Yontavi v Bara [2002] PGDC 17; DC218 (18 November 2002)

DC218

PAPUA NEW GUINEA
[In the District Court of Justice]

CASE NO 25 OF 2002

In the Matter of the Organic Law on National and Local Level Government Elections

AND

In the Matter of a Dispute of Returns for the KAINANTU RURAL LOCAL Level Government Elections for the WARD FOURTEEN (14).

BETWEEN

Rofa Yontavi
Petitioner

V

Aufi Bara
First Respondent

Electoral Commission
Second Respondent

GOROKA: MANUE F. Magistrate
2002: 1st & 18th November

REASONS FOR JUDGEMENT

MANUE F: This is a Local Level Government Elections Petition filed by the Petitioner to nullify the return the first respondent, returned on the 16th July 2002, for the Ward 14 of Kainantu Rural Local Level Government.

Is it mandatory for a Village Court Chairman to resign or vacate his office before he exercises his Constitution right under Section 50 to stand for elective public office.

FACTS:

The Petitioner and the first respondent were Candidates for Ward 14 in the Kainantu Rural LLG for the 2002 elections. The elections of National Parliament and the Local Level Governments were conducted simultaneously, which polling day was 21st June 2002 for Kainantu Rural LLG.

GROUNDS OF PETITION:

The Petitioner relied on three grounds. He alleged that the first respondent committed illegal activities by way of committing unlawful assault on his scrutineer, which prevented the Scrutineer from carrying out his responsibilities at the Polling booth.

Secondly, he alleges that the first respondent did not resign his position as the Chairman of a School Board of Management, before contesting the LLG elections.

Finally, the Petitioner alleges that the first respondent did not vacate his position as the Village Court Chairman for the Anona/Onhono Village Court before contesting in the LLG elections.

I will deal with the grounds relied on in their respective orders.

The first ground relied upon alleges illegal practice, particularly by using force ILLEGAL Practices are set out under Section 286, and for this purpose in Subsection (h) it reads:-

1. Subject to subsection (2) the following are illegal practices:-

(a)...........................

(b)...........................etc

(h) by force, treat, fraud, misrepresentation, undue influence or in any other manner inducing or attempting to induce another person to vote or said to vote at an election, or to vote for a particular person at an election.

So far as the evidence of the petitioner goes, the scrutineer of the petitioner was assaulted, while was going to the polling booth to do what he was assigned for. This action prevented the scrutineer from attending to his scrutiny duties.

The evidence does not suggest that there were other voters present then, and if any, how many were present then. Evidence did not show that, due to the actions of the first respondent and his supporters in assaulting the Scrutineer, voters particularly for the petitioner were influenced by the first respondent’s actions. And in doing so, the voters were turn away and were deprived of their Constitutional right to vote.

In the absence of such evidence of the first respondent’s action influencing voters to vote for the petitioner or abstaining from voting. I must find that the illegal practice allegation fails to show that an offence has been committed under Section 286 (h) of the Organic Law.

I now turn to the second ground.

Although, the Petitioner’s witness to have testified in regard of the ground, filed his affidavit the witness did not take the witness box in order for his evidence to be tested.

Secondly, the Petitioner did not produce, the School’s Constitution or policy, in order for it to verify, whether there is anything in it regarding Board of Management Resignation for the purpose of standing for public elective office.

I find that, failure of the Petitioner in providing such evidence lacks substance of his allegation. I am therefore not satisfied of the ground, being made out.

The final ground relied upon is similar to the second ground, except that this time it is alleged that he first respondent did not resign his Chairman position of the Village Court, before contesting in the LLG elections.

The Village Court system is created by an Act of Parliament pursuant to Section 172 – Establishment of other Courts – of the Constitution.

The Village Court Act establishes "Village Court and Village Peace officers their jurisdiction, powers, duties, practice and procedure and for other purposes".

Section 17 provides for appointments of Chairman and Deputy Chairman of Village Courts.

Section 20 gives rise to grounds of Revocation of Village Magistrates. I set out in full Section 20.

20 – Revocation of appointment of Village Magistrates.

The minister may on the recommendation of the Secretary of a Local Level Government body, revoke the appointment of a Village Magistrate –

(a) for failure to attend to duty; or

(b) for incapacity; or

(c) for misconduct; or

(d) if he resigns; or

(e) if he dies.

This provision provides for resignation by a Village Magistrate, but it does not include for what reason or purpose Village Magistrate may resign. It may be for health or personal reasons or even for the purpose of standing for public elective office.

In my view the purpose of this Section, is two fold.

Firstly, once a Village Magistrate resigns and a recommendation is made by the Secretary, the minister revokes his appointment.

Secondly, upon revocation of an appointment of a Village Magistrate, he ceases to exercise judicial powers or functions under the Village Court Act.

It does not state whether a Village Magistrate vacates his position before contesting an LLG elections.

My further research of the issue gave me the impression that a Village Magistrate may also hold the office of a Councilor.

Section 82 of the Village Court Act which seems to say that is in these terms:-

82. Exclusion of Local Level Government Councilors etc.

(1) Where any proceedings are brought by, or by authority or direction of, a Local Level Government body, a Village Magistrate who is –

(a) a Councilor; or

(b) an associate member of a Ward Committee; or

(c) an officer or employee of a Local Level Government body is not eligible to sit as a member of the Village Court in the proceedings. (emphasis mine).

As emphasized, in my view, a Village Magistrate can also be a Councilor. The Law here implies that, a Village Magistrate or Chairman and Deputy Chairman, need not resign as such prior to contesting in the LLG elections.

FORMAL ORDER:

1. I find that, the grounds relied on by the Petitioner to overturn the retain of the first Respondent as duly elected in Ward 14 of Kainantu Rural Local Level Government elections must fail and that the Petition is dismissed.

2. The Petitioner is to meet the Costs of the first Respondent, such Costs are to be agreed upon if not, taxed.

3. Security deposit fee is to be applied towards Costs referred to in (2) above.

In Person: Complainant
In Person: Defendant