Mao Zeming v Electoral Commission of PNG

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 24 November 2017
• Citation: (2017) N7011
• Court: National Court
• Year: 2017
• Judgement Number: N7011

Full : OS (JR) NO 38 OF 2017 (EP); Mao Zeming v Electoral Commission of Papua New Guinea and The Independent State of Papua New Guinea and Dr. Kobby Bomareo, MP (2017) N7011

National Court: Makail, J

Judgment Delivered: 24 November 2017

N7011

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 38 OF 2017 (EP)

BETWEEN

MAO ZEMING

Plaintiff

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

AND

DR. KOBBY BOMAREO, MP

Third Defendant

Waigani: Makail, J

2017: 10th, 13th & 24th November

JUDICIAL REVIEW – Review of decision of Electoral Commission – Refusal to accept date of declaration of result of election – Dispute of – Conflicting dates of declaration of result of election – Date written on writ prevails unless fraud is proved or gross error is clearly manifested – Allegation of fabrication of date of declaration – Proof of – Organic Law on National and Local-level Government Elections – Section s175 (1) (a) and (b)

Cases cited:

Kelly Kuliyali Kalit v. John Thomas Pundari & Electoral Commission (1998) SC569

Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) SC1337

David Arore v. John Warisan & Electoral Commission (2015) SC1448

Counsel:

Mr. M. Murray, for Plaintiff

No appearance, for First & Second Defendants

Mr. B. S. Lai, for Third Defendant

JUDGMENT

24th November, 2017

1. MAKAIL J: This is an application for judicial review of a decision of the first defendant to accept 18th July and not 19th July 2017 as the date of declaration of the third defendant as elected candidate for Tewai-Siassi Open electorate in the 2017 General election.

2. The plaintiff who was one of the candidates alleged that the date of declaration was 19th July 2017. It became controversial when the plaintiff alleged that the Lae National Court registry rejected his petition to dispute the election of the third defendant because it was lodged one day outside the 40 day time limitation prescribed by Section 208 (e) of the Organic Law on National and Local-level Government Elections.

3. The date written on the writ was 18th July 2017. The writ was returned to the first defendant in Port Moresby on 24th July 2017. According to the Supreme Court decision in Kelly Kuliyali Kalit v. John Thomas Pundari & Electoral Commission (1998) SC569 unless fraud is proven or a gross error is clearly manifested on the face of the records, the date on the writ is conclusive evidence of the date of declaration.

4. The onus is on the plaintiff to prove fraud or a gross error on the balance of probabilities.

5. The plaintiff alleged that the date of the writ was fabricated when a person other than the Returning Officer signed and dated it as 18th July. Evidence of this came from the Returning Officer Mr. Ralph Ryan. It was his oral evidence that he was the person who declared the third defendant as the candidate elected for Tewai-Siassi Open at Sialum station on 19th July at around 10:30 am. He said that counting should have been completed and a declaration made on the previous day but was delayed due to security reasons, namely smuggling in of firearms by supporters of candidates. Nonetheless, he did not fill in the writ because it was in Lae and the third defendant was absent.

6. When he arrived in Lae on 21st July he discovered that the writ had been signed by the third defendant and dated 18th July. He was told by a lady in the Electoral Office by the name of Dyan to certify by signing it. He was upset and refused to sign it because the third defendant signed it in his absence. It was upon the urging of an electoral official to whom he referred to as “boss meri” on 24th July at the head office of the Electoral Commission in Port Moresby that he signed it.

7. He referred to the dates on the tally sheets in Form 66A and Form 66B in particular pages 5 and 6 of the Form 66B where the date of 19th July was recorded to verify his claim that the date of declaration was 19th July.

8. He wrote a letter to the first defendant dated 29th August 2017 to confirm the date of declaration of 19th July at 10:00 am when losing candidates intending to file petitions were uncertain as to the date of declaration for the purpose of computing the 40 days-time limitation to file a petition. In his oral evidence, he said that the time was around 10:30 am. This time is inconsistent with the time of 10:00 am stated in his letter of 29th August.

9. The evidence from the third defendant is only relevant to the signing of the writ on 19th July at Lae. He signed it at around 10:00 am on that day: refer to paragraph 5 of his affidavit sworn on 23rd October 2017 (exhibit “D5”). Apart from this, it is of no relevance to the other date of declaration of 18th July because he was not at Sialum station when the declaration was made. He was only informed of it. Besides that, he gave no evidence in relation to the person who presented the writ to him to sign, in Lae.

10. When the third defendant was cross-examined, the plaintiff did not pursue this aspect of the evidence to elicit from him, the name of the person who witnessed the signing and recording of the date of the writ. That person will remain unknown and it leaves the Court with less information to work out the date of declaration.

11. The onus was on the plaintiff to prove the allegation of fabrication. The lack of participation by the first defendant and its officers does not relieve the plaintiff of the onus of proving the allegation nor is it an admission of the allegation. If witnesses were unwilling to give evidence, it was upon the plaintiff to have them summoned. If not, the plaintiff’s evidence will be confined to those presented.

12. Thomas Apul gave evidence by affidavit for the third defendant and was cross-examined. On cross-examination, he conceded that he was not one of the gazetted Assistant Returning Officers of the electorate but was picked to perform the task. He witnessed the declaration of the third defendant by the Returning Officer Mr. Ryan on 18th July at Sialum station. He said it was around 12:24 pm on that day.

13. His evidence was corroborated by Billy Dowong, Corporal Gugl John, John Billy and Sawang Munzhie who gave evidence by affidavit. Their respective affidavits were tendered by consent and they were not cross-examined. They refuted the evidence of the plaintiff’s witnesses Sally Staki and Bunat Pasik whose affidavits was also tendered by consent and were not cross-examined.

14. The defence objected to the admissibility of these witnesses’ affidavits because each page of their affidavits was not signed by them and verified by a Commissioner of Oaths. This defect is overcome by the concession made by it to have them tendered and relied upon at trial. The real issue is whether their evidence is credible to establish the allegation of fabrication of the date of declaration. And on that, it was their evidence that Mr. Ryan declared the third defendant as candidate elected on 19th July.

15. Except for the plaintiff and the third defendant who were absent when the declaration was made, all the other witnesses asserted that they were present and either denied or affirmed that the declaration of the result was on 18th July.

16. It was quite obvious that none of the witnesses was willing to concede and it was difficult to work out which version should be accepted. Both parties’ evidence was evenly matched and even, demeanour wise, those witnesses who were cross-examined did not give much away to cast a doubt on their credibilty. Counsel for each party also did not do enough to discredit the evidence of those witnesses who were cross-examined. Neither did it help when those witnesses who filed affidavits for each party were not called and cross-examined.

17. It is not the function of the Court to direct parties on how to lead their evidence and prove or defend the allegation(s). However, testing the veracity of the evidence of witnesses is crucial where the evidence is evenly matched. In Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) SC1337 the Court observed that:

“………rules of evidence and techniques of trial are essential in achieving a successful outcome for a party’s case, whether it is the prosecution or defence. One of them is the success in destroying a party’s case in cross-examination. No matter how strong and impeccable a witness can be in his or her evidence in chief, the credibility and reliability of the evidence can be destroyed or diminished if cross-examination of the witness reveals inconsistencies, conflicting accounts and admissions. It is also a tool used by counsel to test the temperament of the witness. A lack of credibility may not be easily attributed to a cool and calm witness as opposed to an aggressive and hot headed witness in cross-examination.”

18. In David Arore v. John Warisan & Electoral Commission (2015) SC1448 the Court further observed:

“18. Evidence of a witness may be regarded as lacking in credibility and reliability if the evidence in chief is contradictory. Another instance is where it is inconsistent with other evidence, for example,...