Unreported National Court Decisions
N855
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
M.P. 80 OF 1988
IN THE MATTER OF THE MOROBE PROVINCIAL GOVERNMENT
KENNEDY M. WENGE
PETITIONER
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
FIRST RESPONDENT
TIM BAFENU
SECOND RESPONDENT
Lae
Doherty AJ
29-30 January 1990
20 April 1990
PROVINCIAL ELECTIONS - change of voting schedules - right to vote within constituency - potential voters may have been turned away - s 196 Provincial Government Elections Regulations applied.
The petitioner was a candidate for the Nabak Constituency in the Morobe Province and he alleged that 100 potential voters were turned away by the presiding officer and denied their right to vote. There was conflict of evidence whether these potential voters were intending to vote in the Nabak or Bukawa Constituencies.
Held:
(1)      Section 94 Provincial Government Elections Regulations imposed bars a petitioner challenging an election on the grounds of failure to observe a polling schedule; the provision is mandatory.
(2)      Section 196 Provincial Government Elections Regulations imposed strict rule of evidence on a petitioner which must be complied with and this had not been complied with in this case.
Cases Cited:
Holloway v Avarato and Electoral Commissioner (Unreported Judgment.
Delba Biri v Bill Ninkama [1982] PNGLR 342
Anthony Michael Siaguru v David Rinagaui and the Electoral Commissioner (Unreported Judgment N641.
Counsel:
Mr Langtry, for the Petitioner
Mr Garo, for the 1st Respondent
The second Respondent in person
DOHERTY J:  This election petition was brought by Mr Kennedy Wenge, a losing candidate in the Morobe Provincial Government Election for the Nabak Constituency. The winning candidate, Mr Tim Bafenu, was a party to the proceedings and appeared in person.
The grounds of the petition evolve around the changing of the electoral schedule in the Nabak Constituency and events that followed from that change. Five “Acts or Omissions” by the Electoral officers were listed as grounds in the petition:-
(i)       According to the Polling schedule for Nabak Constituency issued by the Electoral Office in Lae prior to the commencement of the polling, it stipulated inter alia, that the polling for Samanzing and Biriman Villages should be at Samanzing on the 8th of June 1988 and Zitare Village on the 9th of June 1988. This schedule was distributed to all the candidates of Nabak Constituency and widely publicised within the said constituency. Prior to or during the polling no amendments was made to the schedule. (Sic)
(ii)      On the 7th of June 1988 at about 9.30 am the polling team arrived at Samanzing Village from Keman Village by helicopter and conducted the polling from 1.00 pm to 6.00 pm. Only few Samanzing people who were present at village site voted. Well over 40 eligible voters from Samanzing and 30 eligible voters from Biriman were in the garden, hunting and etc. who thought that the voting was to take place on the 8th of June did not come and vote. (Sic)
(iii)     On the 8th of June the polling team arrived at Zitare Village about 12.00 pm and conducted the polling from 2.00 pm to 6.00 pm. Only few people who were at village site voted but the majority about 30 people who were expecting the polling to be conducted on the 9th did not turn up and vote. (Sic)
(iv)     On the 11th of June 1988, as per the polling schedule the polling was at Hobu Station. Hobu Station is within Nabak Constituency. People from Samanzing, Zitare and Biriman villages came to Hobu Station and resided permanently or temporarily. At Hobu Station the scrutineers of the petitioner observed that there were more than 100 voters who were enrolled in Samanzing, Zitare and Biriman villages who came to vote but were merely turned away by Electoral Officers. The said officers told them that they were supposed to stay at the respective villages and vote. (Sic)
(v)      The petitioner is a community leader from Samanzing village and he is more popular and has close link with people from Zitare and Biriman villages which are close to Samanzing Village. It is therefore likely that he would get more voters from these area. (Sic)
The counsel for the Electoral Commissioner objected to the first three grounds on the basis of s 94 of the Provincial Government Elections Act (Ch No 56) which provides that:
“An election shall not be challenged on the ground of failure to observe a polling schedule or to comply with the provisions of s 92, or of a variation or a departure from a polling schedule.”
He applied to have the grounds struck out. After argument it was ruled that this was a mandatory provision stating that the change in schedule could not be challenged. Following Holloway v Avarato (National Court Judgment No N694) (in which it was held that the provisions of s 94 are mandatory and could not be the basis for a challenge to the election results was followed) and accordingly these three grounds were struck out.
This left grounds (iv) and (v) quoted above. Evidence was adduced by affidavit on the part of the petitioner and he gave evidence in person. He stated that the winning candidate, the second defendant, polled 357 votes and he polled 286. He also alleged that approximately 100 persons were unable to vote in the election because they came to Hobu Community School but were prevented from voting by an electoral official who told them “you come from Samanzing and you must stay in Samanzing to vote”.
He also says others were asked where they came from and if they replied Zitare, they were told they must go to Zitare to vote.
He said the reason that these people did not vote in Samanzing or Zitare was because of the change in schedule of the voting from the 8th to the 7th June; they were in their garden or in the bush and were not aware that the voting was taking place.
He alleged that the electoral officer was at fault in preventing them from voting on the 11th June.
The Petitioner had not been aware of the change in the polling session. There was a supporting affidavit from a potential voter, who stated that more than 100 people had travelled to Hobu to vote but were prevented from doing so on the 11th of June. Another affidavit, of Kumoro Taliong, deposes to a different polling place.
The voting schedule annexed to the Affidavit of Blasius Susapo, the returning officer, states dates and the voting constituencies and voting places in those constituencies for Morobe Province. These include Samanzing, Zitare and Biriman, which are shown to be in the Nabak Constituency and Hobu, which was also shown to be a polling place for the polling villages Karau, Tusuli in the Nabak Constituency. Hobu Community School is shown to be the polling place for the Bukawa Constituency and the polling villages to use Hobu Community School are Karau and Hobu. The polling schedule for the Bukawa Constituency at Hobu Community School is listed as the 1st of June 1988. The voting at Hobu for the Nabak Constituency is listed for the 11th of June 1988, it is listed for Samanzing on the 8th of June (as the plaintiff states) and Zitare on the 9th of June 1988.
Mr Susapo says that he was consulted on the 7th of June by the presiding officer, Winston Belapuna, about the polling schedule for Hobu on the 11th of June - (presumably the polling for the Nabak Constituency if the National Gazette is relied on) - and Mr Belapuna proposed to change the polling at Samanzing and Zitare to the 7th and 8th of June. He appears to have given himself very little time in which to re-arrange it.
In his cross examination the second respondent raised the issue of the voting at Hobu and asked if it was for Karau and Tusuli (that is the Nabak Constituency). The petitioner insisted that it was for the Nabak Constituency. The witness for the second defendant also said the voting was for Nabak Constituency. Any voting at Hobu for Kukawa Constituency should have taken place on the 1st of June so avoiding confusion between the two constituencies.
On behalf of the Electoral Commissioner the polling clerk referred to in the affidavits was called to give evidence. He was Gina Singing. He recalled the voting at Hobu on the 11th of June. He said he did not prevent the villagers from Samanzing, Zitare, Biriman or other laces from voting but he did prevent persons voting who were normally in the Bukawa Constituency. He particularly mentioned voters from Gobari and ex-serviceman from Gobari Plantation. Gobari is listed in the National Gazette G.44 as part of the Bukawa Constituency. He also confirmed that there was a separate voting for Bukawa prior to the voting for Nabak. There was no doubt in his mind that Samanzing and Zitare were in the Nabak Constituency, in fat he was able to recite all the Nabak Constituency polling places. He said the poeple of Biriman “must vote at Samanzing” but if people came from Biriman to vote at Hobu he would not send them back to Samanzing. When asked if he would permit them to vote, he said they did not come and he only had voting for Tusuli and Karau.
There is a clear conflict in the evidence here. The witness for the Electoral Commissioner makes it clear that he did turn away voters but says that these were potential voters for the Bukawa Constituency and none turned up claiming to vote in the Nabak Constituency and none turned up claiming to vote in the Nabak Constituency who he refused. The petitioner said some were from Nabak and were refused.
Clearly a voter must only vote in the constituency for which he has enrolled (s 108 Provincial Government Election Act (Ch No 56)).
Voting is for a constituency, it is not limited to a village within that constituency or to a polling place but a qualified voter cannot vote in a different constituency to the one he is enrolled to vote in or qualified to be enrolled for. This is provided for in s 109 of the Provincial Government Elections Regulations (Ch No 56) but s 109 of the National Regulations do not apply in Morobe Province as this provision of the Regulations is repealed by the Morobe Act and it is replaced by s 95A of the Morobe Province Elections Act [1979].
Section 95A of the (Morobe Provincial Elections Act [1979] of the Morobe Provincial Assembly) provides that:-
“(1)    The Returning Officer shall, on the day of nomination or as soon thereafter as is practicable, allocate each voter in a constituency to a particular polling place in that constituency and no voter shall be allowed to vote at a polling place other than the one to which he has been allocated under this section.
“(2)    The Returning Officer shall, take all reasonable steps to inform voters to which polling place they have been allocated under this section.”
Hence even if, as Mr Singing says, he would not have prevented voters for the Nabak Constituency voting at Hobu there would not be any legal basis for his decision. Polling places were allocated to voters in the list in National Gazette G.44 and a list of polling places was distributed to candidates and their scrutineers (according to evidence from Mr Wenge).
Counsel for the Electoral Commission refers to the petition that states: “People from Samanzing, Zitare and Biriman villages came to Hobu Station and reside permanently or temporarily”... and says that since they were residing at Hobu Station they were not qualified to vote in the Nabak Constituency election because they were residents of Hobu, which is within the Bukawa Constituency.
He refers also to all evidence in court concerning Biriman villager living at Karau and Tusuli in contrast to Biriman villagers who were supposed to vote at Samanzing and says this confirms some Biriman villages had complied with the requirements for residential qualifications to vote at Hobu. The petition does not appear to be based on a conflict about Biriman villagers who were resident in the Hobu area. It refers to villagers who missed voting at their own polling place because of changes in the schedule and who subsequently went to Hobu to vote there but were refused.
The regulations and provisions for voting are provided for in the National and Provincial Laws referred to above. The Provincial Government (Electoral Provisions) Regulation provides at s 196:
“On the trial of a petition the National Court shall not admit the evidence of a witness that he was not permitted to vote in an election during the hours of polling in the polling period unless the witness satisfies the Court:-
(a)      that he claimed to vote in the election under that provisions of this Regulation under which he was entitled or might be permitted to vote; and
(b)      that he complied with the requirements of this Regulation relating to voting by electors in so far as he was permitted to do so.”
This is not a regulation governing the holding of an election which could be open to challenge whether it was reasonably justifiable in a fair and democratic society under s 38 of the National Constitution; it is a regulation providing for the presentation of evidence in Court.
The distinction is not one of semantics. It protects the right of all citizens over voting age not to have their elected choice lightly interfered with by one individual viz a judge of the National Court. To quote with respect, the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 at 344:
“This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.”
There is no evidence from any individual voter that he was not permitted to vote in the election at Hobu on 11th June. There is evidence of Gwagi Asapes, a scrutineer, that he saw persons turned away but none from an individual that he himself tried to vote. The evidence of Kumoro Kaliong (not tendered by the petitioner but by the first respondent) makes no reference to his attempt to vote at Hobu.
There is no evidence that any voter (a) claimed to vote or (b) complied with the requirements. Without this evidence I cannot admit the evidence of the petitioner concerning these 100 potential votes. The provision is mandatory it is binding on this court.
Whilst I may have sympathy with the petitioner’s predicament, I find there is no (1) legal basis for the challenge because of s 95A of the Morobe Provincial Elections Act and (2) no evidence as provided in s 196 to permit this court to over-turn the election of the second respondent. In this latter ruling I follow the case of Delba Biri v Bill Ninkama [1983] PNGLR at 342 and Anthony Michael Siaguru v David Rinagui and the Electoral Commissioner (Unreported Judgment N641). An electoral petition must strictly comply with the statutory provisions of the law on elections.
Ground 5 of the petitioner’s petition follows from Ground 4 and does not state any error or omission on the part of the electoral officials. It states that the petitioner is more likely to win because he was more popular as a community leader.
In considering an election petition the court is not permitted to consider evidence of how the elector intended to vote in the election (s 195(2)) of the Provincial Elections Regulations (Ch No 56) by the Morobe Provincial Elections Act. Part of the reason for such a regulation could be summed up in an answer given by the petitioner himself in cross-examination when asked how did he know that these 100 people would vote for him, he said “how do any of us know what is inside someone else’s head”.
Accordingly I do not find any merit in this 5th Ground and I dismiss it.
I dismiss the petition and I award costs to the Electoral Commissioner, the first respondent. The second respondent represented himself and I do not award costs to him.
Lawyer for Petitioner: Mionzing & Associates
Lawyer for first Respondent: State Solicitor
second Respondent: In person