N10173
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 60 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
OKAPA OPEN ELECTORATE

SIMEON KIBETO
Petitioner

V

SAKI HACKY SOLOMA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Berrigan J
2023: 21st, 24th March

ELECTION PETITION – OBJECTION TO COMPETENCY OF THE PETITION – Organic Law on National and Local-level Government Elections – S 208(a) (requisites of petition) – s 215(3)(a) (voiding for illegal practices) - whether facts relied on to invalidate the election sufficiently set out.

The respondents object to the competency of an election petition containing one ground of bribery relied upon to challenge the election of the first respondent pursuant to s 215(3)(a) of the Organic Law on National and Local-level Government Elections (the Organic Law). The petition seeks to void the election of the first respondent on the basis that bribery was committed by a person other than the first respondent and with his knowledge or authority.  The respondents contend that the petition is incompetent for failing to comply with s 208(a) of the Organic Law by failing to set out for the purposes of s215(3)(a) of the Organic Law both the facts relied upon to show that the result of the election was likely to be affected by the alleged bribery and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.  

Held: 

(1)	It is not necessary for a petition alleging bribery to plead the additional matters in s 215(3) of the Organic Law unless it is alleged that the bribery was committed by a person other than the candidate and without the candidate’s knowledge or authority:  Fairweather v Singirok (2013) SC1293. 

(2)	The petition expressly states that the bribery was committed by a person other than the first respondent but with his knowledge or authority. The petition gives sufficient details of the date and place of the alleged bribery, the names of the person involved, the names of the person allegedly bribed, that they were an elector, that the bribe was offered with the intention of causing or inducing the elector to vote for the first respondent, who was a candidate at the time, together with the factual basis upon which it is alleged that the bribery was committed with the first respondent’s knowledge or authority. It is not necessary in those circumstances for the petitioner to plead or prove the additional matters set out in s 215(3) of the Organic Law: Fairweather, Hagahuno v Tuke (2020) SC2018 applied.

The objection to the competency of the petition is refused. 

Cases Cited:
Fairweather v Singirok (2013) SC1293 
Hagahuno v Tuke (2020) SC2018
Amet v Yama (2010) SC1064
Okuk v Nilkare [1983] PNGLR 28
Eoe v Maipakai (2013) N5066 
William Powi v Pastor Bernard Kaku and Electoral Commission (2022) SC2290 
Pokaya v Marapa (2018) N7152 
Turai Elemi v Ano Pala and the Electoral Commission (2023) N10134
Paru Aihi v Peter Namea Isoaimo and the Electoral Commission (2023) N10156 
Karo v Kidu [1997] PNGLR 20 
Kopaol v Embel (2003) SC727
Diau v Gubag (2004) SC775
Isoaimo v Aihi (2012) N4921

References Cited:
Sections 208, 215 of the Organic Law on National and Local-level Government Elections
Section 103 of the Criminal Code

Counsel:
C Copeland, for the Petitioner
C Mende, for the first Respondent
L Tangua, for the second Respondent

24th March, 2023

1.	BERRIGAN J: This is a ruling on an objection to the competency of an election petition.  The petition was filed by the petitioner and unsuccessful candidate, Simeon Kibeto, disputing the election of the first respondent, Saki Hacky Soloma, as the successful candidate for the Okapa Open Electorate. 

2.	The petitioner seeks declarations that the election is absolutely void and that the first respondent was not duly elected, together with an order that the Electoral Commission, the second respondent, conduct a by-election.  

THE PETITION 

3.	The petition filed on 12 September 2022 contains two grounds. The second ground was withdrawn, with leave, over objection.  

4.	The remaining ground, Ground 1, alleges bribery:  

A person other than the first respondent, namely Hayes Ane, with the knowledge and authority of the first respondent, on 22 July 2022, committed an illegal practice, namely bribery, within section 215(3)(a) of the Organic Law on National and Local-level Government Elections. The conduct relied on is set out in the Facts above, sub heading Bribery Case and constitutes the offence of bribery under section 103(1)(d) of the Criminal Code. The facts relied on are paragraphs 1 to 17 above.

5.	The facts relied on to establish the allegation are set out at [6] to [18] of the petition:

Hundreds of people attended the campaign gathering.  Whilst Jericho Auyana was there, food and money were distributed by First respondent and his people from Ward 09, East Okapa LLG, by calling out the ward names and presenting them food and money.

A male leader, Hayes Ane, from Oradatu Village, Ward 9, West Okapa LLG with the help of some of First respondent’s electoral officers took part in the distribution.

At around 3.00pm to 5.00pm, the announcement was made for Ward 02, East Okapa LLG, to come forward and receive food and money.  Since Jericho was present at the location, he was told to collect two lamb flaps cartons and K1, 000.

All the while, whilst the event was taking place, First respondent was present, witnessed the whole event and was fully aware of the distributions of food and the cash moneys.

Hayes Ane in the presence of First respondent gave Jericho Auyana K1, 000 and said to him, ‘yu mas vote lo Saki’.  Immediately after the K1, 000 was given to Jericho Auyana the First respondent shook hands with Jericho Auyana and told him, ‘mi save olsem yu gat candidate pinis tasol yu kisim money pinis, yu mas givim tu na tri vote lo me’.

Jericho Auyana understood that the first respondent said, he, the first respondent knew that Jericho Auyana supported another candidate but because he, Jericho Auyana, had received the K1, 000, he should cast his second and third votes for first respondent.

Jericho Auyana, understood that by taking the K1, 000 and two lamb flaps cartons he needed to vote for the first respondent.

Hayes Ane gave Jericho Auyana the K1, 000 to induce him to vote for the First Respondent, and this was done with the knowledge and authority of the First Respondent.

Whilst Jericho Auyana was there in Yakaraisa village, he saw many people in attendance, including Kalabe Yabaimanta, Kepi Anako, Enos Patrick Osborne, Zaukave Yokom, Moses Mosko, Vincent Amai, and Chris Pito, who were all from various wards in East Okapa LLG present at Yakaraisa on  that day.

The above said conduct of the first respondent’s agent, Hayes Ane (paragraph 6) in giving the K1, 000 and two lamb flaps cartons to Jericho Auyana, in the circumstances and accompanied by the words as set above, constituted bribery within the meaning of section 103(d) of the Criminal Code (Schedule 1, Criminal Code Act Chapter 262).

The said bribery was committed by Hayes Ane with the First Respondent’s knowledge and authority pursuant to section 215 (3)(a) of the Organic Law on National and Local-level Government Elections.

OBJECTION TO COMPETENCY OF PETITION

6.	An objection to competency was filed by the second respondent, the Electoral Commission, on 10 October 2022.  An amended notice was filed on 20 March 2023 which is in essentially the same terms. (The notice was amended only to deal with Ground 2, which has since been withdrawn.) 

7.	The second respondent objects to the petition on the basis that it does not meet the requirements of s 208 (requisites of petition) of the Organic Law, which states (emphasis mine):

A petition shall—

(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

8.	In particular, the second respondent contends that the petition is incompetent for the following reasons:

(1)	It does not include any specific pleadings of facts required under s215(3) of the Organic Law to show that the results were likely to be affected, and of which same is contrary to s 208(a) of the Organic Law.

(2)	It does not include any specific pleadings of facts required under s215(3) of the Organic Law that it is just to declare the election void contrary to s 208(a) of the Organic Law.

9.	The grounds of objection are supported by the first respondent, who also made oral and written submissions. 

SUBMISSIONS

Second Respondent

10.	The petition is brought under s 215(3)(a) of the Organic Law. The second respondent submits that according to the Supreme Court decision of Amet v Yama (2010) SC1064 a petition based on an allegation of bribery under s 215(3)(a) or (b) must also plead the material facts to show how the illegal practice was likely to affect the result and that it is just that the election should be voided. See [50] and [51]:

“Section 215 (3)(a) further requires that the court must be satisfied, the result of the election was likely to be affected, and that it is just that the candidate should be declared not duly elected or that the election should be declared void. This is a stand alone provision a breach of which may result in the voiding of an election or return: Okuk v Nilkare [1983] PNGLR, 28.

So, it must be pleaded that the illegal practice or conduct of a supporter, agent or servant with his knowledge or authority was likely to affect the election results. It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected.” 

11.	The second respondent further relies on the comments of Cannings J in Eoe v Maipakai (2013) N5066 in which he said at [43] in applying Amet v Yama, that:

“In addition it must be pleaded how the result was likely to be affected and why it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

12.	It is submitted that in the present case the petition fails to plead material and relevant facts to show that the result of the election was likely to be affected and that it is just that the election should be voided. Crucial and material facts like the total number of votes scored by the petitioner, the winning margin, and the vote difference between the winning candidate and the runner up, who is not named in the petition, were not pleaded, in accordance with s 208(a) of the Organic Law.

First Respondent
 
13.	The first respondent supports the objection for the reasons outlined and having regard to the authorities referred to above.  He submits that the two additional requirements are integral to s 215 of the Organic Law and failure to plead them is fatal.

14.	He also submits that the recent decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018 does not water down the requirements of ss 208 and 209 of the Organic Law.  Section 208 requires proper pleading and in this case there is no pleading.  

15.	In support of this submission, he relies on the decision of Kandakasi J, with whom Yagi J concurred, in William Powi v Pastor Bernard Kaku and Electoral Commission (2022) SC2290 in which it was held that:

“It is settled law that the duty is always on the parties to plead their respective cases, where a plaintiff or a petitioner pleads the basis for his or her claim and a defendant or respondent responds to what is pleaded against him or her. A court or a judge as an independent umpire, cannot enter the field of play and go outside the cause and defence and or response pleaded by the parties unless the parties themselves mutually invite the court to do so. This is most basic yet a fundamental component or feature in our system of justice: Adopted and applied The State v. Transferees (2015) SC1451 and The State v. Tamate & Ors (2021) SC2132.”

Petitioner
	
16.	The petitioner relies on the decision of the Supreme Court in Fairweather v Singirok (2013) SC1293 which held that a petition that alleges that bribery or undue influence was committed by a person other than the candidate does not have to plead under Section 215(3) of the Organic Law 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.    

17.	In essence the petitioner submits that in this case it is alleged that the bribery was done with the knowledge and authority of the first respondent and it is therefore not necessary for him to plead or prove the two additional matters at the end of s 215(3) of the Organic Law.

18.	In this regard the petitioner further relies on the decision of Cannings J in Pokaya v Marape (2018) N7152 in which he said at [35] and [36]:

In Fairweather v Singirok the Court said that it is only when the alleged bribery, undue influence or other illegal practice is committed by a person other than the successful candidate without the knowledge or authority of the successful candidate, that it is necessary to plead and prove the two matters in the proviso at the end of Section 215(3). If the illegal practice is committed with the knowledge or authority of the successful candidate it is not necessary to prove the two matters in the proviso at the end of Section 215(3).

This means that, if it is adequately pleaded that the illegal practice was committed with the knowledge or authority of the successful candidate it is not necessary to plead the two matters in the proviso at the end of Section 215(3). However, if it is not adequately pleaded that the illegal practice was committed with the knowledge or authority of the successful candidate – which is the case in ground 2 of this petition – it is necessary to plead the two matters in the proviso at the end of Section 215(3).”

19.	See also Turai Elemi v Ano Pala and the Electoral Commission (2023) N10134 and Paru Aihi v Peter Namea Isoaimo and the Electoral Commission (2023) N10156 at [37] and [38]. 

CONSIDERATION

20.	In summary, it is contended that the petition is incompetent for failing to comply with s 208(a) of the Organic Law by failing to set out for the purposes of s 215(3)(a) of the Organic Law both the facts relied upon to show that the result of the election was likely to be affected by the alleged bribery and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

21.	In determining the objection to competency, the Court shall be guided by the substantial merits and good conscience of the case without regard to legal forms or technicalities in accordance with s 217 of the Organic Law, which applies at all stages of an election petition proceeding: Hagahuno v Tuke (2020) SC2018.

22.	Whilst it might be preferable, it is not necessary for a petitioner to expressly state the operative provision under s 215 of the Organic Law.  What is required under s 208(a) of the Organic Law is that the petition set out the facts relied upon to invalidate the election or return.   That is for obvious reasons.  The Organic Law envisages that a person other than a lawyer may file a petition challenging an election: see s 222 of the Organic Law. See also Hagahuno at [26]. 

23.	Section 215 (voiding petition for illegal practices) of the Organic Law states (emphasis mine):

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

(2) 	A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) 	The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a)	on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b)	on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

24.	The effect of s 215 was considered in detail by the Supreme Court in Fairweather v Singirok (2013) SC1293, Mogish, Cannings, Poole, JJ. 

25.	The Court unanimously held that if the ground of a petition alleges that an offence of bribery or undue influence was committed by a person other than the candidate with the knowledge or authority of the candidate, it is not necessary to plead the additional matters at the end of s 215(3) of the Organic Law, namely 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: Fairweather v Singirok, supra at [19] and [20], read together. 

26.	In considering the operation of s 215 it set out the six different scenarios envisaged by s 215 at [21] to [22]:

A.	bribery or undue influence committed or attempted by a candidate: if he is the successful candidate, s 215(1) applies: his election shall be declared void;
B.	bribery or undue influence committed or attempted by someone other than the candidate with the knowledge or authority of the candidate: his election may be declared void without the necessity of pleading or proving the two matters set out at the end of Section 215(3);
C.	bribery or undue influence committed or attempted by someone other than the candidate without the knowledge or authority of the candidate: this is the scenario expressly provided for by Section 215(3)(a): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;
D.	illegal practice other than actual or attempted bribery or undue influence committed by a candidate: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;
E.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate with the candidate's knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;
F.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate without the candidate's knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven.
Scenario B is the scenario that is being alleged by grounds 1(a), 2 and 7 of the petition. It is a scenario that is not expressly included in either Sections 215(3)(a) or (b) of the Organic Law. It follows, in our view, that the two matters set out at the end of Section 215(3) do not apply to it. Mr Sheppard suggested that this would be an absurd interpretation of Section 215(3) as it would amount to reading in to Section 215 matters that are not expressly provided for. We do not agree. Interpreting the requirements of scenario B in the above manner is entirely consistent with the scheme of Section 215, which encompasses six separate scenarios and treats as the most serious the actual or attempted commission of an offence of bribery or undue influence by a candidate. The next most serious scenario is where such an offence is actually or attempted to be committed by some other person with the candidate's knowledge or authority.”
27.	As the Court observed a similar approach was taken by Injia J in Karo v Kidu [1997] PNGLR 20:

“The effect of Section 215(1) & (3) is as follows. An election will be voided for illegal practices of bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candidate. In such case, it is not necessary for the petitioner to show that the result of the election was likely to be affected. Likewise, under s 215(3)(a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate, in which case, it is also not necessary for the petitioner to show the likelihood of the election being affected. An election may be declared void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the knowledge or other authority of the winning candidate provided the Court is satisfied that the result of the election was likely to be affected.”
 
28.	The Supreme Court expressly considered the approach taken in Amet v Yama and declined to follow it, saying at [24]:

“We consider that that is the correct way of interpreting Section 215, subject to our noting that it is also not necessary, in the situation described by his Honour, which accords with what we have described as scenario B, for the petitioner to show that it is "just" that the candidate be declared not to be duly elected etc. We adopt the reasoning of Sir Salamo Injia in Karo v Kidu and decline to follow the different approach that appears to be taken in Amet v Yama, which we respectfully consider is not consistent with the words or intention of Section 215.”

29.	In my view I am bound by the more recent decision of Fairweather v Singirok which gave detailed consideration to the interpretation of s 215 and expressly declined to follow Amet v Yama. Respectfully, I also prefer it.  

30.	In my view, s 215(3)(a) makes plain that the Organic Law does not tolerate bribery whether committed by a candidate or with his knowledge or authority.  Thus, it is not necessary for a petitioner to prove that a candidate committed bribery in accordance with criminal law principles, in particular, the requirements of s 7 of the Criminal Code, it is sufficient that the bribery takes place with their knowledge or authority.  (Of course, the fact that the candidate knew of, or authorised, the offence might well constitute commission pursuant to s 7 of the Criminal Code depending on the circumstances but s 215(3)(a) avoids the need for such considerations.) Or in other words s 215(3)(a) extends the circumstances in which an election will be automatically voided from those where the candidate might strictly be found to “commit” an offence of bribery for the purposes of s 215(1) to those where the offence is committed by someone else but with the candidate’s knowledge or authority. That is consistent with the decision in Fairweather. See Aihi v Isoaimo (2023) N10156 at [37] and [38].      

31.	In summary, it is not necessary for a petition alleging bribery to plead the additional matters in s 215(3) of the Organic Law unless it is alleged that the bribery was committed by a person other than the candidate and without the candidate’s knowledge or authority. 

32.	Returning to the present case, the petition expressly states that the bribery was committed by a person other than the candidate but with the knowledge or authority of the first respondent: 

“The said bribery was committed by Hayes Ane with the First Respondent’s knowledge and authority pursuant to section 215 (3)(a) of the Organic Law on National and Local-level Government Elections.”

33.	It also sets out the facts upon which the petitioner relies to establish the allegation of bribery by Hayes Ane, together with the facts upon which he relies to establish that the bribery, whilst committed by a person other than the candidate, was committed with the candidate’s knowledge or authority. 

34.	It is settled that “bribery” in s 215 of the Organic Law means one of the offences of bribery created by s 103 of the Criminal Code: Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Isoaimo v Aihi (2012) N4921 at [8].

35.	Section 103 of the Criminal Code provides:
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.
36.	It also appears now settled that, as to the facts that are to be stated in support of an allegation of bribery, it is necessary only that the petition state the essential elements of the offence, including the date of commission of the alleged offence, the name of the offender, the name of the person bribed, that the person bribed was an elector, that the bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate, and that the winning candidate was in fact a candidate at the time of the alleged offence:  Hagahuno v Tuke (2020) SC2018. 

37.	In this case the petition gives sufficient details of the date and place of the alleged bribery, the persons involved, and sufficiently alleges that the bribery was committed with the knowledge or authority of the first respondent.  For completeness I note that there is no dispute that the first respondent was a candidate at the relevant time.  This is pleaded in the introductory paragraphs of the petition. 

38.	In summary, it is alleged that on 22 June 2022, a person, Hayes Anes, gave K1000 and two cartons of lamb flaps to Jericho Auyana, an elector, and told him he must vote for the first respondent, with the intention of causing or inducing him to vote for the first respondent, in particular that he advanced or paid money to Jericho Auyuna with the intent that it be applied for certain prescribed purposes, contrary to s 103(d) of the Criminal Code.  Furthermore, that in the circumstances alleged, the bribery was done with the knowledge and authority of the first respondent, including that it was done in his immediate presence, and immediately following which the first respondent also told Jericho Auyana that he must vote for him. 

39.	In the circumstances the specific objections to Ground 1 of the petition are refused.  It is not necessary for the petition to plead or prove the additional matters set out in s 215(3) of the Organic Law: Fairweather, supra applied. 

40.	Before concluding, I note two important principles outlined in Hagahuno, reiterated in Powi v Kaku, supra.  The first is that “the requirement to plead facts does not include a requirement to plead the relevant and applicable law”: at [26]. The second is that if the facts disclose a known ground for voiding an election the petition should progress to trial: Hagahuno at [28] (emphasis mine):

“Challenging an election petition on the basis of a lack of proper pleadings and or a petition not being in the correct form comes under “legal forms or technicalities” which in my humble view, is expressly prohibited or excluded from any consideration by s. 217. Of course, this does not save a petition which fails to state at all any fact under s. 208 (a) that discloses a valid ground to void an election outcome or fails completely to meet any of the other requirements of s. 208 (b) to (e). For clarity, may I point out that, however hopelessly pleaded a petition might be, if the facts stated disclose a known ground for voiding an election and the petition on the face of it meets all the other requirements under s. 208 and s. 209, it would be sufficient for the purposes of s. 210, and that such a petition should be allowed to progress to trial without delay. Any argument against a petition of this type as being incompetent would constitute a technical issue, which is prohibited by s. 217.”

41.	These principles are relevant here not because the petition is “hopelessly pleaded” but because quite apart from the offence expressly alleged under s 103(d) of the Criminal Code, the facts clearly allege offences of bribery by Hayes Anes under s 103(a) such that Hayes Anes gave, to Jericho Auyana, property or benefit: on account of something to be done, by him, namely voting for the first respondent, at the election, in his capacity as an elector; or, in order to induce him, to endeavour to procure the return of the first respondent at the election, by voting for him, contrary to s 103(a)(i) and (iii) of the Criminal Code, respectively.   

42.	In addition, again whilst not expressly stated, the facts contained in the petition allege, directly and by inference, that the first respondent himself committed offences of bribery for the purpose of s 215(1) of the Organic Law, in particular, by aiding, counselling or procuring Hayes Anes to commit the alleged offences, applying s 7(b),(c) and (d) of the Criminal Code, and furthermore, by advancing or paying money with the intent that it be applied for the purposes of s 103(a)(i) and (iii), contrary to s 103(d) of the Criminal Code.   

43.	I raise these matters for two reasons. Firstly, whilst not necessary to my decision above, regardless of whether the petitioner proceeded expressly under s 215(1) or 215(3)(a) of the Organic Law it was not necessary for the petition, on the facts alleged, to plead the additional matters under s 215.  Secondly, it may be necessary to consider the additional offences arising from the alleged facts on the trial.

44.	In conclusion, the facts alleged are sufficient for the purposes of the competency of the petition. The alleged facts, if proven, are capable of constituting an offence or offences of bribery under s 103 of the Criminal Code: Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Isoaimo v Aihi (2012) N4921. The petitioner has been given sufficient notice of the facts alleged. Whether or not the evidence is sufficient to establish the allegations to the requisite standard, is a separate question, and is a matter for trial. 

45.	As to the question of costs, Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. 

46.	The second respondent’s objections have been unsuccessful.  The first respondent supported the objections and made full submissions.  In the circumstances the respondents will share the cost of the objection to competency. 

47.	I make the following orders.

ORDERS
(1)	The objection to the competency of the petition is refused.
(2)	The first and second respondents shall pay the petitioner’s costs of the objections to competency, except for the adjournment on 20 March 2023, on a party-party basis, which shall, if not agreed, be taxed.
(3)	The respondents will bear their own costs of the objection to competency. 
(4)	The petition shall proceed to trial on Ground 1 of the petition in accordance with directions of the Court.

_____________________________________________________________
Simpson Lawyers: Lawyers for the Petitioner	
Wantok Legal Group: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent