Ben Micah v Ian Ling–Stuckey and Electoral Commission [1998] PNGLR 151

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J
• Judgment Date: 10 September 1998
• Court: National Court
• Citation: [1998] PNGLR 151
• Docket Number: In The Matter of The Kavieng Open Electorate
• Year: 1998
• Judgement Number: N1791

National Court: Kirriwom J

Judgment Delivered: 10 September 1998

N1791

PAPUA NEW GUINEA

[In the National Court of Justice]

EP NO. 43 OF 1997

IN THE MATTER OF THE KAVIENG OPEN ELECTORATE

BETWEEN :

BEN MICAH

- Petitioner -

AND :

IAN LING-STUCKEY

- First Respondent -

AND :

ELECTORAL COMMISSION

- Second Respondent

KAVIENG : KIRRIWOM J.

1998 : SEPT 10

NATIONAL ELECTION – Bribery allegations – Strict proof that person allegedly bribed is an elector.

Cases Cited:

Biri v Ninkama [1982] PNGLR 342

Counsel:

L. Henao, for the Petitioner

P. Payne, for the First Respondent

J. Noggorr, for the Second Respondent

Ruling

10 Sep 1998

KIRRIWOM J.: In the course of the trial of this election petition matter the during the Petitioner’s case, the first respondent took issue with the petitioner’s key witness in ground 5(b) of the petition. The issue was as to his illegibility as an elector. This witness is John Ngumaravis of Narimlava village on New Hanover, New Ireland Province. This is the witness that the Petitioner alleged was bribed by the first respondent on 11 June 1997 when he gave him K100 for him and his group during his campaign rally at Narimlava on that day. The witness claimed to be an elector as was pleaded in the petition but he was found to be not on the 1997 up date of the Common Roll for Kavieng Open Electorate in the course of this trial, at least not under the name he was commonly known. When asked to explained why his name was not in the Roll, he replied that his name in the Roll was Vatlogo Melewai. He said he normally voted under that name. This assertion was refuted by the first respondent who produced a court a person going by the name of Vatlogo Melewai also from Narimlava, the real Vatlogo Melewai. In cross-examination John Ngumaravis was asked if he knew this person, produced before the Court. He answered in the affirmative and identified him as his brother, ‘Kiukiu’. He denied that the person’s name was Vatlogo Melewai when this was suggested to him and insisted that he was Vatlogo Melewai. He said he had three brothers and this was Kiukiu. Consequently it became necessary to conduct a trial within the main trial as in vore dire situation in a criminal trial so as to iron out his issue about ‘who was who’ in the Common Roll. This procedure is not unusual because unlike in ordinary civil litigation in an election petition, every ground is a triable issue on its own and is capable of determining the success or demise of the petition. This approach has been the practice of this court in those instances in which I myself appeared as counsel whilst at the bar and the notable example of this is the case of Peter Yama v Melchior Kasap and the Electoral Commission following the 1987 National Election, the case that ultimately went to the Supreme Court for review under s.155(2)(b) of the Constitution. It is therefore correct to say that every ground or allegation in an election petition is an issue that can be tried on its own and this is precisely what we have done here, we have isolated ground 5(b) of the petition and proceeded to deal with it ahead of the others. Once this

issue is resolved, that would determine the future of ground 5(b) of the petition. It does not terminate the proceedings nor the petition. We therefore proceeded to hearing evidence. The petitioner called one Gerard Sigulogo, former law student in the early seventies and former parliamentarian for this same Kavieng Open Seat as an elder of Narimlava and someone with an indepth knowledge of the custom of the area as well as being related to the family of John Ngumaravis. He gave evidence of the circumstance in which members of a family in the same clan derive their names and of instances were two of more family members may be called by the same name of the common ancestor within the clan. Countermanding this evidence, the first respondent called a number of witnesses including Vatlogo Melewai or the person going by that name. Vatlogo Melewai was called first. He was adamant that he was Vatlogo Melewai and he was the younger brother to John Ngumaravis. There was no one else in Narimlava known by that name except him. John was never known or referred to as Vatlogo Melewai...