Nianford v Mandui [2003] PGDC 4; DC102 (23 May 2003)

DC102

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICES]

NO 02 OF 2002 - 19 WSP

BETWEEN

THOMAS NIANFORD
Petitioner

AND

TITUS MANDUI
First Respondent

PETER SOLO

Second Respondent

YAPINO MANGO

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Vanimo

August J, DCM

14 October 2002
18 November 2002
17. 18 February 2003
23 May 2003

REASONS FOR DECISION

Cases Cited
Moresby North East Parliamentary Election (No2) Goasa Damena v Patterson Lowa [1977] PNGLR 448
Re-Biami Provincial Parliamentary Election [1980] PNGLR 140

Counsel: None

23RD MAY 2003:

The Honourable Titus Mandui, the First Respondent was elected as the Councillor or Ward Member for Ward 2, Dali-Makepa Vanimo Urban Local Level Government, Vanimo/Green District, Sandaun Province in the recent National and Local Level Government Elections conducted in 2002.

Mr. Thomas Nianford, the petitioner and unsuccessful candidate filed this election petition on the 12th September 2002 contesting the result of the election.

The petitioner filed some grounds (a) to (f) alleging that the First Respondent resides outside the Vanimo Urban Local Level Government area, and that the Second, Third and Fourth Respondents committed a serious omission by allowing the First Respondent to nominate as a candidate for Ward 2 Dali-Makepa in the Vanimo Urban Local Level Government.

The grounds were finally reduced to one by the Court and that is, the First Respondent did not qualify to nominate in Ward 2 Dali-Makepa because it was alleged that he resides outside of Ward 2 that is Ward 6 in Bewani-Wutung-Onei Local Level Government Area. It was alleged that the area where the First Respondent is residing is traditional land and is outside the Vanimo Urban boundary (Town Boundary). Having met the prerequisites of Section 208 of National and Local-Level Government Election, the matter went to trial on the question of whether the First Respondent is a resident of the electorate or ward he has been declared the winner. The First Respondent polled 66 votes while the Petitioner polled 47 votes, a difference of 19 votes.

The Petitioner gave evidence that he is a registered voter for Ward 2 Dali-Makepa Vanimo Urban Local Level Government. The Petitioner gave the reason for disputing the election of the First Respondent based on the Town Boundary, claiming that where the First Respondent resides, Makepa Point is traditional land. Makepa Point is under Ward 6, Bewani-Wutung-Onei Local Level Government area.

The Petitioner gave evidence that there are two Makepa, Makepa Urban where he resides and Makepa Rural where the First Respondent resides - on traditional land belonging to Vanimo Village.

Mr. Itimbien who gave evidence in support of the Petitioner describe the Ward 2 boundary as runs from the Airport (Power House) past the Catholic Church up to CBC Church and ends on the mountain (ridge) and runs along the ridge to CIS and ends at the CIS fence.

The First Respondent Mr. Titus Mandui on the other hand gave evidence that he is a resident of Makepa Point. In his evidence he told the Court he resides in the same Ward as the Petitioner, Ward 2 Dali-Makepa. He has lived in the Ward continuously since the 5th of January 1980 until today. He is a registered voter for Dali-Makepa Ward (No. 2). His name and the names of other voters residing with him at Makepa Point are printed in the Common Roll for the same Ward as the Petitioner in Vanimo Urban Local Level Government.

He nominated for the Ward No. 2, Vanimo Urban Local Level Government Election because Makepa Point is situated in the Vanimo Town boundary and is part of Ward 2 of Vanimo Urban Local Level Government. Similarly Wesdeco and Dasi are situated in the Vanimo Town Boundary respectively. The First Respondent produced a copy of a map identifying that Makepa Point is inside the Town Boundary, certified by the Provincial Lands Officer, Mr. Bruno Tanfa and approved by the Sandaun Provincial Planning Board on the 4th July, 2000, Meeting No. 5 of 2000. The plan/map was gazetted on Gazette No. 56 dated 1st September 1988. The Petitioner also pointed out that the Vanimo/Green Electorate has 6 Local Level Governments and Vanimo Urban Local Level Government is one of them. The total electoral population stands at 9,809 (2000 National Census). The First Respondent pointed out that Makepa Point is included in this total figure.

Mr. Peter Solo, the Second Respondent told the Court that he is not responsible for boundaries. His work is to co-ordinate the Election process within the Electorate of Vanimo/Green. He gave evidence that he accepted the nomination of candidates on the following grounds:-

(a) that the candidates were registered on the common roll and

(b) that the candidates have lived 2 years within that particular Ward or Electorate.

The Second Respondent concluded that because the First Respondent is qualified, he allowed him to nominate in Ward 2, Dali/Makepa. Mr. Solo tendered the Common Roll for Vanimo/Green River District and Vanimo Urban Local Level Government (Bound Book).

The Law on residency is clear. Section 103 (2) of the Constitution states:-

(2) "A Candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately presiding his nomination or for a period of five years at any time and must pay a nomination fee of K1, 000.00 (K500.00 for Local Level Government)".

The National Court in Moresby North East Parliamentary Election (No.2) Goasa Damena v Patterson Lowa [1977] PNGLR 448, invalidated Mr. Patterson Lowa’s nomination as a candidate or to be a Member of Parliament for Moresby North East on the basis that he could not be said to be a "resident" in a dwelling house which he retained during the beginning of the period of two years (s.103 of the Constitution) for the purpose of an investment and not as a residence and from which he has debarred himself from the liberty of returning to because of the continuance of tenancies during that period. This case only apply if a candidate cannot satisfy the other two requirements of being born there or having resided there for a period of five years at any time.

In this election petition, the only issue in my view is whether the First Respondent (Titus Mandui) is a resident of Dali/Makepa where he has been declared a winner.

The onus of proof that the First Respondent was not qualified must be discharged by the petitioner. The standard of proof is that there must be clear and cogent proof so as to induce, on the balance of probabilities, an actual persuasion of the mind (of the magistrate) that the candidate did in fact lack the required qualification (that of residency) Re Moresby North East (No. 2) Supra.

In my view I am not persuaded in my mind that the Petitioner has discharged the standard of proof required by law to prove that the candidate Mr. Mandui lacks the residency qualification to nominate for Dali/Makepa, Ward 2 in the Vanimo Urban Local Level Government.

There is no evidence to disqualify the First Respondent from his win. The argument by the Petitioner that Makepa Point is outside the town boundary could not be sustained, because I am of the view that where the political boundaries end the administrative boundaries may not.

This is particularly so in Vanimo Town because Makepa Point is not adjoining Vanimo Village, but is adjoining Vanimo Town. The geographical location of the area and the convenience of the residents at Makepa Point to basic services from the Urban Council and other government services could be better served if they are politically and administrative part of Vanimo Urban Local Level Government.

I am of the view that the motion by the Petitioner that the electoral boundary must follow the Town Boundary is not correct. Where the political boundary ends, the administrative boundary may at times continue based on the proclamation and the accessibility of services provided by that particular Local-Level Government or the State.

The Proclamation under the Organic Law on Provincial Government and Local Level Governments produced to Court by the First Respondent reads:-

"Establishment of Vanimo Urban Local Level Government

Within Vanimo Green Open Electorate in Sandaun Province (May 1997)".

In the schedule to the Proclamation sign by the Governor General, Sir Wawa Korowi on the 10th July 1997, it had Dali/Makepa as Ward No. 2. I am of the view that in light of that declaration I could infer that for all intended purpose based on convenience, Dali/Makepa, Ward 2 includes Makepa Point, where the First Respondent resides. It should be appreciated that Ward 2 Dali/Makepa is within the Electorate of Vanimo Green.

The Electorate of Vanimo Green is established by the Electoral Boundaries Commission. The boundaries on Wards are determined by each respective Local Level Governments who recommends to the National Executive Council (NEC) through the Minister responsible for Local Level Governments for a Proclamation to be made on that particular Urban or Rural Local Level Government. The Proclamation includes a schedule which divides Urban Local Level Government or Rural Local Level Government into Wards.

There is strong evidence that the voters in Makepa Point have voted in Ward 2, Dali/Makepa since 1997, where their names are enrolled. Jerry Kina whose name is on the common roll and a resident of Makepa Point also contested the same Ward. The First Respondent, Mr. Titus Mandui has been a resident of Makepa Point since 1980, and is a registered voter in Dali/Makepa with the Petitioner. There should be consistency in the provision of services by the Vanimo Urban Local Level Government to all residents of Vanimo Town, including Makepa Point as they do to the resident of Wesdeco in Ward 3 who resides on customary land.

The First Respondent tendered a certified copy of the Vanimo Town Boundary approved by the Sandaun Planning Board at their meeting No. 5 on the 4th July 2000. The Town Boundary was gazetted on Gazette No. 56 dated 01st September 1988.

The Court took judicial notice of the Town Boundary Map as the official copy based on the certification approval and gazettal.

Moreover, there is no evidence of any error or omission on the part of the Second Respondent or the Electoral Commission of Papua New Guinea. You only declare an election void, if there was no real election at all (see Re - Biami Provincial Parliamentary Election [1980] PNGLR 140). In my view there was no error or omission by the Electoral Commission. As a matter of fact a real election did take place and the First Respondent did win the Dali/Makepa Ward No.2 seat in the Vanimo Urban Local Level Government in the Vanimo Green Electorate Sandaun Province.

In the absence of clear and cogent evidence before this Court, I am of the view that the First Respondent, Mr. Titus Mandui is a registered voter and candidate for Ward 2 Dali/Makepa in the 2003 National and Local Level Government Elections. I therefore refused to declare the election of the First Respondent void. Consequently the petition must be dismissed. The Petitioner must pay the costs of the Respondents.

Petitioner: In Person
First Respondent: In Person
Second, Third and Fourth Respondents: Mr. Peter Solo for and on their behalf.