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Togel v Ogio [1994] PGNC 53; N1241 (1 July 1994)

N1241

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE AT BUKA

MP.173 OF 1992

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND

IN THE MATTER OF THE DISPUTED RETURNS FOR THE NORTH BOUGAINVILLE OPEN ELECTORATE

AND

JAMES TOGEL
(Petitioner)

MICHAEL OGIO
(1st Respondent)

ELECTORAL COMMISSION
(2nd Respondent)

BUKA: DOHERTY, J
16, 17, 20, 21, 22, 23 June and 1 July 1994

Mr Yagi for Petitioner
Mr Niningi for 1st Respondent
Mr Kombagle for 2nd Respondent

DECISION

The Petitioner filed a petition in the National Court sitting as a Court of Disputed Returns seeking a declaration that the election held for the North Bougainville Electorate was void. The original petition contained five grounds. At a preliminary hearing before Judge Salika on 18th September 1992 four of these grounds were struck out. Two of these four grounds related to the 2nd Respondent. As a result there are no allegations against the 2nd Respondent in this Court.

The remaining ground alleges illegal practices by the 1st Respondent and states 21 incidents of bribery by the 1st Respondent at dates in May and June 1992, prior to the election. Before this Court evidence was adduced of 2 only of the incidents alleged. There being no evidence, adduced relating to the others I say nothing further concerning them.

Before dealing with the evidence and the law relating to that evidence, I will deal first with an application Mr Niningi tried, unsuccessfully to raise and subsequently raised again in his submission. This was seeking an Order to strike out the remaining one ground in its entirety on the grounds that it does not comply with S.208 of the Organic Law on National Elections. A ruling was given by Salika, J in response to the same application by the 1st Respondent to strike out the entire petition in September 1992. In asking this Court to strike out Counsel is effectively asking that it reviews or changes the decision and order of a Court of equal competent jurisdiction. The law is clear, a person is bound by the decision of a Court whether they think it is incorrect or not, until that order is changed by a Court of competent jurisdiction, by way of appeal or review or amendments (Yap -v- Tan B&T Engineering [1987] PNGLR 227. S.220 Organic Law on National Election provides that a decision of the National Court is final and conclusive and without appeal. That, of course, does not override the Supreme Court's inherent jurisdiction to review under S.155 of Constitution but the fact remains an Order was made by Salika,J on application by the 1st Respondent, he cannot come back and ask me to review that decision.

The evidence adduced related to 2 incidents which the Petitioner says were bribery. The Organic Law on National Elections provides at S.215(1)

"VOIDING ELECTION FOR ILLEGAL PRACTICES

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void"

Section215 (3)(a) provides that -

(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;"

"Bribery" is not defined by the Organic Law on National Elections, but it has been held, as Mr.Yagi points out, the National Court has held "undue influence" and "bribery" have the meaning in the Criminal Code (Re Menyamya Open [1977] PNGLR 1298 and Re Koroba-Lake Kopiago [1977] PNGLR 328.

EVIDENCE

The dates of the election were as follows the Writ was issued on 20th April 1992 and nominations opened on 3rd and closed on 9th April 1992. Polling commenced on 2nd June 1992 and closed on 30th June 1992. The polling in the Island of Buka was for one day on 24th June 1992. The incidents alleged occurred on Buka Island. It is not disputed that the relevant witnesses were listed in the Electoral Roll or Supplementary Roll as eligible voters.

The Petitioner did not personally witness any of the alleged incidents but gave evidence of his standing in the community and of meeting with chiefs and communities in Buka Island prior to the election. He said "I was nominated by chiefs in Halia area. Also nominated by chiefs in Tsilataeo. I was also endorsed by my party the Melanesian Alliance Party" and that "In traditional society our chiefs play a very important role in welfare of the people and in law and order and once they make that decision it is binding to the community. In other words people in the area had to follow that decision by the Chiefs" (meaning the decision to endorse his candidature). He conceded that the right to vote was enshrined as a private personal right of the individual by S.50 of the Constitution. Despite this I formed a very strong impression that he anticipated the 100% support of these communities in their entirety and was aggrieved when that support did not materialise.

The Petitioner called witnesses relating to monies paid to Kohenu Building Group on 21st May 1992 and to Halia Football Club in May 1992 which he said came from the 1st Respondent and were given with a statement that the recipients remember the 1st Respondent when voting. He does not seem to go as far as saying the payments were conditional on vote but seeks to adduce evidence that statements and payments operated on the minds of the witness in this way.

The 1st Respondent does not deny that payments were made but says they were part of his National Development Fund (variously referred to as Slush Fund, Slash Fund and Sliced Fund in evidence) and were made following requests by the recipient groups and were not conditional on nor accompanied by remarks about voting.

The Petitioner called 2 witnesses in direct evidence about the payments to Kohenou Rebuilding Group. Benedict Tukan gave evidence that he came from Kohenou and was in his village prior to the election. There was election campaigning in his area and he knew various people who were campaigning. On 21st May 1992, a Thursday, he was given a cheque by Father Lawrence Samei. It was payable to Kohenou Rebuilding Fund. It became apparent in re-examination that no group or corporate body called Kohenu Rebuilding Fund (or any similar name) had been in existence before 21st May 1992. The cheque was for K2000. He said when Father Lawrence gave the cheque he "told me that the cheque was given by Michael Ogio for the Kohenu Rebuilding Group".

He retained the cheque until it was collected next day by Alphonse Tomai. Evidence from Tomai shows a bank account called Kohenu Rebuilding Group was opened and most of the money used over a period for timber, nails and use of a chain saw.

This was the first such assistance Tukan received and he was adamant there was no request for assistance and he was surprised by it. Father Lawrence Samei said this witness was his "right hand man", a person of great integrity.

It was not until cross examination that it was suggested that there was anything said connecting the cheque and voting. The witness said "when Father Lawrence gave me the cheque there were many others present and he said remember Michael Ogio and do not have any second doubts".

Having received the cheque he felt obliged to vote for the person who gave him "something". It was put that Fr.Lawrence never said any words about "tingim tasol" which the witness refutted. Oddly enough it was not put that was someone other than Fr.Lawrence delivered the cheque which was, in turn, what Fr. Lawrence told the Court ie; that Tukan was absent and he had Sister Stella Marie deliver the cheque. Why question a witness about the words a person spoke when the person is going to swear that he was absent?

The Respondents evidence about this cheque was given by Father Lawrence Samei. Father Lawrence was the parish priest in Gogan Buka in 1992, he had previously been at the 1st Respondents parish for 5 years and knew him. He also knew the witness Benedict Tukan well and spoke highly of him, he was his "right hand man". He conveyed an impression that Tukan was a person of integrity. He said a meeting was held when it was agreed to apply for funds to help in the school rebuilding at Kohenu and Takun was present at that meeting.

Because he had been in Mr. Ogio's parish, Mr Ogio had stayed once with him and he had some knowledge of how to get application forms he was asked to help and agreed to do so.

He helped fill in the form, he used the name Koheno Building Group and gave it to the Committee which considered such applications, later a cheque for K2000 payable to the Koheno Rebuilding Group was given to him and he in turn delivered it to Benedict Takun. He then said Tukan was not at his home he was away having a bath, and he left the cheque to Sister Stella Marie to deliver. He denied making any statement concerning Ogio or voting at the time of delivery of the cheque.

The meeting, the discussion and agreement at the meeting was never put to the witness Tukan in cross examination. Tukan was cross examined on what Fr. Lawrence said, it was never suggested that another person handed over the cheque. Failure to put a fact of evidence to a witness has been considered in the rule in Brown -v- Dunn - the Court is entitled to conclude, when considering all the weight of evidence, that the witness has made things up. Certainly cross-examinating on what was said by Father Lawrence then leading evidence that Father Lawrence was not even there leads me to disbelieve Father Lawrence and believe Tukan that Father Lawrence did deliver that cheque and told Tukan it was from Mr.Ogio. Alphone Tomei also gave evidence of a meeting when it was decided to apply. His presence and the meeting itself was not put to Tukan. Tomei evasive about who attended the meeting and shifted and avoided questions on the point and I therefore do not put great weight on that part of his evidence.

The rest of Tomei's evidence was how the money was spent.

This evidence is something of a red herring in this type of case where bribery in an election is alleged. It is not where the money went after it was given that is probative of a bribe (although it may well be relevant in some situations) but the circumstances of the giving and on what conditions, if any, it was given.

I find as a fact that Father Lawrence gave the cheque to Benedict Tukan, that he made it clear to Tukan that the cheque came from the 1st Respondent and conveyed to Tukan that Tukan should be grateful to Mr.Ogio.

The evidence relating to the 2nd allegation of bribery was lead from Aquila Garei, the Secretary of the Halia Rugby League Club, from Halia village, Buka. He gave evidence that he received a cheque for K1,500 on 21st May 1992 at the Basbi Oval from Anton Hatubu. Hatubu was a local chief and a member of the Respondent's campaign Committee. He told the Court that he had never applied for such a payment nor did he know of any executive meeting that resolved to make such an application. When he was given the cheque he says he was told "when you get this cheque you must remember Michael Ogio in your period of voting". He was pleased to receive the money, the club never had such a contribution before and they needed to buy uniforms, the club would be unable to continue in the Buka League without uniforms. Prior to receipt of the cheque he intended voting for the Respondent but he "changed (his) intention because of the cheque".

He was challenged about what was supposed to have been said by Hatubu as in his affidavit he said that Hatubu "announced that help has just come from Michael Ogio, and he handed me a cheque of K1,500". His explanation was he forgot "Tingim Michael Ogio" at the time of voting when giving his original statement.

From his evidence it is clear that the handing over of the cheque took a very short time and lacked any formality. The team were training when Hatubu arrived and he spoke briefly, was thanked briefly and Hatubu left. There was no prior arranged meeting.

I am satisfied that this witness and the club executive did not make any application for funds. He says so, he was not challenged on the point and Robert Moves said he applied because the executive were "too slow". Moves was a player and also a member of the Respondents campaign committee.

The Respondent stressed that these and any other payments he made were as a result only of applications made to him through a Committee made up of people of differing political affiliations. The Committee was charged with collating, screening and making recommendations on applications for funds from the National Development Fund allocated to him.

Max Tabasi a witness for the Petitioner, confirmed that application forms were used to apply for assistance. There was an attempt to discredit the witness by his inability to identify his own and the Commissioner of Oath's signatures, his land dispute with Hatubu and that he was disgruntled because his application for assistance was unsuccessful but all his evidence shows is what the Respondent states directly. Tabasi was not present when the cheque was given and other aspects of his evidence about Lawrence Samei were hearsay.

The Respondent called Robert Moves a player in the Halia Rugby League who had helped in his election campaign and Anton Hatubu who gave the cheque over and was a member of the Committee screening applications for National Development Fund money.

Robert Moves was, to say the least, surly. He said there had been a meeting when the 1st Respondent and other club members were present when the Respondent was told of the clubs problems on uniforms and an application was suggested. He filled out the application at the behest of other players apparently by-passing the Club executive completely. He considered the executive were "asleep". None of this was put to Aquila Garei in cross-examination. He was present when the cheque was given and stated Hatubu's only words were "this is the cheque you requested to buy uniforms". A senior player thanked him.

Anton Hatubu was a member of the Committee screening applications and stressed that there was no political party or other bais used when assessing applications. He said the 1st Respondent could not know who the individual members of an applicant group were as the application was in the group name and did not specify the individual members. He denied "compaigning" for Ogio when he handed over the cheque to the Halia Rugby League players though it was reluctantly drawn out of him that he was a campaigner for the Respondent in the time before the election.

I find a cheque was given to "Halia Rubgy League Club" but it was not apparent who the members were or if they were eligible to vote. It was made clear the cheque was from the 1st Respondent and the Club executive did not apply for it.

The Respondent in his evidence, said he had received National Development Funds money allocated to all members of Parliament. In 1992 owing to the crisis he was unable to deal with his allocation early. He was not able to make any distribution in 1990/91 because of the crisis. He stressed he conformed with the requirement to acquit and so he received funds in subsequent years whereas some Members of Parliament got no funds because they did not conform with acquittal procedures. In order to distribute the funds he had set up committees in 3 parts of the electorate who received, considered and made recommendations. Prospective applicants had to fill in a form. He was unable to produce any forms as they had been destroyed in a fire at his office in Tinputz.

The Committee in Buka Island had 5 members of different political background who were leaders in their communities.

They received the applications and the committee's recommendations and the original application were referred to him. He signed final cheques.

The committee system is not a Statutory obligation but his own way to manage his funds.

It is apparent from evidence that the Respondent was not present when the cheque were handed over. He also said of Anton Hatubu - "I must say I did not know what transpired between him and any person he met".

He considered allocation of the funds as "exercising (his) duties as the elected leader for North Bougainville. When financial assistance given to my people there".

It is apparent from the evidence that the cheques given were an allocation from the 2nd Respondents National Development Fund which in turn is a legal allocation made to each Parliamentary member. There is no evidence before the Court that there are constraints on how or when these funds are disposed of. This has been subject to media criticism but, as I have stressed several times in this circuit, the Courts do not enter into politics.

I am satisfied on the evidence that the 2nd Respondent's allocation is administered by a Committee after application, that the application and recommendation together are referred to him. He may or may not know who the individual members of the applicant group are.

I do not consider that it is entirely relevant whether the payment is made to a group, or an individual. A clear intention can be conveyed to the members of a group that the benefit is being made so they will vote in a particular way. Each set the facts must be considered.

Whether or not the giving of National Development Fund to groups or individuals must also depend on the facts of each case amounts to bribery. As was said by Woods, AJ (as he then was) when speaking of distribution of Rural Transport Sectoral Fund

"Whilst I must criticize the timing of these grants and point out that a Government that allows such grants to be made just before an election could be creating grave suspicions as to its bonafides. I must find that the member himself was legally empowered to make such grants and I am unable to find that such grants were bribery. Candidates could presumably point out that in the future whoever won the election could possible have the same kind of funds to distribute" (Keno v Mona Unreported 1982).

I concur with Judges Woods that time of giving of these grants can create grave suspicions as to their bona fide. Do those grave suspicions go further on the facts before me and amount to bribery within the meaning of S.215 of Organic Law on National Elections?

I have noted the elements that are provided for in the Organic Law on National Elections - there must be a bribe to a person to persuade him to vote. This must be with the authority or authorization of the candidate. In re Menyamya Open Manasseh -v- Voeto (1977) PNGLR 298 it was held that it must be proved to the entire satisfaction of the Court and that the standard of proof may be just short of the Criminal standard.

I apply this law and the principles I have set out above (that allocation of funds to a group or an individual could be bribery depending on the facts) to the facts before me ie; that 2 payments were made and it was made clear that they came from the 1st Respondent. As a result the recipients felt obliged to vote for the 1st Respondent.

There is no evidence on the facts before me that the 1st Respondent knew what manner of person would receive the benefit and if they were eligible to vote or not. The Petitioner's witnesses names were not included in the forms and I am unable, on the evidence before me to find if he knew who would eventually distribute the cheques. They were given to the Committee and its members were not all of the same political persuasion as the 1st Respondent. Further I cannot find that he had any hand in what was said at the time they were handed over. Hence I cannot find as a fact on evidence, nor can I safely infer it from the facts, that anything said was said with "the candidates knowledge or authority" as provided in S.215(3)(a).

Without that evidence I consider the petition must fail and rule accordingly.