I am not satisfied that this witness had a motive to lie or fabricate his account because demeanour wise, my observation of this witness in the witness-box gave me no reason to doubt his account.  He was not shaken nor evasion in response to the intense cross-examination by counsel for the first respondent.  

(d)	following the dispute, supporters of candidates agreed that ballot papers be distributed to representatives of candidates and marked and returned to the presiding officer to place in the ballot box.

(e)	all in all, their account that none of the voters cast their votes by secret ballot remained intact.

23.	On the other hand, the respondents’ witnesses’ account is rejected for the following reasons:

(a)	it is vague and lacked specific details in relation to how polling was conducted by secret ballot where each voter was called by name by the presiding officer, identified on the Common Roll, given a ballot paper for Gumine Open electorate, entered the polling booth, marked the ballot paper and placed it in the ballot box for Gumine Open electorate and exited the polling booth.  The lack of these specific details reinforces the petitioner’s witnesses’ account that no polling was conducted at Karil Maril Station.  This is because a vague assertion is unconvincing: see James Pini case (supra) at [10].

(b)	Sipa Yau’s account does not refute the petitioner’s witnesses that Nulai John and Gena Tine spoke before the voters were to vote and that there was a dispute instigated      by these two men, that they told voters that there will be no polling and that ballot papers will be distributed to supporters to mark for their respective candidates.  

24.	For the foregoing reasons, there will be a finding that there was no polling conducted at Karil Maril Station because no voter was called by name, identified on the common roll, given a ballot paper for Gumine Open electorate, entered the polling booth, marked the ballot paper according to the voter’s preference and placed it in the ballot box for Gumine Open electorate before exiting the polling booth.  This is because Nulai John and Gena Tine told the voters that there will be no casting of votes and that ballot papers will be distributed to supporters of candidates to mark for their respective candidates.  After candidate Ronnie Teine Maine and his wife and candidate Robert Koban were given ballot papers and cast their respective vote, an agreement was reached for the ballot papers to be distributed to supporters of candidates to mark and returned to them.  While they were signing the ballot papers, a light drizzle fell, and they moved into the Catholic Church building and completed the marking of ballot papers.  For the reasons given at [16] (supra), based on the petitioner’s witnesses’ account, there will be a further finding that 1,200 ballot papers were allocated to Karil Maril Station and were affected by the illegal practice because voters missed out on casting their votes for the candidate of their own choice.  

(c)	Illegal Marking of Ballot Papers at Polling Team B, Auregauma Tribe, Ward 7 Karil Maril Polling Venue

25.	The allegation is that at the polling venue of Bolakewa on the morning of 18th July 2022 people gathered to cast their votes.  At about 12 noon the polling team arrived.  The polling team was accompanied by the Returning Officer Peter Arre.  The polling teams compromised of presiding officer Jeff Peters, assistant presiding officer Jonito Kum, polling clerks Julia Konia and Albert Kopa.  Peter Arre informed the voters that people of Auregauma Tribe must uphold the constitutional rights of every voter to vote without fear.  When polling was about to commence some supporters of candidates named Peter Arrwai, Keith Peter, John Baa, Kuman Sipa, Sunny Palau and others demanded ballot papers to be given to them because they feared voters will cast votes for other candidates.  Time was running out and for fear of violence, the local leaders agreed that ballot papers will be distributed to supporters of candidates who were present to mark as follows: 
	
(a)	First respondent 		– 	450
(b)	Robert Khawa Bartho 	– 	450 
(c)	Bata Tom Michael 	– 	400	
(d)	Peter Kopil Garin 		– 	300
(e)	Joe Sine Wemin 		– 	100		

26.	Despite objection from the voters, the presiding officer distributed 1,700 unsigned ballot papers to supporters of candidates according to the ballot paper distribution breakup as agreed to by the local leaders above.  The ballot papers were taken away by the supporters of candidates, marked and returned to the presiding officer at about 6:00 pm.  The presiding officer then signed the back of each ballot paper until it started to rain.  With the assistance from the people, the polling team relocated to a small hut about 15 to 20 metres from the polling station and set up a marking spot and continued signing the ballot papers and placing them in the ballot box.  At about 10:00 pm, the polling team moved to another house belonging to the supporters of the first respondent and completed signing the ballot papers.  On the morning of 19th July 2022, the polling team left Bolakewa.

27.	The petitioner called three witnesses.  They are Eric Phile, Marshall Konia and Jonito Kum.  Eric Phile’s account is that no polling was conducted at Bolakewa because the presiding officer handed batches of ballot papers to each candidate’s representative, and each marked them.  He collected nine unsigned batches of ballot papers containing a total of 450 ballot papers for Robert Bartho’s supporters to mark.  In cross-examination, he denied that he was intoxicated, accompanied Robert Bartho to the polling venue and instigated the dispute in relation to the distribution of ballot papers to supporters of candidates to mark. He said he saw supporters of the first respondent collecting ballot papers and marked them.   

28.	Marshall Konia’s account corroborated Eric Phile’s account.  Moreover, he observed that the presiding officer gave 1,700 ballot papers in batches of 50s to representatives of candidates to distributed.  The first respondent received 450, Robert Bartho received 450, Bata Tom Michael received 400, Peter Garin received 300 and Joe Wemin received 100.  He was under intense cross-examination by counsel for the first respondent to discredit the credibility of his account.  

29.	Jonito Kum appeared pursuant to a summons.  His account also corroborated the account by Eric Phile and Marshall Konia that there was no polling conducted at Bolakewa and that the presiding officer distributed ballot papers to the supporters of candidates.  This was after a disagreement by the leaders in relation to whether voters were to cast their votes or to distribute and marked the ballot papers for each candidate.  The ballot papers were marked and returned to the presiding officer at about 6:00 pm.  As the ballot papers were not counter signed by the presiding officer, he accompanied the presiding officer and two polling clerks to a nearby house and the presiding officer signed the ballot papers and the two polling clerks folded and placed them in the ballot box.  He also observed that some ballot papers were crossed, and the first respondent’s name was written on them.  When he looked at the presiding officer, the latter motioned to him not to say a word by placing his finger over his lips and eyes.    

30.	He was cross-examined by counsel for the first respondent in relation to whether the Returning Officer was with the polling team when they arrived at Bolakewa and speeches being made before polling started.  He maintained that there was disagreement in relation to how polling was to be conducted.  He claimed that according to the list of polling officials, he was one of the polling clerks but was replaced by another person and it was the reason for him to join the polling team at the nearby house and observed the presiding officer sign the ballot papers until late that night.  

31.	The first respondent called five witnesses.  They are Robert Sipa Gena, Jeff Deke Peters, Sanny Palau, John Baa and Peter Samuel Nulai.    Robert Sipa Gena was a candidate for Simbu Provincial electorate in 2022 General elections.  His account is that he observed Robert Bartho and his supporters trying to interfere with polling at Bolakewa and that objection to Robert Bartho’s right to be at Bolakewa.  In cross-examination, he admitted that a complaint was made to the police in relation to fabricating his account in his affidavit by Joe Army and he was assisted by a lawyer to change his account.  

32.	Jeff Deke Peters denied the allegation of no polling being conducted at Bolakewa and asserted that polling was conducted.  Robert Bartho and his supporters attempted to stop polling, but the polling team successfully managed to secure and control the polling.    Sunny Palau’s account corroborated Jeff Deke Peters and asserted that polling progressed well into the night and ended about 8 o’clock on 18th July 2022.  Robert Bartho was at Bolakewa a few days before the date of polling splashed cash and beer on men and women and by the time polling comae by, the drunken youths disrupted the polling.  John Baa’s account also corroborated Jeff Deke Peters and Sunny Palau’s account, and he observed candidate Robert Bartho at Bolekewa talk to some of the Auregau youths.  Some of them lived at the settlements outside of the Gumine electorate like Eric Phile. Marshall Konia and Aure Nul.  Robert Bartho was the candidate from Bolakewa.  Despite the Returning Officer calling for a free, fair and safe election and the presiding officer Jeff Deke Peters announcement of 1,700 ballot papers for each of the open and regional electorates, Robert Bartho’s supporters Eric Phile, Marshall Konia and Peter Dane Samuel demanded the ballot papers to be distributed to supporters of candidates to mark.  He, Sunny Palau, Arwai Peter, Kuman Sipa and Keith Peter angrily objected to the demand.  The presiding officer intervened and directed everyone to assemble into two lines, male and female, to cast their votes while he signed the ballot papers.  He cast his vote, and the polling clerks assisted him to place the marked ballot papers in the ballot box.  Polling progressed smoothly until it started to rain, and the presiding officer suspended polling twice.  After polling he provided security for the ballot boxes at the church.  The next day, the police extracted the ballot boxes and the polling team to Kundiawa.  

33.	Peter Samuel Nulai’s account corroborated the account by Robert Sipa Gena, Jeff Deke Peters, Sunny Palau and John Baa.  He further asserted that he is a supporter of Robert Bartho and was directed by Robert Bartho to grab ballot papers at the polling venue or if it failed, demand them to be distributed to the supporters of candidates to mark.  He did not do as directed by Robert Bartho but observed him stand next to the presiding officer’s desk and demanded the presiding officer to distribute the ballot papers, but the presiding officer ignored him.  Robert Bartho was angry and left in his motor vehicle.  On the next day 19th July 2022, he observed voters lined in front of the polling booth and John Garia demanded ballot papers for his sub-clan and an argument ensured between John Garia and Councillor Kopan Pui before people reluctantly agreed to go into groups of sub-clans and lined up and voted.  Voters received their ballot papers, marked and placed them in the ballot boxes until the end.  Polling concluded peacefully around midday and a police patrol car escorted a blue dyna truck with green canopy arrived, picked up the sealed ballot boxes and polling team and returned to Kundiawa.  

34.	Having reviewed the petitioner’s and respondents’ witnesses’ account, it is common ground that the polling team was accompanied by the Returning Officer Peter Arre to Bolakewa and he informed the voters that people must uphold the constitutional rights of every voter to vote without fear.  The question is, did the voters cast their votes?  To answer this question, the further question is, whose account should be preferred?  Is it the petitioner’s witnesses’ account or the respondents’ witnesses’ account?  From my observation of Eric Phile from the witness box, his demeanour gave him away because he did not look confident, was evasive and avoided simple and straight forward questions in relation to whether he was one of the persons who interrupted polling by demanding ballot papers to be given to the supporters of candidates to mark.  Because of this, I do not believe his account that there was no polling because the supporters of the first respondent instigated the conflict in relation to the polling.  On the other hand, he was one of the persons who accompanied Robert Bartho to the polling venue and instigated the conflict by demanding the ballot papers to be distributed to the supporters of the candidates to mark.  He was drunk.  He collected batches of ballot papers containing a total of 450 ballot papers for Robert Bartho’s supporters to mark.

35.	Marshall Konia and Jonito Kum’s accounts corroborates Eric Phile’s account that there was no polling, but they also deflected its cause to the first respondent’s supporters.  However, Marshall Konia’s account is contradictory because he cast his vote and after that he observed Kuman Sipa, Sunny Palau, Jeff Deke Peters, John Baa, Peter Arewai and other supporters of the first respondent demanded the presiding officer to distribute the ballot papers to supporters of candidates to mark.  Jonito Kum does not mention observing Marhsall Konia casting his vote or any other voter for that matter.  On the other hand, Eric Phile, Marshall Konia and Jonito Kum’s accounts further corroborates the respondents’ witnesses’ account where Robert Sipa Gena, Jeff Deke Peters, Sunny Palau, John Baa and Peter Samuel Nulai that there was attempt to interfere with polling.  However, I am not satisfied with the respondents’ witnesses’ account that the voters cast their votes because except for Peter Samuel Nulai who said that he cast his vote, none of the others said that they also cast their votes whereby they were called by name by the presiding officer, identified on the common roll, given a ballot paper for the Gumine Open electorate, entered the polling booth, marked the ballot papers and marked it in the ballot box for Gumine Open electorate and exited the polling booth.  

36.	Further, I place little weight on the account given by Peter Samuel Nulai because first, it is against most of the respondents’ witnesses who made no mention of them casting votes, or other voters casting their votes at polling at Bolakewa polling venue.  Secondly, as was revealed in cross-examination in response to questions by counsel for the petitioner, he was once a supporter (scrutineer in the 2017 General Elections) but changed allegiance to the first respondent and made a criminal complaint to the police for being kidnapped and the charge against the petitioner was later dismissed by the District Court in Port Moresby for lack of evidence.  Accordingly, his account is unreliable.  As to the others, while I accept that the polling was interrupted by a slight drizzle, I do not accept their account that people cast their votes into the night and completed polling at 8 o’clock.  This is quite late and any polling in the night raises questions about the integrity of polling and suspicion that polling was compromised.  
37.	For these reasons it is the finding of the Court that there was no polling conducted at Bolakewa polling area.  On the other hand, at the instigation of Eric Phile and Robert Bartho, the presiding officer distributed ballot papers to supporters of candidates, and they marked them.  They returned them to the presiding officer and he counter-signed them until 8 o’clock in the night. When he completed counter signing them, he and the polling team placed them in the ballot box and stored the ballot box in the church building for the night.  The ballot box was extracted the next day and transported under police escort to Kundiawa. Similarly, for the reasons given at [16] (supra) based on the petitioner’s witnesses’ account there will be a further finding that a total of 1,700 ballot papers were affected by the illegal practice because they were distributed to supporters of candidates who were present to mark as follows: 	
(a)	First respondent 		– 	450
(b)	Robert Khawa Bartho 	– 	450 
(c)	Bata Tom Michael 	– 	400	
(d)	Peter Kopil Garin 		– 	300
(e)	Joe Sine Wemin 		– 	100		

(d)	Illegal Marking of Ballot Papers at Munuma (Konsu) Catholic Church Polling, Kopan Tribe, Ward Munuma Polling B Venue

38.	The allegation is that no polling was conducted for the Kopan tribe at Munuma Ward by Polling Team B led by presiding officer Simon Wena, assistant presiding officer Bal David around 11:30 pm on 18th July 2022 with 1,400 ballot papers.  This was because of a dispute between the supporters of the first respondent and supporters of Robert Bartho when the supporters of the former led by Parker Rambo arrived at Konsu village from Munuma Polling “A” and demanded to collect all the first preference votes for the first respondent from Kopan tribe.  The supporters of Robert Bartho objected.  Because of this, Bal David announced to the voters of Kopan tribe that he will mark 1,400 ballot papers for the first respondent, but the leaders from Kopan tribe namely Dom Simin, Kopan Simin and Kum Eryu called for a proper polling to be conducted because other candidates Major Mark Kora, Bata Tom Michael, Maima Gul and Patti Simin including Robert Bartho were present to vote.  Despite the objection, Bal David distributed the ballot papers to the supporters of the candidates to mark as follows:

(a)	First respondent 		– 	500
(b)	Robert Bartho 		– 	350 
(c)	Bata Tom Michael 	– 	350	
(d)	Major Mark Simin 	– 	100
(e)	Peter Kopil Garin 		– 	100	

39.	Bal David marked 500 ballot papers for the first respondent.  The representatives of the other candidates moved into the Catholic Church and completed marking the ballot papers after a light drizzle and returned the ballot papers to Bal David and he marked the second and third preferences and handed them to Simon Wena to sign and placed in the ballot box.  Simon Wena and the polling teams then left Konsu village at about 6:30 pm.

40.	The petitioner called three witnesses. They are Robert Kawa Bartho, Benny Morua and Kaupa Bal.  Robert Kawa Bartho is the same person as Robert Bartho and his account is that Bal David was the assistant presiding officer and was the person who distributed 1,400 ballot papers to supporters of candidates to mark.  He also marked 500 ballot papers for the first respondent.  Benny Morua’s account corroborates Robert Kawa Bartho’s account that no polling was conducted at Konsu Polling venue, and he asserted that Bal David was the person who distributed the ballot papers to supporters of candidates to mark.  Benny Morua was a supporter of candidate Major Mark Simin, and he marked ballot papers for this candidate.  The voters were not given the opportunity to cast their votes at the polling booth.  In cross-examination by counsel for the first respondent, he maintained that there was no polling conducted at Konsu village and as a supporter of Major Mark Simin, he marked ballot papers for him.

41.	Kaupa Bal’s account reinforces Benny Morua’s account that no polling was conducted at Konsu village, and that Bal David was the person who distributed ballot papers to supports of candidates and they marked them for their respective candidates while he collected and marked 350 ballot papers for Robert Kawa Bartho.

42.	The first respondent called five witnesses.  They are Bal David, Simon Wena, Parker Rambo, Kum Erryu and Yoba Peter.  All these witnesses denied the allegation of no polling at Konsu village and asserted that there was no dispute or disagreement among the voters in relation to distribution of ballot papers to supporters of candidates and that voters stood patiently in line and cast their votes.  Before polling started, Councillor Parker Rambo and other leaders thanked those present for attending and urged them to vote freely and observe the law.  Polling concluded at 5:30 pm.  After the ballot boxes for Gumine Open electorate and Simbu Provincial electorate were secured, they were transported in a blue dyna to Kundiawa for counting.  Contrary to the number of ballot papers marked for each candidate, the votes collected by each candidate from the counting centre revealed that:

	(a)	the petitioner collected 48 votes.
	(b)	Bata Tom Michael collected 603 votes.
	(c)	the first respondent collected 865 votes.
	(d)	Peter Kapil Garing called 106 votes.
	(e)	Joe S Wemin collected 3 votes.

43.	Like the previous allegations, the question is which account should be preferred?  Is it the petitioner’s witnesses’ account or the first respondent’s witnesses’ account?  The petitioner’s witnesses’ account is discounted because:

(a)	if Robert Kawa Bartho was at Bolakewa on the morning of 18th July 2022, he could not possibly be at Konsu and his assertion that he was at Konsu at 8:45 am and observed Councillor Parker Rambo demanded ballot papers to be distributed to the supporters of candidates to mark is contradictory and doubtful.

(b)	while Robert Kawa Bartho stated in his affidavit (exhibit “P3”) that there was a total of 1,500 ballot papers distributed to the supporters of candidates to mark, when he was asked in cross-examination how many ballot papers were distributed by the assistant presiding officer, he retorted “how would I know?”. This response is contradictory. 

(c)	the doubt is further reinforced by Robert Kawa Bartho’s inconsistent and vague response in relation to his assertion that he observed the assistant presiding officer Bal David marked 500 ballot papers for the first respondent.  He was unable to verify the number of 500 ballot papers marked by Bal David for the first respondent and was informed by Peter Samuel that the records from the score board at the counting centre revealed that the first respondent polled 500 votes at Konsu polling venue.

(d)	Benny Morua’s account in his affidavit (exhibit “P4”) is in identical terms as witness Robert Kawa Bartho’s affidavit (exhibit “P3”) and witness Kaupa Bal’s affidavit (exhibit “P5”).  Critically, the number of ballot papers distributed to the supporters of candidates to mark at paragraph 7 of his affidavit (exhibit “P4”) giving a total of 1,800 contradicts the total number of 1,500 ballot papers he asserts were distributed to the supporters of candidates to mark at paragraph 5 of his affidavit (exhibit ‘P4”).

(e)	Kaupa Bal’s account in relation to the total number of ballot papers of 1,500 at paragraph 6 of his affidavit (exhibit “P5”) contradicts the total number of ballot papers distributed to the supporters of candidates to mark at paragraph 7 of his affidavit (exhibit “P5”). 
(f)	Realising the mathematical error and belatedly, he corrected it at trial.  In so doing, he has exposed himself to the criticism that he swore his affidavit on 31st October 2022 and did nothing to correct it until the trial.  While it may appear to be a genuine error, it also diminishes the credibility of his account in relation to the correct number of votes affected by the illegal practice and significantly, that there was no polling.

44.	On the other hand, the account by each of the first respondent’s witnesses is consistent and clear in relation to who polling was conducted.  The petitioner has given me no reason to doubt their accounts. Moreover, the petitioner’s counsel did not do much in cross-examination of each witness to cast any doubt in my mind in relation to his account that voters formed two lines; one for males and another for females, received their ballot papers, marked and placed them in the ballot boxes before exiting the polling booth.  Further, after a slight drizzle and suspension of polling, polling recommenced and concluded at 5:30 pm.  The ballot boxes were secured and transported in a blue dyna to Kundiawa for counting.

45.	Based on the foregoing, it is the Court’s finding that the petitioner has failed to establish that the voters did not cast their votes or no polling was conducted and the allegation of illegal practice at polling at Konsu polling venue is dismissed.

Law on Illegal Practices at Polling

46.	The petitioner relies on Sections 178 and 215 of the Organic Law on Elections and submits that the marking of ballot papers by supporters of candidates with no polling being conducted constitutes an illegal practice within the meaning of Sections 178 and 215 of the Organic Law on Elections.

47.	Section 215 states:
	
	“215. 	Voiding election for illegal practices

(1)	If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2)	A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3)	The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void – 

(a)	on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or

(b)	on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence, 

unless the Court is satisfied that the result of the election was likely to be affected, and that it just that the candidate should be declared not to be duly elected or that the election should be declared void.”

48.	In his written submissions, after referring to past judicial precedents in Luke Alfred Manase v Don Pomb Polye & Electoral Commission (2008) N3718, Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2013) N4941, and Simon Solo v Amkat Mai & Electoral Commission (2013) N5562 in the case of proving illegal practices at polling, counsel for the petitioner submits that distribution and/or marking of ballot papers by supporters of candidates and electoral officials without polling constitutes an illegal practice.  Accordingly, the four allegations of illegal practices at polling should be upheld as proven.  (Note: only three allegations of illegal practices at polling have been proved).  

49.	 However, counsel did not address the last test under Section 215(3) (supra) on whether “it is just that the candidate should be deceased not to be duly elected or that the election should be declared void” Because of this, it appears that the primary purpose of the petitioner filing this petition is to seek a recount of votes rather than having the first respondent, declared as not being duly elected or, having the election of the first respondent declared void.  This view is reinforced by the relief sought by the petitioner in the prayer for relief in the petition and outlined at [1(a)-(f)] (supra) and in the alternative, a declaration that the election of the first respondent is null and void and a by-election be held at [1(g)] (supra).

50.	Contrast this submission with [79] of the written submissions of counsel for the second respondent, who submits that “The test under section 215(3)  is that such illegal practices (excluding bribery and undue influence) committed by persons other than the candidate likely to affect the result of the election and that it is just that his election should be declared void” and reinforced in Robert Kopaol v Philemon Embel (2003) SC727 where the Supreme Court explained the requirements under Section 215(3) as follows:

“But the Organic Law also states that the National Court cannot declare a person returned as elected not duly elected or declare an election void on the ground of illegal practice committed not by the winning candidate but by some other persons if he had no knowledge of or anything to do with it. In other words he did not authorise that illegal practice and was not aware of it.

The second part of this law under Section 215 (3) (b) is that the National Court cannot declare that a person returned as elected was not duly elected or declare an election void on the ground of illegal practice not amounting to bribery or undue influence UNLESS the Court is satisfied that the result of the election was likely to be affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

We emphasise the word "just" because it is the key word in considering whether a person returned as duly elected be declared as not duly elected or his election be declared void on mere conjunctures or ambiguous and incoherent pleading that fails to clearly define the true nature of allegations except mere complaints of disgruntled losing candidates and their supporters.”

51.	Additionally, as the tests for proving illegal practices and errors or omissions are different, in Phillip Undialu v Francis Potape & Electoral Commission (2020) SC1981 at [34] and [35] the Supreme Court outlined the tests for illegal practice and errors or omissions as follows:

“34.	For illegal practice, the material facts are: 

(a)	The illegal practice;
(b)	The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority;
(c)	The result is likely to be affected by the illegal practice; and
(d)	It would be just that the candidate should be declared not duly elected or the election be declared void.

35.	As to an error or omission, the material facts are:

(a)	The error or omission;
(b)	The error or omission was committed or made by the electoral officer;
(c)	The error or omission did affect the result of the election.

52.	I also note the petitioner’s counsel’s reliance on past judicial precedents on illegal practices at polling where ballot papers were marked without polling being conducted in Luke Alfred Manase v Don Pomb Polye & Electoral Commission (2009) N3718, Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2013) N4941 and Simon Solo v Amkat Mai & Electoral Commission (2013) N5562.  The Simon Solo case (supra) applied two different strategies where multiple voting and underage voting at polling were used by the winning candidate.  In the case of multiple voting, the Court held that it was found an offence of personation under Section 99 of the Criminal Code and constituted an illegal practice under Section 215(3)(b) of the Organic Law on Elections.  Further, the National Court recognised that it is just that the election should be declared void because of underage voting.  It remarked that “deliberately using or permitting a child who has not reached full capacity and voting age under S50(1) of the Constitution for the numbers gain is a deceitful, corrupt and fraudulent conduct such that it was just that the election should be declared void under Section 215(3)(b) of the Organic Law on Elections”.  

53.	The present case applied a different strategy to those used in Simon Solo case (supra).  Here the supporters of candidates agreed among themselves and with assistance of the polling officials distributed and marked ballot papers without holding a polling.  The type of illegal practice in this case represents a disturbing trend in the electoral process and undermines a voter’s right to a free, fair and safe elections.  As was observed in the ruling on objection to competency in Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (supra) at [65] to [66]:

“65.	…………………………. it is not necessary that an illegal practice at polling is committed by use of force, threat, or intimidation.  On the contrary, it can be committed in a subtle way without any appearance of threats or violence.   It is fair to say that people are cunningly smart these days.  They devise new strategies to subvert or hijack the electoral process.  One of them is the use of non-violent strategy to secure a greater number of votes for the candidate of their choice during polling.  This is where the supporters of candidates of the electorate from a given polling location reach an agreement among themselves with the aiding and abetting of polling officials to allocate certain number of ballot papers to candidates and distribute them to the representative of each candidate contesting the election for the electorate to mark.  

66.	This strategy is used to ‘make everyone happy’ because all the candidates will receive votes based on the number of ballot papers allocated to him or her.  It is believed that unless it is necessary, the use of non-violent strategy is a better and effective way to procure votes than use of threats and violence where the risk of injuries and deaths to supporters of rival candidates including destruction of property is high.  Significantly, it reduces the risk of exposing the successful candidate to damning evidence of hijacking of ballot-boxes and ballot papers during polling if an election petition is filed against the candidate’s win.  The allegation of illegal practice in each instance is based on this type of illegal practice, a non-violent strategy.”

54.	In my view, the conduct of the polling at three of four polling venues where no polling took place constitutes an illegal practice because it is an offence under Sections 190 and 191 of the Organic Law on Elections.  Moreover, it was a breach of a voter’s right to vote by secret ballot under Section 138 of the Organic Law on Elections and denied a reasonable opportunity to vote under Section 50 of the Constitution.  The right to cast a vote by secret ballot is expressed in Section 138 (supra) as follows:

	“138.	Votes to be marked in private

Except as otherwise prescribed, a voter upon receipt of a ballot-paper shall without delay –  	

(a)	retire alone to some unoccupied compartment of the booth, and in there, in private, mark votes for three candidates in order of preference or, where there are less than three candidates for each candidate in order of preference on the ballot-papers in the prescribed manner; and

(b)	fold the ballot-paper so as to conceal his votes and to show clearly the initials of the presiding officer on the affixed mark and exhibit it so folded to the presiding officer, and then openly, and without unfolding it, deposit it in the ballot-box; and

(c)	quit the booth.”

55.	I have pondered applying Section 217 (Real justice to be observed) of the Organic Law on Elections but I do not recall being invited by the counsel for the petitioner to exercise this power to find that notwithstanding the lack of evidence connecting the first respondent to the illegal practices (polling) and that the ballot boxes for these polling venues should not be counted, given the violation of voters right to vote for a candidate of their own choice by and through secret ballot, the ballot boxes should be set aside and not counted.  This being the case, it is equally important that the first respondent should not be held liable for the actions of others and have his election questioned if there is no evidence to show that he played a role in the illegal act.  

56.	Adopting the reasoning by the Supreme Court in the Robert Kopaol case (supra) and that “the National Court cannot declare a person returned as elected not duly elected or declare an election void on the ground of illegal practice committed not by the winning candidate but by some other persons if he had no knowledge of or anything to do with it” this Court is of the view that as the petitioner seeks a recount of votes as his primary relief rather than a declaration that the election of the first respondent is void, it has not been established that the illegal practices at three of the four polling venues namely Digibe Ward 4, Polling Team A Karil Maril, and Team B Karil Maril were committed by the first respondent or by persons with the first respondent’s knowledge or authority because none of the petitioner’s witnesses gave an account that the first respondent was present at each polling venue and hijacked the ballot box and marked the ballot papers for himself or that the persons who agreed that the ballot papers be distributed to the supporters of candidates to mark acted with the first respondent’s knowledge or authority.

57.	Significantly, the Court is of the view that in order to question the legality of the ballot boxes, it is necessary for the petitioner to plead and adduce evidence on objection to the ballot boxes to be admitted to scrutiny under Section 153A of the Organic Law on Elections.  This is because there is no eyewitness account for the Court to rely on to make a finding on the nexus between the first respondent and the illegal practices (polling).  It will be also noted that in Steven Pirika Kama v Michael Laimo (2008) N3261 the National Court ordered a recount of votes instead of declaring the election of the first respondent void after it upheld allegations of illegal practices and also errors of omissions at the counting at the counting centre because of a whole heap of fundamental errors or omissions by the counting officials ranging from inflated number of votes for the winning candidate to unaccounted votes at exclusion count including unexplained errors of various returns and Tally Sheet Form 66B.

58.	In the previous case between the current parties, Dawa Lucas Dekena v Nick Kopia Kuman & Electoral Commission (2013) SC1272 the Supreme Court set aside the order by the National Court to declare the election of the first respondent void and order a by election because the major dispute was in relation to the ballot box for Digibe Ward 4 (The same ward is under dispute in this case) where despite disputes raised about the illegal markings during polling, the ballot papers were counted at the direction of a senior security personnel and the first respondent received 721 first preference votes with two informal making a total of 723 votes.  The Supreme Court formed a view that because there was a sole ballot box being disputed at counting, it was sufficient ground to exclude it and the appropriate remedy was a recount of votes excluding 723 ballot papers in question; see also Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (supra).  The point is that an objection must be taken to the admission of a ballot box at scrutiny. If not, the party aggrieved by its admission and counting of ballot papers will have waived its right of objection and is not deserving of questioning it in an election petition.

59.	In this respect, the Court notes that there are no allegations of illegal practices pleaded in the petition on objection to the admission of these ballot boxes to scrutiny at counting by the petitioner or his scrutineer using the procedure under Section 153A (supra) and that the Returning Officer deliberately ignored and/or refused an objection to the admission to scrutiny these ballot boxes or on purpose allowed them to be admitted into scrutiny without ruling on the objection.  The procedure for objection to a ballot box from being admitted to scrutiny is an elaborate one and has been discussed in Paias Wingti v Kala Rawali & Tom Olga (2008) N3286 at [188] – [198] and Samson Malcom Kuli v James Apamia & Electoral Commission (2013) N5275 at [52] – [60]. 

60.	For the foregoing reasons, the concluding submissions of the counsel for the first respondent at [860] of his written submissions is upheld, that is, “There were no objections made at the time of counting by any of the petitioner’s witnesses, to enable the Returning Officer to make an informed decision at the first instance with the procedure under Section 153A of the Organic Law.”  It follows that it is not just to order that the ballot boxes for Digibe polling venue, Team A Karil Mari polling venue and Team B Karil Maril polling venue be excluded or set aside where a recount is ordered.   

(e)	Illegal conduct of counting at Exclusion 32

61.	The allegation is that at the end of exclusion 31, after the distribution of the ballot papers for candidate Adam Ninkama, the Returning Officer suspended counting to attend an urgent meeting called by the Simbu Provincial Election Steering Committee.  After the Returning Officer left the counting centre, the counting officials led by identified persons, continued counting to exclusion 32, without the express approval or authorisation from the Returning Officer.  John Goma held himself out as the Assistant Returning Officer for Digine LLG when he was not and took control of the counting at exclusion 32.  One of the two ballot boxes containing ballot papers for candidate 35, Peter Kopil Garin, to the sorting table to be distributed, was not sealed.  When the Returning Officer returned to the counting centre and discovered that the counting officials had progressed counting to exclusion 32, he informed them that it was illegal to count the ballot papers without is approval or authorisation and supervision, but it was too late because the ballot papers were distributed to the remaining candidates.  On Saturday 6th August 2022 before exclusion 33, the Returning Officer removed parcels of ballot papers from candidate Joe Sine Wemin (exclusion 33 boxes) that were distributed from exclusion 32, because they were counted without his approval or authorisation and supervision.  The counting officials forced him to return the ballot papers and were distributed with others at exclusion 33.

62.	The petitioner called four witnesses.  They are Joe Muka, Gunua Kuman, Janet Kawale and Rev Tom Sine.  The latter two witnesses appeared on summons.  Joe Muka’s account is that he was one of the scrutineers for candidate Peter Kopil Garin during the counting at the counting centre.  He observed that the Returning Officer suspended counting at about 3:00 pm on Friday 5th August 2022 at the end of exclusion 32, to attend a meeting called by the Provincial Election Steering Committee in relation to the issue of the return of writs.  While the Returning Officer was away, the counting official particularly John Goma and Masta Kolkia started counting at exclusion 32 despite objection by him.  While exclusion 32 was in progress the Returning Officer returned and attempted to stop the counting, but was threaten and intimidated by these persons, and he did not stop counting at exclusion 32 until it was completed, and the scores were posted on the board.  In cross-examination, he denied the suggestion that in the absence of the Returning Officer, John Goma was authorized to progress counting at exclusion 32.  He also asserted that security personnel who were present at the counting centre pushed for the counting to progress because of lack of time.

63.	Gunua Kuman’s account corroborates Joe Muka’s account of the Returning Officer Joe Sine suspending counting at about 3:00 pm on Friday 5th August 2022, to attend an urgent meeting called by the Provincial Election Steering Committee in relation to the issue of return of writs.  He singled out Masta Kolkia as the instigator of the progress of counting at exclusion 32 by directing the counting officials to bring ballot box 35 which contained ballot papers for candidate Peter Kopil Garin to be counted.  He and Joe Muka objected to the counting from progressing, but counting progressed and it was Masta Kolkia assisted by John Goma who opened the ballot box and distributed the ballot papers for counting.  While the counting was progressing, the Returning Officer returned and attempted to stop the counting, but he was threatened and counting progressed, and the scores were posted on the board.  On Saturday 6th August 2022 the Returning Officer removed the ballot papers of exclusion 32 when ballot papers for exclusion 33 were being sorted out and placed them in the disputed box but Masta Kolkia, Temai Dawa, Zilpa Dawa, David Kunga and Jeff Peters objected and threatened the Returning Officer.  Temain Dawa collected the ballot papers for exclusion 32 and mixed them up with the rest of the ballot papers to be counted.  The security personnel who were present also opposed the Returning Officer’s direction to exclude the ballot papers for exclusion 32 and to complete the counting.  Further, he observed that no quality checks were done where plastic bags containing the ballot paper bundles were lifted and number of bundles identified.  

64.	Furthermore, Gunua Kuman asserted that more than 250 ballot papers containing first preference votes for the petitioner from Karil Maril Polling areas A and B were tampered with.  The votes for candidate 19 were crossed out and Dawa Lucas Dekena’s name was written on them.  Similarly, a significant number of second preference votes for the petitioner were crossed out with a black marker and the first respondent’s name was written on them.  In cross-examination by counsel for the first respondent, he maintained that security personnel insisted that counting progressed quickly in the absence of the Returning Officer and that John Goma was not appointed by the Election Manager to supervise the counting.  

65.	Janet Kawale was one of the counting officials at the counting centre.  Her account corroborates David Muka and Gunua Kuman’s accounts that the Returning Officer Joe Sine suspended counting at the end of exclusion 31 and went to a meeting.  John Goma and Masta Kolkia broke open the ballot box for candidate Peter Kopil Garin and when the Returning Officer returned, he was surprised to find that the ballot box was broken and questioned them, but he was threatened by them.  They said, “You will die” and other counting officials supported them to complete the counting.  No quality checks were done at the primary count and at exclusion counts.  She observed 250 informal ballot papers were allowed by the then Returning Officer and when she was at the sorting table, she saw many ballot papers with 19 on them been crossed out and Dawa Lucas Dekena’s name written on them.  When the scrutineers for candidate 19 and other scrutineers objected, the Returning Officer Peter Arre came in and overruled them by announcing that, “name supersedes the number” and counting progressed until the end. In cross-examination by counsel for the first respondent, she maintained that ballot papers for Karil Maril Ward 7 were tampered with and that no quality checks were conducted at primary count and exclusion counts to authenticate the ballot papers.  Further, that the Returning Officer Joe Sine suspended counting, but Masta Kolkia and John Goma directed counting officials to continue counting and when Joe Sine returned and intervened, he was threatened.
  
66.	The last witness Rev Tom Sine is the Election Manager for Simbu Province.  His account was in relation to calling of a meeting for all Returning Officers and Assistant Returning Officers to await a decision of the Electoral Commissioner to the continuation of counting beyond the date fixed for the return of writs because of lack of time.  On Friday 5th August 2022 he announced the suspension of counting after receiving advice from the Electoral Commission until the date of the return of writs was extended.  

67.	The first respondent called four witnesses.  They are Masta Kolkia, John Goma, Peter Arre and Joe Sine.  Masta Kolkia changed his account from suspension of counting to no suspension of counting.  He conceded that the process of quality check was changed.  John Goma’s account did not corelate to Masta Kolkia in relation to what transpired at exclusion 32 count.  Peter Arre admitted that ballot papers were allowed in the basis that name supersede number and also admitted to changing the quality check process but received no notice of objection from candidates or scrutineers from admitting into scrutiny of any ballot box from Gumine Open electorate.  Joe Sine tendered two affidavits; one sworn and filed on 7th December 2022 and marked as exhibit “D21” and the other sworn and filed on 15th November 2022 and marked as exhibit “D22”.  He is the Assistant Returning Officer and replaced Peter Arre as Returning Officer after the latter was stood down over complaints in relation to the counting under his supervision.  In the first affidavit, this witness gave an account in relation to the decision to stop counting at exclusion no 32 for him as the Returning Officer of Gumine Open electorate to attend a meeting by the Election Steering Committee.  In the second affidavit, his account changed to the counting progressing at exclusion no 32.  

68.	Having reviewed the petitioner’s witnesses’ accounts and the respondents’ witnesses’ accounts, it is common ground that counting progressed to exclusion 32 on Friday 5th August 2022.  Prior that date, the Returning Officer Peter Arre was replaced by the Assistant Returning Officer Joe Sine over complaints in relation to the conduct of counting under his supervision. On the date in question Joe Sine was in charge when counting progressed to exclusion 32. At about 3:00 pm the Election Manager for Simbu Province Rev Tom Sine called for all Returning Officers and Assistant Returning Officers to attend a meeting to await a decision of the Electoral Commissioner to the continuation of counting beyond the date fixed for the return of writs because of lack of time.  The Returning Officer Joe Sine left the counting centre to attend the meeting.  After he left, counting progressed at the instigation of Masta Kolkia when he opened a ballot box and was assisted by John Goma and distributed the ballot papers for counting.  While counting was progressing, the Returning Officer returned and attempted to stop it but was threatened and counting progressed and scores were posted on the board. 

69.	The dispute is in relation to the petitioner’s claim that the Returning Officer’s claim that the Returning Officer suspended the counting when he attended the meeting.  The petitioner’s witnesses’ account is that the Returning Officer announced to those who were present that counting is suspended and left for the meeting while the respondents’ witnesses’ account is the opposite.  They asset that the Returning Officer did not announce that counting is suspended when he left for the meeting.  

70.	The key witness to settle this dispute of fact is the Returning Officer Joe Sine.  At paragraph 3.2 of his affidavit (exhibit “D21”) he asserts that when he went out of the counting centre to seek clarification in relation to the extension of the return of Writs and other counting issues, “………I did not suspend the counting.  The counting proceeded with the counting of exclusion 32 after 31 exclusions”.

71.	In his second affidavit (exhibit “D22”) Joe Sine asserts at paragraph 8j that at exclusion 32, he informed the counting officials that he will be back after getting clarification on the extension of the return of writs while the counting officials continued with exclusion 31 ballot papers distribution.  “I did not suspended (sic) the counting and therefore, exclusion 32 proceeded by the counting officials is valid.”  At paragraph 11a he repeated that “At the hand (sic) of exclusion 31, I did not suspend the count but to seek clarification on the extension of writs from the Election Manager.”  At paragraph 11d he repeated that “The counting officials continued the exclusive process after exclusion 31 in (sic) the understanding that I did not suspended (sic) the counting but to seek clarification from the election manager”.

72.	Joe Sine was summonsed by the Court to appear and clarify whether he suspended the counting or not.  When asked by counsel for the petitioner to clarify it, he changed his account by admitting that he suspended counting at exclusion 31 before he went to the meeting.  When asked by counsel for the first respondent why he changed his account, he explained that he did not draft the affidavits (exhibits “D21” and “D22”) but was given them to sign which he did before a lawyer other than the counsel appearing for the second respondent in this petition.  However, he was adamant that he suspended counting before going to the meeting.  When further pressed in relation to the consequences in giving conflicting accounts or changing his account under oath, he responded that he was speaking the truth and denied that the petitioner told him to change his account to favour the petitioner.

73.	Demeanour wise, this witness appeared nervous and spoke frantically when explaining why he changed his account after he realised that he could be in serious trouble for giving a false account.  In my view, his nervousness and frantic pace should not be viewed as an attempt to hide the truth but a realisation that giving a false account has serious consequences.  On this witness’s account alone, it is sufficient to find that the counting was suspended at the end of exclusion 31 for this witness to attend the Simbu Provincial Election Steering Committee meeting to receive the decision of the Electoral Commissioner in relation to whether counting would progress beyond the date fixed for the return of writs.  Despite this witness’s announcement to suspend counting and attending the meeting, counting progressed.  

74.	This finding is reinforced by Rev Tom Sine who as the overall Manager of the General Elections in Simbu Province, on Friday 5th August 2022 announced the suspension of counting after receiving advice from the Electoral Commissioner until the date of the return of the writs is extended.  The respondents did not discredit or deny his account by counter veiling evidence or in cross-examination.  Thus, logically his announcement would have been received by the Returning Officers and Assistant Returning Officers at the counting centre and passed on to the counting officials and it is quite surprising that the respondents’ witnesses remain oblivious to it.  The Returning Officer’s announcement of the suspension of counting is further corroborated by the petitioner’s witnesses Joe Muka, Gunua Kuman and Janet Kawale who asserted that the Returning Officer account the suspension of counting before leaving for the meeting.

75.	On the other hand, Masta Kolkia’s account is rejected because he has been identified by the petitioner’s witnesses Joe Muka, Gunua Kuman and Janet Kawale as the person who defied the instruction of the Returning Officer and progressed the counting by opening a ballot box and with the assistance of John Goma, distributed the ballot papers for counting despite strong opposition from Joe Muka and Gunua Kuman and has a reason to hide the truth.  This is further reinforced by his inconsistent account at paragraph 5 of his affidavit (exhibit “D16”) that when they were ready to go into exclusion 32 after exclusion 31 “when ARO Joe Sine was to leave for a meeting and suspended the exclusion count.” Then he made a “U” turn on cross-examination by counsel for the petitioner when he respondent that the Returning Officer did not suspend counting when he left for the meeting. 

76.	 John Goma’s account is also rejected because it does not corelate to Masta Kolkia in relation to what transpired at exclusion 32 count.  Also, his account is a gloss over of the counting process with an understatement that counting progressed and concluded without interruption.  As a result, it does not rebut the petitioner’s witnesses’ account that the Returning Officer suspended counting before attending the meeting nor deny his involvement with Masta Kolkia in opening the ballot box and distributing ballot papers for counting.  Finally, there is no counter veiling evidence from members of the security personnel at the counting centre to contradict the petitioner’s witnesses’ account that the security personnel pushed for the counting to progress due to lack of time.  

77.	At this juncture, given the conflicting accounts by Joe Sine and Masta Kolkia in relation to whether counting was suspended at end of exclusion 31 and the Court’s finding that Joe Sine announced the suspension of counting before attending the meeting of the Simbu Provincial Election Steering Committee, there is primae facie evidence of perjury and attempting to pervert the course of justice against Joe Sine and Masta Kolika and I refer them to the police for further investigation under Section 121 and Section 136 of the Criminal Code respectively.

78.	Meanwhile, as Joe Sine admitted that scrutineers and candidates agreed to also have quality checks at exclusion counts and that Peter Arre admitted that ballot papers were allowed to be counted on the name supersedes number basis, and that he was unable to identify the exact number of ballot papers affected by this admission as opposed to 250 ballot papers identified by the petitioner’s witnesses, the Court finds that:

(a)	scrutineers of candidates agreed to also have quality checks at exclusion counts.

(b)	ballot papers were allowed to be counted on the name supersedes number basis.

(c)	250 ballot papers were counted on the name supersedes number basis.

Law on Illegal Practices at Counting

79.	Similarly, after referring to past judicial precedents in Michael Korry v Mogorema Sigo Wei & Electoral Commission (2015) N6050 and Delilah Gore v Jons Amuli & Electoral Commission (2013) N5562 to prove allegations of illegal practices at counting, counsel for the petitioner identifies instances of illegal practices at counting as follows:

(a)	the counting progressed at exclusion 32 in breach of or contrary to the Returning Officer’s decision to suspend counting at exclusion no 32 to attend a Provincial Election Steering Committee meeting,

(b)	the counting officials stopped the Returning Officer from removing the counted ballot papers from exclusion 32 and placing them in the disputed ballot box,

(c)	no quality checks at primary count and at exclusion counts were conducted, and 

(d)	250 ballot papers for candidate 19 were cross out and Dawa Lucas Dekena’s name was written on them and counted.

Breach of Returning Officer’s instruction to suspend counting at exclusion 32

80.	I accept the counsel for the petitioner’s submission at paragraph 66 of his written submissions that the pertinent question is “Did the actions of the counting officials in counting exclusion 32 despite the Returning Officer suspending the counting and without the Returning Officer’s presence amount to an illegal practice?”

80.	Relying on the National Court judgment of Michael Korry case (supra), the counsel for the petitioner submits that as it was held in that case that illegal practice was proved where a Corporal Witne intimidated and pressured an electoral official Jack Giano into fast counting of ballot papers to complete the final exclusion count of the Karamui-Nomane Open electorate in the absence of the Returning Officer, this Court should also find that the conduct of the counting officials to progress counting in breach of the Returning Officer’s instruction to suspend counting at exclusion 32 constitute an illegal practice.  The first respondent did not contest these submissions except to submit that the petitioner has failed to prove that this allegation while the second respondent submits that the allegation that the counting officials progressed counting at exclusion 32 in breach of the Returning Officer’s instruction to suspend counting is an error or omission.  

81.	While the petitioner does not cite the specific provision(s) of the Organic Law on Elections to form the legal basis for the conduct of counting officials to constitute an illegal practice, I generally agree with the petitioner’s counsel’s submissions because consistent with the decision in Michael Korry case (supra) the conduct of the counting officials constitute an illegal practice.  I also note the petitioner’s counsel’s submission at paragraph 6.9 of his written submissions that “……….it is logical to say that votes contained in exclusion 32 box (total ballot papers being 5,626) is greater than the margin of votes received by the Petitioner and the First Respondent.  As opposed to actions which are deemed errors or omissions, the deliberate count of the exclusion 32 ballot papers without the scrutiny conducted by the Returning Officer is in direct breach of Sections 159, 162 and 168 of the Organic Law.  In addition, the counting officials’ ignorance and defiance of the Returning Officer’s instructions is an illegal practice under sections 178(b) and 191 of the Organic Law.  Both these breaches attract the consequences of setting aside of the ballot papers containing votes of candidate Peter Kopil Garin who was to be eliminated in exclusion 32, conforming to section 215 of the Organic Law.”  

82.	However, I reject these submissions because as was also held in the above case, the petitioner must further establish that the result of the election is likely to be affected by the illegal practice under Section 215(3) of the Organic Law on Elections.  In the present case, it is not sufficient to throw at the hands of the Court the number of ballot papers contained in ballot box 32 and say that this is the number of ballot papers affected by the illegal practice of counting being progressed at exclusion 32 in breach of the Returning Officer’s instruction to suspend counting at the end of exclusion 31.   On the other hand, there must be eyewitnesses’ (scrutineers’) account that in the absence of the Returning Officer, the counting officials deliberately or on purpose, placed ballot papers for other candidates in the tray of the first respondent to increase the number votes for him or conversely, removed ballot papers for him to reduce the number of votes for him.  This ground is dismissed as not been proven.

The counting officials stopped the Returning Officer from removing the counted ballot papers from exclusion 32 and placing them in the disputed ballot box.

83.	The petitioner relies on the allegation that the counting officials stopped the Returning Officer from removing the counted ballot papers from exclusion 32 and placing them in the disputed ballot box to prove that the counting officials illegally allowed ballot papers from exclusion 32 to be counted.  While I  note Joe Muka’s account at paragraphs 13, 14 and 15 of his affidavit (exhibit “P10) that ballot box 35 containing ballot papers for the exclusion of Candidate 32 Peter Kopil Garin had no security locks and not sealed and that Masta Kolkia opened and poured the ballot papers on the sorting table and that he grabbed handful of ballot papers and walked over to the callers and asked for the runners to distribute the ballot papers to the remaining candidates’ trays while the Returning Officer was attending the meeting, this witness does not give the total number of ballot papers contained in the ballot box 35 for candidate 32.  Thus, there is no evidence of the number of ballot papers to support the petitioner’s counsel’s submissions at paragraph 6.9 of his written submissions that “……….it is logical to say that votes contained in exclusion 32 box (total ballot papers being 5,626) is greater than the margin of votes received by the Petitioner and the First Respondent. In addition, there must be eyewitness account to verify that the ballot papers collected by the Returning Officer were tampered with to justify their exclusion from being counted and a reliance on the Returning Officer’s absence is not sufficient.  Similarly, a reliance on an unlocked and unsealed ballot box is not sufficient ground to prove that ballot papers were tampered with and should be excluded from counting. This ground has not been proven and is dismissed.

No quality checks at primary count and at exclusion counts were conducted 

84.	It is common ground between the petitioner’s witnesses Janet Kawale’s account and the second respondent’s witness Joe Sine’s account that no quality check was done at the end of primary count but during each exclusion count as agreed by the candidates’ scrutineers.  I refer to Ms Kawale’s oral account that after the primary count, they expected quality checks to be done but there were no quality checks.  I also refer to paragraph 8a of the affidavit of Joe Sine (Exhibit “D22”) where he states that “The quality check of all ballot papers were (sic) made during the exclusive round process as per agreed by the candidates’ scrutineers”.  Meanwhile, the petitioner’s witness Gunua Kuman’s account is contradictory.  While he says that there were quality checks done, it was not consistent with the standard practice by the second respondent in past General elections and then he says that there were no quality checks at ech exclusion count.  I refer to paragraphs 39 – 42 of the affidavit of Gunua Kuman (exhibit “P11”).  Given the conflicting accounts by these witnesses, I am not satisfied that the petitioner has proved that there has been a breach of the requirement to conduct quality checks of ballot papers under Section 162 (Further scrutiny) of the Organic Law on Elections.  This ground is dismissed.

250 ballot papers for candidate 19 were cross out and Dawa Lucas Dekena’s name was written on them and counted

85.	I reject the petitioner’s ground on illegal practice described at [78(b)] (supra) because according to Section 139(3) of the Organic Law on Elections, “……if there is inconsistent between the two (identification number and name of the candidate in the ballot paper), as to who the voter intended to vote, the preference indicated by the name shall be accepted as valid and not the identification number.”  In the present case, the second respondent tendered a sample of a ballot paper which was marked as exhibit “D20”.  It displays three square boxes for a voter to place the candidate identification number in order of preference from one to three and a space beside each square box for the voter to write down the name of the candidates in order of preference consistent with the identification numbers in the square boxes.  The description of the ballot paper above is consistent with the prescription in Section 124 of the Organic Law on Elections which states: 

	“124.	Ballott-papers

(1)	Ballot-papers to be used in an election shall be in the prescribed form.

	(2)	A ballot-paper shall have: -

(a)	three spaces or boxes for a voter to indicate his preferences – 1, 2 and 3 – either by the prescribed candidate identification number or by candidate name; and
(b)	any other feature as the Electoral Commission determines is necessary to be included.

(3)	Regulations may make detailed provisions on the form, content and manner of use of ballot-papers and on any matters considered necessary.”	

86.	In terms of proof of breach of Section 124 (supra), unless there is an eyewitness’s (scrutineer’s) account that the name of the candidate on the space next to the square box was tampered with by crossing it out and writing the name of the first respondent on it, the ballot paper will be lawfully cast if no objection was taken to its admission into scrutiny at counting.  In the present case, there is inconsistent between the identification number and name of the candidate in the ballot papers which the petitioner’s witnesses Janet Kawale and others have referred to, but the Returning Officer correctly allowed them to be counted because the name of the first respondent took precedent over the identification number and that there is no eyewitness account that these ballot papers were tampered with.  This ground has not been proven and is dismissed.

Conclusion

87.	As the petitioner is not seeking as the primary relief, a declaration that the election of the first respondent is null and void and a by election for Gumine Open electorate be held, but a recount of ballot papers excluding the ballot papers from the four named polling venues be ordered and for the Court to declare the winner after the recount, the petitioner has failed to prove that it is just that a recount be ordered pursuant to Section 212 of the Organic Law on Elections. 

88.	Accordingly, the petition is dismissed with costs.

Order 

89.	The final terms of the order of the Court are:

1.	The petition is dismissed.

2.	The petitioner shall pay the first and second respondents’ costs of the petition, to be taxed, if not agreed.

3.	The security deposit of K5,000.00 shall be released by the Registrar of the National Court and paid to the respondents in equal shares.

4.	The Returning Officer for Gumine Open electorate Joe Sine and counting official Masta Kolkia are referred to the police for further investigation for perjury and attempting to pervert the course of justice pursuant to Section 121 and Section 136 of the Criminal Code respectively.

5.	Time shall be abridged.
________________________________________________________________
Lawyers for petitioner: McGregor & Associates Lawyers	
Lawyers for first respondent: Nicholas Tame Lawyers		
Lawyers for second respondent: Niugini Legal Practice