James Pini v Wesley Nukundi Nukunji

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 28 May 2018
• Citation: (2018) N7342
• Court: National Court
• Year: 2018
• Judgement Number: N7342

Full : EP No 60 of 2017; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of the disputed return for the Dei Open Electorate; James Pini v Wesley Nukundi Nukunji and the Electoral Commission of Papua New Guinea (2018) N7342

National Court: Makail, J

Judgment Delivered: 28 May 2018

N7342

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 60 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURN FOR THE DEI OPEN ELECTORATE

BETWEEN

JAMES PINI

Petitioner

AND

WESLEY NUKUNDI NUKUNJI

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Mt. Hagen & Waigani: Makail, J

2018: 21st, 22nd, 26th & 28thMay

ELECTION PETITION – Trial – Allegations of errors or omissions at counting – Failure to admit six ballot-boxes to scrutiny – Reasons for refusal – Lack of polling – Marking of ballot-papers by community leaders – Proof of – Conflicting accounts – Credibility of witnesses’ account – Whether discretion properly exercised by Returning Officer – Whether error or omission by Returning Officer established – Organic Law on National and Local-level Government Elections – Sections 153A &218

Cases cited:

James Pini v. Wesley Nukundi Nukunji & Electoral Commission (2017) N7243

Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2015) N6050

Counsel:

Mr. C. Mende, for the Petitioner

Mr. P. Mawa, with Ms. N. Mawa, for the First Respondent

Mr. T. Topo, with Mr. L Okil, for the Second Respondent

JUDGMENT

28thMay, 2018

1. MAKAIL, J: This election petition for the Dei Open electorate of the Western Highlands Province was on, 8th May 2018, found to be competent and allowed to proceed to trial on the ground that the Returning Officer erred in refusing to admit six ballot-boxes to scrutiny at counting. If they had been admitted, it was alleged, the result would have been affected. This finding was based on the further finding by the Court that Section 153A(4) of the Organic Law on National and Local-level Government Elections (“Organic Law”) conferred jurisdiction on the Court to “review” the exercise of discretion by the Returning Officer and a “review” is independent of a claim based on breach of procedure for objection under Section 153A: see James Pini v. Wesley Nukundi Nukunji & Electoral Commission (2017) N7243.

2. Section 153A of the Organic Law provides for this “review” and states:

“153A. EXCLUDING BALLOT-BOX FROM SCRUTINY.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: -

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.” (Emphasis added).

3. Thus, it will be a hearing de novo to determine whether the decision of the Returning Officer was valid. The Returning Officer Mr. Batamai Tipi refused to admit the ballot-boxes to scrutiny because he formed a view on the evidence before him that no polling took place and a fight occurred at the polling locations.

Disputed Ballot-Boxes

4. The allegation is that, the six ballot-boxes comprised of two from Ruti polling location, two from Kondopina 1 polling location and two from Kondopina 2 polling location. Mr. Tipi refused to admit them to scrutiny because there was no polling at Ruti and ballot-papers were marked elsewhere and in the case of Kondopina 1 and 2, there was a fight and people fled and ballot-papers were marked by someone else. The presiding officer of each polling location denied the allegations of lack of polling and fight. Each claimed that polling was conducted peacefully and freely.

5. As this is a hearing de novo,the Court will look at the evidence afresh to determine whether polling took place and a fight occurred at one of the polling locations. Eyewitness account at each polling location is material and crucial in this regard and the onus of proof is on the petitioner to prove these allegations. Further, evidence at counting at Kimininga Police Barracks consistent with the eyewitness account at poling will either corroborate the petitioner’s assertion of polling or respondents’ claim of lack of polling.

Ruti Polling Location

6. For Ruti polling location the eyewitness account about the peaceful and free polling came from Robert Kewa and Amos Poiya. For the defence, the eyewitness account came from Policewoman Mary Gele and Philip Kond.

Kondopina 1 and 2 Polling Locations

7. For Kondopina 1 and 2 polling locations the eyewitness account about the peaceful and free polling came from Yer Bom, Danny Luther and Wilson Kupo. For the defence, the eyewitness account came from Policewoman Bathseba Bulingu and Pati Das.

8. Police officer Samuel Gwasamun who was summoned by the petitioner to gave evidence said that he and his Task Force Unit escorted the ballot-boxes from Kitip Secondary School to Ruti for delivery around 11.30 am and 12 noon. He left before polling started. He returned midway during polling and then left. When he next returned, polling had ended. It was late in the afternoon. As he was not present right through-out polling, his eyewitness account of the events that occurred at Ruti is of no assistance. But Mrs. Gele has denied his assertion that he provided his mobile number to her to call him if she needed any back-up assistance.

9. In his affidavit (exhibit “D5”), the field commander for the security operations in the electorate, Chief Inspector of Police Mathew Makure gave a vague account of travelling the “various polling places” checking on how polling was conducted. However, he missed saying that he was present right through-out the polling at Ruti and Kondopina 1 and 2. For this reason, his evidence is of no assistance. But as the field commander it is relevant in relation to the shortage of manpower and assignment of two police personnel to provide security at Ruti and Kondopina 1 and 2 polling locations respectively.

10. At paragraph 4 of his affidavit (exhibit “P1”), Robert Kewa vaguely referred to people voting at Ruti. As for himself, he did not say if he had voted. He did not say if he was given two ballot-papers; one for the Provincial electorate and the other for the Open electorate and by whom. He did not say if he went to the polling booth with the papers, marked each of them with candidates in order of preference from number one to number three and placed in each ballot-box. This is important because he was expected to cast votes for two electorates. The first one was for the Provincial electorate and the second for the Open electorate. A vague reference to voting is insufficient and unconvincing.

11. Secondly, he did not name others who were present and cast their votes. It is important to state that because polling was held in the village where family members and relatives reside and those of voting age would be expected to attend and cast their votes. A failure to give this sort of detailed evidence would refute the assertion by the defence that no polling occurred and ballot-papers were marked elsewhere by someone.

12. In addition, there is no corroboration for the petitioner would have a strong case if he had called persons who had voted to explain how he or she voted. For there is an established procedure for polling which included identification of a person by the polling officer whose name appeared on the Common Roll and once it has been established, the presentation of one ballot-paper for the Open electorate and the other for the Provincial electorate to the voter. Next, the voter must mark each ballot-paper in order of preference of candidates from one to three and place it in the appropriate ballot-box. This evidence is crucial to establish the allegation that polling took place. The petitioner failed to call this evidence.

13. Thirdly, Mr. Kewa did not say if Reverend Samuel Wani prayed and after that, community leaders gave speeches before polling commenced. It was when he was challenged by counsel for the first respondent that he admitted that Reverend Samuel Wani prayed and Councillor Wapi gave a speech before polling commenced. He was quick to deny a further suggestion that there were other community leaders who spoke, like John Moka. Further, he denied the suggestion that the...