DC849

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

LLGEP NO. 23 of 2008

BETWEEN:

OYA PURI
Petitioner

AND:

LUI ANIS
First Respondent

AND:

GEORGE MANGIBAN
Second Respondent

AND:

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. IPANG
2008: October 03
November 11, 20, 21, 25
December 10

ELECTION PETITION – Petitioner bears the onus of proof – bear and bold accusations not good enough – allegation that candidate not registered shall be confirmed with the common roll.

Practice and Procedure: No Case Submission – Desmond Baira –vs- Kilroy Genia & Electoral Commission of Papua new Guinea (26/10/98) SC579 followed

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 

10th December 2008

JUDGMENT

M IPANG Magistrate: At the end of the Petitioner’s Case, the Third Respondent through Counsel Ms. Nidue made a No Case Submission – asking this court to stop the trial at this stage as there are no evidence or lack of it to warrant the court to continue on to hear the Respondent’s side of the Case. The issue of No Case Submission in Court of Disputed Returns has been settled in this jurisdiction in the case of Desmond Baira –vs- Kilroy Genia & Electoral Commission (26/10/98) SC 579 and followed by Labi Amaiu –vs- Andrew Mald, Cyril Retaw and Electoral Commission of PNG, EP No. 19 of 2007, N 3335.

2. Apart form giving evidence himself, the Petitioner called Jorifa Yubiko as his witness. Petitioner claimed Hemen Bebes stepped in and marked ballot papers. He said Scrutineers tried to stop polling and remove Hemen Bebes but the polling Officials continued with the polling. During cross-examination, it was established that Electoral Commission appointed Hemen Bebes to assist the illiterate voters. Jorifa Yubiko said there were 600 ballot papers left and these were shared amongst Ward Councillors. He said he saw at Yonki, Hemen Bebes marked the ballot papers.

3. Ms. Nidue submitted that there were six (6) grounds contained in the petition:-

1. Villagers brought in by Jeriko Mamati (a candidate) casted their votes by impersonating registered voters;

Ms. Nidue said that no names of registered were mentioned. How did villagers impassionate registered voters. This is a bold accusation without any evidence to justify such practice took place. In law, ‘he who asserts must prove.’ In this ground, Petitioner has failed to substantiate his allegation with evidence. This ground is dismissed.

2. Candidates Jeriko Mamati, Tie Oveka and Marin Kukuro were not eligible to nominate for Urban Ward as they were registered in Rural Wards.

I do agree with Ms. Nidue in that the Petitioner did not confirm or consult the Common Roll to confirm his allegation. This ground is dismissed.

3. 600 ballot papers were distributed to six (6) Councillors for marking and approved by Polling Officials for Ward 4.

I do agree with Mr. Nidue. There is no reliable and credible witnesses that the Court can rely on their evidence. This ground of petition is dismissed.

4. A polling Hemen Bebes was a strong supporter of Mr. Lui Anis personally marked the papers for voters in Wards 2, 6 and 7.

Petitioner alleged that Polling Official Hemen Bebes who was the supporter for the First Respondent marked ballot papers for First Respondent Lui Anis. There is no evidence that Hemen Bebes did mark the ballot papers for the First Respondent. This is just a bold accusation. No credible witnesses. This ground of petition has not been substantiated with evidence. This ground is dismissed.

5. Extra 200 ballot papers were used at Bundaira when only 186 voters were registered in the Common Roll.

Petitioner did not consult the Common Roll to verify and substantiate this ground. There is hardly any evidence before the court. This ground is dismissed.

6. Unfair recruitment of polling and counting officials.

This is a bold accusation. Again the Petitioner did not bring evidence to substantiate this ground of petition.

4. Ruling

The Petitioner has not brought forward evidences to substantiate each of the six (6) grounds of petition. No Case Submission is upheld. There is no case for the Respondents to answer. Petition is dismissed in its entirety with costs.

________________________

Counsel:

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