N5858
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 35 OF 2012

BETWEEN

NEMO YALO
Petitioner
 
AND

AIYA JAMES YAPA LAGEA
First Respondent

AND

ALBERT WENS,
RETURNING OFFICER FOR KAGUA-ERAVE OPEN ELECTORATE
Second Respondent

AND

ANDREW TRAWEN,
THE ELECTORAL COMMISSIONER
Third Respondent

AND

THE PAPUA NEW GUINEA ELECTORAL COMMISSION
Fourth Respondent

Waigani: Makail, J
2014: 20th October & 2015: 11th February

ELECTION PETITION – Practice & Procedure – Application to dismiss petition – Grounds of – Res judicata – Issue estoppel – Allegation of bribery – Whether allegation of bribery same as one previously determined by Court – Consolidation of petitions – Same allegation alleged in two or more petition concerning same election or return – National Court Election Petition Rules, 2002 (as amended) – Rules 16 & 18.

Cases cited:

Papua New Guinea cases

Komeali Kapo Ropa v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939
Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N5323
Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337
Herman Gawi v. PNG Ready Mixed Concrete [1984] PNGLR 1974
Titi Christian v. Rabbie Namaliu: OS No. 02 of 1995 (Unnumbered & Unreported Judgment of Supreme Court of 1996)
Telikom PNG Limited v. Independent Consumer and Competition Commission (2008) SC906 
Peter Yama v. PNGBC Ltd (2008) SC922

Overseas cases

Mills v. Cooper [1967] 2CQ 459 Mills v. Cooper [1967] 2CQ 459

Counsel:

Petitioner in person
Mr. P. Kuman, for First Respondent
Ms. S. Tadabe, for Second, Third & Fourth Respondents

RULING

11th February, 2015

1.	MAKAIL, J: This is one of three petitions filed in the National Court disputing the result of the election for Kagua-Erave Open electorate in the 2012 General Election where the first respondent was returned as Member. The other two have been completed. They were heard by the Chief Justice.

2.	One of them was Komeali Kapo Ropa v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939. It was dismissed by the Chief Justice on 14th May 2013 for being incompetent. No review was sought against that decision.

3.	The other was Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N5323. After a trial, on 03rd August 2013 the Chief Justice dismissed it on the ground that Mr. Tulapi failed to establish the allegation of bribery against Mr. James Lagea. Mr. Tulapi sought leave to review the decision but leave was refused: see Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2014) SC1337.

4.	In this case, the petitioner Mr. Yalo relies on one allegation of bribery to void the election of Mr. Lagea. Mr. Lagea has filed a motion to dismiss the petition pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). The Electoral Commission supports the motion. He moves the Court on the following grounds:

4.1.	res judicata and/or,
4.2.	issue estoppel.

5.	These grounds are legal doctrines and I have considered the parties' detailed written submissions in addition to the oral submissions in relation to these legal doctrines and their application to the facts of this case. Mr. Yalo has also objected to the motion on the ground that it is misconceived and an abuse of process, in that it should have been moved on the date of the hearing of the objection to competency before the Chief Justice. The Court has allowed this petition to proceed to trial and it is too late now to seek its dismissal. In his further submission, Mr. Yalo has invited the Court to develop the Underlying Law by asking the Court to find that these legal doctrines are inappropriate and should not apply to election petition cases.

6.	From the submissions and decided cases cited by the parties such as Herman Gawi v. PNG Ready Mixed Concrete [1984] PNGLR 1974, Titi Christian v. Rabbie Namaliu: OS No. 02 of 1995 (Unnumbered & Unreported Judgment of Supreme Court of 1996), Telikom PNG Limited v. Independent Consumer and Competition Commission (2008) SC906 and Peter Yama v. PNGBC Ltd (2008) SC922, in order to establish res judicata, it must be established that:

6.1.	The parties or their privies in both matters are the same;
6.2.	The issues in both matters are the same;
6.3.	The previous judgment or decision extinguished the foundation of the claim or the right to set up an action. The result is therefore final and conclusive and it binds every other Court; and
6.4.	A Court of competent jurisdiction made the first decision.

7.	As for issue estoppel, an authoritative statement of this doctrine may be found in Mills v. Cooper [1967] 2QC 459 at 468-469 by Diplock L.J which was cited with approval by the Supreme Court in Titi Christian's case (supra):

"That doctrine, so far as it affects civil proceedings, may be stated thus: a party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of the legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous civil proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been  adduced by that party in the previous proceedings has since become available to him."

8.	The rationale behind these doctrines is that there must be finality to litigation. As to res judicata, there is no issue that the respondents are the same while the petitioners are not the same. However, contrary to Mr. Yalo's submission who has submitted that he is not a privy to Mr. Tulapi and therefore, not bound by the decision in Mr. Tulapi's case, he and Mr. Tulapi including Mr. Ropa were candidates contesting the same seat as Mr. Lagea. They all had a common and same interest, that is, to be the Member for Kagua-Erave Open electorate. For this reason, Mr. Yalo's submission is misconceived. I am satisfied that he is a privy to Mr. Tulapi.

9.	Where petitioners have a common or same interest, the EP Rules does take that consideration into account. Rule 16 provides for consolidation of petitions. It states that "Where two or more petitions relating to the same election or return are filed, then unless cause is shown for separate trials, they may be heard together."

10.	According to the decision of the Chief Justice in Mr. Tulapi's case at para. 1, although the trial in Mr. Tulapi's petition and this petition were consolidated during directions hearing, parties agreed to conduct separate trials. Consequently, the trial in Mr. Tulapi' case proceeded first. This petition was adjourned pending the outcome of Mr. Tulapi's petition. It is unclear if the position Mr. Yalo took now was the reason for agreeing to have separate trials for the petitions. Be that as it may, the opportunity to have a joint or consolidated hearing as envisaged by the EP Rules was there for Mr. Yalo to take and he let it go.

11.	There is also no issue that in Mr. Tulapi's case, a Court of competent jurisdiction made the decision. The issues of contention are firstly whether the issues in both matters are the same and secondly whether the previous judgment or decision extinguished the foundation of the claim or the right to set up an action in this case.

12.	The allegation here is that Mr. Lagea bribed polling officials through the Assistant Returning Officer Mr. Bernard Kambe by giving K500.00 each to presiding officers for Aiya Rural LLG. This was on or about 19th or 20th June 2012 at Uma Catholic Mission. Then on the evening of 22nd June 2012 at Muniputi village, Mr. Lagea promised to pay them a further K5,000.00 if they marked ballot-papers in his favour. In the night, his relative by the name of Rex Ropolo killed two pigs and gave to Mr. Kambe and the presiding officers. The presiding officers bribed were:

12.1.	Martin Yomo of Usa polling centre, 
12.2.	Samson Akane of Puti polling centre,
12.3.	Anthony Maya of Rakuare Lagira polling centre, and
12.4.	Willy Atesi of Puti polling centre.

13.	In Mr. Tulapi's case, the allegation of bribery is from Muniputi village. The allegation is on or about 22nd June 2012, Mr. Lagea and his family members killed a pig for presiding officers for Aiya Rural LLG. He shared the pork meat with them and gave each of them cash of K500.00. Further, he promised to give each of them K5,000.00 in Mendi should he win the election. The presiding officers and the polling places were:

13.1.	Martin Yomo – Usa polling centre, 
13.2.	Felix Dulupia – Sumi polling centre, and
13.3.	Mark Aiyapi – Wasuma polling centre.

14.	Are the allegations same and in turn issues for determination the same? Mr Yalo submits they are not because firstly, the place where Mr. Kambe gave the money to the presiding officers namely, Uma Catholic Mission is different and far from Muniputi village where the alleged bribery in Mr. Tulapi's case took place. Secondly, the presiding officers are different.

15.	Broadly speaking, the offence of bribery under section 103 of the Criminal Code is committed when one person bribes another in return for a favour. It appears from the state of pleadings that four presiding officers were bribed by Mr. Lagea at one time and at the same place. It would follow that at trial, Mr. Yalo will lead evidence from these presiding officers to establish that they were bribed by Mr. Lagea. Evidence will also be led to establish the time and place the alleged bribery took place. The time or date is either 19th or 20th June 2012 and place is Uma Catholic Mission Station. 

16.	Thus, except for the different presiding officers allegedly bribed in each petition, the allegation is that these presiding officers were bribed on the same date at the same place and the most preferred and convenient way to deal with each or all of them is to have one trial. That means evidence will have to be led to establish them at one trial. So, comparing the allegation in this petition with the one in Mr. Tulapi's case, except for the different presiding officers and number of pigs killed, I am satisfied that the gist of the allegation in both petitions is the same. This is turn raises the same issue or issues for determination at trial.

17.	Let me further explain this together with the issue as to whether the issue(s) have been finally and conclusively determined by the earlier decision hence, no basis for the petition. In Mr. Tulapi's petition, Martin Yomo and Felix Dulupia gave evidence at trial. Their evidence was crucial in establishing the allegation that each of them received cash of K500.00 from Mr. Kambe. After weighing up the evidence, the Court found them to be untruthful. The Chief Justice said:

"I find their evidence to be lacking in credibility and reliability and weight. There is no evidence adduced by the Petitioner from the respondent's witnesses through cross-examination that lend support to their evidence in any event."

18.	As to the allegation that on 22nd June 2012 Mr. Lagea was at Muniputi village having a pig killing for the Aiya LLG presiding officers and promising them K5,000.00 if he was returned as Member, the Court in Mr. Tulapi's case found that "Mr. Lagea was at Mago village which is one and a half kilometres away from Muniputi, busy organising his scrutineers and assisting them for polling on the 23rd June 2012. He was not at his house at Muniputi."

19.	A Court of competent jurisdiction found Mr. Kambe's evidence to be truthful in relation to his whereabouts on 22nd June 2012. The Court in Mr. Tulapi's case said: "ARO Mr. Kambe said he was at Kagua Police Station organising polling teams and ballot-boxes and papers to send out."

20.	The Court went on to hold that:

"I can understand the enormity of the task Mr. Kambe faced on the 22nd June in organising polling teams and ballot-papers/ballot boxes to go out and would have no time for feasting gatherings and to receive payments and instructions from any candidate including Mr. Lagea."

21.	At the centre of the dispute in so far as the allegation of bribery is concerned are at least two crucial facts relevant to establishing the allegation. First is the whereabouts of Mr. Lagea and secondly, the whereabouts of Mr. Kambe. As noted, the Court in Mr. Tulapi's case found that Mr. Lagea was not at Muniputi village. He was at Mago village on the date and time in question. As for Mr. Kambe, he was at Kagua Police Station organising polling teams and ballot-boxes and papers to send out.

22.	As to the allegation that Mr. Kambe gave cash of K500.00 to each presiding officer at Uma Catholic Mission Station, the Court in Mr. Tulapi's case said:

"The payments in polling team advances on the 19th June in the sum of K300.00 for each of the polling teams suggest money was paid from the hands of the ARO in charge of Aiya LLG (Mr. Kambe) and the source of the money has been fully explained by Mr. Wenz (RO) and PRO."

23.	The explanation was, and as was found by the Court that the training of polling officials was conducted at the Catholic Mission Station on 19th June 2012 and Mr. Kambe had received a total of K7,200.00 to distribute equally to the presiding officers as allowances from the Electoral Commission. The presiding officers in this petition were also present and received the money as their allowances. So despite the different locations /places, the Court has found that the money each presiding officer received was an allowance. The different locations/places then become irrelevant. 

24.	I find that what transpired on 19th June 2012 at the Catholic Mission Station has already been established by the Court of competent jurisdiction. That is, Mr. Kambe distributed K300.00 in allowances paid by the Electoral Commission for presiding officers and not K500.00 as a bribe. 

25.	The final matter I mention is that the Court in Mr. Tulapi's case did not find that bribery was committed under section 103(a)(iii) of the Criminal Code by the payment of K10,000.00 to counting officials and K5,000.00 to security personnel. It found that the payment was a "token of appreciation". 

26.	The Court went on to say at para. 79 that:

"On the whole I reject the evidence of the Petitioner's evidence on the payment and promise of payment of monies at Muniputi on 22nd June 2012. I accept the evidence of the respondents, to find that no such meeting took place and no such payment were made or offered."

27.	Based on the foregoing discussions, I am satisfied that the issues raised by Mr. Yalo in this petition had been finally and conclusively determined in the Daniel Tulapi's case. The decision has not been overturned by the Supreme Court although Mr. Tulapi did attempt to have it reviewed and failed. It is remains and is binding on this Court. 

28.	Before I close, my short response to Mr. Yalo's objection on the ground that the motion is misconceived and an abuse of process is this, the Court is given a wide discretion under Rule 18 to dismiss a petition. The grounds for the motion to dismiss were not apparently clear at the hearing of the objection to competency because the hearing was confine to whether the petition satisfied the requirements of the Organic Law on National and Local-level Government Elections ("Organic Law"), particularly, section 208(a) on sufficiency of material facts. After the petition was allowed to proceed to trial, they became clearer, hence the filing of the motion. The issue of res judicata and issue estoppel are fresh issues and must be considered on their own merits. This objection is dismissed.

29.	Finally, as to Mr. Yalo's submission and invitation to develop the Underlying law and if the Court were to accept the invitation, it must find that the doctrines of res judicata and issue estoppel are inappropriate to election petition cases, with respect, this is the National Court exercising its powers under the Electoral Laws to adjudicate on an election dispute and I do not think that there can and should be a distinction between an election petition and other cases that come before the National Court for judicial consideration in so far as the application of these doctrines are concerned. 

30.	I repeat what I said earlier. The EP Rules recognise the importance of election petitions and the commonality or identical allegations where two or more petitions are filed concerning the same election or return by providing for consolidation of petitions. That opportunity was given to Mr. Yalo but he chose not to take it, opting instead to wait for Mr. Tulapi's petition to be completed. In so doing, the same allegation was determined and the parties would be re-litigating the same issues of fact if the Court were to accept this proposition. In any event, I am unable to agree with the reasons given by Mr.Yalo that the doctrines are inappropriate to the election petition cases. This submission is dismissed.

31.	I am satisfied the matter is res judicata. I uphold the motion and grant the orders sought. The orders of the Court are:

1.	The motion is upheld.

2.	The petition is dismissed.

3.	The petitioner shall pay the respondents' costs of the proceedings, to be taxed, if not agreed.

4.	The security deposit of K5,000.00 held by the Registrar shall be released and apportioned equally amongst the respondents as part payment of their costs.

Ruling and orders accordingly.
_____________________________________________________________
Kuman Lawyers:		Lawyers for First Respondent
Niugini Legal Practice:	Lawyers for Second, Third & Fourth Respondents