Micah v Ling-Stuckey [1998] PGLawRp 756; [1998] PNGLR 151 (10 September 1998)

[1998] PNGLR 151

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE KAVIENG OPEN ELECTORATE

BEN MICAH

V

IAN LING-STUCKEY; AND
ELECTORAL COMMISSION

KAVIENG: KIRRIWOM J
10 September 1998

Facts

In the election of the Kavieng Open Electorate in the 1997 National Elections, the first respondent was declared the duly elected member for the electorate. The petitioner challenged the election of the first respondent alleging bribery. The petitioner alleged that the first respondent had bribed an elector in the electorate to vote for him. At the start of the trial the first respondent took issue with the eligibility of the alleged voter to vote in the elections. The court allowed a voir dire hearing to determine this issue.

Held

1. In circumstances where a crucial supplementary issue is likely to affect a principal ground raised in an election petition case, the court can allow for a voir dire hearing into the supplementary issue.
   
2. Where the identity of an elector is in issue in an election petition case, it is appropriate to determine the issue in a voir dire hearing.
   

Papua New Guinea case cited

Biri v Ninkama [1982] PNGLR 342.

Counsel

L Henao, for the petitioner.
P Payne, for the first respondent.
J Nonggorr, for the second respondent.

10 September 1998

KIRRIWOM J. In the course of the trial of this election petition, the first respondent took issue with the petitioner’s key witness in ground 5(b) of the petition. The issue was as to his eligibility as an elector. This witness is John Ngumaravis of Narimlava village on New Hanover, New Ireland Province. This is the witness that the petitioner alleged was bribed by the first respondent on 11 June 1997 when he gave K100 to him and his group during his campaign rally at Narimlava on that day.

The witness claimed to be an elector as was pleaded in the petition but he was found to be not on the 1997 up date of the Common Roll for Kavieng Open Electorate in the course of this trial, at least not under the name he was commonly known. When asked to explained why his name was not in the Roll, he replied that his name in the Roll was Vatlogo Melewai. He said he normally voted under that name. This assertion was refuted by the first respondent who produced in court a person going by the name of Vatlogo Melewai also from Narimlava - the real Vatlogo Melewai. In cross-examination John Ngumaravis was asked if he knew this person, produced before the Court. He answered in the affirmative and identified him as his brother, ‘Kiukiu’. He denied that the person’s name was Vatlogo Melewai when this was suggested to him and insisted that he was Vatlogo Melewai. He said he had three brothers and this was Kiukiu. Consequently it became necessary to conduct a trial within the main trial as in vore dire situation in a criminal trial so as to iron out the issue about ‘who was who’ in the Common Roll.

This procedure is not unusual because unlike in ordinary civil litigation in an election petition, every ground is a triable issue on its own and is capable of determining the success or demise of the petition. This approach has been the practice of this court in those instances in which I myself appeared as counsel whilst at the bar and the notable example of this is the case of Peter Yama v Melchior Kasap and the Electoral Commission following the 1987 National Election. That case ultimately went to the Supreme Court for review under s 155(2)(b) of the Constitution. It is therefore correct to say that every ground or allegation in an election petition is an issue that can be tried on its own and this is precisely what we have done here. We have isolated ground 5(b) of the petition and proceeded to deal with it ahead of the others.

Once this issue is resolved, that would determine the future of ground 5(b) of the petition. It does not terminate the proceedings or the petition. We therefore proceeded to hearing evidence. The petitioner called one Gerard Sigulogo, former law student in the early seventies and former parliamentarian for this same Kavieng Open Seat as an elder of Narimlava and someone with an in-depth knowledge of the custom of the area as well as being related to the family of John Ngumaravis. He gave evidence of the circumstance in which members of a family in the same clan derive their names and of instances were two or more family members may be called by the same name of the common ancestor within the clan. Refuting this evidence, the first respondent called a number of witnesses including Vatlogo Melewai or the person going by that name. Vatlogo Melewai was called first. He was adamant that he was Vatlogo Melewai and he was the younger brother to John Ngumaravis. There was no one else in Narimlava known by that name except him. John was never known or referred to as Vatlogo Melewai except him. He denied that he was known as Kiukiu or Kiukiulius Melewai. That was the name of their last-born brother. He said he had five brothers and not three and he proceeded to name all of them, Raphale the eldest is a policeman with CID in Port Moresby. He said the second last brother Kiruk was in Port Moresby with the eldest brother and the last-born Kiukiulius was in the village. He was the third born after John Ngumaravis who is second. George Posausai, Glenson Ianga and Maris Ianga all from Narimlava who verified his identity as Vatlogo Melewai supported his evidence.

Apart from the discrepancies that related to the number of boys in the family members of Kiukiu clan, on the whole, they were all consistent and firm in their testimony on the central issue of what I might term as ‘who was who’. There is strong unshakeable evidence before this court that Vatlogo Melewai is the person who was produced by the first respondent and he was definitely not John Ngumaravis or the person going by the name of John Ngumaravis. The petitioner did not refute or challenge that this person produced was not Vatlogo Melewai. The petitioner’s case was that according to custom John Ngumaravis was entitled to be called Vatlogo Melewai because that is the clan name, the name of Kiukiu clan, their grandfather’s name.

On this issue of ‘who was who’ I accept the evidence of Vatlogo Melewai. I found him to be quite forthright and consistent in his answers to the questions put to him by counsel for the petitioner. He told the truth. There was no reason for him to lie. It was never suggested that he was lying and why he was lying. His story is more probable of belief as opposed to his brother John Ngumaravis because his is not only known as Vatlogo Melewai, but he is enrolled by that name in the Roll and with him also his wife Makankol Jenny whose name appears in the Roll as Makankol Vatlogo just below his.

Both their names have code numbers 106 and 107 respectively in p.66 of the 1997 General Election Principal Roll of Electors – Kavieng Open Electorate – New Ireland Province. John Ngumaravis on the other hand is not married. How could his name appear with Makankol Vatlogo who is not his wife is beyond reason. His demeanor as witness was unimpressive to say the least. His evidence lacks corroboration. Whilst corroboration may not be necessary as a matter of law in a situation like this, when an issue arises as to the question of correct identity of someone, evidence of identification can carry greater weight if it corroborated by an independent and impartial witness. Vatlogo Melewai’s evidence was sufficiently supported and verified by three impartial and independent witnesses. There was no suggestion that George Posausai, Glenson Ianga and Maris Ianga had any reason to support Vatlogo Melewai and their evidence was biased towards Vatlogo Melewai’s. Their only reason for coming to court was to testify as to their knowledge of the family of John Ngumaravis and Vatlogo Melewai.

I therefore find on the evidence before me that the name Vatlogo Melewai appearing beside Code No.106 and 107 under Narimlava does not belong to John Ngumaravis. I further find that the name Vatlogo Melwai in the Roll beside Code No. 106 belongs to the person Vatlogo Melewai who testified before this court under that name and he is the only one in his family with that name.

The next and the important issue now is ‘was or is John Ngumaravis an elector for purpose of the Organic Law on Elections and s 103 of the Criminal Code’. The facts pleaded in paragraph 5(b) are quite explicitly stated which I quote once more:

"Ian Ling-Stuckey did on 11 June 1997 at Narimlaa village, New Ireland Province gave John Ngumaravis of Narimlava village an elector for the Kavieng Open Electorate the sum of K100.00 with the intention of inducing John Ngumaravis to vote for the return of Ian Ling-Stuckey at an election hold for the Kavieng Open Electorate on 29 June 1997".

The allegation is that the first respondent gave K100.00 to John Ngumaravis, an elector for Kavieng Open Electorate at Narimlava with the intention of inducing John Ngumaravis to vote for him. The Common Roll for Kavieng Open Electorate has no one by that name registered under Narimlava as an elector for the electorate in the 1997 National Elections. There is no doubt that this name Ngumaravis is not a foreign name in the area concerned. It is a local name. I make this observation in the light of other similar names such as Ngurmamailik Yangalaimen (Code 195), Lois Ngumamais (Code 196), Ngurbas Leo (Code 115), Ngurmarias Elizah (Code 129) Ngurbisis Yangarule (Code 73) and so on. All these names are under Narimlava village and naturally if John Ngumaravis is enrolled as an elector, there is no reason why he should not appear in the Roll under Narimlava under that name. He did not explain as to why he was not registered by the name he was popularly and commonly known, he claimed that he was known by another name, his village name, which is the younger brother’s name.

The petitioner argued that John Ngumaravis was an elector because his village name is Vatlogo Melewai and he uses this name to vote. Although I have already made a finding of fact on this issue, I think it is appropriate that I express some views on the submission made. This submission is self-defeating because s 208(a) is very specific – a petition shall set out the facts relied on to invalidate the election or return. Once those facts are pleaded in the petition, there can be no amendment to the petition after the forty days prescribed under s 208(e) of the Organic Law. In Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342, the Supreme Court when considering the question of extension of time to file a new petition or amend the original petition outside the prescribed period of two months under the old Organic Law of National Election – s 208(e), (it is now 40 days in the new Organic Law), held:

On the hearing of an electoral petition under s 206 of the Organic Law on National Elections, the National Court ... shall not allow and does not have the power to allow an amendment of a petition after the period of two months after the declaration of the result of the election in accordance with s 176(1)(a) of the Organic Law on National Elections.

If the Court were to entertain the petitioner’s argument that the witness John Ngumaravis was an elector under the name of Vatlogo Melewai, it is bound to encounter problems in two basic areas. Firstly, it will mean that the petitioner needs to amend his petition to substitute the name John Ngumaravis with Vatlogo Melewai because the latter is the name that is registered in the Roll as an elector and not John Ngumaravis. However, he is precluded from doing so by law because he is already out of time. Secondly, to promote such a notion or to adopt such a practice into our electoral system is bound to cause more chaos than the smooth and orderly flow of an election. It is better to propagate and promote more public awareness amongst the populace at large to enrol under one and the same name for an election and all other purposes and to maintain just that name in the Roll instead of encouraging the out-dated practice of having so many different names. Illegal practices at elections such as double voting are rife in many places because of the practice of allowing the electors to enrol in so many different names. Those were the practices of the past and they must be discarded in this day and age with a more sensible approach to the way things ought to be done.

My ruling therefore is that as John Ngumaravis is not an elector, and was not an elector in June 1997, it follows that ground 5(b) of the petition fails and must therefore be dismissed. We shall now proceed with the rest of the petition on the remaining grounds.

Lawyers for the petitioner: Henaos Lawyers.
Lawyers for the first respondent: Blake Dawson Waldron.
Lawyers for the Electoral Commission: Nonggorr & Associates.