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Kalit v Pundari [1998] PGNC 132; N1712 (23 April 1998)

N1712

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 78 OF 1997

KELLY KULIYALI KALIT

-v-

JOHN PUNDARI

And

THE ELECTORAL COMMISSION

WAIGANI: SALIKA, J
23 April, 1998

Parliament – National elections – Correct date of Declaration of Election results – representation by the Electoral Commission – whether representation render doctrine of equitable estoppel to apply.

Mr.M. Kuimb for the Petitioner
Mr. A. Kandakasi for the 1st Respondent
Mr. A. Kongri for the 2nd Respondent

23 April, 1998

SALIKA, J: This is an Election Petition disputing the validity of the Election of Mr. John Pundari as the duly elected member for the Kompiam – Ambum Open Seat in the Enga Province.

The petitioner made a number of allegations some of which were struck out at the preliminary hearing. The remaining allegations are yet to be determined. Before those remaining allegations are heard, it has become necessary to have another preliminary hearing. Thus, this hearing before the court is to determine when Mr. Pundari was declared the winner for the said seat. It is important and necessary to determine this question first because the determination will decide whether or not the remaining allegations will go to trial at all. The petitioner contents that the declaration was made on the 5th July 1997 while the first and the second respondents contend it was done on the 4th July 1997. If the declaration was made on the 5th of July 1997, the petition will stand because it would have been filed within 40 days after the declaration of the result of the election. On the other hand if the declaration of the result was made on the 4th July 1997 the petition may not stand because it would have been filed outside the 40 day period allowed under s.208(e) of the Organic Law on National and Local Level Government Elections. The petition in this matter was filed in the National Court Registry at Waigani on the 14th August 1997.

The petitioner called seven witnesses including himself. The first witness Patrick Pundao gave evidence that the declaration for the Kompiam-Ambum Open seat was made on Saturday the 5th July 1997 at about 10.00 am. He said on the day of declaration Mr. Pundari was present and that there were a lot of people there as well. He named Mathew Uvovo and John Wakon as being present with others as well. He also said that on the 4th of July 1997 at about 6.30pm he was at the counting center at Wabag as a scrutineer. While at the counting center he said there was a dispute about some ballot boxes and there was an argument about them. He said as a result of the argument the Returning Officer Mr. Kandak Ralik suspended counting to the next day and on the next day which was a Saturday Mr. Ralik declared Mr. Pundari as the winner. He said after the declaration Mr. Pundari who was present thanked the people for returning him as their member and he said he left after that.

The next witness Jeffrey Maku gave similar evidence that he was present when the declaration was made. He also maintained that the declaration was made on Saturday the 5th July 1997 at about 10.00 am. This witness was a scrutineer for the petitioner at the counting center from the 3rd July to the date of declaration.

The next witness Sande Miname was under summons to give evidence. He was one of the Counting Officials engaged by the Electoral Commission. He was at the Counting center from the 30th June 1997 to the date of declaration. He said he was at the back of Mr Pundari when the declaration of the winner was made. This witness also said as soon as the declaration was made he left. He was adamant that the declaration was made on Saturday the 5th of July 1997

The petitioner himself gave evidence. He himself was not in Wabag at the time of declaration. He said on the 4th July 1997 he was in Mt Hagen and on the 5th he was at Wapenamanda. He was informed that Mr. Pundari had retained the seat. He said the results were declared on the 5th July 1997 because his scrutineers had informed him so and more so because he had checked with the Electoral Commission Officer Mrs Kila Burro on the 11th and 25th August 1997 and she had confirmed to him on both occasions that the election results for the Kompiam Ambum seat were declared on the 5th July 1997. The Electoral Commission compiled a list of all the Electorates in the Country with their declaration dates and in this case the Electoral Commission data does show 5th July 1997 as the declaration date for the Kompiam Ambum Open Seat. He said the visit to the Electoral Commission Office was to confirm the date of declaration of the results for the Kompiam Ambum Open Seat. He was not able to obtain a copy of the writ for the Electorate from Mrs Burro.

The next witness Dickson Maka gave evidence that he was present at the time of the declaration of the results. He was present as he was himself a candidate for the same seat. He also said that the declaration was made on Saturday the 5th July 1997. He accompanied the petitioner to the Electoral Commission Office to confirm the date of the declaration. He said Mrs Burro confirmed the 5th July 1997 as the declaration date.

The next witness called was Senior Electoral Officer Kila Burro who confirmed that some men had come to the Electoral Commission Office and enquired of her as to the declaration date for the Kompiam Ambum Open Seat. She said she checked with the computer printout compiled by the Commissions Secretaries and advised the men that the declaration date was 5th July 1997. She said she told the men that, that date was not confirmed. She said in September of 1997 she saw a copy of the writ for the Kompiam Ambum Open seat and saw that the declaration date shown on the copy of the writ was 4th July 1997. A report presented to the Parliament by the Electoral Commission shows 5th July 1997 as the declaration date for the Kompiam Ambum Open seat. Mrs Burro said the report was compiled from the data made available from the computers.

The petitioner's final witness Pius Yapalin gave evidence that he was present on the day of the declaration of the election results for the Kompiam Ambum Open seat and said that the declaration was made on the 5th July 1997 which was a Saturday.

The First respondent called six witnesses including himself. Mr Pundari gave evidence that he was declared winner for the Kompiam Ambum Open Seat on the 4th July 1997 at about 5.00 PM. He said he entered his signature on the writ on the 4th July 1997. His affidavit was tendered into evidence as well.

The next witness was John Wakon. He was the Provincial Police Commander at the time. He said he was present at the time of the declaration. He also said he made entries in his diary showing that on Friday 4th July 1997 Mr. Pundari was declared winner. He said he also saw Mr. Pundari signing the writ as he was standing behind him. He said he had no interest in the matter. This witness is from Manus.

Kandak Ralik the Returning Officer for Kompiam Ambum Open Seat gave evidence that he declared the Election results for the said seat at about 5.00 pm on the 4th July 1997. He said the writ was signed the same day and was given to the Provincial Returning Officer. He maintained that the declaration was made on the 4th July 1997.

Mr. Ano Pala the Clerk of Parliament produced the original writ to the Court. The Court viewed it. Both Counsel also viewed it. It was compared to the copies that were already in evidence through a number of witness's affidavits. The copies were agreed to be the same as the original. Mr. Pala gave evidence that he received the writ for the seat on the 16th July 1997 from the Governor General's Office and has kept it in the Parliament strong room since then. He is the only person who has the key to the strong room. It was put to him that there was a variance between the writ and the report that was presented to the Parliament by the Electoral Commission to which he said he placed reliance on the writ.

Dia Waka was the campaign manager for the petitioner during the elections. He said the declaration of the results were made on the 4th July 1997 and he said that because he said he was present at the time of the declaration. He further said that on the same day of the declaration he went down and met the petitioner at Birip and told him that the sitting member had won his seat back.

Edward Konu the final witness for the First Respondent said the declaration was made on the 4th July 1997. He said he was required to be present to witness the signing of the writ. After the writ was signed he said he got the writ from the Returning Officer. Mr. Konu further told the court that he brought the writ to Port Moresby before the 15th July 1997 and gave it to the Governor General on the 15th July 1997.

That was generally the evidence. Whose evidence do I accept? It was suggested to some of the witnesses called by both sides that they were lying because they had vested interest one way or other in the outcome of the petition. I agree that most of the witnesses have vested interest including the petitioner and the respondents. This means witnesses from the Electoral Commission also have vested interest as well to try and protect their organisation. Perhaps the only witness who may not have had any interest in the outcome of the petition is Mr. John Wakon the Provincial Police commander. He is from Manus, he is not related to the parties involved in this petition. Mr Ano Pala may be another one except that he is the Clerk of Parliament and the First Respondent is the Speaker of the Parliament. I take judicial notice that the Clerk of Parliament is answerable to the Speaker. I would therefore not regard Mr. Pala as a wholly independent witness. That is not to say that his evidence is not truthful.

Most of the witnesses accounts of evidence is from memory. Human nature being what it is, memory is not always reliable. Mistakes are always being made and will always be made when we rely only on memory. In this case human memory is up against a document. It is very difficult to dispute a document unless a contradicting document is produced. In this case no contradictory document was produced. Allegations have been leveled against the Returning Officer for manufacturing the writ that was produced in court by Mr. Pala. However those allegations have not been substantiated with evidence.

In the circumstances I accept the evidence of the First Respondent and his witnesses that the declaration of the results were made on the 4th July 1997. The First Respondent and his witnesses are supported by Mr Wakon's evidence whom I consider as an independent witness. I also accept the evidence of Mr. Ano Pala that the writ he produced is the original writ signed by the then Governor General Sir Wiwa Korowi. I accept the computer printout that was produced by the petitioner which shows the declaration date as the 5th July 1997. This document was issued from the Electoral Commission Office which is the body tasked with the conduct and running of elections in the country. I also accept the report to the Parliament presented by the Electoral Commission. However the information upon which the report was prepared for presentation to Parliament was obtained from the computer printout, and as such is secondary. The primary document is the writ which is signed by the Returning officer and dated as well. It also bears the signature of the First Respondent because he was the one declared to be the winner by the Returning Officer. Furthermore I accept the evidence of Edward Konu the Provincial Returning Officer that he was present when the declaration was made and when the writ was signed. I also accept his evidence that he was given the writ after the Returning Officer had endorsed the writ and the First Respondent had signed.

The petitioner has raised the doctrine of estoppel. He submits that because the Electoral Commission had on a number of occasions represented to him that the declaration was made on the 5th July 1997 which he believed and acted on, the respondents were now precluded from denying the truth of the statement they made to him about the date of the declaration. He submitted that the doctrine of equitable estoppel by representation or conduct applies in this case. He submits that the Electoral Commission cannot now deny the truth of its representation to him. It is true that the Electoral Commission through its employees made a representation to the petitioner that the declaration date was the 5th July 1997. Mrs Burro the Electoral Officer did admit she gave the petitioner the declaration date as the 5th July 1997. She however said that the date had to be confirmed. The two men did not go back to have the date confirmed. In any case by that time the petition had been filed. Be that as it may, the representation had been made not only to the petitioner but also to Parliament. The computer printout which was obtained from the Electoral Commission also indicated that the declaration date was the 5th July 1997.

On the other hand the doctrine says that if a person by a representation induces another to change his position on the faith of it he cannot deny the truth of his representation. What this means is that the petitioner must have changed his position on the faith of what he was told by the Electoral Commission. Evidence however is that he did not change his position. The petitioner's knowledge as far as the declaration date is concerned is that it was made on the 5th July 1997. The representation therefore did not induce him to change his position. If anything, and it marries with his own evidence, representation confirmed his own knowledge and belief. In other words both him and the Electoral Commission position was that the declaration was on the 5th July 1997. The Electoral Commission did not induce him to alter his position.

In my view the doctrine of equitable estoppel does not apply because no clear and unambiguous representation was made to the petitioner by Mrs Burro and the petitioner did not alter his position in reliance on the representation. Furthermore the representation was between the petitioner and the second respondent. The first respondent is not a party to the representations. What about his interests? Should he be penalised for representations made independently of him by the second respondent. In my view he should not be.

Considering all the evidence before the court I find that the declaration of results for the Kompiam Ambum open seat was made on the 4th July 1997. Having made the finding this petition was therefore filed outside the 40 days time allowed under s.208(e) of the Organic Law. The petition is therefore dismissed for that reason. I award costs to the respondents.

The security Deposit be issued for payment of costs to the Respondents.

Costs are to be taxed.

Lawyers for the First Respondent: Young & Williams
Lawyers for the Second Respondent: Nonggor and Associates
Lawyers for the Petitioner: Warner Shand