N2358

PAPUA NEW GUINEA

[In the National Court of Justice at Mount Hagen]

EP 50 of 2002

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL
GOVERNMENT ELECTIONS AND IN
THE MATTER OF THE DISPUTED RETURNS
FOR THE WESTERN HIGHLANDS
PROVINCIAL ELECTORATE IN THE
WESTERN HIGHLANDS PROVINCE

BETWEEN:

ROBERT LAK
Petitioner

AND:

PAIAS WINGTI
Respondent

Mt Hagen:	Kapi DCJ
24th & 25th March 2003

Parliament – Elections – Disputed election petition – Application to stop the trial at the close of Petitioner’s Case – Applicable principles.

Counsel:
G. Garo for the Petitioner
P. Mawa for the Respondent

25th March 2003

Ruling to Stop the Trial

KAPI DCJ: Counsel for the Petitioner closed his case after calling 5 witnesses. 

Counsel for the Respondent made an application to stop the trial on the basis that the evidence called has failed to prove the essential grounds to invalidate the election result. I upheld the submission, stopped the trial and dismissed the Petition and I indicated that I would publish my reasons for decision later. This I now do.

I set out my views in respect of this kind of application in Desmond Baira v Kilroy Genia and Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October 1998, SC579). I adopt what I said there and in particular the passage:

"…whether, or not, a judge should stop a case at the close of the petitioner's case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election."

In the present case, the Petition alleges several instances of bribery (8.2, 8.3, 8.5-8.6, 8.8, 8.9, 8.12, 8.14) and undue influence (9.20, 9.21, 9.23). It is convenient to set out these grounds again:

8.2 On or about 13th June 2002 at Gumas in the Western Highlands Province, the First Respondent through his agent THOMAS ULG with the knowledge and authority of the First Respondent offered to GABRIEL TEPRA a catechist and an elector full membership to the People Democratic Movement Party in order to induce the said GABRIEL TEPRA to endeavour to procure the return of the First Respondent as member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.3 The First Respondent established a credit system using a voter identification card (:"the First Respondent’s voter identification card" herein) with a picture of the First Respondent and traditional children to be given to electors throughout Western Highlands Province by the agents of the First Respondent and assured the said agents that he would provide free eduction, free medical treatment, free shopping from supermarkets and 50% discount on airfares, and other benefits to the First Respondent’s voter registration cardholders who voted for the First Respondent as member for the Western Highlands Provincial Electorates in the 2002 General Elections held in the Western Highlands Province.

8.5 On 7th June 2002 at Mount Hagen in the Western Highlands Province, the First Respondent gave to each of JOHN NIGGINTS, YEMI of the Magena tribe, TEP HUM, GABRIEL RUMINTS, THOMAS NAMBA, PAUL OTI, ANDREW MORGAN, PETER DIE, PAUL TIMBI, PETER LAS, JOE KEPA, MR. TIMOTHY of the Roni tribe and GABRIEL KOLGA, electors, the sum of K300.00 as an initial allowance and gave an undertaking to pay the full allowance when the said electors had accomplished their mission in the successful distribution of voter registration cards, in order to induce the said electors to procure the return of the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.6 On 7th June 2002 at Mount Hagen in the Western Highlands Province, the First Respondent made a statement to the said JOHN NIGGINTS, MR. YAMI of the Manega tribe, TEP HUM, GABRIEL RUMINTS, THOMAS NAMBA, PAUL OTT, ANDREW MORGAN, PETER DIE, PAUL TIMBI, PETER LAS, JOE KEPA, MR. TIMOTHY of the Roni tribe and GABRIEL KOLGA, electors that he would provide free education, free medical treatment, free shopping from supermarkets and 50% discount on airfares to the First Respondent’s voter registration cardholders who voted for him in order to induce the said electors to procure the return of the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.8 On or about 18th June 2002 at Kumbela in the Anglimp South Waghi Open Electorate of Western Highlands Province, the First Respondent by his agent SENT PUPOLI with the knowledge and authority of the First Respondent gave to LUCY MEMTI NEWMAN an elector, the First Respondent’s voter identification card and made a statement to the said elector that the First Respondent and his government would pay for hospital bills, school fees, business propositions, women group organizations and financial assistance to the elector if he voted the First Respondent and the First Respondent succeeded as member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections. The said statement was made carelessly without confirming the truth or otherwise of the same statement with the intention of inducing the said elector to vote for the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.9 On or about 18th June 2002 at Kerebug in the Hagen Open Electorate of Western Highlands Province, the First Respondent by his agent JACOB TAP with the knowledge and authority of the First Respondent gave to AIDA MARWENG an elector, the First Respondent’s voter identification card and made a statement to the said elector that the First Respondent and his government would pay for food items, school fees, medical fees, finance for women’s groups and financial assistance to the elector if she voted the First Respondent and the First Respondent succeeded as member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections. The said statement was made carelessly without confirming the truth or otherwise of the same statement with the intention of inducing the said elector to vote for the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.12 On or about 18th June 2002 at Mt. Hagen in the Hagen Open Electorate of Western Highlands Province, the First Respondent by his agent MATHEW KOIMO with the knowledge and authority of the First Respondent gave to ALOLA ROBERT an elector the First Respondent’s voter identification card and made a statement to the said elector that the First Respondent and his government would process for the elector all kinds of claims to Kapal Haus immediately, make loans easily accessible provide free education and free goods from Bromley and Manton to the said elector if she voted the First Respondent and the First Respondent succeeded as member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections. The said statement was made carelessly without confirming the truth or otherwise of the said statement with the intention of inducing the said elector to vote for the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

8.14 On or about 18th June 2002 at Mt. Hagen in the Tambul Nebilyer Open Electorate of Western Highlands Province, the First Respondent by his agent JACOB TAP with the knowledge and authority of the First Respondent gave to JOWI GIRUMAN an elector the First Respondent’s voter identification card and made a statement to the said elector that the First Respondent and his government would pay for the elector all school fees, medical fees and other assistance if the voted the First Respondent and the First Respondent succeeded as member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections. The said statement was made carelessly without confirming the truth or otherwise of the same statement with the intention of inducing the said elector to vote for the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections. The said statement was made carelessly without confirming the truth or otherwise of the same statement with the intention of inducing the said electors to vote for the First Respondent as member for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

9.20 On or about 13th June 2002, the First Respondent, by its agent, CHP Limited with the knowledge and authority of the First Respondent at Mt. Hagen printed and published 60,000 sample ballot papers containing a representation of an official ballot paper for the Western Highlands Provincial Electorate instructing readers not to put any "x" on the ballot paper other than an "x" on the First Respondent whose photograph was included on the said ballot paper.

9.21 On or about 15th June 2002 at Aviamp School in the Anglimp South Waghi Open Electorate of Western Highlands Province WILLIAM PIK, MICHAEL GISING and a group of men supporting the First Respondent, with the knowledge and authority of the First Respondent distributed to RICK AMAGA, an elector, five other persons with the said RICK AMAGA who were electors and all electors using the public road between Kudjip and Aviamp a sample ballot paper referred to in paragraph 9.20 herein was intended to mislead all electors registered in the common roll for the Western Highlands Provincial Electorate into voting for the First Respondent at the election of a member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province.

9.23 The distribution of the said sample ballot paper, referred to in paragraphs 9.20 to 9.22 purported to be issued under the authority of the National Government, when the seal of the National Government was not impressed upon the said sample ballot paper with the authority of the National Government, was fraudulent and intended to induce electors to vote for the First Respondent at the election of a member of Parliament for the Western Highlands Provincial Electorate in the 2002 General Elections held in the Western Highlands Province."

First I will deal with the grounds where there is no evidence. Counsel for the Petitioner conceded that no evidence was led in respect of allegations in paragraphs 8.9, 8.12 and 8.14. 

Paragraph 8.9 alleges that one Jacob Tap with the knowledge and authority of the Respondent bribed Aida Mareweng, an elector. The Petitioner did not call any evidence to prove any of these allegations. There is no evidence that the Respondent knew or gave instructions or authorized Jacob Tap to make any offer of benefits to Aida Mareweng. Aida Mareweng was not called to give any evidence. It would be futile to allow this ground to proceed further in the trial. I dismissed this ground.

Paragraph Ground 8.12 alleges that Mathew Koimo with the knowledge and authority of the Respondent bribed Alola Robert by offering the benefits set out in the paragraph. The Petitioner failed to call any evidence in respect of any knowledge or authority given by the Respondent nor is there any evidence that Alola Robert was offered any benefits. It would be futile to allow the trial to proceed on this ground. I dismissed this ground.

Paragraph 8.14 alleges that Jacob Tap with the knowledge and authority of the Respondent offered benefits to Jowi Giruman. The Petitioner called no evidence to prove the knowledge and authority given by the Respondent nor did he call any evidence to prove that Jowi Giruman was offered any benefits. It would be futile to allow the trial to proceed on this ground. I dismissed this ground.

Counsel for the Respondent submitted that while the Petitioner called evidence in respect of other grounds, the evidence has not established essential elements and therefore they should be dismissed.

Paragraph 8.2 alleges that Thomas Ulg with the knowledge and authority of the Respondent offered Gabriel Tepra membership of Peoples’ Democratic Movement (PDM) to induce him to endeavour to procure the return of the Respondent. Gabriel Tepra was called to give evidence. He failed to give any evidence that he was offered membership of PDM by Thomas Ulg. It would be futile to allow this ground to proceed any further in the trial. I dismissed this ground.

Paragraph 8.3, 8.5, 8.6 and 8.8 may be taken together. They deal with a particular scheme. Paragraph 8.3 sets out the scheme, namely, that the Respondent established a credit system through the use of a voter identification card. One side of this card has a picture of the Respondent with people dressed in traditional clothes and some children with what appears to be coffee trees in the background. On the other side, it has space provided to be filled in for name of an elector, electorate and the tribe with a serial number to identify each voter who voted for the Respondent. 

The scheme was that the Respondent authorized or organized his agents who would distribute this card to electors and offer them benefits if they vote for the Respondent. The agents were instructed to obtain the names of the electors, electorate and the tribe of the card holder and this would be entered in a log book with the details. The number of the card would be entered in a computer. 

The scheme was that when the Respondent wins the election, the electors would present their card and the Respondent would obtain the details of the electors on the computer and they would receive all the benefits they were offered.

The significance of this scheme as briefly described is that the offer or promise of benefits was offered to electors. The offer was made by people who were agents or people who were given instructions by the Respondent to make such offers or promises.

Andrew Morgan gave evidence of the scheme as I have described. I should indicate at this stage that I am not concerned with the truth of whether or not these offers or promises were made by the Respondent. I would address this issue if the trial proceeded and after I hear all the evidence.

Paragraph 8.5 pleads facts relating to engagement or employment of people to distribute the cards. This paragraph does not plead that the people who are engaged to distribute the cards were induced to vote for the Respondent nor does it allege that the people offered any benefit to anyone else to vote for the Respondent. This paragraph seeks to plead the agency or the connection between the people and the Respondent. This is a necessary element to bring this ground within the terms of s 215 (1) of the Organic Law National and Local-level Government Elections (Organic Law). The initial payment of K300.00 and the promise of the balance was for the distribution of the cards. There is no allegation of bribery of the agents in this pleading. This is the logical conclusion in that the petition does not set out bribery by payment of money in the scheme pleaded in paragraph 8.3.

The evidence given by Andrew Morgan alleges that they were instructed to distribute the cards and they were payed some money for drinks, betel nut and smoke. That would go to the question of agency and the knowledge and authority of the Respondent. In fact this particular witness alleges much more fundamental reasons for distributing the cards. He alleges that he has been a strong party supporter of PDM and Mr Wingti for 17 years. He does not give any evidence to suggest that he agreed to distribute the cards on the basis of the allowance that was initially given with balance to be paid after the election.

The alleged act of bribery appears in the other paragraphs. Paragraph 8.6 alleges that the first respondent "would provide free education, free medical treatment, free shopping from super markets and 50% discount on airfares to the Respondent’s voter registration cardholders who voted for him." The allegation is that he made the statement to Andrew Morgan to make these offers to cardholders who would vote for the Respondent. In fact there is no pleading that the Respondent made these offers to Andrew Morgan in order to induce him to secure vote for the Respondent.

As I have indicated before, I do not have to determine the truth of whether or not the Respondent actually made these offers and promises to Mr Morgan. For the purposes of the submission, I will accept the evidence given by Mr Morgan that the Respondent made the promises and instructed Mr Morgan to make these promises to voters. This evidence goes to support the allegation that in so far as Mr Morgan made these promises and induced voters, he did so with the knowledge and authority of the Respondent.

The question is whether Mr Morgan made these promises to voters and thereby induced them to vote for the Respondent. Mr Morgan did not give any evidence that he made any of these promises to any voter. He did not name any person nor was any person called to give evidence that they were induced to vote for the Respondent. Mr Morgan made reference to getting three voter identification cards; one for himself, his wife and his son. He gave no evidence as to whether he made the promises and asked his immediate family to vote for the Respondent. They were not called to give evidence. Mr Morgan himself voted for the Respondent. He was not induced to vote in this manner by the offers or promises made by the Respondent. He said he was a strong supporter of the Respondent and has been for the last 17 years. 

He also gave evidence that he got 150 identification voter cards for distribution. He did not give evidence who received these cards nor did anyone who received these cards gave evidence. There simply is no evidence of bribe offered to any voter. Mr Morgan failed to name any voter who was induced to vote for the Respondent by the promises he may have made on behalf of the Respondent. I cannot understand why the Petitioner failed to call any voter who was alleged to have been bribed by Mr Morgan. In absence of any such evidence, it would be futile to allow the trial to proceed on this ground. I dismissed paragraph 8.6. The facts set out under paragraphs 8.3 and 8.5 must fall with ground 8.6.

Paragraph 8.8 alleges bribery by one Sent Pupoli (Pupundi) that he offered to Lucy Memti Newman that she would get the benefits if she voted for the Respondent. The onus of proving that Sent Pupoli offered this bribe with the knowledge and authority of the Respondent lies with the Petitioner. No evidence was given by Lucy Mamti Newman that Sent Pupoli made this offer with the knowledge and authority of the Respondent. There is no evidence to show that the Respondent knows one Sent Pupoli and that he authorized or had knowledge of the alleged bribery. Sent Pupoli was not pleaded as one of the persons named at the meeting on 7th June 2002 in paragraph 8.6. Without this evidence, the ground alleged under s 215 (1) cannot succeed. It would be futile to allow the trial to proceed on this ground.

The Petitioner’s case has another flaw. The ground alleges that the act of bribery took place on 18th June at Kumbela. The evidence given by Lucy Memti Newman shows that bribery took place on 17th June and it took place near the polling booth at Ulya. The two places are 20 miles apart. The pleading would have to be amended to be in line with the evidence. The authorities are clear that no amendment can be allowed. It would be futile to allow the trial to proceed on this ground.

For the reasons I have set out I dismissed this ground.

I will now consider allegations of undue influence. This is pleaded in paragraph 9.20 and 9.23. In essence, the allegation is that Michael Gising with others fraudulently purported to issue a sample ballot paper under the authority of the National Government to induce electors in paragraph 9.23. This pleading on its own would have been defective as it does not name any elector. However, I allowed this pleading to stand on the basis that the facts in paragraph 9.21 were adopted with the effect that the person defrauded was Rick Amaga.

The Petitioner did not call Michael Gising or any other witness to prove that Michael Gising committed fraud with the knowledge and authority of the Respondent. Counsel for the Petitioner submitted that as the sample ballot paper was printed by CHP, it should be inferred that he must have been aware of what Michael Gising did. This is a big leap. There is no dispute that this sample ballot paper was printed as authorized by the Respondent. There is no dispute that these samples were dispatched. However, there is no evidence that the Respondent instructed or authorized Michael Gising to distribute the ballot paper. Without this evidence, there is no connection between what Michael Gising did and the Respondent.

After having heard the evidence and seen the sample ballot paper, it is clearly marked a sample ballot paper. There is no representation either on the sample itself or representation by Michael Gising that it was authorized by the National Government. The only evidence by Rick Amaga is that Michael Gising simply handed the sample ballot paper and told him to vote for Mr Wingti. There was no representation that the sample was authorized by the National Government.

At the most Rick Amaga stated that he was misled into thinking that if he voted for Robert Lak, his vote would be informal. Putting aside for the moment whether this is true or not, this could only amount to misleading not fraud. This was pleaded in paragraph 9.21 and could possibly raise an illegal practice under s 105 (c) or (d) of the Criminal Code. However, counsel for the Petitioner has withdrawn all grounds on illegal practice.

It would be futile to allow the trial to proceed on this ground. I dismissed this ground.

In the result the whole petition was dismissed with costs to the Respondent.
_____________________________________________________________________
Lawyers for the Petitioner	:	PARAKA LAWYERS
Lawyers for the Respondent	:	MAWA LAWYERS