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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 42 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE NAKANAI OPEN ELECTORATE
BETWEEN
FRANCIS MARUS
Petitioner
AND
HON. FRANCIS GALIA MANEKE, MP
First Respondent
AND
ELECTORAL COMMISSION
Second Respondent
Kimbe: Makail, J
2024: 22nd, 23rd, 24th & 28th February
ELECTION PETITION – No case submission – Grounds of – Lack of evidence establishing elements of offence of bribery – Multiple allegations of bribery – Elector – Name of elector not on Common Roll – Inducement of elector - Evidence of – Giving of cash of K5,000.00 – Organic Law on National and Local-level Government Elections – Sections 3 & 215 – Criminal Code – Sections103(a)(iii) & 103(d)
Cases Cited:
Desmond Baira v. Kilroy Genia (1998) SC579
Perry Zeipi v. Gabia Gagarimabu (1999) SCR No. 5 of 1999
Peter Isoaimo v. Paru Aihi (2012) N4921
Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (2018) N7120
William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018
Paru Aihi v. Peter Isoaimo (2013) SC1276
Daniel Bali Tulapi v. James Lagea (2013) N5323
Simon Kaivi v. Dr Michael Tongamp (2012) N4921
Don Pomb Polye v. Alfred Luke Manase (2018) N7555
Delilah Gore v. Henry Jons Amuli & Electoral Commission (2023) N10114
Henry Jons Amuli v. Delilah Gore & Electoral Commission (2023) SC2496
Counsel:
Mr G Kult, for Petitioner
Mr S Ranewa, for First Respondent
Mr W Pep, for Second Respondent
RULING ON NO CASE SUBMISSION
28th February 2024
1. MAKAIL, J: This is a petition where the petitioner seeks an order to declare the election of the first respondent as the inaugural member for the newly created electorate of Nakanai Open in West New Britain Province, void on the grounds of bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code and Section 215 of the Organic Law on National and Local-level Government Elections (“Organic Law”).
Allegations of Bribery
2. There are eleven allegations of bribery. They can be divided into two parts:
(a) Bribery committed by the first respondent in person; and
(b) Bribery committed by the first respondent through a third person and with the knowledge or authority of the first respondent.
Jurisdiction of Court
3. It is common ground between the parties that it is open to the defence to make a no case submission at the end of the petitioner’s case. It is a discretionary matter and the Court will need to examine the evidence on the material aspect of the petitioner’s case and decide “.........if the [Court] considers that there is no evidence on the material aspect of the petitioner’s case then [it] has the discretion to stop the case there without proceeding further.” see Desmond Baira v. Kilroy Genia (1998) SC579 and Perry Zeipi v. Gabia Gagarimabu (1999) SCR No. 5 of 1999. At this stage the Court is not required to weigh up the evidence and decide which evidence to accept. That task will be undertaken if the case progresses further, and all evidence are received.
Offence of Bribery
4. The eleven allegations of bribery are based on:
(a) Section 103(a)(iii) of the Criminal Code, and
(b) Section 103(d) of the Criminal Code.
5. Section 103(a)(iii) is a separate offence of bribery and Section 103(d) is also a separate offence of bribery under the Criminal Code. Each offence may be established on the same facts or from different set of facts.
Elements of Offence of Bribery under Section 103(a)(iii)
6. To prove an offence of bribery under Section 103(a)(iii), it is necessary to prove the following elements, a person:
See Peter Isoaimo v. Paru Aihi (2012) N4921 per Cannings J at [10].
Elements of Offence of Bribery under Section 103(d)
7. In the case of bribery under Section 103(d) it is necessary to prove the following elements, a person:
See Peter Isoaimo v. Paru Aihi (supra).
8. Additional material facts that must be proved in the case of an offence of bribery under Section 103(a)(iii) are:
See William Hagahuno v. Johnson Tuke & Electoral Commission (2020) SC2018, per Kandakasi DCJ, Paru Aihi v. Peter Isoaimo (2013) SC1276, Daniel Bali Tulapi v. James Lagea (2013) N5323 and Simon Kaivi v. Dr Michael Tongamp (2012) N4921.
9. Furthermore, the offence of bribery is a ground for voiding of an election 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 bribery or 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 bot 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 with 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.”
10. In terms of proof I uphold the petitioner’s submission that it is not necessary to lead evidence from the person allegedly bribed or received any property or benefit of any kind, eg, money from the successful candidate or through a third person and with the successful candidate’s knowledge or authority. If there is evidence from other persons identifying him, it suffices: Don Pomb Polye v. Alfred Luke Manase (2018) N7555 at [8].
11. A third person may give evidence by affidavit or orally and it is necessary in the case of the evidence of the person allegedly bribed, the evidence must be clear and unequivocal and must not be contradictory or inconsistent or hearsay, etc, to be reliable.
Petitioner’s Evidence
12. In support of the allegations of bribery, the petitioner tendered the following:
(a) Affidavit of Rolland Paponurea sworn 01 November 2022 and filed 11 November 2022 – Exhibit “P1”.
(b) Writ Return on 30 July 2022 – Exhibit “P2”.
(c) National Gazette No G347 of 6 May 2022 – Exhibit “P3”.
(d) National Gazette No G528 OF 30 June 2022 – Exhibit “P4”.
(e) Affidavit of Michael Yomu sworn 02 October 2022 and filed 28 October 2022 – Exhibit “P5”.
(f) Affidavit of Tony Akui sworn 02 October 2022 and filed 28 October 2022 – Exhibit “P6”.
(g) Affidavit of Anton Denis sworn 02 October 2022 and filed 28 October 2022 – Exhibit “P7”.
(h) Affidavit of Robert Wani sworn 02 October 2022 and filed 28 October 2022 – Exhibit “P8”.
(i) Affidavit of Malasa Anis sworn 02 October 2022 and filed 28 October 2022 – Exhibit “P9”.
Allegation No 1 – Bribery by First Respondent of Rusiat Iara of K5,000.00
13. In short, the allegation is on 28 June 2022 at around 10:00 pm the first respondent gave K5,000.00 to Rusiat Iara at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP.
14. The offence of bribery under Section 103(a)(iii) is in two parts: first, the first respondent gave Rusiat Iara who is a campaign coordinator of the first respondent and an elector, K5,000.00 in cash with the intention of inducing Rusiat Iara to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections. The second part is that the first respondent gave K5,000.00 to Rusiat Iara with the intention to induce him to vote for the first respondent.
15. The person who was alleged to have received K5,000.00 from the first respondent did not give evidence. This person is Rusiat Iara. Instead, the petitioner called Tony Akui. Tony Akui sworn an affidavit which was tendered as exhibit “P6”. Tony Akui deposes that he was present at the shelter beside Rusiat Iara’s house when the first respondent arrived. He was accompanied by the Provincial Police Commander (“PPC”) John Iara and Danny Nanua. It was on the night of 28 June 2022 at around 10 o’clock.
16. What he does not depose to is if he saw the first respondent give K5,000.00 to Rusiat Iara. The act of ‘giving’ is one of the elements of the offence of bribery under Section 103(a)(iii). Secondly, ‘any property’ or ‘benefit of any kind’ is another element of the offence of bribery under Section 103(a)(iii).
17. Where Tony Akui does not depose that he saw with his own eyes the first respondent giving K5,000.00 to Rusiat Iara that night, the evidence to prove the element of ‘giving’ and the element of ‘any property’ or ‘benefit of any kind’ in this case, K5,000.00 is lacking or missing.
18. The petitioner relies on the statement at paragraph 13 of the affidavit of Tony Akui (exhibit “P6”) and submits that based on this statement it is sufficient to infer that Rusiat Iara received K5,000.00 from the first respondent. The statement which was quoted in Tok Pidgin and reproduced hereunder was what Rusiat Iara was said to have uttered:
“dipla 5 thousand na displa moni upla kisim em blo Manake, so tingim em lo 1 or tigim em lo 2................5 thousand em stap em bai mipla gim lo ol youths stap lo lotu na ol mangi stap, na ol line so ol bai tingim Maneke lo vote.”
19. Be that as it may, this statement is a supposition. In any case, it goes to prove the next element of the offence of bribery which is inducement of ‘any person’ in this case, Rusiat Iara to procure the return of any person (the first respondent) or the vote of an elector at an election. But before considering the evidence on the element of inducement, there is no evidence of the giving of K5,000.00 to Rusiat Iara by the first respondent. The lack of evidence to prove the giving of K5,000.00 to Rusiat Iara by the first respondent is sufficient to uphold the no case submission and dismiss Allegation No 1.
20. However, as the second part of the allegation of bribery is that the K5,000.00 was given to induce Rusiat Iara to vote for the first respondent, the further material fact that must be proved is that Rusiat Iara is an elector under Section 103(a)(iii). Tony Akui did not say that Rusiat Iara is an elector and that his name is on the Common Roll for Kavui. The Common Roll for Kavui may be found at Annexure “B3” to the affidavit of Rolland Paponurea (exhibit “P1”). At page 14 of 52 it bears a name “Iara Rusiat Richard” and date of birth of 26 July 1971. Tony Akui did not depose in his affidavit that ‘Rusiat Iara’ is the same person as ‘Iara Rusiat Richard’ and it is not open to him or the petitioner to assume the name on the Common Roll refers to the same person. Make no mistake about this. The onus of proof is on the petitioner to prove this material fact and it is not the task of the defence to improve the petitioner’s case if it were called to give evidence to clarify the identity of Rusiat Iara on the Common Roll.
21. Section 3 of the Organic Law states “elector means a person whose name appears in a Roll as an elector.” It was also held that it must be proved that the person who was bribed was an elector: see Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (2018) N7120.
22. All in all, reading the affidavit of Tony Akui (exhibit “P6”) and the Common Roll in Exhibit “P1”, I am not satisfied that there is evidence that Rusiat Iara is an elector. For the foregoing reasons, I uphold the no case submission and dismiss Allegation No 1.
Allegation No 2 – Bribery by First Respondent of Rusiat Iara to bribe other electors
23. It is the same allegation as Allegation No 1 in that, on 28 June 2022 at around 10:00 pm the first respondent gave K5,000.00 to Rusiat Iara at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP. However, this time Rusiat Iara would apply the money for the purpose of inducing electors of the Nakanai Open Electorate to procure the return of the first respondent at the 2022 National General Elections. The persons alleged to have been bribed by Rusiat Iara are:
Windu.
Anna Wagi.
24. As I have said in the Ruling on the first respondent’s objection to competency, the drafting of the allegations in the petition could have been better to allow for coherency and comprehension because the allegation against bribery of each named person/identified constitutes an offence of bribery under Section 103(a)(iii) of the Criminal Code.
25. As I said in the Ruling on the first respondent’s objection to competency, the drafting of this allegation could have been better to allow for coherency and comprehension because the allegation of bribery of each named person/identified, if proved, constitutes an offence of bribery under Section 103(a)(iii) of the Criminal Code. I pointed it out at [188] to [189] of the judgment in William Hagahuno v. Johnson Tuke (supra) in a case where multiple persons were alleged to have been bribed but pleaded in one allegation of bribery.
26. Except for Tony Akui and Robert Wani, the rest of the persons named/identified in the above-mentioned paragraphs of the petition did not file affidavits. Tony Akui filed an affidavit (exhibit “P6”). Robert Wani also filed an affidavit (exhibit “P7”). Each were cross-examined by the first respondent’s counsel.
27. In relation to Allegation No 2, I uphold the first respondent’s submission that it is a very specific allegation, in that, Rusiat Iara used the money in the sum of K5,000.00 given to him by the first respondent with the intention to apply it to induce other electors. It should also be pointed out that the allegation is not that Rusiat Iara used his own money in the sum of K5,000.00 with the intention that he would apply it for the purpose of inducing electors of the Nakanai Open Electorate to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections and/or to vote for the first respondent. It follows that evidence led by the petitioner must be consistent or in line with the pleaded allegation.
28. In support of the pleaded allegation at paragraph 13 of the petition, the persons named/identified as electors are:
1. Robert Wani.
2. Belinda Wani.
3. Anna Anis.
4. Rolinda Wani.
29. As I have found in Allegation No 1, Tony Akui did not see the first respondent give K5,000.00 to Rusiat Iara. Apart from Tony Akui, the petitioner called Anton Denis. Anton Denis filed an affidavit (exhibit “P7”) and was cross examined by counsel for the first respondent. I have read the affidavit and find that he also did not see with his own eyes the first respondent giving K5,000.00 to Rusiat Iara on the night of 28 June 2022. On the other hand, the statement at paragraph 9 of his affidavit shows that it was the first respondent who gave K100.00 to him. Paragraph 9 reads:
“After about 40 minutes to an hour, I then saw the First Respondent stand up. I was of the view that he was about to leave so I walked over to the shelter where the member was to shake his lands before he left. When I entered the shelter, I walked over to shake his hands, he reached out with a K100.00 note in his hand to shake my hand as well as hand me the K100 note.......”
30. In my view, this statement is relevant to a specific and separate allegation that the first respondent gave K100.00 to Anton Denis with the intention to induce him to endeavour to procure the return of the first respondent for the Nakanai Open Electorate or to vote for the first respondent. This is not the allegation that has been pleaded at paragraph 13 of the petition. It may be taken up at paragraph 11 of the petition where Anton Denis may be one of the electors “The First Respondent also handed K100 cash to each elector around the church ground, including little children.”
31. The petitioner also called Malasa Anis. Malasa Anis filed an affidavit which was tendered as exhibit “P9” and was cross-examined by counsel for the first respondent. I have read his affidavit. He deposes at paragraph 8 of the affidavit of talking with Fabian Soni and Junior Fidelis Hairi. They told him that they received K100.00 note each from Rusiat Iara. At paragraph 10, de deposes that a Bare Apa told him that the first respondent gave K5,000.00 to Rusiat Iara at the meeting at Kavui.
32. If the petitioner seeks to rely on the statement made by Bare Apa and conveyed by Malasa Anis to establish the fact that the first respondent gave K5,000.00 to Rusiat Iara, it is hearsay and inadmissible. It will not be accepted to determine the issue at hand.
33. That said, as for Allegation No 2, the evidence of Tony Akui and Anton Denis fall short of establishing that the first defendant gave K5,000.00 cash to Rusiat Iara. It follows that the evidence does not establish the element of ‘giving’ and the element of ‘any property’ or ‘benefit of any kind’ under Section 103(a)(iii) of the Criminal Code.
34. In relation to the allegation of bribery under Section 103(d) of the Criminal Code in Allegation No 2, it is not clear from the petitioner’s submission what it entails and how he will prove this allegation. However, it appears that based on paragraph 9 of the petitioner’s written submissions that “The First Respondent gave K5000 cash to Rusiat Iara for the purpose of procuring his vote, and for the purpose that Rusiat would induce other voters to vote for him. The First Respondent gave K100 to Tony Akui and other electors at the church ground”, the petitioner is relying on the same facts in the offence of bribery under Section 103(a)(iii) to establish the offence of bribery under Section 103(d). Thus, for the same reasons given in Allegation No 2 under Section 103(a)(iii), the evidence falls short of establishing that the first respondent gave K5,000.00 cash to Rusiat Iara.
35. For the foregoing reasons the no case submission is upheld and Allegation No 2 for the offences of bribery under Section 103(a)(iii) and Section 103(d) is dismissed.
Allegation No 3 – Bribery by First Respondent of Tony Akui
36. The allegation is that on 28 June 2022 at around 11:00 pm at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP the first respondent gave K100.00 to Tony Akui, an elector, in the Nakanai Open Electorate with the intention of inducing Tony Akui to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections contrary to Section 103(a)(iii) of the Criminal Code.
37. Allegation No 3 under Section 103(a)(iii) of the Criminal Code is in two parts: First, the first respondent gave K100.00 to Tony Akui with the intention of inducing Tony Akui to endeavour to procure the return of the first respondent. For the evidence, I have read the affidavit of Tony Akui (exhibit “P6”) over, and over again and cannot find any statement that the first respondent told Tony Akui to use the K100.00 to procure the votes of other electors or to give it to an elector to vote for him. It follows that while there is evidence from Tony Akui that the first respondent gave K100.00 to him, there is no evidence to prove the element of intention to induce Tony Akui to endeavour to procure the return of the first respondent for the Nakanai Open Electorate.
38. In the second part, the first respondent gave K100.00 to Tony Akui with the intention of inducing Tony Akui to vote for him. For the reasons given at [37] (supra), there is no evidence from Tony Akui to prove that the first respondent intended to induce him to vote for the first respondent. In addition, as it is a material fact that the person allegedly induced to vote for the successful candidate is an elector under Section 103(a)(iii), the evidence on this material fact is conflicting. Let me explain. At paragraph 3 of his affidavit (exhibit “P6”), Tony Akui deposes that he was born on 14 April 1960. On the other hand, there appears to be a name ‘Tony Akui’ on the Common Roll for Bugal 2 Ward of exhibit “P1” but the date of birth is 13 April 1963. Tony Akui did not explain if he is the same person identified on the Common Roll or retracted and corrected the conflicting dates of birth. In the circumstances, his evidence falls short of establishing a material fact of the petitioner’s case that he is an elector for the purpose of Section 103(a)(iii) of the Criminal Code and Section 3 of the Organic Law (supra).
39. A final matter to determine is the evidence of Anton Denis which I touched on briefly above. I pick up the point at [29] and [30] (supra). Anton Denis may be covered by paragraph 11 of the petition as one the electors who received K100.00 from the first respondent on the night of 28 June 2022. His evidence establishes that the first respondent gave K100.00 to him on that night. His evidence is further corroborated by Tony Akui at paragraph 11 of his affidavit (exhibit “P6”) that “I saw Anton Denis, Allan Rusiat, Peter Wagi, Anna Wagi and Meriam Allan individually received K100 cash each from the hands of the First Respondent.”
40. Except for Anton Denis, none of the persons named/identified by Tony Akui gave evidence. However, it is not necessary for them to do that if the evidence by Tony Akui and Anton Denis sufficiently covers the facts of the allegation. Their evidence shows that they saw the first respondent gave K100.00 each to:
(a) Peter Wagi.
(b) Anna Wagi.
(c) Allan Rusiat.
(d) Meriam Allan.
41. However, Tony Akui and Anton Denis did not depose as to the purpose of the first respondent giving K100.00 each to the persons named/identified. In the circumstances, I am not satisfied that there is evidence to prove the element of intention to induce these named persons to endeavour to procure the return of the first respondent for the Nakanai Open Electorate and/or vote for the first respondent. Additionally, as being an elector is a material fact for the offence of bribery under Section 103(a)(iii) of the Criminal Code, contrary to the strong claim by Anton Denis that he is an elector and did vote at the 2022 National General Elections, there is no evidence that Anton Denis and the other persons named/identified are electors. Neither did the petitioner direct the Court to the Common Roll to verify if their names appear on it or they are the same persons for the purpose of Section 103(a)(iii) of the Criminal Code and Section 3 of the Organic Law. See also Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (supra).
42. For the foregoing reasons, the no case submission is upheld and Allegation No 3 is dismissed.
Allegation No 4 – Bribery by First Respondent of electors, Alphonse Denis, Allan Rusiat, Peter Wagi and Anna Wagi
43. The allegation is that on 28 June 2022 at around 11:00 pm at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP, the first respondent gave K100.00 to each of Alphonse Denis, Allan Rusiat, Peter Wagi and Anna Wagi with the intention to induce them to endeavour to procure the return of the first respondent for the Nakanai Open Electorate and/or vote for the first respondent contrary to Section 103(a)(iii) of the Criminal Code and Section 215 of the Organic Law.
44. For the reasons given in relation to Allegation No 3 (supra), the no case submission is upheld and Allegation No 4 is dismissed.
Allegation No 5 – Bribery by Rusiat Iara of Robert Wani
45. The allegation is that on 29 June 2022 at around 8:30 am at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP, Rusiat Iara, the campaign coordinator of the first respondent and elector gave K100.00 to Robet Wani and with the knowledge or authority of the first respondent as the first respondent had given K5,000.00 to Rusiat Iara on the night of 28 June 2022. The money is intended to be applied for the purpose of inducing persons to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections or the vote for the first respondent contrary to Section 103(a)(iii) and Section 103(d) of the Criminal Code and Section 215 of the Organic Law.
46. Robert Wani filed an affidavit which was tendered as exhibit “P8”. The deposes that at Kavui community hall on the morning of 29 June 2022, Rusiat Iara gave K100.00 to him to buy drinks. Further, he deposes that he saw Rusiat Iara took out cash from his wallet and bought market food from the women at the market. Amongst the women who received money from Rusiat Iara were his wife Belinda Wani and daughter Rolinda Wani. They received K50.00 from Rusiat Iara.
47. There is no question that Rusiat Iara gave K100.00 to Robert Iara. Thus, there is evidence to prove the element of ‘giving’ and element of ‘any property’ or ‘benefit of any kind’. As to the element of intention to induce the person, I am not satisfied that the statement that Rusiat Iara told Robert Wani to go buy drinks with the K100.00 is sufficient to establish that the money was given for the purpose of inducing Robert Wani to endeavour to procure the return of the first respondent for the Nakanai Open Electorate or to vote for the first respondent.
48. As the allegation is that the giving of K100.00 by Rusiat Iara was with the knowledge or authority of the first respondent, a material fact of the allegation which is necessary for the petitioner to prove is that the giving of K100.00 by Rusiat Iara to Robert Wani was with the knowledge or authority of the first respondent.
49. The petitioner’s case is based on allegation that the first respondent gave K5,000.00 to Rusiat Iara. Rusiat Iara then used that money to give to Robert Wani and other electors and because Rusiat Iara had so much cash, it can be inferred that it come from the first respondent. When Rusiat Iara gave K100.00 to Robert Wani, it was with the knowledge or authority of the first respondent. This allegation is in stark contrast to the one in Delilah Gore v. Henry Jons Amuli & Electoral Commission (2023) N10114 where a witness asserted that he was present and saw the first respondent as the eventual successful candidate give cash contained in an envelope to one of the first respondent’s campaign coordinators at Sohe District Office, Popondetta. The campaign coordinator then gave out K100.00, K50.00 and K20.00 to electors in the village, three of them were witnesses for the petitioner at trial. The allegation of bribery was eventually upheld by the National Court. The decision was reviewed by the Supreme Court and affirmed after the review was dismissed. See Henry Jons Amuli v. Delilah Gore & Electoral Commission (2023) SC2496.
50. In the present case, there is no direct evidence that the first respondent gave K5,000.00 to Rusiat Iara like the case in Delilah Gore v. Henry Jons Amuli (supra) and the evidence fall short of establishing the material fact as to knowledge or authority of the first respondent. Additionally, a further material fact that is necessary for the petitioner to prove is that Robert Wani is an elector. Contrary to the strong claim by Robert Wani that he is an elector and did vote at the 2022 National General Elections, there is no evidence that his name is on the Common Roll for Kavui to verify that he is an elector for the purpose of Section 103(a)(iii) of the Criminal Code and Section 3 of the Organic Law. See also Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (supra).
51. For the foregoing reasons, the no case submission is upheld and Allegation No 5 is dismissed.
Allegation No 6 – Bribery by Rusiat Iara of Electors Belinda Wani, Anna Anis and Rolinda Wani
52. The allegation is that on 29 June 2022 at around 10:32 am at the Kavui Community Hall, Ward 3, Mosa LLG, Nakanai District, WNBP, Rusiat Iara gave K20,00 and K50.00 cash to Belinda Wani, Anna Anis and Rolinda Wani and other women market vendors and with the knowledge or authority of the first respondent. The money is intended to be applied for the purpose of inducing persons to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections or the vote for the first respondent contrary to Section 103(a)(iii) and Section 103(d) of the Criminal Code and Section 215 of the Organic Law.
53. For the reasons given in relation to Allegation No 5, the no case submission is upheld and Allegation No 6 is dismissed. In addition, nothing more can be read into the statement by Robert Wani at paragraph 8 of his affidavit that Rusiat Iara removed cash from his wallet and paid-off all the food from the market vendors. This statement falls short of establishing the element of intention to induce electors to vote for the first respondent.
Allegation No 7 – Bribery by Rusiat Iara of Electors Belinda Wani, Anna Anis and Rolinda Wani
54. The allegation is identical to Allegation No 6. The allegation is that on 29 June 2022 at around 10:32 am at the Kavui Community Hall, Ward 3, Mosa LLG, Nakanai District, WNBP, Rusiat Iara gave K20,00 and K50.00 cash to Belinda Wani, Anna Anis and Rolinda Wani and other women market vendors and with the knowledge or authority of the first respondent. The money is intended to be applied for the purpose of inducing persons to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections or the vote for the first respondent contrary to Section 103(a)(iii) of the Criminal Code and Section 215 of the Organic Law. Except for the pleading of Section 103(a)(iii) in Allegation No 6, In this allegation, the offence of bribery under Section 103(d) of the Criminal Code is not relied upon by the petitioner.
55. Contrary the first respondent’s submission that this allegation is a repetition of Allegation No 6, it is not because the petitioner can rely on the same allegations of fact to prove an offence of bribery under Section 103(d) of the Criminal Code in Allegation No 6 as well to prove an offence of bribery under Section 103(a)(iii) of the Criminal Code in Allegation No 7. Be that was it may, for the reasons given in Allegation No 6, the no case submission is upheld and Allegation No 7 is dismissed.
Allegation No 8 – Bribery by Rusiat Iara of Robert Wani
56. The allegation is that on 29 June 2022 at around 10:30 am at the United Church ground at Kavui, Ward 3, Mosa LLG, Nakanai District, WNBP, Rusiat Iara, the campaign coordinator of the first respondent gave K100.00 to Robet Wani and with the knowledge or authority of the first respondent. The money is intended to induce Robert Wani to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections or to vote for the first respondent contrary to Section 103(a)(iii) and Section 103(d) of the Criminal Code and Section 215 of the Organic Law.
57. Similarly and contrary the first respondent’s submission that this allegation is a repetition of Allegation No 5, it is not because the petitioner is relying on allegations of fact to prove that when Rusiat Iara gave K100.00 to Robert Wani, it was intended to induce Robert Wani to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections and/or to vote for the first respondent, which is an offence of bribery under Section 103(a)(iii) of the Criminal Code. That said, in addition to the reasons given in Allegation No 5, the fact that Rusiat Iara is a campaign coordinator of the first respondent falls short of establishing the requisite element of intention to induce Robert Wani to endeavour to procure the return of the first respondent for the Nakabnai Open Electorate and/or to vote for the first respondent.
58. For the forgoing reasons, the no case submission is upheld and Allegation No 8 is dismissed.
Allegation No 9 – Bribery by David Sui of Cathy Joe at Kimbe Town
59. Very briefly because the petitioner did not call evidence to prove it, the allegation is on 5 July 2022 at Kimbe town, David Sui, a campaign coordinator of the first respondent and with the knowledge or authority of the first respondent gave K50.00 cash to Cathy Joe to induce her to endeavour to procure the return of the first respondent for the Nakabnai Open Electorate and/or to vote for the first respondent contrary to Section 103(a)(iii) of the Criminal Code and Section 215(1) of the Organic Law.
60. It was correctly conceded by counsel for the petitioner that no evidence was led to prove this allegation. Given this, the no case submission is upheld and Allegation No 9 is dismissed.
Allegation No 10 – Bribery by David Hui of an Elector with iron roofing sheets
61. The allegation is that on 5 July 2022 at around 10:00 pm at section 9, Buvusi, Mosa LLG, Nakanai District, WNBP, David Sui/Hui a campaign coordinator member of the first respondent with the knowledge or authority of the first respondent, gave to electors Michael Yomu, Pius Taku, Elijah Titis, Mark Arnold, Anton Manduk, Joshua Anton and Alu Mikail 20 iron roofing sheets each and informed them to vote for the first respondent. This mentioned act was intended to induce them to endeavour to procure the return of the first respondent for the Nakanai Open Electorate in the 2022 National General Elections and/or to vote for the first respondent contrary to Section 103(a)(iii) and Section 103(d) of the Criminal Code and Section 215 of the Organic Law.
62. Except for Michael Yomu, none of the persons named/identified at paragraph 26 of the petition gave evidence. Michael Yomu filed an affidavit which was tendered as exhibit “P5”. At paragraphs 5, 6, 7 and 8 of his affidavit he deposes that on 7 July 2022 at around 10:00 pm he was at his house at section 6, Buvusi, Mosa LLG, Nakanai District, WNBP when a white Isuzu truck driven by Allen Kinga arrived and stopped on the road outside his house. Nick Kinga was a passenger in the truck. Both men are campaign committee members of the first respondent.
63. He saw his younger brother Mathias Yomu, Pius Taku, Elijah Titis, Mark Arnold, Anton Manduk, Joshua Anton and Alu Mikail removed 80 iron roofing sheets from the truck and divided it among them. Each received 20 sheets. He heard Nick Kinga tell these named persons in Tok Pidgin “tomorrow yupla go givim number 1 vote lo box 10.” Box No. 10 is a reference to candidate number box for the first respondent. His younger brother placed 20 sheets under his house but on the next morning, he told his brother to remove them.
64. While the names of the persons who delivered the iron roofing sheets to the named persons differs from the one pleaded in the petition, the contradiction is between the pleadings and evidence, and it should be left until close of all evidence before Court does the weighing up of the evidence. For now, there is evidence identifying the person, the ‘giving’, ‘the property’ or ‘benefit of any kind’, they are being Allen and Nick Kinga giving iron roofing sheets to the persons named/identified by Michael Yomu.
65. There is also evidence that Nick Kinga told the persons named/identified to cast their votes for the first respondent. Thus, there is evidence of an expressed statement or words uttered by Nick Kinga to prove the requisite element of inducement to procure the named persons to vote for the first respondent. However, as the allegation of bribery is committed by the first respondent through a third person, one of the material facts that is necessary for the petitioner to prove is whether the actions of Allen and Nick Kinga were with the knowledge or authority of the first respondent under Section 215(3)(a) of the Organic Law.
66. I do not recall the petitioner’s counsel putting forward an argument that given that Allen and Nick Kinga are campaign committee members of the first respondent and that it was during the election period that it can be inferred that they acted with the knowledge or authority of the first respondent. I do note though that counsel relies on Section 217 of the Organic Law. If that were the case, the allowing of the allegation to progress further will be based on evidence that fall short of establishing a material fact of the allegation of bribery under Section 103(a)(iii) of the Criminal Code and Section 215(3)(a) of the Organic Law. Conversely, it is not the duty of the defence to disprove the allegation.
67. For this reason, the no case submission is upheld and Allegation No 10 is dismissed.
Allegation No 11 – Bribery by Pastor Stanley Maiduo of Moses Gumbira
68. Similar to Allegation No 9 and very briefly because the petitioner did not call evidence to prove it, the allegation is on 7 July 2022 at around 10:30 am at Buvusi, Ward 2 Mosa LLG, Nakanai District, WNBP, Pastor Stanley Maiduo a campaign coordinator member of the first respondent with the knowledge or authority of the first respondent gave K20.00 cash to Moses Gumbira to induce him to endeavour to procure the return of the first respondent for the Nakabnai Open Electorate and/or to vote for the first respondent contrary to Section 103(a)(iii) of the Criminal Code and Section 215(1) of the Organic Law.
69. It was correctly conceded by counsel for the petitioner that no evidence was led to prove this allegation. Given this, the no case submission is upheld and Allegation No 11 is dismissed.
Conclusion
70. In conclusion, the evidence of the petitioner’s witnesses fall short of establishing the requisite elements and material facts of the eleven allegations of bribery. It is not for the petitioner to expect the defence to fill in the evidence for him where it is lacking or missing. The discretion of the Court will be exercised in favour of the defence and the Court will stop the case here.
Order
71. The final terms of the order are:
________________________________________________________________
Young & Williams Lawyers: Lawyers for Petitioner
Kawat Lawyers: Lawyers for First Respondent
Harvey Nii Lawyers: Lawyers for Second Respondent
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