Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kikala v Electoral Commission of Papua New Guinea [2016] PGNC 86; N6278 (27 April 2016)

N6278

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP: NO. 18 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL & LOCAL LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF THE DISPUTED RETURNS FOR LAGAIP/POGERA OPEN ELECTRORATE IN THE ENGA PROVINCE

BETWEEN

PHILIP KIKALA
Petitioner

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND
NIXON KOEKA MANGAPE
Second Respondent

Waigani: Ipang, J
2015: March 23, 34, 25April 7, 8 & 8 May
2016: April 27

ELECTION PETITION – Allegation of bribery – Section 103 of the Criminal Code Act and Organic Law on National and Local –Level Government Elections (OLNLGE) – Section 215 (1) allegations of bribery and section 218(1) of the OLNLGE on errors and omissions

ELECTION PETITION – Application to stop the case after conclusion of the Petition’s case – allegations of bribery on electors, polling officials and police officers (non-electors) – essential elements to prove persons bribed were electors – proof by production of common roll – common roll not produced. Allegations of bribery on polling officials and others (non – electors) whether bribery were orchestrated with knowledge and authority of the Second Respondent and the purpose of bribery need to be established.

PRACTICE & PROCEDURE – No case submission – discretion of the court whether or not a judge should stop a case at the close of a Petitioner’s case – in exercising its discretion Court should have regard to section 217 of Organic Law on National and Local Government Elections (OLNLGE).

Cases Cited

Agonia v Kare [1992] PNGLR 463

Aide Ganasi v Sali Subam [2013] SC 1277 (26 September 2013)

Allan Ebu v Roy Evara [1983] PNGLR 201

Ben Micah v Ian Ling Stuckey [1998] PNGLR 151

Benny Diau v Mathew Gubag (2003) N2354

Desmond Baira v Kilroy Genia& Electoral Commission (1998) SC 579

Dusava v Waranaka [2008] PGNC 69; N3368 (23 April 2008)

Labi Amaiu v Andrew Mald (2008) 3335

Leonard Louma v Tomuriesa (2012) N4920

Leonard v Wesley [2014] PGNC 187 N5819 (20 August 2014)

Parkop v Vele (No. 3) [2007] PGNC 145 N3322 (5 March 2007)

Paru Aihi v Sir Moi Avei (2004) N2523

Pawa Wai v Jamie Maxton Graham (2005) N2768

Perry Zeipi v Gabia Gagarimabu (1999) SCR 5 of 1999

Robert Lak v Paias Wingti (2003) N2358

Tommy Tomscoll v Electoral Commission and Ors (2002) N2340

Tulapi v Lagea [2013] PNGNC 134; N5323 (03 August 2013)

Singirok v Fairweather [2014] PGNC 53 N5577 (24 April 2014)

Sai Sail Beseoh v Yntivi Bao (2003) N2348

Legislation:

Criminal Code Act
Organic Law on National and Local Government Elections (OLNLGE).

Counsel:

J. Kennedy, for Petitioner

S. Tadabe, for First Respondent

P. Mawa, for Second Respondent

RULING

27 April, 2016

1. IPANG, J: This is a no case submission made by the Respondents after the conclusion of the Petitioner’s case. The Respondents submitted that the Petitioner did not establish a primie facie case or the essential elements of the offence of bribery pursuant to section 103 of the Criminal Code Act and section 215 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE) and on the ground of errors and omissions under section 218 (1) of Organic Law on National and Local Level Government Elections (OLNLGE).
   
2. The petitioner has formally withdrawn one of the three (3) remaining grounds of Petition and decided to pursue only two (2) grounds of his Petition. These two (2) grounds are; 8.3 Bribery under s. 103 of the Criminal Code Act and 215 (1) of Organic Law on National and Local Level Government Elections (OLNLGE) and (ii) 8.5 Errors and Omissions (Failure to supply sufficient ballot papers) under s. 218 (1) of Organic Law on National and Local Level Government Elections (OLNLGE).
   
3. From the outset there is no issue taken by the petitioner in relation to no case submission invoked by the Respondents. It is now settled in this jurisdiction that a no case submission can be made at the end of a Petitioner’s case in an Election Petition case. In 1998 the Deputy Chief Justice Sir. Mari Kapi (as he then was) in Desmond Baira v Kilroy Genia & Electoral Commission (1998) SC 579 first ruled on the issue of no case submission in an Election Petition Case. His Honour stated and I quote:
   

“Whether or not, a judge should stop a case at the close of a Petitioner’s case is a matter entirely up to the discretion of the court. In considering the exercise of his discretion, it would be relevant for the court to have regard to the terms of section 217 of the Organic Law. The court should be guarded by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion, it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.”

4. There are other subsequent cases dealing with the issue of no case submissions in Robert Lak v Paias Wingti (2003) N2358; Benny Diau v Mathew Gubag (2003) N2354; Pawa Wai v Jamie Maxton Graham (2005) N2768; Perry Zeipi v Gabia Gagarimabu (1999) SCR No. 5 of 1999 and Labi Amaiu v Andrew Mald (2008) N3335.
   
5. Once a no case submission is made by a Respondent in an Election Petition at the end of a Petitioner’s case, then the proper approach to be taken is explained by His Honour Salika, J (as he then was) in Perry Zeipi and Robert Lak (supra) where His Honour said;
   

“In considering the application, the judge would go through the evidence adduced by the petitioner and his witnesses. If the judge finds there is evidence on the material aspects of the petitioner’s case then the application should be dismissed. On the other hand the judge considers that there is no evidence on a material aspect of the petitioner’s case then he has the discretion to stop the case there without proceeding further.”

Brief History – Grounds of Petition

6. Before I proceed further to consider evidence adduced by the petitioner and his witnesses, it is appropriate to understand the brief history of this case. This Election Petition has gone from the National Court to the Supreme Court and is now back in the National Court. In terms of grounds of petition. Initially when the petition was filed, there were five (5) grounds of the petition. These five (5) grounds of the petition were as follow;
   
   • (1) The second respondent was not a duly registered voter and therefore not qualified to nominate and be elected as a Member of Parliament.
     
   • (2) The second respondent was occupying a public office as chairman of Pogera Development Authority (“PDA”) and did not resign prior to nominating and as such was not qualified to nominate and be elected as a Member of Parliament.
     
   • (3) Bribery
     
   • (4) Illegal practices during polling.
     
   • (5) Errors and omissions on the part of the first respondent
     
7. The Respondents filed their Objections to Competency application which was heard by Makail, J on the 7^th and 8^th January 2013. The ruling by Makail, J effectively left grounds (a) and (b) to be tried. However, His Honour went further and considered that since the petition was not properly attested by two (2) witnesses, His Honour then dismissed the entire petition.
   
8. The petitioner filed a review before the Supreme Court. The Supreme Court dismissed the ground on illegal practices under section 215 (3) of Organic Law on National and Local Level Government Elections (OLNLGE). The remaining three (3) grounds of petition upheld by the Supreme Court and to be tried are;
   
   1. Second Respondent nominated and contested as a Candidate whilst holding a public office (Ground 8.2)
      
   2. Bribery (Ground 8.3)
      
   3. Errors and omissions on the part of First Respondent (Ground 8.5)
      
9. Of the three (3) remaining grounds of petition, the petitioner formally withdrew Ground 8.2 of the petition prior to the start of the Election Petition trial thus living only two (2) grounds, Ground 8.3 and 8.5 that were tried. The Ground 8.3 and Ground 8.5 are re-stated as follow;
   

8.3 Further or in the alternative to the grounds raised in the preceding sub-paragraphs 8.1 and 8.2 hereof, the Second Respondent committed acts of bribery and therefore his declaration on 27 July 2012, as member elect for the Electorate is null and void and of no effect. The particulars of which are as follows:

8.3.1 The Second Respondent did on 9 May 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give Mr. Ben Penale, the Presiding Officer for Tipinini 1 Polling Area in the Electorate, the sum of K 100, 000.00 which sum of money was drawn and debited on 9 May 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent at the polling at Tipinini 1 Polling Area. This was contrary to Section 103(a) of the Criminal Code. As a result of this act of bribery, the Second Respondent received 984 votes from this polling area.

8.3.2 The Second Respondent did on 11 July 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give the Councilor Ruben Nalepe, the councilor for Anawe (which comprises the Kulapi, Lupilama, and Panadaka polling areas) and also an elector for the Electorate, the sum K50, 000.00 which sum of money was drawn and debited on 11 July 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to vote for the Second Respondent and further to solicit other electors within his ward to vote for the Second Respondent. This was contrary to Section 103(a) of the Criminal Code. Elector Councilor Ruben Nalepe received this money for himself and for the purpose of soliciting other electors in his ward to vote for the Second Respondent either through lawful or unlawful polling. As a result of this act of bribery, the Second Respondent received 1189 votes from Kulapi Polling Area, 248 votes form Lupilama Polling Area and 808 votes from Panadaka Polling Area being a total of 2245 votes from these polling areas.

8.3.3 The Second Respondent did on 17 July 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, to Councilor Palo Wape, the councilor for Kairik No. 1 and also an elector for the Electorate, the sum of K7, 000.00 which sum of money was drawn and debited on 17 July 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to vote for the Second Respondent and further to solicit other elector within his ward to vote for the Second Respondent. This was contrary to section 103(a) of the Criminal Code. Elector Councilor Palo Wape received this money for himself and for the purpose of soliciting other electors in his ward to vote for the Second Respondent either through lawful or unlawful polling. As a result of this act of bribery, the Second Respondent received 361 votes from this polling are, which is a very large.

8.3.4 The Second Respondent did on 4 July 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give to Councilor Jack Yanjol, the councilor for Kairik No. 2 and also an elector for the Electorate, the sum of K15, 000.00 which sum of money was drawn and debited on 4 July 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to vote for the Second Respondent and further to solicit other electors within his ward to vote for the Second Respondent. This was contrary to Section 103(a) of the Criminal Code. Elector Councilor Jack Yanjol received this money for himself and for the purpose of soliciting other electors in his ward to vote for and for the purpose of soliciting other electors in his ward to vote for the Second Respondent either through a lawful polling or through unlawful polling. As a result of this act of bribery, the Second Respondent received 528 votes from this polling area.

8.3.5. The Second Respondent did on 16 June 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give to Mr. James Mark, the Assistant Presiding Officer for Paiam-Suyan (Lukale), and also an elector for the Electorate, the sum of K30, 000.00 which sum of money was drawn and debited on 16 June 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent at the polling at Paiam-Suyan (Lukale) Polling Area. This was contrary to Section 103(a) of the Criminal Code. As a result of this act of bribery, the Second Respondent received 572 votes from this polling area.

8.3.6. The Second Respondent did on various occasions between the months of May 2012 and July 2012, by way of cheque from the Porgera Development Authority Bank south Pacific Account no. 1000875297, give to Susan Takili, the Assistant Presiding Officer for Paiam Town Polling Area, and also an elector for the Electorate, the sum of K195, 314.55 which sum of money was drawn and debited on various occasions between the months of May 2012 and July 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing her to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent at the polling at Paiam Town Polling Area. This was contrary to Section 103(a) of the Criminal Code. As a result of this act of bribery, the Second Respondent received 373 votes from this polling area.

8.3.7. The Second Respondent did on 27 June 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give to Mr. Samson Aipit, the Presiding Officer for Yanzakale Polling Area (comprising of Upper Maipage and Lower Maipage), and also an elector for the Electorate, the sum of K800.00 which sum of money was drawn and debited on 27 June 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent at the polling at Paiam-Suyan (Lukale) Polling Area. This was contrary to section 103(a) of the Criminal Code. As a result of this act of bribery, the Second Respondent received 787 votes from the polling area.

8.3.8. The Second Respondent did on 9 May 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give to Grayson Apakali, the Presiding Officer for Apalaka 1, and also an elector for the Electorate, the sum of K1, 400.00 which sum of money was drawn and debited on 9 May 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment was such was made with the intention of inducing him to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent at the polling at Apalaka 1 Polling Area. This was contrary to Section 103(a) of the Criminal Code. As a result of this act of bribery, the Second Respondent received 1536 votes from this polling area.

8.3.9. This Second Respondent did on 25 July 2012, by way of cheque from the Porgera Development Authority Bank South Pacific Account no. 1000875297, give to Martin Kelei, the Rural Police Commander and the operations commander for the Lagaip/Porgera Open Electorate, the sum of K12, 000.00 which sum of money was drawn and debited on 25 July 2012 from the Porgera Development Authority Bank South Pacific Account no. 1000875297 and this payment as such was made with the intention of inducing him to be biased towards the Second Respondent and further to solicit votes in support of the Second Respondent throughout the Electorate in his capacity as such. This was contrary to Section 103(a) of the Criminal Code.

8.3.10 Further to the grounds raised in the aforesaid sub-paragraphs 8.3.1, 8.3.2, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.7, 8.3.8 and 8.3.9 the Second Respondent did, during the month of May, June and July of 2012, and whilst the Chairman of the Porgera Development Authority, caused monies totaling approximately K8, 959, 531.20 to be drawn from the Porgera Development Authority Bank South Pacific Account number 1000875297. These monies have since been used to make payments such as the payments described in the aforesaid sub-paragraphs 8.3.1, 8.3.2, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.7, 8.3.8 and 8.3.9 the Second Respondent did, during the month of May, June and July of 2012, and whilst the Chairman of the Porgera Development Authority, caused monies totaling approximately K8, 959, 531.20 to be drawn from the Porgera Development authority Bank South Pacific Account number 1000875297. These monies have since been used to make payments such as the payments described in the aforesaid sub-paragraphs 8.3.1, 8.3.2, 8.3., 8.3.4, 8.3.5, 8.3.6, 8.3.7, 8.3.8 and 8.3.9. Under the circumstances the only conclusion to be drawn is that the monies drawn as such were used to fund the Second Respondent’s Election campaign. As a result of the Second Respondent’s access to these monies the Second Respondent has obtained an unfair advantage. The particulars for the drawing during the peak election period between the months of May and July 2012 area as follows:

SUMMARY OF PAYMENT MADE BETWEEN THE PEAK ELECTION PERIOD (MAY-JULY 2012)

8.3.11. As alluded to collectively and individually in the aforesaid sub-paragraphs 8.3.1, 8.3.2, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.7, 8.3.8, 8.3.9 and 8.3.10 the Second Respondent had committed an offence under Section 103(a) of the Criminal Code and consequently the First Respondent’s declaration on 27 July 2012, that the Second Respondent was duly elected as the Member for the Lagaip/Porgera Open Electorate is null and void and of no effect.

ISSUES

10. From the outset the following are the issues I have to determine at this stage;

(1) Whether the evidence adduced so far by the Petitioner has proved the essential elements of the ground of bribery under section 103 of the Criminal Code and section 215 (1) of the Organic Law.

(2) Whether at that time and date of the alleged acts of bribery allegations, was the Second Respondent a “candidate” within the terms of Section 215 of Organic Law on National and Local –Level Government Elections (OLNLGE).

(3) Whether the evidence adduced so far by the Petitioner has proved the essential elements of the grounds of errors and omissions under section 218 (1) of the Organic Law.

(4) Whether in the exercise of my judicial discretion, having regard to the terms of section 217 of the Organic Law should I stop the case at the close of the Petitioner’s case and dismiss the Petition or allow the case to continue.

Also at the outset it is appropriate to mention that pleadings are pleadings. When pleadings are made, evidence need to be adduced to substantiate the pleadings. If evidence is adduced on allegations not pleaded then the evidence cannot be sustained as it has no bases.

Petitioner’s Case

11. The Petitioner called the following witnesses who tendered their affidavits
    

TABLE A1

Witnesses summoned by petitioner

12. The petitioner summoned these two (2) witnesses; George Puyo and Leo Ipara. George Puyo was the Returning Officer and Leo Ipara was the Assistant Returning Officer.
    

Documentary Evidence tendered by Petitioner

TABLE A2

Grounds of Bribery (Ground 8.3)

13. I will deal with Ground 8.3 of the Petition and later deal with Ground 8.5. Under Ground 8.3 the petitioner himself gave evidence and Opis Papo. Opis Papo is the former Member of Parliament for Lagaip Pogera Electorate. The ground of bribery is under section 103 of the Criminal Code Act and section 215(1) of the Organic Law on National and Local Level Government Elections (OLNLGE).
    

Relevant Laws:

14. The offence of bribery in election petitions is described under section 215 of the Organic Law on National and Local Government Elections (OLNLGE) in conjunction with section 103 of the Criminal Code Act. Section 103 of the Code states;
    

103 Bribery

“A person who –

(a) gives, confers or procures, or promise 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) An account of any person acting or joining in a procession during an election; or
  
• (iii) In order to induce any person to endeavor to procure the return of any person at an election, or vote of any elector at an election
  

(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 endeavor 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 purposes; 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,

15. The section 215 of Organic Law on National and Local Government Elections (OLNLGE) states:
    

“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.”

16. In Tulapi v Lagea [2013] PNGNC 134; N5323 (3 August, 2013) Sir Injia CJ dealt with the requirements or criteria on what needs to be satisfied in order to establish bribery in an Election Petition. His Honour said:
    
    61. Under s. 215 (1), if bribery is established or is proven at the trial, that in itself may render the election void. Bribery is an illegal practice and the offence is found in s. 103 of the Criminal Code.
        
    62. Under s. 103 (a) (i) & (iii), essential facts pertaining to each element of the offence of bribery must be pleaded and those are; the identity of the person by name who is bribed, the form and value of the property or amount of money and the purpose of the payment. In a case where the person bribed is an elector that must be expressly pleaded. To complete the facts, it is also necessary to plead the date and the place of payment even though they are no elements of the offence.”
        
17. In essence, a petitioner in an Election Petition shall establish or adduce evidence to prove;
    
    • The identity of the person by name that made the payment
      
    • The identity of the person by name who is bribed;
      
    • Person bribed must be an elector. In a case where the person bribed is an elector that must be expressly pleaded and proved.
      
    • The form and value of the property or amount of money and the purpose of the payment
      
18. Refer to cases of Leonard v Wesley [2014] PGNC 187; N5819 (20 August 2014); Parkop v Vele(No. 3) [2007] PGNC 145; N3322 (5 March 2007 Singirok v Fairweather [2014] PGNC 53; N5577 (24 April 2014) and Dusava v Waranaka [2008] PGNC 69; N3368 (23 April 2008)
    
19. In Kapris v John Simon (2013) SC 1247 His Honour Injia CJ stated;
    

“...section 215 (1) of the Organic Law speaks of bribery committed by the candidate himself. If the court finds that the candidate committed the act of bribery, the election is declared void. Whether the act of bribery was done directly or indirectly through agents; and whether the result of the election was likely to be affected by an act of bribery are immaterial under s. 215 (1). However, s. 215 (3) makes it clear that an election cannot be voided on account of bribery committed by a person other than the candidate unless the act of bribery was carried out with the candidate’s knowledge and authority and such that the result of the election was likely to be affected an it is just that the election should be voided. That is the law under s. 215 of the Organic Law to which the offence of bribery in s. 103 of the Criminal Code is subject to and must be read and applied. The law under s. 215 of the Organic Law is clear and it is trite law.”

Evidence on Allegations of bribery

20. The petitioner Philip Kikala and Opis Papo gave evidence through sworn affidavits and oral testimonies. In relation to sworn affidavits, refer to as Exhibits “P14” and “P15”.
    

Philip Kikala

21. He gave evidence both oral and Affidavit sworn and filed on the 8^th October 2012. He said that the names and money paid to various people were obtained from the statement from Bank South Pacific (BSP) Pogera Development Authority Account No. 1000875297. The Bank Statement was obtained by Opis Papo. He said around K8 million was paid to the voters. Petitioner’s affidavit (Exhibit P15) from paragraphs 27 to 29 (j) contained allegations of bribery.
    

TABLE A3

All the above named persons and their names pleaded as they were “electors”.

Ground 8.3.1, 8.3.3, 8.3.4, 8.3.5, 8.3.6, 8.3.7 and 8.3.8 – Issue of Electors:

22. The Pleadings in these paragraphs specifically pleaded each person named in these respective paragraphs as “electors”. Refer to Table A3 in this judgment.
    
23. An elector is also defined by Section 3(1) of the Organic Law on National and Local Government Elections (OLNLGE) as “a person whose name appears on a roll as an elector”. The Criminal Code section 98 defines an elector as “includes any person entitled to vote at an election whose names appears on the common roll as an elector. He is the person when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.
    
24. In Tulapi v Lagea (supra) Sir Injia CJ, sets out the requirements for proving offence of bribery in an Election Petition. One of these requirements is that; (iii) the person bribed must be an elector. In a case where the person bribed is an elector that must be expressly pleaded and proved. (Underlining mine)
    
25. In this present case the petitioner call his witnesses in relation to allegations of bribery in Ground 8.3.2 (Councilor Rueben Nalepe), 8.3.3 (Councilor Palo Wape), 8.3.4 (Councilor Jack Yanjol), 8.3.5 (James Mark), 8.3.6 (Susan Takili), 8.3.7 (Samson Aripit) and 8.3.8 (Grayson Apakali) but did not produced Electorate Roll (Common Roll) or roll of the Council Ward to prove that those whose names appear to be bribed were in fact “electors”. Furthermore, those who were alleged to have been bribed were not called or to come forward and give evidence to confirm if they receive the monies and the purpose of these monies. This was a fatal error.
    
26. In John Warisan v. David Arore (2013) N5341 Gabi, J (as the then was) expressed in the following;

“... Unless the Common Roll is produced there is no evidence before the Court. Anyone can come to Court and say that he or she voted at the elections and as such is an elector. It would however be extremely difficult to prove subsequently that he or she was allowed to vote unless the Common Roll is produced. Just as an elector is allowed to satisfy the electoral officials during polling that he or she is eligible to vote, the elector must likewise satisfy the Court that he or she is an elector by showing that his or her name is on the Common Roll an elector.

Allan Mokoru said he was not an elector and did not vote at the General Elections. Both Collin Amoko and Mishael Okasi said they were electors and voted at the General Elections. A number of persons were named by Alfred Mokoru in paragraph 10 of his affidavit (Exhibit “p1”) as electors as well. However, there is no evidence to show that they in fact were electors. It is the responsibility of the petitioner not only to allege that a person is an elector but must also prove that a person is a registered elector. That can be easily accomplished by producing a copy of the Common Roll. Unless that is done I hold the view that there is no evidence before me to show that the witnesses were electors. Accordingly, the petition is dismissed”.

27. Upon review by the Supreme Court in John Warison v. David Arore(2015) SC1418 the Supreme Court held;
    

Whether a case should be stopped at the conclusion of the petitioner’s case is entirely up to the discretion of the Court: Desmond Baira v. Kilroy Genia (1998) SC579. In that case the Court said in excersing its discretion it would be relevant for the Court to have regard to the terms of s.217 of the Organic Law on National and Local Level Government Elections (OLNLGE), which provides that for the Court to do “real justice” It should be guided by substantial merits and good conscience of each case without regard to legal forms or technicalities and rules of evidence. We consider that this is the appropriate principle that should guide the Court in exercising its discretion in deciding whether to stop a case or not. It this case, it is clear from the reasoning of the learned trial judge that he stopped the case because the applicant did not produce the Common Roll to prove that Collin Amoko and Michael Okasi were electors. In our view the approach taken by the learned trial judge was unnecessarily restrictive and it left no room for his Honour to properly exercise his discretion to consider other credible evidence adduced before him. Desmon Baira v. Kilroy Genia (supra) and Bryan Kramer v. Nixon Philip Duban and Andrew Trawen, Electoral Commissioner of Papua New Guinea (supra). In the latter case, the Court had regard to other credible evidence which in the opinion of the Court established that the person allegedly bribed by the first respondent voted for the first respondent and that they were electors. The evidence was not challenged in cross-examination. The Court also had regard to the terms of ss.131, 132, 133, 134 and 135 of the Organic Law on National & Local Government Elections (OLNLGE) in deciding that the person bribed were electors. We consider that in this case, by taking a restrictive approach the learned trial judge also failed to have regard to the terms of s.217 of the Organic Law on National and Local Government Election (OLNLGE), which confers a wide discretion on the Court to consider other credible evidence in deciding whether the person bribed is an elector. What evidence the Court should accept in deciding whether the persons bribed was an elector is a matter of Court’s discretion but the exercise of that discretion should be guided principally by terms of s. 217 of Organic Law on National and Local Government Elections”.

28. The Supreme Court in Warison v Arore SC 1418 adopted and applied the view in Bryan Kramer v Nixon Duban & Ors which is a more liberal view as opposed to the restrictive view in Ganasi v SubamSC1277. I was the primary judge in the National Court which dealt with Subam v Ganasi & Ors. In the National Court those recipients of alleged bribed money filed respective affidavits without attaching each Ward Rolls proving they were voters.
    
29. In Ganasi v. Subam [2013] PGSC47; SC1277 (26^th September, 2013) the Supreme Court stated the following;
    
    • (13) In relying on Peter Isoaiomo v. Paru Aihi &Ors (supra), the trial judged neglected or failed to ascertain by evidence, that the recipient of the supposed bribe must be an elector and that strict proof of an elector is required. That is the requirement at Law. The Law on this issue is settled. One such case is Ben Micah v. Ian Ling Stukey [1998] PNGLR 151(N1791). In that case, it was alleged that an elector John Ngumaravis was given K100 as bribe. He gave evidence that his name was on the Common Roll. However, it was later found by the Court that the name John Ngumaravis was not on the Common Roll. He then said he voted under the name Vatlogo Melewai which name was on the common roll and that was his name. However, the real Vatlogo Melewai appeared in Court and confirmed that Vatlogo Melewai was his name. The Court called for the common roll for Kevieng Open Electorate to be brought in and noted that no one by that name was registered under Narimvalas as an elector for the Electorate in the 1997 National Elections.
      
    • (14) An elector is also defined by section 3(1) if the Organic Law as “a person whose name appears on a roll as an elector”. The Criminal Code section 98, defines an elector as “includes any person entitled to vote at an election”. Therefore, the person who is entitled to vote at an election is the person whose names appear on the common roll as an elector. He is the person, when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.
      
    • (15) As was held in Ben Micah v. Ian Ling Stukey (supra) and later in Leonard Louma v. Tomuriesa (2012) N4920, the Court held that evidence of the common roll is necessary and is a material element that must be proved in an allegation of bribery in an election petition. The Court in those cases held further that the Common Roll in respect of the persons allegedly bribed must be produced to prove that they were electors. In Leonard Louma because the common roll was not produced, the trail Judge dismissed several grounds in the Petition and eventually, the petition itself.
      
    • (16) The Law is that even if the common roll is tendered, the person must identify his name on the common roll as was done in Ben Micah. If his name is not on the roll or another name is used, then obviously, he is not an elector. And this is because only electors can be bribed to vote in a certain way.
      
    • (17) In this matter before us, the trial Judge in the Court below did not make any findings as demonstrated above, rather said that “... the petitioner’s witnesses’ affidavit tendered as evidence they (Ian Dabu, Gudu Sub and Anna Bazu Buia) stated that they are eligible voters and voted in the 2012 National Elections. The first respondent and the second respondent took no issue with that aspect of evidence. It was not a disputed fact...” (pg 99 of Review Book and pg.22 of trial Judge’ reasons for decision). The trial Judge effectively accepted at face value, the statements made by the above-named witnesses without verifying against the common roll, that their statements under oath, were correct, which was what occurred in Ben Micah v. Ian Ling Stukey (supra).
      
    • (18) Because the electoral roll of the Electorate or the roll of the Council Ward in which the petitioners/witnesses were enrolled, was not tendered into evidence and verified by the Court, we find this was a fatal error not only by the Petitioner’s lawyers, but the trail Judge as well because the important of an ‘elector’, was not proven.
      
30. In Ben Micah v Ian Ling Stuckey [1998] PNGLR 151 (N1791) and Leonard Louma v Tomuriera (2012) N4920 the court held that the Common Roll is necessary and is a material element that must be produced to prove that they were electors. In the Leonard Louma case (supra) because the Common Roll was not produced, the trial judge dismissed several grounds in the Petition and eventually, the Petition itself. In the Supreme Court case of Ganasi v Subami [2013] PGSC 47; SC 1277 (26 September 2013) the court concluded that, “because the electoral roll of the Electorate or the roll of the council ward in which the petitioners’ witnesses were enrolled, was not tendered into evidence and verified by the Court, we find this was a fatal error not only by the petitioner’s lawyers but by the trial Judge as well because the important element of an “elector” was not proven. (Underlining mine)
    
31. Section 103 (a) (iii) of the Criminal Code could apply here. To sustain an offence under this provision, the petitioner bears the obligation to prove that the second Respondent or another person, (Ben Penale & Martin Kelei) with knowledge or authority of the First Respondent;
    
    • Gave, confirmed or procured or promised or offered to give or confer, or to procure or attempted to procure, to, on or for, any person;
      
    • Any property or benefit of any kind;
      
    • In order to induce any person to endeavour to procure the return of any person at an election or the vote of any elector at an election.
      

I will address this issue later during the course of this decision.

32. Under s. 103 (d) of the Criminal Code the Petitioner must prove that the second Respondent or Ben Penale& Martin Kelei with the knowledge and authority of First Respondent; thus s. 103 (d) of the Code will be read together with s. 215 (3) Organic Law on National and Local Government Elections (OLNLGE)
    
    • Advanced or paid 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) in discharge or repayment of money wholly or in part applied for any such purpose.
      
33. Mr. J. Kennedy of Counsel for the Petitioner submitted that it is not necessary to produce the electoral roll because the people who were alleged to have been bribed were not only electors but they are the police officer in charge of Security Operations in the electorate and electoral officials.
    

Bribery of Polling Officials who were also pleaded as electors

34. The Petitioner also alleged bribery of Electoral Officers who were at the same time electors. Refer to bribery claim against James Mark – Assistant Presiding Officer, Susan Takili – Presiding Officer, Samson Aipit – Presiding Officer and Grayson Apakali – Presiding Officer.
    
35. These allegations are very serious in that these are the very officers who are task to oversee the conduct of National Elections for Laigap – Pogera Electorate in a free and fair manner. I endorse the comments by Chief Justice Sir Injia in Tulapi v Lagea (supra) at paragraph 68:
    

“Furthermore, allegations of bribery of electoral officials, whether registered electors or not, is even more serious because allegations of improper and unlawful conduct is leveled against the very persons who are entrusted to run the election....”

36. In the case of Agonia v Karo [1992] PNGLR 463 Sheehan, J made the following observation specifically in relation to the types of corrupt practices pursuant to s. 103 of the Criminal Code Act. His Honour stated;
    

“s. 103 of the Criminal Code are a large and extensive section, incorporating a wide range of corrupt practices of unlawful inducement, which in the several circumstances set out in the section, may make out the charge of bribery.

Without analyzing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors or candidates in an election. Whether those inducements are made to an elector defined as any person entitled to vote at any election or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election”.

37. A new situation has over the years developed and that does not only conform to bribery of electors but also include bribery of security personnel providing security for elections, bribery of Electoral Officials, etc.... such were the allegations raised by the petitioner in this instant case. In the context of bribery of not only the electors but the electoral officials His Honour Chief Justice Sir Injia in Tulapi v Lagea (supra) made this observation:
    

“63. There was an important and new point of law that emerged during argument and a considerable amount of argument time was spent on it. It is the question whether s. 103 is limited to bribery of electors or it also includes bribery of electoral officials. It is the common position of the parties in the petition that bribery of a named electoral official committed by a person winning candidate comes with the definition of bribery under s. 103 (a) (iii) of the Criminal Code. The bribery cases that the court has been dealing with in the past involve bribery of electors. Bribery of electoral officers is a new situation that may require more thought as to whether it comes under s. 103 (a) (iii). It seems to me that the point was not fully thought through by counsel and positions taken by counsel at the bar table is understood in that light.

38. His Honour the Chief Justice went and gave his concluding view in paragraph 64: His Honour stated:
    

“On the face of s. 103 (a) (iii), bribery of a person, who is an electoral officer comes within the terms of the expression, “A person who....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....in order to induce any person to endeavor to procure the return of any person at an election” in s. 103 (a) (iii): see schedule for s.103 in full). That said, it is open for the parties to fully address the meaning of this provision at the trial. For present purposes, on the face of the provision, I am satisfied that the situation comes within the terms of s. 103 (a) (iii)”.

Ground 8.3.1 and Ground 8.3.9:

39. The allegations of bribery contained in Ground 8.3.1 the person alleged to be bribed was Ben Penale, the Presiding Officer for Tipinini 1 Polling area and in Ground 8.3.9 Martin Kelei, the Rural Police Commander and the Operations Commander for Laigap/Pogera Open electorate. In the pleadings Ben Penale and Martin Kelei were not electors or voters. Therefore, in this respect it is not necessary for the Petitioner to produce copy of the electoral Roll (Common Roll) to confirm if they were in fact electors. Therefore, sections 103 (3) of the Criminal Code Act and 215 (1) of Organic Law on National and Local Government Elections (OLNLGE) cannot apply here.
    
40. Obviously, s. 103 (a) (iii) of the Criminal Code Act is not limited or confined to bribery of electors only; and as such it includes bribery of other persons such as electoral officials, police officers providing security at the elections.
    
41. So under s. 103 (a) (iii), it must be proven that the First Respondent;
    
    1. Gave, conferred or procured.....to, on or for, any person;
       
    2. Any property or benefit of any kind;
       
       3. In order to induce any person to endeavor to procure the return of the Second Respondent at the election or the vote of any elector at the election. (underlining mine)
          
42. In relation to Ground 8.3, the Petitioner did not call or summon those who were alleged to have been bribed to come forward and testify that they as Polling Officials, Polling Officials and electors at the same time and Security Commander did in fact receive cheque payments from PDA, whether they were in fact Polling Officials or Security Officials, what did each of those alleged to have received alleged bribe monies did to procure the return off the Second Respondent which should be the alleged purpose of monies paid out. Mostly importantly the petitioner failed to prove that the payments made by PDA were done with knowledge, authority or consent of the Second Respondent.
    
43. The Petitioner and Opis Papo who were able to have access to the Bank Statement of PDA Bank South Pacific Ltd Account No. 100087529 only drew conclusions that the recipients were bribed with huge amount of monies during election period with no credible or cogent evidence to substantiate their allegations. In response to no case submission the Petitioner’s counsel relied on the Affidavits of Second Respondent and that of Andrabe Logos however, those affidavits though were sworn and filed in Court were not tendered and are not in evidence and so in my view cannot be relied by the Petitioner.
    
44. The petitioner alleged that the above named persons, Ben Penale, Presiding officer for Tipinini 1 Polling Area, James Mark Assistant Presiding Officer for Paiam Suya (Lukale), Susan Takili Assistant Presiding Officer for Paiam Town Polling Area, Samson Aipit Presiding Officer for Yanzakale Polling Area (comprising of Upper Maipage and Lower Maipage), Grayson Apakali Presiding Officer for Apalaka 1, Martin Kelei Rural Police Commander and Operations Commander for Lagaip-Pogera Electorate were given monies by the Second Respondent through Pogera Development Authority Bank South Pacific (BSP) Account No. 1000875297 various sums of monies as pleaded were made with the intention of inducing those named to be biased towards him (the second Respondent) and further to solicit votes in support of him.
    
45. My view is that the Pogera Development Authority is a separate entity from the Second Respondent. The Second Respondent was at that point in time was the chairman of Pogera Development Authority was alleged by the Petitioner to have used his position to commit PDA Funds to solicit support or say votes. First of all none of those who were alleged to have received monies from PDA were called or summon to give evidence for the reason(s) or purpose(s) the monies were given whether to endeavor to procure the return of the Second Respondent.
    
46. The evidence before this court is that the Petitioner and Opis Papo were able to obtain Bank Statement from PDA Bank South Pacific (BSP) Ltd Account No. 1000875297 and seeing the bank statement made allegations regarding the payments without verifying or substantiating the reason or purpose of payments. There was no Remittance Advices accompanying the payments made out to prove the purpose(s) of payments.
    
47. There is hardly no evidence that the Second Respondent used his position to hijack the process for PDA to make payments to those named or that PDA made those payment within intention of soliciting votes or support of the Second Respondents.
    
48. Based upon the above reasoning and conclusions, the Petitioner’s case can be stopped on a no case submission, however as if it is not enough reason then the other issue is in a Candidate at the time the alleged acts of bribery were committed.
    

Whether Second Respondent was a candidate

49. The next issue to be determined is; was the Second Respondent, “a candidate” within the terms of section 215 of Organic Law on National and Local Level Government Elections(OLNLGE).
    
50. The schedule dates for Electoral Commission 2012 National Elections were as follows;
    
    • Issue of Writs - 18 May 2012
    • Close of Nominations - 24 May 2012
    • Polling commence - 26 June 2012
    • Polling End - 06 July 2012
    • Counting - 30 July 2012
    • Return of Writs - 02 August 2012
      
51. It is alleged by the Petitioner that the Second Respondent as the Chairman and signatory to the Pogera Development Authority Cheque Account, used the PDA Funds to fund his election campaign and induce electors to vote for him and to induce support from Electoral Commission Officers and Security personnel. This is clearly shown on the bank statements for the Pogera Development Authority Bank South Pacific Account No. 100087529 for period between May 2012 to July 2012
    
52. Under s. 103 (d) of the Criminal Code, Petitioner bears the obligation to prove that the Second Respondent or another person with Second Respondents knowledge and authority;
    
    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 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.
       
53. As to the first requirement whether it was the Second Respondent who actually advanced, gave, conferred or paid money to or to the use of other persons. Obviously the monies paid out to various people did not come from the Second Respondent’s own personal bank account. The cheques cashed from the bank were through the Bank Account (Cheque Account) from the Pogera Development Authority.
    
54. The Petitioner claimed that the Second Respondent who was the chairman and signatory to the PDA Cheque Account used the PDA Funds to fund his election campaign and induced electors to vote for him and induced support from Electoral Commission Officers and Security personnel.
    
55. Mr. Mawa of counsel for the Second Respondent submitted that the Petitioner has the burden or onus to adduce cogent evidence to prove that the successful candidate had nominated as a “candidate” in the correct manner required by law and was therefore a “candidate” within the meaning of section 215 of Organic Law on National and Local Level Government Elections (OLNLGE).
    
56. The Second Respondent argued that the petitioner failed to discharge the evidentiary burden or the onus to prove that at the time of the alleged incidents of bribery, the successful candidate (Second Respondent) was already a “candidate” within the meaning of section 215 of Organic Law on National and Local Level Government Elections (OLNLGE) and that failure to discharge that burden is fatal to be success of the petition.
    
57. Mr. Mawa relied on the cases of Jerry Singirok v Ken Fairweather (2014) N557 and Allan Ebu v Roy Evara [1983] PNGLR 201. Cannings, J in Jerry Singirok’s case (supra) adopted) the reasoning or the approach taken by Bredmeyer, J in Allan Ebu v Roy Evara (supra). Cannings, J stated;
    

“I am convinced that Bredmeyer, J’s reasoning is correct for an offence of undue or influence or bribery to give rise to a ground for declaring the successful candidate’s election void under section 215 of the Organic Law, the successful candidate must have been a duly nominated candidate at the time the offence was committed or attempted to be committed.”

58. The Petitioner argued that the failure to prove (that at the time of the alleged acts of bribery) the Second Respondent was already a candidate within s.215 of Organic Law on National and Local Level Government Elections (OLNLGE)) should not be fatal because it is not one of the elements of the offence of bribery under s. 103 of the Criminal Code Act.
    
59. Mr. J. Kennedy of counsel for the petitioner relies on the case of Paru Aihi v Sir Moi Avei(2004) N2523 where His Honour Injia DCJ (as he then was) made this observation:
    

“In my view, as a matter of practice, the onus is on the petitioner as well as the First Respondent to supply the date of nomination. As a matter of law however, the petitioner must provide the date as part of discharging its onus of proof. The date of nomination can be easily obtained because it is a matter of public record, but neither party was able to disclose the exact date. But having said this, I am not entirely sure, on the authority of Allan Ebu v Roy Evara [1983] PNGLR 201 at 203 – 204, if it is necessary to prove that the bribery is offered to induce the elector to vote for a candidate at an election. The wording of s. 103 (a) (iii) under the present allegation of bribery falls into, says to “induce the return of any person at an election”. Further, this kind of argument should have been raised at the objection to competency stage and dealt with there. For these reasons, I refuse to dismiss this ground on the basis of this technical ground”. (Underlining mine)

60. His Honour Injia DCJ (as he then was) did not address this issue exhaustively. The s. 103 of the Criminal Code is of general application and provides for the criminal offence of bribery but does not provide the penalty of voiding the election of the winning candidate. Section 103 of the Criminal Code provides for criminal penalty as it amounts to a misdemeanor. The section 103 of the Criminal Code must be read subject to, construed with and applied in conjunction with the spirit, intent and effect of section 215 of the Organic Law on National and Local Level Government Elections (OLNLGE).
    
61. I agree with the argument raised by Mr. P. Mawa of counsel for the Second Respondent that section 103 of the Criminal Code when applied and interpreted in an election petition must not be read and applied in isolation from the scheme of things as envisaged under section 215 of Organic Law on National and Local Level Government Elections (OLNLGE) but the two (2) provisions must be read together. The functions of these two (2) provisions must co-exist together. Section 215 of Organic Law on National and Local Level Government Elections (OLNLGE) provides for the ground of bribery to invalidate the election result of the successful candidate whilst section 103 of the Criminal Code provides for the Criminal offence of bribery as a misdemeanor.
    
62. Now turning back to the cases of Allan Ebu v Roy Evara (supra) and Jerry Singirok v Ken Fairweather (supra), I am of the view that these two (2) cases stated the correct position of the law. The law is a good law and has not been over-ruled by the Supreme Court. The law from reading s. 103 of the Criminal Code and section 215 of Organic Law on National and Local Level Government Elections (OLNLGE) is that if the petitioner fails to call evidence to prove at a trial that at the time of the commission of the alleged offence of bribery, the successful or winning candidate was in fact “a candidate” then this will be fatal to the survival of his petition.
    
63. The crucial dates would be from 18 May to the 24 May 2012. Any dates prior to 18 May 2012 would mean the successful candidate was not a candidate. Obviously by looking at different circumstances or allegations of bribery against the Second Respondent, the Ground 8.3.1 alleged 9 May, 2012 as the date of bribery and Ground 8.3.8 alleged 9 May 2012 are the dates in which the Second Respondent was not a candidate within the meaning of section 215 of Organic Law National and Local Government Elections (OLNLGE). I, therefore find there is no case for the Second Respondent to answer in relation bribery allegations contained in Grounds 8.3.1 and 8.3.8.
    

8.5. In the alternative or further to the grounds raised in paragraphs 9.2, 8.3 and 8.4 aforesaid the Petitioner relies on the errors on the part of the First Respondent in failing to provide sufficient ballot papers or any ballot papers (as the case may be) as grounds upon which to invalidate the election or return of the Second Respondent as follows:

8.5.1. During the pre-count at the Wabag Primary School pre-count center it was discovered that the First Respondent failed to allocate and issue any ballot papers for polling in some polling areas whilst at the same time failing to issue sufficient ballot papers for polling in other polling areas in the Electorate. The particulars of which are as follows:

TABLE A4

8.5.2. The total number of ballot papers the First Respondent failed to allocate and issue for polling for the Electorate is 11,340 ballot papers which is more than sufficient to affect outcome of the election results for the Electorate when the winning margin between the Petitioner and the Second Respondent is 5156 votes/ballot papers.

8.5.3. The polling places as enumerated in the table under paragraph 8.5.1 hereof are the Petitioner’s base vote or strong hold where the Petitioner was expected to score majority votes in these polling areas but he missed out due to the errors of the First Respondent as pointed out above immediately above.

8.5.4. The Errors of the First Respondent as stated in the paragraphs immediately above, resulted in 11, 340 eligible voters being denied their right to vote contrary to Sections 50(1)(d) and 126 of the Constitution which errors were sufficient to affect the outcome of the results of the election for the Electorate and that therefore it is fair and just that the declaration of the Second Respondent as the member elect for the Electorate should be invalidated and further consequently a declaration that the election for the Lagaip/Porgera Open Electorate is absolutely void and fresh elections for that Electorate the held forthwith.

Ground of errors and omissions

64. Under Ground 8.5 Errors and Omissions the Petitioner alleges errors on the part of the First Respondent in failing to provide sufficient ballot papers or any ballot papers at all. The specific instances of the alleged errors are contained in Grounds 8.5.1, 8.5.2, 8.5.3 and 8.5.4. The allegation by the Petitioner is that the First Respondent failed to allocate and supply for the Lagaip Pogera Electorate at total number of 11, 340 ballot papers thus 11, 340 eligible voters missed out. Therefore, since the Petitioner polled 30, 648 votes and the Second Respondent polled 35, 804 votes, there is difference of 5, 165 votes. So, the Petitioner contented that 11, 340 votes could affect the result of the election of Second Respondent as 11, 340 votes is more than the winning margin of 5, 156 votes.
    
65. In this ground, the Petitioner called seven (7) witnesses who gave oral evidence plus filed supporting affidavits tendered in as evidence.

(1) Ivor Kakope, Exhibit “P1”
(2) Was Titus, Exhibit “P2”
(3) Luke Ipakan, Exhibit “P3”
(4) Benson Lupin,, Exhibit “P4”
(5) Braivan Aupi, Exhibit “P5”
(6) Robert Poko, Exhibit “P6”
(7) Role Status, Exhibit “P7”

66. Ivor Kakope is the Presiding Officer for Mulitaka Ward 8. He said he was issued with 1765 ballot papers, he was short of 165. He said 165 ballot papers were redistributed to Puapak as there was no ballot papers issued to Puapak. He said the redistribution was done at Laiagam. He said there was shortage of ballot papers for Mulitaka Ward 8. I agree with the Second Respondent’s submission after going though the Petition on the ground of Errors & Omissions that this allegation is not pleaded in the Petition so I will disregard his evidence.
    
67. Was Titus is a Presiding Officer for Puaipak Ward 8. He said he was issued with 165 ballot papers from Mulitaka Ward 8. There were no ballot papers initially issued for Ward 8. He said he took 165 ballot papers only and not 800 as requested during the pre-enrollment of 2012 Common Roll. This allegation is pleaded in the Petition as there were 700 eligible voters being the 2012 Enrollment figures. That 700 ballot papers was not issued for Puaipak Ward 7. This witness said on the Electoral Roll. The total number of electors is 800. The Electoral Commission Tally sheet (Form 66A) “Exhibit P11” shows that in count 114 that 156 ballot papers were returned. It was revealed and I find that this is a newly created Ward and there was no Ward Roll created for this new Ward.
    
68. Luke Ipakan gave evidence in relation to Ward 5. However, this Ward 5 is not pleaded in paragraph 8.5.1 of the Petition and so this evidence is not relevant.
    
69. Benson Lupin gave evidence in relation to Rumbapes Ward 6. This allegation is not pleaded in paragraph 8.5.1 of the Petition so this witness’s evidence is not relevant.
    
70. Braivan Aupi is the Assistant Presiding Officer for Lauk War 11. He said on the 27^th June, 2012, George Puyo the Returning Officer for Lagaip-Pogera did not release all the ballot papers for Maip/Mulitaka early. He said at 4:30pm they were issued 678 ballot papers taken from Tumundan Ward. He said there was no ballot papers issued for Lauk. He said 678 ballot papers were issued out from Tumundan to ease the tension. He was not given a Presiding Officer’s Journal. The allegation in the Petition is that there was a shortfall of 680 ballot papers but the witness’ evidence is that 678 ballot papers were issued and that there was no such shortfall of 660 ballot papers as pleaded in paragraph 8.5.1 of the Petition.
    
71. Robert Poko is the Presiding Officer for Paitenges Ward 18. This allegation is pleaded in paragraph 8.5.1 of the Petition. He said on the 27th June, 2012 his ballot box and ballot papers for Ward 18 were issued late 4:30pm. He said George Puyo, the Returning Officer for Lagaip-Pogera did not release all ballot boxes for Maip/Mulitaka areas until 4:30pm. He said he was issued with 641 ballot papers. There was a shortfall of 325 ballot papers of the eligible voters of 966. He said there was no proper voting as the ballot papers were marked. He never received a Presiding Officer’s Journal. He also never did any training as an Electoral Officer.
    
72. Refer to Exhibit “EC 5”, the Electoral Commission Ward 18 Electoral Roll for Paitenges shows 647 electors and not 966 electors as claimed by the witness. This was also confirmed by George Poio, the Returning Officer that the Ward 18 Paitenges Ward Roll has 647 electors. The witness said he was allocated 641 ballot papers and 647. If we refer to Exhibit “P11”, the Tally sheet (Form 66A), it reveal that at count 79 for Paitenges Ward 18 there was 653 ballot papers issued and there was no informal votes. The certified Electoral Roll shows 647 electors for Paitenges (Exhibit “EC 5”) and that 653 ballot papers were issued (Exhibit “P11”) and were returned with marked no informal votes. There is therefore, no short fall of 325 ballot papers issued to Paitenges Ward18.
    
73. Role Status is the Presiding Officer for Yuyango Ward 16. This allegation is pleaded in paragraph 8.5.1 of the Petition. He said on June 27^th, 2012, he was issued with his ballot box and ballot papers for Maip/Mulitaki were released late at 4:30pm by George Puyo, the Returning Officer for Pogera-Lagaip. His evidence is this he was issued with 1000 ballot papers shared from Yamballi Rest House. He said there were no ballot papers issued for Yuyango but these 1000 ballot papers were later redistributed from Yamballi. He took 1000 ballot papers only and not 1500 requested during pre-enrollment of 2012 Common Roll update. He said he was short supplied with 500 ballot papers as he said the total number of eligible voters were 1500. He was given a Presiding Officer’s Journal and was never given any formal training as Electoral Official.
    
74. The Exhibit “P11” which is the Electoral Tally sheet (Form 66A) shows for count 99 for Yuyango there was a total of 902 ballot papers with no informal votes. The petition pleaded 1088 as the enrollment figure and that no ballot papers were issued. Shortfall of 1088 ballot papers. The witness said there was 500 shortfalls of ballot papers whist Tally sheet (Exhibit “P11”) shows 902 votes were casted for Yuyango. So if we subtract 902 from 1088, will live a difference of 186 which is the shortfall ballot papers.
    
75. The following Petitioner’s witnesses Ivor Kakope, Luke Ipakan and Benson Lupin gave evidence on allegations or grounds which were not pleaded in the Petition so their evidence is irrelevant or of no substance so they are disregarded. Apart from these three (3) witnesses, the four (4) witnesses who gave evidence for the following polling areas;
    

76. I will discuss the shortfall of ballot papers in relation to the evidence adduced by these four (4) witnesses.

77. The following Wards listed in the Table show total number of ballot papers short fall where Petitioner has not called evidence to sustain.
    

TABLE A5

78. The polling wards Lauk Ward 11, Yuyango Ward 16, Puaipak Ward 17 and Paitengis Ward 18 in which evidence was adduced and pleaded in the Petition revealed total number of short fall of ballot papers to be of 2,774. This is the total number of short fall of ballot papers from these four (4) polling wards in which evidence were adduced. Total number of short fall of ballot papers as pleaded in the Petition is 11, 340 minus total number of short fall of ballot papers in 14 polling wards in which evidence were not adduced 8,566 will give a difference of 2,774. This short fall can be better clarified as demonstrated by counsel for the Second Respondent in the Table produced hereunder.

TABLE A6

79. This 2, 774 short fall of ballot papers for the four (4) polling Wards Lauk Ward 11, Yuyango 16, Puaipak 17 and Paitengis 18 are pleaded in the Petition. However, during the trial and the evidence adduced and produced from witnesses Bravian Aupi, Robert Poko, Was Titus and Role Status revealed total number of short fall of ballot papers to be 822. This can be summarized and re-produced in the table below.

TABLE A7

Evidence of Court Summoned Witnesses George Poio and Leo Ipara

80. George Puyo was the Returning Officer for the Lagaip Pogera Open Electorate in 2012 National Elections. In his evidence he confirmed that nine (9) new polling areas in Maip Mulitaka LLG were created and gazette. Refer to Exhibit “P10”. These newly created polling areas are;
    
    1. Lauk 4. Kaundak 7. Puaipak
    2. Winjak 5. Pokolip 8. Paitenges
    3. Poreak 6. Yuyango 9. Ipalopa

81. He further said the enrollment for elections was done for these newly created wards. He also said that the ballot papers for these nine (9) wards were not supplied by the Electoral Commission and he had improvised by redistributing all ballot papers supplied for Maip Mulitaka LLG to all polling areas in the LLG. Polo tendered in Court the handwritten distribution list for ballot papers marked as Exhibit P12 used for distributing ballot papers. See the bale below for the handwritten distribution list.

TABLE A8

Analysis on the Evidence

(i) Errors and Omissions

82. The Petitioners alleged that the First Respondent failed to supply sufficient ballot papers for Lagaip Pogera Electorate especially for Maip Mulitaki LLG where the Petitioner is from. Petitioner says by short supply of ballot papers, he is not questioning the accuracy of the Common Roll. The Petitioner alleged that the First Respondent failed to supply sufficient ballot papers to Maip Mulitaki LLG and as result most of the eligible voters were denied their right to vote.
    
83. The Petitioner pleaded in the Petition alleging 11, 340 short falls of ballot papers. While the Returning Officer for Lagaip Pogera George Polo claimed short fall of 9, 802 ballot papers living a difference of 1, 538. The accuracy of the number of short fall of ballot papers is a serious matter of concern. In my view, the distribution of ballot papers to each of the polling wards must be the one based on the number of eligible voters and should be based on the electoral roll for each ward.
    
84. The evidence before me is that George Puyo and his Assistant Returning Officer for Maip Mulitaki LLG Leo Ipara told the Court that there were no or less ballot papers supplied so they took some ballot papers out from the ones they supplied and redistributed to the other polling areas that weren’t supplied the ballot papers.
    
85. Mr. Kennedy quoted Fr. Louis Ambane v. Electoral Commission of Papua New Guinea & Thomas Samuno [1998] PGSC 29; SC565 in which the Supreme Court held that;
    

“by error of the electoral officials insufficient ballot boxes were provided and ballot papers were placed in patrol boxes. The Returning Officer correctly excluded the patrol boxes from the count, the boxes are not being official approved boxes, according to law. The Court held that (a) not providing sufficient ballot boxes was an error on the part of the electoral officials; (b) the proper test under Section 218(1) with respect to errors or omissions of electoral officials is whether the results would have been affected, cf. the words of Section 215. (underlining mine)

86. The issue that comes to be addressed is the distribution of the ballot papers to the various polling wards based on which Electoral Roll. It is only the Electoral Roll for each polling wards in each respective LLG that determines the number of eligible voters in each polling wards. So the hand written distribution list of ballot papers Exhibit “P12” is based on pre 2012 Enrollment Figures. Ms. S. Tandabe for the First Respondent produced and showed the Electoral Rolls Exhibit “EC 1- EC 13” and asked whether they have used these Electoral Rolls during polling to cast their votes. To this question both Puyo and Ipara said the Electoral Rolls were not the correct ones as they said they have made notes on the ones they used. However, when questioned by the First Respondent’s Counsel they said that these were the correct Electoral Rolls.
    
87. Ms. Tandape for the First Respondent submitted that the entire allegation of error or omissions by the First Respondent touches on the question of the accuracy of the Common Roll. The counsel submitted that the question of the accuracy of the Common Roll is prohibited by Section 214 of the Organic Law on National & Local Government Elections (OLNLGE).
    
88. Now going back Mr. Mawa’s submission, the counsel submitted that in the absence of a certified Common Roll for the newly created wards like Wards 11, 16 and 17, it will be difficult to determine how many electors were enrolled on the Electoral Rolls for these three (3) wards.
    

Summoned Witnesses

89. The evidence of George Puyo and Leo Ipara are essentially crucial evidence. Puyo estimated short fall of ballot papers for Maip Mulitaka to be approximately around 6000. He gave this rounded up figure. He said he gave this figures based from his 2012 Enrolment Update. So as Leo Ipara who said there were no ballot papers for newly created wards within Maip Mulitaka LLG area. Both these two (2) witnesses said there were no certified Ward Rolls issued by the Electoral Commission for these newly created Wards. Puyo said the creation of new wards is not a matter for the electoral Commission but the matter for LLG and Provincial Administration.
    
90. In order to cater for the short fall of ballot paper, Puyo said the Election Manager told him to improvise by taking ballot papers out from some ballot boxes and fill the short fall in other ballot boxes for newly created wards that had no ballot papers. The same was said by Ipara.
    

2012 Enrolment Figures (Electoral Roll Update & Certified Electoral Roll

91. During the cross examination by Second Respondent’s Counsel, Puyo was taken through wards pleaded under paragraph 8.5.1 of the Petition and for Puyo to confirm the number of voters listed under column “2012 Enrolment Figures do not correspond with the number of electors on the Certified Electoral Roll. Refer to Exhibits EC.1 – EC13. This was again confirmed by Ipara. Ipara said the short fall of ballot papers they are alleging is based on the calculations made from the Electoral Enrolment Update figures and not from the Certified Electoral Roll. In order to address the issue of short fall of ballot papers they (the election Manager, George Puyo and Leo Ipara) created their own Ballot Papers Distribution List (handwritten) as they said the electoral Commission Distribution List did not cater for newly created Wards.
    
92. Clearly and obviously the evidence given by Puyo and Ipara is that the figures were taken from the 2012 Enrolment Update Figures (Electoral Update Figures) and not from the Certified Electoral Roll, their action to create a new Handwritten Distribution List only questioned the accuracy of the Certified Common (Electoral) Roll. This is because these two (2) witnesses (Puyo and Ipara) said the number of electors for the wards on the Certified Electoral Roll did not correspond with the number of eligible voters on the electoral Update List. Both were of the view that the Certified Electoral Roll did not capture or reflect the changes due to the electoral Roll Update Figures. Thus, the accuracy of the Certified Electoral Roll is questioned.
    
93. It was notable that during the Petitioner’s case, he has not called any elector or number of electors to give evidence demonstrating to court that he or she or they were electors or their names were on the Electoral Roll for one of those wards pleaded and they could not vote as there were no ballot papers thus breached of their constitutional rights (s. 50 (1) (d) & s. 126 of the Constitution. The rational or logical argument would be that failure by the Second Respondent to issue sufficient number of ballots for each ward has denied those electors who turned on the date of polling on that polling area to vote. I agree with Mr. Mawa that ballot papers are not voters in themselves.
    
94. I agree with the Second Respondent’s submission that there is a misconception by the Petitioner in paragraph 8.5.1 of the Petition. The Petitioner tabulated the wards and the ward name and the numbers pleaded deal with 2012 Enrollment Figures pleaded in the 3^rd column and not the electors on the 2012 Certified Electoral Roll.
    
95. The crux of the Petition by the Petitioner under Ground 8.5 of the Petition for Errors and Omissions is centered on the 2012 Electoral Enrollment Update figures and definitely not based on the number of electors on the Certified Electoral Roll issued by the First Respondent. The pleadings and the evidence by the Petitioner are based on the 2012 Electoral Enrolment Update figures and not based on the Certified Electoral Roll. I agree that the pleading in the Petition and the evidence adduced so far and up to this stage of the proceeding on the correct number of electors for each ward in the electorate as already stated is based on 2012 Electoral Enrolment Update figures. Thus, places challenges on the Certified Electoral Roll more so, its correctness. The court has no jurisdiction to inquire in to the correctness of the Electoral Roll as per Section 214 of the Organic Law.
    
96. The total number of ballot papers short fall as pleaded in the petition is 11, 340. The total number of short fall as per hand written distribution list is 9, 802. A difference of 1, 236. So, if we minus 8, 566 as short fall ballot papers for wards were evidence not adduced, will gives us 2, 774 as short fall; or if we minus 8, 566 as short fall ballot papers where evidence not adduced from the total number of short fall ballot papers as per handwritten Distribution List which is 9, 802 will gives us a difference of 1, 236 short fall of ballot papers. The total short fall ballot papers 2, 774 or 1, 236 were not substantiated with any documentary evidence like the Electoral roll or Tally sheet but based on oral or verbal evidence of witnesses which could be only assumptions or speculations. However, if we refer to the four (4) wards were evidence were given (Refer to Table A7) the total number of ballot papers were evidence was actually given records only short fall of 822 ballot papers.
    
97. The Petitioner pleaded in the petition 8.5.2 and also to paragraph 8 of Petitioner’s affidavit (Exhibit P15) Petitioner polled 30, 648 and the Second Respondent polled 35, 804. Thus a difference of 5, 156 votes. Therefore, in my view the 822 short fall of ballot papers does not affect the result of the elections within the meaning of section 218 (1) of the Organic Law.
    

Analysis of Evidence:

First Issue

98. After analyzing the evidence in relation to Ground 8.3 Bribery of the Petition there are two (2) parts to this allegation;
    
    • (i) Bribery of the alleged recipients of cheques payments from PDA who electors; and
      
    • (ii) Non-electors who are Polling Officials and Security Officer.
      
99. In terms of bribery of bribery of those recipients who are electors, the Petitioner obviously failed to show that the recipients of those funds (Cheque payments) are electors within the meaning of section 103 of the Criminal Code Act and section 215 (1) of the Organic Law by producing the Electoral (common) Roll and showing that their names appear on the electoral Roll for the Wards pleaded and that they actually voted in 2012 Elections. See John Warisan v David Arore (2013) (N5341) Gabi, J (supra); Ben Micah v Ian Ling Stuckey (supra) Leonard Louma v Tomuriesa (supra) and Ganasi v Subam (supra)
    
100. The Petitioner has also failed to call the alleged recipients of the Cheque payments of PDA to give evidence that they did receive such payments and in relation second part of bribery that the PDA made such payments with knowledge and authority of the Second Respondents.
     
101. The Petitioner failed to call evidence to establish the purpose of payments of large sums of monies (cheques) paid to the individuals. Without establishing this important fact, the Petitioner’s allegations remain an allegation or just speculations. Even if those payments were made during the peak of election, petitioner still bears the onus to prove the purpose(s) of these payments. See Tulapi v Lagea (supra) per Injia CJ.
     

Second Issue

102. I agree with the approach taken by the courts in Allan Ebu v Roy Evara (supra) and Jerry Singirok v Ken Fairweather (supra) I find in relation to Ground 8.3 Bribery and specifically in relation to Ground 8.3.1 and Ground 8.3.8 the alleged date of bribery being 09^th May 2012 is the date when Second Respondent is not a candidate within the terms of section 215 of Organic Law on National & Local Government Elections (OLNLGE).
     

Third Issue

103. The Petitioner failed to prove the allegations in the pleadings that 11, 340 ballot papers were short fall. There was no direct evidence in relation to the wards pleaded in the petition except four (4) wards pleaded in the petition. The four (4) witnesses who gave evidence for four (4) demonstrated 822 as the short fall ballot papers and the winning margin was by 5, 340 votes. Therefore, how can the result be affected (section 218 (1) Organic Law on National & Local Government Election (OLNLGE).
     

Fourth Issue

104. The Petitioner failed to prove by the evidence, the essential elements on grounds of Petition;
     
     • (i) Bribery under section 103 of the Criminal Code Act and section 215 (1) of Organic Law on National & Local Government Elections (OLNLGE)
       
     • (ii) Errors & Omissions under section 218 (1) Organic Law on National & Local Government Elections (OLNLGE)
       
105. Having regard to this and in exercising my judicial discretion taking in to account section 217 of Organic Law on National & Local Government Elections (OLNLGE). I will stop the trial and dismiss the Petition in its entirety with costs.
     
106. Formal Court Orders;
     
     1. The Respondents application on no case is upheld
        
     2. The Election Petition trial is stopped and the entire Petition is dismissed
        
     3. The Security Deposit of K5000.00 held by the Register is released and be shared equally by the Respondents
        
     4. Costs of the proceedings before the National Court shall be borne or paid by the Petitioner to the Respondents to be taxed if not agreed.

___________________________________________________________________
Jema Lawyers : Lawyers for the Petitioner
Niugini Legal Practice : Lawyer for the First Respondent
Mawa Lawyers : Lawyers for Second Respondent