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Subam v Ganasi [2013] PGNC 25; N5070 (27 February 2013)

N5070

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.3)
Second Respondent

Waigani: Ipang AJ
2012: 19th December
2013: 27th February

ELECTION PETITION – Challenging the validity of the return of South Fly Open Electorate – grounds of petition allege bribery – offence of bribery in s. 215 of the Organic Law on National & Local Level Government Election (OLNLGE) is defined and created by s. 103 of the Criminal Code Act – 11 Grounds alleged in the petition – 7 grounds dismissed at No Case Submission stage & 4 grounds allowed to proceed through.

HELD:

1. Grounds 11 & 12 dismissed as there was no evidence that First Respondent's Campaign Manager distributed cash money with the knowledge or authority of the First Respondent.
   
2. Grounds 16 & 17 upheld as there are clear evidence of bribery committed by the First Respondent
   

Cases Cited:

Papua New Guinea Cases

Peter Isoaimo v Paru Aihi & Electoral Commission of Papua New Guinea (2012) N4921
Agonia v Karo (1992) PNGLR 463
Ebu v Evara (1983) PNGLR 28
Francis Koimanrea v Alois Sumunda & Ors EP No. 1 of 2002 (13 March, 2003) N2421
Stave v Minjipa [1977] PNGLR 293
State v Simon Ganga [1994] PNGLR 323
Kokara Fova CR. No. 1494 of 2006
Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342
Amet v Yama (2010) SC 1064

Overseas Cases:

Brown v Dunn (1893) 6 R 67 (HL)

COUNSEL:

Mr.A. Furigi, for the Petitioner

Mr. A. Baniyamai & S. Jubi stood in for Mr. T. Cooper, for the First Respondent
Mr. M. Kuma, for Second Respondent

DECISION

27th February, 2013

1. IPANG AJ: This is the decision on an Election Petition by the Petitioner Sali Subam who was the third runner up in the South Fly Open Electorate in the 2012 National Election. He polled 3033 votes with a difference of 456 votes to the First Respondent. The First Respondent Aide Ganasi polled 3489 votes and was declared the duly elected Member for South Fly on the 23rd July, 2012.
   
2. The petitioner being aggrieved by this election result (return) filed an Election Petition on the 31st August, 2012 challenging the election victory of the First Respondent. The petition filed contained 11 grounds of allegations against the First Respondent. All the grounds alleged bribery and illegal practices.
   
3. On the 14th December, 2012, I upheld the No Case Submission in part and dismissed grounds 8, 9, 10, 13, 14, 15 and 18 of the petition as no evidence were adduced by the petitioner to substantiate the allegations of bribery contained in those grounds. So in total, 7 of the 11 grounds of petition were dismissed and I ordered to proceed on 4 grounds of the petition and these are grounds 11, 12, 16 and 17.
   
4. It is appropriate that I re-state these four (4) grounds that were upheld:
   

GROUNDS OF PETITION:

11. 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 Networking Fellowship, a voter, an envelope containing K1, 000 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."
    
12. 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.
    
16. 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, 000.00 in cash.
    
17. On 24 June 2012 between 10.00am and 12.00pm at Barnap village Ward 16, Oriomo Bituri 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.
    

THE APPLICABLE LAW – BRIBERY

5. 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) N4921. 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 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.

From the grounds of petition, the Petitioner alleged offences under section 103(a) (i) (ii) (iii) and section 103(d) of the Criminal Code Act.

ISSUES FOR COURT'S DETERMINATION:

6. The following are the issues:
   
1. Whether the actions of Henry Aitsi, Campaign Manager of the First Respondent, in giving K1000 to unspecified persons followed by giving of K500.00 again by Henry Aitsi to Mrs. Anado for a Woman's Fellowship Group amounts to bribery against the First Respondent? (Grounds 11 & 12).
   
2. Whether the First Respondent by giving of K300.00 in cash on the 23 June, 2012 at Togo village amounted to bribery? (Grounds 16)
   
3. Whether the First Respondent committed bribery on the 24 June, 2012 at Barnap village, Ward 16, Oriomo Bituri Local Level Government Council area, when the First Respondent in company of his campaign team gave K180.00 cash to Anau Bazu Buai Chairman of the Pahoturi Circuit of the United Church? (Grounds 17).
   

PETITIONER'S CASE

7. The Petitioner called his following witnesses (i) Ian Dabu (ii) Gudu Sub (iii) Anau Bazu Buai. The other witness Mary Kekea was disqualified from giving evidence. She was disqualified on the basis that she had filed two (2) separate affidavits. Her affidavit sworn on 10 October 2012 and filed on the 11 October 2012 was filed in support of the Petitioner. Then, her second affidavit sworn and filed on the 6th November 2012 was filed in support of the First Respondent.
   
8. The following were the evidence given by the Petitioner's witnesses:
   

IAN DABU:

9. 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.
   
10. 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. What was said when K1000 was given was inconsistent. In the petition ground 11 it was stated as Henry Aitsi saying "I am giving you this money to help yourselves before you cast your vote". If Henry Aitsi was giving money was it within First Respondent's knowledge or authority?
    
11. 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. Whether Henry Aitsi distributed K500.00 with consent and knowledge of First Respondent is an issue to be resolved.
    

GUDU SUB:

12. Sub is 38 years old from hamlet of Togo, 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 Ngomtano Elementary School for four (4) years.
    
13. 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.
    
14. 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.
    
15. 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 has 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:

16. Buia is 43 years old, a 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.
    
17. On the 24 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.
    
18. 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 itfor. 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.
    
19. After the Petitioner's three (3) witnesses gave evidence, the Petitioner closed his case.
    

FIRST RESPONDENT'S CASE:

20. Mr. T. Cooper of counsel for the First Respondent applies to withdraw the affidavit of Judith Aitsi sworn on the 5th November, 2012 and filed on the 9th November, 2012. Petitioner agreed and her affidavit was withdrawn. Mrs. Aitsi gave short oral evidence. She told the court she resides at Karakara and knew the First Respondent Aide Ganasi. She said she can recall the gathering at her place where the First Respondent was campaigning. She said at the end of the gathering the Women's Group were given K500.00. When cross examined Mrs. Aitsi as to whether she is a supporter of Ganasi, she said she wasn't. She also said she is an eligible voter but did not vote. She told the court she received K500 from her son Henry Aitsi who is the Campaign Manager for the First Respondent.
    
21. First and second Respondents did not question Mrs. Aitsi after she gave evidence. Only the Petitioner's Lawyer asked this witness some questions.
    

SECOND RESPONDENT'S CASE:

22. The Second Respondent did not call any witness.
    

SUBMISSION BY FIRST RESPONDENT:

23. Mr. A. Baniyamai submitted there is no definition of bribery in the Organic Law on National & Local Level Government Election (OLNLGE) but it is settled law that "bribery" in section 215 (1) of Organic Law on National & Local Level Government Election (OLNLGE) means one of the offences created by s. 103 of the Criminal Code Act.
    
24. He continued on that bribery is a serious matter and one instance of it, if proven, will result in voiding of an election under s. 215 of the Organic Law on National & Local Level Government Election (OLNLGE). Baniyamai further submitted that whilst the elements of bribery are dependent on the circumstances of each particular case, section 103 of the Criminal Code Act, when read within the context of sections 3 & 215 of the Organic Law on National & Local Level Government Election (OLNLGE) sets out the following general elements:
    
    • (a) There must be an intention to procure the vote of an elector in favour of the candidate.
      
    • (b) The elector must be a person whose name is registered in the Common Roll.
      
25. Mr. Baniyamai cited the case of Agonia v Karo [1992] PNGLR 463 where it was held that the elements of bribery as set out under s. 103 of the Criminal Code Act must be proved beyond reasonable doubt.
    
26. He further submitted that s. 215 of the Organic Law on National & Local Level Government Election (OLNLGE) requires that the act of bribery must be committed either by the candidate or by his agent with the candidate's knowledge or authority before the election can be declared void. See Ebu v Evara [1983] PNGLR 28.
    
27. Also submitted by the counsel is s. 3 (1) of the Organic Law on National & Local Level Government Election (OLNLGE). Mr Baniyamai submitted that s. 3 (1) defines an elector as a person enrolled and registered in the roll. It was therefore submitted that it is a requirement that the person alleged to have been bribed or who has been bribed must be a registered voter.
    
28. Mr. Baniyamai referred to the case of Francis Koimanrea v Alois Sumunda & Ors EP No. 1 of 2002 (13 March, 2003) N2421 and quoted Sakora, J on page 28, where His Honour stated:
    

"Finally, on these two grounds, it needs to emphasize that it is a necessary element for each that the person (or persons) alleged to be the subject/object of the undue influence or bribery must be an elector (or electors), eligible and registered (enrolled) as such. Needles to say, one cannot influence unduly or bribe (or attempt to do these) a person who is not eligible to or cannot vote".

29. In summary it was submitted that to succeed on bribery, the Petitioner bears the onus to prove beyond reasonable doubt that the successful candidate or with his knowledge or consent, his agent:
    
    • (a) 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;
      
    • (b) Any property or benefit of any kind;
      
    • (c) In order to induce a registered voter to vote for him at the election. Baniyamai submitted that the only way the court can be satisfied beyond reasonable doubt as to the issue of one been a registered voter is to scrutinize the common rolls. First Respondent's counsel submitted that it is not enough to rely on mere statements of persons saying that they are or were registered voters. Thus, Baniyamai said this important fact not contested does not licence to nullify the election.
      

SUBMISSION BY SECOND RESPONDENT

30. Mr. M. Kuma of counsel for the Second Respondent presented a submission containing same arguments like the one presented by the First Respondent's Counsel. Mr. Kuma raised the argument of Petitioner's witnesses not been eligible or registered voters or electors. I have taken note of that. Counsel further argued that First Respondent in grounds 16 & 17 was assisting the flood victims. I have taken note of that argument and now give my analysis.
    

ANALYSIS OF FACTS AND LAW:

Movements of First Respondent

31. The Election Commission scheduled the 2012 National Elections to take place as follows:
    

32. Considering the above Electoral Commission Scheduled of National Election, the following were undisputed movement of the First Respondent from the grounds 11, 12, 16 and 17 of the petition. Movement in grounds 11 & 12 is to be treated as one.
    

33. At Karakara Ward, Daru Town the polling was to commence on the 23 June, 2012. From grounds 11 & 12, it was revealed the First Respondent was there on the 21 June, 2012 which was 2 days before polling commenced. On Saturday 23 June 2012 First Respondent was at Togo village. Togo villagers would cast their votes at Kulalae village on the 29 June, 2012. On the 24 June, 2012 the First Respondent was at Barnap village. Barnap villagers would cast their votes at Kulalae village on the 29 June, 2012. It was not disputed as I said the First Respondent was systematically at those places, two (2) to five (5) days prior to commencement of the polling.
    

REGISTERED VOTERS:

34. During Petitioner's case when Petitioner's witness Ian Dabu gave evidence and relied on his affidavit sworn on the 10 October, 2012 and filed on the 11 October, 2012 he was cross examined on the following questions by First Respondent's counsel:
    
    1. Q. What were the bases for your voting?
    1. Good Leader
       
    2. Paragraph 5: How well you know Henry Aitsi?
    1. Well
       
    3. Q. How well you know Sam Aitsi?

A. Well since we were small boys

4. Q. Sam did not distribute money with the youths?

1. ,........
   

35. When Gudu Sub gave his evidence, the First Respondent's counsel in cross examination asked; "Q. How do you rated 2012 Election? A. ...." When Anau Bazu Buia gave evidence, he was not cross examined by the First Respondent. Then at the close of the Petitioner's case and during making of No Case Submission, the issue of Petitioner's witnesses not been eligible or registered voters were raised. However, in the Petitioner's witnesses affidavits tendered as evidence they (Ian Dabu, Gudu Sub and Anau Bazu Buia) stated that they are eligible voters and voted in the 2012 National Elections. The First Respondent and the Second Respondent took no issue with that aspect of evidence. It was not a disputed fact. Both Respondents never put their case in cross examination to the Petitioner's witnesses. In a normal criminal trial it will be in clear breach of the rule in Brown v Dunn (1893) 6 R 67 (HL).
    
36. Basically the rule in Brown v Dunn (supra) is that the party intending to rely on a particular version of facts must put to the witness (es) in cross examination so they are given the opportunity to explain their version of facts. Thus, the counsel for the First Respondent did not do this therefore he cannot ask the court to believe what he has failed to put to the Petitioner's witnesses in cross-examination. See State v Minjipa [1977] PNGLR 293; State v Simon Ganga [1994] PNGLR 323 and Kokara Fova CR. No. 1494 of 2006.
    
37. In an Election Petition trial it is the application of substantial merits and good conscience which will dictate. Not because Respondents' action contravene law of evidence. It is unmeritorious, without commonsense and good conscience to accept Respondents argument after they failed to siege the opportunity provided to them through cross-examination. To accept First Respondent's argument would be totally unfair to the Petitioner (s. 217 OLNLGE). It will amount to procedural unfairness.
    
38. The s. 217 Organic Law on National and Local Government Election (OLNLGE) states:
    

"217 Real Justice to be observed

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether evidence before it is in accordance with the law of evidence or not".

39. The Supreme Court in Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342 stated; "It is clear that s. 217 of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only."
    
40. The Respondents were presented with the opportunity during cross-examination to crucially examine whether Petitioner's witnesses were eligible or registered voters or electors as they said in their affidavit evidence. They let go of this opportunity and raised the issue only after the petitioner's witnesses completed giving evidence and petitioner closed his case. I, find this is totally unfair to the petitioner's witnesses and contrary to s. 217 of the Organic Law and would refuse this argument.
    

NAME OF WOMENS FELLOWSHIP GROUP

41. First respondent submitted that no names of the women fellowship group were mentioned as being the recipients of the funds. First Respondent argued that a women's group can be likened to an institution and an institution is incapable of being bribed because it can never be a registered voter. Mr. Baniyamai referred to Pokawin –v- Jumokot [2003] 3 January, 1993 unreported, where a cheque was paid to a school during election period was held not to amount to bribery because an institution cannot be bribed, except individual persons. This argument must fail as the money was given to Mrs. Judith Aitsi for Karakara Women's Fellowship Group.
    
42. The next line of First Respondent's argument that a Women's Fellowship Group is likened to an institution is in my view a little out of context with Pokawin v Jumokot. A Women's Fellowship Group is different to a school.
    

GROUNDS 11 & 12 (IAN DABU):

Issue: Whether the actions of Henry Aitsi, Campaign Manager of the First Respondent, in giving K1000 to unspecified persons followed by giving of K500.00 again by Henry Aitsi to Mrs. Anado for a Woman's Fellowship Group amounts to bribery against the First Respondent?

43. In ground 11 of the petition Henry Aitsi was seen giving an envelope containing K1000.00 to Sam Aitsi for the youths. However, Henry Aitsi picked up the envelope containing the money and gave it to Ian Dabu. Then in ground 12 Henry Aitsi gave K500.00 cash to Mrs. Anado (Judy Aitsi) for Karakara Women's Fellowship Group. While Henry Aitsi was giving out the money, First Respondent was 10 metres away from Henry Aitsi walking towards his vehicle. Whether the giving of K1000.00 and K500.00 by Henry Aitsi, the First Respondent's Campaign Manager was with the knowledge and authority of the First Respondent? The only evidence from the Petitioner was that the First Respondent was 10 metres away and Henry spoke loud that First Respondent could have heard him. It is fairly important that the Petitioner need to establish the fact that the First Respondent was aware and authorized of what Henry Aitsi did. In my view this evidence fall short of establishing that Henry Aitsi gave the money with authority and knowledge of the First Respondent. In Amet –v- Yama SC 1064 (2010) it was held that mere presence of the candidate at the scene of the alleged bribery is not enough.
    
44. Also in Amet v Yama (supra) the Supreme Court further held:
    
    • Under s. 215 (3) (a) of OLNLGE the "knowledge" or "authority" of the candidate as to any illegal act or undue influence is an essential element of the ground.
      
    • It must be pleaded that the act relied upon was likely to affect the election result.
      
    • It is helpful to plead the number of votes received by the winner and the runner-up to determine whether or not the result was likely to be affected.
      
    • It is a requirement that the petition pleaded that it is just that the results of the election should be declared void.
      
    • Where the presence of a winning candidate is relied upon to prove "knowledge" or "authority" it must be alleged that the candidate was present with knowledge or approval of what his supporters would say.
      
    • The term "knowledge" or "authority" must denote a pre-existing state of a candidate knowing or authorizing an illegal act or undue influence on his behalf. It must be proven that the candidate willfully encouraged the statement by his supporters.
      
    • The presence of a candidate where a statement was made is not by itself evidence that the candidate authorized or had knowledge of what the speaker was going to say.
      
45. In Francis Koimanrea v Alois Sumunda & Ors EP No. 1 of 2002 (13 March, 2003) N2421 the Court stated;
    

"In relation to allegations of illegal practices, there are three types of these covered by s. 215 Organic Law. Firstly, Sub-s (1) covers the situation of bribery and undue influence committed by the successful candidate but with his knowledge or authority (sub-s (2). The third situation concerns any type of illegal practice, including those defined under the Organic Law (for example, under s. 178), committed by anyone including the successful candidate himself: sub-s (3). To prove the s. 215 (3) allegation(s), the petitioner needs to plead as required and satisfy the court according to the required standard the following;

• The illegal practice the subject of the complaint; and
  
• The illegal practice other than bribery or undue influence committed by the successful candidate; or the illegal practice (including bribery and undue influence ) committed by another person but with the knowledge and authority of the winning candidate;
  
• The result of the election is likely to be affected by the illegal practice; and
  
• It would be just that the winning candidate be declared not to be duly elected or the election be declared void."
  

46. To conclude I am not convinced or satisfied that because the First Respondent was at the alleged bribery scene and was some 10 metres away, he was aware of what Henry Aitsi said when Henry handed over the monies. The evidence fall short of establishing that Henry Aitsi gave the monies with knowledge and authority of First Respondent. As far as I am concerned Grounds 11 & 12 of the petition on allegation of bribery has not been proven beyond reasonable doubt. I therefore, dismiss grounds 11 & 12.
    

GROUNDS 16 (GUDU SUB):

Issue: Whether the First Respondent by giving of K300.00 in cash on the 23 June, 2012 at Togo village amounted to bribery?

47. First and second Respondent's respectively submitted that during that time (23 June, 2012) there was an emergency situation at Togo village caused by natural flooding. First Respondent gave Gudu Sub and Togo villagers K300.00 to assist them buy food.
    
48. During that time First Respondent Ganasi explained how to vote in LPV System. He talked about Peoples National Congress Party (PNC) Flat form and its objectives. He told the gathering he tried two (2) times; he came 2nd in 2012 National election. This is his last time to contest. He told the gathering in 2007 he had K12, 000.00 for his campaign. This is purely a political speech and not a speech that would be addressed to flood victims.
    
49. In Peter Isoaimo v Paru Aihi & Ors (supra) at p. 24 Cannings, J found as follows;
    

"The First Respondent, in the company of his First Secretary Paul Aisa and President of Mekeo Kuni LLG Simon Ake and police and security personnel and others visited Veifa'a village on the afternoon of 26 May. The visit was made on the invitation of Joe Ifagai Ivan, a youth leader and a member of the First Respondent's Campaign Committee. I find that the purpose of the visit was to advance the First Respondent's Campaign for re-election. His evidence that he was not campaigning and not thinking about the election on that day is not incredible. During the course of the visit the first respondent made a speech in which he highlighted his achievements as member for Kairuku-Hiri over the previous five years.

50. In this present case the money was to buy food, cook food and provide refreshment for people who come to cast their votes. I find the purpose of First Respondent's visit to Togo village was to do last minute campaign after campaign period already lapsed and it was two (2) days before polling for Togo village would commence on the 26 June, 2012 at Kulalae village. Though, Togo village was under emergency situation, First Respondent's visit was a political visit and he had intention to bribe the voters at Togo. He also travelled to other places like Daru Town and gave same or if not similar political speech.
    
51. I am satisfied beyond reasonable doubt the sum of K300.00 given by the First Respondent to Gudu Sub for himself and for Togo villagers amount to bribery as defined by s. 103 of the Criminal Code Act and s. 215 of OLNLGE. First Respondent's had intention to bribe Gudu Sub and Togo villagers and had done that by giving one Gudu Sub a sum of K300.00 for Togo villagers to buy food, cook food and provide refreshment for people who would cast their votes on the 26 June, 2012.
    
52. I find the following has been proven beyond reasonable doubt:
    
    • First Respondent Aide Ganasi himself had on 23 June 2012 at Togo village gave or conferred sum of K300.00 (property/money); in order to induce Gudu Sub and Togo villagers who gathered to endeavour to procure their votes at the 2012 National Election; and/or advances or pays money (K300) to Gudu Sub and Togo villagers with intent that the money will be applied for purposes referred to in paragraph 103 (a).
      
    • I find First Respondent has committed the offence of bribery under section 103(a) (i) (ii) (iii) and (d) of the Criminal Code Act.
      
    • I uphold ground 16 of the petition.
      

GROUND 17: (ANAU BAZU BUIA):

Issue: Whether the First Respondent committed bribery on the 24 June, 2012 at Barnap village, Ward 16, Oriomo Bituri Local Level Government Council area, when the First Respondent in company of his campaign team gave K180.00 cash to Anau Bazu Buai Chairman of the Pahoturi Circuit of the United Church?.

53. Respondents say because of the flooding in the area, the First Respondent gave K180.00 to Anau Bazu Buia. Buia said he was not bribed. He said his only concern was that the campaign period had lapsed.
    
54. On the 24 June, 2012 at Barnap village, Ganasi told the people "he was running for the seat and that this was his last time because people told him to try again". He explained his PNC Party Flat form and objectives of the party. Ganasi told the crowd that his party is confident of forming the next government.
    
55. Ganasi talked about half an hour. I find the campaign period lapsed already and the First Respondent knew as when questioned by Buia, he (Ganasi) said he was not campaigning near the polling booth.
    
56. I also find the First Respondent by his speech and giving of K180.00 had intention to bribe Anau Bazu Buia and his Barnap villagers. It was not the speech about flood and natural disaster but political campaign speech. Refer to Peter Isoaimo's case (supra).
    
57. Both respondents did not call any witnesses to rebut grounds 16 & 17 of the petition.
    
58. I find the following has been proven beyond reasonable doubt.
    
    • On the 24 June, 2012 at Barnap village, Mr Ganasi had bribed Anau Bazu Buia with K180.00 with the intention to induce him (Anau) to vote for him in 2012 National Election.
      
    • I uphold ground 17 of the petition
      
59. CONCLUSION:
    

• Re Ground 16: Togo village (Gudu Sub)

It has been proven beyond reasonable doubt that the First Respondent has committed offence of bribery under section 103 (a) (i) (ii) (iii) and section 103 (d) of Organic Law on National and Local Level Government Election (OLNLGE) by conferring K300.00 to Gudu Sub for himself and Togo villagers.

• Re Ground 17: (Barnap village) (Anau Bazu Buia)

It has been proven beyond reasonable doubt that the First Respondent has committed offence of bribery under section 103 (a) (i) (ii) (iii) and section 103 (d) of Organic Law on National and Local Level Government Election (OLNLGE) by conferring K180.00 to Anau Bazu Buia for himself and Barnap villagers.

• I am satisfied the 2 acts (Ground 16 & 17) of bribery are likely to affect the election results.
  
• This court finds that the First Respondent being a candidate in the 2012 National Election committed 2 acts of bribery and because he was a successful candidate it would be just his election is (now) declared void or is declared not duly elected pursuant to s. 215 of Organic Law on National and Local Level Government Election (OLNLGE).
  

60. In light of the above findings the Registrar is obliged to report to the authorities referred forward a copy of the Court's Order and to the clerk under section 221 (copies of the petition and order of the court to be sent to the Parliament) of Organic Law on National and Local Level Government Election (OLNLGE). There shall be a new election under s. 226 C (Effect of Decision) Organic Law on National and Local Level Government Election (OLNLGE).
    

FORMAL ORDERS

1. The petitioner's petition (grounds 16 & 17) filed on the 31 August, 2012 are upheld having found that the First Respondent, the successful candidate committed bribery and such acts of bribery (s. 103 (a) (i) (ii) (iii) & (d) under the Criminal Code Act and were likely to affect the election result, and therefore the election of the First Respondent as Member for South Fly is declared void (s. 215 Organic Law on National and Local Level Government Election (OLNLGE)).
   
2. Further orders that a By-Election be held for the South Fly Open Electorate Seat.
   
3. Petitioner's Security Deposit of K5000.00 be refunded.
   
4. The question of costs is reserved and may be pursued by any party by Notice of Motion.

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