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Aka v Patiliu [1998] PGDC 18; DC41 (30 October 1998)

Unreported District Court Decisions

[1998] PNGDC 17 - JOAL MCRAY AKA V DINAH PATILIU

[1998] PNGDC 17

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO LEP (19) 5 OF 1997

JOEL McRAY AKA

v

DINAH PATILIU

Kimbe

G Manuhu PM

8 September 1998

30 October 1998

ELECTIONS - disputed election petition - lack of residential qualifications - constructive residence

Cases referred to:

Re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448

Kevin Masive v Iambakey Okuk [1984] PNGLR 390

Representation:

Counsel/Representative:

Petitioner: R. Habuka

Respondent: K. Latu

Lawyers/Representative:

Petitioner: Habuka Lawyers

Respondent: Latu Lawyers

G MANUHU PM:

N1>[1]����� The petitioner, Joel McRay Aka, is disputing the validity of the election of the respondent, Dinah Patiliu, as Councilor for Ward 8 in the Kimbe Town Local-level Government following the declaration of results of the election on 29 September 1997. The sole matter raised at the hearing is that the respondent was not qualified to be nominated as a candidate by virtue of the fact that she is not a resident of the said Ward 8. The petitioner's case, in particular, is that where the respondent resides is not within Ward 8 and, for that matter, is not even within the Kimbe Urban boundary.

N1>[2]����� The onus of proof is upon the petitioner to prove that the elected candidate was not qualified to stand. The standard of proof is such that the Court should require clear and cogent proof so as to induce, on a balance of probabilities, an actual persuasion of the mind that the candidate did in fact lack the required qualifications: Re Moresby North East Parliamentary Election (No 2) [1977] PNGLR 448.

N1>[3]����� The petitioner said he has been residing at the Hospital Compound, which is within Ward 8, since 1988. On the other hand, the respondent is residing on customary land opposite Morokea which is not within Kimbe Urban boundary. Where the respondent lives, according to the petitioner, is part of Ward 1 of Talasea Rural Local-level Government.

N1>[4]����� The petitioner relies on two documentary evidence. He tendered into evidence a Lands Department map of the Kimbe town. It is clear on the map that the respondent's residence is not within Kimbe town. The respondent operates a Shell Service Station adjacent to where her residence is. It is also clear on the map that the Service Station is not within Kimbe town.

N1>[5]����� The petitioner also relies on the Proclamation by the Governor General which established the Kimbe Urban Local-level Government boundaries. It was, thus, declared that the boundaries of Kimbe Urban Local-level Government shall comprise of 8 Wards. As far as the boundary goes, Ward 8, according to the Proclamation, comprises Kimbe High School, Kimbe General Hospital, Police Barracks and San Remo.

N1>[6]����� The Proclamation also establishes the Talasea Rural Local-level Government comprising 10 Wards. Ward 1, in particular, comprises of Kumbango Plantation, Dagi (Rumes and Huven), Morokea Oil Palm, Morokea Village Oil Palm and Ruango. None of these places are shown on the map.

N1>[7]����� The petitioner's strategy, therefore, is that, first, he points out where the Kimbe Urban boundary is. Secondly, the petitioner pinpoints where the respondent resides and where she operates her business. From these evidence the Court is able to arrive at a conclusion regarding the sole issue before us.

N1>[8]����� On the other hand, the respondent's case is somewhat confusing. She started her testimony with the evidence that she resides at Nekoneko which is situated "on the town boundary". Later in examination in chief the respondent admitted that Nekoneko is customary land but "developments on it" serves the town. Thus, the respondent appears to be saying that Nekoneko is not within Kimbe town but her business interests qualifies her to stand for Ward 8 in town. Then in cross-examination she stated again that she resides on customary land "on the boundary" of town. I am not sure if she meant that the boundary runs through her premises but this evidence presents a stiff contrast with the town boundary as shown on the map. The respondent eventually stated in cross-examination that she bought the land, now known as Nekoneko, from a customary land owner called Labu of Ruango. She has been residing there since 1979.

N1>[9]����� The respondent also called a senior officer from the Lands Division who did nothing more than identify a vacant piece of land which title is with the respondent in Kimbe Town. The third witness tried hard to have "Nekoneko" into Kimbe Town boundary but eventually accepted that where the respondent resides has not been proclaimed to be within Kimbe Town.

N1>[10]��� In all the circumstances, the respondent's argument that she resides "on the town boundary" is vague and ambiguous. I am satisfied from all the evidence that where the respondent resides and operates her Service Station, being referred to as Nekoneko, is not within the boundary of Kimbe town. My own inspection of the relevant area reveals that the respondent's residence is not within the town boundary. In particular, it has not been proclaimed as part of Ward 8 of Kimbe Urban. I am satisfied that Nekoneko, even if it is no longer a customary land, is part of the same Ruango which has been proclaimed to be within Ward 1 of Talasea Local-level Government.

N1>[11]��� I have also considered the concept of constructive residence to accommodate the respondent's evidence that she was a former representative, that her Service Station serves the people of Kimbe and that she has an undeveloped land in Kimbe. The concept means that a person is not really resident but because of certain reasons he is deemed to be resident or can be construed to be resident. Unfortunately, I have discovered in the course of my judgment writing that the concept which has been developed in other countries is not accepted in our country. It has been held in the Supreme Court decision of Kevin Masive v Iambakey Okuk [1984] PNGLR 390 that for the purposes of s103(2) of the Constitution the 'residence' must be real permanent and physical residence; constructive residence will not satisfy the requirements of the section.

N1>[12]��� In the final analysis, I find that the respondent was not qualified to stand for the Councilor's seat for Ward 8. Accordingly, I declare the election for Ward 8 Council seat in 1997 absolutely void. A new election will have to be held. I order that the sum of K50 paid by the petitioner as security for costs be repaid to him. Costs of the proceedings is awarded to the petitioner. In accordance with s221 of the Organic Law on National and Local-level Government Elections a copy of the order of the court will be forwarded to the Clerk of the Provincial Assembly.