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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 56 OF 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS FOR SOUTH FLY OPEN
BETWEEN:
CONRAD HAODA
Petitioner
AND:
AIDE GANASI
First Respondent
AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Daru: Yagi J
2013: 13th, 14th & 15th February
ELECTION PETITION – PRACTICE & PROCEDURE - Objection to competency – Whether petition properly attested in accordance with Organic Law on National and Local Level Government Elections, s. 208 – allegation of address of attesting witness non-existent – tacit acknowledgement of existence of address by objectioner.
ELECTION PETITION – PRECTICE & PROCEDURE - Objection to competency – Reliefs claimed not provided under Organic Law on National and Local Level Government Elections, s. 212 and are contrary to or inconsistent with pleadings – inconsistent and defective reliefs.
ELECTION PETITION – PRACTICE & PROCEDURE - Objection to competency – Requirement to plead facts upon which the election could be invalidated – s. 208(a), Organic Law on National and Local Level Government Elections – grounds of - allegations of bribery – failure to plead sufficient or relevant facts – petition dismissed with costs.
Cases Cited:
Dick Mune v Anderson Agiru and Others (1998) SC590;
Sir Arnold Amet v Peter Yama (2010) SC1064
Chief Collector of Taxes v Bougainville Cooper Limited (2007) SC853.
Ben Micah v Ian Ling-Stuckey and Electoral Commission [1998] PNGLR 151;
Greg Mongi v Bernard Vogae (1997) N1635;
Iambakey Palma Okuk v John Nilkare [1983] PNGLR 28;
Joel Paua v Robert Nagle and Electoral Commission [1992] PNGLR 563;
Louis Ambane v Thomas Tumun Sumuno (1998) SC559;
Ludger Mond v Jeffery Nape and Electoral Commission (2003) N2318;
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463;
Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99
Paul Torato v Electoral Commission and Others [1988-89] PNGLR 83
Neville Bourne v Manesseh Voeto [1977] PNGLR 298
Francis Koimanrea v Alois Sumunda & Ors (2003) N2421
Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921
Peter Launa v Yauwe Riyong (1997) N1620
Counsel:
K. Pilisa, for the Petitioner
T. Cooper, for the First Respondent
M. Kuma, for the Second Respondent
RULING ON OBJECTIONS TO COMPETENCY OF THE PETITION
15th February, 2013
1. YAGI J: BACKGROUND: The petitioner is one of the unsuccessful candidates for the South Fly Open Electorate in the recent National General Elections for the 9th National Parliament. The elections were conducted by the second respondent in various electorates throughout the Western Province and indeed the country in 2012. The electoral process commenced with the issuing of the writs and ending with the return of the writs to the Head of State. The election process was conducted in stages which included the campaign period, polling period, counting and declaration of results. In the case of South Fly Open electorate, the polling period was from 23rd June to 13th July. The counting period was from 19th July to 23rd July.
2. The declaration of the successful or wining candidate for the South Fly Electorate was made on 23rd July 2012. The first respondent was declared the winner after polling 3,489 votes. The petitioner was the runner up polling 3,458 votes. The difference in the winning margin between the petitioner and the first respondent is 31 votes. Consequently, the first respondent was declared the member-elect for the electorate. He has been officially sworn in as a duly elected member of the National Parliament representing the electorate in the current term of Parliament.
Petition
3. The petitioner disputes the election of the first respondent as the duly elected member. He therefore filed a petition on 31st August 2012 challenging the election or return of the first respondent as a duly elected member.
4. There are a number of allegations made in the petition which the petitioner relies upon to invalidate the election or return of the first respondent. They are in fact allegations pertaining to illegal practices. The petition contains 4 instances or allegations of bribery. Although there is no reference in the pleading as to the legal basis on which the allegations are raised, counsel for the petitioner informed the Court that the allegations are based on ss. 103(a)(iii) and (d) of the Criminal Code Act (as amended). In saying that I am not in any way suggesting at this juncture that the pleading is defective in that regard as the law is clear with respect to pleading of the law in election petition cases. It is not necessary to plead the law in an election petition. Only the facts constituting the grounds are to be pleaded: Dick Mune v Anderson Agiru (1998) SC590. The Supreme Court in Dick Mune (supra) stated this quite clearly:
"The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers."
5. In general the allegations in the petition before this Court relate to handing out of cash money by the first respondent and or his servant or agent to various people and groups in the period immediately preceding the polling of votes.
Application for vacation of trial
6. Prior to the Court hearing the objections, the parties, sought to have the trial of the petition aborted. An application to adjourn the trial was made by the first respondent and supported by the petitioner. The second respondent, understandably was taking a neutral position, but leaning towards the application. The basis of the application was that the grounds of bribery in the current petition was the subject of a trial in a related proceedings in EP No. 59 of 2012 which was heard in Daru in December 2012 and the decision is pending.
7. The application was refused by the Court and the Court directed that the hearing of the objections should proceed. A written ruling was delivered on 12th February, 2013 and a copy of the decision was made available to the parties. In a nutshell the ruling was that there is no legitimate basis for the objection to competency to be adjourned because the issues arising in the objections are separate or distinct matters or issues of law and it is inconceivable that a ruling on the objection is likely to interfere with the decision in EP No. 59 of 2012 which was a substantive trial on the evidence. Consequently, I directed that in the event that the objections are dismissed and the petition survives, then parties are at liberty to renew their application for a further deliberation by the Court.
Notice of Objection
8. The Court heard submissions on competency on 13th and 14th February. It took an extra day because the second respondent raised new grounds which did not form part of the formal notice it filed earlier. I allowed the new grounds to be argued relying on the authority of the Supreme Court in Sir Arnold Amet v Peter Yama (2010) SC1064 where the Court held (from the head notes) that "the issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceeding". The Supreme Court in Sir Arnold Amet case (supra) followed an earlier decision of the Supreme Court in Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853. Although the Chief Collector's case (supra) had nothing to do with an election petition, it appeared that the general principle was equally relevant and applicable. In the Sir Arnols Amet case, (supra), Sir Arnold Amet who was the applicant in the review hearing before the Supreme Court, re-agitated the argument on competency of the petition. The respondent objected on the propriety of raising the argument again, however, the objection was dismissed.
9. As counsel for the petitioner was unprepared to immediately respond to the new grounds of objection, the Court granted an adjournment to enable the petitioner and his counsel to prepare adequately overnight and respond the following day. The adjournment was granted taking into account the principles of equity and fairness grounded in the underlying principles of natural justice under s. 59 of the Constitution.
Grounds of Objection
10. The challenge on the competency of the petition is pursued by both respondents. Each of the respondents has filed objections to the competency of the petition. They contend that the petition is incompetent and should not proceed to trial on the allegations raised by the petitioner. In general the first respondent raised 2 grounds of objection whilst the second respondent raised only one major ground. The grounds relate to alleged lack of pleading of relevant facts and defective address of the attesting witnesses to the petition.
11. The second respondent's objections are based entirely on s. 208(a) of the Organic Law. As I said the thrust of its argument is that the grounds pleaded in the petition lacked the "relevant" or "material" facts. The first respondent also raised similar arguments. I propose to deal with the objections of both respondents together as regards the s. 208(a) argument.
12. As regards the ground relating to the defective address, this will be dealt with separately. This ground is raised by the first respondent.
Issues
13. From looking at the grounds of objection raised by the respondents it seems clear that 3 issues arise for determination by the Court:
Pleadings of bribery in the Petition
14. I consider it significant and convenient to set out the pleadings and the reliefs sought at this juncture in view of the nature and manner in which the respondents have attacked the pleadings so that a better appreciation can be had of the way the decision or ruling is made on the objections.
15. The Petition is structured into 5 Parts, A to E. The relevant Part for the purposes of the objections is Part E. This part contains the pleading as to the grounds of bribery and the reliefs sought. The end part relates to the signing of the petition by the petitioner and the witnessing of the petition by 2 attesting witnesses.
16. The pleading of the 4 grounds of bribery in the petition are as follows:
"E. FACTS AND CIRCUMSTANCES RELIED UPON BY THE PETITIONER TO CHALLENGE AND INVALIDATE THE ELECTION OR RETURN OF THE FIRST RESPONDENT AS THE DULY ELECTED MEMBER FOR THE ELECTORATE
1. Illegal Practices by the First Respondent and his agents.
1.1 Illegal Practice of Bribery at Karakara Ward
1.1(a) The Petitioner alleges unlawful practice of bribery by the winning candidate and his agent(s).
(i) On 21st June 2012 at Karakara Ward Daru, Henry Aitsi a supporter and agent for Aide Ganasi (First Respondent) a candidate for the South Fly Seat, gave Five Hundred (K500-00) cash to Judith Aitsi in the presence of Aide Ganasi in concert with him and with his consent and authority. The said money was intended for mothers including Alice Opi, Miaia Apli, Sima Jimmy, Sharon Warawia, Judith Aitsi who are also electors or eligible voters from backstreet of Karakara Ward.
(ii) Before Henry Aitsi presented the money to Judith Aitsi the Aide Ganasi announced that he was giving out money for the consumption of the mothers during polling.
(iii) After receing the money Judith Aitsi retained K200-00 and distributed K300-00 amongst the mothers from Karakara Ward including Alice Opi, Miaia Apli, Sima Jimmy and Sharon Warawia.
(iv) Polling for Karakara Ward was done by Team 5 under the name Itaragi Polling place on 23rd June 2012.
(v) On the Polling day Judith Aitsi used the money to buy nd prepare a meal which she served at her residence for the supporters or voters of Aide Ganasi on the polling day, after they had casted their votes.
(vi) For Itaragi Polling place the First Respondent scored 109 votes, whilst the Petitioner polled 54 votes.
(vii) The petitioner alleges that Five Hundred Kina paid to the mothers of Karakara Ward is by the First Respondent was an unlawful inducement to interfere with proper election process and therefore his votes from Karakara Ward were obtained by bribery.
1.2 The Petitioner alleges unlawful practice of bribery by the winning candidate and his agent at Karakara Ward.
(i) On 21st June 2012 at Karakara Ward Daru, in a public gathering of youths and mothers of Karakara Ward held at Aitsi family residence, Henry Aitsi a supporter and agent the for the Aide Ganasi (First Respondent) a candidate for the South Fly Open Seat gave to Ian Dabu an elector and adult male resident of Karakara Ward Daru One Thouand Kina (K1,000-00) in cash. The money was for youths of Karakara Ward, who were electors or eligible voters to buy food items for their consumption during the polling period. The money was given to Ian Dabu in the presence of Aide Ganasi (First Respondent) with his consent and authority and in concert with him.
(ii) Before Henry Aitsi presented the money to Ian Dabu, Aide Ganasi announced to the youths and mothers present t the gathering that he was giving out the money for their consumption during polling. The mothers from Karakara Ward were given separate payment of K500-00.
(iii) The amount of K1,000-00 was used by the youths to buy food for consumption by the youths during polling and also shared amongst the Youths in various amounts.
Polling at Karakara Ward was conducted Polling Team No. 5 under the polling place name designated Itaragi on 23rd June 2012.
(iv) The Petitioner alleges that Aide Ganasi gave cash to Youths of Karakara a group of electors or eligible voters to induce them to vote for him.
(v) At counting of votes for Itaragi Polling place the First Respondent scored 109 votes, whilst the Petitioner polled 54 votes.
2. The Petitioner alleges unlawful practice of bribery by the winning candidate and his agents
2.1 On 22nd of June 2012 at Gaima Kona, Aide Ganasi ("First Respondent") a candidate for the South Fly Open Seat gave to an elector namely Uwa Naso an adult male resident of Gaima Kona Daru a sum of One Thousand Kina (K1,000-00) in cash. The money was for youths of Gaima Kona, who are electors or eligible voters.
(i) The presentation was made in the presence of about 30 eligible voters excluding the underage children at Gaima Kona. Before he gave out the money Aide Ganasi said words to the effect that:
(a) he had lost his previous two elections and he was determined to win the current elections.
(b) that he was giving money to the youths for their tea, coffee and food expenses to enjoy before casting of their votes the next day.
(ii) Uwa Naso received the money from Aide Ganasi and gave it to Siwaiya Naso an elector who distributed the cash amongst the youths of Gaima Kona.
(iii) Polling was conducted by Team 9 at Gaima Kona on Saturday 23rd June 2012.
(iv) When the votes were counted the petitioner polled 23 votes whilst the Respondent collected 29 votes from Gaima Kona.
3. The Petitioner alleges corrupt and unlawful practices of bribery by the winning candidate and his agents
3.1 On 24th of June 2012 at Kulalae Village, the Aide Ganasi ("First Respondent") a candidate for the South Fly Open Seat in the 2012 National Elections gave cash amount of K300-00 to Kayasi Gazo an elector for the benefit of Kulalae Villagers who are electors and eligible voters for the South Fly Open seat. The presentation was made in a formal meeting in the presence of between 40 to 50 voting age persons (male and female) excluding underage children.
(a) Before handing out the money the first respondent made a speech saying he had come second in the last two elections and implied and announced he would win this election because his party had given him K120,000-00 for his elections.
(b) The cash amount of K300-00 was used by Kayasi Gazo and others to buy food items, and cigarettes which was distributed and shared by Kulalae Villagers.
(c) As a result of the inducement the Kulalae Villagers were amongst the voters who cast their votes in favour of the first respondent."
Reliefs Sought in the Petition
17. The petition set outs the reliefs which the Petitioner seeks as follows:
"2. THE RELIEFS SOUGHT BY THE PETITIONER ARE AS FOLLOWS:
Law on competency of an election petition
18. Before I deal with each of the ground of objection by the respondents, I consider it appropriate and necessary to first consider briefly the applicable law.
19. There is no serious dispute or issue between all parties as to what is the applicable law and principles pertaining to the competency of an election petition, particularly the relevant issues at hand. This is clear from the detailed written submissions handed up by counsel for both respondents. Counsel for the petitioner did not seriously take issue with regards to the law including the case law authorities submitted by the respondents. I accept the submissions and thank counsels for their assistance in presenting their respective well researched and presented submissions. I find the submissions very helpful as they make my task somewhat easier. I will therefore try to be brief in setting out the law as I find it.
20. There are numerous decided cases in this jurisdiction dealing with competency of an election petition and indeed there are ample authorities pertaining to the fundamental issues before this Court.
21. The objections to competency of an election petition stem from the dictate of s. 210 of the Organic Law which provides that a petition shall not proceed to a judicial hearing and eventual determination unless it complies with all the requirements of ss. 208 and 209 of the Organic Law. What this means is that all the requirements of ss. 208 and 209 are mandatory and must be complied with in order that a petition is deemed competent for a hearing. They are mandatory pre-requisites to a competent petition. Where a petition fails to meet or comply with these mandatory pre-requisites the petition is incompetent and shall be dismissed without hearing. Section 210 of the Organic Law is stated in the following terms:
"210. No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."
22. This principle of the law based on s. 210 of the Organic Law was enunciated by the Supreme Court some thirty years ago in the case of Delba Biri v Bill Ninkama [1982] PNGLR 342 where the Supreme Court held that the requirement of s. 208 of the Organic Law should be strictly applied and enforced. The Supreme Court decision in effect reinforced and gave effect to what the law already is in s. 208. This statement of the law was made when the Court was dealing with the question of sufficiency in the pleading of facts in the petition under s. 208(a) of the Organic Law. The Biri's case is now the leading authority in respect to this principle of the law and has been adopted and applied in numerous subsequent decided cases. The following statement in Biri's case, which can be found at p. 345 of the published judgment, has become infamous and often cited by the Courts when dealing with the competency issue of an election petition:
"An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and 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. "
23. The rationale of this principle is based on the special nature of the election petition proceedings. It has been held and approved in many decisions of the Supreme Court that election petitions by their nature are special cases because of the invocation of the Court's special jurisdiction and the constitutionality of the electoral process: see Sir Barry Holloway v Aita Ivarato & Electoral Commission [1988] PNGLR 99 and Dick Mune v Andreson Agiru & Ors (1998) SC 590. They are not ordinary cases that fall under the general civil jurisdictions exercised by the National Court that should be treated lightly. Moreover, it involves a challenge to the special constitutional right to vote, be elected to and hold public office (see Constitution, s. 50(1)) and therefore persons who seek to interfere with these special constitutional rights and process must demonstrate clear, precise and cogent grounds; that the grounds are not unmeritorious and untenable that cannot be substantiated.
24. Section 208 of the Organic Law stipulates that:
"208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)."
25. There are many cases dealing with s.208 of the Organic Law. Many of these cases found that there were breaches of s.208. Some of these cases are: Ben Micah v Ian Ling-Stuckey and Electoral Commission [1998] PNGLR 151; Dick Mune v Anderson Agiru and Others (1998) SC590; Greg Mongi v Bernard Vogae (1997) N1635; Iambakey Palma Okuk v John Nilkare [1983] PNGLR 28; Joel Paua v Robert Nagle and Electoral Commission [1992] PNGLR 563; Louis Ambane v Thomas Tumun Sumuno (1998) SC559; Ludger Mond v Jeffery Nape and Electoral Commission (2003) N2318; Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463; Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99; Paul Torato v Electoral Commission and Others [1988-89] PNGLR 83. Of course the list is not exhaustive. Perhaps the significant starting point would be the Sir Barry Holloway case (supra). That case involved a special reference under s. 18 of the Constitution to the Supreme Court to express an opinion and advice on the question as to what constitute "facts" for the purposes of s. 208(a) of the Organic Law. In the course of deliberating on the question the Supreme Court stated:
"The facts which must be set out under s. 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return maybe invalidated, but not the evidence by which it or they might be proved."
26. It appears since then the Courts have and continue to apply a strict approach in terms of interpretation and application of s. 208(a). It started with the decision of Sheehan J in Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 463 where an extended meaning was given. The Court in Agonia (supra) in discussing what the "material" or "relevant" facts for the purposes of pleading an illegal practice of bribery as a ground said:
"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."
27. Many cases starting with Neville Bourne v Manesseh Voeto [1977] PNGLR 298 have held that the electoral offences of undue influences and bribery are criminal in nature and therefore the essential elements of these offences must be pleaded. Bribery under s. 215 of the Organic Law means the offence of bribery as defined in s. 103 of the Criminal Code Act.
28. Similar sentiments was expressed by the Court in Francis Koimanrea v Alois Sumunda & Ors (2003) N2421 where this principle was applied. In Francis Koimanrea (supra), Sakora J said this:
"As criminal offences (supra) allegations of these misdemeanours must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence. If any element of the offence alleged is omitted or not pleaded, then the facts have not been pleaded as required by s 208 (a) Organic Law, rendering the allegation liable to be struck out.
Finally, on these two grounds, it needs to be emphasized 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. Needless to say, one cannot influence unduly or bribe (or attempt to do these) a person who is not eligible to or cannot vote.
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. Second is that alleged to be committed by a person other than the winning candidate but with his knowledge or authority (sub-s (2)). The third situation concerns any other 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, and
▪ 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."
29. In Sir Arnold Amet (supra), the Supreme Court made a clear statement of the law as regards to pleading the essential elements of illegal practice (including undue influence and bribery) where it said:
"To prove the allegations of undue influence under s. 102(b) of the Code, (read together with an illegal practice under s. 215(3)(b) of the Organic Law), the petitioner must plead in clear, concise and sufficient terms:
(i) The particular ground relied on and whether under s. 102(b), the winning candidate (Sir Arnold Amet) used force or fraud to induce or refrain an elector from voting at the election.
(ii) If fraud is relied upon, it must be further pleaded that, "a false statement was made by a person to an elector, known to be false or without belief in its truth or careless whether it is true or false, with the intention that the elector should act on" Bourne v Veoto [1977] PNGLR 298 at 303.
(iii) The inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes accrued by the winner and the runner up to determine whether or not the result was or would have been affected.
(iv) It is just that the candidate should be declared not duly elected or that the election should be declared void."
30. It should be borne in mind that the Supreme Court in that case was discussing the pleading in respect to the offence in the context of a servant or agent, other than the candidate, who is alleged to have committed the illegal practice of undue influence. In that regard, in my respectful view, the same analogy and reasoning applies in a case where a servant or agent of a candidate is alleged to have committed the illegal practice of bribery under s. 103 of the Code. Therefore going by that decision of the Supreme Court which would mean that both s. 103 of the Code and s. 215(3) of the Organic Law must be read together.
31. Just recently in Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921, Cannings J in dealing with a trial on an election petition where bribery was alleged, summarised the law on bribery as an electoral offence and identified the elements of the offence. In the process His Honour noted that s. 103 creates a number situations or circumstances which constitute the offence of bribery. His Honour said the elements of the bribery under s. 103(a)(iii) of the Code, to which I am in agreement, are:
32. And further in relation to s. 103(d) his Honour said the elements are:
General principles
33. It has also been held that in determining what are relevant facts will depend on the circumstances of each case as pleaded. This will very much depend on how the pleadings are set out in the petition that is seeking to establish the ground in invalidating the election. In Sir Barry Holloway (supra) Kapi DCJ (as he then was) made this point when his Honour said this:
"In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the ground those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and so enable the court to be clear about the issues involved."(my underlining)
34. By way of summarising the principles, to my mind all that the Court needs to do in the exercise in this case is essentially determine:
1. whether the pleading has sufficiently pleaded a recognised ground, if proven, will affect or is likely to affect the result of the election.
2. if a recognised ground is pleaded, whether there are sufficient relevant or material facts pleaded that constitute the ground.
35. In my view these are the basic test. If the Court finds that all these tests are met, the petition is deemed to have complied with s. 208 of the Organic Law and hence the objections must fail.
Prayer for Reliefs claimed by the Petitioner
36. The first respondent has objected to the reliefs claimed by the petitioner. The general complaint is that the reliefs have not been pleaded in a coherent and logical manner and is otherwise confusing. However, a more specific complaint is directed at reliefs II and III. It is submitted that the two when read together contradicts each other and hence confusing.
37. The petitioner submits that relief I is perfectly in order because it is well within the normal jurisdiction of the National Court to make such orders. I am prepared to accept that argument by the petitioner only in cases where the National Court is exercising its' ordinary civil jurisdiction. However, this is not the case here. The Court in this instance is exercising a special jurisdiction given by a constitutional law. The Court is empowered to grant specific relief by way of declarations and orders authorised under the Organic Law. The specific types of orders are provided in ss. 215 and 218(1) of the Organic Law. This relief is not a recognised remedy or relief that is available under s. 212 of the Organic Law. This view is consistent with the reasoning in Greg Mongi v Bernard Vogue (1997) N1635. This relief is not a recognised one and it's not available to the petitioner in so far as it relates to proceedings concerning election petition. It is struck out as it offends s. 208(b).
38. As regards relief II and III, the petitioner relies on the decision of Woods J in Peter Launa v Yauwe Riyong (1997) N1620 that says that there is no magic in the words used in the relief and submits that the two (2) must be read in a logical order in that relief II if granted, will give meaning and effect to the relief III.
39. With respect I have read and re-read both reliefs a number of times and have great difficulty comprehending its meaning and effect. In my view relief III is badly drafted and has no meaning. It is not one of the reliefs that is expressly provided in ss. 212, 215 or 218.
40. In Greg Mongi case (supra) Injia J (as he then was) took the view that a petition must plead the relief that he or she is entitled to by law. He or she cannot seek relief that he is not entitled by law. That view is based on s. 208(b) of the Organic Law which provides that the petition must specify the relief he or she seeks that he or she is entitled to. I agree with the decision in Greg Mongi, because that is the imperative of s. 210 of Organic Law. If a petition does not plead the correct relief that he or she is entitled then the petition does not comply with s. 208(b). The Organic Law is part of constitutional law and it must not be left open to misuse in the context of the reliefs provided by that law. In my view the law does not allow a petitioner to claim any kind or all manner of relief that he thinks he is entitled. He is restricted to the reliefs provided by law. The same reasoning applies to relief IV. For these reasons reliefs I, III and IV are incompetent. They offend against s. 208(b) and are therefore incompetent. They are struck out.
Address of the Attesting Witnesses
41. As regards this ground of objection, the first respondent abandoned the argument in relation to the second witness namely Mili Duligi of Derideri village so I will not address this complaint. This leaves the complaint in relation to the first witness namely Gidama Gagoro of Gaima Kona. Here the first respondent submits that address given as Gaima Kona does not exist on an official map of the Daru Island. In an endeavour to substantiate this contention the first respondent filed an affidavit stating that there is no such place as Gaima Kona on Daru Island and sought to rely on a map purportedly obtained from the Department of Lands. I note this map is not annexed to the affidavit of the first respondent filed in Court. At least there is no evidence by way of a map showing the non existence of a place called Gaima Kona in Daru. The petitioner says that there is a place called Gaima Kona and submits that the address of the first witness is clearly stated where upon reasonable inquiry the witness can be easily located. The address shows the witness's occupation as a Trade Store Operator of Jibia Trading Limited. In my view, if the witness is to be located, all that needs to be done is for a person to attend at Jibia Trading Limited premises and ask for a trade store operator with the name Gidama Gagoro. There is no dispute that Jibia Trading Limited exists. Counsel for the first respondent sought to argue that the postal address of Jibia Trading is incorrect and relied on an extract of company search which is not in evidence. That maybe so but the address shown on the search extract cannot be conclusive. A registered company may have a number of postal addresses, such as registered address for purposes of service of legal process, mailing address for receiving postal items, etc. I accept the submission of the petitioner. There is evidence that there is a place called Gaima Kona on Daru Island. I make this finding based on a number of affidavits filed in the proceedings which form part of the court record. I have perused the affidavit only for a limited purpose of satisfying myself as to the existence of the place known as "Gaima Kona" or "Gaima Corner". What is most remarkable is the fact that one of the affidavits filed belongs to the first respondent. The deponent of the affidavit, namely, Sawea Naso, deposed to the fact that there is a camp called "Gaima Corner". I should say that Daru is a small Island. I do not think there would be much difficulty in locating the witness. This case is not like places in Port Moresby where the population is quite high with many people living remotely in large suburbs and it would be difficult to find where no street address is provided. In all the circumstances I am satisfied the address of the first witness is sufficient to enable the witness to be easily located. It complies with s. 208(d) of the Organic Law. I find the objection to be without merit and is dismissed.
Lack of relevant facts (s. 208(a) argument)
42. It should be noted that the petition contains 4 grounds of bribery. The numbering in the petition may appear confusing. Ground 1 is set out in paragraph 1.1; ground 2 is set out in paragraph 1.2; ground 3 is set out in paragraph 2 and ground 4 is set out in paragraph 3.
43. During the hearing the petitioner withdrew ground 4 leaving only 3 grounds, that is grounds 1 to 3. The respondents did not oppose the withdrawal and accordingly leave was granted to the petitioner to withdraw the ground with costs reserved to be argued at a later time. Therefore I will only consider the objections in relation to the remaining grounds 1, 2 and 3.
44. It is apparent that the respondents have sought to attack the pleading in the petition by nick picking on individual paragraphs as if each of the paragraphs is a separate or stand alone ground of bribery in the petition when they are clearly not. The paragraphs have been numbered and perhaps that seems to be the cause of the confusion and misunderstanding. Each of the ground contains a number of sub-paragraphs. The heading of each of the ground makes that quite clear. Reading each sub-paragraph as a standalone does not mean anything. Each sub-paragraph when read together and in the order as they are enumerated gives clear story and understanding of the allegation of bribery as a ground.
45. In my view the respondents approach in terms of objecting to almost every single paragraph and sub-paragraph is clearly misconceived and out of context.
46. The grounds of objections are very similar, if not, substantially the same in all 3 grounds in the petition. I therefore proposed to consider these grounds together in a wholesome manner.
47. In a nutshell the respondents submit that the pleading in respect of each of the remaining 3 grounds are materially deficient, vague or in general terms to the extent that the pleadings failed to state the following relevant facts:
48. To my mind each of the 3 grounds as pleaded clearly raised allegations of bribery under s. 103(a)(iii) or s. 103(d) of the Criminal Code. However, it is equally clear that alleged acts of bribery, at least in grounds 1 and 2, are said to have been perpetrated by a servant or agent of the first respondent. These are the primary facts which bring a new dimension to the allegations. This necessarily brings into motion s. 215 of the Organic Law so that both s. 103(a)(iii) or s. 103(d) and s. 215 should be read and applied together. The Supreme Court in Sir Anorld Amet (supra) made that point clear, although the Court was dealing with the illegal practice of undue influence under s. 102. In that case certain statements were alleged to have been made by some third party associates at gatherings and the allegations in the petition pleaded illegal offence of undue influence under s. 215(3) of the Organic Law.
49. The pleading must therefore show sufficient and relevant facts constituting the ground. In applying the principles discussed and bearing in mind the elements of the offence as discussed in a number of cases I find that ground 1 failed to plead an essential element. Whilst it pleads that the act of bribery was done by the servant or agent of the first respondent "in concert with him and with his consent and authority" and that the alleged payments were made to named electors or eligible voters as an "unlawful inducement" it failed to plead one of the essential requirements in s. 215(3), that the alleged act was likely to affect the result of the election. This is a requirement as per the authoritative statement of the Supreme Court in Sir Arnold Amet (supra) case. The Supreme Court decision is binding on this Court.
50. As regards ground 2, I find that no names of the voter or eligible voters have been pleaded. As stated by Sakora J in Francis Koimanrea (supra), the offence is not constituted if an elector or eligible voter is not bribed. This is a relevant and material fact. It has not been pleaded and therefore this ground is dismissed. Furthermore, I would also dismiss this ground for the same reason in ground 1, that is, there is no pleading in terms of the requirement of s. 215(3).
51. As regards ground 3, I also find there are insufficient facts as to the 2 essential elements. There is no pleading firstly, that the first respondent gave the money as a form of inducement or to unlawfully and improperly interfere with the free exercise of the elector's franchise and secondly, the youths at Gaima Kona who are said to be electors or eligible voters have not been named. This ground is dismissed.
Summary
52. In summary the objection to competency has succeeded on all 3 remaining grounds. Out of the four grounds in the petition, one was withdrawn and three put under scrutiny of the Court. All three, have been found to be wanting pursuant to s. 208(a) of the Organic Law. The end result is that there is no valid or competent ground left in the petition to be tried. The petition is therefore dismissed in its entirety with costs.
Formal orders
53. The formal orders of the Court are:
1. The entire petition in EP No. 56 of 2012 is dismissed as being incompetent pursuant to s. 210 of the Organic Law.
2. The petitioner shall pay the first and second respondent's cost.
3. The security for costs deposited in accordance with s. 209 of the Organic Law shall be released and paid to each of the respondents in equal amounts.
Ruled accordingly.
____________________________________________________
Pilisa Lawyers: Lawyer for the Petitioner
Twivey Lawyers: Lawyer for the First Respondent
Parua Lawyers: Lawyer for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2013/345.html