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National Court of Papua New Guinea |
N7120
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 28 OF 2017
BETWEEN
BEDE TOMOKITA
Petitioner
AND
DOUGLAS TOMURIESA
First Respondent
AND
ELECTORAL COMMISSION
Second Respondent
Alotau: Makail, J
2018: 8 & 10 January
ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts pleaded in the petition – Allegations of bribery and errors or omissions at counting – Whether facts pleaded identify elements of offence of bribery – Whether there are facts showing results likely to be affected as a result of errors or omissions by electoral officials – Organic Law on National and Local-level Government Elections – Sections 208 (a), 215 & 218 – Criminal Code – Section 103
Cases cited:
Allan Ebu v. Roy Evara [1983] PNGLR 201
Assik Tommy Tomscoll v. Ben Sembri & Electoral Commission (2003) N2349
Bryan Kramer v. Nixon Philip Duban & Electoral Commission (2013) N5213
Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2014) N5812
Jerry Singirok v. Ken Fairweather (2014) N5577
Ken Fairweather v. Jerry Singirok (2013) SC1293
Leonard Louma v. Douglas Tomuriesa & Electoral Commission (2012) N4919
Counsel:
Mr. R. Diveni, for Petitioner
Mr. A. Baniyamai, for First Respondent
Mr. J. Simbala, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
10th January, 2018
1. MAKAIL J: This is a petition disputing the election of the first respondent as member for Kiriwina-Goodenough Open electorate following the 2017 General election.
Grounds of Petitions
2. The petition is, in fact, based on fourteen rather than twelve instances of bribery set out at paras. 2.1 to 2.10 and para. C (“Grounds”) and one allegation of errors or omissions by electoral officials at counting at para. 2.11.
Grounds of Objection
3. There are two objections to the competency of the petition; one by the first respondent filed 18th October 2017 and the other by second respondent filed 15th November 2017 for determination.
4. By this ruling, it is not intended that the guilt or otherwise of the first respondent in relation to these allegations will be determined but the competency of the petition.
5. The objections are based on two grounds:
(a) The alleged bribery occurred prior to the first respondent nominating to contest the election or becoming a candidate within the meaning of Section 215 (3) of the Organic Law on National and Local-level Government Elections (“Organic Law”), and
(b) Insufficient or lack of facts in the petition contrary to Section 208 (a) of the Organic Law.
6. As to the first ground, the respondents jointly contended that the first respondent nominated to contest the seat for the Kiriwina-Goodneough Open electorate on 26th April 2017. From that date onwards, he was a candidate. Any allegation that he committed bribery prior to 26th April 2017 is misconceived because he was not a candidate and should be dismissed.
7. As to the second ground, the respondents jointly contended that the petition lacked material facts in relation to the elements of the offence of bribery, including failure to plead that the person allegedly bribed is an elector.
8. In the case where a person other than the first respondent gave, conferred or procured the gift or benefit to another without the knowledge or authority of the first respondent, the petition failed to plead that the result is likely to be affected and that it is just that the first respondent should be declared not to be duly elected or that the election should be declared void.
9. Finally, the petition failed to plead that the result is likely to be affected and it is just that the first respondent should be declared not to be duly elected or that the election should be declared void in relation to allegation of errors or omissions by electoral officials.
Bribery Allegations
10. Section 103 of the Criminal Code provides for the offence of bribery as follows:
“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 as 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.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”
11. To prove bribery, material facts of the elements of the offence of bribery under Section 103 must be pleaded. They are:
(a) A person;
(b) Gives, confers, procures;
(c) Any property or benefit of any kind;
(e) To another person;
(f) (i) For doing or not doing anything, or to do or not to do
anything, by an elector at an election in the capacity as 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
12. They do not have to be pleaded in the exact terms but the facts must identify them. The material facts must include when and where the alleged bribery occurred.
13. As the offence of bribery is allegedly committed during election, there are two additional requirements under Section 215 of the Organic Law. Section 215 states:
“215. Voiding election for illegal practices.
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void
(2) ...........
(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void-
(a) on the ground of an illegal practice committed by a person other than a candidate and without the candidate’s knowledge or authority, or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence.
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”
14. They are:
(a) The offence was committed by a candidate; or
(b) If not, it was committed by a person other than the candidate with the candidate’s knowledge or authority.
15. Where a petition discloses this basic information commonly referred to as material facts, it is competent. It follows that the contention by the respondents that in the case where a person other than the first respondent gave, conferred or procured the gift or benefit to another without the knowledge or authority of the first respondent, the petition must plead that the result is likely to be affected and that it is just that the first respondent should be declared not to be duly elected or that the election should be declared void is not a material fact in bribery cases: Ken Fairweather v. Jerry Singirok (2013) SC1293.
Bribery at Bolubolu station, Goodenough Island on 24th April 2017.
16. Looking at the facts pleaded at para. 2.1 (a) to (g) of the petition, this is one of the allegations of bribery which occurred prior to the nomination of the first respondent as candidate. It occurred on 24th April 2017.
17. The source of the date of nomination of the first respondent is not the petition but an affidavit of the Returning Officer one Mr. Gansen Kadi sworn and filed 13th November 2017. That affidavit annexed a copy of the nomination form completed by the first respondent. It is dated 26th April 2017 as the date of its receipt by the Returning Officer. Mr. Kadi’s evidence is verified by the first respondent and his First Secretary Mr. Nelson Kurina in their respective affidavits.
18. The petitioner does not contest the source of this information and the date of nomination but submitted that the question of candidacy of the first respondent is a matter for trial because it is not settled law as to when a person becomes a candidate.
19. There is one view that a person is not a candidate until he or she nominates and the definition of a candidate under Section 3 of the Organic Law includes a person who announces himself as a candidate in the three month period before the commencement of polling but only for the purpose of Part II and Part XVII of the Organic Law: Allan Ebu v. Roy Evara [1983] PNGLR 201applied in Jerry Singirok v. Ken Fairweather (2014) N5577.
20. The case of Bryan Kramer v. Nixon Philip Duban & Electoral Commission (2013) N5213 supports the view that a candidate under Section 3 of the Organic Law is a person who announces himself as a candidate in the three month period before the commencement of polling.
21. As to whether the question of when a person is a candidate can be raised at a competency hearing or at trial is not settled. In Kramer v. Duban, the question was considered at a competency hearing: cf Singirok v. Duban.
22. In this case, there are a couple of reasons which support the approach taken by the Court in Kramer v. Duban. First, the petitioner takes no position on the date of nomination of the first respondent of 26th April 2017. In any case, there is uncontested evidence that the first respondent nominated on that date.
23. Secondly, parties have adequately addressed the question of candidacy in their respective submissions. In so doing, they pointed out the differing views expressed by the Court in the mentioned cases. Given this, if the question is left until trial, parties will be repeating their submissions. For these reasons, it is appropriate that it be determined now at the competency stage.
24. Proceeding on this premise, the Kramer v. Duban case did not consider the decision in Allan Ebu. Singirok v. Duban did. Allan Ebu and Singirok are consistent with the definition of a candidate under Section 3 of the Organic Law. Section 3 makes it clear that the definition of a candidate under Section 3 of the Organic Law includes a person who announces himself as a candidate in the three month period before the commencement of polling but only for the purpose of Part II and Part XVII of the Organic Law.
25. Part XVII of the Organic Law provides for offences. Section 215 of the Organic Law is not one of the offences covered by this Part. That rules out the application of Part XVII to a case of undue influence or bribery under Section 215.
26. It follows that the first respondent was not a candidate within the meaning of Section 215 when the alleged bribery took place at Bolubolu station on 24th April 2017. This ground is incompetent and struck out.
27. This conclusion renders it unnecessary to consider whether there are sufficient facts pleaded to constitute bribery.
Bribery at Belebele village, Goodenough Island on 24th April 2017
28. The allegations of fact pleaded at para. 2.2 (a) to (d) of the petition shows another instance of bribery at Belebele village on Goodenough Island on 24th April 2017. It allegedly occurred on 24th April 2017 which was two days prior to the first respondent’s nomination on 26th April 2017.
29. For the reasons given above, this ground is incompetent and struck out.
Bribery at Kuruvitu and Tukwaukwa villages, Kiriwina Island on 28th April 2017
30. There facts pleaded at para. 2.3 (a) to (g) of the petition can be divided into two parts. First, the bribery allegation at Tukwaukwa village; the facts identify the first respondent as the offender through Job Kulubwaga with the first respondent’s knowledge or authority, secondly, the person allegedly bribed as one Kuboma Touvalugwa, thirdly, the property or benefit of any kind given, conferred or procured as a truck, Dyna BFC 218.
31. But it lacks facts to identify Kuboma Touvalugwa as an elector. Reading the petition as a whole, the deficiency is cured by para. C (d) and (e) where it is alleged that Kuboma Touvalugwa is an elector. While it is not alleged that Mr. Touvalugwa voted, it is immaterial because it is a matter for evidence at trial.
32. The fourth element is inducement of the person. Bribery involves an element of dishonesty and this is where it is necessary to plead and prove it. While facts do not identify what the agent of the first respondent said in order to induce or procure the return of the first respondent or the vote of Mr. Touvalugwa, it is not necessary because it can be inferred from the conduct of the offender.
33. Here, the presentation of the truck was during election period. It is sufficient to establish the element of an inducement or to procure the return of the first respondent or the vote of Mr. Touvalugwa. Whether it is proved is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2014) N5812; cf Leonard Louma v. Douglas Tomuriesa & Electoral Commission (2012) N4919.
34. Finally, the place and time of the alleged offence are stated. They are Tukwaukwa village on Kiriwina Island on 28th April 2017.
35. The facts are sufficient to constitute bribery at Tukwaukwa village. This ground is competent.
36. In the second part, the bribery allegation at Kuruvitu village; the facts identify the first respondent as the offender through Charlie Cameron, with the first respondent’s knowledge or authority, but fails to identify the person who was bribed, in that, it is vague in terms of who benefited from the gift. For the allegation that “Kuruvitu village community” allegedly benefited is too general and vague. It is not for the respondents to guess who amongst the Kuruvitu villagers benefited.
37. Thirdly, the facts identify the property or benefit of any kind conferred or procured as a Hyundai 100 series Registration No. BFC 257. The fourth element of inducement is present in the form of the presentation of the motor-vehicle during election period. But as found, it is unknown who amongst the “Kuruvitu village community” received or benefited from the gift.
38. While the facts establish the three elements of the offence, one in relation to who was bribed is missing. The allegation of bribery at Kuruvitu village fails to meet the test under Section 208 (a) of the Organic Law. It is incompetent and struck out.
Bribery at Faiava village, Goodenough Island on 30th April 2017
38. There are sufficient facts at para. 2.4 (a) to (c) of the petition to identify the first respondent as the person who gave, conferred or procured a property or benefit of any kind being K2,500.00 and 190 bags of rice to villagers, who were also electors to procure the return of the first respondent in the election or vote for him. These electors are:
(a) Elia Obulesi who refused to accept the gifts;
(b) Jimmy Miyoluna;
(c) Simeon Talautura;
(d) Yamwayamwana;
(e) Nelson Gamwaisa,
(f) Abraham Mavole;
(g) Napoleon Feladana;
(h) Yawadailele Waidala; and
(i) Nimagolota Odoitu.
39. Except for Elia Obulesi who refused to accept the gifts, the others did. While it is not alleged that these persons voted, it is immaterial because it is a matter for evidence at trial.
40. Again, while there are no expressed words to induce the persons who received the money, the giving of the gifts including money during election period satisfies the elements of inducement. Whether inducement is proved is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
41. This ground is competent.
Bribery at Ifwaya and Abolu villages, Abolu Ward, Goodenough Island on 13th May 2017
42. Similar to the allegation of bribery at Kuruvitu and Tukwaukwa villages, the facts pleaded at para. 2.5 (a) to (k) of the petition can be divided into two parts. First, the bribery allegation at Ifwaya village; the facts identify the first respondent as the offender, secondly, the person allegedly bribed an as one Jimmy Miyoluna, an elector, thirdly, the property or benefit of any kind given, conferred or procured as cash of K5,000.00, corrugated roofing irons, solar lights, pig and local food. Mr. Miyoluna received 16 corrugated iron roofs for his personal use.
43. There is no allegation that the giving, conferring or procuring of cash and goods was done in order to induce any person like Mr. Miyoluna to endeavour to procure the return of the first respondent at the election, or his vote as an elector at the election.
44. However, reading the petition as a whole, this deficiency is overcome by para. C (e) of the petition where it is alleged that the giving of cash and goods was done in order to induce an elector (Mr. Miyoluna) to endeavour to procure the return of the first respondent at the election, or vote for the first respondent at the election. The element of inducement is present in the form of the presentation of the cash money, items and food during election period: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
45. The facts are sufficient for the purpose of constituting bribery at Ifwaya village. This ground is competent.
46. In the second part, the bribery allegation at Abolu village; the facts identify the first respondent as the offender. Secondly, the person who was bribed as Sande Iyosia who is an elector, thirdly, the property or benefit of any kind given, conferred or procured as cash of K1,300.00, pig and food stuff.
47. There are no facts to show that the giving, conferring or procuring of cash and goods was done in order to induce any person like Mr. Iyosia to endeavour to procure the return of the first respondent at the election, or his vote as an elector at the election.
48. However, again reading the petition as a whole, this deficiency is overcome by para. C (e) of the petition where it is alleged that the giving of cash and goods were done in order to induce an elector (Mr. Iyosia) to endeavour to procure the return of the first respondent at the election, or vote for the first respondent at the election. The element of inducement is present in the form of the presentation of the cash money, items and food during election period: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
49. The facts are sufficient to constitute bribery. This ground is competent.
Bribery at Waimanuga village, Goodenough Island on 14th May 2017
50. There are facts pleaded at para. 2.6 (a) to (e) of the petition which identify the first respondent as the offender but fails to identify the person named as Kevin Magiluwana as the person who was bribed because from the facts, that person refused to accept cash of K5,000.00 or part thereof.
51. Secondly, there is allegation that the food items were received by Raymond Robert who distributed them to the villagers. This allegation is too general and vague in relation to who amongst the “villagers” received the food items, Thirdly, the property or benefit of any kind given, conferred or procured is identified as K5,000.00, five pigs and garden food.
52. Fourthly, there are no facts to show that the giving, conferring or procuring of cash and goods was done in order to induce any person like Mr. Magiluwana to procure the return of the first respondent at the election, or to vote for the first respondent at the election. Further, while this deficiency may be overcome by para. C (e) of the petition where there is a reference to this allegation, Mr. Magiluwana refused to accept the gift.
53. While the facts establish two of the elements of the offence, two are missing and so the allegation of bribery at Waimanuga village fails to meet the test under Section 208 (a) of the Organic Law. It is incompetent and struck out.
Bribery at Kavataria village, Kiriwina Island on 1st June 2017
54. The facts pleaded at para. 2.7 (a) to (g) of the petition are sufficient to identify the first respondent through a Lagai Toposona gave, conferred or procured a property or benefit of any kind being K10,000.00 and a pig to villagers through respective committee members. Those villagers have been identified by names and are also electors, to procure the return of the first respondent in the election or vote for him. These electors are:
(a) Andrew Noel;
(b) Gibson Patterson;
(c) Toweimata Steven;
(d) Abel Motowaya;
(e) Mosibiya Motowaya,
(f) Kaniosi Mutobolu;
(g) Karaiwega Towowoda;
(h) Uribuwa Sileigau;
(i) Kabata Moyona;
(j) Kekei Walum;
(k) Sikwayobu Sinakadi;
(l) Miyavau Towowoda;
(m) Mwanabuma Toidaya;
(n) Silikatuva Kwikewa;
(o) Mwadom Yovasi;
(p) Dabaloutui Sigilitala;
(q) Monakalulu Yavasi;
(r) Keigalavalu Steven;
(s) Daniel Daniel;
(t) Luvakai Rodeda;
(u) Nelson Toposona;
(v) Poi Mokisisi;
(w) Mokeinana Mokisisi;
(x) Toiwa Benjamin;
(y) Vakota Digisasi;
(z) Mogirebuna Digilasi;
(aa) Jack Bulasa;
(bb) Bunemiga Sileigau;
(cc) Terry Towowoda;
(dd) Apa Isei;
(ee) Moroutu Ruben;
(ff) Mutala Kasigabwita; and
(gg) Mosaduna Toposona.
55. Each one of them received K20.00.
56. Then reading the petition as a whole, at para. C (b) & (e) of the petition it is alleged that the giving of cash and goods
was with the knowledge or authority of the first respondent and were done in order to induce each named elector to endeavour to procure
the return of the first respondent at the election, or vote for the first respondent at the election. The element of inducement
is present in the form of the presentation of the cash money, items and food during election period: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
57. Finally, the date and place of the alleged offence are stated. They are Kavatari village on Kiriwina Island on 1st June 2017.
58. The facts are sufficient to constitute bribery. This ground is competent.
Bribery at Debatutu village, Goodenough Island on 10th June 2017
59. There are facts pleaded at para. 2.8 (a) to (d) of the petition which identify the first respondent as the offender, secondly, the person allegedly bribed as one Jimmy Kawalugedi and one Benedict Towaiwaia, thirdly, the property or benefit of any kind given, conferred or procured as K10,000.00 or part thereof, too pigs, and bags of rice. Mr. Towaiwaia received one 10 kg bag of rice. Both men were an elector.
60. Fourthly, the element of inducement is present because it is alleged that he said amongst other things that, “If you give me, I will give you back”. Finally, the date and place of offence are stated. It is allegedly committed at Debatutu village on Goodenough Island on 10th June 2017: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
61. The facts constituting bribery are sufficient. This ground is competent.
Bribery at Eweli village, Goodenough Island on 11th June 2017
62. The facts pleaded at para. 2.9 (a) to (c) of the petition identify the first respondent as the offender, secondly, the person allegedly bribed as one Steven Ilewana who is also an elector, thirdly, the property or benefit of any kind given, conferred or procured as K10,000.00 or part thereof, materials for water supply system, music instruments for Kundu Ministry, solar lights, 5 bags of 10 kg rice, K1,000.00 for committee members, 3pigs and chainsaw.
63. There are no facts to show that the giving, conferring or procuring of cash and goods was done in order to induce any person like Mr. Ilewana to endeavour to procure the return of the first respondent at the election, or his vote as an elector at the election.
64. However, again reading the petition as a whole, this deficiency is overcome by para. C (e) of the petition where it is alleged that the giving of cash and goods was done in order to induce an elector (Mr. Ilewana) to endeavour to procure the return of the first respondent at the election, or vote for the first respondent at the election. The element of inducement is present in the form of the presentation of the cash money, items and food during election period. Whether Mr. Ilewana voted is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
65. Finally, the location and date of alleged offence are stated. They are Eweli village on Goodenough Island on 11th June 2017.
66. The facts are sufficient to constitute bribery. This ground is competent.
Bribery at Kausara village, Kiriwina Island on 28th June 2017
67. There are facts pleaded at para. 2.10 (a) (1) to (6) of the petition which identify the first respondent as the offender through one Aiden Moliola, secondly, the person allegedly bribed as one Gumyogibu Ugwerisa who is an elector, thirdly, the property or benefit of any kind given, conferred or procured as K5,00.00 or part thereof. Mr. Ugwerisa received K100.00.
68. Fourthly, the element of inducement can be seen from the statement “this is to confirm your votes to Douglas Tomuriesa”. In addition, the cash money was given at election time. It was at Kausara village on Kiriwina on 28th June 2017. Again, whether Mr. Ugwerisa voted is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
69. The facts are sufficient to constitute bribery. This ground is competent.
Bribery at Liliu village, Kiriwina on 28th June 2017
70. There are facts pleaded at para. 2.10 (b) (1) to (4) of the petition which identify the first respondent as the offender through one Jasper Mwaveda, secondly, the person allegedly bribed as one Saiguyau Tomnupolu who is an elector, thirdly, the property or benefit of any kind given, conferred or procured as K5,00.00 or part thereof. Mr. Tomnupolu received K100.00.
71. Fourthly, the element of inducement can be seen from the statement by Mr. Moliola,“this is to confirm your votes to Douglas Tomuriesa”. In addition, the cash money was given at election time. It was at Liliu village on Kiriwina on 28th June 2017. Again, whether Mr. Tomnupolu voted is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
72. The facts are sufficient to constitute bribery. This ground is competent.
Bribery at Liliu village, Kiriwina on 28th June 2017
73. There are facts pleaded at para. 2.10 (c) (1) to (3) of the petition which identify the first respondent as the offender through one Jasper Mwaveda, secondly, the person allegedly bribed as one Tomnupolu Selubulobu who is an elector, thirdly, the property or benefit of any kind given, conferred or procured as K5,00.00 or part thereof. Mr. Selubulobu received K100.00.
74. Fourthly, the element of inducement can be seen from the statement that the money was given to buy votes. In addition, the cash money was given at election time. It was at Liliu village on Kiriwina on 28th June 2017. Again, whether Mr. Selubulobu voted is a matter for evidence at trial: Isi Henry Leonard v. Gordon Wesley; cf Leonard Louma v. Douglas Tomuriesa.
75. The facts are sufficient to constitute bribery. This ground is competent.
Lack of scrutiny/Integrity of Ballot-Boxes
76. Based on the facts pleaded at para. 2.11 (a) to (j) of the petition, the allegation is that the venue of counting of votes was changed from Losuia on Kiriwina Island to Alotau town on the main land.
77. Ballot-boxes were transported by sea in a barge from Losuia to Alotau. Upon arrival at Alotau, 11 ballot-boxes had no seals on them. These ballot-boxes contained counted ballot-papers from Losuia counting centre.
78. At the wharf at Alotau, a navy officer handed out fresh seal tags and they were applied to the ballot-boxes. This is where the alleged tampering occurred which compromised the integrity of the ballot-boxes.
79. Further, even at counting at Strang Hall, Cameron Secondary School in Alotau, except for the first respondent’s scrutineers, none of the other candidates’ scrutineers were present.
80. These are very broad and vague allegations. In submissions, the Court was told that these facts show that electoral officials made errors or failed to stop the errors in terms of moving the counting venue from Losuia to Alotau, secondly, allowing ballot-papers contained in unsealed or broken sealed ballot-boxes to be counted and finally, counting them without presence of other candidates’ scrutineers.
81. The submissions by the petitioner to explain or give more details to the allegations cannot cure the deficiency in the pleadings. It should be the other way around.
82. As to the alleged error or omission in the decision to change venue of counting, material facts that should be pleaded but lacking are the procedure to follow to arrive at the decision to change venue for counting and reasons for the change of venue. If none, it must be stated.
83. As it has been pleaded, it was a unilateral decision by the Returning Officer to change venue of counting on the assumption that there is a procedure to follow to arrive at that decision and need to give reasons for the decision.
84. In relation to the unsealed or broken sealed ballot-boxes, it also suffers from the same defect. There are no facts to show that the electoral officials required sealing the ballot-boxes prior to moving them from one location to another. If they have been opened and the contents have been counted, what is required of the electoral officials to ensure that the integrity of the ballot-boxes are not compromised in prior to and during transit. Again, these facts are lacking and the present pleading assumed these facts.
85. Finally, in relation to absence of candidates’ scrutineers at counting at Alotau, it suffers from the same deficiency as the allegations on change of venue of counting and unsealed or broken sealed ballot-boxes. There are no facts in relation to the requirement of scrutineers to be present at counting and their role at counting. Then the facts must be pleaded to show that electoral officials failed to attend to these requirements and denied the scrutineers the opportunity to participate at counting. All there is, are the assumption and conclusion that scrutineers were not present at counting, thus there was no proper scrutiny.
86. To add to this, in all incidences, a critical material fact which was pointed out by the respondents in their submissions is lacking. If these alleged errors or omissions were to survive, there are no facts pleaded to show how many ballot-papers contained in the subject ballot-boxes were counted despite the integrity of the ballot-boxes being compromised and if it affected the result of the election. It may not be expressed in the exact terms as Section 218(1) of the Organic Law but facts must show it.
87. For example, no figure was cited for the affected ballot-papers and if excluded from counting, would result in the total number of votes received by the first respondent reduced and the total number of votes received by the runner-up increased: Assik Tommy Tomscoll v. Ben Sembri & Electoral Commission (2003) N2349.
88. As it stands, by these different errors or omissions by electoral officials, it is assumed that they affected the result of the election. This is unfair to the respondents and to expect them to work out how it was so.
89. This ground is incompetent and struck out.
Conclusion
90. Four of the fourteen allegations of bribery have been found to be incompetent and struck out. The remainder have been found to be competent and will proceed to trial. They have sufficient information to assist and guide the respondents and the Court to identify the issue(s) in contention between the parties and ready to address at trial. The allegation of errors or omissions has been found to be incompetent and that is the end of it.
91. Before I close, in submissions, the second respondent raised a further ground of objection without notice. It was based on the failure by the petitioner to file his security deposit of K5,000.00 with the petition, as required by Section 209 of the Organic Law.
92. This ground did not form part of the Notice of Objection to Competency filed by the second respondent and came as a belated one. It may explain why it did not draw any counter submission from the petitioner.
93. Nonetheless, it is unmeritorious because according to the Court file records, the petition was filed on 30th August 2017. Produced with it is evidence of payment of the security deposit in the form of a BSP Bank Deposit Form for that sum dated 30th August 2017.
94. It satisfies the requirement under Section 209 of the Organic Law and Rule 7 of the National Court Election Petition Rules, 1017. If it was an issue for the second respondent, a request to the petitioner to serve or produce a copy of the payment receipt would have resolved it. Nothing further needs to be said on this ground.
Order
3. Costs of the objections will be in the petition.
__________________________________________________________
Divenis Lawyers : Lawyers for Petitioner
Baniyamai Lawyers : Lawyers for First Respondent
Harvey Nii Lawyers : Lawyers for Second Respondent
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