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Wenge v Naru [No.2] [2013] PGNC 33; N5123 (26 March 2013)

N5123

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP.NO. 73 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 MOROBE PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

LUTHER AKISAWA WENGE
Petitioner

AND:

KELLY NARU
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Lae: Kirriwom, J.
2013: 11, 14, 18, 19, 20, 21, 25 February & 26 March

[NO.2]

PARLIAMENT – National Elections – Trial - Petition challenging disputed returns – Bribery alleged against winning candidate personally and by actions and conduct of others – With his knowledge and authority – Need to plead facts with purpose and clarity – Proof beyond reasonable doubt – Allegations unsubstantiated – Petition dismissed – Organic Law on National and Local Level Government Elections (OLNLLGE), ss. 206, 208(a) and 215(1).

EVIDENCE – Fabrication – Lying witnesses and liars

Facts

The Petitioner filed this petition against the First Respondent and grounded it on bribery both by the First Respondent in person and by members of his campaign team on blanket allegations bordering on bribery and undue influence. Ironically, most, if not all, of the Petitioner’s key witnesses are the same very persons who supported the First Respondent during the elections and who are said to be the agents or servants of the First Respondent who committed bribery on behalf of the First Respondent but changed sides to give evidence for the Petitioner.

AW self designated senior committee man for the First Respondent, whose assertion is denied by the First Respondent and his witnesses, claimed he received K25,000 in the company of SP, Aseki District Coordinator for First Respondent’s campaign in Aseki sub district, which claim was strenuously denied by SP and the First Respondent. SP stated that AW was always committee man and staunch supporter of the Petitioner and not once joined the First Respondent’s camp.

The issue was which version of the facts presented was probable of belief? Rejecting the sworn both oral and written testimonies of the petitioner’s witnesses as recent fabrication, Court accepted the version given by the First Respondent and his witnesses and held:

1. In respect of allegation 1, the payment of K25,000 by First Respondent to AW and SP:
   
   1. The story is a recent fabrication by the witness AW concocted after the election, no such money transaction took place and it was a deliberate and malicious lie and therefore bribery claim founded on this allegation is dismissed.
      
   2. In retrospect, this ground and all related grounds are still deficient in meeting the requirements of section 208(a) of the OLNLLGE in the terms of section 103 and section 215(1) and (3(a) of the OLNLLGE.
      
2. In respect of allegation 2, the payment of K400 by First Respondent to AA:
   
   1. The payment of K400 to AA is not a fabrication, it is true, but it was a lie when AA named First Respondent as the person making payment to him, which is a deliberate lie, when the truth is he received that money from SP, who gave it to him to help in the preparation of food to share on the day of the arrival of First Respondent and his team, not as asserted by AA ie for feeding those who attended the rally after First Respondent and team had left. AA lied to this court and the alleged bribery founded on this allegation is dismissed.
      
3. As to the third allegation, bribery by servants and agents, namely, payment of money to committee men and scrutineers by AW:
   
   1. This allegation fails as it is dependent on the first.
      
   2. It also fails for not meeting the requirements of section 208(a) OLNLLGE.
      
   100. It also fails because it is not unlawful for a candidate in an election to give money to his committee men and scrutineers to help them in their campaign for him or her.
        
4. Similarly, the fourth allegation, bribery of Andrew Nengo or both AA and AN by Setra Panao with the knowledge and authority of First Respondent fails for the following reasons:
   
   1. Deficiently pleaded and does not meet the requirements of section 208(a) OLNLLGE in the terms of section 103 of the Criminal Code and section 215(3)(a) of the OLNLLGE;
      
   2. The transaction could not be linked to the First Respondent, it was between Setra Panao and his committee men on behalf of the First Respondent but without his knowledge or authority;
      
   100. Not a valid ground of bribery, if not disqualified by the principle in Palme v Mel (supra) that a candidate cannot bribe his own supporter.
        

Cases cited:

The State v Tu’uo Ibru [ N1940" title="View LawCiteRecord" class="autolink_findcases">1999] PNGLR N1940
Roger Palme v Michael Mel [1989] N808 (20/12/89)
re Menyamya Open Parliamentary Elections - Neville Bourne v Manasseh Voeto [1977] PNGLR 298
Raymond Agonia v Albert Karo [1992] PNGLR 492
The State v Mole Manipe, Jina Molo, Sam Molo, Yakim Saponga and Wame Lucas [1979] N196
Peter Wararu Waranaka v Gabriel Dusava [2009] SC980

Counsel:

E. Mambei, for the Petitioner
C. Mende, for the First Respondent
J. Talopa, for the Second Respondent

REASONS FOR DECISION
26th March, 2013

1. KIRRIWOM, J.: This is the election petition of Luther Akisawa Wenge, the former Governor of Morobe Province and the losing candidate for Morobe Regional Seat that he successfully defended in the past three or four elections since he won it from its last occupant. However, in 2012 General Elections, he was the runner-up to Kelly Naru, the First Respondent in the petition when he could only muster 83,967 votes to Kelly Naru winning the election with 100,389 votes, a difference of 16, 422 votes, which figure was reached during the elimination count when the tally count reached 50%+1 in favour of the First Respondent.
   
2. The petition is pursued by virtue of section 215 of the Organic Law on National and Local Level Government Elections (OLNLLGE) on the grounds of bribery by the First Respondent and his servants or agents.
   

Preliminary matters

3. The petitioner sought by way of notice of motion at the start of his trial, an order for the productions of the common roll for the whole of Menyamya Electorate on the basis that direction issued by the directions judge was for the Electoral Commission to make available all election records by certain date. But these directions were partly complied with when the Electoral Commission only made available common roll for Aseki and not the whole of Menyamya. Both respondents opposed the application.
   
4. From the responses by counsel for the Respondents, it was revealed that:
   
   1. The directions relied on by the Petitioner to move this application was quite specific in its terms. It read:
      

“4. The Petitioner and 1st Respondent shall request in writing to the 2nd Respondent copies of Electoral Records by or before close of business on Friday 5th October, 2012”.

2. Only the First Respondent requested such record from the Electoral Commission, no such request was made by the Petitioner.
   

100. In response to that request, the Electoral Commission forwarded the common roll for Aseki only to the First Respondent.[1]
     

4. The First Respondent was satisfied with that record and did not ask for anything more.
   

5. The court dismissed the application on the basis of relevance because the only relevant common roll, given the pleadings in the ground of appeal, would be that of Aseki area and this was already provided on request of the First Respondent and annexed to Kelly Naru’s affidavit. It was an irrelevant material to bring before this court and open up new grounds not pleaded in the petition. Bribery allegations which took no issue with voter eligibility of those electors named in the petition does not require the entire Menyamya common roll without falling into the trap of witch-hunt or looking for excuses or reasons to challenge the return of this election.
   
6. Petitioner sought an order for rejection of two affidavits filed by the First Respondent on the basis that they were filed outside the time specified in the Directions issued by the Directions judge and the other ground was that it deposed to new matters taking the Petitioner by surprise. Mr Mende for the First Respondent submitted that the affidavit of the witness was necessary as he was one of the witnesses the First Respondent intended to call and no affidavit was prepared earlier because he could not be located until now. He also submitted that the affidavit gave notice to the Petitioner of what evidence the First Respondent contemplates calling so counsel can decide if he wants the witness for cross-examination. The request for rejection of affidavit evidence was refused as they were admitted into the trial as evidence on the basis of their relevance to the proceeding.
   

Helicopter view

7. In a nutshell, the petitioner’s case is this. During his campaign visit to Aseki on 12 and 13 June 2012, the First Respondent met his campaign committee team comprising Ans Wanaro as senior committee man and Setra Panao as his District Coordinator on the morning of 13 June 2012 at Aseki Guest House and in the presence of the three of them only gave them K25,000.00 and told them to distribute the money amongst the committees, scrutineers, churches, influential people and tell them to vote for him with their number one vote and not to give their 2 and 3 to Luther Wenge.
   
8. Carrying out his instructions, Ans Wanaro, as the senior committee man, distributed the money to those recipients he and Setra Panao discussed and agreed upon. The scrutineers and committeemen were paid in sums of K250 and K100 respectively on 14 June 2012 out of what they allocated to them.
   
9. According to the petitioner, this was bribery of undisclosed number of voters by the First Respondent, through Ans Wanaro and the committee men and scrutineers with that K25,000 given by the First Respondent.
   
10. The petitioner also says that during that same visit the First Respondent committed bribery by giving K400 to Awagiding Asele, his own committee member as far as the First Respondent was concerned, with which to buy food and share with all those people who came to attend the rally on 13 June 2012.
    
11. And lastly the petitioner also says that the First Respondent is guilty of bribery by the actions of his committee men Setra Panao who with his knowledge and authority, gave K100 to Awagiding Asele and asked him to share it with Andrew Nengo for their work or part he played in the preparation of food for the visitors.
    
12. The First Respondent responds that he knows nothing about paying K25,000.00 to AnsWanaro. He does not know Ans Wanaro, never met, seen nor engaged with him in any way until now. Ans Wanaro was not one of his committee men. His story is all but lies. He only knows Setra Panao who is his district coordinator for Aseki.
    
13. First Respondent also denied any knowledge of paying K400 to Awagiding Asele on 13 June 2012 as claimed. There was no time for him to stop and talk to anyone after his rally ended because of the rain clouds and they did not want to get caught by the floods on their way back to Bulolo so straight after it ended he and his team headed for their vehicles and drove away. He knew Awagiding Asele as his committee man.
    
14. Setra Panao who was said to be with Ans Wanaro when the First Respondent made the payment of K25,000 to them on 12 June 2012 denied this and said no such payment was made and that he was never with Ans Wanaro at Aseki Guest House as he claimed.
    
15. Setra Panao also said that before the arrival of Kelly Naru campaign team, he gave K400 to Awagiding Asele from the K3,000 given him by the First Respondent at Aseki/Menyamya junction on the 10th June 2012 en route to Menyamya for him to coordinate meal preparation for the visitors which he did for the big feast on 12 June, 2012 following arrival of Kelly Naru’s team. And after the rally he gave K100 to Awagiding Asele to thank him and Andrew Nengo, both committee men for First Respondent, for their help in the preparation of the feast for the visitors.
    
16. The issue in the case therefore boil down to who is telling the truth and who is lying. Both sides cannot be telling the truth nor can both sides be lying. In a criminal case, the law is that if the judge is unable to decide who is lying and who is telling the truth, he must give the benefit of his doubt to the accused. In this case, although it is an election petition matter, the allegation of bribery is a criminal offence, and based on this long established principle, the benefit of doubt must go to the First Respondent, in that bribery against him has not been sustained.
    
17. Nonetheless, in this case, it is not so difficult to see who is lying and who is telling the truth. As discussed in the judgment, all witnesses called in the petitioner’s case, who have for reasons known only to themselves, once supported and campaigned for the First Respondent by their own free will and choice in the 2012 National Elections, have now swung their allegiance and support to the petitioner because they felt sorry for him when he lost. According to them, he should have won because he won in previous elections with their votes in Aseki but not this time because they deserted him. Their testimonies are deliberate, self-pity, face-saving acts of disloyal servants who are prepared to commit suicide in their resolve to repent of their sins as their sign of penance or remorse.
    

Petition Grounds in a nutshell

18. The Petitioner pleaded four grounds alleging bribery by the First Respondent and his agents in a convoluted fashion that endeavouring to realign and restructure the whole story is like looking for a needle in the hay stack or a pile of hay. Because bribery is a criminal offence, the pleading of the charges or allegations could have been made clearer which, even after I rued the objection to competency incompetent and allowed the petition to go to trial, the same grounds still now continue to present the difficulties highlighted by the Respondents in their objection to competency. I feel that this must be made known at the outset.
    
    • (a) Ground 1
      
19. Be that as it may, the first major ground of the petition is founded on the allegation that on the morning of 13 June 2012 at Aseki Lutheran Guest House, in the privacy of his room, whilst alone with Setra Panao and Ans Wanaro, Kelly Naru said to them that he had K25,000 for them to give to their committee men, scrutineers, church leaders, community leaders, influential people and to tell them to vote one for Kelly Naru and give their 2nd and 3rd to other Regional Candidates except Luther Wenge.
    
    • (b) Ground 2
      
20. The second major allegation is that on that afternoon of 13th June 2012, after speaking at the rally and while on his way out, Kelly Naru gave K400 to Awagiding Asele and told him to buy food, cook and share it with those who came to the rally. And also to relay the same message- vote 1 for Kelly Naru, 2 and 3 to other Regional Candidates, not Luther Wenge.
    
    • (c) Ground 3
      
21. The third allegation which is linked to the first is that following day of 14th June 2012, Ans Wanaro made the payouts to the committee men and scrutineers and told them to vote one for Kelly Naru but not to give their 2nd and 3rd preferences to Luther Wenge. The men campaigned as instructed and also voted as instructed.
    
    • (d) Ground 4
      
22. Fourth allegation which is distantly related to the first is that on 13th June 2012, Setra Panao with the knowledge and authority of the First Respondent, gave K100 to Awagiding Asele and told him to give K50 of that money to Andrew Nengo. Andrew Nengo got that money and became Kelly Naru’s supporter and told his family to vote for Kelly Naru and they all voted for him.
    
23. In a nutshell, these are the allegations. To prove these allegations, the Petitioner called a total of 13 witnesses who also deposed to affidavits. Their affidavits were admitted into evidence and the deponents were examined and cross-examined at length by both counsel. All 13 affidavits tendered into evidence were marked as exhibits P1 to P13.
    

Petitioner’s Evidence and Witnesses

24. In respect of ground one or allegation one there was only one witness. He was Ans or Hans Wanaro Asele. Seven witnesses gave evidence in respect of ground or allegation two including Awagiding Asele. Four witnesses gave evidence in respect of the third allegation and the last ground had only one witness.
    
25. Ans Wanaro describes himself as a young community leader from Aseki whose village of Piu is close to Aseki station. Much of what is pleaded in ground 1 of the petition is founded on his story just like what is pleaded in ground 4 is founded on the story of Awagiding Asele.Ans Wanaro is the only witness in relation the sum of K25,000 and Awagiding Asele is the only witness to the K400 case from Kelly Naru to Awagiding Asele.
    
26. In his sworn affidavit, Hans Wanaro deposes to the following:
    

1. I am a young community leader and live at Aseki Station, Menyama District, Morobe Province. I am 22 years old and married with two children. I am aware of the facts of this matter and as such am able to depose to this affidavit.

...............

3. I came in physical contract with Mr. Kelly Naru at his village at Yalu which is situated along the highlands highway, sometimes 2011. He made known to me that he is a lawyer and intending to contest the regional seat for Morobe in the coming 2012 national general election.

4. Mr. Naru met me and Setra Ponao who was with me at that time and made us his political committees for the election 2012 and our task was to be responsible for the campaign in Aseki Area.

5. Sometimes in the early 2012, we were advised by the central committee in Lae that Mr. Kelly Naru and his team were to Menyamya on the 10th and 11th of June and on the 13th returned to Aseki and overnight at Aseki Station then on the 12th of June attend the public rally at Aseki station then proceed to Lae, so as his committee member, I was ready to receive him on the 13th June 2012 at Aseki station.

6. On the 12th of June sometimes 5.00 pm and 6.00 pm Mr. Kelly Naru arrived at Aseki station with his team in the convoy of vehicles and proceeds to Aseki guest house situated at the Aseki station and rested for the night.

7. On the 13th of June at about 8.00 am in the morning, Setra Panao and I went to see him (Mr. Kelly Naru) at the guest house. Mr. Kelly Naru called us into his room and greeted us and we had a talk with him. Among other things he said and I quote it in pidgin language:

“Mi holim K25, 000.00 kes istap. Yupela bai kisim na tilim igo long ol komiti, skurutias na sios lida na ol arapela lidas long kominiti na tokim ol long votim mi long dispela eleksen. Noken votim Mr. Luther Wenge bokis namba 12, em save stap long Lae na ino sawe ikam long Aseki kol ples. Yupela mas givim vot namba 1 long mi na noken givim vot 2 na 3 igo long Mr. Luther Wenge bokis namba 12, givim igo long ol arapela rijinol kendidet”,

When we translate it into English it means;-

“I have K25, 000 in cash with me, you will get this money and distribute it to our committees and scrutineers church leaders and influential people and tell them to go and vote for me in the coming election. Do not vote for Mr. Luther Wenge Box Number 12 because he stays in Lae and never come to Aseki cold place. You must give vote 1 to me and do not give vote 2 and 3 to Luther Wenge but give it to other regional candidates”.

8. When we received that K25, 000.00 cash we left the guest house and went to my house to have a short meeting between ourselves to sort out the money we received from Mr. Kelly Naru.

9. We agreed that we should give K5, 000.00 for the Aseki Lutheran church to Mr. Chris Angas, who is a senior church leader and K8, 000.00 to the SDA church of Aseki to be kept by Setra Panao and must give to the church. All the rest to be divided and give K5, 000.00 to the committees K5,000.00 to the scrutineers to be given by me (Mr. Hans Wanaro) the remaining K2, 000.00 was divided equally to both of us and we had K1, 000.00 each.

10. Having decided on the distribution we attended the political rally organized by teh Aseki Lutheran church at the Aseki station. There we saw Mr. Chris Angus was there so we went across to him and gave him K5, 000.00 cash to him and told him in the Pidgin language;

“Dispela mani em Mr. Kelly Naru igivim long Aseki Lutheran church seket. Dispela mani givim long sios na tokim membas bilong sios long givim vot namba wan long Mr. Kelly Naru na noken givim vot namba 2 na 3 igo long Mr. Luther Wenge tasol givim igo long ol arapela rijinol kendideit bilong Morobe.”

When we translate it, it means;

“This money is from Mr. Kelly Naru to the church. This money must be given to the church and tell the church members to give first vote to Mr. Kelly Naru and not to give their second and third preferential votes to Mr. Luther Wenge but tot he other regional candidates for Morobe regional seat”

11. On the 14th June 2012 early in the morning I called for the scrutineers meetings at the Aseki station. At about 10.00 am the meeting began. At that meeting 20 scrutineers attended. Out of the 20 scrutineers, I can only recall these persons, Beny Okam, Skyson Danny, Francis Yenisen, Times Anga Weto and Rodney Obert. Among other things I told them that, they were going to be scrutineers for Mr. Kelly Naru in the coming election and to for any other candidates, and I further said to the in the tok pisin words to this effect:

“Mi bai givim yupela wanwan K250.00 kes mani dispela mani em Mr. Kelly Naru ibin givim. Mr. Kelly Naru ibin givim dispela mani na ibin tokim mi long tokim yupela long wokim wok bilong skrutinia na tu yupela mas givim namba wan vot long Mr. Kelly Naru na inoken givim namba 2 na 3 vot bilong yupela long Luther Wenge, tasol yupela mas givim igo long ol arapela kendidets bilong Morobe rijinool sit, bikos Luther Wenge no sawe kam long long Aseki”,

When we translate it in English it means;

“I am going to give each of you K250.00; this money was given by Kelly Naru. Mr. Kelly Naru’s direction is that, apart from scrutinizing the vote for him you must also give him your number one vote and do not give your second and third preferential vote to Luther Wenge, but give it to other candidates contesting the Morobe regional seat, because he never come to Aseki Station”.

12. In the afternoon of the 14th of June 2012 still at the Aseki station at about 3.00 pm I called the meeting of the campaign committees of Mr. Kelly Naru. There were 50 of them attending. From those I can only recall the following people, Samson Sakai, Henry Hans Agustine Yakamtong, Kiku Yapi, Sakarias Timon, Manua Jonathan, Simon Yalamu, Vincent Yapu Giob Tomis and Simon Sakai. At the meeting, before I distributed the K5, 000.00 cash I told them in pidgin Language these words.

“Yupela bai kamap Komiti bilong Mr. Kelly Naru na ino long ol arapela kendidets bilong Rijinol sit, mi bai givim yupela K100.00 wanwan na yupela mas givim em namba wan vot long em (Mr. Kelly Naru) na ino ken givim vot namba 2 na 3 bilong yupela igo long Mr. Luther Wenge tasol givim long ol arapela kendidets bilong Morobe rijinol sit, bikos Luther Wenge ino sawe kam long Aseki.”

When translated into English it means;-

“You are going to be committee of Mr. Naru and not for other candidates. I am going to give you K100.00 each and you must give your first preferential vote to Mr. Kelly Naru and do not give your second and third preferential vote to Mr. Luther Wenge but give it to other regional candidates, because he never come to Aseki.”

13. Later in the afternoon I caught up with the following people, whom I considered influential people and gave them some money in the amount as follows; Samson Sakai K150.00 cash, Vincent Yapu, Sakarias Timon and Nick Giame all received K50.00 cash each. This money I gave was from the K1, 000.00 I kept for myself. After distributing all the money, further told them in Pidgin language to this effect;

“Dispela mani em kam long Mr. Kelly Naru. Yupela mas givim vot namba wan long Mr. Kelly Naru. Na yupela ino ken givim vot namba 2 na 3 igo long Luther Wenge, tasol givim long ol arapela rijinol kendidets bilong Morobe rijinol sit.”

When translated in English it means;

“This money comes from Mr. Kelly Naru you must give vote number one to Mr. Kelly Naru and you must not give your second and third preferential votes to Luther Wenge, but give them to other Morobe regional candidates.”

When they received the money all of them said in pidgin language the words to the effect;

“Mipela hamamas na mipela bai vote long Kelly Naru”

When translated in English it means;

“We are happy so we will vote for Mr. Kelly Naru.”

14. I must state it very clearly that I was the very strong supporter of Mr. Luther Wenge for the 15 years from 1997 to 2012 but Mr. Kelly Naru has given me and the community some money which influenced me and I did not vote for Mr. Luter Wenge, that is, I did not give him vote number one (1), two 92) or three (3) to Mr. Luther Wenge.

15. After the votes and the declaration of Mr. Kelly Naru as the winner, I had a very serious thought. I compared Mr. Luther Wenge and Mr. Kelly Naru and am still convinced that Mr. Luther Wenge is still the best leader. He can speak for us in the parliament without fear and has been strongly defending our country and the supreme law of the country, and he has been telling us to work hard on our land ie; tilting the soil I felt that I made the wrong decision to re-elect him (Mr. Luther Wenge). I felt like Judas Iscariot in the bile. I have changed my mind to come forward without fear to support him (Mr. Luther Wenge) in this case against Mr. Kelly Naru.

16. I have asked Mr. Setra Panao and Mr. Chris Angas to join me and give evidence in support of my evidence but they had refused and wants to support Mr. Kelly Naru.”

27. In his oral testimony, he said that just before Kelly Naru’s campaign team went to Aseki in June 2012, Kelly Naru contacted him by mobile phone and put him on notice of their arrival. On 12th June 2012 between 3pm and 5pm Kelly Naru and a contingent of five motor vehicles arrived and proceeded to Aseki Guest House. He saw them arrive and he went back to his house and slept. This is not a behaviour consistent with a senior committee man of the candidate’s campaign team in the area.
    
28. The First Respondent denied ever knowing or meeting or speaking to Ans Wanaro personally or by phone and who he was or what he looked like. He only knew Setra Panao as his district coordinator for his campaign in Aseki District.
    
29. The next ground that pleads bribery by Kelly Naru is the sum of K400 that Awagiding Asele says Kelly Naru gave it to him on the afternoon of 13th June 2012 after the rally as Kelly Naru and his team members moved away from the grandstand trying to head back to Lae.
    
30. The only witness to this particular transaction is Awagiding Asele. In his affidavit exhibit P9 he deposes as follows:
    

“1. I am from Piyu village, Aseki area, Menyama District, Morobe Province. I am also the cabinet secretary of Aseki Lutheran Church circuit. I am aware of the facts of this matter and as such am able to depose to this affidavit.

......................

......................

4. I recall the 13th day of June 2012. On this day I was at the Aseki station.

5. At about 10 am in the morning, I attended a political rally at the Aseki Lutheran church are organized by the Lutheran church circuit of Aseki.

6. At that political rally I saw and heard other Lutheran church leaders spoke and at the end I saw and heard Mr. Kelly Naru spoke. He was introduced as the candidate for the Morobe regional seat in the 2012 national general election.

7. After the forum I caught up with him Mr. Kelly Naru and introduced myself as the secretary for the Aseki Lutheran church circuit. He was pleased to meet me and he took out K400.00 cash and gave it to me and said the word to this effect in Pisin language;

“Dispela mani mi givim yu, yu baim kaikai kukim na tilim long ol man na meri nao na tokim ol long givim vot namba wan long mi na noken givim vot namba 2 na 3 long Luther Wenge long box namba 12 tasol givim igo long ol arapela riginal kendidets.” When translated it means,

When translated into English it means:

“With the money I gave you, buy some food cook it ad distribute it to them and tell them to give the first preference vote to me and do not give your second and third preference vote to Luther Wenge Box 12 but give those vote to other regional candidates.”

8. Further on the same day (13th June 2012) after I had received K400.00 cash from Mr. Kelly Naru, I also met Setra Panao, who I know him as the leader of the seventh Day advantage Church, introduced himself to me as the strong campaign committee for Mr. Kelly Naru. He also gave me K100.00 cash and told me to keep K50.00 for myself and gave another K50.00 to Andrew Nengo and told me in Pisin language as follows,

“You kisim K50.00 na givim K50 long Mr. Andrew Nengo, dispela mani ikam long Mr. Kelly Naru na yupela mas givim vot namba wan long Mr. Kelly Naru long dispela eleksen”.

When translated into English it means-

“You get K50.00 and give another 50.00 to Andrew Nengo. This money is from Mr. Kelly Naru, so both of you must give your first vote to him n the coming election.”

9. With the money I received from Mr. Kelly Naru which is K400.00 cash, I bought plenty of food from the store and market, with others I had in the house and some given by the congregation members, we made a big feast at my resident at Aseki station.

10. Before the distribution of the food to 400-500 people, I told them in pisin language this –

“Mr. Kelly Naru igivim mani long mi na mi baim kaikai na yumi kukim na kaikai na yumi mas givim vot namba wan long Mr. Kelly Naru na namba 2 na 3 vot inoken givim long Mr. Luther Wenge tasol givim igo long ol arapela kendidates bilong Morobe rijinol sit”,

When translated into English it means,

“Mr. Kelly Naru gave me some money and I bought these food for us to cook and eat, and we must give him first preference vote and not giving our second and third preferential vote to Mr. Luther Wenge but give to other candidates for Morobe regional seat.”

Further I also told the people there in pisin language.

“Nogat narapela kendidate save mekim olsem long yupela Mr. Kelly Naru tasol imekim ol dispel olsem na yumi mas givim em vot.”

When translated in English language it means –

“No other candidate does this for you only Kelly Naru who has done this so we must give him the vote.”

11. Early the next day 14th June 2012, at about 10.00 am in accordance with the instruction of Mr. Setra Panao I did give K50.00 to Andrew Nengo and told him in pisisn language-

“Dispela K50.00 ikam long Mr. Kelly Naru, yu kisim na givim vot 1 long Mr. Kelly Naru”

When translated it means;

“This money is from Mr. Kelly Naru get it and vote 1 for Mr. Kelly Naru.”

12. I myself was enrolled in the common roll to vote in the 2012 election so I did vote for Kelly Naru and gave him vote number one and gave my second and third preference vote to other regional candidate and not Mr. Luther Wenge.

13. After the election and declaration of Kelly Naru as the winner. I strongly felt that I had made wrong decision to vote for Mr. Kelly Naru, because as the Christian and as the circuit secretary for the Aseki Lutheran church I should not have done that. That is totally against the Christian principle. In fact when I compared Mr. Luther Wenge and Mr. Kelly Naru, I think Mr. Luther Wenge is still the best Morobe leader and speaks on all important issues affecting Morobean even PNG. He is the country’s defender and the constitution’s defender.

14. When I learnt that, Mr. Luther Wenge was going to challenge Mr. Kelly Naru’s win, I have decided without fear to support him and give evidence for him in this case.”

31. The same statement allegedly accompanied the K400 transaction when Kelly Naru gave the money and alleged to have said: “With the money I give you, buy some food, cook it and distribute it to the people and tell them to give their first votes to me and do not give your second and third preferential votes to Luther Wenge Box 12 but give those votes to other Regional candidates”.
    
32. I raised with Mr Mambei the relevance or significance of the accompanying statement in a bribery allegation which implied some sinister purpose, duress or inducement through subtle threat thereby bringing this ground within the bounds of undue influence. Mr Mambei reiterated that the Petitioner’s case was one of bribery; hence, the evidence of the three witnesses who testified in support of this ground are not repeated or reproduced here as I see no value in them.
    
33. However, it is worth noting at this juncture that Jerry Weko was the only witness who heard Kelly Naru make that statement at his rally on 13 June, 2012, no other witnesses did. In his affidavit exhibit P10 he made no mention of hearing these statements directly from Kelly Naru’s own mouth except when repeated by Awagiding Asele at the gathering where food purchased by the K400 was shared.
    
34. So Jerry Weko is a lone witness whose evidence is already at loggerheads with the rest which is also a major inconsistency between his oral testimony and his affidavit as well as inconsistent with the rest of the evidence in the petitioner’s case. Naturally, it is unsurprising that Mr Mambei for the petitioner wants none of Jerry Weko or his evidence to play any part in the weighing up of the evidence and submissions on behalf of the Petitioner. He gave a big blow to the Petitioner’s case.
    
35. The next allegation is the distribution of the K25,000. Ans Wanaro’s evidence continued as to how the money was distributed as he and Setra Panao agreed. Seven witnesses deposed to affidavits and also gave oral evidence as either a committee man or scrutineer for Kelly Naru who received this payment, either K250 or K100, and echoed the same messages throughout the campaign and voted as instructed.
    
36. I don’t want to even attempt as to how this particular ground could be appropriately pleaded not only in the context of section 103 because this is raising allegation of bribery not by the First Respondent in person but by others on his behalf acting with his authority and knowledge. The pleading here must be worded in such a way that the terms of section 215(3)(a) or (b) OLNLLGE is clearly accommodated.
    
37. After all section 215(3)(a) states that 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. The applicable provision is section 215(3)(a) OLNLLGE but this allegation survives or falls with Ans Wanaro’s story on the K25,000.00 bribery and I will return to this discussion later.
    
38. The last ground or allegation is the K50 Awagiding Asele paid to Andrew Nengo from the K100 given to him by Setra Panao. Evidence on this is from Awagiding Asele and Andrew Nengo which stops short of having any nexus with Kelly Naru. Unless the Petitioner can demonstrate how this transaction advances the Petitioner’s case of bribery by the First Respondent’s servants or agents with his knowledge and authority, it is just a self-serving statement. It is deficiently pleaded to amount to a valid ground of petition for the First Respondent to respond to it.
    
39. In retrospect, there is already overwhelming evidence that both Setra Panao and Awagiding Asele were committee members of First Respondent so one cannot be bribing the other on behalf of the Fist Respondent.
    

First Respondent’s Evidence and witnesses

40. Kelly Naru gave evidence of his charity work where he helped churches and disadvantaged communities and persons in cash and kind not only in Morobe but across the length and breadth of this country. When asked where he got the money from to do that he said it was income from his legal practice and other businesses he had.
    
41. I take judicial notice of the fact that Kelly Naru had a legal practice known as Kelly Naru & Associates prior to his election in 2012 National Elections and not only appeared as counsel before the Supreme Court and National Court but his firm was also involved in many high profile cases that came before both superior Courts Supreme Court during his time in practice.
    
42. He said that as a senior advocate and experienced lawyer who took briefs for many election petition cases that went before the court, he knew the law. He stopped his charity ministry work when the writs were issued for the National Elections. The last time he gave some money to a group who needed help from his charity was in March 2012.
    
43. He said elections are expensive and he spent a lot of money. When probed in cross-examination by Mr Mambei for Mr Wenge to disclose how much he spent in his elections, he said he could not even guess, but lots of money.
    
44. He did not deny funding his committee men and scrutineers to do their job effectively to conduct his campaigns. As to how much they were paid, it was not within his area of responsibility because everything done was through the structure that he had. Therefore funding assistance to his campaign teams was channelled through this campaign structure.
    
45. A simple illustration of his campaign structure according to his evidence looked something like this:
    

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46. He said the central committee which comprised the chiefs, village elders and other leaders screened and appointed his campaign coordinators in the districts and those coordinators appointed their own committees and gave account of how he related to them during the campaign. Morobe he said was the biggest Province in Papua New Guinea and he could not cover the entire length and breadth of the Province without this campaign structure that was responsible for ensuring that he had the entire Province covered in his campaign and properly funded.
    
47. He knew Setra Panao as his Aseki District Coordinator but did not know Ans Wanaro. He said he does not even know what Ans Wanaro looked like and he never heard of him being his committee man in Aseki. He knew only Awagiding Asele.
    
48. In his affidavit exhibit R1 he deposes:
    

“1. I am the First Respondent in this petition and therefore have authority to depose to this affidavit in response to the matters raised in the petition as well as those raised by the petitioners affidavits filed in Court.

.............

3. The allegations in essence is that I, whilst in Aseki, Menyamya, in Morobe Province, bribed eligible voters or electors by giving them various amounts of money to share it amongst themselves and also with other people and told them to vote 1 for me and not to give vote 2 or 3 to the Petitioner. Those allegations are alleged to have happened on 13th 14th of June 2012.

4. I have read the petition and the affidavits of the witnesses and I say at the outset that I categorically deny all of those allegations and statements of facts as being false in fact and a recent invention. My recollection of the alleged events that occurred on the only time I visited Menyamya and Aseki are as follows:-

5. On Sunday 10th June 2012, I went to Menyamya and over-nighted there. The next day, 11th June 2012, I held a rally at Menyamya station and over-nighted there.

6. The next day which was Tuesday 12th June, 2012 me and my team left Menyamya station for Aseki Station. I had a convoy of 5 vehicles travelling with me that day. We left Menyamya at about 12 o’clock and arrived at Aseki around 3 o’clock in the afternoon. We were very slow because of the bad road condition and also having to stop along the way to greet and talk with people.

7. The convey of 5 vehicles were all four wheel drive vehicles comprising 4 Toyota open back Land Cruisers and one Nissan Patrol open back.

8. I was driving a maroon Toyota Land Cruiser open back registration number BBK 499. Sitting with me in the cabin was my wife Stella Naru and my late son Yarus Naru both of whom accompanied me on my campaign. At the back of the vehicle were several of my campaign members and supporters.

9. We arrived at Aseki Station around 3.00 pm on 12th June 2012. Upon arrival we were greeted by my Aseki campaign co-ordinator Mr. Setra Panao and his team which comprised of my supporters from the nearby villages and workers and their families from the Aseki Station.

10. Just before Aseki Station we made a couple of stops to be greeted by a welcoming singing group who led us into the Station. At the Station we were led to a field with several traditional houses built there, one of which was used to prepare our food and refreshments and for our accommodation for the night.

11. At the field, my entourage was welcomed and greeted by several community leaders and supporters including the Aseki Seket Lutheran Church Secretary, Mr. Chris Angas.

12. After the exchanges of greetings we had refreshments at one of the traditional houses on the field and then we broke up to retire for rest for our campaign rally the next day.

13. I never stayed at the Aseki Guest House. Upon our arrival in Aseki Station we were told by my campaign coordinator for Aseki Mr. Setra Panau that the Aseki Guest House was not operational and had been closed for some time. In view of that my entourage was split up into two groups with some of the members residing at the traditional house on the field and a few men including women and kids and myself were accommodated by teachers in their houses at the Aseki Primary School.

14. I was accommodated at Mr. Bill Abaida’s house who is a Teacher at Aseki Primary School. Mr. Abaida has a three bedroom house with an outside kitchen built from bush material. My family and I stayed in one room and the other ladies and their kids shared the other two rooms and the living room. The men folks slept in the kitchen outside.

15. I never stayed at the Aseki Guest House and at no time during my stay at Aseki did I ever go to the Aseki Guest House. I do not know how the inside of the Aseki Guest house looks like as I have never set foot there.

16. The claim by Mr. Ans Wanaro that I gave him and Mr. Setra Panao K25, 000.00 in cash at a room at the Aseki Guest House is a complete fabrication and lie. I do not know what he looks like and I cannot recall meeting with him anywhere. I know all my co-ordinators and strong supporters by name and the so call Mr. Ans Wanaro is not familiar and unknown to me.

17. Mr. Ans Wanaro is not a member of my campaign committee. My campaign in Aseki was co-ordinated by Mr. Setra Panao and at no time or at any stage of my visit to Aseki did I ever give K25, 000.00 cash to Mr. Setra Panao.

18. After over-nighting in Aseki Station the next day 13th June 2012, I held my campaign rally at the field at Aseki Station starting at about 10 am and finished at around 1 pm. After the rally I thanked my hosts and my co-ordinator Mr. Setra Panao and my supporters and left for the long drive back to Lae via Bulolo.

19. I also deny that I gave K400.00 to Mr. Awagiding Asele for distribution to voters at Aseki to buy votes.

20. All allegations about bribery against me is completely untrue. In fact, the petitioner scored very well and was leading in the primary count in the Menyamya/Aseki electorate. I came third there in the primary count.

21. I beat the Petitioner when it came to the counting of preference votes by a margin of more then 16, 000 votes.

22. I say the above believing them to be true in every particular.”

49. Amos Wallace is the next witness of the First Respondent. He was the Provincial Coordinator for Kelly Naru’s election campaign and accompanied Kelly Naru on that trip to Aseki. He refuted all those things said and deposed to by the Petitioner’s witnesses. He also explained the channelling and distribution of funds to the committees and scrutineers according to the structure in the drawing and denied seeing Kelly Naru give any money to anyone during that campaign trip to Aseki.
    
50. In his affidavit exhibit R2 he states:
    

“1. I am from Yalu village, Wampar Local-level Government, Huon Gulf District in Morobe Province. I am the Provincial co-ordinator for Mr. Kelly Naru in the 2012 General Elections.

........

3. On 12th June 2012, I accompanied Mr. Naru and his team for a campaign rally to Aseki Station in the Menyamya District in Morobe Province.

4. Our campaign team travelled in 5 open back utility vehicles from Menyamya to Aseki where we arrived at around 3 pm. I travelled in a white Nissan Patrol open back utility vehicle and sat in the cabin as offsider to the driver Mr. Jack Sagaling.

5. When we arrived at the Aseki Station we were led by a sensing group from Aseki to a field at the Station. At the field were several houses built form bush materials. Our Aseki co-ordinator Mr. Setra Poana met us there and invited us for refreshments.

6. After that we were split into two groups for the night. Mr. Naru and several members of our team mostly, women and children were taken by teachers from the Aseki Primary School to go and overnight at the house of a teacher by the name of Bill Abaida.

7. Other young boys and men from our team and myself camped at the traditional house in which we had our refreshments for the night.

8. Although there is a Lutheran Guest House at Aseki, when we went to Aseki we were told by our Aseki co-ordinator Mr. Setra Poana and our Aseki team that it was closed for some time and has not been operating. As a result, of that none of our team members including Mr. Naru went near to the Guest House or even stayed at the Guest House.

9. The next day 13th June 2012, Mr. Naru conducted his campaign rally at the Aseki field starting around 10 am and finished around 1 pm. After the rally, our team came back to Lae.

10. When we were at Aseki, at no time did we hear of or see Mr. Naru give K25, 000.00 cash to Mr. Ans Wanaro and Mr. Setra Poana or for that matter gave them any other amounts of money to buy votes. All such allegations are false and untrue.

11. Mr. Ans Wanaro is not a committee or member of Mr. Naru’s campaign team in Aseki. Our Aseki co-ordinator is Mr. Setra Poana.

12. I say the above believing them to be true in every particular.”

51. Setra Panao also gave evidence and denied going with Ans Panao to Aseki Guest House, denied meeting Kelly Naru there and denied receiving any money from Kelly Naru. He denied that Kelly Naru and team were accommodated at Aseki Guest House and denied that Ans Wanaro was a committee man for Kelly Naru.
    
52. In his affidavit exhibit R3 he deposed:
    

“1. I come from Disea village in Aseki in the Nanima Kariba Local-level Government of Menyamya District in Morobe Province.

2. In the 2012 National General Elections, I was the campaign co-ordinator for Morobe Regional Candidate Mr. Kelly Naru in the Aseki area.

3. On Tuesday, 12th June 2012, my candidate Mr. Kelly Naru and his team came to Aseki station to hold a political campaign rally. They travelled from Menyamya and arrived in Aseki at about 3 o’clock in the afternoon. I met them on arrival and with my singsing group that I organized we greeted and led Mr. Naru and his team to the station.

4. At the station, Mr. Naru and his team were led to the field were Aseki Lutheran Women were preparing their refreshments at a traditional house built at the field.

5. At the station, Mr. Naru and his team were led to the field were Aseki Lutheran Guest House was closed and not operating and they had a choice of staying at the station or get accommodation at my village close to the station.

6. However, public servants especially teachers were willing to assist Mr. Naru and his team overnight at the station so the team split into two groups with one team made up of men and boys being accommodated at the traditional house at the field where they had their refreshments and the other group comprising Mr. Naru and his family and other women and kids being accommodated at the Aseki Primary School at the house of one of the teachers by the name of Mr. Bill Abaida.

7. The next day, 13th June 2012, Mr. Naru and other Leaders spoke at a campaign rally I organized on his behalf at the Aseki field. The rally started at around 10 o’clock and ended at around 1 o’clock in the afternoon. Other leaders from Aseki also gave speeches such as Mr. Andrew Sakai and Mr. Bingtau Natiapango.

8. At no point in time during Mr. Naru’s visit did Mr. Naru give me and Mr. Ans Wanaro the sum of K25, 000.00 cash to distribute to buy votes. That allegation is completely untrue and false. Mr. Ans Wanaro is not a committee or member or supporter of Mr. Naru. His allegation that himself (Ans Wanaro) and myself were bribed by Mr. Naru is completely untrue and false.

9. I know Mr. Ans Wanaro as a supporter of Mr. Luther Wenge. At the time Mr. Naru went to Aseki on the 12th and 13th of June 2012, the two days when Mr. Naru was at the Aseki Station , Mr. Ans Wanaro was never present at Aseki Station. I never went to see Mr. Naru at the Aseki Guest House with Mr. Ans Wanaro as Mr. Naru never over-nighted at the Guest House since it was closed and Mr. Naru in fact over-nighted and stayed at Mr. Bill Abaita’s house at the Aseki Primary School before travelling back to Lae.

..........”

53. Next witness for the First Respondent was Bill Abaida. He is a Primary School teacher at Aseki Lutheran Primary School who accommodated, according to his evidence, Kelly Naru on the evening of 12th June, 2012. He gave the following depositions in his affidavit exhibit R4:
    

“1. I am a primary School Teacher at the Aseki Primary School in the Menyamya District of Morobe Province.

2. I am aware of the visit by Mr. Naru and his team to Aseki and therefore depose to this affidavit.

........

4. On 12th June 2012, I was at my school when I received word on the arrival of Morobe Regional Candidate Mr. Kelly Naru and his team who were coming into Aseki to do their campaign.

5. Mr. Naru and his team arrived at Aseki in the afternoon around 3 o’clock that day. An hour later, I received word that some members of Mr. Naru’s party needed a place to overnight as the Lutheran Guest House at the Station was not operating at that time. I then volunteered for Mr. Naru’s team to use my house to overnight in.

6. I then asked around with other teachers of Aseki Primary School and we pooled together our beddings and utensils for Mr. Naru and his team to use that night when they over-nighted at my house.

7. My house is a three bedroom house with a separate kitchen constructed from bush materials located in the front of the house. Mr. Naru and his family and the other women and kids slept in the rooms inside the house whilst some men form the group slept in my kitchen. I left my home with Mr. Naru’s team and I went and slept in the house of a colleague teacher from our school by the name of Mr. John Koara.

8. The next day on 13th June 2012, Mr. Naru and his team thanked me and the other teachers from the school for putting them up for the night and attended his rally at the Aseki field and later that day departed for Lae.

9. No member of Mr. Naru’s team nor Mr. Naru himself went to the Aseki Guest House or ever used the Aseki Guest House during his visit to Aseki as the Guest house was closed and cannot be used by anyone at that relevant time.

10. I say the above believing them to be true in every particular.”

54. Chris Angus, Lutheran Church Aseki Circuit Parish Advisor also gave evidence and deposed to an affidavit. His affidavit marked exhibit R5 deposes to the following:
    

“1. I am the Lutheran Church Aseki Circuit Parish Advisor and the Trust Secretary. I am also the community leader representing Aseki sub district. My name was mentioned in the Petition by Luther Wenge as the recipient of K5, 000.00. I therefore depose to this affidavit to clarity that allegation.

.........

3. I deny that I was given a K5, 000.00 from Messrs Ans Wanaro and Setra Panao or any body for that matter. The allegation in the petition is a total lie and fabrication. It also amounts to deformation of my character and personality.

4. Between 12th to 14th June 2012, I was organizing conference of the Lutheran Church Aseki Circuit. I did not get any donation from any candidate or anybody for that matter. If we got any donations we would have acknowledged the donation and that would be reflected in our financial report. Our financial report does not indicate any donations from any candidate or any other person.

Annexed herewith and marked with the letter “A” is a true copy of our financial report for the 2012 Lutheran Church Aseki Circuit conference. (Deliberately omitted)

5. The allegation is an embarrassment to the Lutheran Church Aseki Circuit.

6. On the 13th June 2012, I was organizing the conference as well as the food and refreshments for Mr. Kelly Naru and his team and I advised those present that evening at the conference that food was for Mr. Kelly Nary and his team and so the members attending the circuit did not eat anything.

7. Mr. Awagiding Asele did not cook any food and invite any person or persons to eat those food and he also did not say that they should vote 1 to Kelly Naru and vote 2/3 to other candidates. This is a totally false allegation.

8. Mr. Awagiding Asele was part of our team who prepared food and refreshments for Mr. Kelly Naru and his tam who went into Aseki. No food was ever prepared by either Mr. Awagiding Asele or by the Church for any political reasons.

9. I say the above believing them to be true in every particular.”

55. The next two witnesses were Lote Geleson and Rhoda Philemon. Their affidavits were tendered into evidence and marked as exhibits R6 and R7 respectively following the order in which they testified. In her affidavit Lote Geleson gave the following account:
    

“1. I am the Manageress of Aseki Guest House owned by the Lutheran Church Aseki Circuit. I am aware of the allegations in the petition by the petitioner Mr. Luther Wenge and therefore depose to this affidavit in support.

.......

3. The Aseki Guest was in operation since 2007. It has three rooms and one room can contain two persons.

4. I am from Langoma village which is about a day’s walk from Aseki Station. When I hear that some guests are going to check in at the Guest House but I need to go to the village I usually leave the keys to the rooms with Helen or Bill Abaida who would then assist the guest to accommodate them in the rooms. When I do not hear of any guests coming I take the key with me to the village.

5. I can recall that between the 12th, 13th and 14th June 2012, I went to my village with the room keys because I did not hear of the arrival of any guests who wanted to check in at the Guest House.

6. I did not leave the key with Helen or Bill Abaida and therefore no one could have checked in at the Aseki Guest House at that relevant time.

7. I say the above believing them to be true in every particular.”

56. Mrs Rhoda Philemon who was the last witness called by the First Respondent stirred up a storm when she was alleged to have been seen inside the courtroom during the testimony of one of the First Respondent’s witnesses. Mr Mambei objected to her giving evidence on behalf of the First Respondent because of that.I overruled the objection and allowed her to give evidence on the basis that at the end of the day the court will decide what weight to be given to her evidence. But the court cannot exclude her evidence entirely because if she had given an affidavit which deposed to what she wanted the court to know, that was already filed in court.
    
57. The affidavit (Exh.R7) she deposed to prior to giving oral testimony sets out the following:
    

“1. I am the wife of Chris Philemon and we are from Yalu village. I remember my travel with my husband and Mr. Kelly Naru to Aseki in Memyamya and therefore depose to this affidavit in support.

...........

3. On 12th June 2012, my son Ian and I accompanied my husband in our white Toyota utility open back vehicle registration number CAR 733 travelled with Mr. Naru on his campaign trip to Aseki Station in the Menyamya District in Morobe Province. We went there with 4 other four wheel drive vehicles. Mr. Naru drove in his own vehicle.

4. We left Menyamya after lunch and arrived at Aseki in the afternoon at around 3 o’clock. We were greeted on arrival by our Aseki co-ordinator Mr. Setra Panoa and our Aseki supporters and led by a singsing group into Aseki station

5. At the Station we went to a field near Aseki Primary School where we had refreshments provided to us by the Aseki Lutheran church.

6. After that, we were divided into 2 groups to rest for the night. One group stayed at the traditional house at the field comprising of men and young boys.

7. The other group included Mr. Naru and my husband and my son and I and mostly women and kids were invited by a teacher at Aseki Primary School to overnight at his house. Other women and my son and I slept in one of the three rooms inside the house whilst Mr. Naru and his family and the other slept in the other two rooms and the men, including my husband, slept in the kitchen house outside.

8. The next day 13th June 2012, we held a rally at the Aseki field where Mr. Naru talked to the voters of Aseki and several other speakers and leaders from Aseki also spoke. We started around 10 o’clock and finished around 1.00 o’clock in the afternoon.

9. After the rally we departed back to Lae through Bulolo. It was a long and tiring trip back.

10. During our stay I did not hear or see Mr. Naru give any money to Mr. Setra Panoa or Mr. Ans Wanaro or to any other person there. I was aware that Mr. Setra Panoa was Mr. Naru’s Aseki campaign co-ordinator. I do not know Mr. Ans Wanaro.

11. When we were at Aseki the Lutheran Guest House there was closed for business and was not operating. As a result, no member of our team visited the Guest House or slept there. Mr. Naru never over knighted at the Guest House as he was accommodated by Mr. Bill Abaida at his house at Aseki Primary School. Mr. Naru never even visited the Guest House as it was closed when we went there.

12. I say the above believing them to be true in every particular.”

58. Kelly Naru’s story was supported by Amos Wallace, Setra Panao, Chris Angus, Bill Abaida and Rhoda Philemon. Together their story gave a holistic view of their arrival on 12 June, 2012 until they departed the next day 13th June 2012 straight after the rally. They denied seeing Kelly Naru giving any money to Awagiding Asele, denied Kelly Naru saying during his rally speech: “Give me your first vote, and don’t give your second and third to Luther Wenge.” They called these outright lies.
    
59. In fact Kelly Naru told the court that it was not in his style or character to tarnish or rubbish anyone and least of all Luther Wenge. He said he had so much respect for him not only as the governor for Morobe for 15 years but also as his brother when they went to school together and now they were both elders in the Lutheran Church. He could not imagine himself saying all these things against Luther Wenge as alleged by his witnesses. He even said that all his people in Yalu know that on the day of voting, he did not vote for himself, but he gave his first vote to the petitioner, Luther Wenge, as he told his people publicly that he will not vote for himself.
    
60. All witnesses for the First Respondent gave consistent story of being accommodated at a teacher’s house at Aseki Primary School. This story was even supported by Bill Abaida, deputy headmaster of the school.
    
61. Ans Wanaro’s evidence of Kelly Naru and team sleeping at Aseki Lutherna Guest House was rebutted by the evidence of Head Geamsao Lote Geleson who held the keys to the guest house. She said during that week when Kelly Naru campaign team was in Aseki, she was in her village which is a day’s walk from Aseki station. She had no prior knowledge of anyone staying at the guesthouse so she went to the village with the keys. Had she known of any prior booking, she would have left the keys with Chris Angus or a lady called Linda Geson.
    
62. In fact the story of K25,000.00 now also hinges on the story of where Kelly Naru slept that night. If I accept the overwhelming evidence of the witnesses called by the First Respondent and find that Kelly Naru and team slept at Bill Abaida’s house at Aseki Primary School, then the story about K25,000.00 is clearly a fabrication by Ans Wanaro, which clearly proves him a liar, he can’t be mistaken.
    

Issues

63. There are four (4) main issues for the Court:
    
    • Whether the Petitioner has sufficiently and adequately complied with the requirement of section 208(a) and section 215(3)(a) OLNLLGE and section 103 of the Criminal Code in respect of ground one and all the grounds?
      
    • Alternatively, has the Petitioner satisfactorily proved beyond reasonable doubt that the First Respondent is guilty of bribery as alleged?
      
    • Whether Ans Wanaro is a reliable and credible witness?
      
    • Whether Awagiding Asele is a reliable and credible witness?
      
    • Whether all other witnesses of the Petitioner were reliable and credible of belief?
      

SUBMISSIONS

64. Mr Mambei submits that undue influence is not the petitioner’s case, his case is founded on bribery. Both the words that were uttered and the money given constitute bribery.
    
65. The first allegation is that Kelly Naru gave K25,0000 to Ans Wanaro and told him to distribute to committees, scrutineers, church leaders and influential people. He is not saying that giving of money to Ans Wanaro constituted bribery, but the transaction only became bribery when he, after receiving the money, distributed those funds to the committees and scrutineers who previously did not support Kelly Naru but only after the money he gave them through Ans Wanaro.
    
66. This submission cannot be sustained on a number of grounds: first, it is not clearly pleaded that the First Respondent gave them the money or simply told them he had K25,000.00 and nothing more. The second difficulty with this argument is that pleadings do not state at what point in time the so called committees and scrutineers who later testified for the Petitioner became the first Respondent’s supporters and campaigned for him. Thirdly, pleadings failed to state in precise terms that these persons became committees and scrutineers for the First Respondent because he paid them money. Fourthly, no evidence was led to show that all those witnesses were paid money by the First Respondent and told to become his committees and scrutineers. All that the evidence from these witnesses shows is that all of them had a change of heart after the election was over and they supported the petitioner to overturn the First Respondent’s win. And fifthly, the pleading fails to identify the elector by name whom the candidate, ir the First Respondent, wanted bribed through Ans Wanaro by linking Kelly Naru to each of those recipients of K250 or K100 through Ans Wanaro.
    
67. The relevant bribery scene envisaged under section 103 by this allegation is subsection (1)(d) where it is alleged that the candidate pays money to X for the purpose of X inducing Y with that money so that Y can vote for him (candidate). The pleading should have read something like this:
    

For purposes of inducing X, Y and Z to vote for him or for purposes of procuring votes from X,Y and Z, Kelly Naru paid K25,000 to Ans Wanaro who distributed the that money in various amounts to the intended/named recipients as follows:

(1) On 14 June 2012, paid K250 to X, an elector
(2) On 14 June 2012 paid K100 to Y, an elector.

68. But the pleading is far from conveying such an intention and the submission made by Mr Mambei with or implying that effect is unsustainable and without merits and support. One only needs to read the pleading in ground one to appreciate this discussion.
    
69. If the Court finds for the Petitioner in allegation 1, it can proceed to hear 2 and 4 allegations, otherwise that is the end of that ground and those related grounds dependent on it.
    
70. Ground 3 he submits is stand-alone. Court must believe Awagiding Asele. Court must not believe Kelly Naru and Setra Panao as they lied. Naru gave him K400, it was not given to him by Setra Panao.
    
71. As to ground one Mr Mambei submits that I must believe Ans Wanaro and disbelieve Kelly Naru because Kelly Naru lied to the court about not giving any monies to the teachers whereas Bill Abaida said he paid them K100 for the use of their house for accommodation.
    
72. Mr Mambei also submits that I must believe Awagiding Asele and disbelieve Kelly Naru and Setra Panao because both Kelly Naru and Setra Panao lied about.
    
73. Mr Mende for Kelly Naru submits that I must dismiss ground one without looking at the evidence because the pleading is bad. It does not link the First Respondent to those persons who received the monies from Ans Wanaro, allegedly paid to Ans Wanaro by Kelly Naru.
    
74. Alternatively he submits that I must dismiss this ground because it is not true, it is a recent fabrication by Hans Wanaro who lied to this court. If I reject this ground, he submits that ground 2 and ground 4 must also be dismissed as they ride on ground 1.
    
75. With respect to ground four he makes similar submissions as in ground one. Firstly, he submits that the pleading is bad as it does not link Kelly Naru to the ultimate recipients apart from Awagiding AseleI himself whose relationship to Kelly Naru is that of a committee man and already supporting Kelly Naru. Alternatively it is also submitted that I must not believe Awagiding Asele as his story is of recent invention and untrue.
    

Alternative Issues

76. On behalf of the Second Respondent, Counsel submitted that there are only two issues:
    
    • (1) Whether the Kelly Naru Team slept at Aseki Lutheran Guest House or at Aseki Primary School teacher’s house?
      
    • (2) Whether Awagiding Asele is a credible witness to be believed.
      
77. With respect to the first issue, he submits that Ans Wanaro’s story stands alone without corroboration and cannot be believed in the light of opposing evidence. On the other hand, story from Kelly Naru is fully corroborated by credible evidence with no reasons to lie have testified on oath. Consequently. Ans Wanaro must not be believed because nobody slept at the Guest House and therefore no money exchanged hands there as alleged.
    
78. As for Awagiding Asele and the K400, he submits that he should not be believed for all the reasons given.
    

Analysis of evidence and assessment of witnesses

79. This petition is inhibited by a number of what I call threshold problems. The first is the formulation of the charges or allegations, particularly when the petitioner is relying in the main bribery by persons other than the candidate and secondly, the integrity of nearly all the witnesses for the petitioner who were the First Respondent’s supporters during the elections as either committee men or scrutineers, but have since changed camp and are testifying for the petitioner. And the money allegedly given in bribe, which is strenuously denied, is money given by candidate to his senior committee man in the presence of the candidate’s district coordinator for Aseki sub district (which is also strongly denied), to help them with their campaign for him.
    
80. If the court is to accept the evidence from all the petitioner’s witnesses who said they received the monies through Ans Wanaro either as scrutineers or committees, the law is clear that a candidate cannot bribe an elector who a known supporter of the candidate[2].The evidence seemed to suggest all these scrutineers and committees were selected for the first respondent by Ans Wanaro. One only hopes that this was not a deliberate ploy to cultivate a ground for petition to lie. It is a mere conjecture. No cross-examination was conducted along this line when Ans Wanaro was in the witness box to exclude any deliberate ploy by him and other witnesses who could be said to have collaborated to be in the first respondent’s camp for purposes of collecting evidence in order to testify against him in the event that he won, which he did. If this were the case, this would be a criminal act of conspiracy to defraud the election. But I do not want to believe that this is the case here.
    
81. I think all these witnesses have been misled into changing their positions after the elections and did so out of guilt for not supporting the petitioner whom they supported previously in the past elections. In doing so they have brought into serious question their integrity as persons of truth, honesty and trustworthiness. In my view this is more a sympathy stand, as the last stand these people took, regardless of the ramifications and the effect on them. Unfortunately even that sacrificial act will not redeem them of their disloyalty.
    
82. I am not persuaded by the reasons they have given for turning against the person whom they supported and campaigned for in the elections. They are too artificial and superfluous and not at all convincing. Be that as it may, this case hinges on the evidence of Ans Wanaro and Awagiding Asele.
    
83. The difficulty that I have about believing Awagiding Asele is that all the witnesses said he is a man of God who preaches at the pulpit and gave a very good sermon on the day of the arrival of Kelly Naru and his team in his capacity as the Secretary of Aseki Circuit of Lutheran Church, equating their coming with the biblical story of Moses leading Israelites out of Egypt to the Promised Land and upon becoming old, handing over the leadership of God’s People to Aaron his elder brother insinuating that it was now time for change in the leadership of this Electorate Kelly Naru was campaigning for. How can this same man now, after his prayers have been answered, turn around and say to his congregation and Kelly Naru, I take back all that I said as I lied about all those. It was the money from Kelly Naru that made me say all those good and nice things about him and prayed for his victory. But I changed my mind after he gave me money to help me buy food to feed all the people who came to the rally.
    
84. For two reasons the story about the K400 from Kelly Naru does not carry any substance in that money was given after he had welcomed them and prayed for their coming and secondly the money was specifically tied to helping Awagiding Asele and his group to buy food and help feed those who came to the rally. That is our typical Melanesian hospitality shown in occasion where people gather. There can be no sinister motive attributed to this giving and taking, supposing if it is true, that the money was given by Kelly Naru.
    
85. But on all of the evidence before me, I am not prepared to hold that Awagiding Asele told a true story in this case. I am satisfied that he lied to this court. It is sad that church leaders can lavishly lay their integrity and reputation on the line to save an aspirant of a political office.
    
86. The petitioner’s star witnesses in this petition are Ans Wanaro and Awagiding Asele. The thrust of the petitioner’s case rests on the crucial question of credibility of these two star witnesses. If the court finds that these two witnesses gave credible evidence, evidence that is probable of belief, evidence that is logically and humanly possible of consumption and appreciation and evidence that is free of any prejudices, bias and misinterpretation. This observation is made in the light of both witnesses’ uncertain or shifting allegiances or loyalty during the election and after the election in their relationship to the Petitioner and the First Respondent in this case.
    
87. Ans Wanaro described himself as the senior committee man for the First Respondent Kelly Naru during the elections but after the elections when his candidate won he turns around and throws his support behind the petitioner because he felt sorry for him and pours out damaging stories and things about the candidate he supported during the elections and became privy to information which ordinarily he would not have except by virtue of him being in that close affinity with the First Respondent because of that bond as senior committee man.
    
88. I pause to consider in particular Ans Wanaro’s explanation for his shift in allegiance after he had thrown his support behind another candidate during the elections and voted for him in paragraphs 14 to 16 and when he realised that the man he had always supported lost, is that good enough reason to cry foul and say that he was bribed to support the winning candidate?
    
89. There was a suggestion in a question put during cross-examination that he may have been paid some money to tell this story on behalf of the Petitioner but he denied.
    
90. Of course the First Respondent and his witnesses strenuously denied that Ans Wanaro was a committee man in Aseki on behalf of the First Respondent’s election campaign. They even denied his evidence as being true.
    
91. It is interesting to note that Ans Wanaro, who claimed himself to be the senior committee man for Kelly Naru, told this court of what he remembered about Kelly Naru and the team in Aseki commencing from their arrival about 5pm on 12 June 2012 and being taken straight to Aseki Lutheran Guest House. He then disappeared from there and returned the next morning at 8am accompanied by Setra Panao and in the privacy of his room in the guest house Kelly Naru gave K25,000 in cash to him and Setra Panao and made the following statement:
    

“I have K25,000 cash with me that you will get and distribute to our committees, scrutineers, church leaders and any influential people you know and tell them to go and vote for me in the coming election. Do not vote for Mr Luther Wenge Box number 12 he stays in Lae and never comes to Aseki. You must give me vote 1 and do not give 2 or 3 Luther Wenge, but give them to other regional candidates.

92. Mr Ans Wanaro wants the court to believe that he and Setra Panao got the money and proceeded to his house where they had a short meeting about the distribution of that money. According to Ans Wanaro, they split up the money as follows:
    

93. After splitting the money, they distributed the money that day and the following day. Chris Angus was given the K5000 on behalf of the Lutheran Church Aseki Circuit on that same day. Setra Panao took the one belonging to SDA Group. The Committee Men and Scrutineers were paid theirs the next day with the message allegedly delivered by Kelly Naru.
    
94. This story and the rest of the evidence of Ans Wanaro is strongly denied by the First Respondent and all the witnesses. Setra Panao said Ans Wanaro lied about the K25,000 received from Kelly Naru, being committee man of Kelly Naru and those statements allegedly made by Kelly Naru. Setra Panao is an elder in the SDA church and he was visibly emotional and his irritation was obvious when he emphatically expressed his denials and called Ans Wanaro the biggest liar who lied to this court.
    
95. Both Kelly Naru and Amos Wallace denied any knowledge of Ans Wanaro as to his involvement in Kelly Naru’s campaign in Aseki, or being Kelly Naru’s committee man, let alone what he looks like and where he comes from. He featured nowhere in the political campaign structure of Kelly Naru.
    
96. Ans Wanaro gave selected story to this court. When anyone does that, it could be that either he has something to hide or he is not telling the truth. As senior committee man for Kelly Naru by his own assertion, Ans Wanaro’s story is not as detailed as that of Kelly Naru, Amos Wallace, Setra Panao concerning their arrival at Aseki on 12 June 2012 when they were welcomed by singsing group who led them to the Lutheran Oval and to the stage where welcoming addresses were given, followed by sharing of food and later being shown their sleeping quarters. Amos Wanaro wants the court to believe that nothing of the sorts told by the First Respondent and his witnesses happened on their arrival. He wants the Court to believe that as they arrive he alone met them and took them straight to Aseki Lutheran Guest House where Kelly Naru and his team were accommodated and he went home.
    
97. As senior committee man for Kelly Naru by his own assertion, Ans Wanaro did not know anyone in Kelly Naru’s Campaign team who were part of his entourage, let alone Kelly Naru’s wife Stella Naru and Amos Wallace, the big boss in Kelly Naru’s political campaign structure. As a self-proclaimed senior committee man of Kelly Naru, his knowledge of that visit to Aseki Station by Kelly Naru Campaign Team only went as far as Kelly Naru and no one else. In real life situations when people claim to know each other in some intimate way for whatever reason, one would expect them to know each other a lot more in terms of their close relationships starting especially with very close family members around them such wife, children, parents, brother, partner, etc. Ans Wanaro said he went to Yalu village and saw Kelly Naru at his Yalu village and later he said his brother was teaching at the local Muya Primary School near Yalu village and he knew Kelly Naru very well. On the afternoon of 12 June 2012 when Kelly Naru and his wife and his entourage of five vehicles took their election campaign to Aseki Station, Ans Wanaro could only see Kelly Naru and no one else.
    
98. As senior committee man for Kelly Naru, Ans Wanaro showed no interest in Kelly Naru and his team being given some refreshment, as it is part of the culture of our people and the country like in every other part of the world. Papua New Guineans in all parts of the country are generally hospitable people and our hospitality in receiving visitors and taking care of them, regardless of who they are, is one of the best custom of our people for which we are praised all over. Ans Wanaro, as senior committee man of Kelly Naru, gave none of this account to the court. And the court is left to wonder whether Ans Wanaro was there when all these unfolded but did not consider them relevant for purpose of his evidence to the court or he just simply was not present.
    

Lying witnesses

99. One of the tests that court applies in determining whether a witness is telling the truth or is lying is by screening his story through a method of cross-checks. And this principle was adopted in the case of The State v Mole Manipe, Jina Molo, Sam Molo, Yakim Saponga and Wame Lucas [1979] N196 where Wilson, J said:
    

“......[O]n the subject of liars...for assessing whether a witness may be lying or not, one may usefully examine..:

(a) whether the story told by the witness is inherently probable or not;

(b) how it fits in with the prosecution case;

(c) how it fits in with the defence case; and

(d) how it fits in with the evidence as a whole.”

100. Ans Wanaro’s evidence fails to satisfy all those above tests because:
     
     • It stands alone, uncorroborated and does not create a complete picture of that visit by Kelly Naru campaign team;
       
     • It does not stand well with the evidence given by the First Respondent and his witnesses which gave a holistic view of the visit which was far more coherent and believable;
       
     • It does not stand the test of logic when viewed in the context of the entire case.
       
101. So the only conclusion open after applying these tests to Ans Wanaro’s story is that to accept his version of what happened is partying company with reality and against established legal reasoning. There is only one conclusion, Ans Wanaro lied to this court.
     
102. Like I said at the outset, the Petitioner’s case in respect of the K25,000 allegation against Kelly Naru rested on Ans Wanaro. If this story is accepted by the court as true, then all the other grounds that feed off this particular allegation remain in the contention for close examination. But from the above discussion, it is unmeritorious and waste of time examining those grounds that have no legs to stand on when Ans Wanaro’s story is already on the chopping block.
     
103. Awagiding Asele’s position is different. Even the First Respondent testified that Awagiding Asele was his committee man in Aseki. But in his evidence, Awagiding Asele denied this and took a neutral position as just a voter without allegiance to either the First Respondent or the petitioner.
     
104. Awagiding Asele wants the court to believe that after the rally on 13th June 2012 as Kelly Naru mingled with the crowd, he walked up to him and introduced himself as Secretary for Aseki Lutheran Church Circuit and Kelly took out K400 and gave it to him, telling him to buy food and feed the rally goers. Kelly Naru, Sam Wallace and Setra Panao said in their evidence that the speeches ended just as it began drizzling and in fear of being prevented by rain Kelly Naru and his team left the stage and proceeded immediately to their vehicles and headed for Bulolo. There was hardly any time and opportunity for Kelly Naru to have met with Awagiding Asele or anyone for a chat or to stop by and give any money of the amount alleged to Awagiding Asele or to anyone else for that matter.
     
105. The source of the story concerning K400 coming into the possession of Awagiding Asele also has another origin. According to Setra Panao, he gave K400 before the 12th of June, 2012 from the K3,000 given to him by Kelly Naru on 10th June, 2012 at the Aseki/Menyamya junction, so that he could buy food and help in the preparation of food for the arrival of Kelly Naru’s campaign team.
     
106. This story by Setra Panao is not in his affidavit but it was not refuted or rebutted by Awagiding Asele or any other witness nor was it challenged in cross-examination when given orally and thus remains unchallenged.
     
107. In the way the evidence was led by both sides, there appear to be two feasts made on the occasion of Kelly Naru and his team conducting his campaign rally in Aseki. The petitioner’s witnesses are saying that the only time there was a feast or food prepared was on 13th June, 2012 after the rally when Kelly Naru gave Awagiding Asele K400 and with that money he bought food and gave it to the people who attended the rally. But the First Respondent and his witnesses are saying that the feast was on the 12th of June, 2012 when Kelly Naru and Team arrived from Menyamya after the welcome speeches on the grandstand upon their arrival. After they all had food it began to drizzle so they were taken to their sleeping quarters, Kelly Naru and wife and families with children were accommodated at a teacher’s house and Sam Wallace and the menfolk in the Lutheran Church Conference Building at the field.
     
108. The story given by Awagiding Asele only confines itself to the giving of K400 cash by Kelly Naru and the preparation of food on 13th June 2012. According to the evidence given by the petitioner’s witnesses, the rally in Aseki for Kelly Naru’s Campaign was organised by the Lutheran Church Congregation of Aseki Circuit. As the Secretary of the Church, even if he was not a committee of Kelly Naru, he would have been heavily involved in the visit from the beginning to the end. But he tells the court nothing specific about the arrival on 12th June, 2012 of the campaign team and what happened on that day, how the group was welcomed on the day of their arrival, whether they were fed, who fed them and what if anything happened following their arrival on 12 June 2012. His story simply begins on the second day towards the end of that trip of a campaign party led by Kelly Naru.
     
109. Awaging Asele gave selective evidence of what he wanted the court to know by omitting the rest of the events that occurred that provided the firmament that give a story a holistic picture of what the story teller is reciting to his audience of what he saw with his eyes.
     
110. I note that in his affidavit, Setra Panao, only starts his story from 12th June, 2012 but in his oral evidence he went earlier than that date and testified about the rendezvous at the junction of Aseki and Menyamya where he received K3,000 from Kelly Naru and he gave K400 from that to Awagiding Asele to use to buy food and prepare for the arrival of Kelly Naru’s team.
     
111. If Awagiding Asele is not lying about the K400, he probably is referring to this money given to him by Setra Panao. But for reasons known only to him, he wants the court to believe that it was given to him by Kelly Naru on 13th June and not before that date. Cross-examination failed to pick this up despite Counsel for the petitioner leaving nothing unturned in his very thorough and exhaustive cross-examination.
     
112. Nearly all witnesses for the First Respondent say that there was only one feast prepared for the Kelly Naru campaign rally which is the one on 12th June 2012 when the community at Aseki welcomed him and his delegation after speeches that afternoon. All the witnesses say that Awagiding Asele was involved in this food preparation, they do not exclude him.
     
113. It is a possibility that Awagiding Asele is referring to this feast and is mistaken about the date. It has to be because there was no time in which everyone including Kelly Naru and his team had meal together except on that day as even the Petitioner’s witnesses all agreed that the rally on 13th commenced at 10am and finished at 1pm when Kelly Naru and his team got in their vehicles and drove back to Lae.
     
114. It is a possibility that it was this same feast that, for reasons known only to himself, Awagiding Asele twisted this story and wanted the court to believe that the food was prepared on 13th June 2012 from K400 given by Kelly Naru only for those who attended the rally to eat after Kelly Naru and his delegation had left Aseki. The difficulty in accepting this story is that to prepare food to feed a large number of people numbering in hundreds needs time and effort preceded by thorough planning and working according to that plan. It is impossible to do that if K400 was received from Kelly Naru at 1pm that afternoon to quickly prepare food to feed the hundreds who came in a matter of the remaining daylight hours. There would be no one left to eat by the time the food is ready because everyone would have departed for their homes. This is where Awagiding Asele’s story is parting company with reality and his credibility diminishes with it.
     
115. The story about the K400 received directly from Kelly Naru, it is clear on the evidence, goes out the window. The version probable of belief is as told by Setra Poana. That is the money Setra Panao gave to Awagiding Asele and instructed him to buy food with the money so that he and Andrew Nengo can help prepare food on the occasion of welcoming Kelly Naru and campaign team to Aseki. Awagiding Asele and Andrew Nengo were his committee men and as the District Coordinator of Aseki, it was his discretion to distribute this task to the committee men and their support team to carry it out. This story has ring of truth in it because to thank the both of them after the event, Setra Poana gave K100 to Awagiding Asele to divide it between him and Andrew Nengo and they did. Setra Poana did not deny giving this money to them when cross-examined by counsel for the Petitioner. They were his committee men and he felt he had to thank them for their hard work.
     
116. When story told by Awagiding Asele stands against the testimonies of six very solid witnesses called by the First Respondent who say that Awagiding Asele is a member of their camp who chose to turn his back on them, there is far more credibility in their story than his. It is more than likely that Awagiding Asele had fabricated the story he gave to this court in collusion and collaboration with others for reasons no one will ever know. When his story is viewed against the entire Petitioner’s case, it does not match. When it is viewed against the First Respondent’s evidence, it does not match. And when it is viewed against the entire case as a whole, it does not fit in at all. There must be only one thing when a witness’s story fails the test of compatibility with the rest of the evidence before the court, the witness is lying.
     
117. I am guided by what was said in The State v Tu’uo Ibru N1940" title="View LawCiteRecord" class="autolink_findcases">[1999] PNGLR N1940 when the judge was faced with two conflicting versions of equal weight and strength:
     

“Which of the two versions is the true story would depend on the credibility of the witnesses. Authorities warn that extreme caution must be exercised when the judge is dealing with the issue of lying and truthful witnesses. There is no rule of law that says that a party that calls more witnesses and who give consistent and almost identical stories must be believed and a party who calls only one witness must not be believed. There is no rule of law that says that where two or more persons tell the same story, that story is the truth as opposed to a single witness. And in a criminal case where the accused is the only witness in his own trial, that makes his chances of being believed non-existent. However, the authorities say that even ten people giving the same story and are quite convincing, they could all be lying. On the converse, an accused may be the only witness in the defence case and may not be as smart or convincing as the prosecution witnesses, yet he could be telling the truth.

But the truth is always not so easy to find and the court has to do the best it can in all the circumstances of a given case to try and strike a balance between what is logical and more probable of human comprehension and what is illogical or plain fallacy.”

118. In my analysis of the evidence and assessment of witnesses demeanour, I pay due regard to this guiding principle.
     

THE LAW

119. The law is clear. Section 215 of the Organic Law on National and Local Level Government Elections (OLNLLGE), in particular, subsection (1) says that ‘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.’
     
120. But the question is, what is bribery? Or what amounts to bribery for purposes of section 215 OLNLLGE? The Criminal Code describes bribery as follows:
     

“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,

is guilty of a misdemeanour.”

121. The Petitioner’s biggest setback is bringing his case within the context of one or more of the above seven different circumstances of bribery stipulated. If only he laid out his case in that fashion, not only would it be much easy for the First Respondent to understand and answer the allegation, but it will also make it easy for him to prosecute with certainty. For the First Respondent’s election to be declared void under subsection (1) of section 215 OLNLLGE, the petitioner must prove by credible evidence that there was bribery committed or an attempted bribery committed by the First Respondent.
     
122. But looking at the allegations in the petition, all the electors or persons allegedly bribed by the First Respondent under one of those unspecified seven types of bribery stipulated in section 103 either in person or by proxy or through third parties, not one of them is an independent person. They are all said to be either committee men or scrutineer of the First Respondent but have now become witnesses for the Petitioner. And the law is very clear about giving money or something to someone who is already a candidate’s supporter. In Roger Palme v Michael Mel [1989] N808 (20/12/89) the following statement appears which is the law as it stands today:
     

“Bribery suggests something under hand and sinister but there can be nothing sinister or under hand by assisting a supporter or a committee man to do his job. There was no threats or offers to give in exchange for votes. I compare this fact situation with the facts in the case of Thompson v Pokasui August 1989 where the court found the candidate clearly misused his position to hand out cheques to people as part of his election campaign thereby suggesting he had some influence in the raising and handing out of these cheques. And the candidate had actually done this after it had been made clear that such handling of cheques should only be done by Department of Defence officials as the cheques themselves came from the Department of Defence and had nothing to do with the candidate. The evidence clearly suggests that the handing out of the cheques and what was said at the time did influence the voters as it was suggested that it was the candidate who had arranged for the cheques for the recipients and possibly even could arrange for further cheques. However, in the case before me now the recipient of the coffee pulper was already a supporter of Michael Mel so much so that he was on Mr Mel's campaign committee so there can be no concept of offering him an inducement to persuade a person to vote a certain way when he was clearly a supporter already and was going to vote in favour of the candidate. In the circumstances I find that there can be no suggestion of bribery or undue influence here.”(emphasis is mine)

123. So what the above judgment is saying is that if the money is given to Ans Wanaro who claims himself as the senior committee man for the First Respondent, already a supporter for the First Respondent to help him carry out his work or campaign for the First Respondent, how can that money given for specific purpose to a supporter constitute an inducement of the supporter to persuade a person to vote in a certain way when he was already a supporter for the First Respondent and he was going to vote for the First Respondent? Assuming that there was such a transaction which the First Respondent strenuously denied, this is the legal hurdle that the Petitioner cannot change or overcome. During the trial Awagiding Asele tried to extricate himself from the First Respondent’s camp and wanted to be an independent person. Unfortunately the petition is the source of this information that the petitioner knowingly used in the drafting of his petition and he is bound by it. It is too late to amend the petition.
     
124. The law also says under section 215(3)(a) that the National Court shall not declare a person returned as elected not duly elected or declare an election void on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority. Before the Petitioner can go past the First Respondent and show that his servants and agents were responsible for bribing the voters with his knowledge or authority, he must prove as near as possible to criminal standard of proof, that is, beyond reasonable doubt that the First Respondent gave K25,000.00 to Setra Panao and Ans Wanaro on the morning of 13 June 2012 in his room at Aseki Guest House in the presence of only the three of them.
     
125. According to the case authorities, there is no such thing as ‘blind dates’ poaching of electors or voters by other persons (or candidate’s own campaign committees) on behalf of a candidate or a winning candidate. The electors to be bribed must be clearly specified both in the pleading and proved accordingly. In other words, it is not good enough to plead that the winning candidate gave money to A for purpose of A inducing or influencing unknown electors to vote in a particular way, this is what I refer to here as ‘blind dates’.
     
126. For bribery allegations by third parties on behalf of a candidate, apart from both pleading and satisfying with credible evidence that it was done with the candidates’ knowledge and authority, it is important also to show both by pleading and evidence the identity of the person or persons the candidate intended to be bribed. The pleading must state with sufficient clarity material facts that the candidate gave money or something to A with intent that A gives that money or something to B, C, D and E to induce or influence them to vote in a particular way. In James Togel v Michael Ogio and Electoral Commission; Re Disputed Returns for the North Bougainville Open Electorate [1994] PNGLR 396, it was a petition disputing an election return, seeking a declaration that the election was void on the basis of bribery, the first respondent and sitting member for the electorate had allocated grants from discretionary funds to two groups in the electorate. The funds were drawn from the National Development Fund, available to all members of the Parliament, and were allocated on the basis of recommendations made by a committee established by the first respondent. The first respondent did not know the members of the recipient groups, several of whom were requested by the persons delivering the funds to "remember" the first respondent, and who therefore felt obliged to vote for him. Evidence of a witness for the petitioner about receipt of the funds, which was not the subject of cross-examination was contradicted by a witness for the respondent. The court held, inter alia:
     

1. An election will be declared void due to bribery, under s 215 of the Organic Law on National Elections, if a bribe is offered to a person:

(a) with the authority or authorization of the candidate; and

(b) with the intention of persuading him to vote for a particular candidate.

2. Payments made from discretionary funds available to members of Parliament to groups or individuals could amount to bribery, depending on the circumstances.

3. Payments from the discretionary fund had made members of the recipient groups feel obliged to vote for the first respondent, and, accordingly, could constitute bribery if made with his authority or authorization.

4. There being no evidence that the first respondent either knew the identity of members of the groups receiving the funds or authorised what was said when the funds were delivered, there was no evidence of authority or authorization by him.

5. A Court is entitled to disbelieve a witness who gives evidence of facts which have not been put to the relevant witness of the opposing party during cross-examination.

127. Essentially what happened in that case was that evidence was presented of cheques from the discretionary funds allocated from this National Development Grants to these two groups by the Respondent who was the sitting member of Parliament but there was no evidence of the identity of those members he is alleged to have bribed and there was no evidence that the Respondent had any knowledge or authorised those persons doing the handing out of the cheques or some of them delivering the funds to the two groups to request the members of the groups to ‘remember’ the Respondent while delivering the cheques.
     
128. The standard of proof in an election petition based on bribery and undue influence is close to that of criminal standard of proof beyond reasonable doubt as was held in re Menyamya Open Parliamentary Elections - Neville Bourne v Manasseh Voeto [1977] PNGLR 298 which was adopted and applied in the line of cases that followed thereafter including Raymond Agonia v Albert Karo [1992] PNGLR 492 in which Sheehan J made very helpful observations for guidance to the court as well as to counsel on the elements of the offence of bribery in an election case, pleading of bribery as an election related offence in a petition as well as standard of proof to be applied. At p.498:
     

“It is well recognised that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.

But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code suspending constitutional rights of taking part in the electoral process, as an elector or candidate for parliamentary elections. Such charges, therefore, must be pleaded with clarity and definition. Again, because of the seriousness of such allegations.

It is not surprising that the standard of proof required in an election petition is, to all intents and purposes, the same as in a criminal court (see Bourne v Voeto [1977] PNGLR 298 at p 302). It was established in that case that, where the ground relied on is undue influence, it is necessary to prove undue influence as it is constituted by the Criminal Code. The offence of bribery must, likewise, be proved.

What then are the elements that constitute the offence of bribery. As Mr Lash has said, s 103 of the Criminal Code is a large and extensive section, incorporating a range of corrupt practices of unlawful inducement, which in the several circumstances set out in the section, may make out the charge of bribery. The section is set out below to illustrate this variety:

"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) in order to induce 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 purposes 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 is guilty of a misdemeanour".

Without analysing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector - defined as any person entitled to vote at any election - 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 s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases 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.

Counsel referred this Court to the comments of Bredmeyer J in Siaguru v Unagi [1987] PNGLR 372, where he pointed out that election petitions are not new, and that precedents are available in well known reference books which set out the accepted methods of pleading electoral offences. However, in PNG, precedents are as close as the National Court Criminal Practice Rules 1987. There, the required method of formulating an indictment of bribery is set out. On p 58, form number 60 draws out the elements of the charge that need to be pleaded to constitute a valid indictment.

But is the precise presentation of an indictment in a criminal court the standard required in an election petition? Does a petition have to set out its grounds in the manner of an indictment? Essentially, that is the contention of the respondents. Mr Lash countered that, in their objections to this petition, the respondents were trying to impose pleadings which are oppressive to petitioners.

In my view, the standard is not that demanding. Although the grounds alleged in a petition charge a criminal offence, I do not believe it is necessary that a ground needs to be set out as if it were an indictment - desirable as that might be. The Court of Disputed Returns does not have the same focus as a criminal court. It is looking to the validity of an election and not whether a respondent is liable to a criminal penalty. There is also a difference of approach. The criminal court operates under strict rules of evidence, while by s 217 of the Organic Law this Court looks to the substantial merits of the petition without strict regard to rules of evidence.

Notwithstanding those differences, because "an election petition is a very serious thing," because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence. "

129. He must further prove beyond reasonable doubt that the K25,000.00 was given for bribing voters to vote for him in the coming elections. In Peter Wararu Waranaka v Gabriel Dusava [2009] SC980 the Supreme Court reversed the decision of the National Court in the famous K50 bribery case where the National Court found the First Respondent guilty of bribery for giving K50 to a known supporter of the petitioner in the presence of an eye-witness with the words 'why support big people, join the grassroots camp'. But there was also another version of the giving of K50 to the person concerned from the Respondent. It was on the person's request to help them buy some food for the youths working on building a platform at the time the Respondent stopped when he saw the men. The purpose for the money exchanging hands conflicted between that of the petitioner's witnesses and that of the Respondent. In such circumstance, the Supreme Court held that the trial judge had not given due consideration to the principle of proof beyond reasonable doubt enunciated in Bourne v Voeto, Karo v Agonia, etc and overturned the trial judge's decision. This case re-emphasised the need for observance of the standard of proof in bribery allegations in election petitions.
     
130. But in this case, I do not see any need to go that far in the determination of this petition because on the issue of competency after all the evidence has been led; there is still no improvement in the Petitioner's case. And secondly, after hearing all the evidence, I disbelieve the evidence of the Petitioner in its entirety as being of recent fabrication by disgruntled supporters of the First Respondent after the elections for reasons they gave, they felt sorry for the Petitioner whom they had supported all the time until this election. For this reason, I find that no exchange of money in the sum of K25,000 ever took place as there was no such meeting between the First Respondent and Ans Wanaro and Setra Panao and this allegation is false and the evidence given in support is but a pack of lies. I don't wish to dwell into any discussion on it which will be obiter and purely academic.
     
131. And because of this finding, there can be no bribery against the First Respondent if Ans Wanaro distributed monies to those named persons who were either committee men or scrutineers they are actions independent of the First Respondent's knowledge and authority. There is no other evidence that links the First Respondent apart from Ans Wanaro's story that attempted to link the First Respondent to that distribution of funds. If they ever did take place, that is a matter between Ans Wanaro and those persons some of whom gave evidence in this court. As I find that there was no meeting between the First Respondent and Ans Wanaro on the morning of 13th June 2012 and no money was given by the First Respondent to Ans Wanaro, evidence of Timex Anga Weto, Henry Heno, Simon Sakai, Moses Kami, Benny Okam, Simon Yalamu, Giob Tomis are irrelevant and of no consequence in this petition.
     
132. And the same goes for evidence of Jerry Weko, Kaso Tanso and Solomon Sakai. As the court has found that Awagiding Asele is not a witness of truth, his entire story collapses and the evidence of those persons become irrelevant as they have no legs to stand on.
     
133. If anything, they were all like puppets in a Muppet show as they all sounded in their evidence by the monotony of their voice as each gave his story like a recital of a memorised written text.
     
134. The only witness of credit for the petitioner could be Andrew Nengo. He admitted in cross-examination that he was a committee man for the First Respondent and he also testified that Awagiding Asele was a committee man for the First Respondent. There is this conflict within the petitioner's own witnesses contradicting each other's testimony. Andrew Nengo told the court that he became a supporter of Kelly Naru because Awagiding Asele gave him K50 and told him it was from Kelly Naru. The theory in the petitioner's case is that that money was part of the K25,000 paid by Kelly Naru to Setra Panao and Ans Wanaro. Section 215(3)(a) can only come into play in this instance if there is nexus between that K50 and Kelly Naru. That evidence had failed to reach that level and at best that evidence stands alone with no connection to the First Respondent.
     
135. There is evidence already before this court that Setra Poana gave Awagiding Asele K100 on 14th June, 2012 and told him to share it with Andrew Nengo, both committees of Kelly Naru to thank them for their involvement in the preparation of the feast to welcome Kelly Naru's team.There is no evidence that Setra Panao was acting with the knowledge and authority of Kelly Naru. It might have been a gesture he considered appropriate in a true Melanesian way in the circumstances of this case.
     
136. I don't know how and at what point in time something given in gratitude and with good intention can change and become twisted in its purpose and objective per se without more. The remoteness of such possibly only leaves this argument as wishful thinking by the Petitioner and his witnesses.
     
137. On the other hand, I don't know how a person receives something in good faith with nice feeling about it on clear understanding that it is all given in the course of his support for a good person and in the end he votes for that person but for reasons known only to himself subsequently after the event changes his story and accuses the candidate he supported as an evil man? It only brings his own credibility on the line.
     
138. It is within the First Respondent's right to question such witnesses' motive for being in his camp in the first place. Did he join his team to collect confidential information, information that he would not have been privy to without becoming one of Kelly Naru's committee men, so that he can later on, if Kelly Naru won, use that information against him when his election is challenged? If so, then who put him up to that and for what reason? How much was promised or paid to him to compromise his own integrity playing such dirty tricks against people? To think that Ans Wanaro, Awagiding Asele and Andrew Nengo joined the First Respondent's campaign team and voted for him so that they could later on switch sides and give evidence against him in court is most difficult to comprehend because it does no more harm to the electoral result or the First Respondent's win than it ridicules and demoralises those witnesses as unstable, untrustworthy, unreliable and dishonest persons.
     
139. Consequently, the legal issues that I foreshadowed in my ruling on the objection to competency are no longer of significance for discussion in the judgment as they do not arise.
     
140. The pleadings must be as near as possible to the underlined parts or paragraphs of section 103 in the above quote from His Honour's judgment. Be that as it may, I subscribed to the same view as expressed by Sheehan J in this judgment. And because of that notwithstanding the style of pleadings adopted in this petition I allowed the grounds to go to trial to accord the Petitioner the opportunity to present his case however he saw it.
     
141. The petitioner has had his chance but has failed to meet the required standard as the evidence he tendered are far from satisfactory in that they are from unreliable and untrustworthy sources and from a holistic point of view the fragmented stories advanced by the witnesses guised as bribery are beyond belief. From a common sense point of view, if the witnesses in both sides of a case are talking about the same event, but there appear to be two conflicting versions advanced by either side, they can't both be right, only one can be right or close to right and the other has to be wrong.
     
142. It has been said and repeated many time before that a petitioner who wants to challenge an election result on a ground of bribery or undue influence, he does not have to overload his petition with so many allegations or complaints but be smart and confine himself to one or two incidents he believes has good strong prospects of success and focus all his attention in building a good case on just those grounds and discard the rest. The attention that is required to establish one or two good grounds can be diverted to less promising grounds for the sake of giving equal attention to all the others that in the end, the entire petition suffers. And the answer is very simple. Unlike all other grounds, only one act of bribery or undue influence, if proved, is enough to overturn the result of an entire election. And because the standard of proof is high, the attention given to the case must equally be of high standard.
     

Findings of Facts

143. On this premise, I make these findings on facts on the evidence presented:
     
     • (i) Kelly Naru arrived in Aseki with his convoy of five vehicles about 3pm on the afternoon of 12 June, 2012. He was accompanied by his wife Stella Naru and their late son, Mr. Amos Wallace his provincial campaign coordinator, Mr Chris Philemon and his wife Rhoda Philemon, their small child and other team members. This evidence is unchallenged.
       
     • (ii) Before they entered Aseki station, they were met outside by a singsing group arranged by Setra Panao that led them into the arena where they rested and some welcome speeches were made from the grand stand previously prepared for the arrival of the group.
       
     • (iii) Before the speeches Awagiding Asele said the prayers and read a passage from the Book of Genesis about Moses leading Israelites out of Egypt.
       
     • (iv) After the welcome, they had food on the field and later that evening Kelly Naru and those of his followers with wife and kids were accommodated in Bill Abaida's house at Aseki Community School while Amos Wallace and the male members of the campaign party slept in the pandanus house in the field built for the Lutheran Church Convention that was also taking place in Aseki within that same week.
       
     • (v) Kelly Naru and his campaign team did not sleep at the Aseki Lutheran Guest House on that visit to Aseki for reasons abundantly stated by all the witnesses. The place was not open for business for quite sometime and the keys were with Lote Geleson in her village because she received no booking for the group's or anyone's accommodation between 12 and 14 June, 2012. I disbelieve Ans Wanaro on this and find that he lied to the court.
       
     • (vi) As Kelly Naru did not sleep at Aseki Guest House, he could not have given K25,000.00 to Ans Wanaro in his room at the Guest House. This story is a deliberate lie and of recent fabrication. It stands alone without corroboration because the only person who could have verified this story is Setra Panao who flatly denied this story by Ans Wanaro and as I have accepted Setra Panao as witness of truth, it confirms Ans Wanaro as a liar.
       
     • (vii) Kelly Naru campaign rally in Aseki was mainly hosted by the Aseki Circuit of the Lutheran Church and as a senior person in the church, Awagiding Asele played a leading role in that political rally apart from being Kelly Naru's committee man. I disbelieve Awagiding Asele where he removed himself as Kelly Naru's committee man after the elections and made himself a witness for the petitioner in this case. I find that he lied in this court in this regard.
       
     • (viii) I find that the rally commenced at about 10am and finished around 1pm in the afternoon on 13 June, 2012. As the weather was not very promising, Kelly Naru and his team headed straight for their vehicles to start their long drive back to Lae without being delayed by the rain.
       
     • (ix) He had no time and did not stop to talk or give anything to anyone as he left the grandstand and headed for his vehicle in the company of his team members. I find that the story told to this court by Awagiding Asele that Kelly Naru gave him K400 after the rally on that day is a total fabrication and a lie.
       
     • (x) The K400 referred to by Awagiding Asele was given to him by Setra Panao the day before the arrival of Kelly Naru and team with advice from Setra Panao for Awagiding Asele to buy food with that money to prepare for their guests coming to the rally. I find that Awagiding Asele deliberately twisted this story and named Kelly Naru as the giver when the truth is it was Setra Panao.
       
     • (xi) I find that this food was prepared and laid out for all to eat on 12th June, 2012 in which Kelly Naru and team also shared in the meal on the field in the pandanus house. I disbelieve Awagiding Asele when he insisted that this food was prepared on 13th March 2012 after Kelly Naru and his team had already departed Aseki.
       
     • (xii) It is nonsensical to prepare a feast to feed themselves only without extending such hospitality to their important guest whose visit to Aseki was the reason for the rally and meeting of people from all parts of Aseki sub-district at Aseki Station.
       
     • (xiii) Awagiding Asele lied in this court and I reject his evidence in its entirety.
       
     • (xiv) Ans Wanaro lied in this court and I reject his evidence in its entirety.
       
     • (xv) I find Kelly Naru to have been honest and fortright in his evidence and he told the truth. I accept his evidence in its entirety.
       
     • (xvi) I find Amos Wallace told the truth and there was no reason for him to lie.
       
     • (xvii) I also find Setra Panao as a witness of truth and I accept his version of the events he mentioned in his evidence with regard to the K25,000.00 and the K400.00 over those of Ans Wanaro and Awagiding Asele whom I have already found to be liars.
       
     • (xviii) I find all other supporting witnesses to these key witnesses in the First Respondent's case namely Chris Angas, Bill Abaida, Lote Geleson and Rhoda Philemon have all told the truth.
       
     • (xix) With my earlier finding that stories given by the two star witnesses for the Petitioner are lies and untruths, it follows therefore that the evidence given by eleven other witnesses of the Petitioner are founded on these false and untrue stories that the court finds no credibility in them and therefore rejects their evidence in their entirety. After all they are all like puppets on a Muppet show talking and acting on the instructions remotely controlled by these two men who are very poor liars.
       
     • (xx) I say this with greatest respect because both their stories lack any ring of truth for the following reasons:
       
       1. Both men gave selective evidence without assisting the court with a full picture of the entire visit of Kelly Naru and his team;
          
       2. They could have called independent witnesses to support their respective assertions but they did not;
          
       100. Nearly all the petitioner's witnesses are double-crossers in that when it suited them during the election they supported Kelly Naru, campaigned for him and voted for him but chose to change their minds when their candidate won. Now they want to support the runner up to topple the one they supported to win. They are not men of integrity and loyalty. They are dancing and singing to the tune played by some other people with no regard for their own self-esteem and self-respect. They are all untrustworthy and unreliable witnesses.
            

CONCLUSION

144. Based on these findings of facts the Petitioner's case collapses in its entirety for not meeting both the procedural and evidentiary requirements.
     
145. In conclusion, I summarise my decision as follows:
     
     • Whether the Petitioner has sufficiently and adequately complied with the requirement of section 208(a) and section 215(3)(a) OLNLLGE and section 103 of the Criminal Code in respect of ground one and all the grounds?
       
146. The answer is no. The pleadings in the petition have not improved even with the evidence that was tendered. If anything the evidence clearly highlighted the ugly side of the Petitioner's case where he constructed his case on the stories he collected from electors or voters who in previous elections supported him but in the last elections, had deserted him and thrown their weight behind the First Respondent, if this is a true story, and therefore these were witnesses were incapable of being bribed according to the law as established in various cases on bribery including Roger Palme v Michael Mel (supra), supposing the pleadings had been precise and concise to the point. Supposing the pleadings had met the requirement of section 208(a) and section 215(1) or 215(3)(a) OLNLLGE in accordance with section 103 of the Code, the Petitioner's allegation on the K25,000 could never succeed because a candidate cannot bribe his own supporter.
     
147. On the other hand, the story remained uncorroborated from the start to the finish, so I cannot be satisfied beyond reasonable doubt of the guilt of the First Respondent, supposing I believed Ans Wanaro, which I don't, so on this basis this ground was bound to fail.
     
     • Alternatively, has the Petitioner satisfactorily proved beyond reasonable doubt that the First Respondent is guilty of bribery as alleged?
       
148. The answer is no. This alternative argument encapsulates the Second Respondent's submission with regard to the place where Kelly Naru and his campaign party were accommodated on the night of 12 June 2012. There is overwhelming evidence that they were accommodated at Bill Abaida's house at Aseki Lutheran Community School. This evidence has not been successfully rebutted by the Petitioner although Ans Wanaro wants the court to believe that Kelly Naru slept that night at the Aseki Guest House. because I am convinced that Kelly naru and his party slept at the school, he was not at Aseki Guest Hosue where this K25,000 was allegedly paid by him to Ans Wanaro, so with this conflict in the stories given by both sides, the standard of proof has not been discharged.
     
149. For this reason, there is no real substance in this allegation and must be dismissed. And because the rest of the grounds in the Petitioner's case are inter-linked to the K25,000 allegation there is no need to discuss them separately on an unnecessary costly exercise.
     
     • Whether Ans Wanaro is a reliable and credible witness?
       
150. The answer is no. Ans Wanaro, is not a truthful witness and cannot be believed. He deliberately lied to this court. Police must investigate this person for possible perjury charges.
     
     • Whether Awagiding Asele is a reliable and credible witness?
       
151. The answer is no. Awagiding Asele, a church leader, in Aseki Lutheran Church, had deliberately lied to this court. His story about the K400 from Kelly Naru cannot be believed, his story about holding a feast on 13th June 2012 is distorted by deliberate choice to support his K400 story when he knows the true story was as Setra Panao told the court, Setra gave him that money to buy food to prepare for the arrival of Kelly Naru and team on 12 June, 2012, not to feed those who came to the rally after Kelly Naru and team had left Aseki. Awagiding Asele must also be investigated by police for possible perjury charges.
     
     • Whether all other witnesses of the Petitioner were reliable and credible of belief?
       
152. The answer is no. All other witnesses called by the Petitioner have given fabricated stories and all their evidence were nothing but deliberate lies. They must all be investigated for possible perjury charges against them. Those witnesses are Timex Ango Weto, Henry Heno, Simon Sakai, Moses Kami, Benny Okam, Simon Yalamu, Giob Tomis, Jerry Weko, Kaso Tanso and Solomon Sakai.
     
153. For all these reasons and those expressed in the judgment I must find that the Petitioner has not satisfied the onus of proof placed upon him in all his grounds in the petition and as such the petition must fail.
     

ORDER

154. The order of the court is that the petition fails and case is dismissed. Petitioner pays the Respondents' costs. I further order that the security for costs deposited with the Registrar shall be applied towards the costs for the Respondents.
     
     

Solwai Lawyers: Lawyer for the Petitioner
Wantok Legal Group: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent

^[1] In the course of the evidence of the witnesses it became clear that the common roll for Aseki was really for Aseki Station which was Ward 10, Aseki being a sub-district of Menyamya District. There were other Council Wards within Aseki sub-district.
^[2] See Roger Palme v Michael Mel [1989] N808 (20/12/89) per Woods, J.