Jim Nomane v David Anggo and Reuben Kaiulo — The Electoral Commissioner of Papua New Guinea (No 2) (2003) N2495

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Gavara–Nanu J
• Judgment Date: 14 November 2003
• Citation: (2003) N2495
• Judgment Number: N2495
• Year: 2003
• Docket Number: EP No 52 of 2002

Full Title: EP No 52 of 2002; Jim Nomane v David Anggo and Reuben Kaiulo — The Electoral Commissioner of Papua New Guinea (No 2) (2003) N2495

National Court: Gavara–Nanu J

Judgment Delivered: 14 November 2003

1 PARLIAMENT — Election petition — Objection on grounds of qualification — Organic Law on National and Local–level Government Elections (Organic Law) s46(4) — Elector's right once enrolled on a Common Roll for an electorate continues until lost — No further need for such elector to apply for re–enrolment on the Common Roll for the same electorate.

2 PARLIAMENT — Election petition — Qualification of a candidate — Name of a candidate in the Common Rolls not quite the same as the name used in the Nomination Form — But the names belong to the candidate — Elector identification numbers are consistent as being for the candidate — Candidate in such circumstances is validly enrolled elector thus is qualified to contest the national elections and to petition the election result.

3 Daniel Don Kapi v Takai Kapi (1998) SC548, Takai Kapi v Daniel Don Kapi and Electoral Commission (1998) SC570, Jimson Sauk Papaki v Don Pomb Pullie Polye (1999) SC644, Kean v Kerby (1920) 27 CLR 449 referred to

Ruling on Qualification

___________________________

N2495

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 2002

BETWEEN:

JIM NOMANE

Petitioner

AND:

DAVID ANGGO

First Respondent

AND:

REUBEN KAIULO – THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA – (No. 2)

Second Respondent

GOROKA: GAVARA-NANU, J

2003 : 11TH & 14 NOVEMBER

PARLIAMENT – Election petition – Objection on grounds of qualification – Organic Law on National and Local Level Government Elections (Organic Law) s.46(4) – Elector’s right once enrolled on a Common Roll for an electorate continues until lost – No further need for such elector to apply for re-enrolment on the Common Roll for the same electorate.

PARLIAMENT – Election petition – Qualification of a candidate – Name of a candidate in the Common Rolls not quite the same as the name used in the Nomination Form – But the names belong to the candidate – Elector identification numbers are consistent as being for the candidate – Candidate in such circumstances is validly enrolled elector thus is qualified to contest the national elections and to petition the election result.

Cases cited:

Daniel Don Kapi v Takai Kapi & Electoral Commission – SC 548.

Takai Kapi v Daniel Don Kapi & Electoral Commission – SC 570.

Jimson Sauk Papaki v Don Pomb Pullie Polye & Electoral Commission – SC 644.

Other cases cited :

Kean v Kerby (1920) 27 CLR 449.

Counsel:

A. Manase for the Petitioner.

C. Copeland for the First Respondent.

R. Williams for the Second Respondent.

RULING ON QUALIFICATION

14th November 2003

GAVARA-NANU J. This is an application by the first respondent to have the petition dismissed on the grounds that the petitioner has no standing as he was not an elector registered on the Common Roll for the Chuave Open electorate.

The first respondent has in support of his application tendered the 2002 Common Roll for the Chuave Open electorate and the affidavit by Mr Ray William, sworn 2nd March, 2003. In the 2002 Common Roll for the Chuave Open electorate, the name appearing is Jim Josiah with Elector ID No. 3398507. The year of birth given for Jim Josiah is 1949 and his occupation is stated as a subsistence farmer. The month and the date of birth are not given in that Common Roll.

The only Annexure to Mr William’s affidavit is the Nomination Form signed by the petitioner to contest the 2002 national elections for the Chuave Open electorate. The name appearing on the petitioner’s Nomination Form is Jim Nomane and the date of birth given for the petitioner is 1st September, 1959, and his occupation is stated as an engineer.

It is the contention of the respondents that the petitioner is not enrolled on the Common Roll for the Chuave Open electorate because the name, occupation and the year of birth given for Jim Josiah, in the 2002 Common Roll for the Chuave Open electorate are different to the name, occupation and the date of birth the petitioner gave in his Nomination Form to contest the 2002 national elections for the Chuave Open electorate. But the petitioner says the name Jim Josiah on the 2002 Chuave Open electorate Common Roll is his.

The second respondent did not call evidence, but adopted and supported the submissions made by the first respondent/applicant and argued that the petition should be dismissed.

The petitioner/respondent gave oral evidence and called two other witnesses. One of those witnesses is the District Administrator for Chuave, who was the Returning Officer for the Chuave Open electorate in the 2002 national elections. The other witness was the Assistant Returning Officer for the Chuave Open electorate in the 2002 national elections. He is the one who received the petitioner’s nomination for the 2002 national elections.

The petitioner has also produced other documentary evidence and filed two affidavits.

In his oral evidence, the petitioner told the Court that he is from Laiya village and comes from the Nomane Sub-Clan, in the Chuave District of the Chimbu Province. He said Laiya is in the Siane Local Level Government. He has lived in Laiya village for his entire life, except for the periods when he had to attend school and work, away from the village. He said, he is an engineer by profession, but he is also a subsistence farmer because back in his village, he has gardens and animals. He said, he is commonly known as Jim Nomane Josiah in the village, but the locals call him Jim Nomane, because it is easier for them.

The petitioner said, he contested the 1992 national elections under the name Jim Nomane. The first respondent also contested that election. The petitioner also contested the 1994 by-election under the same name Jim Nomane. He has produced an election poster he used for the 1992 national elections. The name in that election poster is Jim Nomane.

The petitioner runs an electrical business in Goroka, under the name ‘Blue Sky Electrical.’ He has produced some documents under that business name. The documents relate to his Income Tax with the Internal Revenue Commission. There are five documents. They are Exhibits “C1 to C5”. The name appearing in “Exhibit C1”, which is the Certificate of Compliance (Income Reporting System), has the name Jim Nomane Josiah. The name appearing in “Exhibit C2”, which is another Certificate of Compliance (Income Reporting System), has the name Josiah Jim Nomane. In “Exhibits C3 to C5”, which are correspondences with the Internal Revenue Commission, the name appearing in those documents is also Josiah Jim Nomane.

The petitioner has filed two affidavits sworn by him on 3rd and 30th January 2003, respectively. The Annexure “A” to the affidavit sworn 30th January, 2003, is page 374 of the 1992 Common Roll for the Chuave Open electorate. It is for Laiya and the Sub-Clan is Nomanena. The name on that Common Roll is Jim Nomane, and the occupation given there is subsistence farmer.

In the affidavit, he says, he is widely known as Jim Nomane Josiah. He also uses this name for his business. The people in the business circle know him as Jim Josiah but the villagers call him Jim Nomane. He says, he contested the 1994 national by-election and the 2002 national elections under the name Jim Nomane. In other words, he stood as a candidate for the 1992, 1994 and 2002 national elections for the Chuave Open electorate under the name Jim Nomane. Of these, his 1992 election poster corroborates his claim that he stood for that election under the name Jim Nomane.

However, on the 1999 and 2002 Common Rolls for the Chuave Open electorate, the name enrolled is Jim Josiah.

In paragraph 10 of his affidavit, he says, on the 2002 Common Roll up-date for the Chuave Open electorate, he enrolled his full name, Jim Nomane Josiah. He has produced part of that...