N7096
 PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 46 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (AMENDED) LAW 2006

AND

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE IJIVITARI OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS.

BETWEEN:
SHELDON DEILALA
Petitioner

AND:
RICHARD MASERE
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Popondetta:   Geita J.
2018:  5th & 8th February

PRACTICE & PROCEDURE – Election Petitions – National and Local Level Government Elections – Objection to Competency – Clear and unambiguous pleadings of material facts essential in Election Petitions –  Requirements of s. 208 (a) of the Organic Law on National and Local-level Government Elections -  The need for facts relied on to invalidate the election or return must be adequately set out. 

PRACTICE & PROCEDURE – Election Petitions – National and Local Level Government Elections – Objection to Competency – Bribery allegations – Facts relied on to void an election or return must be clearly pleaded – Courts should not be left double guessing what the illegal intent, and or guilty mind of the primary Respondent - s. 103 Criminal Code Act. 

Cases Cited.
Papua New Guinea Cases

Ben Micah v Ian Ling-Stuckey (1998) N179
Delba Biri v Bill Ninkama [1982] PNGLR 342
David Arore v John Warisan (2008) SC1030
Gabriel Kapris v John Simon and The Electoral Commission of PNG (2013) SC1247 
Kikala v Electoral Commission [2013] PGSC 48; SC 1295 
Ludger Mond v Jeffery Nape (2003) N2318
Michael Kandiu v Hon Powes Parkop (2015) SC1437
Michael Korry v Mogerema Sigo Wei (2013) N5416
Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921
Peter Waieng v. Tobias Kulang and Electoral Commission EP No. 75 of 2012 (March, 5 & 8, 2012)
Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 463
Robert Kopaol v. Philemon Embel (2003) SC727
Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Steven Pirika Kamma v John Itanu and Ors (2007) N3246
Yama-v-Yagama (2012) N4928

Overseas Cases

Re Berrill’s Petition v Boothby (SA) (1978) 19 ALR 254 

Counsel 

G Sheppard and C Copland, for the Petitioner 
L Jurth and D Mel, for the First Respondent
J Simbala, for the Second Respondent 

This is a ruling on objection to competency of an election petition.

8th February, 2018

1. 	GEITA J:  The Petitioner Mr. Sheldon Deilala was a candidate in the 2017 General Elections for the Ijivitari Open Electorate Seat. On 25 July 2017 the First Respondent, the Honourable Richard Masere of Jonita Village, Ward 8 Local Level Government Popondetta was duly declared as a Member for Ijivitari Open Electorate, having polled a total of 15,245 votes. 

2.	The unsuccessful candidate Sheldon Deilala is disputing the election of the first respondent as member for Ijivitari Open Electorate. His petition consists of seven (7) grounds of challenge of bribery allegedly committed by or on behalf of the first respondent, Richard Masere.

3.	The First Respondent and The Second Respondent rely on their respective grounds of objections pursuant to section 208 (a) of the Organic Law on National and Local Level Government Elections 2007 viz inadequacy of facts in pleadings to invalidate the election. Section 208 is in mandatory terms in that a petition shall set out facts relied on to invalidate the election or return. 

4.	Section 208.    Requisites of petition. 
              
   A petition shall - 
                 (a)   set out the facts relied on to invalidate the election or 
                       return; 
                 (b)    specify the relief to which the petitioner claims to be 
                        entitled; 

                  (c)    be signed by a candidate at the election in dispute or 
                         by a person who   was qualified to vote at the election; 

                  (d)    be attested by two witnesses whose occupations and 
                         addresses are stated; and 

                  (e)    be filed in the Registry of the National Court at Port 
                         Moresby   or at the   court   house in any Provincial 
                         Headquarters within 40 days   after the declaration of 
                         the result of the election in accordance with Section 
                         175(1) (a). 

5.	The objections will be determined by addressing each ground of the petition in turn, and setting out the alleged deficiencies in the facts set out in the grounds. A determination on the objection will then be arrived at.

6.	Section 103.	 Bribery.

A person who—
(a)	gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i)	on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii)	on account of any person acting or joining in a procession during an election; or
(iii)	in order to induce any person to endeavor to procure the return of any person at an election, or the vote of any elector at an election; or
(b)	being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c)	asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to 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 purpose; or
(e)	corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f)	is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g)	being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanor.

Penalty:	A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
	
7.	The First Respondent was heard first, followed by the Second Respond and the Petitioner in that order the same day. During the course of his submissions proper Mr. Jurth for the First Respondent informed court that all reference to invalid attestation in Part C of their objection be withdrawn. (para. 31 – 37). Similarly Part A, para. 1 (a) also be withdrawn. This issue has since been withdrawn by way of an affidavit.  This approach is proper in my view as numerous case laws in our jurisdiction have settled this quandary. ( Ref EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission (March, 5 & 8, 2013), Batari J and the majority view in  Paru Aihi v. Sir Moi Avei (No.2)[2003] PGSC11; SC720)

8.	At the outset Mr Jurth summarized the four primary objections made in response to the Petition. The first objection principally applies to each of the 7 allegations of bribery in that no facts are pleaded to support a finding of illegal intent or guilty mind. The illegal intent or the guilty mind of the person accused of bribery is an essential element and there is nothing pleaded in respect of any of the grounds that is capable to supporting a finding and for that reason each ground in the entire Petition must fail. 

9.	The second primary ground is that in respect of counts 2, 3 and 4, the property the subject of the alleged bribe is not particularized. The precise value, the description of the property the subject of the bribe be described and that counts 2, 3 and 4 merely describe it as food. A separate reason why counts 2, 3 and 4 ought to fail. It is a requirement of pleadings.

10.	The third primary objection is that there is no pleading to support the requirements of Section 215 (3) (a) of the Organic Law which is required when the alleged bribery is committed by an agent. In the case where it is alleged that the First respondent committed the bribery directly, the requirements of Section 215 (3) of the Organic Law do not have to be complied with. But where what is alleged in that the bribery was committed with his authority and knowledge through someone else then such allegations must be pleaded and must be proved. As there is no pleading anywhere in the Petition to support the requirements in Section 215 (3). Counts 4, 5, 6 and 7 must fail. It is those grounds which allege that bribery was committed through an agent.

11.	The final ground is that in most of the alleged cases persons the subject of the bribe or persons involved in the bribe are simply not identified. We have terms of phrase like other persons or members of the group or family members. Case law dictates that these people be identified so that the allegations of bribery are not confused, should the matter go to trial.

12.	Mr Jurth Counsel for the first respondent argued that failure to properly plead facts identifying allegations of bribery will render the Petition defective. In the Supreme Court Case of Delba Biri v Bill Ninkama [1982] PNGLR 342 the Court said and I quote:

“The requisites in Section 208 and Section 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s.208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s.208 and s.209 are complied with.”

13.	Intention, illegal intention or a guilty mind is a conclusion of law. It is not sufficient for the Petitioner to say that something was done with the intent of bribing someone because to plead only the words intent means to a conclusion of law. They are not facts from which an inference of an illegal mind or illegal intent can be drawn. (Holloway v Ivarato [1988] PNGLR 99; Re Berrill’s Petition v Boothby (SA) (1978) 19 ALR 254).  

14.	In election petitions, sufficient facts must be pleaded in order to indicate or constitute a ground upon which an election may be invalidated. The Petitioner must clearly indicate the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved. (Holloway v Ivarato [1988] PNGLR 99)

 15.	Put differently, Counsel submitted that if there is a defect in the Petition, as was the case in this petition, than that is the end of the matter.

16.	The Second Respondents attempts to introduce two additional allegations over and above the seven allegations in the petition, was however withdrawn upon objection by Mr Sheppard. The Court was on the view that the Petitioner would be prejudiced hence the ruling.  

17.	Both respondents basically object to the competency of the Petition filed by the Petitioner on 1 September 2017 on the following grounds: that insufficient facts are pleaded of essential matters in breach of Section 208 (a) of the Organic Law. Furthermore the (requisites of petition) in Section 208 of the Organic Law on National and Local Level Government Elections 2007 has not been complied with and the Petition is wholly incompetent. Besides other case law authorities, these leading cases were referred to the court on this point as they still remain supreme and good law. (Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99.) Section 210 provides that proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

18.	For purpose of convenience I will retain the original numbering of the grounds of the petition, ignoring those paragraphs that have been abandoned.  Generically three main headings are easily made out:

1)	Money-		para 4 – 13		Bribery Case 1 & 4
2)	Food-			para 14 – 23		Bribery Case 2 & 3
3)	Agent/Money-       Para 39 –  65	Bribery Case 5,6& 7

I will now deal with the bribery cases.
			  	
19.	Bribery Case 1 – Ward 9 Dombada village, Oro Bay LLG Area.
	
	Allegations 

•	That on Saturday 1 July 2017, the petitioner drove in his vehicle to the village; and saw the first respondent
•	Handing out money to other votes;
•	Moses Inyapa was given K20 in four five Kina notes with the words:
“Go na powarim Box 16” (Go and power Box 16).
•	Moses Inyapa understood the said words spoken by the first respondent to
	mean, and that the first respondent intended them to mean, that he, Moses 	Inyapa, should vote for the first respondent.

It is claimed that:

•	the first respondent has committed an illegal practice, namely bribery within  Section 215 (1) of the Organic Law on National and Local Level Government Election and Section 103(a)(iii) of the Criminal Code; and therefore
•	a declaration that the election of the first respondent voided and a by-election be ordered for Ijivitari Open Electorate.

20.	Objections

The First Respondent argued that all seven grounds in the petition wanting: no or insufficient facts were pleaded of essential matters in contravening of Section 208 (a) of the Organic Law and furthermore the requirements of Section 208 had not been complied with and the Petition wholly incompetent. 

With regards to Bribery case 1, it is submitted that:

•	It is not alleged that Mr. Masere knew that Moses Inyapa was an elector in the Ijivitari Open electorate therefore
•	The facts from which the legal conclusion of intention is not made out
•	The matters set out in para. 11 of the Petition constitute speculations rather than pleading facts.
•	In most cases certain persons were not identified or
•	Generic reference to people were used for instance, other persons”, members of a group or family etc.

21.	There is no pleading in count one or anywhere else that says the facts which supports illegal intent without the pleadings which states the facts from which the illegal intend is to be drawn. This position has been accepted without question that it is pleadings that drive the evidence etc. (Ludger Mond v Jeffery Nape (2003) N2318) 

22.	Mr Jurth submitted that the alleged utterances by the First Respondent to Moses Inyapa: “Go na pawarim Box 16. (Go and power box 16) remains very vague and ambiguous in the absence of clearly stated facts from which the illegal intention may be drawn. For instance as pointed out by Mr Jurth the utterance go and power box 16 could mean any number of things including possibly an electrical appliance to be switched on etc.  Para.11 likewise is no help as no facts were pleaded. Accordingly Mr. Jurth submitted that all seven allegations of bribery be struck out.

23.	As to opposing views expressed by Counsels on the application of Section 215 (1) of the Organic Law in this Petition, Mr Jurth submitted that the trust of his submission on this point adequately reaffirmed by His Honour Chief Justice S. Injia in the case of Gabriel Kapris v John Simon and The Electoral Commission of PNG SC 1247 in this terms at para.5:

“ ... I start by affirming a trite and sound principle that relates to how the Court should deal with related factual pleadings in a petition. Various facts in a petition that relate to a ground but are pleaded in separate parts of the petition must be read together and as a whole in order to decide whether the whole of those facts support the particular ground. 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 the 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 and 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 s215 of the Organic Law is clear and it is trite law.”

24.	The Second Respondent likewise argued that all seven grounds wanting or failing to comply with the mandatory requirements under Section 208(a) of the Organic Law (Requisites of Petition) and Section 210 of the Organic Law. As to Bribery 1 allegations Mr. Simbala argued that the Petitioner must plead relevant facts disclosing the necessary elements of bribery under Section 103 of the Criminal Code. Mr Simbala contends that Moses Inyapa was the person allegedly bribed but the pleadings fall short of:
•	Stating whether Moses Inyapa actually cast his vote after receiving the money, irrespective of who he voted for, so long as the elements of bribery under Section 103 of the Criminal Code is made out viz. to procure the vote of an elector at an election. (Nathan Piari v Peter Ipatas (2014) N5969)
•	Stating names of persons who witnessed the alleged bribe, 
•	Producing names of persons who saw the transaction between the Petitioner and Moses Inyapa,
•	Producing names of other persons who actually heard the alleged spoken words: (“Go na pawarim Box 16. (Go and power box 16).

25.	Bribery Case 1 according to Mr Simbala is devoid of essential elements as required under Section 103 of the Criminal Code and Sections 208 of the Organic Law and ought to be struck out. He further submitted that the law is very clear that “pleadings drive the evidence” per Kandakasi J in the case of Ludger Mond v Jeffery Nape (2003) N2318. His Honour Makail J restated the principle in the case of Michael Korry v Mogerema Sigo Wei (2013) N5416 by stating that: “Evidence must be consistent with the pleadings because pleadings lay the foundation for evidence to be led or called.”

26.	Now based on the above legal principles Mr Simbala submit that the allegations under Bribery Case 1 be struck out for being incompetent.

27.	The Petitioner’s Response.

The thrust of the Petitioner’s response to all grounds of objections from both Respondents is founded in the 2013 Supreme Court case of Kikala v Electoral Commission [2013] PGSC 48; SC 125 . Mr Sheppard intimated that this was the most recent Supreme Court decision on the question of bribery and in particular how such allegations are to be properly pleaded.  

28.	Mr Sheppard submitted that his client’s Petition was drawn up following the guidelines set out in Kikala (supra) and ought to be accepted by this Court, hence  all objections on foot be struck out. Counsel said his client’s petition was clearly and correctly drafted by borrowing the exact words of Section 103(a) (iii) Criminal Code as per the Kikala statement. 

29	To support his arguments Mr Sheppard referred the Court to the Kikala case and extensively quoted the relevant excepts in that case in which the Supreme Court went to the trouble of itemizing the elements of bribery.
This is what the Supreme Court said: 

Section 103(a) (ii) 

“To prove an offence under Section 103(a) (iii) it must be proven that a person: 

1.     gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person; 
       2.     any property or benefit of any kind; 
3.     in order to induce any person to endeavor to procure the return of any person at an election or the vote of any elector at an election.

It will be observed that there is no element of 'intention', as such, required to be proven, in order to prove any of the offences under Section 103(5). This is borne out by the provisions of the Criminal Practice Rules which prescribe how, in criminal proceedings before the National Court, an indictment containing a charge of bribery under Section 103(a) of the Criminal Code is 
to be drafted. By virtue of Order 3, Rules 2 and 3(a) and Form 1 and Section 60 of Schedule 2 of the Criminal Practice Rules the indictment is to state: 

It will be observed that it is not necessary to state the accused's intention. As it is not necessary to plead in an indictment that the accused intended to bribe the other person or intended to procure the recipients' votes, it follows that it is not necessary to make a similar pleading in an election petition. It is also not necessary, for the same reason, to plead all the facts in support of the elements of the offence.” 

We consider that his Honour was insisting on a level of detail unwarranted by the simple requirement of Section 208(a) of the Organic Law that the petition "set out the facts relied on to   invalidate the election.” If that level of detail were the required standard, the Court would be in effect expecting petitioners to plead evidence, in addition to alleged facts, which is contrary to 
the purpose of a petition (Holloway v Ivarato [1988] PNGLR 99,  Siaguru v Unagi119871 PNGLR   372,  Karo v Kidu [1997] PNGLR    28, Karani v Silupa (2004) N2517). 

The grounds of the petition could have been more clearly and correctly drafted by borrowing the exact words of Section 103(a)(iii). It should have pleaded that the second respondent gave a cheque  of a certain amount to a certain recipient and that that was done: 

        •      in order to induce the recipient to endeavor to procure the return of  the second respondent at the election or the vote of certain electors at the 	election. “ ( End of quote)

30.	To his credit Mr Sheppard and like all good Lawyers acknowledged the strength of the case that were put before the court by the Respondents, one of which he was Counsel at the time. In support of his clients Petition and responses to all grounds of objections he submitted that this Court rely on and apply the principles stated in Kikala (supra). He submitted that Kikala was the most recent Supreme Court decision on the very issues now before the court and the current objections ought not to be moved and must fail. 

31.	Mr Shepherd submitted that the Supreme Court has now recognized and said in no uncertain terms and made the recommendation that the Petition could more clearly be drafted by borrowing the exact words on Section 103 (a) (iii) Criminal Code, adding that that was how the current Petition was drafted.

32.	He submitted that following the Kikala Supreme Court ruling all contentions of objections now before the court adequately answered.

33. 	As to the objections raised on the need to particularize the property or food in this case and the need to name persons said to be bribed and the naming of culprits Counsel argued that such were not necessary in pleadings based on the strength of Kikala pronouncements.

34.	Might I state here that whilst the Kikala statements, extensively relied on by the Petitioner, was perfectly good law at the prevailing time, more recent Supreme Court case (s), more particularly the Michael Kandiu v Hon Powes Parkop (2015) SC1437 have overtaken its relevance by restating the same principle of law favoring the rigid compliance of Section 103 Criminal Code and Section 208 Organic Law.  

35.	As to the objections raised by the Second Respondent in the form and the manner where the Petition was put together more particularly (para. 26 format) Counsel submitted that the format used was the most efficient and economical way of pleadings and should not render the petition incompetent. 

36.	Might I add here that whilst such practice is considered proper and acceptable in ordinary civil matters the same cannot be applied in Election Petition cases due to the rigid dictates of relevant provisions governing pleadings?

37.	With the greatest of respect to Counsel for the Petitioner, I am not convinced that I should follow that path in light of the mandatory hurdles envisaged in Sections 208, 209 and Section 210. More so Section 210 of the Organic law which states and I quote:

	Section 210.   No proceedings unless requisites complied with. 

       	“Proceedings shall not be heard on a petition unless the requirements of 	Sections 208 and 209 are complied with.”  

38.	Clearly if that is the mandatory dictate of law in its clearest and simplest form, any and all non-compliance, is now futile in my respectful view. Now notwithstanding the Supreme Court pronouncements in the Kikala case, solely relied on by the Petitioner in drafting this petition, The Organic Law on National and Local Level Government Elections remain supreme and must be complied with.

39.	Furthermore pertinent pronouncement in the  Kikala Supreme Court  case solely relied on by the Petitioner has since been restated again by another Supreme Court two years later in the case of Michael Kandiu v Hon Powes Parkop (2015) SC 1437. That case restated the pre Kikala position by making reference to Amet v Yama (2010) SC 1025; Nomane v Mori and Aide Ganasi v Sali Subam (2013) SC 1277. Furthermore in the case of Aide Ganasi v Sali Subam the court followed, Agonia v. Karo [1992] PNGLR 463. Borrowing the words of Mr. Jurth for the Second Respondent, if I may, the Kikala case has since been “boxed in” to which I agree, and watered down by most recent National and Supreme Court decisions on point. Some of which have been pointed out to me this week by Counsels.

40.	In our jurisdiction a plethora of old and more recent cases have been developed over time reaffirming the position that any violations or breaches of Sections 103 Criminal Code and Section 208 Organic Law, as has emerged in this Petition considered incompetent and defective. Section 210 provides that proceedings shall not be heard on a petition 	unless the requirements of Sections 208 and 209 are complied with.

41.	Now all that I have before me is the First Respondent allegedly handing over K20 to Moses Inyapa and inviting him to go and power up box 16. As correctly submitted by Mr Jurth that any manner of conclusions can be drawn from such vague statement more so in the absence of clearly pleaded facts to assist court in arriving at an unambiguous inference on Mr Masere’s intention. Furthermore whether Moses Inyapa upon receiving the money actually voted, is not pleaded.

42.	I am not satisfied that Bribery Case No. 1 has come with it clearly stated 
facts adequately and sufficiently capable of invalidating the election or return.  
It follows therefore that para. 4 -13 now ruled incompetent and deficient, thus struck out. 

43.	Bribery Case 2 – Ward 10 Hanakiro village, Oro Bay LLG Area, 	Ijivitari electorate.
	
	Allegations

•	On Tuesday 4 July 2017, Enoch Kasi Saura was at Hanakiro Village, Ward 10 of Oro Bay Local-level Government visiting his brother-in-law John Livingstone Kajari and his brother-in-law's family. Polling in the said electorate was taking place that day.
•	Between approximately 1.00 pm and 1.30 pm on the said day, the first respondent arrived by vehicle in Hanakiro Village, the vehicle stopped near John Livingstone Kajari's house,
•	As Enoch Kasi Saura, John Livingstone Kajari and approximately twenty other village people walked towards the first respondent they were told to  unload the food from the vehicle.
•	The first respondent then said to the persons around him, and within their hearing, in Tok pisin, a language spoken and understood by Enoch Kasi Saura, John Livingstone Kajari, and the others present, "Liklik kaikai blo yupla mi putim lo haus blo John Livingstone, yupla skelim kaikai na go vote."
•	In English these words translate to, "The food I brought is at John Livingstone’s house. All of you share it and go vote."
•	The first respondent gave the food to Enoch Kasi Saura (amongst others), at the said time and place, in the circumstances referred to, and accompanied by the said words spoken, with the intention, and in order to induce Enoch Kasi Saura to endeavor to procure the return of the first respondent at the general election, or the vote of Enoch Kasi Saura at the election.
•	The said conduct of the first respondent in giving the food to Enoch Kasi Saura, in the circumstances and accompanied by the words as set out above, constituted bribery within the meaning of s 103(a) (iii) of the Criminal Code.
Objections

44.       The First Respondent argued that the grounds in the petition on Bribery Case 2 wanting: no or insufficient facts were pleaded of essential matters in contravening of Section 208 (a) of the Organic Law. Furthermore no attempts were made to identify:

•	the "approximately another twenty people" in para. [18]; 
•	the "others" in para. [19]; 
•	the "other persons present" in [20]; 
•	 the "about  25 people" in [21]; 
•	 the "persons around  him" in [22]; 
•	 "the others present" in [22];  and 
•	  "amongst others" in [24]. 

45.	Accordingly, insufficient facts are pleaded. By not identifying the unnamed person, Mr Masere is not able to prepare for trial to his prejudice. 

•	Further, the facts from which the legal conclusion of intention is not made out. 
•	Further, the matters set out in para.  24 of the Petition constitute speculation rather than pleading facts. 

46.	Mr Jurth argued that property (food) the subject of the alleged bribe is not particularized. The precise value, the description of the property the subject of the bribe be described and that counts 2, 3 and 4 merely describe it as food.
He said Enoch Kasi Saura, John Livingston Kajari and other persons unloaded the food from the vehicle. Ironically Enoch Kasi Saura is one of the witness the Petitioner intends to call, he unloaded the food yet there is no pleading as to what that food was, what the amount was and what the value was. Case law dictates that the property, food, value has to be described otherwise the court is left to infer that this food was so valuable and desired by the person attempting to be bribed that the court can infer guilty mind, he said.

47.	As to para 23, Counsel for first Respondent described it as the most outrageous allegation as it doesn’t say (...All of you share it and go and vote for me.”).It doesn’t say vote for Masere. So this Petitioner brings an allegation to Court that the duly elected member put some food under a house, told a group of unnamed people, go, eat it and go and vote. And from those facts they want the court to infer illegal intent, guilty mind, improper purpose and for the court to infer through those words and that conduct Mr Masere was attempting to subvert the conduct of a lawful election in trying to interfere illegally in an election.

48.	The Second Respondent likewise argue that Bribery Case 2 wanting or failing to comply with the mandatory requirements of Section 103 Criminal Code and Section 215 (11) Organic Law. Mr. Simbala argued that;
•	corroboration is an important factor in establishing the element of the offence of bribery under Section 103 of the Criminal Code. 
•	the pleadings  do not say whether  the other 25  people  who were 
       present and witnessed the delivery of the food items were electors. 
•	The pleading lacks particularity in terms of what kinds of food items were delivered and left at John Livingstone Kajari's house. 
•	The petitioner did not state whether these food items were actually distributed and shared amongst the people present. 
•	If so, the pleadings do not say whether Enoch Kasi Saura received any food items from the First Respondent. 
•	The petitioner did not state what kinds of food items were given and what was said by the First Respondent to Enoch Kasi Saura at the time of food presentation. 
•	For the purposes of compliance with Section 215 (1) of the Organic
Law requirements, it is important for the pleadings to expressly state that Enoch Kasi Saura actually casted his vote, irrespective of who he voted for, after receiving the food items from the First Respondent to satisfy the elements of bribery under Section 103 of the Criminal Code.
•	it is unclear  whether John Livingstone Kajari and 25 other people who allegedly benefited from the food items actually voted on the day of polling, after receiving the food items. 

49.	Due to glaring deficiencies in the pleadings this ground of the petition is incompetent. Mr. Simbala submitted that this Honourable Court should strike out "Bribery Case 2" for the reasons given. 

50.	Mr Simbala in response to the Petitioner’s assertion that the pleadings were good, maintained his position that the Petition was convoluted and lacked clarity hence urged court to adopt and apply the principles founded in the case of Micah v Ling Stuckey (1998) N 1791 stating that it was a good law, as in law, each ground of bribery is a separate and distinct triable issue on its own.

51.	The Petitioner’s response would be similar to those stated in Bribery Case 1, therefore I need not repeat them here. According to Counsel for the Petitioner Mr Sheppard the current objections ought not to be moved and must fail in light of the Kikala pronouncements on point and urged court to apply the relevant principles pointed out therein.   

52.	I say here that in our jurisdiction a plethora of old and more recent cases have been developed over time reaffirming the position of law that any violations of relevant provisions governing elections: Sections 208, 215 Organic Law and Section 103 of the Criminal Code detrimental to the success of a Petition.

53.	Similarly in my view, in Bribery Count 2 all that is before this court was Mr Masere laying out some foodstuff to a group of people, amongst whom were Enoch Kasi Saura and John Livingstone Kajari to share, eat and go and vote. There is no mention in the pleading that Mr Masere invited the two men or the group of people gathered to go and vote for him. Now in the absence of clear and precise pleading of facts, how than does the Petitioner expect this court to draw inference on Mr Masere’s conduct or actions in relation to his intention or guilty mind?  Now assuming that the two named persons in Enoch Kasi Saura, John Livingstone Kajari and the other group of people alleged in the petition were indeed bribed and this ground succeeding, how else then can this court comfortably and safely void the election on account of this allegation in the absence of properly pleaded facts?  Again there are no facts. 

54.	I am therefore not satisfied that Bribery Case No. 2 has come with it clearly stated facts adequately and sufficiently capable of invalidating the election or return.  

55.	Again I repeat here with the greatest of respect to Counsel for the Petitioner that I am not convinced that I should follow that path ( the Kikala statements)  in light of the mandatory hurdles envisaged in Sections 208, 209 and Section 210. More so Section 210 of the Organic Law which states and I quote:

	“Section 210.   No proceedings unless requisites complied with. 

  Proceedings shall not be heard on a petition unless the requirements of 	Sections 208 and 209 are complied with.  

56.	Now reaffirming what I said in Bribery Count 1, my findings remain the same for Bribery Count 2. It follows therefore that para. 14 -25 now ruled incompetent and deficient, thus struck out. 

57.	With regards to Bribery Cases 3,4,5,6 and 7, I see no utility in discussing them in any great length. Since they are all inter-related or hinged onto Bribery Cases 1 and 2 their success is determined by them. It follows that paras. 26 -70 struck out.  Now that Bribery Case 1 and 2 has been struck down they all must likewise be struck down for the same reasons. 

58.	The formal Orders are:

1.	The whole of the Respondent’s objections to competency of the entire Election Petition are up-held.

2.	Election Petition No.46 of 2017 be dismissed in its entirety.

3.	The Petitioner shall pay the costs of the two Respondents on this 	proceedings including the costs of this application to be taxed if not 	agreed, and 

4.	The security deposit of K5, 000.00 held in trust by the Registrar be 	released and paid in equal shares to the Respondents.
________________________________________________________________
Simpson Lawyers	: Lawyer for the Petitioner
Mel & Henry Lawyers: Lawyer for the First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent