Simon Bintangor Sia v Peter Numu

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 08 August 2018
• Citation: (2018) N7399
• Court: National Court
• Year: 2018
• Judgement Number: N7399

Full : EP No 77 of 2017; In the matter of the Organic Law on National and Local Level Government Elections and in the matter of a disputed return for the Eastern Highlands Provincial Electorate; Simon Bintangor Sia v Peter Numu and the Electoral Commission of Papua New Guinea (2018) N7399

National Court: Anis J

Judgment Delivered: 8 August 2018

N7399

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 77 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURNS FOR THE EASTERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN:

SIMON BINTANGOR SIA

Petitioner

AND

PETER NUMU

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Goroka: Anis J

2018: 7 & 8 August

ELECTION PETITION – Objection to the use of video footage – video footage not attached as an annexure – witness seeking to tender the video footage to support content of his deposition – Sections 212 & 217 of the Organic Law on National and Local-level Government Elections discussed – whether the Evidence Act Chapter No. 40 and the National Court Rules apply

Facts

At trial, the first respondent objected to the petitioner’s first witness tendering of a video footage. The witness wanted to tender the video footage to support what he had viewed in the said video footage which he had deposed to in his affidavit.

Held

1. Section 217 of the Organic Law on National and Local-level Government Elections shall apply and shall supersede the application or strict application of the Evidence Act Chapter No. 40.

2. The pleadings in the petition were sufficient enough to constitute or give notice to the respondents that the petitioner would be relying on the video footage at the trial of the matter.

3. Both respondents had every opportunity to request or discover documents, including the production of the video footage, from the petitioner as of 13 September 2017, but they had failed to do so.

4. The first respondent’s argument that there was a lack of notice given by the petitioner to him, to tender the video footage, is baseless.

5. To observe real justice, this Court would have nevertheless, pursuant to sections 212 and 217 of the Organic Law on National and Local-level Government Elections, directed the production of the video footage to the Court, that is, in order for the Court to fully appreciate and consider the merit or want of merit of the grounds of the petition as well in considering the arguments the respondents will raise in opposing the petition.

6. The objection is refused with a consequential order which is that the first respondent is at liberty to file additional affidavits or call additional witnesses only in response or in relation to the content of the tendered video footage.

Cases cited:

Thompson v. Pokasui [1988] PNGLR 210

John Warisan v. David Arore (2013) N5217

Raymond Agonia v. Albert Karo [1992] PNGLR 463

Ginson Goheyu Saonu v. Bob Dadae (2004) SC763

Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5323

Simon Bintagor Sia v. Peter Numu and 1 Or (2018) N7106

Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342

Review Pursuant to the Constitution s.155(2)(b): Application by the Electoral Commission; Re Southern Highlands Elections Act 1979 [1991] PNGLR 372

Counsel:

Mr Tom Sirae, for the Petitioner

Mr Andrew Kongri, for the First Respondents

Mr W Kaum, for the Second Respondent

RULING

8th August, 2018

1. ANIS J: The trial for this matter commenced on 6 August 2018. The petitioner called his first witness Abraham Rolu. During examination in chief, the witness was about to tender a video footage, which he had deposed to as part of his sworn evidence when the first respondent objected. Parties were given time to file submissions on the objection, and the matter was adjourned to 9:30am on 7 August 2018.

2. On 7 August 2018, the Court heard arguments from the parties. The second respondent supported the first respondent’s objection. The petitioner opposed the objection.

3. I reserved my decision thereafter to 9:30am today. The matter was further deferred to 11am this morning. This is my ruling.

GROUNDS

4. The first respondent gave two (2) reasons for objecting to Mr Rolu tendering the video footage. His counsel submits that the petitioner did not notify them that the video footage would be tendered as an evidence at the trial. Counsel submits that they are now taken by surprise or are informed at the 11th hour. The second reasons is this. The first respondent submits that since there was no warning given, the Evidence Act Chapter No. 40 (the Evidence Act) precludes evidence such as the video footage from being introduced at the last minute. The second ground is obviously made in reference to Part IV Division 5 Electronic Evidence of the Evidence Act.

5. The second respondent supports the objection raised by the first respondent. Its main argument is based on alleged failure by the petitioner to comply with Order 11 Rule 24 of the National Court Rules. The said rule in summary states that if a document is to be attached to an affidavit and if it is convenient to do so, it shall be so attached as an annexure to the affidavit. But if the document is not convenient to be attached to the affidavit as an annexure, the document may be attached as an exhibit and if that is the case, it must be identified by a certificate to show that it is part of the affidavit. The second respondent also refers to rule 22 of the Election Petition Rules and Order 1 rules 7 & 8 of the National Court Rules. In summary, these rules deal with dispensation of compliance of the court rules. The second respondent’s argument is that since the petitioner had not formally sought dispensation under the National Court Rules or under the Election Petition Rules, he was required to comply with the strict requirements of Order 11 Rule 24 of the National Court Rules, and because he has not done that, the objection should be upheld.

6. As for the petitioner, he submits as follows: He says that pursuant to section 217 of the Organic Law on National and Local-level Government Elections (OLNLGE), the National Court is not bound by the strict or technical rules of evidence. He says the witness therefore is entitled to and the Court should grant leave to tender or accept the video footage as evidence before the Court. Counsel also says that he had, at an earlier directions hearing before Justice Makail, informed the Court that the petitioner would tender the video footage at the trial. Counsel says that had he been given the opportunity, he would have proven that with the transcript of the said directions hearing. Moving on, counsel also submits that the video footage and what was alleged to have been said in the video footage have been expressly pleaded so he submits that the respondents knew or ought to have known that the video footage would be tendered at the trial.

COURT’S APPLICATION OF EVIDENCE

7. This Court derives its powers from sections 206 and 207 of the OLNLGE. I refer to cases: Thompson v. Pokasui [1988] PNGLR 210; John Warisan v. David Arore (2013) N5217 at para 131). As an election petition Court, let me look at the relevant provisions under the OLNLGE that covers or deals with evidence. Two (2) notable provisions are sections 212 and 217. I set them out here as follows:

212. Powers of court.

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d) order a re-count of ballot-papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment.

(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

…..

217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence...