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Noah v Leslie [1998] PGDC 11; DC34 (30 June 1998)

Unreported District Court Decisions

[1998] PNGDC 16 - VITUS NOAH V GILSON LESLIE

[1998] PNGDC 16

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

LEP (19) NO 8 OF 1997

VITUS NOAH (Petitioner)

v

GILSON LESLIE (Respondent)

Kimbe

S Lenalia PM

28 May 1998

4 June 1998

30 June 1998

LOCAL-LEVEL GOVERNMENT - Elections - Election Petition - District Court - District Court sitting as Court of Disputed Returns - Grounds of Petition - Lack of residential qualifications - Illegal practices - Prosecutable offences both under legislation in question and Criminal Code - Mandatory requirements - Strict compliance - Organic Law on National and Local-level Government Elections s208, s234, s286, s287 see also Criminal Code s98 - s116.

Cases referred to:

Re Moresby North East Parliamentary Elections (No 2) Goasa Damena v Patterson Lowa [1977] PNGLR 448

Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217

Agonia v Karo [1992] PNGLR 465

Fox v Stirk [1970] 2 QB 463

This was an election petition brought before the District Court at Kimbe sitting as a Court of Disputed Returns pursuant to s287 of the Organic Law on National and Local-level Government Elections. The petition was fought on the grounds of lack of residential qualifications, the respondent not having his name on the common roll and allegations of various illegal practices.

Held:

N1>(1)����� Where evidence is adduced to the satisfaction of the court showing that a person or candidate did, not have his name on the principal Roll or in the supplementary list, such person is not qualified to stand nor even vote at an election pursuant to s50 of the Constitution and under the Organic law on National and Local-level Government Elections.

N1>(2)����� The District Court cannot declare that a person returned as elected was not duly elected or declare an election void on the ground of illegal practice or practices committed by a person other than the candidate without the candidate's knowledge or authority.

N1>(3)����� The standard of proof required to discharge the onus of any illegal practice is above the civil standard.

Representation:

Counsel/Representative:

Petitioner: In person

Respondent: In person

S LENALIA PM:

N1>[1]����� This is an election petition brought to the District at Kimbe sitting as a Court of Disputed Returns pursuant to s287 and by application of Part X VIII of the Organic Law on National and Local-level Government Elections (see s206 - s233). The petitioner contested the validity of an open election conducted in September 1997 after which the respondent was elected and declared winner of Ward 1 and 2 of Mosa Local-level Government. The Mosa Local-level Government is established pursuant to s10, s26 and s27 of the Organic Law on National and Local-level Government Elections.

N1>[2]����� Prior to this Court assuming trial the parties have had compulsory conferences and on my observation of the records it would appear nothing much was said or even done on the status of the petition and when the parties first appeared before me on 28 May, the date on which the matter was set for trial. I enquired with the parties if I should conduct another compulsory conference. In response, the petitioner indicated they have had compulsory conferences and they were ready to go into trial. The respondent made similar remarks. The Court examined the contents of the petition to ensure compliance with s208 of the Organic Law on National and Local-level Government Elections. Having satisfied myself that the petition was in order, I proceeded to trial.

N1>[3]����� The petitioner in this action was also runner-up in the election returns now contests the validity of election returns with the election of Mr Gilson Leslie and his subsequent declaration as a member of Ward 1 and 2 of Mosa Local-level Government. It is alleged in the evidence of both the petitioner and respondent that the election around the Mosa area was conducted on 29 of September 1997. The petitioner essentially relies on five (5) grounds on his petition. For convenience sake, I set out the grounds as stated in the petition:

N2>1.������ The winning candidate Mr Gilson Leslie does not or did not have his name recorded in the principal roll nor even in the supplementary list. He in fact did not cast his own vote, therefore I believe he is not residentially qualified to have contested the elections for which he has now been declared the winner. I believe that residential qualifications are pre-requisite if one is to vote in an election and thus the same principle must apply if one is to contest in the elections.

N2>2.������ The winning candidate Mr Gilson Leslie had for quite a long time presented himself on 29 September of 1997 in and around the polling booth and its surrounding vicinity.

N2>3.������ The winning candidate bribed voters by buying beer at a club in Galai No 2 settlement. A copy of the cheque he used is in (petition) possession.

N2>4.������ The winning candidate agreed with polling officials and also threatened them. He was supported by his scrutineers and supporters.

N2>5.������ Polling had to be forcefully closed by the winning candidate and his supporters before the schedule time for closing.

N1>[4]����� The relief sought by Mr Noah is that the election of the respondent should be declared null and void and a fresh or by-election be conducted. The petitioner relies on his own evidence and that of his two witnesses. The first ground stated in the petition is compound in nature in that it alleges two distinct non compliance with the requirement of the Organic Law on National and Local-level Government Elections. The first portion of ground (a) alleges that Mr Gilson Leslie's names were not included or could not be found in the principal roll nor in the supplementary list and thus the respondent was not qualified to stand or vote at the 1997 elections. I shall return to this argument later after I have dealt with the rest of the other grounds.

N1>[5]����� The second segment of the first ground as stated in the petition alleges that Mr Leslie was not residentially qualified to vote or even be a candidate to stand for election pursuant to s250(2) of the Organic Law on National and Local-level Government Elections which requires all persons whose names are on the common principal roll for a ward are eligible to vote or stand in an election for the ward for which he or she has been enrolled.

N1>[6]����� On the second portion of Mr Noah's petition that the respondent was not residentially qualified, the petitioner produced no evidence nor even his two witnesses to show if the respondent was not a resident at Galai No 2. In the petitioner's evidence in chief, he did not raise the issue of whether the respondent was or was not residentially qualified until he was asked in cross-examination if the petitioner could validly provide proof to satisfy the court if the respondent had not been living and residing in the ward. In response, the petitioner replied that although he had seen the respondent around in the ward, he did not know how long the respondent had been living in Galai No 2. In fact, Messrs Augustine Becho and Leo Bito who were called as witnesses for the petitioner could not even establish if the respondent was or was not residentially qualified.

N1>[7]����� The respondent gave evidence showing that he had been a resident having his house situated at Galai No 2 settlement for the last twelve (12) years. His evidence is well corroborated by evidence of his two witnesses Messrs Bruno Loniga and Francis Sirigui who both confirmed that Mr Leslie has been a long time resident in the Galai area.

N1>[8]����� The law on election is clear. The Constitution gives the right to persons who are of voting age to vote and stand for public office. Thus s50 of the PNG Constitution says:-

N2>"50.��� Right to vote and stand for public office.

(1)����� Subject to the expressed limitations imposed by this constitution, every citizen who is of full capacity and has reached voting age, other than a person who:-

(a)����� is under sentence of death or imprisoned for a period of more than nine (9) months; or

(b)����� has been convicted, within the period of three (3) years next preceding the first day of the polling period for the elections concerned, of an offence relating to elections that is presribed by an Organic Law or Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity:-

(c)����� to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d)����� to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e)����� to hold public office and to exercise public functions.

(2)����� The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."

N1>[9]����� The appropriated law in relation to the Local-level Government Elections can now be found in PART XIX (see s234 - s287) of the Organic Law on National and Local-level Government Elections. On residential qualifications s253 provides.

N2>"253.�� Claims for Enrolment.

(1)����� Subject to this section and to section 250; a person who -

(a)����� has resided in the area of a ward for a period of not less than six (6) months immediately preceding the date of his claim for enrolment; or

(b)����� is nominated for a ward for which he is not enrolled and was either born in the ward or lived in the ward for five (5) years at any time;

is entitled to have his name placed on the Roll for that Ward.

(2)����� Where the name of a person is placed on a Roll in accordance with subsection (1)(a), he shall be enrolled in respect of the address of his last residence in the ward.

(3)����� Where the name of a person, is placed on a Roll in accordance with subsection (1)(b) he shall be enrolled in respect of his last known place of residence in the ward."

N1>[10]��� It is abundantly clear from my reading of enrolment provisions not only in relation to Local-level Government Elections but generally in general elections that before a person can vote or be qualified for nomination, his name must be placed on the roll. An elector must do that by applying to an electoral officer in the District Headquarters to enrol pursuant to PART XIX of the Organic Law on National and Local-level Government Elections. see s243, s244, s245, s246, s250- s263.

N1>[11]��� The onus of proof clearly rests on the petitioner to prove that the respondent was not qualified to stand for the ward for which he was declared winner. He must prove to the satisfaction of this court the respondent did not reside or have any residence in the Galai area. In In re Moresby North East Parliamentary Elections (No 2) Goasa Damena v Patterson Lowa [1977] PNGLR 448, the National Court sitting as a Court of Disputed Returns said the following at 410:

"The onus of proof clearly rests on the petitioner to prove that Mr Lowa was not qualified to stand. Mr Gregory for the Electoral Commissioner submitted that proof upon the balance of probabilities is sufficient upon such ground. The view I took in In re Menyamya Open Parliamentary Election (1) was that election is a serious and expensive matter and is not lightly to be set aside. I then went on to say that the case should be proved at least to the entire satisfaction on the judge." (emphasis added).

N1>[12]��� In the instant petition, I find from evidence of the petitioner and respondent that not only was the respondent residentially qualified pursuant to s250(1), s250(2) and s253, but he in fact had lived in the ward for some twelve (12) years now. The term "reside" has been defined to mean "to dwell permanently or for a considerable time" or "to have one's settled or usual abode" or "to live in or at a particular place." Levene v Inland Revenue Commissioners [1982] AC 217 at 222. In another case Fox v Stirk [1970] 2 QB 463 at 475, Lord Denning MR said a man may have two residences "in a flat in the city and a house in the country", he may be resident in both.

N1>[13]��� The evidence of the respondent in the instant case simply shows that he had resided in the ward for more than six (6) months the time limitation placed by s253(1)(a) of the legislation in issue. Thus I am quite entitled to say that the second leg of the first ground of the petitioner's application must fail.

N1>[14]��� The next three (3) grounds upon which the petitioner relies are all illegal practices as defined by s286 of the Organic Law on National and Local-level Government Elections. All those illegal practices are prosecutable offences both under the Organic Law on National and Local-level Government Elections and the Criminal Code Division 3 of PART III - Corrupt and Improper Practices at Elections. The second ground stated in the petition before me, alleges that the respondent had presented himself for a long time in and around the polling booth and its surrounding vicinity. Although there is no specific reference to the distance at which a voter or voters for that matter should be kept at from the polling booth under PART XIX nor is it stated specifically in s287 of the Organic Law on National and Local-level Government Elections. I am entitled to adopt the distance defined under s192 which says that voters should be at least seven (7) metres away from the polling booth. There is evidence from the petitioner that the respondent might have been standing at a distance of thirty (30) metres away from the polling booth which distance is more than the seven (7) metres required by law. This is quite evident from a response from the petitioner to the court which asked him what would have been his estimate of the distance at which the respondent was standing. On those findings, ground (b) must also fail.

N1>[15]��� Ground (c) alleges bribery. It is established law that a petitioner challenging an election return of a successful candidate on the grounds of bribery is in fact a charge that the election returns should be overturned because an offence Criminal in nature has been committed is also trite law that the petitioner need only to prove one of such illegal practice to invalidate the return: Agonia v Karo [1992] PNGLR. 465. Included in s286 of the Organic Law on National and Local-level Government Elections are illegal practices which may have found their roots from the Criminal Code which also contains a wide range of corrupt and improper practices at elections. It would be useful to set out the section dealing with bribery in the Criminal Code s103 provides:-

N2>103.��� Bribery

A person who:-

(a)����� gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person or property or benefit of any kind -

(i)������ on account of anything done or omitted to be done, or to be done or omitted to be done, by an election at an election in the capacity of an elector; or

(ii)����� on account of any person acting or joining in a procession during an election; or

(iii)���� in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b)����� being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity or an elector; or

(c)����� asks, receives or obtains, or agrees or attempts to receive or obtain any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d)����� advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e)����� corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f)����� is privy to the transfer or payment referred to in Paragraph (c) that is made for his benefit; or

(g)����� being a candidate at election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fomented or spirituous liquors,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one (1) year.

N1>[16]��� The Criminal Code provisions on corrupt practices at elections were designed to prohibit improper inducements to persons, electors or candidates in election. On bribery Sheehan J said in Agonia v Karo (supra) at 469:

"Whether those inducements are made to an elector - defined as any person entitled to vote, or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.

It is also clear that there is in s103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention a course of action of corrupt practice. It is clear therefore that, the intention is an integral part of the offence. Such phrase as offering gifts, benefits or inducements on "account of" or "in order to induce" or "with the intent that" are all phrases that show that the purpose of offering the inducement is an element of the offence."

N1>[17]��� It is thus clear from the above quote that one of the elements of s103 of the Code is that there must be an intention or the part of the giver of the money or whatever item is involved in the bribery and that the receiver of such bribes would use the money for any of those purposes set out in Division 3 PART III of the Code. This means that the intention or the part of the giver of whatever benefit is being offered as an integral part of the offence of bribery. In the instant petition I find there is no such evidence to prove or even suggest that the respondent bought any beer to bribe voters prior to the elections. The intention of the respondent to buy beer for the purpose of inducing voters in the ward must be proved to the satisfaction of the Court. Ground (c) contained in the petition must also fail.

N1>[18]��� Grounds (d) and (e) are closely linked because any threats made as alleged in ground (d) resulted in forceful closure of the election. The petitioner gave evidence suggesting that the respondent and his supporters argued and threatened polling officials and that the result of such arguments and threats was the forceful closure of the polling booth before scheduled time. It is the petitioner's evidence that the polling was scheduled to close at 6.00 pm but due to the threats, polling officials had to close a little after 5.00 pm. It is also alleged by the petitioner's evidence that, there was a general commotion on the scene and the surrounding vicinity of the polling booth at Galai No 2.

N1>[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; see s113, s114 and s115 of the Organic Law on National and Local-level Government Elections.

N1>[20]��� From evidence of both the petitioner and respondent and their witnesses, I am satisfied that there was no fight except for a general commotion resulting from the arguments between the petitioner and his supporters with the respondent and his group. I am also satisfied that it was not Mr Leslie who used the threatening words but another candidate by the name of Sangi Salapain. From my findings of the evidence, it would look like the last two grounds are being fought by finger pointing when it in fact, both groups were responsible for causing the commotion. The law requires that if there are unforeseen contingencies of emergency the presiding officer may withdrawn from the polling place. This may have been the case and the parties are equally to be blamed. The penalty provision under s286 (3) reads as follows:-

"a person who contravenes subsection (1) is guilty of an offence.

Penalty: a fine not exceeding K500.00 or imprisonment for a term of not exceeding one more or both."

N1>[21]��� The phrase "a person" in the penalty provision in any view would mean the specific person responsible for committing any of those illegal practices set out in s286(1) and s286(2) of the Organic Law on National and Local-level Government Elections it means evidence ought to implicate Mr Leslie or at least connect him to any threats alleged to have been committed. I am forfeited in that view by my understanding of s215(3) of the Organic Law on National and Local-level Government Elections which reads:-

N2>"(3)���� The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void -

(a)����� on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b)����� on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it just that the candidate should be declared not to be duly elected or that the election should be declared void."

N1>[22]��� This view could also be traced to another source in the Criminal Code on corrupt and improper practices at elections as set out in s102 of the Code in the following terms:

N2>"102.�� Undue influence.

A person who:-

(a)����� uses or threatens to use any force or restraint, or does or threaten to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector -

(i)������ in order to induce him to vote or refrain from voting at an election; or

(ii)����� 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 an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."

N1>[23]��� On examination of other Criminal Code provision in Division 3 of PART III dealing with corrupt and improper practices at elections, the opening words of those provisions "a person" means referring to a person who could be identified to be connected with anyone of the illegal practices and for these reasons in order for the petitioner to plead threats and other inducements he is under obligation to adduce to this Court credible evidence connecting Mr Leslie with the threats and other undue influence alleged in the petition.

N1>[24]��� I conclude in grounds (d) and (e) by saying that, it is established by the evidence of both parties that both the petitioner's and the respondent's supporters were engaged in that war of wards thus creating general fear on the polling officials and electors around at the time the threats were said to have been made. There is no evidence to show that Mr Sangi Salapain acted under authority or with the knowledge of the respondent as required by s215(3) of the Organic Law on National and Local-level Government Elections. I further find that, the person by the name of Sangi Salapain acted independently at will to threaten the electoral officers. Obviously grounds (d) and (e) of the petition must fail as well.

N1>[25]��� I now return to the first leg of ground (a) which alleges that Mr Gilson Leslie did not enrol so that his name was not recorded in the Principal Roll neither in the Supplementary List. On examination of the principal roll of electors and the supplementary roll tendered by the petitioner and marked MFI Exhibits "A" and "B" which require that all eligible voters must enrol at a common roll in order for them to vote or stand for election (see PART V - Electoral Rolls). I find that Mr Leslie's name is not recorded in both the common roll and the supplementary list.

N1>[26]��� In his evidence, the respondent told the Court that he had enrolled but as to why his name could not be found in the common roll nor in the supplementary roll, he cannot tell. Mr Leslie was to call a female electoral officer from the Electoral Office in Kimbe who allegedly processed his (Mr Leslie's) enrolment application but the officer has since resigned last year.

N1>[27]��� 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 law pursuant to s250 of the Organic Law on National and Local-level Government Elections put in the following terms:-

N2>"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 Division 5 for an 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."

N1>[28]��� The requirement under s250(1) is simply that all person having the right to vote and stand for public office must comply with Division 5 of the Organic Law on National and Local-level Government Elections. Division 5 of PART IXI deals with the prerequisite requirements for each elector to enrol 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, see PARTS V, VI, and VII of the Organic Law on National and Local-level Government Elections. Simply put, these are strict requirements that have to be complied with in order for a person to stand for a public office.

N1>[29]��� In regard to my earlier findings as allegations of illegal practices, had I found them to be true or had the petitioner proved his allegations to the satisfaction of the Court, I would not hesitate to refer whoever was responsible to the Electoral Commission pursuant to s216 of the Organic Law on National and Local-level Government Elections for prosecution. As I have found I am not satisfied with the petitioner's evidence of various illegal practices more particularly when the evidence do not connect the respondent with allegations put in the petition.

N1>[30]��� Having found that the respondent's name is not on the roll nor in the supplementary roll, this Court is left with no option but to declare pursuant to s212(1)(h) of the Organic Law on National and Local-level Government Elections the following declarations:-

N2>1.������ Declare that the election of the respondent was completely void.

N2>2.������ That a new election be conducted.

N2>3.������ That the deposit paid by the petitioner be refunded to him.

N2>4.������ The respondent shall meet the costs of the proceedings.

N1>[31]��� Orders accordingly.