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Komiti v Trawen [2007] PGNC 109; N3250 (2 July 2007)

N3250

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 341 OF 2007 (EP)

BETWEEN:

PETER KOMITI
Plaintiff

AND:

ANDREW TRAWEN,
as the ELECTORAL COMMISSIONER
OF PAPUA NEW GUINEA
First Defendant

AND:

ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Defendant

Waigani: Injia, DCJ
2007: 28 June, 2 July

ELECTIONS – Declaratory orders sought that Updated Common Roll for Kompiam-Ambum Open Electorate should not be used in coming 2007 general elections - Claims of error in enrolment of electors in Updated Common Roll – Correction of enrolment of electors in Updated Common Roll – Onus on party alleging error to identify names of electors who are alleged to be erroneously entered – Electoral Commission’s power to alter entries in Updated Common Roll discussed – Action dismissed - Organic Law on National and Local Level Government Elections, ss. 47, 57(1), 62 and 176.

No cases cited.

Counsel:

P Tambili, for the Plaintiff
A. Kongri, for the Defendants

2 July, 2007

1. INJIA, DCJ: The plaintiff is a candidate for the Kompiam – Ambum Open Electorate (the electorate) in the 2007 general elections. By amended Originating Summons, he applies for orders, inter alia, that the defendants use the preliminary Common Roll and not the updated Common Roll, when conducting polling on 3 July 2007. This order is sought under s 176 of the Organic Law on National and Local Level Government Elections as amended (Organic Law). In the alternative, the difference between the total number of electors enrolled in the Preliminary Common Roll (PCR) and the Updated Common Roll (UCR) for six (6) polling place be removed from the UCR "as they have been unlawfully and incorrectly entered for enrolment". The polling places affected are Aiamates, Anditale, Aiyuletes, Paip, Waipukam and Winikos. This order is sought under s 65 of the Organic Law. The plaintiff also relies on the inherent power of this Court under s 155(4) of the Constitution.

2. The plaintiff relies on his affidavit sworn and filed on 21 June 2007 (Ex. A) and his supplementary affidavit sworn and filed on 26 July 2007 (Ex. B).

3. The defendants contest the application. They rely on the affidavit of the Returning Officer, Mr Luke Waiyon, sworn on 25 June and filed on 27 June 2007 (Ex. C) and affidavit of Enrolment Manager, Grace Badira, sworn and filed on 27 June 2007 (Ex. D). Mr Waiyon was cross-examined on his affidavit.

4. Prior to trial, the parties submitted a Statement of Agreed and Disputed Facts (Statement). The only disputed factual issue is whether there was an unlawful increase of 7,556 electors for the electorate from PCR to UCR. In the Statement, parties agreed that there was an increase of a total of 7,556 electors for the electorate. Out of this, a total of some 3,840 electors is in respect of the six polling places mentioned above. My finding on this disputed fact could determine the plaintiffs entire claim if I find that the increases were lawful. If I find that the increases were unlawful, the jurisdictional issues raised by the defendants as to whether this Court has jurisdiction to grant the relief or orders sought by the plaintiff would still remain to be determined.
   
5. Most of the evidence for both sides is not contested. From the uncontested evidence, I make undisputed findings of fact as follows. In the 2002 general elections, the Common Roll for this electorate had 74,130 registered electors. It became necessary for the Electoral Commission (EC) to update the Common Roll for this electorate for purpose of conducting the 2007 general elections. In August of 2005, EC sent out its officers or clerks to the electorate to enrol electors for purpose of compiling the Common Roll for the 2007 election. This was the beginning of phase 1 of the project. Enrolment forms were filled out by voters with or without the assistance of clerks who then returned the completed forms to the Returning Officer, Mr Waiyon. Mr Waiyon then forwarded the information to EC headquarters for entering in the enrolment register. Mr Waiyon was stationed at the provincial headquarters at Wabag and was not on site at Kompiam during this exercise. The area was too remote for him to travel so he relied on the clerks. He did not verify these completed forms. He relied on the clerks to verify the information. Out of these completed forms, the PCR was compiled. After phase 1, the total electors enrolled were 31,930. This figure was under one half of the 2002 Common Roll figure which was 74,130.
   

6. Phase 2 of the project commenced in March 2007. EC released the PCR to the Returning Officer. The EC sent out verification officers to the electorate to verify the names of electors registered on the PCR and to remove those electors who should not be on the Roll for one reason or another and add new electors who missed out in the first phase. This was completed and the verification reports and new enrolment forms were given to Mr Waiyon. For the same reasons Mr Waiyon gave above, he was still operating out of Wabag, he had not visited the site and he did not verify for himself the report sent to him by the verification clerks. He relied on the verification clerks to verify the information. He forwarded the information and new enrolment forms to EC headquarters which then used this information to compile the UCR. The UCR was released by EC sometimes towards the end of June 2007, some 3 (three) or so weeks before commencement of polling. The UCR will be used to conduct the 2007 election for this electorate.

7. The plaintiff relies on alleged breach of duties of the Returning Officer and EC prescribed by s.47, s.57(1) and s.62 of the Organic Law. Mr Tabili for the plaintiff submits that under these provisions, the Returning Officer is charged with the duty to enrol electors in the electorate that he is responsible for. These duties include verifying the names of electors claiming enrolment and where necessary make additions, alterations, corrections or remove names from the Common Roll. In the present case, he failed to discharge his duty by failing to supervise his officers on site and failed to personally verify the information given by the verification officers and simply passed on the information to EC headquarters. Therefore the Court should find that the UCR was done in breach of these provisions. It should be disregarded and the PCR should be used. Alternatively the 3,840 of the 7,655 electors for the six designated polling places should be removed from the UCR. There is no evidence of any resource development activities such as mining activities in the three months preceding the UCR which should see a sudden increase in population in the area to justify the increase of electors in this short period. The Court should infer that these electors were unlawfully enrolled on the UCR.

8. Mr Kongri submits the increase of 7,655 electors came about as a result of verification exercise carried out by verification clerks. There is no evidence to suggest that the verification clerks unlawfully increased the number of electors for the whole electorate by 7,655 electors by enrolling electors who were not entitled to be enrolled for that electorate or respective polling places. As for the six (6) polling places named in the amended originating summons, the total increases is less than this figure and there is no evidence that even in these polling places, the names of electors were unlawfully entered by verification clerks. The Court should find that the increases were proper and lawfully entered by verification officers.

9. Part V and Part VII of the Organic Law makes provision for enrolment of electors, updating of an existing Roll or preparation of a new Roll. The Returning Officer for an electorate plays a key role in compiling the Roll. The Returning Officer for an electorate is charged with the primary duty of ensuring the accuracy or correctness of enrolments entered by enrolment clerks or verification clerks for the particular electorate that he is charged with managing. He is given the power to correct mistakes or entries in a new Roll given to him by the EC.

10. Under these provisions, the entries of electors on the Roll may be checked, verified and changes made by the Returning Officer in two (2) main ways. First, he relies on the reports and information received from officers, clerks, verification clerks or enrolment agents and enrol electors or verify electors registered on an existing Roll. He uses this information to ensure the electors are properly enrolled or make the necessary corrections. The Returning Officer of course cannot do this work alone and he rightly relies on his clerks who perform that duty on his behalf on the ground. There is no requirement in these provisions that he must personally check or verify each completed enrolment form. As to what extent he relies on the officers on the ground to provide accurate information and the extent of his personal involvement in ensuring the correct voter information gets posted on the Roll is largely a matter of sound administrative judgment for him to make. It would not be proper for this Court to interfere with that judgment.

11. In the present case, Mr Waiyon relied on the information supplied by the Clerks in compiling the PCR and verification clerks in compiling the UCR. For the reasons given above, I find that he did not commit any breaches of the provisions relied upon in not personally double-checking or verifying the information supplied to him by his clerks or verification clerks.

12. The second way in which the Returning Officer may correct an entry of electors on the Roll is when an objection is made by an elector. A decision made by the Returning Officer on an objection can be appealed to the District Court. This is done under the elaborate procedure set out in Part VIII of the Organic Law. An elector who objects under Part VIII must do so in writing and identify the name(s) of the elector(s) and the Returning Officer’s determination is in respect of that identified elector(s). The Returning Officer may dismiss the objection or allow the objection in which case the name(s) is removed from the Roll. As this provision was not invoked by the plaintiff before the Returning Officer and also not invoked in these proceedings, it is not in issue in these proceedings.

13. In my opinion, the constitutional scheme under Part V and Part VII of the Organic Law including s.47, s.57(1), s.62 and s.65 relied upon by the plaintiff, is that the identification of name(s) of electors registered on the Roll is critically important. Mere figures or figures per se is not important or meaningless unless supported by evidence of names of electors who are alleged to have been wrongly enrolled on the roll. An enrolment form is prescribed for each voter to complete which is checked and verified by EC clerks before that name is registered on the Roll. In order to determine whether an elector was unlawfully registered, it is necessary to identify the elector by name. The Court also has to be provided names of electors and their respective enrolment forms, in order to determine the issue. As part of proving his case, the onus is on the plaintiff to require the EC to provide that evidence. Equally so, the plaintiff carries the primary evidentiary burden of providing names of electors who were wrongly registered on the Roll for reasons given.

14. In the present case, the plaintiff has not provided names of electors who were not entitled to be registered on the PCR or the UCR. Nor has he required EC to provide those names and copies of the completed enrolment forms. I appreciate the very little time given by the EC to the plaintiff to inspect the PCR and the UCR in order to properly prepare and litigate his claims in Court but that is not a proper ground for this Court to make a finding that the enrolment of those unidentified electors was wrongly or unlawfully done. For these reasons, I find that the defendants or their agents and servants lawfully registered some 7,655 electors on the UCR for the Kompiam-Ambum Electorate and more specifically, a total of 3,840 new electors for the six (6) above-named polling places in the UCR. Consequently, I dismiss the plaintiff’s action.

15. Having dismissed the plaintiff’s claim on this basis, it is not necessary for me to address the arguments as to jurisdiction.

16. Each party shall meet their own costs of the proceedings.
__________________________

Koneyal Lawyers: Lawyer for the Plaintiff
Nonggorr & Associates: Lawyers for the defendants