N5003

PAPUA NEW GUINEA
[INTHE NATIONAL COURT OF JUSTICE]

EP.NO.73 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 MOROBE REGIONAL ELECTORATE

BETWEEN:

LUTHER AKISAWA WENGE
Petitioner

AND:

KELLY NARU
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Lae: Kirriwom, J.
2013: 11 & 14 February

[NO.1]

NATIONAL ELECTIONS – Disputed Returns – Bribery – Actions of servants or Agents with knowledge and authority of winning candidate - Objection to competency – Insufficient facts – Defective attestation – Objections dismissed.

P alleged that R1 went to Aseki, Menyamya talked to several named persons who were to campaign for him and told them he had K25,000 in cash with him that were intended for the committees, scrutineers, church leaders and influential people. They were to distribute the cash and tell those people to vote for him only and not P.

P further alleged that pursuant to these instructions named persons went out distributing the cash of varying amounts and repeating and echoing the same messages.

R1 and R2 filed objections to competency of the petition for failing to meet the requirement of section 208(a) and (d) on the basis that it lacked sufficient facts for purpose of section 103 of the Code, failure to plead in the terms of section 215(3) OLNLLGE and R2 also objected to the attestation clause.

Held: Objections dismissed because:

(1)	To dismiss a petition on the basis of section 208(d) OLNLLGE there must be clarity in the law and there must be evidence:

James Yoka Ekip & Sanagke v William Duma & Electoral Commission [2012] N4899

Philip Kikala v Nixon Koeka Mangape, EP No. 18 of 2012 (18 January, 2013 distinguished

(2)	Pleadings generally illustrated a clear scheme or scenario of R1 and supporters handing out cash of varying amounts to named persons on the dates and times mentioned with reference to certain elements of bribery under section 103 Code in the context of section 215(1) OLNLLGE.

(3)	The petition was allowed to go to trial with all its paragraphs intact largely because of the way and style it was pleaded.

Cases cited:

James Yoka Ekip & Sanangke v William Duma & Electoral Commission [2012] N4899
Philip Kikala v Nixon Koeka Mangape, EP No. 18 of 2012 (18 January, 2013 
Bourne v Voeto [1977] PNGLR 298 
Delba Biri v Ninkama [1982] PNGLR 342 
Peter Isoaimo v Paru Aihi, EP 72 of 2012 [2012] N4921
Jimmy Maladina v Charles Abel [2012] N4940 
Raymond Agonia v Albert Karo [1992] PNGLR 462

Counsel:

E. Mambei, for the Petitioner
C. Mende, for the First Respondent
H. Nii, for the Electoral Commission

RULING ON COMPETENCY
14th February, 2013

1.	KIRRIWOM, J.: This is an election petition of Luther Akisawa Wenge who was the former governor of Morobe Province and the runner up in the 2012 National Elections to the Respondent Hon Kelly Naru, MP who polled 100,389 votes to win while the Petitioner polled 83,967 votes. The absolute majority was 92,179 votes being 50%+1 votes of all total allowable votes and the winning margin was 8,210 votes.

2.	The petition is grounded on various instances of bribery allegedly committed between 13 and 14 June 2012 at Aseki Station Menyamya by the winning candidate by himself and his servants or agents acting with his express knowledge and authority during his campaign visit following the issue of the writ and is brought pursuant to section 215(1) of the Organic Law on National and Local Level Government Elections (OLNLLGE).

COMPETENCY

3.	Objections to the competency of the petition have been filed by the Respondent and the Electoral Commission, joined in the proceeding on application to the Court on two grounds:

1.	Failing to plead sufficient facts contrary to section 208(a) OLNLLGE;
2.	No proper attestation by witnesses as required under section 208(d) OLNLLGE.

4.	 The petition itself comprises 12 pages including the attestation page and the body of the petition is divided in four parts:

1.	Background or base facts – Part A: Paras. 1 to 8
2.	Bribery case one – Part B Paras 1-16
3.	Bribery case two – Part C Paras 1- 7
4.	Bribery case three – Part D Paras 1- 4
5.	Relief

5.	From general observation in the light of the submissions I heard on this preliminary point, the following issues stand out:

1.	Whether a winning candidate can be found guilty of bribery in the present scheme of the OLNLLGE through the actions of his servants or agents done with his knowledge and authority?

2.	Whether section 215(3)(a) OLNLLGE includes bribery as an illegal practice committed by persons other than the winning candidate with his knowledge and authority?

3.	Whether the court has power to declare an election void under section 215(1) when the allegation of bribery is against persons other than the winning candidate?

4.	Whether giving of money to one's own supporter by a candidate amounts to bribery of that person?

5.	Whether a petition meets the requirement of section 208(d) OLNLLGE if signed by witnesses not resident in the Electorate from which the dispute arises and whose residential addresses are not within the Electorate where petition emanates from?

6.	But these are issues for the trial proper to consider should I find that the petition is competent to go to trial. My task now is to consider the arguments raised and to determine whether this petition is competent in law to proceed to trial. 

A.	Attestation 

7.	In addressing the applications I have decided that I deal first with the Second Respondent's argument pursued under section 208(d) OLNLLGE. This section provides:

"A petition shall –
(d) be attested by two witnesses whose occupations and addresses are stated."

8.	Mr Nii submits that this petition must be dismissed now because it comes without proper attestation. Proper attestation would require attesting witnesses to have personal knowledge of those matters set out in the petition and can verify to their correctness and reliability. It must not be a mere witnessing of the petitioner signing the petition.

9.	He submits that section 208(d) OLNLLGE is expressed in mandatory terms where it is stated that "a petition shall be attested to by two witnesses whose occupations and addresses are stated". This provision means much more than mere signing of the petition by the petitioner being witnessed by two persons as witnesses. He submits that attestation is more involved as in a wills and probate situation. And he made references to recent decisions of Kandakasi J in James Yoka Ekip & Sanagke v William Duma & Electoral Commission [2012] N4899 and Makail J in Philip Kikala v Nixon Koeka Mangape EP No. 18 of 2012 (18 January, 2013 which favoured that view and approach.

10.	Kandakasi J made this remarks in Ekip & Duma case(supra) which I see are pertinent to the this discussion:

"Purpose for requiring petitions to "be attested"

59.	Bearing this scheme in mind, I now turn to a consideration of the questions of what is the purpose for requiring petitions to "be attested" and what is the meaning of the phrase "be attested"? I think the purpose of requiring attestation and who should be attesting will become clearer if we first consider and establish the meaning of the term "attested" as used in s. 208 (d). Hence we start with what is the meaning of the term "attested". Attested is the past tense of the word "attest". The term has two meanings, one in the positive sense and the other in the negative. As s. 208 requires a positive act of attesting to a petition we should only concern ourselves with the positive meaning. Accordingly, I note that the word "attest" according to most dictionaries means, "prove", "confirm", "verify", "declare", "testify" or "substantiate". If we employ any of these words in place of the phrase "be attested" in s. 208 (d), that phrase could read something like "be proved", "be confirmed", "be verified", "be testified" or "be substantiated". But the most appropriate ones would be "be confirmed" or "be verified".

60.	Submissions of the learned counsel for the third respondent and the petitioner, Simon Sanangke referred me to the requirements for attestations of wills under s. 13 of the Wills, Probate Administration Act, and not requiring prove of certain documents by attesting witnesses under s. 32 of the Evidence Act. This offers us some further assistance. In particular the former is most helpful. That provision in relevant parts reads as follows:

"13. Execution of will.

(1) Subject to this Part, a will is not valid unless it is written and executed in the following manner:—

(a) subject to Subsection (3), it is signed at the foot or end by the testator or by some other person in his presence and by his direction; and

(b) subject to Subsection (3), the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(c) the witnesses attest and subscribe the will in the presence of the testator.
.....
(3) Notwithstanding Subsection (1)(a) and (b), a will may be signed or acknowledged in the presence of, and may be attested and subscribed by, an authorized witness."
(Underlining mine)

61.	In my view a combined reading and consideration of these provisions and the positive dictionary meaning given to the word "attest", means that the attesting witness under s. 208 (d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position, to verify, confirm, substantiate, testify, certify, prove, or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return, or someone who is eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts. This appears clear from the opening line of s. 208, which says "A petition shall". For the purposes of s. 208 (d) "[a] petition shall ... be attested". This is not the same to say, the signing of the petition by a petitioner or anything else a petitioner or anyone else does be attested. The provision specifically requires a petition be attested to by two witnesses, which means the whole of the petition, the contents of which the witness must be aware and be in a position to testify, confirm, substantiate or prove. This makes a lot of sense and ties in well with the fact that election petitions are serious matters and is a special process or jurisdiction with special and specific requirements which sets it apart from all other process in the National Court.

62.	The above view is consistent with the special nature of election petitions and what the Courts have already held in respect of attesting witnesses giving their names, occupations and addresses in a way that is sufficient to easily and readily identify the witnesses and locate them. Before I get into a discussion and application of the law regarding the requirement to give addresses, I make it clear that what we have discussed above will not be applied to this case, because the parties did not come ready for argument and a decision on that at the first place. In future however, I would expect that, this would be appropriately considered and where applicable, apply them."

11.	To appreciate Mr Nii's submission in its proper context I set out below the disputed part of this petition which is in page 12, the last page and also a proposed attestation clause according to Mr Nii's contention.

12.	Page 12 of the petition is the attestation clause and is headed "ATTESTATION OF WITNESS" and reads:

ATTESTATION OF WITNESS
	
Signature:......(signed)..................................	Signature:........(signed)..................	
Name: Mr. Collin Baroi	Name: Mr. Bernard Gaso	

Address: ATS Settlement
 Oro village, 7 Mile
 National Capital District	
Address: ATS Settlement
 Oro village, 7 Mile
 National Capital District	
Occupation: Filing Clerk	Occupation: Welder, Tradesman
	
It is intended that copies of the Petition will be served on the following person:

•	Kelly Naru, The Respondent
	
This Petition is filed by LUTHER AKISAWA WENGE, whose address is:

Mr. Luther Akisawa Wenge
c/- P.O. Box 4398
LAE
Morobe Province
Telephone: 72929678
	
The Petitioner's address for service is own personal address.	
	
13.	To adopt Mr Nii's submission for an ideal Attestation Clause, using the same lay out or format as above, would look something like this (but with the heading reworded as "attestation clause" and followed by the statement in bold letters preceding the signatures):

ATTESTATION CLAUSE
We,.........................................and............................................, being electors or being familiar with or having knowledge of the facts pleaded in the petition on this date attest to this petition, or verify the contents of this petition, etc".	

Signature:........................................	
Signature:.....................................	
Name: Mr. Collin Baroi	Name: Mr. Bernard Gaso	

Address: ATS Settlement
 Oro village, 7 Mile
 National Capital District	
Address: ATS Settlement
 Oro village, 7 Mile
 National Capital District	
Occupation: Filing Clerk	Occupation: Welder, Tradesman
	
It is intended that copies of the Petition will be served on the following person:

•	Kelly Naru, The Respondent
	
This Petition is filed by LUTHER AKISAWA WENGE, whose address is:

Mr. Luther Akisawa Wenge
c/- P.O. Box 4398
LAE
Morobe Province
Telephone: 72929678
	
The Petitioner's address for service is own personal address.
	
14.	I have perused the judgments of my brothers Kandakasi, J and Makail, J and have no reason to disagree with their approaches according to the peculiar facts of the cases before them in their construction and application of section 208(d) OLNLLGE because the course each took was the only appropriate one open in their respective cases. Every case is considered on its own peculiar facts and circumstances. And the case before me is factually not the same as those before them.

15.	Having said that while I appreciate the thrust of Mr Nii's submission on this ground of objection to competency, I am afraid that I am unable to construe and apply section 208(d) OLNLLGE in the same way as he invites me to do for the following reasons:

o	Firstly, there is no pro forma or prescribed form for standard attestation clause to be applied in election petitions for purposes of section 208(d) OLNLLGE in the way he suggests;

o	Secondly, if this was required, the Organic Law must specifically provide for it;

o	Thirdly, concluding from the appearance or face value of the document alone that it violates section 208(d) OLNLLGE could result in injustice;

o	Fourthly, there is not one iota of evidence that the two witnesses attesting to the petition are not electors of Morobe Regional Seat.

o	Fifthly, there is no evidence to suggest that the two witnesses had no information, let alone personal knowledge, of the election in Morobe Regional.

o	Sixthly, there is not a iota of evidence that this Petition was not drafted and settled in Morobe and signed and attested to in Morobe but witnesses are resident and had addresses in NCD.

o	Seventhly, to apply such interpretation and construction to the word 'attest' by the court, and removing the simple task of drafting a petition, away from a lay person, without clear legislative dictate would be against the spirit of section 222 OLNLLGE.

16.	In my view this issue can be dealt with by calling evidence and that is not the purpose for competency application. The reason for this is that there must be certainty that the witnesses who signed the petition in page 12 are not electors from Morobe Provincial who may have provided Port Moresby addresses. It would be futile for the court to assume that the two attesting witnesses in this petition are not electors for Morobe Regional Electorate just because they have provided addresses in National Capital District and the implication on the face of the petition itself is that this petition was drafted, signed and witnessed in Port Moresby. As to who carries the onus of proving this is another matter.

17.	This issue alone is enough to warrant a hearing to determine whether the full meaning and purpose of the term 'attest' as contained in section 208(d) and advanced in Mr Nii's submissions have been adhered to subject to the discussions hereinafter covered in this ruling.

18.	But to accord this particular issue the hearing that I alluded to above, the legal position of what section 208(d) entails or intends by use of the word 'attest' must be firstly made very clear by the Parliament. Section 208(d) as it is clearly deficient in conveying precisely what is argued before me. With respect, there is already far too many court or judge made laws in the way the court or different judges have read and construed what is meant by or what are "facts" as provided in section 208(a) OLNLLGE since Delba Biri v Ninkama [1982] PNGLR 342 regarding the phrase 'set out the facts relied on' and various case authorities have prescribed different descriptions of the kind of facts required. I say this because a petition can survive or collapse on this point alone for not meeting the requirements that Mr Nii eloquently advanced in his submission while urging the court to be bold enough to read into the word attest, the purposive and true legal meaning and intent for its existence in the legal sense of the word as defined in the dictionaries. 

19.	In my view without the submissions made by Mr Nii on the alleged defect of the petition at page 12, petitions like this have passed the test of competency without trouble in the past. And I would imagine that this petition would have adopted one of the precedents that have survived such challenge as to competency. 
20.	For the foregoing reasons I am not inclined to find the petition on this argument incompetent until such time the law is pretty clear. I will therefore dismiss this ground of objection to competency of the petition.

B.	Sufficient Facts

21.	 I now address the main ground relied on by both the First and Second Respondents. 

Part A

22.	Part A of the petition covers introduction and part of the facts constituting the grounds of the petition and for that reason paras 4 – 8 could be considered a separate ground because it sets the scene. This is where the First Respondent is alleged to promise several persons a total of K25,000 that is available for this campaign purposes. 

23.	In respect of Part A of the petition, the Respondents submit, amongst others, as follows:

•	That the petition fails to meet the requirements of section 208(a) in that the relevant facts in relation to section 103 of the Code have not been pleaded.

•	That the pleading must clearly indicate under what particular subsection of section 103 is the complaint of bribery founded?

•	That the pleading must clearly state how the actions of the servants or agents of the First Respondent bribed voters?

24.	Paragraph A 7 of the petition alleges that around 8am on 13th June 2012 while greeting two electors Setra Poana and Ans Wanaro at Aseki Guest House at Aseki Station the First Respondent said to them or words to the effect:

" I have K25,000 cash with me. You get this money and distribute to our committees, scrutineers, church leaders and influential people and thell them to vote for me in the coming election. Do not vote for Luther Wenge, Box No.12 because he never comes up to Aseki cold place. He stays in Lae. You give me vote number 1 but do not give 2 and 3 to Luther Wenge Box Number 12 give them to other candidates."

25.	That meeting was followed by a political rally held at Aseki Station, Menyamya District on 13th June, 2012 persons known as Ans Wanaro and Satra Poana gave K5000 to a Chris Angus, an elector and senior church Leader of Aseki Lutheran Church accompanied by 345words to these effects: 'This money comes from Kelly Naru to help the Church. It must go to the Church and tell the Congregation to give their first vote to Kelly Naru and do not give their second and third votes to Luther Wenge.' This money was said to be part of the K25,000 earlier given by the First Respondent.

26.	During that same time while at Aseki Station it is alleged that Ans Wanaro paid another K5000 by distributing that money to the following names persons believed to be his scrutineers amongst others: Benny Okam, Skyson Denny, Francis Yanisen, Moses Kamis, Norma Mathew, Timex Anga weto and Rodney Obert. While doing so he uttered words to this effect: 'You each get paid K250 for scrutinising votes for Kelly Naru. Given him your first choice but don't give your second and third to Luther Wenge, give to somebody else because he does not come to Aseki Station.' In saying this it is alleged, Ans Wanaro, told them to spread the word, give some money to other electors and tell them to vote 1 for Kelly Naru and not give second the third preference votes to Luther Wenge.

27.	Later that day about 3pm the balance of K5000 was distributed amongst the First Respondent's campaign committee members inside Mr Wanaro's house at Aseki Station namely Samson Sakai, Henry heno, Augustine Yakamtong, Kiku Yapi, Sakarias Timon, Manva Johnathan, Simon Valamu, Vincent Yapu, Giob Tomis and Simon Sakai. They were each given K100 and told to remain committee members only for Kelly Naru and no other candidates. They were also told give first choice of their vote to Kelly Naru and not give their second and third preferences to Luther Wenge. They were also told to share some of the money with others and relay the same messages to them on how to vote.

28.	The alleged events or incidences of bribery or cash distribution of that day 13th June 2012 concluded with the people who received the money expressing their appreciation and promising to vote for Mr Kelly Naru.

29.	Altogether that day it is alleged that through his campaign team leaders in particular Ans Wanaro, the First Respondent dished out cash monies ranging from K250 to K5000 to 18 named persons.

30.	If one were to apply the rule of strict legal drafting of an election petition alleging bribery that clearly highlights the elements of bribery as an offence under section 103 of the Criminal Code and various subsections therein, some helpful guidance can be obtained from the Criminal Practice Rules 1987 (No.1 of 1987) section 60 which provide the style and content of a good pleading of a criminal charge of bribery under section 103 of the Code. An example of this is set out in Canning J's judgment in Peter Isoaimo v Paru Aihi EP 72 of 2012 [2012] N4921 at page 7.

31.	But the question is, is it really necessary to go that far? Is it not good enough that the use of ordinary English language to describe or express the same things that the law is prescribing sufficient for meeting the requirement of section 208(a)? If drafting an election petition must remain the task of lay persons and not lawyers, to put it as high as the Criminal Practice Rules might be quite a tall order in this day and age.

32.	What is important for purpose of setting the scene as it were as set out in Part A of the petition from para 1-8 of the petition is that apart from it being a base statement, it shows that the First Respondent was in Aseki on 12 and 13 June, 2012 where he promised K25,000.00 with which his campaign committee will use to carry put his campaign. 

33.	It was argued that the pleading was deficient in that it failed to show the money actually being transferred to the recipients which was necessary for those allegations in subsequent grounds pleaded in Bribery Case number one and three to stand. I reject this submission because if paragraphs 4-8 of the petition are to be constituting a ground alleging bribery by the First Respondent, it does not require something to be exchanged between the giver and taker with a corrupt motive for there to be bribery under section 103. A promise is good enough to amount to bribery under section 103(1)(a).

34.	In this case, the pleading clearly sets out:

a)	The First Respondent was at Aseki between 12 and 13 June, 2012 and held a rally in which he gave a speech after meeting with his two key persons heading his campaign at Aseki and allegedly said some things in connection with some money he was promising them.

b)	It was a statement or promise made at an election rally where many people were gathered including Ans Wanaro, Setra Poana and Awagiding Asele, the First Respondent's committee men.

35.	As to whether those precise words or statement to that effect were made by the First Respondent is a matter for evidence and for what reason are matters for evidence. Similarly, whether those words were uttered with corrupt intention to bribe voters is also a matter for evidence.

36.	I shall therefore allow paragraphs 4 – 8 of the petition to remain.

Part B

37.	Part B relates to political rally being held at Aseki Station on 13 June 2012 and certain named persons are promising or paying cash to people and telling them to vote for Kelly Naru with their first preference vote and give their 2nd and 3rd to other candidates except Luther Wenge. And the same is repeated in other places inside Aseki on the following day. And this goes for several pages of story telling of what certain persons acting with knowledge and authority of the First Respondent were up to as they distributed the K25,000.

38.	Part B of the petition, particularly paragraphs B1-B16 are said to be defective or deficient in that:

•	Pleadings fail to indicate whether there was intention to bribe voters on part of First Respondent;

•	Pleading fail to demonstrate how First Respondent is said to have influenced the voters by the actions of his servants or agents?

•	Election sought to be invalidated under Organic Law on National and Local Level Government Elections Act 1997, which is a wrong law.

•	The allegations are confusing in their nature and hard to differentiate between bribery and undue influence.

•	Pleadings are confusing in explaining whether petitioner relies on section 103 of the Code to invalidate the elections or section 215(1) OLNLLGE. 

39.	Reference to Organic Law on National and Local Level Government Elections Act 1997 is not a critical error that one must dismiss the petition for on the basis of incompetency. As I mentioned to Mr Nii that this is one mistake that I will easily gloss over as insignificant because clearly we know for certain that the correct law is OLNLLGE.

40.	Pleadings are not altogether satisfactory but there is reasonable appreciation of what the Petitioner is contending here and even if his pleading is not in the best form that one might expect, at least he gets to present his case. And the onus is on him to prove his case to the required standard of proof as long since set out in Bourne v Voeto [1977] PNGLR 298 which is proof according to the criminal standard of proof as alluded to by Davani, J in Amet v Yama (supra) and also recently in Peter Isoaimo v Paru Aihi (supra) and Jimmy Maladina v Charles Abel (decision of Gabi,J) [2012] N4940

Part C

41.	Part C is headed Bribery Case Number Two is the only ground that clearly accuses the First Respondent in person of handing out money to a church worker. The money was given with specific instruction according to the pleading. But the paragraph goes on and talks about other matters that raise case of undue influence as in other paragraphs as well.

42.	It is submitted that Part C, in particular, paras C1 to C7 are also deficient in facts in the context of section 103 Code and 215(1) Orgainc Law because:

•	Facts not properly pleaded to show how First Respondent bribed Mr Awagiding?

•	Other persons who were to benefit from the cash of K400 not named?

43.	After the rally at Aseki Station on the same day 13 June 2012, the First Respondent was approached by Awagiding Asele who introduced himself as Secretary to Aseki Lutheran Church Congregation. The First Respondent gave him K400 and told him to go buy food, cook and share it with everyone and that he was to tell them to give their first vote to him and give nothing to Luther Wenge. Several other persons named as present in the house with Awagiding Asele were Kaso Tunzo, Solomon Sakai and Terry Wako when Awagiding relayed Kelly Naru's message to them.

44.	In this ground, reading the entire part from paragraph C1 to C7, culminating in paragraph 7 with reference to section 215(1) OLNLLGE is evidence of some effort and understanding of what the Petitioner was trying to achieve or convey. I think in fairness for reasons I expound hereafter it should remain. 

Part D

45.	This paragraph relates to another incident not involving the First Respondent but a Setra Poana said to be acting on the authority and with knowledge of the First Respondent when he gave K100 to an elector to share the money with another. And this particular transaction carried over to the following day so as to conclude that transaction of money exchanging hands.

46.	It is submitted Part D is also inadequately pleaded in terms of section 103 and 215(3) in that:

•	Pleading fails to show how bribery committed by others amount to bribery by the First Respondent?

47.	This is another isolated incident on the same day 13 June 2012 at the same political rally held at Aseki Station where Mr Setra Poana approached Awagiding Asele and gave him K100 with the intention of inducing him and one Andrew Nengo to vote for the Respondent. While giving him the money he told his to share it with Andrew Nengo and vote for Kelly Naru. It was alleged that this money was part of the K25,000.00 that was either paid or promised by the Respondent.

48.	There seems to be nothing in this allegation against the Respondent but it is connected to the main allegation of K25,000 and that section 215(1) is invoked. Because the allegation is part of the general framework of what the Petitioner has constructed as his case or petition, I will allow it to remain.

49.	For the sake of brevity, the Petitioner's case is that the First Respondent went to campaign at Aseki and gave or promised K25,000 to three men. The exact positions of those named persons we don't know and only evidence can clarify that. Whether those persons are capable of being bribed also is now a matter for speculation because a person cannot bribe his own supporter. These persons are described as electors which is fulfilling one requirement of the law but their relationship with the First Respondent is unclear.

50.	Between 13 and 14 June 2012 at Aseki station Ans Wanaro and his team went about distributing cash of different amounts to various named and unnamed persons and saying things that could amount to undue influence but that is not what is pleaded in this case. Whether these payments made amount to bribery or not is a legal question.

51.	The petitioner's difficulty with his petition is not so much to do with inadequacy or insufficiency of facts in the context of section 103 and of the Code and 215 OLNLLGE, in my view there are too many facts. The question is whether they are relevant or irrelevant facts? Relevant or immaterial facts are matters for evidence to sift through and discard upon careful examination of witnesses.

52.	And the facts presented show the First Respondent speaking at a rally in Aseki on 13 June 2012 and promising K25,000.00 and thereafter cash of various amounts were distributed by named individuals at different locations to named persons. There is a clear picture of what is happening and is happening during the election and that is what section 215(1) OLNLLGE is all about – if the National Court finds that a candidate has committed bribery, his election, if he is a successful candidate, shall be declared void.

53.	As I have stated elsewhere in the judgment that competency test does not end when objection to competency is dismissed. It continues throughout the trial as alluded to by Davani, J in Amet v Yama (supra). 

54.	It was therefore pleaded that those acts amounted to bribery by the First Respondent through his servant and or agents, as such his election must be declared null and void under section 215(1) OLNLLGE.

55.	 Objection to competency raised here is premised on two grounds, firstly under section 208(a) for want of precisely worded facts in accordance with the requirements of case law authorities within the terms and language of section 103 of the Criminal Code and secondly on the basis of wrong authority relied upon for the relief sought.

56.	This challenge is made because section 215(1) says that a candidate who is found guilty of committing bribery during elections if he is a successful candidate, his election must be declared invalid. 

RELEVANT LAW

57.	The relevant laws are sections 103 of the Code, 208 and section 215 OLNLLGE.

58.	Section 103 provides:

"103.	Bribery.

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 or 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 misdemeanour.

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

59.	Section 208(a) OLNLLGE states:

"A petition shall –

(a)	Set out the facts relied on to invalidate the election or return;.."

60.	And section 215 OLNLLGE reads:

"215.	Voiding election for illegal practices.

(1)	If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2)	A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3)	The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a)	on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b)	on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

61.	 However, a petition must comply with the requirements of section 208(a) OLNLLGE which prescribes that a petition must clearly set out the facts relied upon to invalidate the election. Because of this requirement that the courts have strictly construed and applied the law in screening an election petition.

62.	The following passage from Sheehan J's judgment in Raymond Agonia v Albert Karo [1992] PNGLR 462 for our purpose set the scene on how the Courts have addressed the issue of defining bribery as a ground in election petition:

"Counsel for the petitioner said that it was not necessary to recite the whole of s 103 of the Criminal Code to establish a ground. While acknowledging that the element of intent to the offence certainly needed to be proved, intent or purpose was not a fact to be pleaded. It is simply a matter of evidence. The petition, as it was, defined the issues, he said, and, as was said in Siaguru v Unagi [1987] PNGLR 372, the other side cannot be said to be taken by surprise.

Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside. 

The Organic Law and the decisions explaining and supporting it, make it clear that such challenges must be specific in defining the breaches alleged. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 at p 345 states that the Organic Law on National Elections:

"... has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficult to see why. An election petition is not an ordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s 210." 

That statement of the Supreme Court is not only the acknowledged authoritative statement that petitions must comply with the Organic Law, it also states the reasons for the need for that compliance. The Court points out that the electoral process whereby a representative of the people is chosen must be upheld, unless real cause can be shown that that process should be overturned. Such a serious matter, therefore, calls for clear statements of the allegations relied on."

63.	And it was within that same vein, the following observation or statement was recently made by Cannings, J in Peter Isoaimo v Paru Aihi EP 72 of 2012 N4921 where he said.

"Because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a petitioner must specify what particular bribery offences are alleged to have been committed. In the present case the petitioner argues that the first respondent committed bribery under Sections 103(a)(iii) and 103(ad) of the Criminal Code.

Section 103(a)(iii)

To prove an offence under Section 103(a)(iii) the petitioner must prove that the first respondent:

1.	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;

2.	any property or benefit of any kind;

3.	in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at any election.

Section 103(d)	

To prove an offence under Section 103(d) the petitioner must prove that the first 
respondent:

1.	advanced or paid any money to or to the use of any other person;

2.	with the intent that the money will be applied for any of the purpose of endeavouring to procure the return of any person (the first respondent) at an election or the vote of any elector at an election (paras(a) and (c)) or doing or omitting to do something at an election in the capacity of an elector (para(b))."

64.	This case clearly re-emphasises the need for clarity in pleading. The petition as drafted may not be quite clear in the way instances of bribery and undue influence have been lumped together but however incompetent it may appear, there is some evidence of efforts being made throughout to plead some elements of the offence of bribery and that of indirect involvement of the First Respondent through third parties with his knowledge and authority. It is not a case of getting one hundred percent right, provided there is substantial compliance with the law in this area of election related proceedings that lawyers only appear with leave of the court. 

65.	On the face of the record, the petition sets out three cases of bribery or allegations of bribery, although under each heading there appears to be more than one instance or incident of bribery of some kind alleged to be committed by the First Respondent or other persons, but more so by other persons said to be acting on his behalf. And this is said to follow on from the money that the First Respondent is alleged to have promised to Ans Wanaro, Setra Poena and Awagiding Asele. 

66.	But the general scenario painted in this picture is clear about the First Respondent giving or promising money upon his arrival in Aseki at a campaign rally. Whether they stand the test of section 103 and 215 OLNLLGE is another matter.

67.	While I accept the legal positions in as far as pleading sufficient facts are concerned, my view is that the issues raised in the submissions overall are technical and beyond those of a simple layman to comprehend. In saying this I am mindful of the background of the principal parties to this petition who have extensive and long legal background both as practising lawyers and judicial officer respectively apart from senior members of the profession and civil society and neither of them can be handicapped in any way in appreciating what a good pleading ought to be in the way Cannings J tried to demonstrate in Isoaimo's case. They may not therefore be the good examples to use for purposes of according the benefit of simplicity and fairness in court procedures.

68.	A further argument in support of insufficient facts or inadequacy of pleadings was raised in the context of section 215(3) (a) and (b) OLNLLGE. A two-pronged attack was made by both Mr Mende and Mr Nii for the First and Second Respondents respectively by approaching this argument from two opposite perspectives. Mr Nii is quite correct in that there are differing views expressed by the judges but a recent Supreme Court decision in Amet v Yama (supra) appears to add weight to one view. However, the emphasis on pleading the requirement of the section 215(3)(3) is not in any way reduced. 

69.	It is not my intention to discuss the law on the way the courts have construed and applied section 215, however tempting it is, because when there are outstanding factual issues to address, those should be settled first. It indirectly raised its head in Andrew Kumbakor v Joe Sungi [2012] EP NO 23 of 2012 (1 December, 2012) which really was the petitioner's case but pleadings did not quite get to it.

70.	I understood Mr Mende's submission on section 215(3)(a) and (b) as follows:

a.	Subsection (3)(a) was referring to illegal practice including bribery and undue influence committed by person other than the candidate without the knowledge or authority of the candidate. In this case the election cannot be declared void nor shall the court declare a person returned as elected not duly elected.

b.	Subsection 3(b) was only referring to illegal practice other than bribery or undue influence or attempted bribery or undue influence;

c.	In the case of subsection 3(b) the pleading must also show that – 

i.	The result of the election was likely to be affected, and
ii.	That it was just that the candidate should be declared not to be duly elected or that the election should be declared void.

d.	Difference in winning margin and number of votes affected by illegal practice would also be in order.

71.	 Mr Nii submitted that I adopt the view taken by the majority in Amet v Yama (supra) in resolving this issue of pleadings in respect of section 215(3) OLNLLGE. 

72.	Accepting the submissions made by both counsel, I am still left in the dark as to what is exactly the position that the petition is relying on? Is it section 215(1) because there is allegation against the First Respondent in person giving money or promising money to several persons? Or section 215(3)(a) because the allegation is really against other persons acting with the knowledge and authority of the First Respondent? Only evidence can resolve these issues and the best thing to do is go to trial.

73.	The fact that the grounds are voluminous that whichever of the events or occasions or incidences pleaded in the petition amounting to bribery is the petitioner relying on is unclear and uncertain is not basis to reject or dismiss this petition. Petitioner is entitled to have his day in court and it is for him to establish his case.

CONCLUSION

74.	I will allow the grounds pleaded in paragraphs B1-16, C1-7 and D1-6 to go to trial and it is for the Petitioner to prove to the entire satisfaction of the court the allegations made bearing in mind always that competency issue remains alive even at the substantive hearing of the petition. So the end result is that the petition survives and goes to trial intact.

75.	 It was also argued that the petition must be dismissed for being incompetent in that the petitioner is seeking relief under section 215(1) OLNLLGE when the correct provision really is section 215(3)(a) OLNLLGE. The petition alleges bribery against both the First Respondent under section 215(1) and indirectly by its servants and agents which invokes section 215(3)(a) and as such I find no merit in this argument. 

76.	The objections are hereby dismissed.

Solwai Lawyers: Lawyers for the Petitioner
Wantok Legal Group: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Electoral Commission