OS No.405 of 2012; Wesley Koke & 20 others whose names are listed in the Schedule attached to the Originating Summons v Tom Kiap - the Returning Officer for Mul Baiyer Lumusa Electorate and Andrew S. Trawen - the Electoral Commissioner of Papua New Guinea and Papua New Guinea Electoral Commission (2012) N4733

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 12 July 2012
• Court: National Court
• Citation: (2012) N4733
• Year: 2012
• Judgement Number: N4733

Full Title: OS No.405 of 2012; Wesley Koke & 20 others whose names are listed in the Schedule attached to the Originating Summons v Tom Kiap - the Returning Officer for Mul Baiyer Lumusa Electorate and Andrew S. Trawen - the Electoral Commissioner of Papua New Guinea and Papua New Guinea Electoral Commission (2012) N4733

National Court: David, J

Judgment Delivered: 12 July 2012

N4733

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.405 of 2012

BETWEEN:

WESLEY KOKE & 20 others whose names are listed in the Schedule attached to the Originating Summons

Plaintiffs

AND:

TOM KIAP - the Returning Officer for Mul Baiyer Lumusa Electorate

First Defendant

AND:

ANDREW S. TRAWEN - the Electoral Commissioner

of Papua New Guinea

Second Defendant

AND:

PAPUA NEW GUINEA ELECTORAL COMMISSION

Third Defendant

Mt. Hagen: David, J

2012: 11 & 12 July

GENERAL ELECTIONS TO PARLIAMENT – application for enforcement of constitutional right – right to vote – polling not conducted at Kulimbu 1 & 2 and Mandawasa 1 & 2, Mul Baiyer Lumusa Electorate, Western Highlands Province as scheduled on date scheduled - criminal elements destroyed all four ballot-boxes allocated for polling – ballot-papers and other electoral documents and equipment not destroyed – no positive or favourable response received to pleas to electoral officers for Western Highlands Province and Electoral Commission to re-poll with new ballot-boxes at Kulimbu 1 & 2 and Mandawasa 1 & 2 – right to vote – qualified right – compliance with requirements of Constitution and Organic Law on National and Local-level Government necessary before right can be exercised – onus on plaintiffs to prove right infringed – standard of proof on balance of probabilities – right of some plaintiffs infringed - powers of Electoral Commission – powers of National Court - application refused.

Cases cited:

SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214

Re The New Ireland Provincial Constitution [1984] PNGLR 81

William Dihm v Returning Officer for Moresby South Electorate & Anor [1992] PNGLR 377

Thomas Negints v Electoral Commissioner (1992) N1072

SCR No 4 of 2002; Special Reference Pursuant to Section 19 Constitution, Reference by Francis Damem, Attorney-General (2002) SC689

Electoral Commission & 3 Ors v Pila Niningi (2003) SC710

Oscar Pomaleu & 2 Ors v William Skate Jnr and Anor (2006) SC838

Dr Clement Waine v Andrew Trawen (2007) N3132

Counsel:

Paul J. Othas, for the plaintiffs

RULING ON MOTION

1. DAVID, J: The plaintiffs commenced the substantive proceedings by ordinary originating summons filed on 6 July 2012 seeking a couple of declarations which in essence constitutes their application pursuant to Section 57 of the Constitution. They claim that the right to vote accorded to every citizen guaranteed under Section 50 of the Constitution has been infringed. By notice of motion filed on 6 July 2012, the plaintiffs seek the following principal orders:

“1. The strict requirement of service be dispensed with pursuant to Order 1 Rule 7 of the National Court Rules and Section 155 (4) of the Constitution on the basis of the nature of the orders sought herein.

2. The defendants issue four (4) new ballot boxes with new tags and serial numbers to the affected polling areas of Kulimbu 1 & 2 and Mandawasa 1 & 2 of Mul Baiyer Lumusa Electorate, Western Highlands Province forthwith pursuant to Sections 57 and 155 (4) of the Constitution.

3. The First Defendant be directed by the Second and Third Defendants to conduct polling in the affected polling areas specified in term 2 of this Order within 24 hours pursuant to Sections 57 and 155 (4) of the Constitution.

4. The defendants, their servants, agents or officers be restrained from proceeding with the counting of ballot papers or votes for the entire Mul Baiyer Lumusa Electorate of Western Highlands Province pending the polling in the affected areas specified in term 2 of this Order or until further orders of the Court pursuant to Section 155 (4) of the Constitution.”

2. On 12 July 2012, I gave an extemporary judgment refusing the application and undertook to give an amplified judgment containing my full reasons later. This I now do.

3. The requirement for service of documents on the first defendant was dispensed with for the purposes of this application. The Second and Third Defendants were served with documents constituting this application.

4. Leave was granted for the plaintiffs to move their motion ex-parte.

5. At the hearing, Mr. Othas of counsel for the plaintiffs indicated that the relief sought in item 4 of the notice of motion would not be pursued.

6. In support of the application, the plaintiffs rely on thirty affidavits. These are:-

1. Affidavit in Support of Wesley Koke sworn and filed on 6 July 2012;

2. Affidavit in Support of Paul J. Othas sworn and filed on 6 July 2012;

3. Affidavit in Support of Cr. Simon Kolalyo sworn and filed on 6 July 2012;

4. Affidavit in Support of Joe Ponga sworn and filed on 6 July 2012;

5. Affidavit in Support of Lai Kareyok sworn and filed on 6 July 2012;

6. Affidavit in Support of Missi Napili sworn and filed on 6 July 2012;

7. Affidavit in Support of Simon Ponga sworn and filed on 6 July 2012;

8. Affidavit in Support of Samson Melepa sworn and filed on 6 July 2012;

9. Affidavit in Support of Paul Trambuwa sworn and filed on 6 July 2012;

10. Affidavit in Support of Mali Pyale sworn and filed on 6 July 2012;

11. Affidavit in Support of Luke Kiap sworn and filed on 6 July 2012;

12. Affidavit in Support of Cr. Terry Kiap sworn and filed on 6 July 2012;

13. Affidavit in Support of Namba Lamoa sworn and filed on 6 July 2012;

14. Affidavit in Support of Peter Kelya Jack sworn and filed on 6 July 2012;

15. Affidavit in Support of Pius Mukali sworn and filed on 6 July 2012;

16. Affidavit in Support of Steve Paka sworn and filed on 6 July 2012;

17. Affidavit in Support of Saupingi Mapiso sworn and filed on 6 July 2012;

18. Affidavit in Support of Peter Pampen sworn and filed on 6 July 2012;

19. Affidavit in Support of Yalu Yanda sworn and filed on 6 July 2012;

20. Affidavit in Support of Jeffrey Kundi sworn and filed on 6 July 2012;

21. Affidavit in Support of Paka Nanowa sworn and filed on 6 July 2012;

22. Affidavit in Support of Luke Nanowa sworn and filed on 6 July 2012;

23. Affidavit in Support of Douglas Kilipi sworn and filed on 6 July 2012;

24. Affidavit in Support of Simon Ontenge sworn and filed on 6 July 2012;

25. Affidavit in Support of Iki Pora sworn and filed on 6 July 2012;

26. Affidavit in Support of Poo Yanda sworn and filed on 6 July 2012;

27. Affidavit in Support of Rote Rapura sworn and filed on 6 July 2012;

28. Affidavit in Support of Pawa Lakapuwa sworn and filed on 6 July 2012;

29. Affidavit in Support of Samuel Wari sworn and filed on 6 July 2012; and

30. Affidavit of Service of Mark Neta Pyawa sworn on 10 July 2012 and handed up at the hearing.

7. Apart from Paul J. Othas, Steve Paka, Namba Lamoa, Pius Mukali, Peter Kelya Jack, Saupingi Mapiso, Peter Pampen, and Mark Neta Pyawa all other deponents are the plaintiffs themselves and an elector whose name appears on the Electoral Roll for ward 25 (Kulimbu 1) namely, Samuel Wari.

8. Paul J. Othas is the counsel for the plaintiffs. Steve Paka and Namba Lamoa are the presiding officers appointed to conduct polling at Kulimbu 1 and 2 respectively. Pius Mukali and Peter Kelya Jack are the presiding officers appointed to conduct polling at Mandawasa 1 and 2 respectively. Reserve Police Constable Saupingi Mapiso and Reserve Police Sergeant Peter Pampen were two of the four policemen assigned to provide security at Kulimbu 1 and 2 and Mandawasa 1 and 2. Mark Neta Pyawa, is a para-legal employed by Paul Othas Lawyers who effected service of the originating process, the notice of motion, an undertaking as to damages signed by all plaintiffs filed on 6 July 2012 and all affidavits supporting this application, but for his, at the Office of the Electoral Commission, Port Moresby on 10 July 2012. The undertaking as to damages was not relied on at the hearing seemingly because the relief sought in item 4 of the notice of motion was not pursued.

9. The facts from the affidavit evidence are pretty much straight forward and I find the relevant facts to be these. The plaintiffs come from Kulimbu 1 and 2 and Mandawasa 1 and 2 villages in the Mul Baiyer Lumusa electorate in the Western Highlands Province. These villages are situated in Wards 25, 26, 27 and 28 respectively. According to the recently updated Electoral Roll summary made up to 7 June 2012 for the Mul Baiyer Lumusa electorate, a copy of which is annexed to Wesley Koke’s affidavit as annexure “B”, there are 2,349 registered electors from these four villages combined. Kulimbu 1 has 532 electors and Kulimbu 2 has 373 electors. Mandawasa 1 has 912 electors and Mandawasa 2 has 532 electors. Copies of the Electoral Rolls for Wards 25, 26, 27 and 28 made up to 7 June 2012 which are annexed to the affidavit of Samuel Wari as annexures A, A1, A2 and A3 confirm these figures....