Unreported National Court Decisions
N1619
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP 27 OF 1997
IN THE MATTER OF THE HENGANOFI OPEN ELECTORATE
JOHN GIHENO - PETITIONER
VIVISO SERAVO - FIRST RESPONDENT
ELECTORAL COMMISSION - SECOND RESPONDENT
Waigani
Woods J
24 September 1997
30 September 1997
ELECTION PETITION - application to strike out petition - compliance with S. 208 of Organic Law on National and Local-level Government Elections - pleading facts on which petition grounded - pleading the appropriate relief.
Counsel
J Sirigoi for the Petitioner
G Sheppard for the First Respondent
D Dotaona for the Second Respondent
PRELIMINARY RULING
30 September 1997
WOODS J:  This is a Petition disputing the election of the First Respondent as Member for the Henganofi Open Electorate in the National Parliament in the 1997 National Elections.  The Respondents have moved the Court to strike out most of the allegations in the petition on the basis that the Petition does not comply with the provisions of the Organic Law on National and Local-level Government and in particular Section 208.
Generally the submissions raised by the Respondents are that the various clauses in the Petition fail to specify the facts relied on to invalidate the election.  As to what facts are required has been determined by the National and Supreme Court in various cases the main statements to guide us being in the case Holloway v Ivarato [1988] PNGLR 99 and in Agonia v Karo [1992] PNGLR 463 which follow from principles enunciated in the case Biri v Ninkama [1982] PNGLR 342.
The allegations in this Petition are all allegations that the First Respondent attempted to commit bribery and undue influence to procure his election.  It is submitted that to establish the ground of bribery a petitioner cannot simply allege bribery, he must specifically plead facts going to the elements of that offence.  The case Agonia v Karo [1992] PNGLR 463 contains a clear analysis of the principles to be considered when considering allegations of bribery.  Certain principles are enunciated from the case Biri v Ninkama [1982] PNGLR 342 where it is emphasised that challenges must be specific in defining the breaches alleged.  In the Agonia Case the court carefully considered what are the sufficient material facts when an allegation of bribery is made.  It is well recognised that petitioning on a ground of bribery or attempted bribery is in fact a charge that the election should be overturned because a criminal offence has been committed.  And it only requires one offence of bribery to invalidate an election.  Therefore as the offence of bribery in an election situation is in effect the criminal offence then any such allegation must stipulate all the relevant material to establish such an offence, that includes the necessity to spell out in clear terms the elements of that offence.
Applying the principles to this case I consider each of the grounds and the allegations as follows.
5 (a) talks about a person called Corporal Justine talking to some people at a market in the week before polling.  However what is alleged to have been said appears to be in the realm of typical campaigning.  I find that the allegation in the petition does not come within the parameters of bribery as stated in Section 103 of the Criminal Code.  There is no reference to what relationship Justine has to the petitioner, and there is no reference to any real threat being issued.  I find that this allegation does not plead sufficient facts for the purpose of section 208.
5 (b) talks about some money being given to a Kombi Susuke.  I am satisfied that there are enough specific facts pleaded here.  The allegation must go to trial.
5 (c) This allegation refers to money being given to a Kuba Auremo to induce eligible voters to vote.  It is submitted that there are no names given for the actual recipients of the money.  It only needs one act of bribery to defeat an election.  To allege an act of bribery which is in effect a criminal offence it is important to include all the specific details and this includes the identification of the persons.  However it is apparent that this allegation is tied up with the next allegations.  So this allegation must be looked at along with allegations (d), (e), (f), and (g).  For that reason is will not be ruled out.
5 (d) This allegation clearly identifies the people involved, involves the knowledge of the respondent, and clearly alleges the recipient as an elector.  I find that this allegation complies and should go to trial.
5 (e) (f) (g) and (j) are all similar to (d) above and therefore comply.
5 (h) There is insufficient identification of the recipients of the bribe in this allegation.
5 (i) It is agreed that this allegation sufficiently alleges a corrupt practice.
I find that there are sufficient allegations that comply with Section 208 to go to trial.
It is also submitted that the relief sought by the petitioner is insufficient to result in the disqualification of the first respondent as an elected member.  The petitioner merely claims to be entitled to a declaration that the election for the Henganofi Open Electorate in the 1997 National General Elections is absolutely void.  It is submitted that this relief does not mean that the first respondent loses his seat, there is no power in the court to make such an order without the petitioner having pleaded that relief fully in the petition according to section 208 (b).  However I am satisfied that the relief claimed is in accordance with the effect of a finding of bribery or undue influence as stated in section 215 (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.  Section 212 gives the Court power to make a number of different types of orders which include the type of order referred to in Section 215.  Surely the election in reference to the petition for the Henganofi Open Electorate can only mean one thing, the election of the First Respondent, he was the only person elected.  It is noted that according to section 226 the effect of a declaration that an election is declared absolutely void is that a new election shall be held.  I find that an order following a finding under Section 215 (1) means that the winning candidate automatically loses his seat because his election has been voided.  This is the whole intent and purpose of this part of the Organic law if a court finds there has been illegal practices during an election.  There is no magic wording that should be used, there is a guide in Sections of the Organic Law and even a Supreme Court in an unpublished judgement has only suggested a wording that would be suitable.
This Petition must now go to trial on allegations 5 (b) (d) (e) (f) (g) (i) (j).