Anis v Sigulogo [2008] PGDC 142; DC1030 (19 December 2008)

DC1030

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

LLGEP 003 of 2008

BETWEEN

PEDI ANIS
Petitioner

AND

GERARD SIGULOGO
First Respondent

STEVEN PASINGAN
Second Respondent

ELECTORAL COMMISSION
Third Respondent

KAVIENG: KARAPO O

2008: 27, 28, 29, 31 October, 14, November, 05, 19 December

Local Level Government Election: - Petition – Election petition - Lovongai Local Level Government - District Court sitting as a Court of Disputed Return – Grounds of Petitions - Illegal Practices-Undue Influence- Residential qualifications - Definition of standard of proof required – admissibility of hearsay evidence – Organic Law on National Elections s215, s217, Criminal Code s 102

Cases Cited:
Delba Biri v Bill Ninkama [1982] PNGLR 342
Mapun Papol v Anthony Temo [1981] PNGLR 178
Neville Bourne v Manesseh Voeto (1977) PNGLR 298
Crouch v Ozanne (1910)12 CLR 539

References:
In Halsbury Vol., 14, 3rd Edition At page 208
Schofield on Parliamentary Election at page 400
The English and Empire Digest, Vol. 20 at page 779

Counsel:
Mr. Miskus Maraleo, for the Petitioner
Mr. Gerard Sigulogo, First Respondent
Parua Lawyers for the Second & Third Respondents
December 19, 2008

O KARAPO PM

[1] This is an election petition brought before the District Court at Kavieng sitting as a Court of Disputed Returns.[1] The petitioner contested the validity of Lovongai Local Level Government election conducted on the 24th May 2008. The First Respondent was elected and declared President of the Lovongai Local Level Government. The Lovongai Local Level Government is established under the Organic Law.[2]

[2] Prior to proceeding to trial the parties had compulsory conferences and the matter was adjourned for trial. When I took carriage of the case I examined the contents of the petition to ensure compliance under the Organic Law[3] Having satisfied my-self that the petition was in order I adjourned for trial.

[3] However, an objection to Competency challenge was filed by the 2nd & 3rd Respondents and moved on the 28th of October 2008. The application was dismissed in accordance with section 217[4] All grounds against the 1st, 2nd and 3rd Respondents were tried.

[4] The petitioner in this action was a runner up in the election returns now contests the validity of elections returns with the election of Mr. Gerard Sigulogo and his subsequent declaration as a President of the Lovongai Local Level Government. The election was conducted on 24th may 2008.

Issues

[5] The petitioner relies on the following grounds of this petition. There are two issues. One issue in on the question of undue influence on the part of the First Respondent and the other is on errors/and or omission by the electoral officials. I briefly set them out as follows:-

Undue Influence & Misrepresentation

1 The Petitioner alleges that Mr. Sition Tokava was showing a CD show featuring logging operations in Malaysia and commenting on same and making reference to the Petitioner, advising the people not to vote for the Petitioner with the knowledge and authority of the First Respondent. His actions were illegal within the meaning of Sections 102 and 286 (i) (h) of Criminal Code[5] and Organic[6] Law respectively.

Errors and Omissions – Official Irregularities

[6] The petitioner alleges various errors or omissions by the electoral officials in complying with the provisions of the Organic Law[7] concerning the conduct of the Lovongai Local Level Government Elections. There are four parts. I set them out in the order as alleged by the Petitioner:-

2 That the Assistant Returning Officer allowed Mr. Simon Konkas to nominate as a Presidential Candidate for the Lovongai Local Level Government even though his name is not on the common roll or the supplementary roll. His votes would have made any difference at the final result had he been refused nomination at the first place by the Assistant Returning Officer.

3 That the Polling Clerk and the Presiding Officer changed the polling places from the gazette polling areas to areas that are not legally gazette polling areas. The people of Bolpua were disadvantaged from the changes and did not cast their votes

4 That the scrutineers were made to stay about 5 meters away from the counting officials making it practically impossible for them to see or keep records of what is happening.

5 That the Presiding officers for team 4 and team 6 were heard saying “let’s play dirty” inside the counting centre whilst the counting was in progress.

The Relief Sought

[7] Among the many relief sought by the Petitioner is that the election of the First Respondent should be declared null and void and a fresh or by-election be conducted.

Ground 1 Undue Influence

[8] The petitioner relies on his witnesses’ evidence. The first ground stated in the petition is that the First Respondent had authorized the campaign coordinator to put on CD shows featuring the logging operation in Malaysia and commenting on the same making reference to the Petitioner and advising the people not to vote for Pedi Anis thereby committing an illegal practice within the meaning of Section 102 and 286 (i)(h) of the Criminal Code and the Organic Law on National and Local Level Government Elections respectively. I shall return to this ground later.

Grounds on Errors/Omissions - Official Irregularities

[9] In ground 2 the Petitioner alleges various errors or omissions by the Electoral Officials in complying with the provision of the Organic Law on National and Local Level Government Elections. The first part is on Residential qualification

Ground 2.1 - -Residential Qualification

The position of the Petitioner

[10] The first part of ground two alleges that Mr. Simon Konkas was not residentially qualified to vote or nominate as a candidate for the Lovongai Local Level Government Presidential Election, as required by section 250(2)[8] which requires all person whose names are on the common principal roll or a ward are eligible to vote or stand in an election for the ward or a Local Level Government area for which he or she has been enrolled. The evidence given by Mr. Sakias is the only evidence supporting these allegations.

The 2nd and 3rd Respondents Position

[11] The evidence of the Second Respondent is that Mr. Simon Konkas’s nomination was done in Kavieng without the knowledge of the Assistant Returning Officer assisting in the Lovongai Local Level Government Election. The only explanation given was that Mr. Simon Konkas was born and raised there. They give no explanation as to why his name was left out or not recorded and to why was he nominated at the Kavieng Electoral Office?

The Law

[12] The obligation to have a person’s name recorded in the principal common roll and where the name does not appear in it, it should be in the supplementary roll is a requirement of s250[9]

“250. Persons entitled to enrolment.

(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.

(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 person is entitled to vote more than once at an election or at more than one election held at the same time.”

[13] The requirement under s250(1)[10] is simply that all person having the right to vote and stand for public office must comply with Division 5.[11] Division 5 of Part IXI[12] deals with the prerequisite requirement for each elector to enroll in the ward for which he wants to vote or stand for a public office. Such requirements are similar to those enrolment provisions for people who wish to vote and stand for election on an electorate,[13] these are strict requirements that have to be complied with in order for a person to stand for a public office.

[14] I examined the copy of principal roll of the electors and the supplementary roll. I find that Mr.Simon Konkas’s name is not recorded in both the common roll and the supplementary list for the Lovongai Local Level Government area.

Conclusion

[15] I am therefore satisfied that Mr. Simon Konkas’s name is not recorded on the common roll or the supplementary roll established for the Lovongai Local Level Government area. I also fine that his nomination was wrong in law and that he should not have been allowed to contest the Lovonagi Local Level Government Presidential Election. I consider that the final outcome of the Election would have been affected. I agree with the assumption that his votes would have made any difference at the final result had he been refused nomination at the first place by Returning Officer. This ground succeeded.

Ground 2.2 - Change of Gazatted Polling Places

The Position of the Petitioner

[16] The next 3 parts of ground 2 upon which the petitioner relies are all illegal practices as defined by s 286[14]. All these illegal practices are prosecutable offences both under the Organic Law[15]and the Criminal Code[16]corrupt and improper practices at Elections. The second part of ground 2.2 is in respect of change of gazetted polling places and denial of the people’s right to vote at Ward seventeen (17).

[17] According to the petitioner’s witness the gazetted polling places for Ward seventeen (17) were Meterankang, Neitab, Nusavung or Neila Villages. The polling places were changed by the polling officials resulting in many voters not voting at the gazetted schedule polling places on the 20th , 21st , and 22nd May 2008. Instead the polling were conducted on the 24th 26th and 27th May 2008 which were not schedule polling dates and times by the Electoral Commission

The 2nd and 3rd Respondents position

[18] The explanation given for the change were due to the fact that the polling day was on a Saturday on the 24th May 2008, Seventh Day Adventist members could not cast their votes on that day because it was their Sabbath day. They were instead asked to make their way to Meterankang on the 26th or to Magam on the 27th May 2008. The other explanation was that it was agreed that the Polling at Neila was change due to the fact that the polling place at Neila was a residing place for the candidate, Mr. Eris Yosis and that it would be unwise to casts votes there. There was no evidence to show the changed in the gazetted polling places from 20th , 21st and 23rd May to 24th , 26th and 27th May 2008.

The Law

[19] The Electoral Commission is required to prepare a polling schedule showing anticipated dates and times within the polling period for the ward during which the polling booths will be opened at the polling places in any ward. The polling scheduled also is published in the National Gazette and in newspapers. In respect to adherence to polling schedule, the polling stations are to be opened in accordance with the polling schedule but where it becomes impracticable to adhere to the schedule times, the presiding officer, may subject to any directions given him by the returning officer, may where in his opinion it is necessary or desirable in order to meet unforeseen contingency of emergency and unless it is impracticable for the Returning Officer to vary the polling schedule, depart from the polling schedule. But he is required to advise the Returning Officer of the polling team’s early departure[17]

Conclusion

[20] I find no explanation on the part of the 2nd and 3rd Respondents as to the change of polling from the gazetted schedule polling places on the 20th , 21st , and 22nd May 2008 to the unauthorized poling schedule dates of 24th , 25th 26th and 27th May 2008 respectively. I also find that the changes within the unauthorized dates from 26th to the 27th May 2008 were not made in accordance with the provision of the Organic Law[18] One of the explanation was that it was agreed that the Polling at Neila was change due to the fact that the polling place at Neila was a residing place for the candidate, Mr. Eris Yosis and that it would be unwise to casts votes there is very wrong in law. The changes were not even made known to the Returning Officer as required by the Organic Law[19] I am satisfied with the petitioner’s witness evidence that these were acts of irregularities on the part of the electoral officials. This ground is made out.

Ground 2.3 – Official Errors/Omissions at the Counting Place

Petitioner’s Position

[21] Petitioner alleges that the petitioner’s scrutineers were made to stay about five meters away from the counting officials making it practically impossible for them to see or keep records of what is happening.

The 2nd & 3rd Respondents

[22] There is evidence from the respondents that Srutineers were kept only two meters away from the counting tables. It is clear from the evidence and diagram given that the distance was less then 5 meters and more importantly, the scrutineers were able to see what was going on. Indication to the Court as to the distance showed that it was two meters from where the srutineer was from the counting table.

Conclusion:- On those findings I found in favor of the 2nd and 3rd Respondents.

Ground 4 – Official Errors/Omissions at the Counting Place

[23] In regard ground 4 the petitioner alleged that on the 6th June 2008, Mr. Bernard Bereno and Mr. Guguk Nathanial were heard saying “let’s play dirty” in the counting centre whilst the counting was in progress. There is no other evidence to support what do the Petitioner meant in the words “Let’s Play Dirty”.

[24] In respond the respondents’ witness denied and maintained their story through cross – examination. The respondents said the witness of the petitioner was confused with a slang word from North Lovongai which was “Go Dirty”. They claim the witness was from Lovongai and did not know what this slang mean. I am satisfied that the slang “Go Dirty” may have the same meaning as “Play Dirty”. The petitioner however failed to say what he meant by the words play dirty. There was no such evidence to prove what the officials did that were dirty during the process of counting of votes.

Conclusion: - I also found for the 2nd and 3rd Respondents.

Ground 1 Undue influence

[25] I now return to ground 1 which alleges that Mr. Sition Tokava was showing CD shows and advising the people not to vote for the Petitioner with the knowledge and authority of the First Respondent. His actions were illegal within the meaning of Section 102 and 286 (i) (h) of Criminal Code and Organic Law respectively[20].

Petitioner’s Position

[26] Witnesses called on behalf of the petitioner were Peter Vani, Steven Murul, Sirimai Laun and Demas Konilio, each of whom attended the video show on those three separate occasions. It was quite clear CD shows were organized by Sition Tokava in the presence of Mr. Sigulogo. The CD show featured the logging operation in Malaysia. Comments on the CD show were made with reference to Pedi Anis. The people were advised not to vote for Pedi Anis.

[27] These statements are now the basis of the case of undue influence made by the petitioner. The statements presented in the form of speech during the rally were false and does not represent the character and caliber of the Petitioner. The statements made and said are as follows:-

(a) On Saturday, 11th May, 2008, at Baungung Village, during a CD show Mr. Tokava said to the persons present: “These are problems faced in Malaysia but if you vote for Pedi Anis to be the President, then the people of Lavongai must be prepared to face similar problems. You people must not vote for Pedi Anis because he had already sold all our land at New Hanover to the State. Vote for Gerard Sigologo only because he will look after our land”.

(b) And on another occasion: at Meteselan Village in Ward 14 on 14th May 2008, in the presence of Mr. Sigologo, Mr. Tokava addressed the people on the issues of logging by big companies in Malaysia. He addressed the persons as follows: “Those problems which are faced by the primitive resource owners of Malaysia as shown by the video are similar kind of problems that we will encounter if you vote for Pedi Anis”.

(c) Also in the afternoon of 01st June 2008 at Ward 16 Tom Bovau met and talked to Mr. Demas Konilio and Micheal Tarere. He told that “The people at Ward 14 did not vote for Pedi Anis because he had convinced them that Pedi Anis sold the Island of New Hanover...........

(d) He went on to say: “That Mr. Kamkam and other leaders from New Hanover had plans already in place to block all the voters so that Mr. Pedi Anis does not win the President seat. Everything that I said has already been prepared in a situation report which we are using to educate the people not to vote for Pedi Anis.”

(e) On the 23rd March 2008 at Sungang Village at 7pm, Porot organized a campaign rally for and on behalf of Mr. Gerard Sigulogo. Mr. Gabriel Mandi addressed the rally in the presence of Gerard Sigulogo said that: “Yu pela inoken votim Pedi Anis bikos em salim Lovonagai olegeta long State.”

[28] Those who gave evidence in support of this issue attended campaign rallies on different dates, places and times that the campaign coordinators organized and attended by Mr. Sigulogo. Mr.Sirimai Laun said he was at Sungang Village on the 23rd March 2008. He was there all day and according to him, Gerard Sigulogo was present. And at about 7pm Mr. Gabriel Mandi made a speech. He produced and held up a copy of the National Gazette showing agriculture and business lease-back notice granted to Tabut Limited, Umbukul Limited and Central New Ireland Limited and speaking in Pidgin, said to the people that: “Pedi Anis sold all the Lovongai land to the State. That is why I am not supporting Pedi Anis. I tell you I am not frightened. You people must not vote for Pedi Anis because he has sold Lovongai Island to the State.” There were many people present and they all heard what was said in the presence of Mr. Sigulogo.

[29] His other witness in Mr. Peter Vani was present on the 11th May 2008 at Baungung Village, Ward 13 Lovongai Local Level Government area. In attendance were Mr. Sigulogo and Sition Tokava. About a few minutes into the CD show Mr. Tokova explained what was featured in the CD show. Among the many words that he said were that: “You people must not vote for Pedi Anis because he had already sold all our land at New Hanover to the State. Vote for Gerard Sigologo only because he will look after our land”.

[30] And on another occasion: at Meteselan Village in Ward 14 on 14th May 2008, in the presence of Mr. Sigologo, and Mr. Tokava. Witness Steven Murul said he was among the many people who gathered to view the CD show. After about 15 minutes of the CD show video operator stopped the show. Mr. Tokava came forward and made a speech speaking in pidgin that: “Those problems which are faced by the primitive resource owners of Malaysia as shown by the video are similar kind of problems that we will encounter if you vote for Pedi Anis. The picture shows us the end result of our land being sold and that Pedi Anis had already sold our people’s land at New Hanover to the State”.

[31] The substance of these evidence is that the people who have attended the rally and CD shows were advice not to vote for Pedi Anis. All these are consistent with what Mr. Tom Bovau told Mr. Demas Konilio and Michael Tarere in the afternoon of the 1st June 2008. He told them that Mr. Kamkam and other leaders from New Hanover had plans already in place to block all the voters so that Mr. Pedi Anis does not win the President seat. Everything that he said has already been prepared in a situation report which they are using to educate the people not to vote for Pedi Anis.

[32] The relevant paragraph of the situation report is produced hereunder as evidence:-

“(e) The people of Lovongai are very concerned that 93,563 ha of their island is now under 99 years lease to the State and three Tutuman Development Ltd aligned company namely Umbukul Ltd, Tabut Ltd and Central New Hanover Ltd and that they want your assistance in getting the Minister for Lands and Physical Planning to have the attached National Gazette revoked forthwith and their land return to them.

What is interesting about the event is that two prominent Lovongai are contesting the LLG Presidential post – a scenario that is raising questions about the motives and interests of these two known political animals. The two men Gerard Sigulogo (former Kavieng MP and State Minister) and. Pedi Anis (former New Ireland Premier) are conjuring and prompting questions in the minds of the people of Lovongai as to their motives and interests in contesting the LLG Presidential post, this is despite the fact that they are constitutionally and legally qualified to contest the elections

Peace and Goodwill (signed)

Dr.Tom Bovau Ph. D Grassroots Politics (Natures University)”

[33] In cross-examination the witnesses were asked questions. The witnesses did not change their story in the evidence. I am impressed with all the witnesses. They were not shaken in the witness box. I am satisfied they were good honest witnesses so far as the statements they deposed to are concerned.

The Respondent’s Position

[34] In his evidence Mr. Sigulogo explained to the Court issues prior to the Lovongai Local Level Government Election. He gave evidence and explained to the Court some important issues which prior to this election the Petitioner was involved in that could have direct influence on his support-base in the Lovongai Local Level Government Elections area.

[35] Among the many important issues raised was the one that stood out and according to him is the biggest issue on the Island where the people are opposing at present. That is, in April 2007, the Petitioner instructed his Lawyer under the covering of a Lands Officer from Port Moresby to move around the island and got Landowners to sign papers and the next thing they heard, the Petitioner made it possible for Customary Lease-Back Titles to the three large parcels of land on the island. The people took their anger to the election of the President of the Lovongai Local Level Government. The people of Lovonagi are very cross with the Petitioner on this Land issue. He said there is no reason to blame everyone as the saying goes – “A person reaps what he sow”. He said this is precisely where we are as the result of this election revealed.

[36] On the 11th May 2008, at Boungung Village, he learnt that there was a CD show organized by Mr. Tokava. He said he went up one kilometer to the river to wash. He said in no way did he solicit support, verbal or written authority to Mr. Tokova to make a show. He said everything Mr. Tokova did were outside of himself. On the other CD show conducted at Meteselan Village he denied being present and participating in any other organized rally. In related matters he denied any knowledge of what Messrs Robin Kamkam and Tom Bovau said on his behalf.

[37] Cross-examination – During cross-examination Mr. Sigulogo admitted that straight after his campaign rallies CD shows were put on. He admitted being told about the title of the CD. He answered a question in relation to land issue. He agreed Mr. Pedi Anis did not sell the land at Mamirum, Umbukul and Central New Hanover.

[38] Sition Tokava gave evidence that he was not authorized by Mr. Sigulogo to put CD shows at Boungung and at Meteselan Villages respectively. In his examination in chief he met Mr. Sigulogo at Baungung Village. It was his first time to see and know Mr. Sigulogo. He said Ronnie, Tobul and the other leaders had invited him to go to the Village.

[39] Cross-examination – He said while at Baungung he organized a CD show right after the campaign speech by Mr. Sigulogo. He said CD show was educational and was from his good heart he wanted to put it on. He said it was over oil palm Development and Logging. The CD show featured similar situation in Malaysia where eviction notices were given to landowners and their house removed by bulldozers. The people must be aware of what is going to happened to their land if Pedi Anis is elected President for the Lovongai Local Level Government. He said he decided to do such things as to tell the people not to vote for Pedi Anis.

[40] The other witnesses in Robin Kamkam and Tom Bovau affidavits were admitted as evidence. I have the benefit of reading through their affidavits. I did accept Tom Bovau and Robin Kamkam’s evidence, as being supporting the Petitioner’s evidence.

The Law

[41] The Organic Law[21] under which this petition is brought provides that if the District Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election if he is the successful candidate shall be declared void (s. 215(1))[22]. The Organic Law[23] thus gives full recognition to the common law principle that the Local Level Government elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void[24].

The Onus of Proof

[42] This brings me to the onus of proof. There are two types of cases which come before this Court under the Disputed Elections provisions of the Organic Law[25] and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of these corrupt or illegal practices including undue influence. The onus is, of course, on the petitioner in a case such as this.

[43] Now, as to the other type of case, it was said that in such a case the Court should be satisfied “beyond all doubt”[26], Similarly, “where an election has been properly conducted and where there is a single act of intimidation the court will require very strong evidence indeed before declaring such election void”[27].

[44] The question is does the degree of proof go beyond this? Is proof beyond reasonable doubt required? There is a brief note of the case[28] in, as follows: “Before subjecting a candidate to a penalty of disqualification, the judge should feel well assured, beyond all possibility of mistake, that the offence charged is established. If there is an honest conflict of testimony as to the offence charged, or if acts or language are reasonably susceptible of two interpretations one innocent and the other culpable, the judge is to take care not to adopt the culpable interpretation unless, after the most careful consideration, he is convinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one.”

[45] In this case however, before I dismiss or uphold the petition, I am of the opinion that the issue of it must be proved to my entire satisfaction[29] and that if I am not to be very sure I must at least be sure that the ground has been made out. It may fall therefore just short of the criminal standard, although in application I consider there would be no real practical difference

[46] Judge Frost[30] explained that, in order to constitute undue influence an inducement or threat of an elector must be serious and intended to influence the voter, but it would appear that the inducement or threat of an elector to vote should be judged by its effect on the person induced and not by the intention of the person using the inducement or threat. An inducement or threat even though the person using the inducement or threat has not the power to carry it out would seem to amount to undue influence. An unsuccessful inducement or threat has been held to amount to undue influence

[47] Therefore the reference to s. 102 of the Criminal Code finds some support in the Organic Law[31], s. 205, which provides that nothing in the Law is to derogate from the provisions of the Criminal Code.

[48] The Criminal Code where the offence of undue influence is constituted by law reads as follows:

“102. UNDUE INFLUENCE.

Any person who:

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind, to an elector in order to induce him to vote or refrain from voting at an election or on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanor, and is liable to imprisonment with hard labor for one year, or to a fine of K400.00.”

[49] Let us look at the meaning of s. 102, to both of its paragraphs. It seems that the elements of s. 102(a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatens or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was “in order to induce (an elector) to vote or refrain from voting at an election.” Does this refer to the question whether the elector votes or does not vote or does it refers to the manner of voting? As will be seen it is unnecessary for me to decide this point, but I am inclined to the view that an intention to influence the elector to vote in favor of a candidate or to refrain from voting against him, would fall within the section

[50] Turning to s. 102(b), it must be shown that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.

[51] I agree with the view that any such instance of fraud which prevents or makes more difficult the elector’s exercise of his right to vote as he wishes clearly falls within section 102 [32]

[52] I therefore consider that if the evidence upon which the petition was based was accepted, that is, the evidence of the witnesses as to the respondent’s statements, then the case would fall under s. 102(b) and accordingly there was no examination of 102(b) in the light of the evidence.

Findings

[53] That is all the evidence to which I have been referred. I am now going to consider what part of this evidence is such that I can act upon it to my entire satisfaction and that I can be sure in accepting.

[54] I want to deal with the Respondents’ evidence first. I find there is no credibility in his evidence. There are a number of reasons for this. Firstly I find there is evidence that the First Respondent had prior knowledge of the activities of the Companies that the Petitioner worked for. The most recent one is the issuance of a lease-back Title to three large parcel of land on the island. He agreed it is one of the biggest issues on the Island as far as the Local Level Government Election is concern. He admitted and agreed with the fact that Pedi Anis had nothing to do with the sale of land on the island. Secondly he knew of the situation report. This situation was also false in its substance. The report opposes the election of the Petitioner as a President for the Lovongai Local Level Government, basing its reason on the same issues. Interestingly the report was prepared by one of the Respondents supporters in Tom Bovau I regret very much to say I am unable to accept Mr. Sigulogo’s evidence on the issues of this case.

[55] Similarly in the case of Mr. Tokava he had formerly been a Chairman of Board of Directors with a Local Company known as WEMSO Limited who work alongside a Malaysian Company known as Dominance Resource Limited from 1993-1999 but had been out of employment. He said there were no advice given at all but agreed he was campaigning against development of oil-palm on the island which the Petitioner was involved as an employee of the Company. Mr. Tokava campaigned for the Respondent and made speeches to this effect:-“You people must not vote for Pedi Anis because he had already sold all our land at New Hanover to the State. Vote for Gerard Sigulogo only because he will look after our land”. . Again having seen him in the witness box I am unable to accept his evidence. It is clear in the evidence that Mr. Tokava was with the Respondents all day during his campaign rallies and the CD shows and if anybody could have known that the Respondent had knowledge and authority he acted for the Respondent, it would have been Mr. Tokava.

[56] I am convinced that the evidence have shown that First Respondent had prior knowledge of the of the falsity of the issues of this case. His conducts during his campaign rallies was indication that he had authorized Mr. Sition Tonkawa’s action. Further the First Respondent knew the purpose of the Situation Report. This Report appeared happened to have played a very significant role in inducing an elector to vote or to refrain from voting at the Lovongai Local Level Government election in 2008

[57] Turning to the evidence for the petitioner, for the petition to succeed the evidence of the petitioner’s witnesses must be such that I can act upon it. I have reached the conclusion that applying the strict standards I have referred to I am satisfied to act on their evidence. In my opinion the whole of the evidence on this issue is overwhelming in that Mr. Tokawa, did with the knowledge and authority of the Respondent the following acts:- (a)that on the 14th May 2008 at Meteselan Village explained to the people that: - “Pedi Anis had already sold our people’s land at New Hanover to the State”. And again on the 11th May 2008 at Boungung he advised the people that “they must not vote for Pedi Anis because he had already sold all our land at New Hanover to the State. Vote for Gerard Sigologo only because he will look after our land”. Then on 23rd March 2008 at 7pm Gabrial Mandi advised: “You people must not vote for Pedi Anis because he has sold Lovongai Island to the State.” The effect of these statements were that the petitioners supporters or non supporter who were eligible to vote in 2008 Lovongai Local Level Government Presidential Election may have changed their minds to vote for either the 1st Respondent or any other Presidential Candidates.

[58] I understand that Mr. Sigulogo was an ex-member in the National Parliament, a former law student at the University of Papua New Guinea and had knowledge in electoral offences and, for that reason, because of his Parliamentary experience, I am satisfied that he was aware of the falsity of those statements and intended that the electors present should act on it.

Conclusion

[59] Accordingly, in my opinion it has been proved to my entire satisfaction that Mr. Sugulogo, through his campaign coordinators and with his knowledge and authority, by fraud prevented or obstructed the free exercise of the franchise by an elector which amounts to undue influence. I am satisfied beyond reasonable doubt.

[60] For all these reasons the petition succeeds on the grounds mentioned, (i.e. Grounds of Undue Influence & Errors and Omission on the part of the Electoral Officials) and I am therefore left with no option but to make the following declaration[33]:-

1. That the election of the First Respondent is absolutely void. I shall direct the Clerk of the District Court under s. 216[34] to promptly report the finding to the Speaker and to the Electoral Commission.

2. That a new election be conducted

3. That the deposit paid by the petitioner be return to him.

4. That the Respondents shall meet the costs of the proceedings

5. Declared that election void, Clerk of Court directed to report finding to the Speaker and the Electoral Commission.

[61] Orders accordingly.

__________________________________________________
Lawyer for the Petitioner Mr. Maraleu;
Lawyer for the First Respondent Mr. Gerard Sigulogo in person
Lawyer for the Second & Third Respondents Parua Lawyers

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^[1] Section 287 Organic on National and Local Level Government Elections
^[2] Section 10,s26,.s27 of the Organic Law on National and Local Level Government Elections
^[3] Seoction 208 ibid
^[4] Organic Law on National and Local Level Government Elections. - Mapun Papol v Anthony Temo [1981]PNGLR 178 & Biri v Ninkama [1982]PNGLR 342 considered
^[5] Criminal Code Act
^[6] Organic Law on National and Local Level Government Elections
^[7] Organic Law on National and Local Level Government Elections
^[8] Organic Law on National and Local Level Government Elections
^[9] Of the Organic Law on National and Local –Level Government Elections
^[10] ibid
^[11] ibid
^[12] ibid
^[13] See Parts V, VI, and VII of the Organic Law on National and Local Level Government Elections.
^[14] Organic Law on National and Local Level Government Elections
^[15] ibid
^[16] Division 3 of Part III
^[17] See s113, s114, and s115 of the Organic on National and Local Level Government Elections.
^[18] Supra 17 above
^[19] Organic Law on National and Local Level Government Elections
^[20]Supra 5&6 above
^[21] On National and Local Level Government Elections
^[22] ibid
^[23] ibid
^[24] Crouch v. Ozanne (1910) 12 CLR 539
^[25] The Organic Law on National and Local Level Government Elections
^[26] In Halsbury Vol. 14, 3rd ed., at p. 288.
^[27] Schofield on Parliamentary Elections at p. 400.
^[28] The English and Empire Digest, Vol. 20 at p. 170
^[29] Neville Bourne v Manesseh Voeto [1977]PNGLR 298
^[30]Supra
^[31] The Organic Law on National and Local Level Government Elections
^[32] Of the Criminal Code
^[33] Section 212 (1) (h) of the Organic Law on National Elections
^[34] Organic Law on National and Local Level Government Elections