Evari v Willie [2002] PGDC 1; DC89 (1 January 2002)

DC89

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO LEP OF 2002

BETWEEN

PETER EVARI
Petitioner

AND

NIGEL WILLIE
First Respondent

AND

RICHARD TAYLOR
Second Respondent

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent

MT. HAGEN

S W SENEKA
2002

JUDGMENT

PETITION:

1. Before the polling started the Presiding Officer explained the procedures in casting votes and any Local Level Government Ballot Papers found in the National Candidates Ballot Boxes and any National Candidate's Ballot Papers found in Local Level Government Ballot boxes will be declared informal.

Peter Evari was the Duly Elected member for Ward 5 for Urban Local Level Government Council because the (4) Ballot papers found inside the National Boxes were informal.

During the counting of votes at Biru on 21.06.02, the Petitioner Peter Evari had collected (94) votes and Nigel Willie (91) votes.

RELIEF SOUGHT:

That Peter Evai is Duly Elected for Ward (5).

There were eleven (11) witnesses three (3) for Petitioner and (8) eight for the Respondent.

I will briefly outline each witness's evidence basing it on the Petitioner's petition as above.

PETER EVARI

Casting of votes was on the 19th June 2002 and on 20th at CIS Biru.

Prior to voting at CIS Biru on the 20th June 2002, Kenneth Paine introduced voting procedure. He said if ballot paper for LLG found in National Boxes and vice versa the Ballot Papers will be declared informal.

After casting of votes at Biru counting started at Biru. At the end of the day the results was that the Petitioner was leading at (94) and first Respondent at (91). There was a recount at Council Chamber and the result were still the same.

KIPLIN BALLICO

Heard Presiding Officer Kenneth Paine prior to polling said that any LLG papers found in the National boxes and vice versa will be declared informal.

KIPUN BALIFO

Heard Presiding Officer Kenneth Paime prior to polling said that any LLG papers found in the National boxes vice versa will be declared informal.

PAUL HUDSON

The second counting was in progress when advised. Came and joined towards the end of the count. In cross examination by K. Ralai he agreed after second count no declaration was made.

NIGEL WILLIE

Had prepared a statement and tender it to Court. Court accept and marked as an exhibit 'A'.

In the letter dated 21.08.02 he only said he was the duly elected Councillor for Ward 5 of Urban Local Level Government Council for Popondetta Town.

At the conclusion of the count he received (4) extra from a box for Regional Seat. Prior to that he collects (91) while Mr. Evari - (94).

He was duly elected councillor and he believes there were no foul play, deceit etc involved.

LARI SEVESE

Scrutineer for Nigel Willie at Patti and Biru was also scrutineer for winning Candidate for the Ijivitari National Parliament.

At the closing of counting at Biru, Nigel Willie received (91) and Peter Evari (94). Recount at Council Chamber remain the same but National Box from Ward (5) found (4) votes for Nigel Willie. The votes were found to be certified/good and formal so were counted.

MARTIN JAMES.

After voting at Biru the votes were counted. The result Peter Evasi (94) and Nigel Willie (91).

Second count the same figure (94) and (91) Box the National Election count discovered (4) more for Nigel Willie.

JONATHAN KAWARO

A policeman on duty from 8 pm to 10pm at Central Tally Room. While on duty had walked to Ijivitari Registered Counting Room saw (4) Ballot papers taken out from Ijivitari Ward (5) Box. They were for Nigel Willie.

RICHMOND JAYLOR

Returning Officer for Ijivitari for the National and LLG election. Prior to election there were pre election briefings by Electoral Training Officer assisted by Returning Officer and Provincial Returning Officer.

Briefings were in relation to Electoral procedures Offences and other related Electoral duties.

Team (5) was ordered to make its report. There was no mention about Presiding Officer making comments on formality or informality of ballot paper. This is the Returning Officers responsibilities at the Central Scrutineer Centre when actual counting was taking place.

If Presiding Officer had said that it contradicts instruction given during the briefings.

When Nigel Willie asked us to re-check and not recount his and Peter Evari's result were same. Peter Evari was 1 less and ballot paper was for Susie so Nigel Willie (91) Peter Evari from (95) to (94).

During the counting of Ijivitari (4) Ballot papers for Nigel Willie were found. Legal opinion was sought saying so long as the vote complies with the law they should be accepted.

Petitioner objected basing his objection on the election address by Presiding Officer but told him to go to Court.

Declaration is only made by the Duly Appointed Returning Officer and none others.

KENNETH BAINE,

Presiding Officer for Ward 5 Urban Local Level Government Popondetta.

He did make a Pre-polling speech on 20.6.02 at CIS Biru and never mentioned about formal or informal votes.

KILA RALAI

Provincial Returning Officer.

I have Electoral manuals of Election for Returning Officer, Presiding Officer and Polling Officers which set out Polling Procedures. I can't see Presiding Officer should make such comment.

That being the brief analysis of each witness, it is clear from the evidence that both sides contradicted each others.

Petitioner and his (2) witness said Pre Polling speech was made and one of the matter raised was on ballot paper for LLG found in National Boxes and vice versa any will be considered informal. When (4) were found in National Election Boxes for Ijivitari Ward (5) such are not counted as informal. They were counted as Nigel Willie's votes.

On the other hand Respondent made no mention of such during pre-polling speech or spoken such words in the speech.

As the evidence stands, the issues are:-

(1) Was the statement that any LLG Election Ballot Papers found in the National Boxes or vice versa be held informal were ever said at the Biru Pre-Polling speech.

(2) If so would such Ballot papers be informal.

The Petitioner and his two (2) other witnesses said they heard such comments by the Presiding Officer during the pre-polling speech. Neither first Respondent nor his (3) three witnesses made any reference to it.

Only the Presiding Officer Kenneth Paine mentioned it and denied ever including it in the pre-polling speech. Mr. K. Ralai only said he cannot see why his Presiding Officer should say it after so much time spent on Pre Election Training and briefings.

I'm inclined to believe the Petitioner and his witness because they heard him say it. Though Presiding Officer denied it. He had no support from first Respondent and his three (3) witnesses. For a Ballot Papers to be formal, it must be in a prescribed form (Section 124), initial by Presiding Officer (see 156) and an "x" placed on voters choice of candidate.

The Court had held that where the Ballot Paper was not initialled according to section 126 were held to be informal.

In the case of Port Moresby North West Parliamentary Election Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 538 - failed to initial ballot paper, while in Re Bayer MUL Open Parliamentary election Mokwa Mamando v Pyange Ni [1977] PNGLR 496 - initialled on front of ballot papers.

In the case of Nahau Roony v James Pokasui and Electoral Commission [1982] PNGLR 351 held that "any ballot papers clearly indicate the intention of the vote and the candidate for when he or she has given his or her votes". Should be accepted as formal.

The cases clearly show that if the "x" is placed and clearly shows the intention of the voter and the Ballot Paper is properly initialled at the back it could not be made informal.

I cannot see why the (4) Ballot Papers should be informal because of what the Presiding Officer said. It cannot be and this Court ignores it.

So through the statement that any Local Level Government Ballot Papers found in National election box or vice versa be held informal was indeed said during the Presiding Officer's Pre Polling speech. This court has ignored its implication or its enforcement.

Reason being that if the ballot papers themselves comply with (see 124 (Prescribed Form) Sec 126 (Properly initial) and "x" correctly show intention of the choice of the voters it should be formal and be accepted.

For those reasons first respondent Nigel Willie is Duly Elected Councillor for Ward 5 of Urban Local Level Government Council Popondetta.