Kiripo v Anori [2008] PGDC 132; DC848 (17 December 2008)

DC848

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

LLGEP NO. 13 of 2008

BETWEEN:

MESON KIRIPO
Petitioner

AND:

RICKY ANORI
First Respondent

AND:

RONALD KONIBARO (R/O)
Second Respondent

AND:

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. Ipang
2008: August 19
September 29
October 02, 03
November 14, 17, 18, 19, 20, 28
December 12, 15, 17

ELECTION PETITION: Petitioner alleged that the First Respondent cancelled polling venue and date – hijacked 828 ballot papers for Singamu Aid Post – illegally entered polling booth and issued threats – Lack of evidence to substantive all these grounds of petition – ‘He who asserts must prove’- Petitioner failed to substantive allegations with evidence.

Cases Cited:
Nil

Legislations Cited:
Nil

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

17th December 2008

JUDGMENT

M IPANG Magistrate: This is a petition filed by the Petitioner Meson. B. Kiripo contesting the validity of the election in the Upper Asaro LLG for the Presidential Seat. The First Respondent Ricky Anori won the Presidential Seat and was declared elected on the 18th of June 2008. The Petitioner filed his petition on the 9th of July 2008, based on the following grounds of irregularities in the electoral procedures.

1. That the First Respondent cancelled polling place and date;

2. First Respondent hijacked 828 ballot papers for Singamu Aid Post; and

3. First Respondent illegally entered the polling booth and issued threats to the voters.

RELIEFS SOUGHT

The Petitioner seeks the following reliefs:-

(a) that 828 votes be declared “null & void;”

(b) that 192 votes be declared “null & void;”

(c) that the First Preferential votes of 693 be declared “null and void;”

(d) the declaration that the First Respondent’s election is “null and void;”

(e) the Petitioner be declared as duly elected President of Upper Asaro LLG.

2. This is a contested trial. First Respondent said the 192 ballot papers for Singamu were in the alphabetical names and has caused names to be missed up. He also denied cancelling polling place and time. Further more, he denied issuing threats to the voters as claimed by the Petitioner.

3. All the allegations contained in the petition were labelled against the First Respondent. No allegations were directed at the Second and Third Respondents. However, the Third Respondent called his only witness Andrew Supi, the Returning Officer.

4. Issues:

1. whether First Respondent Vicky cancelled polling venue and time;

2. whether First Respondent hijacked 828 ballot papers for Singamu; and

3. whether First Respondent illegally entered polling booth and issued threats to voters.

Petitioner’s Case:

5. Petitioner Kiripo gave evidence that on the 21st May 2008, polling officials went to Kongi Primary School. At Kongi Primary School, they announced that they brought with their 192 ballot papers for Amaguku and 828 ballot papers for Singamu. Ballot papers for Amaguku to be casted at Kongi Primary School. Petitioner claimed this was the polling schedule.

6. However, he said the First Respondent stopped the polling to commence and directed the polling team to get the 192 ballot papers back to the District Office. No polling was conducted on the 21st May as the polling team went back to the District Office.

7. On 22nd May, the polling team brought 1020 ballot papers and publicly announced that these were for Singamu and Amanguku. The Petitioner said the First Respondent announced that 828 ballot papers were for him. He further claimed the First Respondent marked out two polling places and then he gave 192 ballot papers to Singamu. Petitioner said he gave 828 ballot papers to his supporters to cast votes for him.

8. Petitioner gave evidence that Singamu people were upset over 192 ballot papers given to them so they argued and fight broke out. Petitioner said voters ran away in different directions. He said when situation cooled down and when votes were about to cast their votes, First Respondent held a bush knife and he broke the desk. He said his scrutineers provided security for the polling officials. He told the court that he complained to the polling officials who advised him to file his petition.

9. Cross – Examination.

By First Respondent

1. Q. How did I threaten the polling officials?

A. You broke the desk

2. Q. Did I get hold of the ballot papers:

A. Your scrutineers did.

By Second and Third Respondents.

3. Q. Why polling was conducted on the 21st May?

A. Ricky was not happy with 192 ballot papers.

4. Q. On the next day, 22nd May, what did Ronald Konibaru say?

A. 829 ballot papers for Singamu.

5. Q. How did the First Respondent stop the polling officials:

A. He went up to the desk and broke it.

6. Q. Explain, how the First Respondent and his scrutineers allocated two (2) polling places?

A. Ricky put new posts and made two polling places.

7. Q. Where were the ballot papers?

A. With the Presiding Officer.

8. Q. Did voters cast votes on two polling places?

A. Ricky’s supporters got 828 ballot papers and cast their votes. Ronald gave them 828 ballot papers.

9. Q. Where were the police?

A. They were around but nothing.

10. Q. Name the First Respondent’s scrutineers?

A. I can only recognise their faces.

10. Petitioner’s witnesses Yaga Ekimbo Domai, Tony Avori and Willie. G. Bush all gave similar evidence to that of the Petitioner. Yaga told the court that Ricky and his supporters grabbed 828 ballot papers and 192 ballot papers were given to Singamu. Arguments then erupted. Ricky got his bush knife and smashed it on the desk. Ricky’s scrutineer supported him and both broke the desk. His scrutineers marked preferences for the voters. This witness also said Ricky’s supporters placed bush knives at Ronald’s neck. He said he removed the bush knife and saved Ronald’s life.

11. Tony Avori said he was 10 metres away from the polling area when he saw Ricky Avori inside the polling booth. Willie. G. Bush gave account of how the fight started. He also said, he saw Ricky inside the polling booth.

First Respondent’s Case.

12. The First Respondent gave evidence himself and with his witnesses Sani Chris Geruwa, Paul Goni and Rohu Ropovo.

13. The First Respondent said on the 21st May, polling officials brought 192 ballot papers for Singamu. The names of the voters were mixed up. Names were in alphabetical order. He said he did not make the decision but all the candidates met and decided that 192 ballot papers should be returned. That 192 and 828 ballot papers should be brought back the next day. The next day 22nd May, Ronald brought 1020 ballot papers up. The Electoral Commission workers put up the fencing and then voters voted. First Respondent placed voters into two groups. The Presiding Officer told the candidates to cast our votes first and leave.

14. He said fight broke out at 5.00 pm. With combined from police, councillors and leaders the fight was stopped. The left-over ballot papers numbering 170 was brought back on the 23rd May. Nothing tangible came out from cross-examination. Sani Chris said councillors agreed and moved polling from Singamu to Kongi Primary School. He said he agreed and casted his votes there. He said Ricky was outside the polling place. He told this court that George and Meson Kiripo told him to sign and he did. He said both told him that if there’s a mistake, we will take them to court. Paul Gomi and Rohu Ropovo gave same evidence to that of Sani Chris.

15. Ronald Konibaro was the Returning Officer. He told this court that Erue people were more than 197 people. He said they petitioned him and said they would do one day polling on the 22nd May. He said on 22nd May his polling team went and set up two polling places.

16. He further told this court, drunkards came and fight broke out. He suspended the polling with left-over 170 ballot papers where polling was completed the next day, 23rd May.

17. Konibaru said Petitioner raised serious allegations against him. He said no one threatened him. He said community agreed to the change of polling venue. He finally said no-one hijacked the ballot papers. He also said the First Respondent won by more than 50%.

Grounds of Petition:

1. First Respondent cancelled polling venue and date.

18. There is evidence before this court that the polling venue and date has been changed. But that changed of polling venue and date has been initiated by community to Ronald Konibaru. Refer to letter tendered on court.

19. Electoral Commission acted on the request by the community and changed the polling venue and date. This was because names were in alphabetical order and not under the family names and has a result names were mixed up. Electoral Commission set-up tow polling booth on the 22nd May. There is no evidence to prove allegation raised in Ground one and so this ground is dismiss.

2. Second Ground: First Respondent hijacked 828 ballot papers for Singamu.

20. This ground of petition attracts criminal standard of proof. That is the Petitioner bears the onus of proof and that is to prove the elements of the offence beyond reasonable doubt. Petitioner in this case, did not establish the offence of hijack beyond reasonable doubt. This ground of petition is dismissed.

3. Third Ground: First Respondent entered the polling booth with bush knife and issued threats and intimidate voters.

21. Electoral Commission’s officer Ronald Konibaro who was tasked to manage the election for Upper Asaro LLG Presidential Seat has come out and said there were no threats or intimidations issued by the First Respondent. He said he did not see First Respondent holding on to a bush knife. Only one incident which took place on the 22nd May but this has nothing to do with the First Respondent. The third ground of petition is therefore dismissed.

22. The petition is dismissed in its entirety with costs.

_________________________

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