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Aimo v Anisi [2012] PGNC 182; N4870 (28 November 2012)

N4870
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
E.P. NO. 01 OF 2012


In the Matter of the Organic Law on National and Local-level Government Elections for Ambunti-Dreikikir Open


BETWEEN:


TONY WATERUPU AIMO
Petitioner


AND:


EZEKIEL ANISI
First Respondent


AND:


ANDREW TRAWEN
CHIEF ELECTORAL COMMISSIONER OF
PAPUA NEW GUINEA

Second Respondent


AND:


THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA

Third Respondent
Waigani: Kawi J

2012: 23rd & 24th October
28th November


NATIONAL GENERAL ELECTIONS-disputed election results- Organic Law on National and Local Level Government elections- Challenge to the validity of an election-Petition filed- allegation by petitioner that first respondent was not registered as a voter on the common roll for the electorate - Further allegations that first Respondent was under the eligibility age of 25 years or older pursuant to Constitution section 103(1) - Both allegation were proved – Court declared that first Respondent did not enroll and register as a voter in the common roll of his electorate - First Respondent used a different name to enroll and vote in the elections- Court found from the Office of Registrar General conclusive evidence of the birth of the first respondent.


EVIDENCE - Tampering of evidence- Dates of birth of first respondent concocted and tampered with - Circumstantial Evidence - rational and use of logical inferences to be drawn- Tampering of evidence commenced at the Office of Registrar General- Section 212(1)(g) of the Organic Law- Power of the National Court to declare a candidate duly elected who was not returned as elected.


Facts


The Petitioner filed an election petition in which he disputes and challenges the election win of the first respondent as the new member elect for the Ambunti-Dreikikir Open Seat. The Petitioner relied on two grounds to nullify the election win of the first respondent as the member elect for the Ambunti-Dreikikir Open Seat. The two grounds alleged that: (a) The first Respondent did not enroll in the common roll of his electorate and therefore not entitled to vote. (b) The first respondent was below the eligibility age of 25 years. By operation of section 103(1) of the Constitution his election win should be negated and declared null and void.


HELD:


(1) Giving Constitution s103(1) a fair and liberal interpretation, a Member of Parliament, must be 25 years or older. Even a Candidate who seeks to nominate and stand for elections in a particular electorate must not be under 25 years of age. This is a mandatory Age requirement set by Parliament itself. It is mandatory that the member must be twenty five years and above and not below 25 years. Twenty five years old is a mandatory cutoff date set by Parliament itself. It requires only mature Citizens who have a better understanding of issues to enter Parliament. If you want to gain entry into the National Parliament you must understand that Parliament is not a small cubby house for small boys. That is why Parliament itself prescribed an age limit at 25 years or older for entry into the Parliament. Section 103 of the Constitution states Qualifications for and disqualifications from membership. Section 103(1) provides that a Member of the Parliament must not be less than 25 years of age.


(2) Section 50 of the Constitution provides for a person's right to vote and stand for public office however it is trite law now that that right is subject to the qualifications or must be read together with Section 103. In other words if a person is of voting age and had the right to vote and stand for public elective office that right however is regulated by Section 103.


(3)When a person's age or qualification to stand for Parliament is disputed his / her Birth Certificate may be obtained from the Civil Registry office for verification purposes. Section 21 of the Civil Registration Act sets out the process for requesting and obtaining of a birth certificate. Section 22 of the same Act provides that an official copy is for all purposes evidence of the facts stated in it and that the facts are duly registered in the register to which it relates. It is in other words conclusive evidence of the date of birth.


(4) Section 4(2)of the Civil Registration Act provides that all courts, Judges and persons acting judicially shall take judicial notice of –


(a) the signature of a person who holds or has held an office of Registrar; and
(b) the fact that that person holds or has held that office; and
(c) the seal of the Registrar.

(5) When a person's age or qualification to stand for Parliament is disputed his / her Birth Certificate may be obtained from the Civil Registry office to verify his birth. Section 21 of the Civil Registration Act sets out the process for requesting and obtaining of a birth certificate. Section 22 of the same Act provides that an official copy is for all purposes evidence of the facts stated in it and that the facts are duly registered in the register to which it relates. A certificate of Birth Entry giving details of a persons's birth is conclusive evidence of matters stated therein.


(6) It is crystal clear, that if you have a different name on the Electoral Roll you cannot vote or stand for Parliament in another name or using another person's name. In this case Mr. Anisi claimed that he was registered and voted under the name of Anisi siki Mahite and given the voter identification no. He voted using that name and voter identification. The name Anisi Siki Mahite did not appear under the Common Roll of Waringame village. Neither was it registered as Mr. Anisi's second or alternative name. Accordingly the court found that Mr Ezekiel Anisi was never registered as a vote in the common Roll of Ambunti- Dreikikir electorate. The election was declared a nullity as he had no name and was not enrolled in the common Roll of his electorate.


(7)The word "candidate" as used in section 212(1)(g) of the Organic Law on National and Local Level Government Elections, means a person who has properly nominated for election, has been accepted and who stands for election. SC REV 5 of 1988: Application of Melchior Kasap and Application of Peter Yama [1988-1989) PNGLR197 adopted and applied.


(8) Section 63 of the Evidence Act empowers the court having seen a person may determine his age. It states:


"In any proceedings, if the Court does not consider that, there is evidence or sufficient evidence to determine the age of a person the Court having seen the person, may itself determine the question"


(9) In this case I will not utilize my powers under Section 63. In my view, the Court can utilize its powers under Section 63 of the Evidence Act only if it does not have evidence or sufficient evidence to determine the age of a person. Where there is some evidence the Court must do the best it can to estimate the age or determine the age of the person without reference to section 63. In this case, there are already two conflicting ages being given with supporting documentation from the Registrar General's Office. I consider that there is sufficient evidence available to determine the question of age.


(10) Section 212(1)(g) of the Organic Law on National and Local Level Government Elections is in my view very clear and unambiguous in its terms. In a proper case, the National Court has the power to declare a candidate the winner although he or she may not have been a party to proceedings before the court. The Power given by s212(1)(g)is not dependent on whether a person is before the court. The Supreme Court in the Kasap and Yama case has stated that it is self evident from reading the provision that the power may be exercised if evidence shows another candidate should have been declared the winner. The question of locus standi in my view does not arise in the present petition. Section 212(1)(g)very clearly entitles the Court to declare a candidate not elected the winner. Consequently Mr. Tony Waterupu Aimo is declared pursuant to section 212(1)(g) as duly elected and he was not returned previously during the elections.


(11)Section 217 of the Organic Law on National and Local level Government Elections states that the courts should decide each election petition by observing real justice. In my view this provision directs the courts to use the values of good conscience and substantial merits of each petition as its guiding factor when dealing with and deciding upon election petitions.


Cases Cited


Polye v. Papaki [1999] PGSC 36
Daniel Don Kapi v. Takai Kapi SC 548
SC 5 of 1988: Application for Review by Melchior Kasap.
SC Review No 6 of 1988: Application by Peter Yama
These two Reviews are collectively referred to as SC REV No. 5 of 1988 [1988-1989] PNGLR 197.
The State-v-James Yali (2005) N3014


Counsel


Mr. Tony Waisi, for the Petitioner
Mr. MS Wagambie, for the first Respondent
Mr.J. Umbu, for the Second and third Respondents


DECISION


28th November, 2012


1. KAWI J: By this election petition, Tony Waterupu Aimo ( The Petitioner) disputes and challenges the election win of the first Respondent Mr. Ezekiel Anisi as the member elect for the Ambunti – Dreikikir Open Seat in the East Sepik Province during the 2012 National General Elections.


  1. BACKGROUND
  2. Mr. Anisi's election win is now being hotly disputed and challenged by Mr. Aimo who was the runner up to Mr. Anisi when the election results were declared. Mr. Anisi was declared the winner with 8141 votes ahead of the former member, Mr. Tony Aimo who managed to poll only 6634 votes, a difference of 1507 votes. Mr. Anisi was declared as the new member for Ambunti-Dreikikir Open at the Ambunti Government Station on the 17th of July 2012. Mr. Aimo was the former member for Ambunti-Dreikikir Open from 2007 to 2012. He was the Minister for Correctional Services.

3. The Petitioner disputes the election of the First Respondent and on 26th July 2012, filed the Petition pursuant to Section 206 of the Organic Law on National and Local-level Government Elections.


  1. GROUNDS RELIED ON BY THE PETITIONER

4. In this election petition, Mr. Aimo cites and relies upon two grounds on the basis of which he seeks to annul and have the election of Mr. Anisi declared null and void. The two grounds relied upon are:


  1. Firstly the petitioner says that Mr. Anisi is not eligible to stand for elective public office, as he is under the eligibility age of 25 years or older. It is argued that by the due process of law, section 103 (1) of thee Constitution, Mr. Anisi's win as the Member elect for Ambunti- Dreikikir Open was rendered nugatory due to his young age.
  2. The second ground relied upon alleges that although Mr. Anisi is from Waringame Village, he did not enroll in the Common Roll of his Electorate to entitle him to casts his vote in the elections.

In this petition, I will address ground 2 first before I deliver my verdict on ground 1.
Ground 2.


Name not Enrolled on Common Roll


5. The petitioner argued that the first respondent simply did not enroll as a voter or a candidate in the common roll of the Ambunti- Dreikikir Electorate and therefore not entitled to vote in the General elections for his electorate. He referred to the common Roll for Waringame village and argued that the first respondents name could not be found there. Similarly his name could not be located in the common roll of Luwaite village either. But despite these clear omissions, he was allowed to vote, in the 2012 General Elections, by the Electoral Commission.


6. In the case of Polye v. Papaki [1999] PGSC 36, the Supreme Court stressed that if you have one name on electoral roll you cannot vote or stand for Parliament in another.


7. In Daniel Don Kapi v. Takai Kapi SC 548, the name Takai Kapi was not on the common roll although Takai Kapi claimed his name may have been "Tarak Joeri" although it was in evidence that, that name was for a female voter. Although the trial Judge made no ruling as to whether, "Tarak Joeri" was Takai Kapi, the trial Judge did find that the Respondent's name (Takai Kapi) was not on the Common Roll.


8. In the case of Daniel Don Kapi -v- Takai Kapi and the Electoral Commission, the first respondent was not enrolled on the Common Roll for the Wabag Open electorate at all. In other words, he was not enrolled as a voter at all. Therefore, it was clear that he could not stand as a candidate. The first respondent, argued that, a registered voter by the name of Tarak Jeori was him, but that was rejected because that was a name of a female voter.


9. In Jimson Sauk Papaki v Don Pomb Pullie Polye (supra), it was the same. The name Don Pomb Pullie Polye was not enrolled on the Common Roll for the Kandep Open electorate at all. The name Don Pela of Giva Rest House, which the trial judge found was the same person as Don Pomb Pullie Polye was quashed by the Supreme Court saying, the name Don Pom Pullie Polye was not on the Common Roll for the electorate, therefore he could not qualify to contest the national elections.


10. I accept that the name Siki Anisi Mahite appeared in the Common Roll of Luwaite village, it showed that person was born in 1983 and his occupation was a student. I find that it cannot be Ezekiel Anisi as Ezekiel Anisi was born on 1st of September 1988.Siki Anisi Mahite could be anyone in Luwaite village and not necessarily Ezekiel Anisi, as he deceitfully claimed to be.


11. I am left to conclude that the first respondent did not enroll in the common roll of Waringame village or Luwaite village. Ground 1 relied upon by the petitioner is therefore upheld. I declare that the first respondent did not enroll in the common roll of Ambunti- Dreikikir Open either in his Waringame village or Luwaite village. In my view he cannot claim to be Siki Anisi Mahite. Both the Electoral Commission and the first Respondent should bear the responsibility for creating this mess. Also the Electoral Commission should address and clarify the question of what is the Common Roll? Is it a list of names provided by the Electoral Commission? Or is it the List of names provided by the relevant Village recorders or Local Level Government?


GROUND NO.2 : BEING ELECTED WHILE UNDER THE AGE OF 25 YEARS OLD CONSTITUTION SECTION 103(1).


12. Mr Aimo relies on Constitution Section 103(1) to annul the election win of Mr Anisi as member elect for Ambunti-Dreikikir, Open Electorate. Section 103(1) of the Constitution prescribes the electoral qualifications which an intending Candidate must fulfill to be declared the winner.


13. Section 103(1) of the Constitution which prescribes the electoral qualifications is stated in these terms.


SECTION 103 QUALIFICATIONS FOR AND DISQUALIFICATION FROM MEMBERSHIP.


(1) A member of Parliament must be not less than 25 years of age.

(2) A candidate for election to Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1000.00.

(3) A person is not qualified to be, or to remain, a member of Parliament if-

14. Giving Constitution section 103(1) a fair and liberal interpretation, a Member of Parliament, must be 25 years or older. Even a Candidate who seeks to nominate and stand for elections in a particular electorate must not be under 25 years of age. It is mandatory that the member must be twenty five years and above and not below 25 years. Twenty five years old is a mandatory cutoff date set by Parliament itself. It requires only mature persons who have a better understanding to enter Parliament. If you want to gain entry into the National Parliament you must understand that Parliament is not a small cubby house for small boys. That is why Parliament itself prescribed an age limit at 25 years or older for entry into the Parliament.


15. When a person's age or qualification to stand for Parliament is disputed his / her Birth Certificate may be obtained from the Civil Registry office for verification purposes. Section 21 of the Civil Registration Act sets out the process for requesting and obtaining of a birth certificate. Section 22 of the same Act provides that an official copy is for all purposes evidence of the facts stated in it and that the facts are duly registered in the register to which it relates. Or in other words it is conclusive evidence.
Section 4(2)of the Civil Registration Act provides that all courts, Judges and persons acting judicially shall take judicial notice of –


(d) the signature of a person who holds or has held an office of Registrar; and
(e) the fact that that person holds or has held that office; and
(f) the seal of the Registrar.

16. The Evidence Act Section 57 provides for Certificates relating to births, deaths and marriages. A certificate relating to birth, marriage or death of any person in –


(a) in the country
(b) ......................
(c) ......................
(d) ......................

if it purports to be issued by the officer authorized by the law of the place concerned is evidence of the matters stated ...................


17. When a person's age or qualification to stand for Parliament is disputed his / her Birth Certificate may be obtained from the Civil Registry office for verification purposes. Section 21 of the Civil Registration Act sets out the process for requesting and obtaining of a birth certificate. Section 22 of the same Act provides that an official copy is for all purposes evidence of the facts stated in it and that the facts are duly registered in the register to which it relates. Or in other words it is conclusive evidence.


18. It is therefore a matter of the Court, in this case, to determine who is telling the truth with respect to the birth certificates.

19. Mr Aimo produced a Certificate of Birth Entry from the Office of Registrar General which entered Mr Anisi's Date of Birth as being the 1st of September, 1988. These records show clearly that Mr Anisi's parents were school teachers. His mother, Ms Salome Andekumo is a School Teacher, and his father Mr Alexander Anisi is also a School Teacher. Their son Ezekiel Anisi was conceived and born to them while they were teachers in the primary school in the Western Highlands Province. He was born on the 1st of September 1988 at the Kudjip Nazarene Hospital. Going by the information provided by Mr Aimo, one would have to come to the inevitable conclusion that Mr Anisi's age is way below the legal age limit of 25 years. His election win rendered null and void and a nugatory by virtue of section 103(1) of the Constitution.


20. In support of his claim, to show that Mr. Anisi is under 25 years old, Mr Aimo called Mr. Kema Vegala, the Momase Regional Co-ordinator for Births, Deaths and Marriages in the Office of the Registrar General. Mr. Vegala gave sworn evidence that according to the Birth Entry Certificate, Mr. Ezekiel Anisi was born to Salome Andekumo and Alexander Anisi at Kudjip Nazarene Hospital on the 1st of September 1988. He gave further evidence that Mr. Aimo had written a letter addressed to the Registrar General requesting assistance to release information concerning Mr Ezekiel Anisi's birth as well as that of his brother Eugene's birth. This information was requested so that the information on both births can be compared and verified. Mr. Kema Vegala as the man responsible for the Momase Region released the information requested. This included Ezekiel Anisi as well as Eugene Anisi's birth details. Mr. Vegala gave further evidence that after he had already released the information to the petitioner, then the office file containing the birth information for Ezekiel and Eugene Anisi went missing and could not be located for some time. Mr. Vegala confirmed that he received the letter from petitioner's lawyer on 16th August 2012 complaining of discrepancy on the First respondent's birth certificate with the date showing 1986 on it instead of 1988.This prompted him to take a look at the First Respondent's file (Volume No. 276) and First Respondent's brother's file (Volume No. 1919) and personally went through them but to his surprise noticed that the 'birth information' was missing and so he replied to the Petitioner's lawyer in his letter dated 17th August 2012 stating same.


21. The First Respondent's second born brother, namely EUGENE ANISI was born on 22nd September 1986 at Wam Village, Wewak, East Sepik Province. A brother before Eugene Anisi has demised. The First Respondent is a third born. Certificate of Birth Entry No. 479619 of Eugene Anisi was annexed.


22. Furthermore The Petitioner annexes his lawyer's letter dated 16th August 2012 to Momase Regional Coordinator (Civil Registry) Mr Kema Taina Vegala seeking his explanation and verification as to why the First Respondent's birth certificate annexed to his Affidavit filed on 10th August 2012 revealed he was born on 1st September 1986? And not 1988 as shown on the original and first certificate obtained by the Petitioner on 20th July 2012.


23. Mr Vegala confirmed receiving the letter from petitioner's lawyer on 16th August 2012 complaining of this discrepancy on the First respondent's birth certificate with the date showing 1986 on it instead of 1988. He personally took out the First Respondent's file (Volume No. 276) and First Respondent's brother's file (Volume No. 1919) and personally went through them but noticed that the 'birth information' was missing and so he replied to the Petitioner's lawyer in his letter dated 17th August 2012 stating same.


24. The other person called by the petitioner was Mr. Greg Kapanombo. He is the Director of the Measurement Services Branch of the Education Department. The Measurement Services Unit is responsible for and deals with collating assessments, examinations and certification of all grade 8,10 and 12 students throughout Papua New Guinea. He gave Oral evidence to supplement his affidavit evidence to show that Mr. Ezekiel Anisi was 17 years old when he sat for his Grade 10 examinations in the year 2005.Drawing rational inferences Ezekiel would be 23 going 24 years old come 2012 General Elections. This reasoning process would support the conclusion desired by Mr. Aimo. When cross examined Mr. Kapanombo stated that the information he released is public and not restricted information and as the Director he could release the information to anyone who desires them including prospective employers.


25. This conclusion on Ezekiel Anisi's age is consistent with him being born in 1988.In this regard it is also worth noting that the Pre-enrollment Forms submitted by Mr. Anisi at the time he enrolled as a student at the Institute of Business Studies at Six Mile in Port Moresby he personally wrote and declared his date of birth as being 1st of September 1988 on the column indicating date of birth.


RESPONDENT'S CASE


26. The first respondent deposed to an affidavit in support of his own case.
He was called and he gave sworn evidence. He was cross examined on his evidence. He gave clear evidence he was born to Alexander Anisi and Salome Andekumo on the 1st of September 1986. Both parents were teachers, teaching in Primary Schools in the Western Highlands Province then. Going by his nominated date of birth, he would be above the cut-off date of disqualification. He would be 26 years old. Indeed Mr Anisi produced the original copy of Extract of Birth Entry to verify this age of disqualification. Responding to Mr Aimo's allegation that he may have falsified his brother, Eugene's date of birth, he produced both his own original and his brother's birth Entry to show that his brother Eugene Anisi was born on the 22nd of September 1984, while Ezekiel was born on the 1st of September 1986. Mr Anisi also produced other supporting affidavits both from his mother, grandparents, and other people who know him well and who may have something to do with his birth and schooling. After completion of his evidence, his counsel advised the Court that he was not calling other evidence. I enquired with him as to the status of all these affidavits. After hearing from counsel for the Petitioner, I admitted all the respondent's affidavits into evidence except the one sworn by the Director of the Office of Registrar General, Mr Augustus Wagambio. Mr Wagambio had deposed to information which had left many interesting gaps out which the Court had wanted to know. Since he could not make himself available, when required by the Court for cross-examination, which in the circumstances, I concluded that he conveniently absented himself from the office. The Court ordered that his affidavit evidence be removed from the evidence. The rest of the affidavit evidence were tendered and admitted into evidence by consent. The only issue is the weight to be given to these evidentiary materials and information they contain. The respondent's mother Salome Andekumo deposed to an affidavit in which she clearly stated that she gave birth to her third born son Ezekiel Anisi on the 1st of September 1986. The grandparents deposed to further affidavits in which they supported their daughter's claim that she gave birth to Ezekiel Anisi on the 1st of September 1986. In the normal turn of events, I would have accepted the mother's evidence about the birthday of her son as consider that being the mother she would be the best person to testify as to his birth.


COURT'S ASSESSMENT AND ANALYSIS


27. I have carefully assessed and viewed the evidence of both parties. I have also viewed and listened to the counsels as they spoke to their submissions. I will rely on both Oral as well as documentary evidence to come to a conclusion in this case. I will also rely on circumstantial evidence to draw reasonable and logical inferences from the circumstances where appropriate.


28. Both parties gave evidence of two different dates as the date of birth, the petitioner says the first Respondent's date of birth is the 1st of September 1988, while the first Respondent supported by his biological mother says he was born on the 1st of September 1986. Whom do I believe? If the assertion of fact by the first respondent as to his date of birth is correct, then the biological mother should have produced clinical notes, clinic booklet and other medical notes from the Kudjip Nazarene Hospital to verify her allegations of her son's date of birth in 1986. As mother she is expected to keep this information in her possession. She could not produce any of such information.


29. The Petitioner in his affidavit sworn 10th August 2012 annexed a photocopy of Eugene Anisi's Certificate of Birth Entry which clearly shows that Eugene Anisi was born at Wam village on the 1st of September 1986. During submissions Mr Wagambie stressed that Eugene Anisi was born in 1984 and Ezekiel was born on the 1st September 1986. He quoted a judicial statement made by Cannings J in The State-v-James Yali (2005) N3014 where Cannings J made this comment:


"As to Helen Daniels evidence, I accept Mr Miviri's submissions that she as the complainant's mother, would reasonably be expected to be the person best placed to say when the complainant was born."


30. At best I would treat this statement as a rebuttable presumption. This statement would not hold if the contrary is proven to exist. Mr Wagambie further relied on section 63 of the Evidence Act to urge the Court to form its own opinion about the age of person upon seeing such a person. Section 63 is stated in the following terms:


"In any proceedings, if the Court does not consider that, there is evidence or sufficient evidence to determine the age of a person the Court having seen the person, may itself determine the question"


31. In this case I will not utilize my powers under Section 63. In my view, the Court can utilize its powers under Section 63 of the Evidence Act only if it does not have evidence or sufficient evidence to determine the age of a person. Where there is some evidence the Court must do the best it can to estimate the age or determine the age of the person without reference to section 63. In this case, there are already two conflicting ages being given with supporting documentation from the Registrar General's Office.


32. In his evidence both oral and in his sworn affidavit, the petitioner Mr Aimo stated the first Respondent Mr Anisi was born on the 1st of September 1988.Mr Anisi changed his date of birth to the 1st September 1986. The original certificate obtained by Mr Aimo on the 20th of July 2012 showed Mr Ezekiel Anisi's date of birth as 1st of September 1988. Mr Anisi further annexed to his affidavit dated 10th August 2012 as annexure "A" a photocopy of Eugene Anisi's Certificate of Birth Entry which shows the date of birth of Eugene Anisi as the 22nd September 1986. In submissions their counsel Mr Wagambie submitted that Ezekiel was born on the 1st of September 1986 while Eugene was born in 1984. Mr Aimo asserts further and submits that there has been a tampering of evidence after he was given photocopies of the correct birth entries for Ezekiel and Eugene Anisi.


33. Ezekiel and Eugene's Certificate of Birth Entries; going by Mr Aimo's argument I find that the most practical reasoning process to follow is that after giving birth to Ezekiel the third born son on the 1st September 1986, the mother Salome Andekumo then travelled with her new born baby son all the way to Wewak then onto Ambunti and onto Wam village and gave birth to her third born son on the 21st September 1986. In my view this is the most illogical, bizarre, irrational and nonsensical story ever told. To get around such conclusions from being reached the most logical thing to do in the circumstances was to manufacture and concoct evidence. While there is no direct evidence on this aspect I consider that here is sufficient circumstantial evidence on the basis of which I can draw such logical inferences to support my propositions of someone tampering with evidence. And I find that there was a lot of tampering of key evidence in this case. I find that:


Then on the 13th of August 2012, Mr Aimo went back to the Registrar General's Office to enquire about Eugene Anisi's birth. The information provided to him suggested that Eugene Anisi was born on the 22nd of September 1986 at Wam village to Salome Andekumo and Alexander Anisi.


It is worth noting that it is the case of these two brothers that the dates have remained unchanged. The only thing changed was the years of birth. For Eugene the year was changed from 1986 to 1984. This was done conveniently to cater for Ezekiel, whose year of birth was changed from 1988 to 1986. All this was done conveniently to falsify his age to reflect his age to be consistent with or commensurate with or to be on par with the minimum age requirement prescribed by Section 103(1) of the Constitution. The falsity and evil motive here is to show his new age so that Ezekiel Anisi is above the age of 25 years old. The birth certificates of Eugene and Ezekiel Anisi and the information they contain provided to the petitioner from Registrar General's office contained information which had not been interfered and tampered with. Drawing logical inferences I conclude the following:


  1. When did the falsification take place? The petitioner Mr Tony Aimo in his affidavit deposed to on the 13th August 2012 deposes that "the file did grow legs and conveniently went missing. In my view it is not difficult to draw a inference that the file went missing in the office of the Registrar General. It went missing after the uncle of the first respondent carried out the file search of this file at the Registrar General's Office. The first Respondent was in Milne Bay for talks leading to the formation of the new Government. The deceitful falsification and changes in birth entries were engineered with the full knowledge and possibly with the deliberate assistance of some-one high in rank in the Office of Registrar General.
  2. Kema Vegala the Momase Regional co-ordinator for births, deaths and marriages deposed that he received the letter from petitioner's lawyer on 16th August 2012 complaining of discrepancy on the First respondent's birth certificate with the date showing 1986 on it instead of 1988. He personally took out the First Respondent's file (Volume No. 276) and First Respondent's brother's file (Volume No. 1919) and personally went through them but noticed that the 'birth information' was missing and so he replied to the Petitioner's lawyer in his letter dated 17th August 2012 stating same.
  3. In my view the following information were deceitfully doctored and falsified: a) Date of Birth of Ezekiel Anisi from 1st September 1988 to the 22nd September 1986. b) And Eugene Anisi's birth from 22nd September 1986 to 22nd September 1984.

34. I declare that any information or evidentiary materials produced by the respondents which show Mr Eugene Anisi's date of birth as being 22nd September 1984 is false and doctored. By the same token I declare that any information or evidentiary materials produced by the respondents showing Eugene Anisi's date of birth as the 22nd September 1984 is false and not to be relied upon. I also declare that any information on the birth of the two Anisi brothers provided to the petitioner by Mr Kema Vegala is correct and can be relied upon. The circumstances of this case suggests that the Registrar General, Mr Augustus Wagambio may have directly connived at or condoned what was going on in his office . Yet he became oblivious to what was happening and became very defensive about the release of information arguing that he never authorized any release of information concerning the births of the Anisi brothers. In my view he pretended to show that he was very innocent but behind such pretentious showing he was cunning as a cunning sly fox. I will make a finding that going by his true date of birth, Ezekiel Sigi Anisi is now 24 years old. At the time he nominated to stand for elections for the Ambunti-Dreikikir Open Seat he was 23 going 24 years. His brother Eugene Anisi who had cunningly and deceitfully allowed his younger brother Ezekiel to falsify his date of birth was born on the 22nd of September 1986.


35. During Submissions Mr Wagambie of counsel for the respondents made very extensive and detailed submissions on why he says the petitioner breached provisions of the Civil Registry Act, Constitution section 49 and the technical aspects of law on privacy to argue and show before any information can be released concerning a persons, and registration of such birth, as well as particulars concerning his education details. He argued that the people in authority never gave any authority for the release of information ought to understand that these details concern the privacy of a person and so they should not have released any information touching his client's privacy to third parties like the Petitioner. Perhaps the answer to Mr. Wagambie's submission lie in and can be found in section 217 which is in this terms:


"Real Justice To Be Observed"


"The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."


36. In my view section 217 directs the courts to take into account the real moral values of good conscience and the need to observe substantial merits of each case to be a guiding factor in each petition cases the judges decide upon,


Here in this case, I am of the view that Mr Wagambie's submissions touched on quite technical aspects of the law and they are not guided by substantial merits and good conscience of this election petition. In my view they become too technical arguments. I will therefore disregard Mr Wagambie's submissions and arguments. I will accept the Petitioner's Evidence and the Submissions by Mr. Waisi of counsel for the Petitioner that he (ie Petitioner) did comply with all the legal requirements prescribed by section 21 of the Civil registration Act when he requested for information concerning the birth of the Anisi's. I find that there has been no beach of the Civil Registration Act. In the case of Mr. Kapanobo, I find that as the Director of the Measurement Unit, he had the authority to release certain information concerning Students. He exercised that authority to release information which he did. I do not see any breaches of any laws in this regard. In the case of Business Studies Institute, I accept Mr. Aimo's evidence that he spoke to a Secretary at the Institute who promised him that she leave the desired information in an envelope addressed to Mr. Aimo for pick up. Mr. Aimo eventually went to the school and picked up the information he so desired. I find nothing wrong with Mr. Aimo who had written to the school, requesting for the information, collecting the information requested in this way.


DEMEANOUR OF WITNESSES


37. A total of four witnesses gave evidence for both parties. Three witnesses were called by the Petitioner and only the first respondent gave oral evidence for his case. The petitioner and his witnesses gave evidence which corroborated each other. In my view the three witnesses who were called by the petitioner were not contradicted in any way nor had their credibility challenged under cross examination. They are witnesses of truth. The first respondent who gave evidence for himself, appeared a very confused man. He gave evidence with his head bowed down. He never gave the appearance of a confident young man. He gave the impression that he was always hiding information. In my view his credibility was highly questionable.


DECLARATIONS


38. I will therefore make the following declarations:


• Ezekiel Sigi Anisi was born to Salome Andekumo and Alexander Anisi at the Kudjip Nazarene Hospital in the Western Highlands Province on the 1st of September 1988.


Under the Organic Law on National and Local Level Government Elections and the provisions relating to electoral offences the word is defined to include persons who did not actually stand for the elections. Section 2(1)of the Organic Law then enlarges the meaning of the word.


RELIEF SOUGHT


39. In his election Petition filed on the 26th of July 2012 Mr Aimo seeks the following reliefs:


(a) A declaration that Ezekiel Anisi is disqualified to become a member of the Parliament as he is less than 25 years of age.

(b) A declaration that Ezekiel Anisi was not duly elected as member for Ambunti-Dreikikir Open Seat.

(c) A declaration Tony Waterupu Aimo was duly elected as member for the Ambunti-Dreikikir Open Seat.

I accept and grant all these reliefs sought by the Petitioner, Mr. Tony Aimo and in my view the last relief sought by Mr. Tony Aimo is very consistent with the National Court's power prescribed under section 212 of the Organic Law on National and Local Level Government Elections. Section 212(1)(g) empowers the National Court to "declare a candidate duly elected who was not returned as elected".


Section 212(1)(g)has been judicially considered by the National and Supreme previously in the case of SC Rev 5 of 1988: Application for Review by Melchior Kasap and SC Review no 6 of 1988: Application by Peter Yama[1988-1989]PNGLR 197.


In that case the National Court on hearing an election Petition for the Madang Provincial Seat had using its power under Section 212(1)(g)declared as duly elected Mr Tom Pais the former member for Madang. A recount had shown that Mr Pais had polled more votes than Mr. Kasap and Mr. Yama had polled. He was declared as duly elected and returned using the power given by Section 212 (1)(g) of the Organic Law. Section 212(1)(g) is in my view very clear and unambiguous in its terms. In a proper case, the National Court has the power to declare a candidate the winner although he or she may not have been a party to proceedings before the court. The Power given by 212(1)(g)is not dependent on whether a person is before the court. The Supreme Court in the Kasap and Yama case has stated that it is self evident from reading the provision that the power may be exercised if evidence shows another candidate should have been declared the winner. The question of locus standi in my view does not arise in the present petition. Section 212(1)(g)very clearly entitles the Court to declare a candidate not elected the winner.


Therefore using my powers under Section 212(1)(g)I declare as elected and returned as the member for Ambunti- Dreikikir Open Mr Tony Waterupu Aimo. I did not consider a by election as an appropriate option in the circumstances as in my view the costs and logistics of conducting one would be too enormous. The same in my view holds true for conducting a recount of all the votes which in my view would have been tampered with by now. I would order that costs of this Petition be awarded to the petitioner to be paid by the first respondent Mr. Ezekiel Anisi and the Electoral Commission.


Waisi & Associates Lawyers: Lawyer for the Petitioner
MS Wagambie & Associates: Lawyer for the First Respondent
Harvey Nii & Co. Lawyers: Lawyer for the Electoral Commission

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