Bebes v Oiufa [2002] PGDC 34; DC435 (23 October 2002)

DC435

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

LLG PEP NO 24 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 URBAN LOCAL Level Government Elections for the WARD FOUR (4)

BETWEEN

SERO BEBES
Petitioner

V

ALUM OIUFA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Goroka: Manue F. Magistrate
2002: 4th, 23rd October

REASONS FOR JUDGEMENT

MANUE F: This is a Local Level Government Election Petition of 2002 National and Local Level Government Elections. The Petitioner is disputing the Return of the First Respondent on the grounds of Illegal Practices, Residential qualifications and Electoral irregularities. When the First Respondent was returned as the Councillor for Ward four (4) in the Kainantu Urban Local Level Government, in the Kainantu Open Electorate of the Eastern Highlands Province was the Respondent registered in the Common Roll and if so whether his name is enrolled in Ward four (4) Census Unit which is within the boundaries of the Kainantu Urban Government area?

GROUNDS OF PETITION:

The Petitioner raised three grounds to invalidate the election.

The first ground is that the first respondent is said to be living outside the proclaimed town boundaries of the Kainantu Urban LLG.

At the time of polling on the 21st of June 2002, a polling booth was set up in the Bundaira Correctional Institution where voters cast their votes.

The Petitioner relied on three grounds – in his petition.

Secondly, on the relevant date it was claimed that the first respondent did illegal practices as forcing voters to vote, intimidating and threatening voters and remaining at the polling booth during the day of polling.

As to the ground of residency disqualification, the Petitioner claimed that he first respondent was not qualified to contest the Ward 4 Seat in the Kainantu Urban LLG because he was not living in Ward 4 but in Ward 35 of Obura Wonenara Open Electorate, which includes Bundaira Block Census Unit.

This ground was struck out as the Petitioner did not comply with Section 208 (a) of the Organic Law in providing clear particulars and facts of the first respondent’s residency disqualification claim.

The third ground relied on by the Petitioner to over turn the elections was that there were electoral irregularities in that the first respondents name did not appear under Ward 4, Census Unit within the proclaimed boundaries of Kainantu Urban LLG.

I deal with the third ground first.

FACTUAL EVIDENCE

The Petitioner claimed that the First Respondent resides outside of the Kainantu Urban Local Level Government boundary and that he should not have voted nor stood for public elective office for Ward 4 in the Kainantu Urban LLG elections but for Ward 35 in the Obura Wonenara Open Electorate.

With permission from the Electoral Officials he produced the Common Roll of Kainantu Open Electorate which also contains Kainantu Urban LLG enrolments. The Common Roll has the Petitioners name and the First Respondent’s. His name however appears under the Census Unit of Bundaira Block rather than Bundaira Correctional Institution Services (CIS).

He also produced a proclamation of the KAINANTU URBAN LOCAL LEVEL Government boundaries, issued by the then Governor General Sir Wiwa Korowi dated 10th day of July 1997. The proclamation contains or specifies the boundaries of the Kainantu Urban LLG, and in which are Seven (7) Council Wards, Census Divisions and Units.

Ward 4 in issue, is inclusive of Bundaira CIS, as its census unit but excludes Bundaira Block which has enrolment of the first respondent.

It must also be stated here that the first respondent did enquire with the employees of the third respondent several times whether he had his name in the Common Roll. He was informed affirmatively in that regard.

The real question in this Case is not whether the first respondent’s name was on the Common Roll but rather, whether his name appeared in the Common Roll under a particular Census Unit of the particular Ward. In this case Bundaira CIS Census Unit is in Ward 4, following the proclamation in 1997.

THE LAW:

Section 250 of the Organic Law clearly States that any person who wishes to exercises their Constitutional Right under Section 50 and participate in an Election must comply with the requirements of law by being enrolled in the Common Roll.

Division 4 of the Organic Law on National and Local Level Government Elections spell out the provisions of Qualifications and Disqualification’s for Enrolment and or Voting.

The Organic Law require all persons to enrol in the Common Roll book if the persons intent to exercise their Constitution Rights under Section 50 (right to vote and stand for public office) of the Constitution.

Section 250 is in these terms:-

"(1) All persons who have a right to vote under Section 50 (right to vote and stand for public office) of the Constitution who comply with the requirements of Division 5 for enrolment for a ward are entitled to enrolment (Emphasis mine).

(2) All persons whose names are on the Roll for a Ward shall, subject to this law and to the provisions of any other law in force, vote at elections of a member for the Ward but no persons is entitled to vote more than one at an elections or at more than one election held at the same time". (Emphasis are mine).

It is clear from these provisions that enrolment in a Common Roll is a must before anyone can exercise their Constitutional rights under Section 50 of the Constitution, to either vote or stand for an elective public office.

In the leading Case regarding non-enrolment on Common Roll before exercising Section 50 of the Constitution, is Daniel Don Kapi –vs- Takai Kapi (SCR 88 of 1997).

The applicant had initially disputed the election win of the respondent in the National Court arguing inter alia, that the Respondent was not properly qualified to stand for the Wabag Open Electorate because he was not properly qualified under the Constitution. This was by reason of the fact that the respondent was not enrolled in the Common Roll as a Voter in the Electorate.

The National Court ruled in favour of the first respondent that wining candidate Taki Kapi was enrolled on the Common Roll and therefore was entitled to nominate for Parliament. The trial Judge therefore dismissed the Petition.

The Applicant, not being satisfied sought review in the Supreme Court of the finding and the dismissed order of the National Court.

After discussion of Section 50 of the Constitution and its express limitations the Court at page 6 said.

"To be entitled to vote, one must comply with these requirements of the Organic Law on enrolment. In other words, a person must be enrolled in order to exercise that right to vote. If a person has not enrolled then that person is not entitled to vote nor stand for an election. A person must be qualified to stand and or vote in an election. If a person is not qualified then that person cannot stand and or vote in an election"

The Court found that the respondent’s name was not properly enrolled in the Common Roll, even though he had applied to be enrolled two days after nominations were opened, and declared the First Respondent Not duly elected. And more specifically in a particular Ward.

In the case of Daniel Don Kapi –vs- Takai Kapi (Supra) the respondent had applied to have his name enrolled on the Common Roll and participated in the elections for an elective public office.

The National Court ruled in favour of the Respondent. On review the Supreme Court, ruled that the first respondent had not enrolled in the Common Roll and declared the election void.

Facts from that Case differ from this Case. In the present case, a Local Level Government Council petition, the first respondent’s name is on the Common Roll but does not specifically appear under the particular Census Unit following the proclamation of the Urban LLG by the then Governor General dated 10th day of July 1997. By contrast in the Don Daniel Kapi (Supra) case the respondent has gone through the process of enrolment in the Common Roll, but that his name did not appear in the Common Roll when he went for elections.

In my view, one of the Prime purposes of enrolment in the Common Roll is so that elections are conducted not only in fashion but also honestly and orderly democratically, where electors vote for their leader within their electorate. And with the Local Level Government elections in place, ward Councillors be elected by residence of that particular Ward, whose names appear on the roll without exception.

In my view Bundaira Block does not come within the boundaries contained in the Proclamation of Kainantu Urban LLG.

The Proclamation was made pursuant to the provisions of the Organic Law.

The fact that the Respondents did not erase Bundaira Block Voters from Ward 4 to have their names enlisted in Ward 35 of Obura Wonenara Electorate amounts to an omission of duty by the second Respondent and therefore is an electoral irregularity.

Had the first respondent been enrolled in his particular census unit, he would not have contested in the ward 4 of Kainantu Urban LLG and definitely without any doubt would have affected the result of the elections.

I need not discuss the ground of illegal practices.

Firstly, the evidence was so tainted and unconvincing to establish the claims. Further to that, the ground of electoral irregularity has been well made out.

In answer to the questions raised, I rule that although the first respondent did have his name enrolled in the Common Roll, his name appear under a different ward, which did not entitled him to participate in the elections, particularly in elective public office for that particular Ward four (4).

I declare the 2002 elections of Ward 4 in the Kainantu Urban Local Level Government to be null and vote and that the Second Defendant conducts a fresh elections of Ward 4 sooner.