Unreported National Court Decisions
N1790
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 43 OF 1997
IN THE MATTER OF THE KAVIENG OPEN ELECTORATE
BETWEEN
BEN MICAH
PETITIONER
AND
IAN LING-STUCKEY
FIRST RESPONDENT
AND
ELECTORAL COMMISSION
SECOND RESPONDENT
Kavieng
Kirriwom J
7-11 September 1998
NATIONAL ELECTIONS – Bribery and undue influence – Proof of person bribed as an elector.
PRACTICE AND PROCEDURE – Pleading – Bribery and undue influence by persons other than the candidates – The need to specifically plead the facts.
OBSERVATION ON THE NEED FOR ENROLMENT IN THE COMMON ROLL.
Cases Cited
Agonia v Karo [1992] PNGLR, 463
Don Kapi v Takai Kapi & Electoral Commission - SCR 88 of 1997 – (1997) – December 1, 1997 (unreported)
Delba Biri v Bill Ninkama [1982] PNGLR, 342.
Neville Bourne v Manasseh Voeto [1977] PNGLR 298.
Counsel
L. Henao, for the Petitioner
P. Payne, for the First Respondent
J. Noggorr, for the Second Respondent
11 September 1998
KIRRIWOM J: This is a petition disputing the validity of the election for the Kavieng Open Seat in the New Ireland Province in the 1997 National Elections. 
The Petitioner, who was the then sitting member for the seat lost to the First Respondent in the election and has petitioned this Court to declare the election void. He initially relied on a total of fourteen (14) grounds alleging bribery and undue influence by the First Respondent and or his servants or agents acting with his knowledge and authority on specific dates. All these grounds came under the scrutiny of this Court in June 1988 in a preliminary conference. An application was made by the First Respondent to strike out the petition at that conference for failing to comply with s.208(a) of the Organic Law on National and Local Level Government Elections. As a historical background information to this case it must also be pointed out that the respondents were successful in their earlier application in the National Court to strike out the petition for failing to comply with s.208(b) of the Organic Law in November, 1997 but this ruling was subsequently over-turned by the Supreme Court on Review under s.155(2)(b) of the Constitution. The First Respondent then moved a similar application again before Woods, J. to strike out the petition for non-compliance with s.208(a) Organic Law alluded to earlier where the Court ordered grounds 5(b),(g),(h),(k) and (o) to go to trial and he struck out 59(a),(c),(d)(e),(f),(I),(j),(l),(m), and (n). The trial before me is on these remaining grounds which I set out fully hereunder:
“(b)    Ian Ling-Stuckey did on 11 June 1997 at Narimlava Village, New Ireland Province give to John Ngumaravis of Narimlava Village an elector for the Kavieng Open Electorate the sum of K100.00 with the intention of inducing John Ngumaravis to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.
(g)      Ian Ling-Stuckey did on 7 May 1997 at Tabut Village New Ireland Province give Akuila Apisai of Tabut Village an elector for the Kavieng Open Electorate one pressure lamp and the sum of K50.00 for the members of the United Church Congregation at Tabut Village with the intention of inducing Emelia Paki and members of the congregation being eligible voters to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.
(h)      Ian Ling-Stuckey did on 7 May 1997 at Tabut Village New Ireland Province give Emilia Paki of Tabut Village an elector for the Kavieng Open Electorate the sum of K50.00 for the members of the Local Church Congregation at Tabut Village with the intention of inducing Emelia Paki and members of the congregation being eligible voters to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.
(k)      Ian Ling-Stuckey did on 6 May 1997 at Buteiling Village New Ireland Province give Lengmat of Tutuila Village an elector for the Kavieng Open Electorate one pressure lamp with the intention of inducing Lengmat to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.
(o)      Ian Ling-Stuckey did on 3 June 1997 at Palakau Village New Ireland Province give Billy Uri of Palakau Village an elector for the Kavieng Open Electorate one keyboard and one amplifier for himself and the members of the Twilight Gospel Singing Group of Palakau Village with the intention of inducing Billy Uri and members of the Twilight Gospel Singing Group being eligible voters to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.
A total of seventeen witnesses appeared in court before me thirteen of whom were tendered by the petitioner and four by the First Respondent. The four witnesses called by the First Respondent were purely to rebut the evidence of a principal key witness in the petitioner’s case on the question of his enrolment as an elector with respect to ground 5(b) of the petition. I dealt with this issue separately and gave an interlocutory ruling on it on Thursday 10 September, 1998. The effect of my ruling was that the person allegedly bribed John Ngumaravis, was not an elector for the purpose of the Organic Law on National and Local Level Government Elections because he was never enrolled in the Kavieng Open Electorate and his name was not in the 1997 Up-Date of the Common Roll under Narimlava where he came from. The Organic Law defines ‘elector’ under s.3(1) as ‘a person whose name appears on a Roll as an elector’. Even s.103 of the Criminal Code with respect to the offence of bribery and even s.102 (undue influence) refer to an elector. And this has been so held in Agonia v Karo [1992] PNGLR 463 that the person said to have been bribed must be an elector. It is thus commonsense that he or she has to be an elector because the bribe in whatever form, must influence or induce him to vote or refrain from voting in a particular way. The petition itself quite clearly stated that ‘Ian Ling-Stuckey did on 11 June 1997 give K100.00 to John Ngumaravis with the intention of inducing John Ngumaravis, an elector of the Kavieng Open Electorate, to vote for the return of Ian Ling-Stuckey on 29 June 1997’. There is no confusion nor uncertainty as to the form in which the allegation was grounded. It was referring to John Ngumaravis, an elector. The only evidence before the Court was that of John Ngumaravis who was not an elector so this ground of the petition was dismissed. This ruling of the Court once again highlights the significance and the importance of voter – registration or enrolment of voters. The Supreme Court in SCR 88 of 1997: Don Kapi v Takai Kapi and Electoral Commission (unreported judgment of Dec 1, 1997) (In the matter of Wabag Open Electorate) unseated a sitting member purely on the basis that at the time he nominated and stood for election for that seat and won, he was not an elector in that the name under which he nominated and won was no on the 1997 Up-Date of the Common Roll for the Wabag Open Electorate. He was not even enrolled under any other name. Therefore it is becoming increasingly important for all citizens to enroll as required by the Organic Law, s.52,55,57 and 58 if they intend to exercise their right under s.50 of the Constitution, either to vote or to stand for elective public office. Now, in this case we also come to learn that even to be a witness in a bribery allegation for purposes of an election petition, one must be enrolled as an elector.
As the close of the Petitioner’s case, the First Respondent, supported by the Second Respondent made a no-case submission and asked that I must not call on the First Respondent to answer the allegations. This submission, as I perceived, was founded on two grounds:
(1)      The grounds as pleaded in the petition were not established by the evidence tendered by the Petitioner. The evidence only related to the actions of the First Respondent’s campaign managers and agents;
(2)      There was no evidence that the First Respondent gave any money or donations to any individuals or groups.
I shall deal with each remaining ground separately to determine whether or not the First Respondent has a case to answer with respect to each one of them.
GROUND 5(K)
In this ground the Petition alleged that Ian Ling-Stuckey did on 6 May 1997 at Buteiling Village, New Ireland Province give Lengmat of Tutuila Village an elector for the Kavieng Open Electorate one pressure lamp with the intention of inducing Lengmat to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.’ The ground as pleaded is quite specific. It says it was the First Respondent in person and not anyone else acting on his behalf.
The Petitioner called two witnesses, Obert Malai and Donald Wani who had filed sworn Affidavits to rely upon in their testimony before the Court. When the Affidavits were read out aloud for the benefit of the deponents’ adoption in Court as their evidence, it was quite clear what they deposed to went nowhere near proving the ground. Their admissibility was objected to by the First Respondent on the ground of relevance. Objection was upheld and both affidavits were rejected. There was no other evidence tendered in support of this ground. At this stage therefore this ground remains unsubstantiated and is therefore dismissed forthwith.
GROUNDS 5(G) & (H)
These two are related grounds by virtue of the location in which the Petitioner alleges acts of bribery against the First Respondent. In 5(g) the petition states that the First Respondent did on 7 May 1997 at Tabut Village, New Ireland Province give Akuila Apisai of Tabut Village an elector for the Kavieng Open Electorate one pressure lamp and the sum of K50 for the members of the United Church Congregation at Tabut Village with the intention of inducing Emilia Paki and members of the congregation being eligible voters to vote for the return of the First Respondent Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997. The same allegation was pleaded in 5(h) except that the recipient of the bribe which is the K50.00 was Emilia Paki on behalf of the United Church Congregation at Tabut Village on the same day.
There were three witnesses called in support of these allegations and they were: Ruth Kakmalisa, Emilia Paki and Edwin Lambulai. Their affidavits that were previously filed in Court were read out aloud and objections were also raised in relation to certain parts of their affidavits as being irrelevant to the grounds as pleaded. Consequently certain parts of the evidence deposed to in their respective affidavits had to be struck down to the extent of the irrelevancies and the remaining parts were allowed to remain.
Evidence of Ruth Kakmalisa was in a form of Statutory Declaration signed on 16 July 1997. Her deposition in the Statutory Declaration remained intact but her evidence in court was completely different in both examination in chief and in cross examination. She deposed to seeing the First Respondent giving a pressure lamp to Apisai Akuila and K50.00 to Emilia Paki but in the end contradicted herself and agreed that the donation of K50.00 was made by someone else, a committee man for the First Respondent, to Emilia Paki for the United Church Congregation and further agreed that the pressure lamp was requested by Apisai Akuila that night but he never got one.
Emilia Paki gave evidence. Her affidavit marked Exhibit ‘P2’ was struck down commencing from the second sentence in paragraph 2 to paragraph 6 inclusive as being irrelevant because the deposition given related to her receiving K50.00 from one Sirimai Laun, a campaigner for the First Respondent. The pleading makes no mention of someone else acting on behalf of the First Respondent.
Edwin Lambulai was the next witness. His affidavit was also struck down by excluding or rejecting paragraphs 6 to 9 inclusive because his deposition was generally about the First Respondent giving money to Sirimai Laun who then gave out the monies to the recipients. He was not only deposing to the occasion pleaded in the petition but also of his general observation on other times at different campaign rallies. Bulk of his evidence was excluded because they were well outside the scope of pleading in grounds 5(g) and (h) of the petition. In the end, the balance of his affidavit marked Exhibit ‘P4’ was quite meaningless in so far as the allegations in the petition were concerned.
The evidence on the whole on 5(g) and (h) is that Sirimai Laun presented K50.00 to the United Church Congregation of Tabut Village during an election campaign rally of the First Respondent and on this occasion the First Respondent was also present. This evidence does not substantiate the allegations in grounds 5(g) and (h). The evidence is suggesting that the First Respondent must be held criminally liable for the action of his supporters who committed or were committing bribery during the elections. I will return to this point a little later on after I have examined all the evidentiary materials placed before the Court on the remaining grounds. But the fact remains that the grounds pleaded remain unsubstantiated and for the evidence tendered to stick, it would require the petition to be amended. But the law is quite clear on this issue of amendment to petitions outside 40 days period stipulated for filing petitions – s.208(e) of the Organic Law on Elections and Delba Biri v Bill Ninkama.
GROUND 5(O)
The Petitioner called a total of four witnesses who also swore Affidavits that were filed in Court. At the hearing the First Respondent objected to certain paragraphs in the affidavits of the various deponents. To appreciate the grounds of objections raised by the First Respondent, it is important to know what ground 5(o) alleges. This ground basically says that ‘Ian Ling-Stuckey did on 3 June 1997 at Palakau Village an elector for the Kavieng Open Electorate one keyboard and amplifier for himself and the members of the Twilight Gospel Singing Group of Palakau Village with the intention of inducing Billy Uri and members of the Twilight Gospel Singing Group being eligible voters to vote for the return of Ian Ling-Stuckey at an election held for the Kavieng Open Electorate on 29 June 1997.’
The first witness was Milimen Pokila. His evidence in the affidavit was about the First Respondent and his Campaign Team conducting a rally at Palakau Village, Mussau Island. During the course of the rally the First Respondent’s campaign coordinator Mr Mitchell Aipau Luke presented an amplifier and a keyboard to the Twilight Gospel Singing Group and advising them that the equipment was from Ian Ling-Stuckey Foundation. He said that this Foundation is there to help the youths in New Ireland Province. One Billy Uri received the items and expressed his word of thanks on behalf of the group to Ian Ling-Stuckey Foundation. This was the thrust of this witnesses evidence as deposed to in paragraph 5 of his affidavit. It was objected to by the First Respondent to be struck out or rejected on the basis that it was outside the scope of the ground pleaded in the petition. It was talking about someone else giving the items as opposed to the First Respondent in person and that the donation was not from the First Respondent but it was from Ian Ling-Stuckey Foundation which is a separate entity to the First Respondent. I over-ruled the objection raised and allowed this evidence to remain primarily for the reason that there was some connection between the First Respondent and Ian Ling-Stuckey Foundation because of the names. I paid little regard to the other paragraphs that were also objected to on the grounds of relevance because they were expressing personal opinions and hearsay evidence which were of no material value in proving the ground alleged. The next witness was Billy Uri who was actually the recipient of the keyboard and amplifier. Similarly there was objection to certain parts of his affidavit especially paragraphs 10-13 inclusive as they related to events that took place after the election. I upheld the objection and allowed the rest to remain. His evidence was consistent with that of his fellow villager Milimen Pokila. The only and probably a crucial difference in his evidence with his other fellow Palakau villagers is that he was at least aware of a request being made to the Ian Ling-Stuckey Foundation in 1996 by the Chairman of the Twilight Gospel Singing Group of Palakau who lives in Kavieng for a keyboard and an amplifier for the group. So at least he knew that these items were given by the Foundation in response to their own request. In cross-examination Billy Uri denied making such statement in his affidavit paragraph 7. His affidavit is marked as Exhibit ‘P7’. He said what is stated about the request to Ian Ling-Stuckey Foundation by the Chairman of his group, Ngat Kavaia, was not true. Billy Uri’s credibility is very much at stake because in cross-examination it became apparent that prior to 20 July 1998 when he swore the affidavit now marked Exhibit ‘P7’, he had already sworn an affidavit about a week before 14 July in which he denied receiving anything from the First Respondent. When asked to explain the contradictions in his two affidavits he said that he did receive the instruments but he was threatened by one Naptalai, Pangu Party Coordinator in Kavieng to sign the affidavit of 14 July 1998 because if he did not the First Respondent would take him to court if he wins the case and he can go to jail. He said he had family to worry about so he signed it. That affidavit was not tendered into evidence. The next witness was Aro Kiapa. His evidence was basically the same as Billy Uri’s and Milimen Pokila’s. He was a councilor of Mussau-Emirau Local Government Council from 1972 to October 1996. He was present at Palakau during the First Respondent’s campaign rally and he witnessed the presentation of the keyboard and the amplifier to Billy Uri by Mitchell Aipau. He agreed that the donation was from Ian Ling-Stuckey Foundation to the Twilight Gospel Singing Group. Certain parts of his affidavit, paragraphs 4 – 9 inclusive, (Exhibit ‘P8’) had to be disallowed because they were quite irrelevant to the issue of bribery pleaded in ground 5(o) of the petition. At least this witness did acknowledge certain donations made by the Ian Ling-Stuckey Foundation in 1996 prior to the 1997 National Elections such as water tanks and even a generator to the Twilight Gospel Singing Group which both Billy Uri and Milimen Pokila strongly denied any knowledge of. The last witness was Royal Kotori whose affidavit (Exhibit ‘P9’) was also objected to in parts but I allowed most to remain except for those irrelevant bits towards the end. His story generally ran in the same vein as that of the other three witnesses.
Following my ruling on the reception of the evidence on the keyboard and the amplifier into the trial as evidence relevant to ground 5(o) of the petition, I have since realised that this evidence is still subject to the question of the correctness of the framing and wording of ground 5(o). The allegation is obviously against the First Respondent but the evidence show three things: firstly, the items were given by someone else to their recipients, and secondly, they were from Ian Ling-Stuckey Foundation, and thirdly, they were given following a request made to the Foundation.
There is one commonality shared by these three grounds 5(g), (h) and (o) and that is that the allegations are levelled against the First Respondent in person. However the evidence tendered by the Petitioner show a completely different scenario in all those occasions. The evidence portray the First Respondent as an observer while his committee men are the ones who are giving out the monies, instruments and other items. There is not one clear evidence showing the First Respondent personally giving out money and other donations. This is generally the state of the evidence before me in respect of these three remaining grounds and I have to decide whether this is enough for me to call on the First Respondent to defend himself that the First Respondent bears no onus to prove or disprove anything. The petitioner carries the heavy onus of proving all his allegations against the First Respondent. And because the allegations raised here are that of bribery which is a criminal offence under s.103 of the Criminal Code the criminal standard of proof ought to apply. However this Court had always applied the standard of proof set by Frost, CJ in re Menyama Open Parliamentary Election – Neville Bourne v Manesseh Voeto [1977] PNGLR 298 where His Honour said: “The standard of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no practical difference.’ This standard had been continually upheld and applied since and I shall apply the same standard here in determining the three allegations of bribery that remain in the petition against the First Respondent.
In the beginning of my judgement I alluded to the fact that of the fourteen grounds that were set out in the petition, nine (9) were struck out. And the reasons for that are set out in the judgment of the presiding judge Justice Woods which I set out herein in full:
“The remaining allegations are that a named person ‘acting with the knowledge and authority of ‘the First Respondent gave certain named persons money or other items, with the intention of inducing’ them to vote for the First Respondent. These allegations are therefore not allegations of bribery against the First Respondent, they are alleging that other persons committed bribery and undue influence with the knowledge and authority of the candidate. It is not alleged in the wording of the clause that the candidate procured or counselled the bribery or undue influence, just that he knew. So what it is alleged is the offence. It is noted that knowledge of an illegal practice or offence is referred to in s.204 of the organic Law but that section only relates to offences in Part XVII of the Organic Law and that part does not include bribery and undue influence. This seems to be a similar situation as I found in 1989 in the case of Palme v Mel and Electoral Commission, unreported N808. And as I found in that case it would appear that by drafting the clause this way the petitioner is trying to make the respondent absolutely liable for the acts of what is suggested are his agents. Whilst he may be intending to prove a nexus when he brings the evidence, he has not alleged it properly. He should have either alleged a nexus by procuring or counselling or have alleged specific acts of bribery and undue influence by others which are likely to have affected the results; vide s.215(3). As noted this analysis of how bribery and undue influence by candidates should be alleged has been around for some time. So following on this analysis it would appear that these allegations are not grounded sufficiently into acts of the candidate, nor are they presented such that the results of the elections was likely to have been affected, and therefore they would appear to be superfluous to hearing of the petition. The petitioner cannot come during the trial and proceed to attempt to allege actual procuring or counseling so as to make the allegation into one of a direct criminal act by the First Respondent without having alleged it properly in the petition.! (Emphasis is mine)
I had refer to His Honour’s reasons for striking out those nine (9) other grounds in the petition because as it turned out in this trial when the evidence was compiled and presented before me, all these remaining grounds in substance were identical to the ones Woods J had them struck out. They cleverly escaped detection at that preliminary stage because of the way they were pleaded, ie. by naming the First Respondent in person as committing the bribe which was quite in order. The only exception out of these five grounds was ground 5(b) that unfortunately could not stand on legal grounds unconnected with pleading nor the facts. Grounds 5(g),(h) and (o) are replicas of those dismissed grounds but in the opposite order. In whatever order they come in my view, they suffer the same fate as those that have been dismissed at the preliminary conference. I entirely agree with Woods J that if the petitioner wishes to have the First Respondent criminally liable for the offence of bribery or undue influence through other persons, he must specifically and properly allege the facts as ‘procuring or counseling’ by invoking s.7 of the Criminal Code. One cannot be so unrealistic and deny the fact that bribery and undue influence do not take place during elections. Large sums of money and goods exchange hands from candidates through their committee-men to their ultimate recipients. The effect of these donations on the recipients are the same as if the candidates themselves have made those payments physically. The end result of that generosity is reflected ultimately on the ballot count. But the Organic Law has set a very high standard from drafting of petitions to actually proving the allegations in Court. All allegations must be properly and clearly pleaded, setting out all relevant facts. There can be no changes after 40 days of declaration of the result to the petition. This means that if the petition alleges that A bribed B to vote for him by giving him a cone of ice-cream when in fact it was C who bribed B for A, regardless of how good and solid the evidence is, the charge must fall because the Organic Law does not allow change or amendment. This position is quite clearly stated in Delba Biri v Bill Ninkama [1982] PNGLR, 342 where the Supreme Court held that ‘the National Court … shall not allow and does not have power to allow an amendment of a petition after the period of two months (40 days in the new Organic Law) after the declaration of the result of the election in accordance with s.176(1)(a) of the Organic Law on National Elections.’ In a criminal trial proper the Court has power to order amendment of an information and to charge a defendant with the offence supported by the evidence or to return an alternative verdict but no so in bribery cases under the Organic Law.
In my view having examined the evidence tendered in support of the remaining grounds and bearing in mind the grounds alleged, this whole petition must be determined on the strict requirements and in compliance of the Organic Law. Even if I were to determine on the evidence presented so far as to whether or not a prima facie case has been made out against the First Respondent, the evidence is quite spurious and unconvincing and credibility of several key witnesses is under serious questions. Who then can the Court believe?
In this upshot, this petition faces threshold problems. Problems that the trial judge who had earlier dealt with those preliminary issues could not have possibly detected or foreseen because the grounds as pleaded were quite in order. But the anomalies only surfaced as evidentiary materials were tendered in this trial to substantiate those grounds. Setting out the facts in accordance with the requirements of the Organic Law lays the foundation upon which the evidence tendered can comfortably dwell in. If the foundation does not lay that basis, the petition is structurally defective and unsafe. No amount of evidence can remedy or repair a structural defect. Unlike in criminal trials where charges can be amended with leave of the Court in accordance with the prescribed rules of practice taking into account fairness and justice to the defendant, the rules do not permit such late amendments under the Organic Law. And the reason simply is that an election petition is a serious matter as this Court and the Supreme Court have repeatedly stated.
This election petition fails because, simply put, grounds 5(g),(h) & (o) say one thing and the evidence tendered to prove each of them say different things. There is therefore a fundamental flaw in the petition in the way the grounds remaining for my consideration were framed and structural that no amount of evidence from any source can correct or validate. I therefore uphold the ‘no-case-to-answer’ submission and dismiss the petition. Cost shall follow the event on party-party basis, if not agreed, to be taxed.
I order the security deposit to be applied towards the costs of the respondents.
Petition dismissed.
Lawyer for the Petitioner: Henaos
Lawyer for the First Respondent: Blake Dawson Waldron
Lawyer for the Second Respondent: Nonggorr & Associates