Unreported National Court Decisions
N1679
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 23 OF 1997
IN THE MATTER OF THE ELECTION PETITION FOR THE LUFA OPEN ELECTORATE
BETWEEN: KOMANE ASANO WASEGE
PETITIONER
AND: MATHIAS KARANI
FIRST RESPONDENT
Goroka
Sawong J
18-19 February 1998
ELECTION PETITION - application to disallow witnesses who were alleged to be electors and who were alleged to have been bribed to give evidence as their names are not on the Common Roll - S 131, 132, 133 and 134 Organic Law on National and Local Level Government Elections.
Counsel
R. Leo, for the Petitioner/Respondent
P. Paraka with A B Baniyamai, for the 1st Respondent 
19 February 1998
RULING
SAWONG J: This is a petition disputing the validity of the Election for the Lufa Open Electorate in the Eastern Highlands Province. After a pre-trial conference, the National Court sitting as a court of Disputed Returns, ordered that grounds 2, 3, 4, 5 and 6 of the petition proceed to trial. This was made on 30 September 1997. Thereafter, on 13 October 1997, His Honour Sakora J gave directions. Specifically he made the following orders:
1.       That the petition be adjourned to 17.10.97 for a trial, and
2.       That each of the parties were to file and serve their respective affidavits within 7 days before the trial, and
3.       The Electoral Commission provide to the Petitioner and the Respondent the 1997 Common Roll for the Lufa Open Electorate within 7 days.
It appears that the matter did not proceed to trial on 17 October 1997 and on 8th December 1997, the matter was fixed for trial in Goroka for 3 days commencing on 18 February 1998.
When the matter was mentioned yesterday, Mr Paraka informed the court that there were two preliminary issues that needed to be resolved before the matter proceed to a trial proper.
The first issue was raised in a Notice of Motion filed by the First Respondent/Applicant. The Notice of Motion is dated and filed 30 January 1998.
The second issue was in relation to some affidavits which had been signed but not yet filed, on behalf of the petitioner. Mr Paraka indicated that he would object to those affidavits going into court as the petitioner had not compiled with the orders by the court made on 13 October 1997. Mr Leo, counsel for the petitioner opposes both applications. 
Turning now to the first issue, the respondent/applicant in his Notice of Motion sought two declaratory orders. The first is that some forty three (43) peoples whose names appear in the remaining grounds of the petition are ineligible to give evidence. The second declaratory order was that only one person was eligible to give evidence.
The applicant relies on the affidavit of Mr Baniyamai sworn and filed on 30 January 1998, and the provisions of S 131, to 134 inclusive of the Organic 
Law on National and Local Level Government Elections. (OLNE). Sections 131 to 134 of the OLNE read as follows:
“131.   ELECTIONS AT WHICH ELECTORS ARE ENTITLED TO VOTE
1.       Subject to Division 3, an elector shall only be admitted to vote for the election of a member for the electorate for which he is enrolled.
2.       A person:
(a)      whose name is on a Roll for an electorate; and 
(b)      who has, at some time after his name was entered on the Roll and before the issue of the writ for that electorate, qualified for enrolment in another electorate, is not qualified to vote in the first-mentioned electorate.
3.       For the purpose of this section, the Rolls in force at the time of the election are, subject to Subsection (2), evidence of the right to each person so enrolled to vote at an election, unless he shows by his answer to a question prescribed by Section 134 that he is not entitled to vote.
132.    WHERE ELECTORS MAY VOTE
1.       An elector is entitled to vote at any prescribed polling place for the electorate for which he is enrolled while that polling place is open.
2.       Nothing in this section authorizes an elector to vote more than once at an election.
133.    PERSONS CLAIMING TO VOTE TO GIVE NAME AND OTHER PARTICULARS
A person claiming to vote at a polling booth shall:
(a)      state his full name or names; and
(b)      if so desired by the presiding officer for the purpose of identifying the name under which the vote is claimed, give any other particulars necessary to be stated in the Roll or to enable him to be identified in the Roll.
134.    QUESTIONS TO BE PUT TO VOTER
1.       Subject to this Law, the presiding officer:
(a)      may, and at the request of a scrutineer shall, put to a person claiming to vote the following questions:
(i)       “Have you already voted either here or elsewhere in this election (or these elections, as the case requires)?; and
(ii)      “Did you reside within this electorate for a period of more than six months before your claim for enrolment?”; and 
(iii)     “Are you at least 18 years of age?”; and
(iv)     “Are you a citizen of Papua New Guinea?”; and
(v)      “Are you qualified to vote?”; and 
(b)      may, and at the request of a scrutineer shall, also put to any person claiming to vote, whose name appears on the certified list of voters the following question:
“Are you the person whose name appears as (here state name) on the certified list of voters for this electorate?”.
2.       If a person claiming to vote to whom any of the questions specified in Subsection (1) are put:
(a)      refuse to answer fully a question so put to him; and 
(b)      does not answer the question prescribed in Subsection (1)(a)(i) absolutely in the negative, if so put to him; or
(c)      does not answer the question prescribed in Subsection (1)(a)(ii) absolutely in the affirmative when put to him; or 
(d)      does not answer a question specified in Subsection (1)(a)(iii), (iv), (v) or (b) absolutely in the affirmative when put to him,
is claim to vote shall be rejected unless he is a candidate for election or that electorate.
3.       The voter’s answer to a question put to him by the presiding officer under this section is conclusive, and the matter shall and the matter shall not, subject to this section, be further inquired into during the polling.”
All these sections are set out in Part XIII - “The Polling” of the OLNE. Turning now to each of the sections and without attempting to examine each of them in any great detail, each of these provisions are quite clear.
S. 131 (1) is subject to Division 3 of Part XIII. Division 3 is head “Special Provisions in Certain Cases”. The sections which fall in Division 3 are Ss 141 to 144 inclusive of the OLNE. It is not necessary, in my view to examine the provisions of Ss. 141 to 144 inclusive for the present purposes, because they are not relevant nor applicable.
Having said that, it is quite clear upon a plain reading of S. 131 (1) that subject to the qualifications set out in Division 3, an elector shall only be admitted to vote for the election of a member for the electorate for which he is enrolled.
Section 132 of OLNE reinforces S 131. It is quite clear to that the scheme of these provisions is that, subject to certain exceptions, a person cannot vote unless he or she is enrolled in the roll for that particular electorate.
The term “elector” is defined to mean a person whose name appears on a Roll as an elector. And a “Roll” is defined as an Electoral Roll under the OLNE.  (See S. 3 of OLNE)
In my view, the legal position is that, and subject to Division 3, a person cannot vote unless he or she has enrolled for that particular electorate. 
Mr Paraka submits, relying on the uncontested affidavit evidence of Mr Baniyamai, that except for one person, none of the persons named as electors and as having been bribed and whose names appear in the body of the petition are eligible to give evidence because their names were not on the roll for Lufa Open Electorate. 
Mr Paraka submitted that the names of the persons whose names appear in the grounds of the petition are not on the roll. Consequently they could not have voted nor bribed. He further submitted there was no contrary evidence from the petitioner to what has been deposed by Mr Baniyamai.
Mr Baniyamai deposes in his affidavit that he examine the roll for this particular electorate. He deposes that having done so, he could not find the names of the persons set out in grounds 2, and 3 of the petition registered in the roll for this electorate under the village of Kositaru. His evidence is similar in nature in relation to names of persons set out in the other grounds of the petition.
Mr Leo submitted that if the court looked at the body of the petition, it would be obvious that the allegation in the petition is quite different. The allegations are that the named person were given money or bribed at a certain village on a certain date; the allegation was not that those named people came from that particular village. 
As I understood his submission, he says that the evidence from Mr Baniyamai is that he (Baniyamai) examine the names of the persons against the named village and he was unable to find the names of those persons in that named village. Take for instance the allegations in Grounds 2 & 3. Mr Baniyamai says he examined the roll and found that the eight people named in those grounds do not have their names registered in the Common Roll for this electorate under Kositaru Village. No where in Baniyamai’s evidence is there a suggestion that the names of those people do not appear at all in the Common Roll for Lufa Open, although their names may not be in the Common Roll under Kositaru Village.
Mr Leo then made some submissions about his own examination of the Common Roll and he stated from the bar table that the persons named in the petition are in the Common Roll.
Alternatively he submitted, he had evidence (which evidence was not before me) that those persons had in fact voted and that the court should deem that their names were infact in the Common Roll which enable them to vote.
It is quite trite that submissions amounting to giving evidence from the bar table cannot be accepted as evidence at all. It follows that I cannot accept what Mr Leo has said in relation to his examination of the common roll nor about the deeming effect of someone voting. 
It is quite evident that counsel for the petitioner was served with the affidavit of Mr Baniyamai. Further he had the common roll and examined it. Having done so, he could have easily drafted and filed an answering affidavit. That would have made things a much more easier. As it is he has not done that. He then attempts to give evidence from the bar table about what he saw when he examined the common roll. I cannot accept evidence given from the bar table. It would be quite improper to do so.
The end result is that there is simply no contradicting evidence from the petitioner. Whilst I accept that the names of the persons said to have been bribed may be in the common roll for Lufa Open, I have no evidence to support such a proposition.
Furthermore, whilst I note that the pleadings state that the alleged bribery took place at a certain village on a certain day, the allegations is that those persons do not necessarily come from or reside in that particular village, once again I have no evidence to contradict the evidence that has been put before the court.
In a nutshell, the submissions come down to this. The respondents says that the persons whose names appear in the remaining grounds of the petition (namely grounds 2, 3, 4, 5 & 6) are not eligible to give evidence of having been bribed etc, because their names are not stated under the name of the village set out in the petition. Alternatively he says their names do not appear in the common roll at all.
The petitioner’s counsel says from the bar table that he has examined the common roll, and his examination shows that the names of those people indeed appear in the common roll.
The law as to an enquiry into the correctness or otherwise of a common roll is prescribe by S. 214 of OLNE. Section 214 reads:
“214.   INQUIRIES BY COURT
The National Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll.”
It is quite clear that the Court is prohibited by S. 214 from making any enquiry into the correctness of a common roll of a particular electorate.
In these circumstances, I cannot enquire into correctness of the roll by examining the common roll because the court is prohibited from doing so by S. 214 of the OLNE.
In all these circumstances, I must uphold the application and grant the Orders sought in the Notice of Motion.
In regard to the second issue, I consider that non compliance with a court order or a direction is a serious matter for many reasons. One such reason which comes to mind readily is that such a conduct (ie disobedience of Court Order or direction) is tantamount to disrespect of the Court.
In a case like this, ie an election petition, it is imperative that the directions and orders of the court be adhered to promptly and in an appropriate manner so that petition can be disposed of fairly and speedily. This is so because of the very nature of election petitions.
Having said that, it is not patently clear as to whether the affidavits which have been prepared but not filed as at the time of the hearing of these issues, have been sworn by those person whose names appear on the body of the petition as having been bribed or not. If the affidavits are by those person, then my ruling on the first issue would affect them. The effect would be that those affidavits would become irrelevant and would serve no purpose.
On the other hand if the affidavits are from some other independent witness, then those affidavits may well become relevant.
It follows that the affidavits of those persons whom I have ruled as ineligible to give evidence ought not to be allowed in. In so far as the remaining ones are concerned, if any, in the circumstances, I would be prepared to grant an adjournment so that the First Respondent is given an opportunity to reply to those
The formal Orders of this Court are:
1.       I declare that the persons whose names appear in paragraph 1 of the Notice of Motion are not eligible to give evidence.
2.       I declare that the only person eligible to give evidence is NUIA BAVAKO.
3.       In the circumstances, costs must follow the event.
Lawyers for the Applicant/First Respondent: Paraka Lawyers
Lawyers for the Petitioner: Pato Lawyers