Toya v Ayumpa [2008] PGDC 130; DC855 (16 December 2008)

DC855

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

LLGEP NO. 16 of 2008

BETWEEN

WARUP TOYA
Petitioner

AND

WISKY AYUMPA
First Respondent

AND

WESLEY BUKES (R/O)
Second Respondent

AND

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. IPANG
2008: October 02, 03
November 12, 19, 20, 21, 24
December 9, 10, 11, 15, 16

ELECTION PETITION – Petitioner alleged supporters of first respondent took control of polling booth, threatened and intimidated voters to cast for the first Respondent – Allegation that seven (7) supporters of the First Respondent took control of remaining ballot papers and casted votes for the First Respondent – who were these supporters – supporters identity unknown – nature of treats and intimidation used not proved – potential voters whose rights to vote deprived were not called to be witnesses in this LLG Petition case.

Practice and Procedure: Presiding officer (PO)for Ward 8 Mr. Uruba Aroko give evidence in support of Petitioner against the Respondents – Presiding officers in normal Election Petition cases are witnesses of Electoral Commission – Presiding Officer in this LLG Petition decides to give evidence against Electoral Commission – Conduct of Presiding Officer in question – How much weight be given to evidence presented by Presiding Officer

Cases Cited:

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

Counsel:

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

16th December 2008

JUDGMENT

M IPANG Magistrate: Petitioner Warup Toya filed a petition on the 14th of July 2008 against the First and Second Respondents alleging the following grounds:

(i) that during polling at Sosentenu Community School on the 26th of May 2008, the supporters of the First Respondent forcefully took control over the polling from the polling officials, threatened and intimidated voters to cast votes for the First Respondent;

(ii) The supporters numbering around seven (7) young men took control of the remaining ballot papers and casted extra votes for the First Respondent;

(iii) Petitioner claimed his supporters were threatened and intimidated and were closely monitored in so far as they were not able to cast their votes for the petitioner.

TRIAL:

2. After the necessary conferences, i,e compulsory conferences, status conference were conducted from 12th, 19th 20th, 21st, 24th November 2008. On the 9th and 10th December 2009 trial was conducted. From 11th to 15th December, the parties prepared and presented their submissions in court. On the 16th of December 2008, I delivered my decision and undertook to present my judgment in written form at a later date. This I do so now.

PETITIONER'S CASE

3. Petitioner claimed youth who were the supporters of the First Respondent threatened and intimidated the voters. He said they went in to the polling area, took the ballot papers and casted their votes. He went further and said polling officials stopped the polling. He said when 200 ballot papers remained, the supporters of First Respondent removed the polling officials and casted the votes themselves.

4. Upon cross-examined, the Petitioner revealed that he was 30 metres away from the polling area. He also mentioned that the polling area was crowded. Because of what was revealed during cross-examination, Counsel for the Second and Third Respondents submitted that if the petition was 30 metres away from the polling area and that the polling area was crowded, how could he possibly saw what happed in the polling area and polling booth.

5. Also during Cross-examination, the Petitioner was pressed with questions as to whether he can identify the seven (7) boys as supporters of the First Respondent. Furthermore, how does he know they were the supporters of the First Respondent. Petitioner responded that the seven (7) young men called the name of the First Respondent. Counsel for the second and Third Respondents told this court that the Petitioner did not establish how the seven (7) young men were the supporters of the First Respondent. Counsel further stated that the petitioner did not indicate how the seven (7) boys marked the ballot papers.

6. Uruba Arok was one of Petitioner’s witnesses. He was the Presiding Officer for Ward 8 and was responsible for polling conducted at Sosentenu Primary School on the 26th of May 2008. This witness gave recollection of what took place during the polling at Sosentenu Primary School. He said at 9:00 am they set-up polling area. He then gave explanation to voters on how they will vote. After that he assigned his assistant to help the illiterate voters to vote. Polling then commenced.

7. Mr. Arok said a group of youths came and appointed their (youths) representative. The youths announced that voters for other candidates can cast their votes first. He said he was not happy. Voters did not cast their votes as they will be easily identified. He said he told the youths not to make such comments. Ballot papers were then distributed to the voters.

8. Presiding Officer (PO) said seven (7) youths entered the polling area, went to the distribution table and grabbed the ballot papers. They then marked them in to Box 18. He said he suspended the polling for 5 to 6 minutes and of seven (7) youths. Polling then re-commenced. Seven youths went back again and marked ballot papers. Polling was suspended again. Presiding Officer said he suspended the polling 4 times. He told the court that three (3) policemen, one (1) policewoman were present.

9. He said he feared for lives of the polling officials and security officers and let the polling continue till end. He also said that two (2) council candidates, Sivi and Yauka and Presidential Candidate Ini Wasa complained to him. He said they mentioned Whisky’s name and he told to go to court after the declaration.

FIRST RESPONDENT’S CASE

10. The First Respondent gave evidence himself plus calling Dau Sakias, Gramoxson Yamara and Tiu Amoro. The First Respondent and all his witnesses gave evidence that there was smooth polling and there was no disturbance, for example Graoxson Yamara gave evidence that he is from Sosotenu village. He said he was an Assistant Presiding officer (PO) at Sosotenu Primary School on the 26th of May 2008. he told this court that he did not witness supporters of the First Respondent threatened supporters for any candidates. He said he saw people lining-up to cast their votes. He concluded that there was peace and people co-operated.

11. Dau Sakias another of First Respondent’s witness gave evidence that he was from Kolwara village. He said he was a scrutineer for Dukino Benny a Candidate for Council seat in Ward 8. He said polling commenced at Sosotenu on the 26th of May 2008 at 8:00 am. He said form 8:00 am to 4:00pm there was no disturbance. The polling went well and concluded.

Electoral Commission (EC).

12. The third Respondent Electoral Commission (EC) did not call any witnesses to give evidence in this matter.

Evaluation of Evidence is Presented.

Ground one (1)

13. On the 26th of may 2008 while polling was conducted at Sosontenu Primary School, supporters of First Respondent forcefully took control of the polling, threatened and intimidated the voters to cast votes for First Respondent only.

14. The evidence as presented by the Petitioner and his witnesses have not established that it was the supporters of the First Respondent Whisky Ayumpa who forcefully took control of the polling area and the polling officials. They have also not proved the threats and intimidation, the nature of threats etc.... They have not proved the issue of “forcefully taking control” and the nature of force used. What kind of “force” used by who to whom. Because of these reasons this ground of petition is dismissed.

Ground Two (2).

15. The supporters around seven (7) young men took control of the remaining ballot papers and casted extra votes for the First Respondent.

Petitioner and his witnesses have also failed to established who were the supporters are and whether there were remaining or left over ballot papers and whether these ballot papers were really marked for First Respondent and other candidates in what preferences.

Ground Three (3).

16. Petitioner claimed his supporters were threatened intimidated and were closely monitored so that they were not able to cast their votes for the petitioner.

18. Petitioner did not call any potential voter or voters whose right was deprived and who wanted to vote but could not do so because of the alleged threats and intimidations by supporters of the First Respondents. Because of this, the third ground of this petition is dismissed.

RULING.

This petition is dismissed in entirety with costs.

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