N11473
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EP NO. 75 OF 2022

BETWEEN
EMMANUEL LOMA PAMEA
 Petitioner

MAINA PANO
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
  
WAIGANI: MAKAIL J
3, 21 MARCH, 8 SEPTMBER 2025

ELECTION PETITION – Allegations of illegal practices at polling – Allegations of hijacking of ballot-boxes – Proof of – Tests to apply – Result likely to be affected – Total number of votes affected by illegal practices more than winning margin – Just that the candidate returned should not be declared duly returned – Real justice – Appropriate case –Constitution – Sections 50 & 126 – Organic Law on National and Local-level Government Elections – Sections 138, 191(14), 215(3) & 217 – Criminal Code – Section 110(1) 

Cases cited
Emmanuel Loma Pamea v Maino Pano & Electoral Commission (2024) N11118
Electoral Commission v Simon Solo (2015) SC1467
Alfred Manase v Don Pomb Polye (2009) N3718
Daniel Tulapi v Aiya James Lagea (2013) N5323
Simon Solo v Amkat Mai (2013) N5562
Dick Mune v Anderson Agiru (1998) SC590
Ken Fairweather v Jerry Singarok (2013) SC1279
Amet v Yama (2010) SC1064
Okuk v Nilkare [1983] PNGLR 28

Counsel
Ms C Copland for petitioner
Mr A Ninkama for first respondent
Mr P Kuman for second respondent 
 
JUDGMENT 

1.	MAKAIL J: This is the second election petition disputing the results of the 2022 General elections where I am presiding judge.  The other is Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission: EP No 80 of 2022 for the Gumine Open electorate.

2.	The first respondent was the successful candidate and is the current Member of Parliament representing the Kagua-Erave Open electorate.  At the conclusion of polling and counting, the first respondent polled 27,819 votes whilst the petitioner was the runner-up polling 18,713 votes.  The absolute majority required to win was therefore 23,266 votes.  The winning margin was 4,550 votes.

3.	The petitioner seeks the following relief:

(a)	The petition be upheld in its entirety pursuant to Section 121(1)(i) of the Organic Law on Elections.

(b)	A declaration that the election for Kagua-Erave Open Electorate is absolutely void pursuant to Section 212(1)(h) of the Organic Law on Elections.

(c)	A declaration that the first respondent was not duly elected as the member for Kagua Erave Open electorate pursuant to Section 212(f) of the Organic Law on Elections.

(d)	Consequently, an order that a by-election be conducted for Kagua-Erave Open electorate.

(e)	An order for the refund of K5,000.00 paid into the National Court Trust Account as security deposit by the petitioner.

(f)	An order for costs in favour of the petitioner against the first and second respondents.
Objection to Competency 

4.	In its ruling on objection to competency, the Court ruled that:

(a)	Grounds on illegal practices at polling (hijacking and stuffing of ballot-boxes and abandoning of ballot-boxes) are competent and will proceed to trial.

(b)	Ground on errors or omissions at polling (second respondent’s failure to provide adequate security at polling) and Ground on errors or omissions at counting (second respondent’s failure to exclude ballot-boxes from scrutiny under Section 153A of the Organic Law on Elections) are incompetent and dismissed.

Summary of Allegations of Fact

5.	The full details of the allegations from paragraphs 6 to 56 of the petition are reproduced at [41] of the Court’s ruling on objection to competency: Emmanuel Loma Pamea v Maino Pano & Electoral Commission (2024) N11118.  

6.	The hijacking and illegal marking of ballot boxes for Kopere Ward, Pobu Worok 1 Ward, Pawais 2 (Pawabi) Ward and Menagirigi Ward totalling 2,338 electors missing out on voting are summarised at [55] of the ruling on objection to competency.

7.	The hijacking and stuffing of ballot boxes for 17 polling locations totalling 10,556 electors did not cast their votes are summarised at [56] of the ruling on objection to competency.	

8.	The four ballot boxes from Aboda Ward, Ibia Ward, Puti Ward and Usa Ward where votes were cast legally, were abandoned at Kagua Police Station affecting 2,495 votes are summarised at [58] of the ruling on objection to competency.

Hijacking and illegal marking of ballot boxes for Beriwai Ward, Keba Ward, Sirigi Ward and Saposa Ward 

9.	The Court notes that the petitioner did not tender evidence and make submissions in relation to this ground and the first respondent submits that it be dismissed because no evidence has been tendered to prove the allegation.  I uphold the first respondent’s submissions for the reason he has given and dismiss this ground forthwith. 
Hijacking and stuffing of ballot boxes for 17 polling locations 

10.	The petitioner relies on the act of hijacking ballot-boxes as being an offence under Section 191(14) of the Organic Law on Elections and the act of stuffing the ballot-boxes as an offence under Section 110(1) of the Criminal Code.  Section 110(1) states:

“A person who places, or is privy to placing, in a ballot-box a ballot-papers that has not been lawfully handed to and marked by an elector is guilty of a crime.”

11.	There is no contest between the parties and there will be a finding that ballot boxes for 17 polling locations were hijacked and stuffed with ballot papers not marked by electors.  The 17 ballot boxes for these polling locations are:

	(a)	Iamorubi
	(b)	Kopere	
	(c)	Erave Station
	(d)	Koyari
	(e)	Tiabili 
	(f)	Kerabi
	(g)	Menagiri
	(h)	Marorogo
	(i)	Waro
	(j)	Besaboru 1
	(k)	Besaboru 2
	(l)	Pawabi 1
	(m)	Pawabi 2
	(n)	Sau
	(o)	Pobu Worok 1
	(p)	Pobu Worok 2
	(q)	Nias/Somere Sawmill

12.	These 17 ballot boxes were excluded from counting by the Returning Officer because they were hijacked and contained ballot papers that were not marked by electors.  As to who was responsible for the hijacking and stuffing of the ballot box with illegally marked ballot papers, there is eyewitness account by Vincent Roy in his affidavit (exhibit 28) and supported by Seth Painaki (exhibit 34) and Albert Wens Heleve (exhibit 36) that Topa Mata and his supporters hijacked these ballot boxes and ballot papers were marked by people who were not electors and stuffed into these ballot boxes. 

13.	The respondents did not cross-examine Vincent Roy in relation to his account on the hijacking and stuffing of these ballot boxes for the 17 Wards for Erave LLG and his account is unchallenged.  His account is further corroborated by the Assistant Returning Officer for Erave LLG Seth Painaki in his letter to the Provincial Manager of Southern Highlands Province dated 14 July 2022 which may be found in exhibit 6 where this witness describes how these ballot boxes were hijacked by Topa Mata and his supporters.  This letter did not include the last page of the letter which included the list of 17 ballot papers and the polling wards under the heading “Wards Affected by Hijacking/Tempering (sic)”.  When Seth Painaki gave an oral account for the petitioner, he said that the letter from him to the Provincial Election Manager included the last page which contained the list of 15 ballot boxes (exhibit 32).  

14.	The petitioner further tendered a letter from the Returning Officer for Kagua-Erave Open electorate Albert Wens Heleve to the Electoral Commissioner dated 25 July 2022 which corroborates Seth Painaki’s report of hijacking of 17 ballot boxes from Erave LLG (exhibit 7). 

15.	Furthermore, the petitioner summoned Seith Painaki, and he gave an oral account corroborating the account that ballot boxes for the 17 polling wards were hijacked and stuffed with illegally marked ballot papers by Topa Mata and his supporters.  In addition, Form 66A1 which was tendered and marked exhibit 7 showed that the first preference counts of all the ballot boxes do not include the 17 ballot boxes from Erave LLG.  Form 66A1 further shows that these ballot boxes were excluded from counting.

16.	The defence witnesses’ account does not differ significantly from the petitioner’s witnesses’ account because according to the first respondent, he produced a joint objection addressed to the Returning Officer dated 22 July 2022 in exhibit 33.  At page 1 of the joint objection, it reads:

“We, the Open Candidates of Kagua Erave Electorate rely in facts provided by the Assistant Returning Officer, Mr Seth Painaki (Find as Attachment A) for the Erave Local Level Government to object to the admission of the 17 hijacked ballot boxes into the Counting Centre for counting.”   

17.	At page 2 of the joint objection the 17 ballot boxes for the 17 polling wards are listed including the total electors from the named polling wards.

18.	The first respondent was called and in addition to the tender of his affidavit which was marked as exhibit 33, he gave an oral account that he signed the joint objection on the understanding that the issue of the hijacking of the 17 ballot boxes would not be taken up by any candidate in the petition.  When cross-examined, he agreed that he did not give this account in his affidavit and that the joint objection does not state the same.  He was only informed by his scrutineers that 17 ballot boxes were hijacked.

19.	As to the second respondent, it tendered an affidavit by the Returning Officer which was marked as exhibit 36 where the Returning Officer gave an account that he excluded the 17 ballot boxes based on a report from the Assistant Returning Officer for Erave LLG and annexes a copy of the candidates’ protest to exclude the 17 ballot boxes.  When cross-examined by counsel for the first respondent the Returning Officer said that he received the joint objection from one of his officers but was not aware that the purpose of the joint objection was for the candidates not to take up any objection to the hijacked ballot boxes in an election petition.

20.	Finally, it tendered an affidavit by the Assistant Returning Officer Seth Painaki which was marked as exhibit 34.  The content of his letter marked as exhibit 32 is replicated in exhibit 34 where the Returning Officer gave an eyewitness account in relation to the hijacking of the 17 ballot boxes and that there was no polling.

21.	Based on these witnesses’ accounts, it will be the Court’s finding that Topa Mata and his supporters hijacked these ballot boxes and ballot papers were marked by people who were not electors and stuffed into these ballot boxes. In addition, the 17 ballot boxes were excluded from counting by the Returning Officer on the ground that they were hijacked and contained ballot papers that were not marked by electors.  The total number of ballot papers contained in these ballot boxes is 11,097.

22.	Based on these findings, I uphold the petitioner’s submissions that it is an illegal practice pursuant to Section 191(14) of the Organic Law on Elections to unlawfully destroy, take, open or otherwise interfere with ballot boxes or ballot papers.  It is also an illegal practice pursuant to Section 110(1) of the Criminal Code to stuff a ballot box with ballot papers not marked by electors.

Four ballot boxes from Aboda Ward, Ibia Ward, Puti Ward and Usa Ward where votes were cast legally, were abandoned at Kagua Police Station 

23.	There is uncontested account from the presiding officer Tonny Bara for Aboda Ward (exhibit 31) that there was polling at Aboda Ward on 12 July 2022.  A total of 1,500 ballots cast for Aboda Ward.  Similarly, there is uncontested account from the presiding officer Benjamin Randa for Ibia Ward (exhibit 29) that there was polling at Ibia Ward on 12 July 2022.  A total of 964 ballots cast for Ibia Ward.  There is also uncontested account from Tonny Bara and Benjamin Randa that after polling the ballot boxes for Aboda Ward and Ibia Ward were transported to Kagua police station and kept there for safekeeping before being transported to Mendi for counting.  

24.	However, there is uncontested account from the polling clerk for Wasuma Ward one Fidelis Kundi in his affidavit (exhibit 30) that on 14 July 2022 at Kagua police station, supporters of candidate Wesley Raminai demanded four ballot boxes from the petitioner’s place to be destroyed.  However, I am not satisfied that his account that a motor vehicle which he describes as a white land cruiser bearing registration LBI 168 and believed belonged to the first respondent blocked the main entrance to the police station.  This account is vague and is insufficient to find that the first respondent or his supporters were engaged in illegal activity.  Meanwhile, the Returning Officer Albert Wens and Assistant Returning Officer Ox Oga and a police officer Jonah Kosen removed four ballot boxes and left them on the ground outside the police station and drove off with the rest of the ballot boxes to Mendi.  After they left, the supporters of Wesley Raminai broke open the ballot boxes and set fire to the ballot papers.  

25.	The Assistant Returning Officer Ox Oga Rorepa was summoned and gave an account that the ballot boxes that were destroyed at Kagua police station were for Aboda, Usa, Puto and Ibia Wards.  They were hijacked and destroyed by supporters of candidates Wesley Raminai, Timothy Irinaya, Markus Kamali and Moris Wapa.  These four candidates were present at that time.  Further, Form 66A1 (exhibit 2) corroborates this witness’s account because it shows no ballot boxes for Aboda Ward and Ibia Ward were admitted to scrutiny.

 26.	Based on these witnesses’ accounts, it will be the Court’s finding that there was polling at Aboda Ward on 12 July 2022.  A total of 1,500 ballots cast for Aboda Ward.  Similarly, there was polling at Ibia Ward on 12 July 2022.  A total of 964 ballots cast for Ibia Ward.  After polling the ballot boxes for Aboda Ward and Ibia Ward were transported to Kagua police station and kept there for safekeeping before transporting to Mendi for counting.  

27.	However, on 14 July 2022 at Kagua police station, supporters of candidate Wesley Raminai demanded four ballot boxes from the petitioner’s place to be destroyed.  The Returning Officer Albert Wens and Assistant Returning Officer Ox Oga Rorepa and a police officer Jonah Kosen removed four ballot boxes and left them on the ground outside the police station and drove off with the rest of the ballot boxes to Mendi.  After they left, the supporters of Wesley Raminai broke open the ballot boxes and set fire to the ballot papers.  

28.	The Assistant Returning Officer Ox Oga Rorepa was summoned and gave an account that the ballot boxes that were destroyed at Kagua police station were for Aboda, Usa, Puto and Ibia Wards.  They were hijacked and destroyed by supporters of candidates Wesley Raminai, Timothy Irinaya, Markus Kamali and Moris Wapa.  These four candidates were present at that time.  Further, Form 66A1 (exhibit 2) corroborates this witness’s account because it shows no ballot boxes for Aboda Ward and Ibia Ward were admitted to scrutiny.

Application of Law

29.	The counsel for the parties made extensive submissions in relation to how Section 215(3)(b)&(c) of the Organic Law on Elections should be applied to the facts of this case.  Section 215(3) is summarised as follows; the National Court shall not declare a person returned as elected was not duly elected or declare an election void, on a ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority or 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 is just that the candidate should be declared not to be dully elected or that the election should be declared void.  

30.	The petitioner submits that from the four ballot boxes for Usa, Aboda, Ibia and Puti a total of 2,480 ballot papers (votes) were not counted.  Similarly, for the 17 ballot boxes for the 17 polling wards, a total of 11,097 ballot papers were not counted.  The total number of ballot papers not counted from these polling wards is 13,577.  This is the number of ballot papers affected by the illegal practice.  This is the number which represents the number of electors who missed out on casting the ballot.

31.	Based on the number of 13, 577 ballot papers and given that the winning margin is 4, 550 votes, the petitioner submits that the result was likely to be affected.  Accordingly, it is just and equitable that the first respondent as the person returned as elected be declared as not duly elected or that the election be declared void.  He reinforces this submission by relying on Section 217 of the Organic Law on Elections and the authorities of Electoral Commission v Simon Solo (2015) SC1467, Alfred Manase v Don Pomb Polye (2009) N3718, Daniel Tulapi v Aiya James Lagea (2013) N5323 and Simon Solo v Amkat Mai (2013) N5562.

32.	The respondents each and severally countered the petitioner’s submission by submitting that on a proper construction of Section 215(3) of the Organic Law on Elections it places the onus of proof on a petitioner to also prove that the illegal practice was committed by the successful candidate or if it was by another person, that it was with the knowledge or authority of the successful candidate.  For this proposition, they invited the Court to adopt the view expressed by the Supreme Court in Dick Mune v Anderson Agiru (1998) SC590 and Ken Fairweather v Jerry Singarok (2013) SC1279 as opposed to Amet v Yama (2010) SC1064.

33.	The first respondent submit that the illegal practice constituting the breach of Section 110 of the Criminal Code and like all criminal offences place the onus on the petitioner to show by evidence that the “Electoral Criminal Offence” was committed by the first respondent or with this knowledge or authority.  Furthermore, that the result was likely to be affected and it is just that he should not be declared not to be duly elected.  In this case the evidence tendered by the petitioner failed to show that the petitioner has satisfied these tests.

34.	Moreover, it is not just that the first respondent should be declared not to be duly elected or that the election should declared void when he did not commit the illegal practices or had knowledge or authorised the commission of these illegal practices.  As the Court (Andrew J) held in Okuk v Nilkare [1983] PNGLR 28:

“It seems to me that some relevant factors in considering what is just in the circumstances are that the respondent clearly obtained the will of the majority and that it would be wrong that he should be penalized for Mr Mori’s behaviour in all of the circumstances, especially where that behaviour is less heinous than say bribery or undue influence.  In my opinion, it would be unjust if the respondent was declared not to be duly elected or that the election should be declared void under this ground.”	
35.	The first respondent invited the Court to find that it would not be just to find against him because the joint objection signed by some of the candidates including the petitioner and him to exclude the 17 ballot boxes from being admitted into scrutiny operates as a bar against the petitioner and the petitioner should not complain about the result just because it has not gone his way.

36.	Finally, the first respondent submits that as can be seen from his conduct, he is a completely innocent party to the illegal actions of candidate Topa Mata and the Court should accept that his election represented the voice of majority of the people of the electorate and in all fairness, the petitioner has failed to prove that it is just that his election should be declared void.  On the other hand, the evidence points to Topa Mata and his supporters as the perpetrators of the illegal practices and the appropriate relief for the Court to grant is for Topa Mata and his supporters to be referred to the police for further investigation and prosecution for the illegal practices.  

37.	I note that the Supreme Court in Dick Mune v Anderson Agiru (1998) SC590 and Ken Fairweather v Jerry Singarok (2013) SC1279 have read Section 215 of the Organic Law on Elections to mean that where the allegation is one of bribery or attempted bribery or undue influence or attempted bribery, it is necessary for a petitioner to prove that it was committed by the successful candidate or with his knowledge or authority.  On the other hand, the Supreme Court in Amet v Yama (2010) SC1064 appeared to add to the tests of proof of the successful candidate being the actual perpetrator or offence being committed with his knowledge or authority, that the result was likely to be affected and that it is just that the successful candidate should be declared not to be duly elected or that the election should be declared void.  

38.	It is abundantly clear to me that the first respondent relies on the tests that the illegal practices were not committed by the first respondent or with his knowledge or authority.  Based on the Court’s finding above, the petition would fail because the illegal practices were committed by another candidate, being Topa Mata and his supporters and not the first respondent or his supporters with his knowledge or authority.  However, there is doubt if these tests applied in this case because the allegations in this case are not based on bribery, attempted bribery, undue influence, or attempted undue influence. They are based on illegal practices.   

39.	As to the tests in relation to whether the result was likely to be affected and that it is just that the successful candidate should be declared not to be duly elected or that the election should be declared void, in relation to the question of whether the result was likely to be affected, there is strong submissions by the second respondent that the result was not likely to be affected because the voting population of the electorate is 90,142.  The first respondent won with 27,816 votes.  The petitioner was runner-up with 18,713 votes.  The absolute majority was 23, 266 votes.  The winning margin was 4,550 votes.  However, apart from the second respondent not pointing me to the evidence/material to verify its submission that the total voting population of the electorate was 90,142 and the absolute majority was 23,266 votes, I accept the petitioner’s submission that the winning margin is relevant to determine whether the election result was likely to be affected.  Similarly, there is strong submissions by the first respondent in relation to the question of whether it is just that the successful candidate should be declared not to be duly elected or that the election should be declared void.  

40.	It is also abundantly clear to me from my reading of Andrew J’s judgment in Okuk v Nilkare (supra) that it is distinguishable from the present case.  First, the illegal practice was in relation to one of the candidates being Mr Mori nominating to contest the election when he was underage. In the present case, the illegal practices consisted of hijacking of ballot boxes and stuffing them with illegally marked ballot papers and burning of ballot papers.  Secondly, it was considered a less serious type of an illegal practice as opposed to present case where ballot boxes were hijacked and stuffed with illegally marked ballot papers and burning of ballot papers.  In my view, the type of illegal practice found in Okuk v Nilkare (supra) explains why the trial judge formed the view that it would not be just that the successful candidate should be declared not to be duly elected or that the election should be declared void, especially where the successful candidate played no part in the illegal practice.  

41.	On the other hand, in my view, the facts of this case as found above elevates this case to the same level as the National Court case of Simon Solo v Amkat Mai and reinforced by the Supreme Court in Electoral Commission v Simon Solo (supra).  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”.  

42.	Significantly, the petitioner has invited me to apply Section 217 of the Organic Law on Elections to do real justice to the case where significant number of electors in Erave LLG were deprived of the right to vote.  I uphold this submission.  I consider that this is an appropriate case I will apply Section 217 (supra) to do justice in the circumstances.  As the National Court (Injia CJ) in Daniel Tulapi v Aiya James Lagea (supra) observed “Section 217 requires the Court to focus in the substantive and important issues in the case and determine the merits of those issues without pre-occupying itself with procedural issues such as whether the evidence conforms strictly to the pleadings.”   I also agree with his Honour statement and will apply it in this case that “In performing that task, whilst s 217 empowers the Court to apply an objective standard in reaching reasonable conclusions, the Court is also required to apply a subjective standard according to his (own) conceptions of equity and good conscience, common sense and its perception of what is reasonable, fair, conscionable, good and right…….”

43.	It may be the petitioner signed the joint objection in good faith that the 17 ballot boxes should not be admitted to scrutiny and following that these ballot boxes were excluded from being admitted to scrutiny and in addition, that the candidates may have agreed not to dispute the exclusion of these ballot boxes in an election petition, but that would be tantamount to legitimizing an illegal act which the Court should not approve.  The Court is the guardian of the law and protector of man must always uphold the law regardless of the personal circumstances of the parties to attain justice.  

44.	In this case, the law under Section 50 and Section 126 of the Constitution and Section 138 of the Organic Law on Elections provide for the electors to vote by secret ballot a candidate of their own choice.  The electors of the 17 polling awards were not given this opportunity. According to the notice published in the National Gazette, as exhibit 8, there are 113 polling wards in the Kagua-Erave Open electorate.  Out of this, 11 of them missed out on polling.  

45.	There is no doubt in my mind that the hijacking of ballot boxes and illegal marking of the ballot papers destined for 17 polling wards in the Erave LLG by Topa Mata and his supporters was an illegal practice on a grand scale because electors of the 17 polling wards were deprived of the right to vote a candidate of their choice under Section 50 of the Constitution. Their illegal conduct also deprived electors of their right to cast a vote by secret ballot under Section 138 of the Organic Law on Elections.  Section 138 states:

	“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.”

46.	The stakes are too high because this is not a case where electors of one or two polling wards have missed out on voting.  On the contrary, it is quite difficult to ignore the number of electors who missed out on voting.  The electors of 17 polling wards missed out on voting.  I have referred to Section 50 of the Constitution and Section 138 of the Organic Law on Elections to reinforce the point that where electors are deprived from freely exercising their right to vote by the hijacking of ballot boxes and illegal marking of ballot papers of the kind presented in this case, it would be difficult to ignore the complaint by the petitioner that the election was compromised. 

47.	For Aboda Ward and Ibia Ward, there is no counter veiling evidence that polling was not conducted, and it will be the Court’s findings that polling was conducted in these polling wards.  The ballot papers in the ballot boxes for these wards did not reach the counting centre for scrutiny because they were set on fire at Kagua police station.  The electors cast ballots totalling 2,464 were not counted.  Again, the electors’ choice of candidates was not counted. 

48.	Moreover, it baffles me that given the clear evidence of the election being compromised right at the very beginning at polling and further reinforced by the Returning Officer of the electorate’s report of the hijacking of ballot boxes and illegal marking of ballot papers for 17 polling wards, the second respondent ignored or on purpose, chose not to exercise his power to declare the election of the electorate as failed and advising the Head of State to issue a new writ for a supplementary election pursuant to Section 97 of the Organic Law on Elections.

49.	This is where applying the objective standard in reaching a reasonable conclusion which Injia CJ speaks of in the Daniel Tulapi case (supra), a judge will not standby and allow an illegal practice of such grand scale to go unattended.  Similarly, as the presiding judge, applying a subjective view to the facts of the case as found, it would be contrary to “equity and good conscience, common sense, and ……perception of what is reasonable, fair, conscionable, good and right…..” to turn a blind eye so to speak and allow such corrupt and illegal practice to prevail:  Daniel Tulapi case (supra).  Ultimately, I am of the view that a strong message of deterrence, hope and peace must be sent to the people of the electorate by this judgment not to repeat such illegal activities in future elections.

Conclusion

50.	In conclusion, I am satisfied that the total number of votes affected by the illegal practices is 13,561, representing 11,097 votes from the 17 hijacked ballot boxes and 2,464 votes from 2 ballot boxes set on fire at Kagua police station as the winning margin was 4,550 votes.  The total number of votes affected was more than the winning margin.  I am further satisfied that the result of the election was likely to be affected.  In my view, this is a case that fits the test under Section 215(3) that in addition to the result of the election was likely to be affected, it is just that the election should be declared void. 

51.	Finally, based on the Court finding above, there will be an order that Topa Mata and his supporters as the perpetrators of the illegal practices be referred to the police for further investigation and prosecution for hijacking and stuffing of ballot boxes with illegally marked ballot papers pursuant to Section 110(1) of the Criminal Code and Section 191(14) of the Organic Law on Elections.

Order

52.	The orders are:

1.	The petition be upheld pursuant to Section 212(1)(i) of the Organic Law on National and Local-level Government Elections.

2.	A declaration that the election for Kagua-Erave Open Electorate is absolutely void pursuant to Section 212(1)(h) of the Organic Law on National and Local-level Government Elections.

3.	Consequently, an order that a by-election be conducted for Kagua-Erave Open electorate pursuant to Section 212(3) of the Organic Law on National and Local-level Government Elections.

4.	The candidate Topa Mata and any of his supporters engaged in the illegal practices are referred to the police for further investigation and prosecution for hijacking and stuffing of ballot boxes with illegally marked ballot papers pursuant to Section 110(1) of the Criminal Code and Section 191(14) of the Organic Law on National and Local-level Government Elections.

5.	An order for the refund of K5,000.00 paid into the National Court Trust Account as security deposit by the petitioner.

6.	An order for costs in favour of the petitioner against the first and second respondents, to be taxed, if not agreed.

7.	Time shall be abridged.

________________________________________________________________
Lawyers for petitioner: 			Simpsons Lawyers 	
Lawyers for first respondent: 		Adam Ninkama Lawyers		
Lawyers for second respondent: 	Kuman Lawyers