N4920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 15 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE KIRIWINA GOODENOUGH OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

LEONARD LOUMA
Petitioner

AND:

DOUGLAS TOMURIESA
First Respondent

AND:

ANDREW TRAWEN,
PNG ELECTORAL COMMISSIONER
Second Respondent

AND:

THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Third Respondent

Losuia: Hartshorn J.
2012: 27th & 28th November

Election Petition - Application to stop the trial 

Facts:

The petitioner disputes the election of the first respondent as the Member for Parliament for the Kirriwina Goodenough Open Electorate in the 2012 General Election. Counsel for the petitioner closed his case after calling six witnesses. Counsel for the first respondent supported by counsel for the second and third respondents, applied to stop the trial on the basis that there was no evidence to prove material elements of the petitioner's case. This is the ruling on the application to stop the trial.

Held:

Given the lack of evidence to support the grounds of the petitioner's case, all the grounds are dismissed. Consequently, the election petition is stopped.

Cases cited: 

Ben Micah v. Ian Ling Stuckey (1998) N1790 
Benny Diau v. Mathew Gubag (2004) SC775
Powes Parkop v. Wari Vele (No.3) (2007) N3322
David Arore v. John Warisan (2008) SC1030 

Counsel:

Mr. J. Sirigoi, for the Petitioner
Mr. D.L. Dotaona, for the First Respondent
Mr. L. Okil, for the Second and Third Respondents

28th November, 2012

1. HARTSHORN J: The petitioner disputes the election of the first respondent as the Member for Parliament for the Kirriwina Goodenough Open Electorate in the 2012 General Election. Counsel for the petitioner closed his case after calling six witnesses. Counsel for the first respondent supported by counsel for the second and third respondents, applied to stop the trial on the basis that there was no evidence to prove material elements of the petitioner's case.

2. Counsel for the petitioner correctly did not take issue with this court's jurisdiction to entertain an application to stop the hearing of an election petition after the close of the evidence given on behalf of the petitioner. In David Arore v. John Warisan (2008) SC1030, Injia DCJ (as he then was) stated that:

"…… case law establishes that a no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and "it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop the case, if it is clear that there is no evidence to prove any ground for invalidating an election": Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC579, Zeipi v Gagarimabu (1999) SCR 5 of 1998 unreported and unnumbered judgment, Robert Lak v Paias v Wingti (2003) N2358, Pawa Wai v Jamie Maxtone Graham (2005) N2768."

3. In the course of his submission to the court on this application, counsel for the petitioner conceded that no evidence had been produced on behalf of the petitioner in respect of the grounds in the petition that alleged bribery or attempted bribery apart from grounds, 3 (d), 3 (i) and 4 (j). Consequently, grounds 3 (h), 4 (b), (c), (d), (e), (f), (g) and (l) and grounds 3 (e), (g) and 4 (k) (less the parts that were struck out following my decision on the objections to competency), are dismissed.

Remaining bribery grounds

4. As to the remaining bribery grounds 3 (d), 3 (i) and 4 (j), counsel for the first respondent submits that no evidence has been adduced that the persons allegedly bribed directly by the first respondent or by his agent had their names appearing on the Common Roll as electors. Such evidence is necessary it is submitted, as the persons allegedly bribed are described as electors and s. 3 (1) Organic Law on National and Local Level Government Elections (Organic Law) defines "elector" as "means a person whose name appears on a Roll as an elector". A person allegedly bribed must be an elector and this is a material element that must be proved it is submitted. Here there is no evidence at all that the names of the persons allegedly bribed appeared on the Common Roll.

5. Counsel for the petitioner did not make any submissions specifically on this issue in his reply. He referred the court to the case of Powes Parkop v. Wari Vele (No.3) (2007) N3322 where Kirriwom J. said:

"The question of what acts or omissions amounted to bribery as envisaged in the Code has been left quite at large where different circumstances, times and setting have procured different meanings. There has been not one consistent pattern of thought and application of the law on bribery."

6. Counsel for the petitioner further submitted that this court should be guided by s. 217 Organic Law, the circumstances of this particular case and the particular customary practices of this area.

7. It has been held previously that it is necessary that a person allegedly bribed be an elector. In Ben Micah v. Ian Ling Stuckey (1998) N1790 Kirriwom J. said:

"The effect of my ruling was that the person allegedly bribed…. was not an elector for the purpose of the Organic Law…. because he was never enrolled in the Kavieng Open Electorate and his name was not in the 1997 Up Date of the Common Roll… where he comes from. The Organic Law defines "elector" under s. 3 (1) as 'a person whose name appears on a Roll as an elector'. Even s. 103 of the Criminal Code with respect to the offence of bribery…… refer(s) to an elector. And this has been so held in Agonia v Karo [1992] PNGLR 463 that the person said to have been bribed must be an elector. It is thus commonsense that he or she has to be an elector because the bribe in whatever form, must influence or induce him to vote or refrain from voting in a particular way."

8. This was followed by the Supreme Court in Benny Diau v. Mathew Gubag (2004) SC775 in its consideration of whether the trial judge erred in stopping the case on the same point.

9. Given the above, the fact that a person allegedly bribed was at the material time an elector, is a material element that must be proved in an allegation of bribery in an election petition. Here, as submitted by counsel for the first respondent, from a review of the evidence adduced, there is no evidence that the persons allegedly bribed in grounds 3 (d) 3 (i) and 4 (j) are persons whose names appeared on the Common Roll as electors. That a person may have voted in the General Election is not evidence that he was entitled to vote. The Common Role in respect of the persons allegedly bribed could have been produced to prove that they were electors. It was not. Grounds 3 (d), 3 (i) and 4 (j) are dismissed.

10. Given this finding it is not necessary to consider the other submissions of counsel concerning ground 4 (j).

Qualification ground

11. As to ground 5, counsel for the first respondent submits that as to the allegation that the first respondent was not born in the electorate, there has not been any evidence adduced that he is not. The only evidence is that of the petitioner. In the petitioner's later affidavit he does not depose that the first respondent was not born in the electorate. In cross-examination the petitioner said that he had seen some documents to the effect that the first respondent had not been born in the electorate but that those documents were not before the court. The only evidence of the first respondent's birth that is before the court is in the first respondent's nomination form which is annexed to the earlier affidavit of the petitioner. Given the lack of evidence to support the ground that the first respondent was not born in the electorate, and given that to succeed on this ground it must be proved that the first respondent does not qualify under any of the categories in s. 103 (2) Organic Law, this ground is dismissed.

Orders

12. The Orders of the Court are:

a) As grounds 3, 4 and 5 of the election petition are dismissed, the election petition is stopped. 

b) The petitioner shall pay the respondents' costs of and incidental to the petition.

c) The security deposit shall be shared by the respondents in payment of their costs.

___________________________________________________
Sirigoi Lawyers: Lawyers for the Petitioner 
Dotaona Lawyers: Lawyers for the First Respondent Parua Lawyers: Lawyers for the Second and Third Respondents