Abal v Ganim [2013] PGNC 327; N5151 (23 April 2013)

N5151

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 61 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE WABAG OPEN ELECTORATE

BETWEEN

SAM TEI ABAL
Petitioner

AND

ROBERT SANDAN GANIM
First Respondent

AND

MAKU KOPYALA-THE RETURNING OFFICER
FOR WABAG OPEN ELECTORATE
Second Respondent

AND

ANDREW TRAWEN-THE CHIEF ELECTORAL COMMISSIONER
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2012: 29th November
2013: 23rd April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Place of trial of election petition – Petition maybe heard at place of filing – Petition maybe heard at venue determined by Court – Fixing of venue of trial discretionary –Reason for trial at place of filing – Assaults, threats, intimidation and harassment of witnesses and supporters – Considerations for determining place of trial discussed – National Court Election Petition Rules, 2002 (as amended) – Rule 10.

Facts

This is a ruling on the venue of trial of an election petition. The election petition concerns the Wabag Open Electorate in the Enga Province. The petitioner invokes the inherent powers of the Court under section 155(4) of the Constitution and Rule 10 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") and asks for the trial to be held in Port Moresby at Waigani National Court for security reasons. This is the place where the petition was filed. The respondents want the trial to be in Wabag at Wabag National Court.

Held:

1. Rule 10 of the of the National Court Election Petition Rules, 2002 (as amended) gives the Court power to fix a trial of a petition at the place where it is filed or any other venue determined by the Court. The power to fix a place or venue of trial is discretionary.

2. The general rule is that election petitions outside the National Capital District must be heard at the location where the National Court is located and some of the matters that the Court may take into account when considering the place or venue of trial are those listed in the criminal cases of The State -v- Wambi Nondi (No 1) (2009) N3600, The State -v- Mathias Robert (2009) N3606 and The State -v- Michael Marabe (2009) N3637. One of them is security of witnesses.

3. Except for the evidence of Jackson Kon Karapusan which is hearsay and inadmissible, there is admissible and unchallenged evidence from other witnesses that the petitioner's key witnesses were assaulted and threatened, thus putting their safety at great risk. A matter that is of grave concern to the Court is that, there is unchallenged evidence that one witness was threatened at the car park of the Waigani Court premises and the coordinator of the petitioner was threatened right inside the Court Room.

4. The petition is fixed for trial at Waigani National Court.

Cases cited:

The State -v- Wambi Nondi (No 1) (2009) N3600
The State -v- Mathias Robert (2009) N3606
The State -v- Michael Marabe (2009) N3637
Nick Kopia Kuman -v- Dawa Lucas Dekena & Electoral Commission (2012) N4885
Pila Ninigi -v- Electoral Commission & Francis Awesa (2013) N5060

Counsel:

Mr G Manda, for Petitioner
Mr J Issack, for First Respondent
Mr H Viogo, for Second, Third & Fourth Respondents

RULING ON VENUE OF TRIAL OF ELECTION PETITION

23rd April, 2013

1. MAKAIL, J: This is a ruling on the venue of trial of an election petition. The election petition concerns the Wabag Open Electorate in the Enga Province. The petitioner invokes the inherent powers of the Court under section 155(4) of the Constitution and Rule 10 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") and asks for the trial to be held in Port Moresby at Waigani National Court for security reasons. This is the place where the petition was filed. The respondents want the trial to be in Wabag at Wabag National Court.

2. Section 155(4) of the Constitution gives the Court powers to make orders to do justice in the circumstances of a particular case. Rule 10 of the EP Rules, gives the Court power to fix a trial of a petition at the place where it is filed or any other venue determined by the Court. It states:

"10. PLACE OF TRIAL

(1) A petition may be heard at the place where the petition was filed or at any other venue determined by the Court.

(2) In the case of Central Province and National Capital District, the place of trial will be at Port Moresby."

3. The power to fix a place or venue of trial is discretionary. The general rule is that election petitions outside the National Capital District must be heard at the location where the National Court is located and some of the matters that the Court may take into account when considering the place or venue of trial are those listed in the criminal cases of The State -v- Wambi Nondi (No 1) (2009) N3600, The State -v- Mathias Robert (2009) N3606 and The State -v- Michael Marabe (2009) N3637. One of them is security of witnesses. Security of witnesses is very important if there is to be a fair trial. As to security of witnesses in election petition cases, in my decision in Nick Kopia Kuman -v- Dawa Lucas Dekena & Electoral Commission (2012) N4885, I said at p 5:

"10. I add we have come a long way since the first General Election in 1977. 2012 General Election is the eighth General Election and by now we should have learnt from experiences in the past seven elections and improve for the better. Threats to witnesses should be a thing of the past. People must learn to respect the rule of law. The Court process must proceed unhindered. Witnesses must come to Court freely. They must not be coerced. If there are reports of threats to witnesses, police should investigate and have those involved arrested and charged. We cannot continue to afford to have one group of people dictating how the Court process is to be conducted."

4. In Nick Kopia Kuman's case (supra), Mr Kuman asked for the trial to be held at Waigani National Court instead of Kundiawa National Court on the grounds that his witnesses were threatened by the supporters of the member-elect. The respondents out rightly denied the allegations. I refused the application because it was convenient for parties to have the trial in Kundiawa. There was inter-alia, a National Court house and resident Judge in Kundiawa to hear the petition.

5. In Pila Ninigi -v- Electoral Commission & Francis Awesa (2013) N5060, the petitioner applied to have the petition heard at Mt Hagen National Court instead of Mendi National Court because of assaults and threats against him, his lawyer and witnesses. There was unchallenged evidence that the assaults and threats occurred seven months earlier, during the time of polling and counting. Further, police at Mendi appeared to have supported the member-elect, thus compromising their position and security of witnesses. For these reasons, I fixed the petition for trial at Mt Hagen National Court.

6. In the present case, the petitioner alleged that six of his witnesses were threatened by supporters of the first respondent. On one or two occasions, witnesses were assaulted. His witnesses are Larson Talian, Yakun Tanges, Don Pone, Jackson Kon Karapusan, Pamela Imint and Paul Mupim. The petitioner raises three main allegations. The first concerns improper polling at Teremanda village comprising of three polling booths and the second allegation concerns the returning officer's decision to count five ballot boxes from two polling places despite objections because of illegal polling practices. The third allegation concerns the first respondent's failure to resign from his position as a public servant before nominating to contest the election.

7. Apart from the petitioner and his personal assistant Larson Talian, the rest of the witnesses will give evidence in relation to the polling at Teremanda and Irelya villages. Yakun Tanges and Don Pone have filed affidavits in relation to polling at Irelya village and Jackson Kon Karapusan and Paul Mupim have filed affidavits in relation to polling at Teremanda village. Their evidence will establish double voting and voters voting under duress and intimidation by supporters of the first respondent and Governor-elect Hon Mr Peter Ipatas.

8. Don Pone deposed in his affidavit filed on 21st November 2012 that on Sunday 28th October 2012 at 3:00 pm at Pawas village near Wabag town, he was confronted by Max Pakali, Joshua Pis and Kinja Sapun. They were drunk and told him not to erect a fence near his house at Irelya village. Then Max Pakali punched him on his face and nose and he bled. Joshua and Kinja joined in and punched him and he fell down. The motive for the assault was that he and his wife were witnesses in this case and Max and his father Pokali Lakati are supporters of Governor Ipatas and the first respondent. But Max tried to conceal this by claiming that when the petitioner was the member for Wabag Open Electorate, he did not pay him for road clean-up work at Irelya village during the election period.

9. As for Yakun Tanges, he deposed in his affidavit filed on 21st November 2012 that on Saturday 20th November 2012, he was with Mathew Masaen and wife of one Jackson Joshua at Irelya Primary School gate. They were chewing betel-nut when Eliza Kandes confronted him and told him that he would kill him and throw his body away. Eliza is the youngest son of Phillip Kandes the protocol officer of Governor Ipatas. As a result of the threat, he flew down to Port Moresby.

10. Jackson Kon Karapusan deposed in his affidavit filed on 21st November 2012 that on Friday 02nd November 2012, his uncle by the name of Kandiu Walowale heard that Kundala Kakambo and Simon Wangae announced at a funeral at Teremanda village that they would kill him. On Wednesday 14th November 2012, he was in Port Moresby preparing for the case when his uncle called him and informed him that Kandiu and Kundala would be in Port Moresby to see him give evidence in Court.

11. In his affidavit filed on 21st November 2012, Paul Mupin deposed that on 04th November 2012, around 2:00 pm, he was driving to his house in his 10 Seater vehicle and Makande Maki a supporter of the first respondent was standing at the road side and stopped him. Makande told him that he would kill him and throw him away. He put his hand into his coat and pulled out a pistol and tried to shoot him but he quickly drove away. He reported the incident to the police at Wabag Police Station. Because of the threat, on Monday 12th November 2012, he left Wabag and came to Port Moresby. On 16th November 2012 at around 9:00 am, he arrived at the Waigani Court premises car-park to attend the status conference hearing of this matter. He met Nana Isaac Minabarae the first respondent's cousin. Nana told him that if he went into the Court room to give evidence for the petitioner, he would kill him. He repeated this three times.

12. The matters deposed to by Larson Talian in his affidavit filed on 21st November 2012 are that he is the personal assistant to the petitioner and is coordinating the petition of the petitioner. On 16th November 2012 at 9:30 am, he entered Court Room No 9 at Waigani National Court to attend the status conference hearing when Roy Kipalan the President of Wabag Rural LLG and strong supporter of the first respondent told him repeatedly that he would kill him and throw him away. The first respondent who was present stopped Roy. All these verbal threats happened in the court room before the commencement of the Court session.

13. Pamela Imint deposed in her affidavit filed on 21st November 2012 that she is a young woman from the Irelya village but lives with her mother at Lakemanda village at the eastern end of Wabag town following her parent's separation. She attends Irelya Teacher's College. Her father and Governor Ipatas are cousins. Her tribe are strong supporters of the first respondent and Governor Ipatas. Her father has been putting pressure on her to withdraw the affidavit she swore for the petitioner.

14. The respondents, especially the first respondent did not call evidence from Max Pakali, Joshua Pis, Kinja Sapun, Eliza Kandes, Mankande Maki, Nana Isaac Minabarae and Roy Kipalan to refute or deny the evidence of the petitioner and his witnesses. They submitted that the application should be refused because all petitions for Enga Province have been fixed for trial at Wabag National Court and this petition should also be fixed there. Further, there is a Court house in Wabag, a resident Judge in Wabag, all witnesses are based in Wabag and costly to move the trial to Waigani. I accept the respondents' submission on these matters. They lean towards Wabag as the convenient place or venue for trial of this petition. However, each case must be decided on its own facts and it must be clearly understood by all that just because all election petitions for Enga Province have been fixed for trial at Wabag National Court does not necessarily mean that this petition should be fixed for trial there too.

15. Except for the evidence of Jackson Kon Karapusan which is hearsay and inadmissible, there is admissible and unchallenged evidence from other witnesses that the petitioner's key witnesses were assaulted and threatened, thus putting their safety at great risk. A matter that is of grave concern to the Court is that, there is unchallenged evidence that one witness was threatened at the car park of the Waigani Court premises and the coordinator of the petitioner was threatened right inside the Court Room. This is unacceptable.

16. This is a clear demonstration of the first respondent's supporters' preparedness to hijack the court process. It is also a clear demonstration that these people are not willing to submit to the jurisdiction of the Court to settle this dispute. It shows that they do not respect the rule of law. I have been saying and I will say it again, the National Court is the only place where election disputes are resolved. If witnesses are assaulted, threatened or harassed and do not turn up at trial to give evidence, how can there be a fair trial? How can the Court conduct a proper inquiry and arrive at a decision that is not only fair but also true?

17. I accept that the witnesses for each party are based in Wabag and if the trial is to be held at Waigani National Court, it would be costly for the parties to transport them down and also accommodate them in Port Moresby. But security of witnesses is equally important. In this case, I am satisfied witnesses have been assaulted, threatened, intimidated and harassed such that a fair trial is not possible if the petition is fixed for trial at Wabag National Court. I fix the trial at Waigani National Court. The respondents, especially the first respondent and his supporters must accept responsibility for causing this and must shoulder the costs of transporting and accommodating their witnesses in Port Moresby for the duration of the trial. I will now fix the trial date after I hear from counsel. Costs of the application shall be in the cause.

Ruling accordingly.
____________________________________________________________
Greg Manda Lawyers: Lawyers for Petitioner
Manase & Co Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents