Aiwa Olmi v Nick Kopia Kuman and Rueben Kaiulo The Electoral Commissioner of Papua New Guinea (2002) N2310

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 09 December 2002
• Court: National Court
• Citation: (2002) N2310
• Year: 2002
• Judgement Number: N2310

Full Title: Aiwa Olmi v Nick Kopia Kuman and Rueben Kaiulo The Electoral Commissioner of Papua New Guinea (2002) N2310

National Court: Jalina J

Judgment Delivered: 9 December 2002

1 National Parliament Elections—Petition Disputing Election—Competency of Petition—Motion to strike out Petition—Attestation of Petition—Attestation by finger print—Name on attestation page in Petition mis–spelt in two places in affidavit explaining the attestation—Whether attestation by finger print sufficient attestation—Attestation by finger print sufficient—Application to strike out refused—Organic Law on National and Local–level Government Elections s208(d) and s210.

2 National Parliament Elections—Petition Disputing Election—Competency of Petition—Motion to strike out Petition—Failure by Petitioner to set out or plead facts on which Petition is founded——Whether whole or part of Petition should be struck out—Petition does not plead facts as required—Petition should be struck out—Organic Law on National and Local–level Government Elections s208(a) and s210.

3 SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Malcolm Smith Kela v Peti Lafanama [1997] PNGLR 151, Holloway v Ivarato [1988] PNGLR 99, Vagi Mae v Jack Genia (1992) N1105 and Albert Karo v Lady Carol Kidu [1997] PNGLR 28 referred to

___________________________

N2310

PAPUA NEW GUINEA

[In the National Court of Justice]

EP. No. 01 of 2002

Between:

AIWA OLMI

-Petitioner-

And:

NICK KOPIA KUMAN

-First Respondent-

And:

RUEBEN KAIULO

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

-Second Respondent-

MT. HAGEN : JALINA, J.

2002 : 3rd, 6th & 9th December,

National Parliament Elections – Petition Disputing Election –Competency of Petition -Motion to strike out Petition – Attestation of Petition – Attestation by finger print – Name on attestation page in Petition mis-spelt in two places in affidavit explaining the attestation - Whether attestation by finger print sufficient attestation - Attestation by finger print sufficient – Application to strike out refused - Organic Law on National and Local Level Government Elections S. 208 (d) and 210.

National Parliament Elections – Petition Disputing Election – Competency of Petition -Motion to strike out Petition – Failure by Petitioner to set out or plead facts on which Petition is founded - – Whether whole or part of Petition should be struck out – Petition does not plead facts as required – Petition should be struck out - Organic Law on National and Local Level Government Elections S. 208 (a) and 210.

Cases cited:

Biri -v- Ninkama [1982] PNGLR 342

Kela -v- Lafanama [1997] PNGLR 151

Holloway –v- Ivarato [1988] PNGLR 99

Vagi Mae –v- Jack Genia and Electoral Commission [1992] Unreported Judgment N1105

Karo –v- Kidu [1997] PNGLR 28

Legislation referred to:

Organic Law on National and Local Level Government Elections

Evidence Act, Chpt. 48

Counsel:

J. Tonge for the Petitioner

K. Naru for the First Respondent

R. Williams for the Second Respondent

9th December, 2002

JALINA, J: The Petitioner herein has filed a Petition disputing the election of the First Respondent as Member of National Parliament for Gumine Open Electorate in the Simbu Province. The facts relied upon by the Petitioner to invalidate the election of the First Respondent are set out in paragraph 8 of the Petition as follows:-

8.1. The 2nd Respondent failed to conduct a proper election for purposes of complying with the Organic Law on National and Local Level Government Elections.

(a) It is alleged that on the 22nd of June, 2002 at Guleba polling place in Boromil Area the Presiding Officer, Mr. Michael Paglau allowed multiple and illegal voting. Further, the ballot box Number 1341 designated to Guleba (Boromil) never arrived. Only box numbers 1337 and 1338 were used to fill the ballot boxes which were never disputed though the Presiding Officer knew about it.

(b) It is alleged that on the 19th June, 2002, the Assistant Returning Officer of Kumai Bomai Local Level Government, Mr. Peter Are and the Presiding Officer to Gomgale Rest House received bribery monies, in K5.00 notes from the First Respondent.

(c) It is alleged that only 10 policemen were assigned to provide security for the Gumine Open Electorate who had arrived late on the afternoon of 22nd June, 2002.

(d) It is alleged that the Provincial Returning Officer, Mr. Steven Yakili failed to declare that certain boxes, those boxes after count 39 as disputed boxes after complaints were made to him.

(e) It is alleged that box number 1341 designed for Guleba (Boromil) polling was never brought there. When enquired with the Presiding Officer, Mr. Michael Paglan, he said it was left behind at Gumine Station saying there were not enough ballot papers to fill in all the boxes.

(f) On the 22nd of June, 2002, at Silgerua polling place, the Presiding Officer, Mr. Paias Dulume and the Polling Clerk, Mr. Aba Frank marked ballot papers in support of the First Respondent and did not mark the ballot papers in accordance with what the voters wished. Upon complaints made against the polling officials by one, Mr. To Komanda, he was assaulted by the First Respondent’s supports who were supporting the polling officials.

(g) Mr. To Komanda also saw at the said time at the said place eligible voters watched hopelessly while their votes were being marked and casted by the polling officers in amidst the supporters of the First Respondent in favour of the First Respondent.

(h) It is alleged that Mr. Otto M. Sine went to Silegru polling place on 22nd June, 2002 and eye witnessed a relative of the First Respondent, Mr. Aba Franky marking many ballot papers in favour of the First Respondent. Mr. Aba Franky who was polling clerk at the said polling booth.

(i) It is alleged that the Presiding Officer for the polling team for Nigemarme ward of Gumine LLG area eye witnessed at about midday on 22nd June, 2002 that a young girl was shot dead using a gun at close range by a candidate, Mr. Philip Gore. This happened about 5 metres away from the polling booth. The polling officials there were forced to accept multiple voting by Philip Gore’s supporters but the box Nos # 1225, 1226 and 1227 were not set aside as disputed boxes through the Returning Officer was fully advised of it.

(j) It is alleged that on the 22nd of June, 2002, polling took place at Damagire, a non-gazetted area of polling due to lack of security personnel, another candidate, Mr. Fred Temai’s supporters with undue influence and false pretence marked many ballot papers in favour of Fred Temai.

(k) It is alleged that at Damagire polling place, Mr. Sogan Peter Kawale who was a candidate for the Gumine Open Seat eye witnessed that the supporters of Mr. Fred Temai putting the Presiding Officer under threat and pressure to mark the ballot papers in favour of Fred Temai.

8.2. The First Respondent, by himself, together with his servants or agents forced, threatened, bribed, cheated whilst carrying firearms to obtain votes in favour of him.

(a) It is alleged that on the 16th June, 2002, after Sunday Service both Polling Officials, Mr. Jacob Uri and Peter Are were given bundle of K5.00 notes. These monies were given by the First Respondent and his relatives in the First Respondent’s house.

(b) It is alleged that Alai Simin saw on the 22nd June, 2002 at Guleba in Boromil Area of the Kumai Bomai LLG Area, the supporters of the First Respondent did multiple voting. Though names were called, supporters of the First Respondent misrepresented the eligible voters being called and voted for the First Respondent. Further, two people from Bomomil School Polling place (Jessinta Nime and Samai Alai) voted at this said place unlawfully.

(c) It is alleged that on the 22nd June, 2002, Gomglae Sub-Health Centre polling place, the First Respondent’s supporters parked both the First Respondent’s Toyota Land Cruisers were purposely parked at the opposite ends of the said polling place with a youth armed with a M-16 rifle standing on the vehicle watching over the polling. The said supporters moved and took control of the polling both intimidating voters and polling officials by using firearms and other dangerous weapons like knives. They collected all ballot papers and marked them in favour of the First Respondent (Andrew Sini Kua).

(d) It is alleged that on the 22nd June, 2002, at Gomgale polling place (Ward 7), the First...