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National Court of Papua New Guinea |
N7207
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 62 OF 2017
IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE BOGIA OPEN ELECTORATE
BETWEEN
DAVID WAMA SOKOREKA
Petitioner
AND
ROBERT NAGURI
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Madang: Makail, J
2018: 21st & 22nd March
ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts pleaded in the petition – Allegations of bribery, attempted bribery – Whether sufficient facts pleaded – No facts pleaded to show successful candidate having knowledge or authorising the illegal acts – Whether “known close supporter and campaign committee member” sufficient nexus to successful candidate – Elector – Meaning of – Pleading of – Organic Law on National and Local-level Government Elections – Sections 3, 208 (a) & 215 – Criminal Code – Section 103
Cases cited:
Allan Ebu v. Roy Evara [1983] PNGLR 201
Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (2018) N7120
Edwin Baafe v. Hon. Peter Sapia & Electoral Commission (2018) N7123
Jerry Singirok v. Ken Fairweather (2014) N5577
Malakai Tabar v. Hon. Jelta Wong & Electoral Commission (2018) N7122
Counsel:
Mr. Y. Wadau, for Petitioner
Mr. T. M. Ilaisa, for First Respondent
Ms. L. Kot with Mr. W. Kaum, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
22nd March, 2018
1. MAKAIL, J: Pursuant to separate notices of objection to competency, the respondents object to the petition on the ground that it is incompetent because it failed to comply with Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”), in that, it failed to plead sufficient facts.
Preliminary Objection
2. But before determining the question of competency of the petition, the petitioner objects to the notices of objections to competency on the following grounds:
2.1. No notice of intention to mention the objections three days prior to the hearing before the Judge Administrator of Election Petitions was given as required by Rule 12 (a) of the National Court Election Petition Rules, 2017 (“EP Rules”).
2.2. No affidavit filed in support of the objections as required by Rule 12 (c) of the EP Rules, 2017.
2.3. Plagiarism of the second respondent’s grounds of objection to competency by the first respondent.
2.4. No leave was sought and granted to the first respondent to file his objection to competency out of time.
3. Based on these grounds, the petitioner submits that the objections are incompetent and should be dismissed.
4. Rule 12 of the EP Rules is in the following terms:
“Objection to competency
A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —
(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b) serve a copy of the objection on the petitioner and on each of the other respondents; and
(c) file and serve all affidavits in support of the objection.”
5. Rule 12 sets out what a respondent has to do if it intends to challenge the competency of a petition. First the respondent must file an objection in accordance with Form 4. At least three clear day’s notice of intention to mention the objection must be given to the Judge Administrator. This requirement is intended to alert the Court to the objection so that at directions hearing, directions may be given for the further conduct of the objection. Secondly, the respondent must serve the objection on the petitioner and each of the other respondents. Finally, the respondent must file and serve all affidavits in support of the objection. All of these requirements must be fulfilled within 21 days after service of the petition.
6. Now, it may not be necessary to comply with the last requirement where the grounds of objection do not raise any evidentiary matters and where the main issue is one of whether the petition pleads facts as required by Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”).
7. In the latter case, all that the Court requires is the petition, notice of objection and submissions of parties directed to the offending pleading in the petition to determine whether there are facts or no or insufficient facts constituting the ground(s) to invalidate the election or return of a member. In those cases, a failure to file and serve an affidavit in support will not render the objection incompetent. But there may be cases where it is necessary to file an affidavit to support the objection, for instance, where a question is raised as to whether the petition is filed within time or failure to pay the sum of K5,000.00 as security deposit under Section 208(e) and Section 209 of the Organic Law respectively.
8. In this case, the objections are based purely on Section 208(a) of the Organic Law. For this reason alone, it is not necessary and the respondents are and were not obliged to file affidavits to support the objections. It suffices to refer to the petition, notices of objections and submissions of parties to consider whether the petition complies with Section 208(a), hence competent.
9. There is no contest that the first respondent filed his notice of objection on 8th December 2017 which was more than a month after the second respondent had filed its objection on 25th October 2017. The petitioner did not say when he served the petition on the respondents but it can be assumed sometimes after the date of filing of the petition on 6th September 2017.
10. It would then be noted that the petitioner did not object to the notices of objections on the ground of being filed out of time and no leave was granted to the respondents to file the objections out of time or that they were in breach of Rule 12 (a) of the EP Rules. But it was not until the date of hearing of the objections that the petitioner brought them up.
11. Meanwhile, parties prepared for the trial including the hearing for the objections. The petitioner did not say that the objections were belated and that he was prejudiced in preparing a response to them. To a greater extent, he acquiesced the default and cannot now complain about it. And the impression he gives is that, the default is insignificant. That is also apparent from the way his counsel Mr. Wadau presented his submission. Mr. Wadau had no difficulty addressing each of the grounds of the objections. It would follow that these further grounds of the petitioner’s objection must fail.
12. Finally, it is incorrect to say that the first respondent plagiarised the grounds of the second respondent’s objection. If the second respondent as the author of the grounds of objection is not accusing the first respondent of plagiarism, then there is nothing further to press against the first respondent. But that is not the case here. In this case, both respondents are working as a team to defend the allegations made not only against the first respondent but also the second respondent. This is perfectly normal. They are entitled to raise identical grounds of objection. This ground is misconceived and dismissed.
Grounds of Petition
13. The petition is divided into four parts. Part A sets out the Introduction, Part B sets out the Background Facts, Part C sets out the Grounds and Part D sets out the Relief. It is grounded on various allegations of bribery, attempted bribery, undue influence and illegal practices at polling.
14. But it will not be necessary to consider all the allegations because at the hearing the petitioner withdrew the following allegations:
14.1. At page 5 of the petition – Ground 1.1(a) – Bribery of Gabriel Sisu with K3,500.00 on 4th April 2017.
14.2. At pages 10 to 12 of the petition – Ground 2(a) to (d) – Illegal use of State Properties and Resources.
14.3. At page 12 of the petition – Ground 3.1(a) to (b) – Illegal Practices and Personation (sic).
14.4. At pages 13 to 15 of the petition – Ground 3.2(a) to (f) – Undue Influence.
14.5. At pages 15 to 16 of the petition – Ground 4(a) to (b) – Underage and Double voting.
Failure to Plead Facts
15. For the remaining allegations, 13 bribery allegations, in total, the respondents submit that as they are bribery allegations, the first respondent’s knowledge or authority in each specific case is a material fact where the first respondent’s return is sought to be invalidated under Section 215(1) of the Organic Law. For this reason, it is insufficient to rely on acts of other persons who are strong supporters and campaign committee members of the first respondent to connect or show the nexus between him and the act complained of constituting the offence of bribery.
16. Secondly, the facts do not disclose each alleged recipient of the purported gift as an elector and its omission is fatal to the sustaining or proving of a charge of bribery of an elector under Section 215 of the Organic Law and Section 103 of the Criminal Code.
17. Thirdly, given the high number of alternatives in relation to a charge of bribery under Section 103 of the Criminal Code and while pleading the law is not required, it is preferable to plead the relevant provision under Section 103 of the Criminal Code which applies to the specific case of bribery being alleged against the first respondent to enable the first respondent to response to it.
18. The petitioner opposes the objections and submits that the facts as pleaded are sufficient and the petition satisfies the requirement of Section 208(a) of the Organic Law. The Court has a wide discretion under Section 217 of the Organic Law to waive the strict application of Section 208 of the Organic Law where the essence of the allegations, like in the case of bribery perpetrated by the first respondent or by his agents at various locations in the electorate are clearly identifiable.
19. The Court must note that the petition was drafted by the petitioner in person without legal advice and expertise and for that, he should be given the benefit of pursuing it rather than being driven out from the judgment seat of the Court prematurely. In addition, public policy and good governance must be considered in the exercise of discretion under Section 217 of the Organic Law. For, to dismiss the petition because it fails to disclose sufficient facts would deny the people a genuine representative in Parliament and encourage bribery as one of the forms of corruption, to flourish.
20. Ground 1.1(b) – Bribery of Waku Kuwa with cash of K70.00 on 20th May 2017.
20.1. The facts as pleaded can be summarised as follows; on 20th May 2017 a Mr. Gabi Patorat from Vidaro village in Almami village, Bogia District who is “a known close and strong campaign committee member” of the first respondent gave an envelope containing cash of K70.00 to Waku Kuwa for the latter to give his first preference vote to the first respondent. Mr. Kuwa cast his vote for the first respondent.
20.2. But there are no facts pleaded in relation to first, whether the first respondent was aware or had prior knowledge of Mr. Patorat giving the cash of K70.00 to Mr. Kuwa on 20th May 2017 or that he authorised Mr. Patorat to give the cash to Mr. Kuwa: Section 215(3)(a) of the Organic Law.
20.3. For anyone can claim to be or “a known close and strong campaign committee member” or strong supporter of a successful candidate, but it does not follow that what “a known close and strong campaign committee member” or strong supporter did was with the knowledge or authority of the successful candidate. There must be facts to demonstrate that the first respondent was aware or informed of what his known close and strong campaign committee member did or that the first respondent told him to do what he did to show that connection or nexus.
20.4. This point was explained in the election dispute for Rai Coast Open electorate in the recent General election in Edwin Baafe v. Hon. Peter Sapia & Electoral Commission (2018) N7123. In that case, a general allegation was made against the Returning Officer and Assistant Returning Officer that they were supporters and cronies of the successful candidate and that they manipulated voting at certain polling locations to have a favourable outcome for the successful candidate. The allegation was found to be insufficient to connect the commission of an illegal act(s) by them to the successful candidate. This is what the Court said at [31] to [34]:
“31. For anyone can claim to be a supporter or crony of a successful candidate/member and commit an illegal act or engage in an illegal practice during election but if the successful candidate/member is not aware or did not authorise it, why should he be held responsible and penalised for something he was never part of?
32. The law recognises this and makes that distinction in Section 215(3)(a) of the Organic Law to protect the successful candidate/member and the integrity of the electoral process from being abused. So must the petitioner make this distinction when preparing this petition.
33. There is no allegation that the illegal acts or practices at polling were with the knowledge or authority of the first respondent. And just because someone like the Returning Officer and Assistant Returning Officer are “supporters and cronies” of the first respondent does not mean that what they allegedly did was with the “knowledge” or “authority” of the first respondent under Section 215 (3) (a) of the Organic Law.
34. Failure to make that distinction and to simply make a general allegation that these persons were supporters or cronies of the first respondent had resulted in no foundation in the pleadings for evidence to be called to prove and hold the first respondent liable for the actions or conduct of the Returning Officer and Assistant Returning Officer.”
20.5. Secondly, whether Mr. Kuwa was an elector within the meaning of Section 3 of the Organic Law. Section 3 states: “elector means a person whose name appears on a Roll as an elector”. An elector is a material fact because to sustain a charge of bribery under Section 103 of the Criminal Code, it must be proved that the person who was bribed was an elector: Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (2018) N7120.
20.6. These material facts are lacking or missing. And while the petitioner may not be guilty of failing to plead the law in relation to the specific provision of Section 103 of the Criminal Code for it is not a requirement, the failure to plead the facts identified above is fatal to this ground of bribery. For these reasons, ground 1.1(b) is dismissed.
21. Ground 1.1(c) (i) – Bribery of Venansius Woloman from Mawak village with cash of K70.00 on 27th June 2017.
21.1. The facts as pleaded can be summarised as follows; on 27th June 2017 the first respondent’s campaign committee members gave an envelope containing cash of K70.00 to Venansius Woloman from Mawak village and Mr. Woloman cast his first preference vote for the first respondent.
21.2. But again, there are no facts pleaded in relation to first, whether the first respondent was aware or had prior knowledge of whoever the campaign committee member was who gave cash of K70.00 to Mr. Woloman on 27th June 2017 or, that he authorised whoever the campaign committee member was to give the cash to Mr. Woloman: Section 215(3)(a) of the Organic Law.
21.3 Again, for anyone can claim to be or “a known close and strong campaign committee member” or strong supporter of a successful candidate, but it does not follow that what “a known close and strong campaign committee member” or strong supporter did was with the knowledge or authority of the successful candidate: Edwin Baafe (supra).
21.4. Secondly, whether Mr. Woloman was an elector within the meaning of Section 3 of the Organic Law. Again, section 3 states: “elector means a person whose name appears on a Roll as an elector”. An elector is a material fact because to sustain a charge of bribery under Section 103 of the Criminal Code, it must be proved that the person who was bribed was an elector: Bede Tomokita (supra).
21.5. Again, it is not necessary to plead the law in Section 103 of the Criminal Code to identify the type of bribery offence allegedly committed by the first respondent. Hence, its omission is not fatal to this ground
but given the lack of pleadings in relation to the material facts identified above, ground 1.1(c)(i) is dismissed.
22. Ground 1.1(c) (ii) – Bribery of Wesley Laman and Andrew Irasa of Musipro village with cash of K70.00 each on 28th June 2017.
22.1. The facts as pleaded can be summarised as follows; on 28th June 2017 the first respondent’s campaign committee members gave an envelope containing cash of K70.00 each to Wesley Laman and Andrew Irasa of Musipro village and Mr. Laman and Mr. Irasa cast their first preference vote for the first respondent.
22.2. For the reasons stated at [20.2] to [20.6] above, ground 1.1(c)(ii) is dismissed.
23. Ground 1.1(c)(iii) – Bribery of Joseph Yaga of Papur village with cash of K70.00 on 29th June 2017.
23.1. The facts as pleaded can be summarised as follows; on 29th June 2017 the first respondent’s campaign committee members gave an envelope containing cash of K70.00 to Joseph Yaga of Papur village and Mr. Yaga cast his first preference vote for the first respondent.
23.2. For the reasons stated at [20.2] to [20.6] above, ground 1.1(c)(iii) is dismissed.
24. Ground 1.1(d) – Attempted bribery of Ngavun Basi of Seven village with cash of K400.00 on 29th June 2017.
24.1. The facts as pleaded can be summarised as follows; on 29th June 2017 Lawrence Kaski, a relative and campaign committee members of the first respondent gave cash of K400.00 to Ngavun Basi to share with three other unnamed persons at Seven village but they refused to accept the money.
24.2. For the reasons stated at [20.2] to [20.6] above, ground 1.1(d) is dismissed.
25. Ground 1.1(e) – Bribery of Sylvester Abdum and his wife of Seven village with cash of K200.00 on 29th June 2017.
25.1. The facts as pleaded can be summarised as follows; on 29th June 2017 Canute Akuati, “a known close campaign committee member” of the first respondent gave cash of K200.00 to Sylvester Abdum and his wife of Seven village and they both cast their first preference votes for the first respondent.
25.2. For the reasons stated at [20.2] to [20.6] above, ground 1.1(e) is dismissed.
26. Ground 1.1(f) – Bribery of Helen Kododo of Boda village with cash of K50.00 on 4th July 2017.
26.1. The facts as pleaded can be summarised as follows; on 4th July 2017 Alfred Ngasingasi, “a known strong supporter and a campaign committee member” of the first respondent gave cash of K50.00 to Helen Kododo of Boda village and told her to vote for the first respondent because the first respondent will supply to her roofing iron. She cast her first preference vote for the first respondent.
26.2. While there are facts pleaded to identify the agent of the first respondent, the gift of K50.00 and the words uttered to induce or procure the return of the first respondent or the person, Mrs. Kododo to vote for the first respondent, for the reasons stated at [20.2] to [20.6] above, ground 1.1(f) is dismissed.
27. Ground 1.2(a) – Bribery of Herman Imbri of Yamu No. 1 village with 30 sheets of roofing iron on 15th April 2017.
27.1. The facts as pleaded can be summarised as follows; on 15th April 2017 Philip Gara “a known supporter and committee member” of the first respondent informed Herman Imbri that the first respondent said that if you want to vote for him you can collect roofing iron sheets from him at the first respondent’s house . He did and he cast his first preference vote for the first respondent although he had wanted to vote for another candidate by the name of Arnold Mambura.
27.2. While there are facts pleaded to identify the agent of the first respondent, the offering of gift of roofing iron sheets and the words uttered to induce or procure the return of the first respondent or the person, Mr. Imbri to vote for the first respondent, for the reasons stated at [20.2] to [20.6] above, ground 1.2(a) is dismissed.
27.3. In addition, and in any case, given the pleading at paragraph 12 of Part B of the petition that the first respondent nominated on 20th April 2017 and the alleged bribery took place on 4th April 2017, I am of the view that the first respondent was not a candidate within the meaning of Section 3 of the Organic Law: Allan Ebu v. Roy Evara [1983] PNGLR 201applied in Jerry Singirok v. Ken Fairweather (2014) N5577 and Bede Tomokita (supra). This ground is misconceived.
27.4. For this further reason, ground 1.2(a) is dismissed.
28. Grounds 1.2(b) & (c) – Bribery of Alphonse Kuling of Dumudum village with klin pipe for cocoa fermentation shed on an unknown date.
28.1. The facts as pleaded can be summarised as follows; on an unknown date but soon after the first respondent nominated, the first respondent went to Wadaginam village and during his campaign speech gave a note to Alphonse Kuling of Dumudum village and to take the note to Kelly Salung and get klin pipe for his cocoa-fermentation shed. The first respondent told him to vote for him. Mr. Kuling took the note to Mr. Salung and received the kilin pipe. He and his clan cast their first preference vote for the first respondent.
28.2. Secondly, there is no pleading that Alphonse Kuling is an elector within the meaning of Section 3 of the Organic Law. Again, section 3 states: “elector means a person whose name appears on a Roll as an elector”. An elector is a material fact because to sustain a charge of bribery under Section 103 of the Criminal Code, it must be proved that the person who was bribed was an elector: Bede Tomokita (supra).
28.3. For these reasons, grounds 1.2(b) & (c) are dismissed.
29. Ground 1.2(d) & (e) – Bribery of Jerald Soagili and youths of Boisa Island with two sets of boys’ soccer uniforms and two sets of girls’ volley ball uniforms on 21st May 2017.
29.1. The facts as pleaded can be summarised as follows; on 21st May 2017 Jerald Soagili and three other youths accompanied Mathew Sailor, “a strong campaign committee member” of the first respondent went to the first respondent’s residence at Bogia station and collected sports uniforms sponsored by the first respondent. An Alphonse Mombri brought the uniforms out of the house and on the first respondent’s instruction, gave them to Mr. Sailor and the youths. The first respondent told them not to reveal the sponsor of the sports uniforms because that would amount to bribery. He then arranged return trip fuel for the Boisa delegation and transported them to the Bogia wharf. The youths cast their first preference vote for the first respondent.
29.2. In addition to the reasons stated at [20.2] to [20.6] above, the element of inducement or procurement is lacking or vague because the giving of the sports uniforms was for no other purpose but for the youths sporting activities. In other words, it is not pleaded that the sports uniform were given to induce or procure these persons to vote for the first respondent nor is the identity of the person pleaded. And the terms “youths”, in my view is too general and vague. It will not help the defence identify and locate the person(s). For these reasons, ground 1.1(f) is dismissed.
30. Ground 1.2(f) – Bribery of Alois Bomat with cocoa fermentation materials and 8x8 sheets of roofing iron on 15th June 2017.
30.1. The facts as pleaded can be summarised as follow; on 21st May 2017 at about 8:00 am Blaise Uliba, “a known campaign coordinator” of the first respondent gave cocoa fermentation materials and 8x8 sheets of roofing iron to Alois Bomat of Siriki No 1 village and he voted for the first respondent.
30.2. For the reasons stated at [20.2] to [20.6] above, ground 1.1(f) is dismissed.
31.1. The facts as pleaded can be summarised as follow; on 15th June 2017 during his campaign at Tarikapa village the first respondent announced that if the people gave him the first preference vote, he would give sports uniforms, roofing iron sheets for houses and klin pipes for cocoa fermentation shed including a motor vehicle Nissan Patrol open back called “Wel Pik” to them. The people cast their first preference vote for the first respondent.
32.2. In addition to the reasons stated at [20.2] to [20.6] above, there is no pleading that identifies the person or persons from Tarikapa village who were induced to vote for the first respondent. And to allege that people from Tarikapa village were bribed is, in my view, too general and vague. There must be a specific victim on a bribery charge and here, it is not pleaded. For these reasons, grounds 1.3(a) & (b) are dismissed.
34. For the reasons stated at [20.2] to [20.6] above, ground 1.1(f) is dismissed.
35. The references to bribery, undue influence, illegal practices and errors or omissions at polling in the preceding paragraphs 1 and 2 at Part C-Legal Grounds of pages 16 to 18 of the petition are repetitious of the allegations pleaded earlier and are dismissed.
Conclusion
36. To close, all the allegations of bribery suffer from the same defect, that is there are no facts pleaded to demonstrate the requisite elements of knowledge or authority of the first respondent in cases where his agents or known strong supporter and campaign committee members were accused of inducing or procuring his return or votes on his behalf. Secondly, it is not being pleaded that the persons who received the gifts in cash or kind were electors.
37. While it is noted that the Court has discretion to ensure that real justice is observed under Section 217 of the Organic Law and public policy and good governance considerations may be relevant to such discretion to be exercised at the competency stage of an election petition proceeding, the Court must equally be mindful of not allowing litigants and losing candidates to abuse the Court’s process, especially where serious allegations of bribery are being made against the successful candidate, such as the first respondent.
38. For there may be other remedies available to losing candidates to avail of like having the successful candidate turned member, charged with the offence of bribery using the criminal process under Section 103 of the Criminal Code. As was observed in Malakai Tabar v. Hon. Jelta Wong & Electoral Commission (2018) N7122 in the context of the term “candidate”:
“22. Just one observation to make in response to the petitioner’s submission on public policy consideration. It may be the case that giving a very strict definition to the term “candidate” may and will give persons who intend to nominate to delay their nominations until the last date in order for them to bribe voters and escape punishment.
23. But a complainant is not left without a remedy. He has recourse to lodging a complaint with the police to arrest and charge a candidate, turned member/politician, for bribery under the ordinary criminal law process under Section 103 of the Criminal Code.”
39. This is one way of addressing the point Mr. Wadau made during his submission presentation about corruption flourishing and minimising the impact of bribery as one form of corruption from flourishing in this country.
Order
40. The orders are:
2. The petition is dismissed as being incompetent.
________________________________________________________________
Young Wadau Lawyers: Lawyers for Petitioner
Thomas More Ilaisa Lawyers & Attorneys: Lawyers for First Respondent
Kimbu & Associates: Lawyers for Second Respondent
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