N5069

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 59 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SOUTH FLY OPEN ELECTORATE

BETWEEN

SALI SUBAM
Petitioner

AND

AIDE GANASI
First Respondent

AND

ELECTORAL COMMISSION (NO.2)
Second Respondent

Daru: Ipang AJ
2012: 14 December

ELECTION PETITION – Practice and Procedure – No Case Submission in Election Petitions – Entirely a matter of discretion and depending on the grounds of petition and circumstances of each case. Petition which alleges bribery which is a criminal offence – No Case Submission can be invoked and thus, the application of two limbs in State v Paul Kundi Rape [1976] PNGLR 96 can be applied

Cases Cited:

Desmond Baira v Kilroy Genia & Electoral Commission (1998) SC 579
Labi Amaiu v Andrew Mald & Another (2008) N3335
David Arore v John Warisan (2008) SC 1030
Ben Micah v Ian Ling Stuckey (1998) N1790
Stave v Paul Kundi Rape [1976] PNGLR 96
State v Roka Pep (No. 2) [1983] PNGLR 287

COUNSEL:

Mr.A. Furigi, for the Petitioner
Mr. T. Cooper, for the Respondent
Mr. M. Kuma, for Second Respondent

RULING ON NO CASE SUBMISSION

14 December, 2012

1.	IPANG AJ: At the close of the Petitioner Mr. Sali Subam's case, Mr. T. Cooper of Counsel for the First Respondent Mr. Aide Ganasi submitted that this court should stop the trial at this stage as there is no evidence on the 11 grounds of allegations of bribery against the First Respondent.

2.	The Electoral Commission prior to making of No Case Submission by Respondent Aide Ganasi, was joined as a party pursuant to s. 211 of the Organic Law on National & Local-Level Government Election (OLNLGE) and with consent from the petitioner and respondent Ganasi. The Electoral Commission relies on the respective affidavits of M. Kuma and Boki Raga all sworn and filed on the 11 of October, 2012. Raga deposed that in the event the outcome or otherwise of the petition will have effects on the Electoral Commission so that the Electoral Commission has to be a party.

3.	Whether No Case Submission is allowed at the end of a petitioner's case is not an issue by the petitioner before this Court. It is the principles in State v Paul Kundi Rape [1976] PNGLR 96, subsequently followed in State v Roka Pep (No. 2) [1983] PNGLR 287 is of concerned to Mr. Cooper of Counsel for the First Respondent. Mr. Cooper was concerned whether the principles can be applied like in normal criminal proceedings.

4.	First Respondent's counsel made the No Case Submission and submitted as if this was final submission and the Court to consider whether evidence as adduced by the petitioner has been beyond his case beyond reasonable doubt. This in my view is the misapplication of the principles relating to No Case Submission. Perhaps the Supreme Court in Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579 can be of some assistance. The following were observed:

"In considering this issue, counsel for the second respondent submits that this court should give some guidance as to the practice of adopting the equivalent of a no case submission in an election petition. As far as I am aware, the Supreme Court has not addressed this issue before. In my opinion, it would be a mistake to readily adopt a procedure under the Organic Law which is applicable to criminal proceedings. The intention of the Legislature is clear that the proceedings under the Organic Law are different and therefore it is fundamentally wrong to adopt procedures from other type of proceedings…
What procedure is adopted for proceedings under the Organic Law is a matter for judges in their law making power to prescribe under s. 212(2) of the Organic Law. As I pointed out in the Iangalio case, Judges have not yet made such rules of procedure. In the circumstances, whether or not, a judge should stop a case is a matter entirely up to the discretion of the Court…"

5.	Then in David Arore v John Warisan (2008) SC 1030 Injia DCJ (as he then was) has this to say: 

"…case law establishes that a no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and, "it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop the case, if it is clear that there is no evidence to prove any ground for invalidating an election." Desmond Baira v Kilory Genia & Electoral Commission (1998) SC 579, Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported & Unnumbered judgment, Robert Lak v Paias Wingti (2003) N2358, Pawa Wai v Jamie Maxtone Graham (2005) N2768."
 
6.	During Pre Trial the Petitioner and the First Respondent each confirmed 9 witnesses each will be called. The Petitioner has this witnesses which he will call and these are; 1. Mary Kekea, 2. Ian Dabu, 3. Anau Bazu Buia, 4. David Mangewa, 5. Gudu Sub, 6. Manjam Tom, 7. Danny Nawia, 8. Eric Kuro and 9. Gaius Kea. However, when the actual trial began, the Petitioner only calls 1. Ian Dabu, 2. Gudu Sub and 3. Anau Bazu Buia. Mary Kekea was disqualified since she filed two (2) separate affidavits each in support of the Petitioner and for the First Respondent. One of the Affidavit was sworn on the 10 October, 2012 and filed on the 11 October, 2012 and was filed in support of the petitioner and the other Affidavit was sworn and filed on the 6 November, 2012 in support of the Respondent. The rest of the petitioner's witnesses like David Mangewa, Manjam Tom, Danny Nawia, Eric Kuro and Gaius Kewa were not available to give evidence so their affidavits were refused to be taken as evidence. First Respondent had issued ss. 35 & 36 Notices to cross-examine these witnesses under Evidence Act.

THE APPLICABLE LAW – OFFENCE OF BRIBERY:

7.	The offence of bribery as envisaged in s. 215 of Organic Law on National & Local-Level Government Election (OLNLGE) is defined and created by s. 103 of the Criminal Code Act, Chapter 262. Refer Peter Isoaimo v Paru Aihi & Electoral Commission of Papua New Guinea (2012) N492. The Section 103 states:

A person who –

(a)	Gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind-

(i)	on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii)	on account of any person acting or joining in a procession during an election; or

(iii)	in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b)	being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c)	asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d)	advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e)	corruptly transfers nor pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f)	is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g)	being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanor.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

GROUNDS OF PETITION:

Allegations of bribery at Daru, Karakara Ward, Daru Urban Local-Level Government Council, Mata and Garaita villages

On the 3rd June, 2012 between 7.00pm and 8.00pm at Bara Bar in Daru, the Respondent gave K500.00 in cash contained in a yellow envelope to Ward Councilor Soma Sapai and another Ward Councilor each taking K250.00.

On 23 June 2012 at about 11.00am at Karakara Ward Daru Urban Local-Level Government Council, in the presence of Giwi Sere, a voter, the Respondent, in the company of Senior Police Constable Joe Waguri, gave to Betty Kevin of Mabudawan village, a voter the sum of K50 with the intention to induce her to vote for the Respondent at the elections.

Between the period 26 June 2012 and 30 June 2012 the Respondent and his campaign team travelled extensively between the villages of Arufi, Derideri, Pongariki, Mata and Garaita and procured various amounts of cash to eligible voters. The Respondent resided in Mata village for three (3) days and gave money to the following eligible voters with the intention to induce eligible voters to vote for him.

Allegations of bribery at Karakara Ward in Daru Town and Gaima Kona Settlements

On 21 June 2012 at about 12.00pm at Karakara Ward in Daru town, the Respondent, in the company of his driver Mr. Morobe and Henry Aitsi, his campaign manager convened a meeting. Henry Aitsi, campaign manager, with the knowledge and authority of the Respondent, gave to Ian Dabu of the Christian Churches Neworking Fellowship, a voter, an envelope containing K1,000.00 in cash with the intention to induce all eligible voters present to vote for the Respondent. In addressing the Karakara community Ian Dabu then heard Henry Aitsi, campaign manager, say words to the effect: "I am giving you this money to help yourselves before you cast your votes".

Ian Dabu then saw, Henry Aitsi, campaign manager, who with the knowledge and authority of the Respondent gave K500 in cash to Mrs. Anado, also known as Judy, a voter, with the intention to induce her to vote for the Respondent.

On 21 June 2012 just after lunch a Daini Kepea, fisherman from Sagapari village of Fly River and resident of Daru town saw the Respondent in the company of his driver Mr. Morobe, were both stationed in a motor vehicle bearing registration CAN 841 a turbo land cruiser, along Tureture Kona road junction opposite the Oriomo Bituri Local Level Government Council Office, wind down the left front tinted window and gave a Siagara Blazi, a voter, cash money in K50 notes of K100 while at the same instant gave an estimate of K200 to K300 in K50 notes to Mr. Morobe's wife, Sandy Daniam, a voter, with the intention to induce them to vote for the Respondent.

On 21 June 2012 at about 5.00 pm at Gaima Kona settlement in Daru town, the Respondent, in the company of his driver Mr. Morobe and Henry Aitsi, gave to Pastor Uwa Naso of the Four Square Church, a voter, in a yellow envelope K1000.00 in cash with the intention to induce all eligible voters present to vote for the Respondent. In addressing the Gaima community Pastor Uwa Naso heard the Respondent say words to the effect: "I am giving you this money today so that you can make fire, eat and drink tea and coffee and cast your votes".

Allegations of bribery at New Century Supermarket in Daru Town, Togo village along the Pahoturi River, Barnap and Kulalae villages Ward 16 Oriomo Bituri LLG Council Area.

On 21 June 2012 between 3.00 pm and 4.00 pm at the front of New Century Supermarket in Daru town the Respondent gave to one Mary Kekea of Agobaro settlement, an eligible voter the sum of K200 in cash with the intention to induce her and her family to give their first preference of voters to the Respondent.

On 23 June 2012 at Togo village along the Pahoturi River, in the presence of Ledo Buia, a Women's Fellowship Leader of Maze Memorial Church and other voters gathered, the Respondent and his campaign team gave K300 in cash to the community with the intention to induce the voters to vote for the Respondent. Dickson Wake and Gudu sub, both voters, received the cash on behalf of the community. The Respondent told the community that the money was to buy rice, flour, sugar and other items to be cooked and had at Kulalae village on 29 June 2012, the polling day. In his campaign speech the Respondent told the voters to lock in all number one preferences for him. Ledo Buia heard the Respondent say he had been all over South Fly district distributing cash and special reference was had to Suki tribe and their communities who had already received over K20, 000 in cash.

On 24 June 2012 between 10.00 am and 12.00 pm at Barnap village Ward 16, Oriomo Bituru Local Level Government Council area, the Respondent in the company of his campaign team gave K180 in cash to Anau Bazu Buia, Chairman of the Pahoturi Circuit of the United Church, a voter, and told him to buy sugar, tea bags and other food items to be used at the polling on 29 June 2012 at Kulalae village with the intention to induce voters to vote for the Respondent.

On 24 June 2012 at about midday following Sunday serice at Kulalae village Ward 16, Oriomo Bituri Local Level Government Council area, the Respondent, in the company of his campaign team, went there to campaign regardless that the campaign period ended on 22 June 2012. With Danny Nawia, a ward member and other voters present, the Respondent gave to Kaiasi Gazo, a ward committee member and voter, cash of K300 to buy rice, flour, sugar and other food items so voters would eat together on polling day at Kulalae village on 29 June 2012. With betel nut chewers and smokers the Respondent bought K40 worth of betel nuts and smokes, all for the purpose to induce voters present to vote for the Respondent. In his campaign speech the Respondent told the voters, amongst other things, that his political party, the Peoples National Congress gave him K120, 000 and K340 was a part therein.

IAN DABU:

8.	This witness deposed that he is an eligible voter and he voted in 2012 National Election for the South Fly Open Electorate and the Western Provincial Seat. He is a Pastor with Christian Churches Networking Fellowship, Daru.

9.	This witness told of a meeting held on Thursday the 21 June, 2012 at around midday at Late Leo Aitsi's Residence. He and his wife went and observed the meeting. During the meeting, the Respondent Ganasi gave election campaign speeches which included telling the crowd to vote for him. With the respondent Ganasi were his driver Morobe and his Campaign Manager Henry Aitsi. Dabu said when Ganasi finished his speech, he went to his vehicle. Henry Aitsi, who had a bag with him, picked an envelope from the bag and told the crowd of 60 to 70 people, "Mr. Ganasi is giving you this money K1000.00 to eat and drink before you cast your vote for him." The envelope containing K1000.00 was given to Henry's younger brother Sam Aitsi on behalf of the youths. Sam took the envelope called all the youths present to go with him behind Aitsi's Residence to share the money contained in the envelope.

10.	Dubu said he was watching all these happenings. He said Henry Aitsi then called on the mothers organizing the occasion and gave the envelope containing K500.00 to them. Henry's mother Judith Aitsi picked up the envelope on behalf of the mothers. Dabu said he then saw Henry Aitsi walk to where the youths were trying to share the money and got the envelope containing K1000.00 from Sam Aitsi. Dabu said when Henry Aitsi saw him, he (Henry) said, "You are the right person to hold this". Then Henry handed the envelope containing the K1000.00 cash to Dabu. Dabu said as soon as he got the envelope from Henry, Sam Aitsi protested so Dabu placed the envelope on the table and left. Dabu said two (2) days later polling took place and he and his wife went and casted their votes.

GUBU SUB:

11.	Sub is 38 years old from the hamlet of Tago, Kululae village, Ward 16 and he is married with six (6) children. He is an Elementary School Teacher at Ngomtano Elementary School at Togo Hamlet. He said he has been teaching at Ngomtgono Elementary School for four (4) years.

12.	Sub recalled that on the 23 June, 2012 between 2.00 pm to 3.00 pm at Togo, he said Aide Ganasi and his Campaign Committee members and his supporters went to them at (their) Togo village. The village committee and leaders got all the people together to listen to what Ganasi was going to say. During that meeting Ganasi explained how to vote in the Limited Preferential System (LPV). He talked about his Peoples National Congress Party Flat form and its objectives. Ganasi told the people who had gathered that he had tried two (2) times and he had came second and that 2012 National Election was his last time to contest. He told those gathered that in 2007 he only had K12, 000.00 for his campaign.

13.	Sub said after his talk, he (Ganasi) gave them K300.00. The money was supposed to be given through Ganasi's Campaign Committee Dickson Wake but he was absent. Community members nominated Sub and he received the money on behalf of Togo Community. Ganasi told Togo Community that the money be used to buy food, cook food and provide refreshment for the people who come to cast their votes. Sub said Ganasi told the people that because of the flood, people do not need to go to their gardens to look for food during the polling day. In the afternoon, Dickson Wake came and Sub told him of the money given by Ganasi and Dickson told him to keep the money.

14.	This witness said two (2) or three (3) days later he (Sub) and few other people went down to Mabudawan by canoe and bought food stuffs with the K300.00 and took the food stuffs back to Togo to prepare for the people just as Ganasi had told them to do. On the 26 July, 2012 their polling booth was set up at Kulalae village and they went to vote.

ANAU BAZU BUIA:

15.	Buia is 43 years old, Church Elder holding the position of chairman of Pahoturi United Church circuit, Barnap village. He deposed in his affidavit sworn on the 10 October, 2012 and filed on the 11 October, 2012 that he is an eligible voter who voted in the 2012 National Elections for South Fly Open Electorate and the Western Provincial Seat.

16.	On the 24th June, 2012, Buia said between lunch hour and 2.00 pm, Aide Ganasi with his Campaign Team went to his Barnap village and told the Barnap Community that he was running for the seat and that this was his last time because people told him to try again. During the speeches he (Ganasi) explained his PNC Party Platform and the objectives of the party. Ganasi told the crowd that his party is confident of forming the next government. Buia said Ganasi gave his talk for half an hour.

17.	Buia further said Barnap village is part of the declared emergency area awaiting government relief assistance, Ganasi gave K180.00 to the Barnap Community which Buia received on behalf of the community. Ganasi told the community to use the money to buy food or anything the community wanted to use if for. Witness Buia said he was concerned that Ganasi was campaigning at the time after the campaign period had lapsed. When Buia raised this issue with Ganasi, he said Ganasi responded that he was not campaigning near the polling booth. Buia said his Barnap village went to polling on the 26 June, 2012 at Kulalae village which was two (2) days after Ganasi visited them.

SUBMISSION BY THE FIRST RESPONDENT AIDE GANASI:

18.	The First Respondent submitted that the witnesses petitioner has called were not proven to be eligible voters. However, in paragraph one (1) of their respective affidavits filed, the petitioner's witnesses Ian Dabu, Gudu Sub and Anau Bazu Buia deposed of the fact that they were eligible voters and voted in the 2012 National Election.

19.	The Petitioner's witness Ian Dabu, Gudu Sub and Anau Buia gave sworn evidence through their affidavit evidence that they were eligible voters and voted in the 2012 National Election. However, during cross-examination these witnesses were never cross-examined on this or took issue with this aspect of evidence until the petitioner closed his case.

20.	All the petitioner needs to at least bring some evidence to establish that the First Respondent.

•	gave, conferred or procured or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;

•	any property or benefit of any kind;

•	in order to induce any person to endeavour to procure the return of any person (First Respondent) at an election or the vote of any elector at an election.

•	Advanced or paid any money to or to use of any other person

•	With the intent that the money will be applied for any of the purposes referred to in paragraphs (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose (i.e. the money must be applied for the purpose of endeavouring to procure the return of any person (First Respondent) at an election or the vote of any elector at an election (paras (a) and (c) or omitting to do something at an election in the capacity of an elector (para. (b))

21.	In Labi Amaiu v Andrew Mald & Ors (2008) N3335 Unreported Judgment, the ground 10 (b) of the petition in that case stated:

"On the 19th April, two weeks after the issue of writs, there was gathering of supporters for the first respondent at his residence near Gordons International at Section 66, Allotment 2, Geita Place, Boroko as he was a candidate in the 2007 general elections for the Port Moresby Electorate. After addressing crowd he handed out a sum of K1500.00 in cash all in K20.00 notes for distribution among various groups gathered there. One Paul Koim being an elector was given K200.00 from his group after it was distributed."

22.	When delivering his ruling on a No Case Submission in Labi Amaiu case (supra), Late Kapi CJ, refused the submission to stop the trial as His Honour found there was some evidence of bribery, by the First Respondent because of Paul Koim's evidence.

23.	In this instant case, the First Respondent submitted that there was no bribery as Dabu left without knowing what happened to the K1000.00. Circumstances leading up to the time K1000.00 were given needs to be properly taken into consideration. The K1000.00 contained in the envelope was given by Henry Aitsi, Campaign Manager for Ganasi and given to his younger brother Sam and gave it to Ian Dabu. Sam complained so Dabu left the money on the table and left.

24.	Henry Aitsi being the Campaign Manager for Ganasi did the distribution of the money within the knowledge of Ganasi. As soon as Ganasi stopped his speech and walked 10 meters away, Henry spoke loudly and distributed the money. There is some evidence of bribery as far as Ian Dabu's evidence is concerned. Anau Bazu Buia's evidence of him receiving the K180.00 raises the issue of bribery.

25.	As I have pointed out earlier because most of the Petitioner's witnesses like David Mangewa, Manjam Tom, Danny Nawia, Eric Kuro and Gaius Kea did not appear to give evidence in Court thus amount to Petitioner not producing evidence to substantiate allegations labeled in grounds 8, 9, 10, 13, 14, 15 and 18. Thus, 7 grounds of petition are dismissed for lack of evidence. I will allow trial to proceed on grounds 11, 12, 16 and 17. Only 4 grounds of petition will proceed to trial.

26.	I find there is some evidence covering the elements of bribery made in grounds 11, 12, 16 & 17 and because of this finding I now over-rule the No Case Submission in part and order that the court proceeds to hear respondents case, on grounds 11, 12, 16 and 17.

__________________________________________

Furigi Lawyers: Lawyers for the Petitioner
Twivey Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyer for the Second Respondent