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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 53 OF 2002 N.C.D.
In the Matter of the Organic Law on National and Local Level Government Elections And in the Matter of a Disputed Return in the General Election for the SINASINA YONGAMUGL OPEN ELECTORATE
Between:
LUDGER MOND
And:
JEFFERY NAPE
And:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
MOUNT HAGEN: KANDAKASI, J.
2003: 13th & 14th January,
PARLIAMENT – Election – Election Petition – Practice and procedure – Pleadings of grounds of petition – Statutory requirements to be strictly complied with – Facts relied on to invalidate election – Material and relevant facts relied on must be pleaded – Petition on grounds of bribery and undue influence must plead all of the essential elements of the offences - Petition on grounds other than bribery and undue influence must plead the facts relied on and what effect the facts pleaded was likely have on the results of the election - To determine whether results of the election was likely to be affected, the petitioner must plead the winning votes and the figures of the runner ups and hence the difference – A failure to so plead amounts to the petition being incompetent – Organic Law on Provincial and Local-level Government Elections ss.208(a), 215(3)
Cases Cited:
Karo v. Kidu & Anor (unreported judgement) N1626.
Delba Biri v. Bill Ninkama [1982] 342.
Holloway v. Ivarato [1988] PNGLR 88.
Raymond Agonia v. Albert Karo & Anor [1992] PNGLR 463.
Fr. Louise Ambane v. Thomas Tuman (unreported judgement) SC559.
Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28.
Greg Mongi v. Bernard Vogae & Anor (unreported judgement) N1635.
Desmond Baira v. Kilroy Genia & Electoral Commission (unreported judgement) SC579.
Charles Luta Miru v. David Basua & Ors (unreported judgement) N1628.
Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463.
Counsels:
Mr. D. Hauka for the Petitoner.
Mr. P. Korowi and Mr. S. Jeffson for the First Respondent.
Mr. R. Williams for the Second Respondent.
14th January 2003.
KANDAKASI, J: This is an election petition by Mr. Ludger Mond (Petitioner) against Mr. Jeffery Nape’s election as Member of Parliament for the Sinasina Yongamugl Open Seat in the 2002 National General Elections.
Preliminaries
The Respondents to the petition, Mr. Nape and the Electoral Commission object to the petition in the form it is. That objection is taken on their claim that material facts relied on by the Petitioner have not been pleaded with sufficient particulars, in terms of ss.208 (a) and 215, of the Organic Law on Provincial and Local-level Government Elections (the Organic Law) and ss. 102 and 103 of the Criminal Code.
Prior to the objection being heard, the Petitioner withdrew or abandoned grounds 3.3, 3.9, 3.10, 4.7, 4.9, 4.10 and 5.3. Then during the course of the hearing objections to the competency, the remaining grounds under ground 4 (Errors, Omissions and Unfair Counting Proceedings) and 5.7 were abandoned. Also during the course of the hearing of the objection, the Petitioner abandoned all allegations in the remaining parts of ground 3 covering undue influence, irregular voting, intimidation and threats at Koge Village, Wards 1, 2, & 3, Suai Local-level Government Area Polling. This was particularly for allegations of such conducts by the First Respondent’s supporters. In so doing, the First Respondent accepted arguments by the Respondents that the allegations failed to plead that those people’s conducts were with the knowledge or with the authority of the First Respondent. Clearly therefore it means in effect that grounds 3.2, 3.4, 3.6, and 3.8 were also withdrawn or abandoned by the Petitioner. This left grounds 3.1, 3.5, 3.7, 3.12, 3.13, 5.1, 5.2, 5.4, 5.5 and 5.6.
I then fully heard the parties on the objection and reserved a ruling to the this morning. I was ready with my decision on the matter, in terms of what follows. But before I could deliver the judgement, the Petitioners Counsel informed me through my associate that he had just received instructions from his client to withdraw the petition. When the case resumed, Counsel for the Petitioner confirmed his client’s instructions and sought leave of the Court to withdraw his client’s petition. At the same time, he asked the Court to deliver its decision, which was by then ready to be delivered but the matter will otherwise stand withdrawn subject to arguments on Costs. The Respondents agreed with that course. I therefore proceeded to deliver the judgement of the Court.
The Judgement on the Objection
The Respondents argue that, the remaining grounds of the petition are incompetent. For 3.1, 3.5, 3.7, 3.12 and 3.13 they submit this is the case for two reasons. First, they fail to state whether they amount to an illegal practice or irregularity error or omission instead of leaving the respondents and the Court to guess what they amount to. They cited my brother Injia J., in Karo v. Kidu & Anor (unreported judgement) N1626 in support of their contention. Secondly, these grounds fail to show by appropriate pleadings how the conducts alleged in these paragraphs were likely to affect the result of the election. In so do, they point out to the fact that the Petitioner has not pleaded the difference in the number of the winner’s and the runner-up’s votes. These they submit is critical to determine the question of whether the conducts alleged were likely to affect the result of the election. They also submit that each of these grounds either individually or collectively fail to state how the result of the election was likely to be affected. On these bases, the Respondents argue that the requirements for the facts relied on to invalidate an election under s.208 (a) of the Organic Law to be stated sufficiently has not been met. Consequently, they argue that, s. 210 of the Organic Law apply. They rely on a number of cases including the Supreme Court decision in Delba Biri v. Bill Ninkama [1982] 342 and Holloway v. Ivarato [1988] PNGLR 88, in support of their arguments.
As for grounds 5.1, 5.2, 5.4, 5.5 and 5.6, the Respondents argue that, these grounds are also incompetent again for two main reasons. First, these grounds fail to state what these allegations amount to, whether they amount to bribery, or undue influence or both. Secondly these grounds fail to meet the requirements of s. 208(a) of the Organic Law in that they fail to state that the persons allegedly bribed or unduly influenced are electors or voters. Reliance is placed on the case of Raymond Agonia v. Albert Karo & Anor [1992] PNGLR 463 and others to support their arguments.
The Petitioner argues in relation to paragraphs 3.1, 3.5, 3.7, 3.12 and 3.13 that, although it is relevant, it is not necessary to plead the difference in the number of the winner and the runner-up’s votes. Similarly, the Petitioner argues that it is not necessary to state that the conducts either separately or collectively were likely to affect the result of the election of the First Respondent as long as the facts relied on are pleaded. He relies on a passage from the judgement of the Chief Justice in Fr. Louise Ambane v. Thomas Tuman (unreported judgement) SC559 on the definition of the term "result" as used in s. 218 (1) of the Organic Law. Further he argues that, it is not necessary to plead the law or the conclusion the facts once stated discloses. He points out that s. 208 (a) require the facts relied on to be pleaded and not the law or the conclusion based on the relevant facts. He goes on to argue that, the cases that require this be done go beyond the ambit of s. 208 (a) and so therefore they have been misconceived and that they have misinterpreted and applied the law. I am therefore not bound to follow them but depart from them, especially for the National Court judgements.
With regard to paragraphs 5.1, 5.2, 5.4, 5.5 and 5.6, the Petitioner argues that it is not necessary to state that the persons alleged bribed or unduly influenced are electors or voters. All that needs to be stated are the facts relied on. Further he submits that from the whole of the facts pleaded, it can be inferred that the persons allegedly bribed or unduly influenced are electors or voters. Therefore, it is not necessary to again state that they are electors or voters. The Respondents respond to this argument by saying, if the Court accepts the Petitioner’s arguments, it would in effect amount to an amendment of the grounds of the petition to put the facts together when they have been stated separately which can not be done after the expiration of the time period stipulated in s.208 (e).
Issues
These arguments present a number of issues for determination. These are:
The Grounds
The remaining grounds of the petition with the necessary modification to the grounds under ground 3 of the petition are as follows:
"3. Undue Influences, Irregular Voting, Intimidations and Threats at Koge Village of Wards 1,2 & 3 of Suai Local Level Government Area Polling.
3.1 On the night of Saturday 22nd June, 2002, while the Polling Teams 37, 38, 39 and 40 (Reserve Team) for Sinasina Yongamugl electoral was overnighting at Koge village of the Sinasina Council area for polling the next day (Sunday 23/06/02), the First Respondent without any lawful authority and in the absence of scrutineers for other candidates on his own will and authority with threats to the polling officials and while in possession of firearms such as, pistols and shot guns, bush knives, bows and arrows, axes and thereby:-
(1) took custody of the Ballot Boxes Nos. SIM 1476, SIM 1477, SIM 1482, SIM 1483, SIM 1484 and SIM 1485 by holding them in his house,
(2) took custody of the Ballot papers for the polling by holding them in his house,
(3) removed ballot papers from the Ballot book(s) while in that house, and
(4) caused the Presiding Officer, Mr. Kua Mui to sign the ballot papers (which he did so) in the night at that house,
(5) upon every ballot paper signed by the said Presiding Officer, the First Respondent marked the ballot papers by placing [X] in the space along side the name of the First Respondent as the Candidate indicating that he casting his votes for himself in that house on that night,
(6) causing more than 2,117 ballot papers marked in that way and loaded into Ballot boxes Nos. SIM 1482 and SIM 1483,
(7) giving votes on the ballot papers to the First Respondent that were not polled in the authorized polling booth in the normal manner of voting,
(8) casting the votes for all other villagers while the two (2) polling clerks for Team 39 were witnessing the incident on that night,
thus resulting in the First Respondent receiving 2,117 votes from those ballot boxes (SIM 1482 & SIM 1483) which made him to win against the Petitioner.
3.5 The said Ballot Boxes were kept in the house of the First Respondent for three (3) nights (Sat. 22/06/02, Sun. 23/06/02 and Mon. 24/06/02) without any security of the boxes by the Second Respondent (if any consent given), such consent was from the result of threats by the First Respondent who guarded the Boxes containing votes already casted for Teams 38, 39 and 40 (which boxes were brought in from the polling places and locked in the First Respondent’s house) until they were taken to Kundiawa on Tuesday 25/06/02 to be held for counting.
3.7 The Polling Team 39 Ballot Boxes Nos. SIM 1478, SIM 1482 & SIM 1483 were held in the custody of the First Respondent in the same manner at Koge village and transported together with the Boxes for Teams 38 & 40 whereby the ballot papers in those six (6) Boxes were tempered with by the First Respondent in that the Ballot papers for the Open seat were voted by ...
3.11 On Sunday 23rd June 2002, the Polling Team 39 for Koge Ward 1 conducted polling outside the residence of Boga Francis at the Koge Health Centre. It took less then three (3) hours to complete the polling because the ballot papers for that polling location had finished, the reason being that, all the ballot papers were marked out by .... on the night of Sat. 22/06/02.
3.12 The polling (referred to above 3.11) was controlled, directed and under the heavily armed guards of the First Respondent who seized the polling booth and marked the ballot papers at his own will and while doing so, allowed some other members of his clan to vote in the normal manner of casting votes by going through the polling booth (to cover-up their illegal actions) and to make it look like there was some polling conducted by Team 39 on that day for purposes of the election.
3.13 As a result of the actions of the First Respondent marking out the ballot papers:-
(1) out of the 2,124 voting population in Koge Ward 1 (about 1, 800 people) never voted,
(2) the First Respondent received 2,117 votes from ballot boxes SIM 1482 & SIM 1483 from Team 39 polling,
(3) objections were made to the counting of the ballot boxes Nos. SIM 1482 & SIM 1482 during the counting and that objection was upheld, (but, after four (4) days later the Second Respondent ordered count of the disputed boxes, when on the count of those boxes, the First Respondent received 2,117 votes and again the total tally of votes were disputed by the scrutineers of the Petitioner and others),
(4) On Mon. 24/06/02, the ballot papers distributed by the Returning Officer for Team 17 to Ward 11 of the Yongamugl Local Level Government are complained of been short of 300 ballot papers,
(5) On the same day, Team 18 to Ku’u area were allocated only 500 ballot papers,
(6) On Wed. 26/06/02, Team 14 to Niglguma area received 100 ballot papers less,
thus rendering more than 3,000 people not voting or denied the opportunity to vote, whereas, had those people voted, the results of the election would have been different other than what was declared on 25th July, 2002.
5: Bribery and Undue Influences by the First Respondent
5.1. On the night of Firday 21st June, 2002 between the hours of 6.00pm to 11.00pm, the First Respondent and his supporters hosted a feast of local food (bananas, kaukau, greens and one big pig roasted) and served to the Polling officials of Team 38, Team 39 (Pastor Barme Kumul, Enock Poi, Steven Paul, John Tokumun, Kaupa Sipa and Paias Yakali, the Presiding Officer) and other officials from Team 40 at the house of the First Respondent in Koge village and as they dined, the First Respondent talked with them about the polling and what he wants to be done and telling them that "he wants them to help him to win the election," and so he hosted that feast for them.
5.2. At the feast on that said night, the First Respondent and his supporters like John Yegiora, Peter Esau and Dom Kela placed in the three (3) big dishes to the officials of the three Polling Teams, (three 3) brown envelopes one on each dish which contained some cash inside the envelopes for the polling officials to receive and to share for them to do their part of helping the First Respondent to win in that elections.
5.4 On 17th June, 2002 at about mid-day at a meeting of Councilors at Mata village in Sinasina Yongamugl District, (3 days before the polling started for the Sinasina Yongamugl electorate on 20/06/02), the First Respondent;
- (1) drove to the village in a Maroon Colour Nissan Patrol 4x 4, and
- (2) presented himself at the meeting, and
- (3) called for the former councilor namely, Nari Matai and
- (4) after talking with Nari Matai for a while, he handed him K500.00 in cash of K50.00 notes, and
- (5) asked him to give him one vote in the election of the open seat Member for Parliament.
5.5 On the same day at the same manner referred to in (5.4) above, the First Respondent proceeded to meet the other members of the meeting and people who were there who were leaders and representatives, and handed nine (9) other leaders cash monies with details as follows:-
No. Name Amount Clan Village LLG Electorate
1. Mr. Gera Buko K500.00 Yobagawo Gera Tabari Sinasina Yongamugl
2. Mr. Bal Kamane K500.00 Mingadewepe Gera Tabari Sinasina Yongamugl
3. Mr. Ate Mateme K500.00 Konomateme Womai Tabari Sinasina Yongamugl
4. Mr. Doctor Sumai K500.00 Maimagawo Womai Tabari Sinasina Yongamugl
5. Mr. Alois Nick K500.00 Bikigawo Womai Tabari Sinasina Yongamugl
6. Mr. Albert Mire K500.00 Kepaikawe Womai Tabari Sinasina Yongamugl
7. Mr. Upa Emmo K500.00 Yalkapa Kagma Tabari Sinasina Yongamugl
8. Mr. Balupa Jeffery K500.00 Dirukukane Oginal Tabari Sinasina Yongamugl
9. Mr. Jimmy Simakus K600.00 (Volleyball Competition Representative)
5.6 Total cash given out by the First Respondent was K5,100.00 on that day to those people and the First Respondent pleaded with them to give him the vote and to tell the people who they represent the same thing in which the above named did vote for the First Respondent who then procured his votes by that act of giving that "free-cash handouts" to them."
The Law
Section 215 provides for the grounds on which an election result could be disputed. The provision stipulates:
"215 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.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(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 is just that the candidate should be declared not to be duly elected or that the election should be declared void."
The leading case authorities on this are the Supreme Court judgements in Delba Biri v. Bill Ninkama (supra) and Holloway v. Ivarato (supra). In the former case, the Supreme Court said at pages 345, 346 and 349:
"... it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210"
...
An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law."
The judgement in the Holloway case (supra) the Supreme Court per Kapi DCJ., with whom Los and Hinchliff JJ., agreed elaborated the position for the purposes of s. 208 (a) of the Organic Law in these terms at pages 101 and 102:
"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
...
In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."
In the present case, there are two main grounds of the petition remaining after a withdrawal of the other grounds. These are first paragraphs 3.1, 3.5, 3.7, 3.12 and 3.13, which concern conduct of the First Respondent other than bribery or undue influence. They therefore fall under s.215 (3) (b) of the Organic Law. There is a good number of case law on this provision. An example of that is Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28. In that case, Andrew J., held that:
"Section 215(3)(b) is confined to illegal practices other than bribery or undue influence or attempted bribery or undue influence committed by the duly elected candidate. This may be seen from the opening words of s. 215(3), namely, that the National Court shall not declare that a person returned as elected was not duly elected or declare an election void — indicating that it is dealing with his conduct — and may be further seen from the concluding words of the section namely that the conduct would mean—
‘that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.’
...
I think that s. 215(3)(b) should be read with s. 215(1). That is, that under s. 215(1), a successful candidate who commits bribery or undue influence or attempts either will have his election declared void, but if he commits some other illegal practice, then by s. 215(3)(b), the court must apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare the election void."
My brother Injia J., took the point further in Greg Mongi v. Bernard Vogae & Anor (unreported judgement) N1635. There he said:
"I agree with the submissions for the respondents. Figures are material in demonstrating the likelihood of the result being affected on the face of the petition. Also, it is necessary to plead how the errors or omission on the part of election officials are material as such that the result of the election was likely to be affected."
It is clear from this that if a petition alleges an illegal practice or conduct other than a bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence.
The position in relation to the need to state and show the conduct complained was likely to affect the result of an election, appears to be at variance with what the Chief Justice said in Fr. Louis Ambane & Anor v. Thomas Tumun Sumuno (supra). The petitioner relies on that case to argue that it is not necessary to plead the number of votes secured by the First Respondent and those secured by him and how the conduct complained of was likely to affect the result. The particular part of the judgment relied on reads:
"It is trite that the ‘result’ means the return of the particular candidate and not the numbers of his majority, which means the result as between any of the candidates as determined by the allocation of the votes upon a count, and not the result between the winner and the runner up only, or between the winner and the petitioner as suggested by this contention."
This was in the context of s. 218 (1) and in a case where the court had earlier ordered a recount of ballot papers for the purposes of ascertaining the number of votes for each of the candidates in the election. Besides as the Deputy Chief Justice noted in the same case, the issue was:
"... overtaken or overruled by the Court in concluding as a matter of law that in order to satisfy the criteria set out in s. 218 (1) of the Organic Law, the Court must examine and count the total number of votes and determine the manner in which the votes may be distributed amongst the candidates and not merely speculate as was the true nature of what the trial judge did in determining the total number of votes. The trial judge based his finding on the estimates given by Electoral Commission officials and not on an examination of the votes. We have already determined that the trial judge fell into error in our earlier ruling.
What is apparent is that, the Court still had to deal with the number of votes secured by the petitioning candidate and the winning candidate. The Court had earlier found that he National Court had acted on speculation instead of real numbers. It therefore, ordered a recount of the ballots to determine the real figures and to determine whether the conducts complained of was likely to have affected the election result. The recount of the votes established that the petitioner in that case secured more votes than the declared winner. Therefore, the Court ordered in favour of the petitioner. Thus, in my view, what the Chief Justice said was relevant in the context of the case before him. That was in the case of the petition having progressed to trial. It did not concern arguments and determination on the pleadings in the petition. Hence I am of the view that, what the Chief Justice said do not affect the general import of the other cases as to the requirements that must be met under s.215 (3) (b) for which there must be proper pleadings as required by s. 208 (a) of the Organic Law.
Present Case
(a) Conduct other than Bribery or Undue Influence
Now applying these principles to the present case, I find that paragraphs 3.1, 3.5, 3.7, 3.12 and 3.13, plead only part of the material facts. It does not plead the number of votes secured by the First Respondent and those secured by the Petitioner from which the difference could be ascertained. This is necessary because as my brother, Injia J., said the Greg Mongi case (supra), these figures are material to demonstrate the likelihood of the result being affected on the face of the petition. I also find that these paragraphs do not plead how these conducts are material and demonstrate how they were likely to affect the election result. The Supreme Court has already said through the Delba Biri case (supra) that, the requirement to plead these facts is a matter that must be strictly met. A failure to do so means there can be no petition by virtue of s. 210 of the Organic Law. I am not aware of any subsequent statement by the Supreme Court reversing what it has already said in the Delba Biri case (supra).
It should follow therefore that, paragraphs 3.1, 3.5, 3.7, 3.12 and 3.13 fail to met strictly the requirements of s.208 (a) for the purpose of a case under s. 215 (3) (b) of the Organic Law. I therefore, order a strike out of these grounds of the petition.
(b) Bribery and Undue Influence
I now turn to the second ground for the petition remaining after the withdrawals by the petitioner. These are paragraphs 5.1, 5.2, 5.4, 5.5 and 5.6. On a reading of these grounds, they could amount to either treating, undue influence or bribery under ss.101, 102 and 103 of the Criminal Code. This brings into play s. 215 (1) of the Organic Law. Treating is not mentioned in these pleadings, I will therefore omit any further consideration of a possible application of this provision to the facts pleaded. So this leaves me to consider a case under either ss. 102 or 103 of the Criminal Code. For it is settled law that the Organic Law does not define what is undue influence and bribery, so these provisions of the Criminal Code apply: see Desmond Baira v. Kilroy Genia & Electoral Commission (unreported judgement) SC579.
(i) The Law
Sections 103 and 104 of the Criminal Code define undue influence and bribery respectively in these terms:
"102. Undue influence.
A person who—
(a) uses or threatens to use any force or restraint, or does or threatens 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,
...
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 any 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 elector 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 of 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 (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors..."
(ii) Undue Influence
It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purposes of securing votes, a election victory by a candidate or otherwise interfere with the proper conduct of elections. Speaking of the need to plead the elements of undue influence my brother Sawong J., in Charles Luta Miru v. David Basua & Ors (unreported judgement) N1628 said:
"... because an election petition is a very serious matter, because of the serious charges and consequences that petitions entail, it is certainly necessary that any ground alleging a criminal offence must state all relevant material facts to establish such an offence. That includes the necessity to spell out in clear and precise terms facts constituting the elements of the offence.
Thus, in my view, in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words the pleading must not only include the specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him."
(Emphasis supplied)
In my view, this is an accurate statement of the law as to the elements of the offence of undue influence and what must be pleaded in an election petition and I therefore adopt them.
(iii) Present Case
Applying these principles to the present case, I find that none of the grounds 5.1, 5.2, 5.4, 5.5 and 5.6 disclose a case of undue influence. I therefore, rule out undue influence as a ground in this petition. So the question then is, is there a case of bribery properly pleaded?
(iv) Bribery – The Law
Justice Sheehan in Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463 judicially considered the issue. He said and I agree that:
"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."
Applying these principles to the case before him in respect of one of the grounds alleging bribery, His Honour observed that:
"It cannot be said sufficient relevant material facts are stated here to ground a charge of bribery. The unnamed leaders of each unnamed "various church groups" were each given a cheque. There is no allegation as to whether the leader or the various church groups were electors or eligible voters in the electorate, nor any allegation as to whether those leaders were to vote or not in a particular way or induce others in their group to vote in any particular manner. The same applies to the Sabama group and the statement that the money was given for ‘voting coming up takes the issue no further’"
This case has been cited with approval and applied in many other cases including the Supreme Court in Desmond Baira v. Kilroy Genia & Electoral Commission (supra). Accordingly, in my view it is safe to consider the law on the pleading a case of bribery in an election petition settled, in terms of the judgement in Raymond Agonia v. Albert Karo & Electoral Commission (supra) case.
(v) Present case
Applying these principles to the case at hand, I find that paragraph 5.1 fails to plead sufficient facts to lay a proper foundation for a ground in bribery. Specifically it fails in three main respects or elements of the offence of bribery. First it fails to state that the persons named in there are electors or voters. Secondly, it fails to state that, what was done for them was intended to induce or cause them to either vote for the First Respondent or not to vote for a particular candidate or otherwise interfere with the proper conduct of elections in the relevant electorate. Finally, it fails to state how or what the persons named was to do to assist the First Respondent.
The same goes for paragraph 5.2. There is however, an additional problem with this pleading. It does not specify the amounts allegedly put in the envelopes and who took them.
Paragraph 5.4 appears to state all of the necessary elements but it fails to state that the person named is an elector in the relevant electorate. Similarly, paragraph 5.5 appears to plead all of the relevant elements but fails to plead that the persons named are electors.
The next paragraph, 5.6 appear to be a carry over from the pleadings in the earlier paragraphs. But there is no specific reference and connection between this paragraph and the other paragraphs. If it is to be treated on its own it fails to plead any facts to form the foundation for a ground in bribery. For it does not name names, that they were electors and where and when was the money given. At best this paragraph is ambiguous. The law requires a petitioner to be precise and clear in his allegations. It is not for the Court or the Respondents to work out what is alleged. If the Court were to do that, it would in effect be amending the petition, which can not happen after the expiration of the time limit under s. 208 (e).
For these reasons, I find that the Petitioner has failed to properly plead his case in bribery. He has therefore failed to sufficiently plead the facts relied on to void the First Respondents election victory in accordance with the requirements in s. 208 (a) of the Organic Law. I therefore order that paragraphs 5.1, 5.2, 5.4, 5.5 and 5.6 be also struck out.
(c) Summary
In summary I answer each of the issues raise as follows:
This is necessary because the Court must be satisfied in addition to finding an illegal conduct, that "result of the election was likely to be affect" by the conduct complained of "and that it is just that the candidate should be declared not to be duly elected or that the election should be declare void."
(d) The Whole Case
In the end result, I find that the Petitioner has failed to meet the requirements of s. 208 (a) of the Organic Law. This results in there being no grounds for the petition left. The petition is therefore caught out by s.210 of the Organic Law. Consequently, it can not be allowed to proceed any further. I therefore order a dismissal of the petition.
______________________________________________________________________________
Lawyers for the Petitioner: Dennis Lawyers.
Lawyers for the First Respondent: Paul Paraka Lawyers.
Lawyers for the Second Respondent: Nonggorr & Associates Lawyers
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