Michael Korry v Mogerema Sigo Wei

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 24 June 2015
• Citation: (2015) N6050
• Court: National Court
• Year: 2015
• Judgement Number: N6050

Full : EP NO 05 OF 2012; In the matter of The Organic Law on National and Local-Level Government Elections and in the matter of disputed returns for the Karimui-Nomane Open Electorate; Michael Korry v Mogerema Sigo Wei and Electoral Commissioner of Papua New Guinea (2015) N6050

National Court: Makail, J

Judgment Delivered: 24 June 2015

N6050

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 05 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KARIMUI-NOMANE OPEN ELECTORATE

BETWEEN

MICHAEL KORRY

Petitioner

AND

MOGEREMA SIGO WEI

First Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2013: 12th, 13th, 14th November, 16th, 17th December

2014: 23rd, 24th January

2015: 24th June

ELECTION PETITION – TRIAL – Allegations of illegal practices – Illegal practices at polling and counting – Double voting – Allegations of errors and omissions at counting – Threats to counting officials – Misplacing of ballot-papers – Unauthorised entry of candidate into couning centre – Proof of – Organic Law on National and Local-level Government Elections – Sections 206, 210, 215(3) & 218.

PLEADINGS – Failure to plead material facts – Failure to plead allegations of bribery of security personnel at polling location – Effect of – Evidence on bribery discounted as recent invention.

EVIDENCE – Presiding Officer’s Journal/Report – Contemporaneous notes – Accounts of events at polling – Different account to evidence of Presiding Officer – Contradictory accounts – Authenticity of.

Cases cited:

Michael Korry v. Mogerema Sigo Wei & Electoral Commission (2013) N5416

Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275

Counsel:

Messrs P. Ame & J. Apo, for the Petitioner

Mr R. Diveni, for the First Respondent

Ms C. Lari, for the Second Respondent

JUDGMENT

24th June, 2015

1. MAKAIL, J: This is a re-trial of an election petition by Mr Michael Korry disputing the election of the first respondent The Honourable Mr Mogorema Sigo Wei as Member for Karimui-Nomane Open electorate in the 2012 General Election following a successful Supreme Court review on 30th August 2013. Mr Korry was the runner-up to Mr Wei scoring 7,715 votes to 7,792, a difference of 77 votes. He brings this petition pursuant to sections 206 & 208(c) of the Organic Law on National and Local Level Government Elections (“Organic Law on Elections”).

Allegations

2. In the ruling on objection to competency delivered on 08th November 2013 at Goroka in Michael Korry v. Mogerema Sigo Wei & Electoral Commission (2013) N5416, the Court summarised the allegations which Mr Korry relies on to void the election of Mr Wei or alternatively, seek a recount of votes. They are respectfully re-stated as follows:

“The petition pleads three allegations:

2.1. Illegal practices at polling at Dawa Polling Booth;

2.2. Illegal practices, errors and omissions at counting; and

2.3. Illegal presence of the first respondent at the counting room.

3. From a close perusal of the pleadings, the allegation of illegal practices at Dawa Polling Booth can be summarised as follows; on 09th July 2012 at about 8:00 am and before polling started, the first respondent entered the polling booth and forced the Returning Officer to sign the ballot-papers. He also took some ballot-papers, gave them to his wife and children, they marked them and put them in the ballot-box. Each marked four to five ballot-papers each. He also told his nephew to mark all the ballot-papers while he supervised him and when the nephew had finished, the nephew told the supporters of the first respondent to stand in line and gave each of them a marked ballot-paper and they placed them in the ballot-box.

4. The second allegation can be summarised as follows; during the counting at the counting centre at Dickson oval in Kundiawa, Mr Korry led in the primary count and also the second count until the 59th exclusion when a security personnel identified as Corporal Witne threatened counting officials and placed exhausted ballot-papers in the first respondent’s box. As a result, at the 61st exclusion, the first respondent surged ahead and won by 77 votes. Corporal Witne shouted at the Returning Officer to declare the winner without doing a quality check on the last exclusion.

5. In relation to the third allegation, it can be summarised as follows; before the results were checked and put on the board, Corporal Witne went out of the counting room and announced that the first respondent had won. He ushered the first respondent into counting room without the authority of the counting officials and the first respondent remained in the room without the authority of the counting officials.”

3. Mr Wei and the Electoral Commission denied the allegations. Evidence led at trial centred round these allegations. Mr Korry gave evidence by affidavit and called 13 witnesses who also gave evidence by affidavits. They were cross-examined by counsel for the respondents to test the veracity of their evidence. Mr Wei also gave evidence by affidavit and was cross-examined by counsel for Mr Korry. Mr Wei and the Electoral Commission called a total of 12 witnesses who also gave evidence by affidavits and were cross-examined by counsel for Mr Korry.

Illegal Practices at Polling

4. The evidence in relation to the allegation of illegal voting at polling came from Joe Gende Mongo, Kume Yakka, Nebe Jack, Benny Nuabo Konny, Helen Benny, Jacob Kale and Anna Kame. These witnesses said that they saw Mr Wei, his wife and children voted twice and he forced electors to vote for him. They also said Mr Wei forced or directed his nephew Mogerema Mane to mark ballot-papers in his name. He told voters to stand in line and his nephew gave each voter a pre-marked ballot-paper and placed it in the ballot-box. His nephew did as directed with the assistance and connivance of the Presiding Officer Moses Karao. Nebe Jack and Jack Kale said they were given pre-marked ballot-papers for the Open and Provincial seats.

5. Although the police and defence force security personnel were present at the polling centre, they did not stop Mr Wei, his wife and children from voting twice and secondly, his nephew from marking out the ballot-papers in favour of Mr Wei. Their evidence was further corroborated by a policeman named Chris Maropa who gave evidence that security was compromised because the wife of Mr Wei, Mrs Bomaigi Wei bribed security personnel by giving them cash, sugar cane and soft drinks. As a result, they did not stop Mr Wei and his nephew from marking the ballot-papers in favour of Mr Wei and placed them in the ballot-box. Their inaction resulted in Mr Wei receiving more votes than Mr Korry.

6. Mr Wei and his witnesses said he did not force the electors to vote for him. He did not direct Mogerema Mane to mark all the ballot-papers in his name nor did he, his wife and children voted twice. Mr Wei’s witnesses were Mogorema Mane, Moses Karao, Omen Wii, Jeremiah Goro and Moses Miapa. Mr Ame of counsel for Mr Korry submitted that the evidence of Mr Korry’s witnesses should be accepted while Mr Diveni and Ms Lari submitted that their evidence should not be accepted and that the evidence of the defence be accepted. Whose evidence should be accepted?

7. The evidence of both sides matched or is on equal footing. Obviously, one party is telling the truth and the other, a lie. Each witness knows in his or her heart whether he or she had told the truth at trial. Giving false evidence is perjury and is a criminal offence. Yet witnesses in this case were prepared to lie. Interestingly, most witnesses from both sides said that they were Seventh Day Adventist Christians. If that were so, one would expect them to be conscious of their oath to God, that is, to tell the truth and not lie in front of God and men. It is even worst when Mr Korry and Mr Wei claim that the subject polling booth is their stronghold and each expected to receive more votes from this polling booth. This is the very problem. It is a complete misunderstanding of the secret ballot voting system we have. And so, with all these factors in conflict, it has been a difficult task trying to work out which party’s evidence should be accepted. At the end of the day, it must come down to whose version is believable. This will depend on whether the evidence is logical and makes sense and not contradictory or conflicting. It will also depend on the demeanour of the witnesses.

8. Mr Korry’s evidence in relation to the allegation of double voting and interference at the polling booth is discounted because he was not present and did not see the incident. The evidence that has some relevance is where he said when he arrived at the polling booth, he saw Mr Wei inside the enclosed area where the polling booth was. When Mr Wei saw him, he walked out. He confronted Mr Wei and told him not to interfere with the polling and Mr Wei did not respond. When he asked two policemen one of them Chris Maropa, about claims of security personnel been bribed, they denied them. After the declaration, the two policemen came with...