Ata v Jackson [2008] PGDC 129; DC853 (15 December 2008)

DC853

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
COURT OF DISPUTED RETURNS – LOCAL-LEVEL GOVERNMENT ELECTIONS

LLGEP NO. 15 of 2008

BETWEEN

TERRY ATA
Petitioner

AND

TIWO JACKSON
First Respondent

AND

S. PIWIE
Second Respondent

AND

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. Ipang
2008: October 02, 28, 29
November 20, 21, 24, 25
December 09, 12, 15

ELECTION PETITION – Changed of polling dates and venue – advance notice issued by Electoral Commission – 2 ballot papers marked informal – 3rd preference not marked – 2 illiterate voters not present to give evidence – torn ballot papers regarded as spoilt ballot papers (s.145 OLPLG).

Cases Cited:

1. Desmond Baira –v- Kilroy Genia & Electoral Commission (Unreported Supreme Court Judgment dated 26th October 1998 SC579)
2. EP No. 19 of 2007 Labi Amaiu –v- Andrew Mald, Cyril Retaw and Electoral Commission of PNG N3335

Counsel

Petitioner: In Person
First Respondent: In Person
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers

15th December 2008

JUDGMENT

M IPANG Magistrate: Petitioner Terry Ata who was the runner-up in the LLG Election of Ward 6 of Tairora/Gadsup LLG in which the result was declared on the 11th of June 2008, challenged the election of the Councillor-elect, who is the First Respondent Tiwo Jackson. The Petitioner filed the petition based on the following grounds;

1. Petitioner alleged the election was conducted at Ita Duoti residence who was a candidate;

2. Petitioner alleged that two (2) of his ballot papers were marked informal by Awati Duoti; and

3. Two of the Petitioner’s ballot papers he alleged were torn and not counted.

2. Based on the above grounds, the petitioner seeks the recount of votes for the Ward 6 of Tairora/Gadsup Local Government. That is the relief.

3. This was a contested trial. Petitioner gave evidence himself. He also called his two (2) other witnesses Apita Silas and Tobias Kai who gave evidence supporting him.

4. Petitioner T. Ata gave his evidence on the 28th of October 2008. He said the polling should have commenced on the 2nd and 3rd of June 2008 but it started on the 29th May 2008. He also claimed the polling took place at stonguria which was not gazetted polling venue. Mr. Ata further alleged that Awati Duoti who was not a polling official took his voters up and marked their preferences and left-out the 3rd preference. He also claimed that Duoti threatened his voters and therefore they did not cast votes for him.

5. Petitioner also said Duoti tore two of his ballot papers in public. He claimed the 2 ballot papers were for his two voters. He said these 2 torn papers were not counted. He said there were no security personnels present when this incident happened.

6. In summary, the petitioner argued that the First Respondent was declared elected by 616 votes and the petitioner was the Runner-up with 615 votes. Petitioner said had his 2 votes been counted he could have been easily declared as the councillor-elect for Ward 6 Tairora/Gadsup LLG. I ask this Court to do re-count and also make order for by-election.

7. When questioned during cross-examination by electoral Commission’s lawyer that the Third Respondent changed the polling schedule form 2nd and 3rd June to 29th May 2008, the petitioner agreed with any further comments. Petitioner also agreed that Electoral Officials will not allow non-polling Officials to conduct voting. Petitioner also said two of his ballot papers were declared informal as preferences were not completed. He said his scrutineers told him of his two informal votes. No serial numbers of the ballot papers were identified in court. Also, the petitioner agreed it was during the first count that two of his votes were declared informal.

8. Epita Silas gave accounted of Awati Duoti not marking the third preferences thus rendering the ballot papers informal. Petitioner claimed these two (2) informal ballot papers were his. This witness claimed these two voters were illiterate. These two voters were not witnesses to this court. Strength of evidence if these two witnesses were brought in court would put petitioner’s case to a higher level.

9. Witness Tobias Kai agreed that advance notice of charge of polling dates were issued by Electoral Commission to them form 2-3rd June 2008 and was brought forward to 29 may 2008. His main evidence was that James Aiyu tore two (2) ballot papers belonging to the petitioners. During cross-examination Mr. Kai said James Aiyu is a close relative of the petitioner and not the First Respondent. Yet he can not justify the reason why James Aiyu had to do this to he’s close relative.

10. Tiwo Jackson, the First Respondent said the polling was conducted at Ita Duote’s residence and not at Ita Duite’s residence as claimed by the petitioner but within Apomaka village which was gazetted as the polling venue. He said when polling commenced no-one disputed that.

11. From a statutory Declaration Form completed and signed by Ita Duote, he claimed that because the petitioner’s brother was double voting James Aiyu got angry and tore two (2) of the petitioner’s ballot papers. James Aiyu is also as this court found out a close relative of the petitioner.

12. The Third Respondent called Barabas Napume and Sergio Piwie as the witnesses. Barabas Napume relied on his affidavit sworn and filed on the 25th August 2008. Sergio Piwie relied on his affidavit sworn and filed on the 24th of October 2008.

13. Barabas Napume deposed of the following facts in his affidavit. He said on the 29th of May 2008 polling for Ward 6 commenced at 10:00 am. He said he was present with other polling officials Japith Pira, Bill Ambata and Niko Upuari. Two other church representatives were also present. Policemen came late due to transport problem and bad road conditions. Polling at Bioka village was completed and the team moved to Abomaka village at 3:00 pm. The Abomaka community proposed and prepared the polling place. He said there was no signs of threats, acts of violence or undue influences except for the tearing of the two (2) ballot papers.

14. Sergio Piwie’s deposed of similar facts as that of Barabas Napume. I noted Sergio Piwie was short, brief and went straight to the issues raised in the petition.

15. He stated that there were no official complaints or reports lodged by the petitioner of threats etc on the 29th May 2009 at Abomaka polling place. He said he was there half an hour before the polling was closed. He said policemen went late to the polling place. Abomaka was the official polling place. He said stonguria where the polling took place is within Abomaka but is a more central place and convenient for the voters.

16. Even though the police came late, he said the polling went smoothly. He said Tiwo Jackson was declared elected on the 11th of June 2008 by scoring 617 votes. No foul play, no complaints were raised by the candidates or their scrutineers after the declaration.

17. Grounds of Petition.

1. Polling was conducted at Ita Duote’s residence. This ground was not argued properly. The petitioner nor his witnesses did not adduced evidence to prove the first ground properly. No-one really objected to the polling venue at Abomaka village. First ground should be dismissed.

2. Ground 2: Petitioner alleged two (2) ballot papers were marked informal by brother of the petitioner. There was not evidence to prove these were ballot papers for the petitioner. Apita Silas who claimed to have stood 1½ metres from the voting booth is illegal and also did not raise objection. The two (2) illiterate votes were not called to give evidence to justify this allegation. Polling Officials did not confirm this illegal practice occurs. Ground 2 is therefore dismissed.

3. Ground 3: It was not disputed that two (02) ballot papers were torn by the person named James Aiyu. The presiding officer declared these two (2) torn ballot papers informal at the counting centre. Section 145 of the Organic Law on National and Local-Level Government Election has been complied with. Ground 3 of the petition is dismissed.

18. In summary, the petitioner failed to establish all three (3) grounds of his petition. Even, in the situation where if Petitioner has established his case, the relief that the petitioner is seeking will not in fact change the result of the final votes. The informal votes were rightfully declared and so as the torn ballot paper was not counted. The petition is therefore dismiss in its entirety with costs.

___________________

Petitioner: In Person
First Respondent: In Person
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers