N7152
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 4 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE 
TARI-PORI OPEN ELECTORATE  

JOHNNY P POKAYA
Petitioner

V

JAMES MARAPE 
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2018:12th, 13th March 

ELECTIONS – PETITIONS – OBJECTIONS TO COMPETENCY OF PETITION – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(a): whether facts relied on to invalidate the election adequately set out.

Two respondents to an election petition objected to competency of the petition, which consisted of 13 grounds of challenge, all relating to acts of bribery or undue influence,  some allegedly committed by the first respondent (the successful candidate), some allegedly committed by other persons. Both respondents relied on the same ground of objection to each ground of the petition: that the petition was in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections as each ground of the petition failed to adequately set out the facts relied on to invalidate the election, in that each ground was inadequate in one or more of the following respects: (a) the facts pleaded were convoluted, confusing, vague and/or insufficient; (b) the precise provision of the Criminal Code allegedly breached was not stated; (c) the grounds of the petition that alleged bribery or undue influence was committed by persons other than the first respondent: (i) failed to state with particularity that the acts were committed with the knowledge or authority of the first respondent; (ii) failed to plead that the result of the election was likely to be affected by the act of bribery or undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; (iii) confusingly concluded with an allegation that the first respondent had committed bribery or undue influence; (iv) incorrectly referred to the persons  subject to the bribery or undue influence as an “eligible voter”, whereas the correct terminology is “elector”; (d) some grounds alleged that acts of undue influence were committed at night-time on the date of polling, which was not credible.  

Held:

(1)	Grounds 1 and 4 of the petition adequately alleged bribery was committed by the first respondent under Section 103 of the Criminal Code. The facts pleaded were not so convoluted, confusing, vague and/or insufficient as to amount to a failure to comply with Section 208(a) of the Organic Law. The failure to specify the precise provision(s) of Section 103 of the Criminal Code allegedly breached by the first respondent was insignificant as the facts alleged would, if proven, allow a finding to be made that an offence was committed. No good reason was provided to strike out these grounds. Grounds 1 and 4 remain. 

(2)	Ground 2 of the petition alleged an act of bribery was committed by a person other than the first respondent but failed to adequately set out the facts relied on to support the allegation that bribery was committed with the knowledge or authority of the first respondent or that the result of the election was likely to be affected by the act of bribery and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void. It failed to meet the requirements of Section 215(3) of the Organic Law. It therefore failed to adequately set out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It was struck out.

(3)	Ground 3 of the petition alleged an act of bribery was committed by a person other than the first respondent but did not allege that it was committed with the knowledge or authority of the first respondent or that the result of the election was likely to be affected by the act of undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void. It failed to meet the requirements of Section 215(3) of the Organic Law. It therefore failed to adequately set out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It was struck out.

(4)	Grounds 5, 6, 8, 9, 10, 11, 12 and 13 of the petition alleged acts of undue influence were committed by persons other than the first respondent but failed to adequately set out the facts relied  on to support the allegations that undue influence was committed with the knowledge or authority of the first respondent or that the result of the election was likely to be affected by the acts of undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void. It failed to meet the requirements of Section 215(3) of the Organic Law. It therefore failed to adequately set out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. These grounds were struck out.

(5)	Ground 7 of the petition alleged an act of undue influence was committed by persons other than the first respondent and adequately set out the facts relied on to support the allegation that undue influence was committed with the knowledge or authority of the first respondent. It was unnecessary to allege that the result of the election was likely to be affected by the act of undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void. It met the requirements of Section 215(3) of the Organic Law. It therefore adequately set out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.

(6)	In summary ten grounds of the petition were struck out. Three remain. The petition will proceed to trial on three grounds. 

Cases cited

The following cases are cited in the judgment:

Benny Diau v Mathew Gubag (2004) SC775
Delba Biri v Bill Ninkama [1982] PNGLR 342
Dick Mune v Anderson Agiru (1998) SC590
Gordon Wesley v Isi Henry Leonard (2016) SC1477
Holloway v Ivarato [1988] PNGLR 99
Isi Henry Leonard v Gordon Wesley (2014) N5812
Jim Nomane v Wera Mori (2013) SC1242
Ken Fairweather v Jerry Singirok (2013) SC1293
Peter Isoaimo v Paru Aihi (2012) N4921
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980 
Robert Kopaol v Philemon Embel (2003) SC727
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Soro Marepo Eoe v Mark Ivi Maipakai (2013) N5066

OBJECTIONS

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

Counsel

J Haiara, for the Petitioner
R Leo for, the First Respondent
L Okil for, the Second Respondent

13th March, 2018

1.	CANNINGS J: This is a ruling on two objections to competency of an election petition. The petition, consisting of 13 grounds of challenge, was filed by unsuccessful candidate Johnny P Pokaya (the petitioner) disputing the election of first respondent James Marape as member for Tari-Pori Open in the 2017 general election. 

2.	Both respondents (the second respondent is the Electoral Commission) rely on the same ground of objection to each ground of the petition: that the petition is in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections in that it does not adequately set out the facts relied on to invalidate the election. Section 208(a) provides that “a petition shall set out the facts relied on to invalidate the election or return”. 

3.	It has been accepted without question since the decisions of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99 that the requirements of Section 208 of the Organic Law must be strictly complied with and that respondents to an election petition have a right to object to its competency.  

GROUNDS OF THE PETITION 

4.	These are:

1.	Bribery committed by first respondent, Paipali village, Tari Urban LLG (Local-level Government).

2.	Bribery committed by a person other than the first respondent, Kuku 1 ward, Tebi LLG.

3.	Bribery committed by a person other than the first respondent, Parinamu ward 1, Tebi LLG.

4.	Bribery committed by first respondent, Andawale ward  2, Tari Urban LLG

5.	Undue influence committed by a person other than the first respondent, Tati 1 ward, Pori LLG.

6.	Undue influence committed by a person other than the first respondent, Paipali, Piribu 2 ward, Tari Urban LLG.

7.	Undue influence committed by a person other than the first respondent, Pai 2 ward, Tebi LLG.

8.	Undue influence committed by a person other than the first respondent, Tugu 1 ward, Pori LLG.

9.	Undue influence committed by a person other than the first respondent, Wagala ward, Pori LLG.

10.	Undue influence committed by a person other than the first respondent, Kuranda 2 ward, Pori LLG.

11.	Undue influence committed by a person other than the first respondent, Tapayamapu ward, Pori LLG.

12.	Undue influence committed by a person other than the first respondent, Tiba ward, Pori LLG.

13.	Undue influence committed by a person other than the first respondent, Kuranda 1 ward, Pori LLG.

5.	Thus four grounds (1 to 4) of the petition are based on allegations of bribery. Nine (5 to 13) are based on allegations of undue influence. Two of the four bribery grounds allege bribery committed by the first respondent. Two allege bribery was committed by persons other than the first respondent. None of the undue influence grounds allege undue influence committed by the first respondent. All nine allege that undue influence was committed by persons other than the first respondent.

6.	Each of the bribery grounds alleges that the first respondent “committed bribery under Section 103 of the Criminal Code and Section 215 of the Organic Law”. 

7.	Each of the undue influence grounds alleges that the first respondent “committed undue influence under Section 102 of the Criminal Code and Section 215 of the Organic Law”. 

8.	Section 215 (voiding election for illegal practices) states:

(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.

9.	The terms “bribery” and “undue influence” in Section 215 refer to the offences created by Section 103 (bribery) and Section 102 (undue influence) of the Criminal Code (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980).

GROUNDS OF OBJECTION

10.	Each respondent filed a notice of objection to competency. The notices are expressed in different ways but in substance the same objection covers all grounds of objection in the two notices: each ground of the petition fails to adequately set out the facts relied on to invalidate the election. Each respondent objects to each of the 13 grounds of the petition. The details of the objections vary. However, in submissions, Mr Leo, counsel for the first respondent, and Mr Okil, counsel for the second respondent, tended to adopt each other’s submissions. So I am going to deal with the respondents’ objections together.

11.	The grounds of objection can be summarised as follows:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; 

(b) the precise provision of the Criminal Code allegedly breached was not stated; 

(c) the grounds of the petition that alleged bribery or undue influence committed by persons other than the first respondent: 

(i)	failed to state with particularity that the acts were committed with the knowledge or authority of the first respondent; or
(ii)	failed to plead that the result of the election was likely to be affected by the act of bribery or undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; or
(iii)	confusingly concluded with an allegation that the first respondent had committed bribery or undue influence; or
(iv)	incorrectly referred to the persons  subject to the bribery or undue influence as an “eligible voter”, whereas the correct terminology is “elector”; 

(d)	some grounds alleged that acts of undue influence were committed at night-time on the actual date of polling (Tuesday 27 June 2017), which was not credible.  

12.	F      or some grounds of the petition the respondents argued all the above grounds of objection. For other grounds of the petition the respondents argued only some of the above grounds of objection. 

METHOD

13.	I will deal with each of the 13 grounds of the petition in turn. I will quote the ground of the petition, then summarise the grounds of objection to it, then determine the objection by stating whether it is sustained or refused.

GROUND 1 OF PETITION: BRIBERY COMMITTED BY FIRST RESPONDENT, PAIPALI VILLAGE, TARI URBAN LLG (LOCAL-LEVEL GOVERNMENT)

14.	This ground alleges:

(a)	On Sunday 25 June 2017, at about 12 noon, the First Respondent at Paipali village, Tari-Urban Local Level Government (herein LLG”) gave K10,000.00 in cash to Tawi Pulumaya, the President of the Tebi LLG in the presence of Moses Minai, Howard Hamono, John Aipe, Kep Parila (the Assistant presiding officer for Kuku Ward 2) and David Hangube and said the following words to them in the process:

(i)	The First Respondent when giving the monies then uttered words to the effect that “give this money K100 to yourselves and each person especially to your family members and relatives and voters from Kuku 2 and tell them to vote for me, this is secret don’t tell anyone else”.

(ii)	In addition, the First Respondent further clarified his instructions when he uttered words to the effect that , “give K100 to each person per head from the K10,000.00 for about 100 votes and after the polling, there will be commission from me for you all in this room after the polling”.

(iii)	After Mr Pulumaya had received the monies and distributed the monies totalling K2,000.00 each to each of Mr Minai, Mr Hamono, Mr Aipe, Mr Parila and Mr Hangube the First Respondent then uttered words to the effect that, “two candidates running in this election challenging me are lawyers and should any word go out to them and if this matter goes to court, you will cut my neck and you will explain to my relatives.”

(b)	On the same day, Tawi Pulumaya in the presence of the First Respondent and with his knowledge and authority gave the said cash monies as follows:

(i)	K2,000.00 to Moses Minai, an elector from Kuku No 2 Ward;
(ii)	K2,000.00 to Howard Hamono, an elector from Kuku No 2 Ward;
(iii)	K2,000.00 to John Aipe, an elector from Kuku No 2 Ward;
(iv)	K2,000.00 to Kep Parila, an elector from Kuku No 2 Ward; and
(v)	K2,000.00 to David Hangube, an elector from Kuku No 2 Ward

(c)	On the same day in the night at around 11 pm, David Hangube then visited each of his family members and gave each of them K100 each. Amongst those Mr Hangube gave monies to were Julian Firman, Jessica Firman, Angai Dilape, Tomai Dilape, Nagai Dilape, Elawi Dilape, Kepa Piwa and Hinai Haguago. Each of these persons are eligible voters for Pendali village, Kuku 2 Ward, Tebi Local Level Government.

(d)	The First Respondent gave the K10,000.00 cash to Tawi Pulumaya in the presence of the said electors to induce the electors to vote for him.

(e)	The First Respondent gave the K10,000.00 cash to Tawi Pulumaya in the presence of electors with the intent to corruptly induce them, being persons registered on the common roll for Tari-Pori open electorate, to secure the return of the First Respondent in the Tari-Pori Electorate in the 2017 General Elections.

(f)	The First Respondent is alleged to have committed bribery pursuant to Section 103 of the Criminal Code Act Chapter 262 (herein “the Criminal Code”) and Section 215 of the Organic Law.

15.	The respondents raised two objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated.

16.	As to objection (a), the respondents argued that ground 1 of the petition is:

•	confusing and convoluted as it is framed as an allegation of bribery by the first respondent of Tawi Pulumaya (who is not alleged to be an elector) but then transcends into allegations of bribery by Tawi Pulumaya of other persons, being Moses Minai, Howard Hamono, John Aipe, Kep Parila and David Hangube, who are described as “electors”; then  it goes further to allege that David Hangube gave or bribed each of his family members, including Julian Firman and seven other named persons;

•	vague as the ground does not allege that those persons who are named were “electors”, only that they were “eligible voters” (which is not the same thing as “electors” as any citizen aged 18 years or over is eligible by virtue of Section 50 of the Constitution to vote but only citizens whose names are on the Roll for an electorate are by virtue of Section 52 of the Organic Law entitled to vote, and properly regarded as “electors”;

•	vague as the ground alleges that the first respondent uttered “words to the effect” rather than alleging the exact words used;

•	vague as the ground does not particularise the places at which the alleged events took place, other than to allege they took place at Paipali village (which is said to be a big village). 

17.	I am unimpressed by these arguments. The facts alleged are straightforward. The kernel of ground 1 of the petition is in paragraphs (a)(i) and (ii):

(a)	On Sunday 25 June 2017, at about 12 noon, the First Respondent at Paipali village, Tari-Urban Local Level Government (herein LLG”) gave K10,000.00 in cash to Tawi Pulumaya, the President of the Tebi LLG in the presence of Moses Minai, Howard Hamono, John Aipe, Kep Parila (the Assistant presiding officer for Kuku Ward 2) and David Hangube and said the following words to them in the process:

(i)	The First Respondent when giving the monies then uttered words to the effect that “give this money K100 to yourselves and each person especially to your family members and relatives and voters from Kuku 2 and tell them to vote for me, this is secret don’t tell anyone else”.

(ii)	In addition, the First Respondent further clarified his instructions when he uttered words to the effect that , “give K100 to each person per head from the K10,000.00 for about 100 votes and after the polling, there will be commission from me for you all in this room after the polling”.

18.	Those alleged facts, if proven, would be elements of an offence of bribery under Section 103 of the Criminal Code, which states:

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 endeavour 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 endeavour 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 misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

19.	In particular the facts alleged in paragraph (a)(i) and (ii) of ground 1 of the petition would appear to satisfy the elements of offences under, at least, Sections 103(a)(i) and 103(a)(iii) of the Criminal Code, and provide the grounds on which the election of the first respondent could be declared void under Section 215(1) of the Organic Law.

20.	The fact that ground 1 proceeds to allege what happened after the giving by the first respondent of the K10,000.00 to Tawi Pulumaya Tawi, does not neutralise the facts alleged in paragraphs (a)(i) and (ii) or render the kernel of ground 1 of the petition vague or confusing. And it does not mean that ground 1 of the petition becomes based on Section 215(3) of the Organic Law. 

21.	The fact that ground 1 of the petition uses the terms “eligible voter” and “elector” interchangeably and rather loosely does not defeat the force or clarity of the allegation. It is noted that the word “elector” is used in both Sections 103(a)(i) and 103(a)(iii) of the Criminal Code. There is an inclusive definition of “elector” in Section 98 of the Criminal Code: it includes “any person entitled to vote at an election”.  

22.	As to the failure of ground 1 of the petition to provide intricate details of the place at which events took place, I think this an unreasonable amount of detail to expect. What has been stated in terms of the name of the village, is sufficient. Likewise, with the allegation that the first respondent said “words to the effect”. There is nothing wrong with such an allegation.

23.	The facts alleged in ground 1 of the petition are sufficiently clear to put the respondents on notice as to what allegations they need to respond to and to assist the Court in its determination of the petition.

24.	As to objection (b), the failure of ground 1 of the petition to allege the particular offence in Section 103 of the Criminal Code that the first respondent committed, I appreciate the logic in the respondents’ argument. I commented in Peter Isoaimo v Paru Aihi (2012) N4921 and in Soro Marepo Eoe v Mark Ivi Maipakai (2013) N5066 that Section 103 is a very complex provision. I said that because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, it is desirable for a petitioner to specify what particular bribery offences are alleged to have been committed. I pointed out that in Isoaimo the petitioner argued that the first respondent committed bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code. To prove an offence under Section 103(a)(iii) the petitioner must plead, and prove, that the person alleged to have committed bribery:

•	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;

•	any property or benefit of any kind;

•	in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election and that the procurer of the benefit acted with some criminal intent, in particular the intention to bribe someone (Desmond Baira v Kilroy Genia (1998) SC579).

25.	My view on the desirability of requiring petitioners to be specific in making allegations of bribery and undue influence was endorsed by the Supreme Court in Jim Nomane v Wera Mori (2013) SC1242. I was, with Kandakasi J and Collier J, a member of the bench in that case. The problem for the respondents is that, that sort of strict approach to the pleading of a petition has not been endorsed in any subsequent Supreme Court decision. In fact, as pointed out by Kariko J in Isi Henry Leonard v Gordon Wesley (2014) N5812, the strict approach was at odds with an earlier Supreme Court decision in Dick Mune v Anderson Agiru (1998) SC590. In that case, the three members of the Court (Amet CJ, Woods J and Injia J) were all of the view that ‘pleading the law’ was not necessary. Woods J put it this way:

The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of Section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers. 

26.	Kariko J proceeded to follow the Mune v Agiru approach and did not follow the Nomane v Mori approach. His Honour’s decision was reviewed by the Supreme Court (Salika DCJ, Sakora J, Hartshorn J) in Gordon Wesley v Isi Henry Leonard (2016) SC1477 and this is what the Court unanimously stated:

The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return.  In our view Agiru v Mune (1998) SC590 sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review.  Biri v Ninkama [1982] PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated.  In this case the learned trial judge comprehensively considered the law and case authorities and in our view applied them correctly to the circumstances of this case. In our view, a petition should not plead the law breached.  It should be left to the Court to conclude what law has been breached.  All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges.  This ground has no merit and is dismissed.

27.	That is the last word on the question of whether the petitioner should plead the law in the petition. The answer is no. The approach that I championed in Isoaimo and Eoe, which was endorsed in Nomane v Mori, does not reflect the prevailing preponderance of judicial opinion. I am obliged to follow the weight of authority on this issue. Therefore, the failure of ground 1 of the petition to be more specific than simply alleging that the first respondent committed bribery under Section 103 of the Criminal Code, is of no consequence.

28.	I uphold the submissions of Mr Haiara, for the petitioner, and dismiss all grounds of objection to ground 1 of the petition. No good reason was provided to strike out ground 1. It remains. 

GROUND 2 OF PETITION: BRIBERY COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, KUKU 1 WARD, TEBI LLG

29.	This ground alleges:

(a)	On Tuesday 27 June 2017, at about 8 am at Erepe/Torm village, the gazetted place of polling, Akipe Puala a supporter of the First Respondent gave K800.00 in cash to Giya Mendene with the knowledge and authority of the First Respondent and uttered word to effect that:-

“this money is for the 20 names you submitted at Pangale house to vote for James Marape and to give K40.00 each to each elector as per the 20 name list”.

(b)	On the same day, Giya Mendene with the knowledge and authority of the First Respondent gave some of the money as follows (amongst others:

(i)	K40.00 to Tatai Kate, an elector from Kuku 1 ward;
(ii)	K40.00 to Hamube Kate, an elector from Kuku 1 ward;
(iii)	K40.00 to Maliabe Kate, an elector from Kuku 1 ward;
(iv)	K40.00 to Wanili Tomali, an elector from Kuku 1 ward;
(v)	K40.00 to Togome Tomali, an elector from Kuku 1 ward;
(vi)	K40.00 to Ipiya Tomali, an elector from Kuku 1 ward;
(vii)	K40.00 to Gini Tomali, an elector from Kuku 1 ward;
(viii)	K40.00 to Alice Giya, an elector from Kuku 1 ward;
(ix)	K40.00 to Tony Paul, an elector from Kuku 1 ward; and
(x)	K40.00 to Jenny Paul, an elector from Kuku 1 ward.

(c)	Akipe Puala gave K40.00 to the said electors in order to induce each of them to vote for the First Respondent.

(d)	The First Respondent is alleged to have committed bribery pursuant to Section 103 of the Criminal Code and Section 215 of the Organic Law.

30.	The respondents raised three objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and

(b) the precise provision of the Criminal Code allegedly breached was not stated; and

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent;
(ii)	fails to plead that the result of the election was likely to be affected by the act of bribery or undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed bribery; 
(iv)	incorrectly referred to the persons subject to the bribery as an “eligible voter”, whereas the correct terminology is “elector”.

31.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

32.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

33.	I uphold objections (c)(i), (ii) and (iii). Ground 2 of the petition is a clear allegation that Akipe Puala committed the offence of bribery of Giya Mendene and the ten electors named in paragraphs (i) to (x).  It is alleged that the offence of bribery was committed with the knowledge and authority of the first respondent. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of bribery.  The only way this ground of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

34.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. In reaching this conclusion I have adopted the interpretation of Section 215(3) of the Organic Law set out in the Supreme Court’s decision in Ken Fairweather v Jerry Singirok (2013) SC1293. The Court of which, together with Mogish J and Poole J, I was a member, stated:

A proper construction of the whole of Section 215 will result from appreciation of the fact that it is dealing with six scenarios in which there are three variables:

•	the nature of the illegal practice: whether it was actual or attempted bribery or undue influence, which are regarded by the Organic Law as the most serious forms of illegal practice, or some other illegal practice;

•	the person committing the illegal practice: whether it was committed by the successful candidate (regarded as the most serious conduct) or by some other person;

•	in the case of an illegal practice committed by a person other than the candidate: whether it was committed with (the most serious situation) or without (less serious) the candidate’s knowledge or authority.

The six scenarios, in decreasing order of seriousness, are:

A.	bribery or undue influence committed or attempted by a candidate: if he is the successful candidate, s 215(1) applies: his election shall be declared void;

B.	bribery or undue influence committed or attempted by someone other than the candidate with the knowledge or authority of the candidate: his election may be declared void without the necessity of pleading or proving the two matters set out at the end of Section 215(3);

C.	bribery or undue influence committed or attempted by someone other than the candidate without the knowledge or authority of the candidate: this is the scenario expressly provided for by Section 215(3)(a): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

D.	illegal practice other than actual or attempted bribery or undue influence committed by a candidate: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

E.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate with the candidate’s knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

F.	illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate without the candidate’s knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven.

35.	I appreciate the point made by Mr Leo in his submissions that there are parts of the above analysis that conflict with the interpretation of Section 215(3) given by the Supreme Court (Salika DCJ, Batari J, Davani J) in Sir Arnold Amet v Peter Charles Yama (2010) SC1064. In that case it was indicated that in every case of alleged bribery, undue influence or other illegal practice committed by a person other than the successful candidate – with or without the knowledge or authority of the successful candidate – it is necessary to plead and prove the two matters in the proviso at the end of Section 215(3). In Fairweather v Singirok the Court said that it is only when the alleged bribery, undue influence or other illegal practice is committed by a person other than the successful candidate without the knowledge or authority of the successful candidate, that it is necessary to plead and prove the two matters in the proviso at the end of Section 215(3). If the illegal practice is committed with the knowledge or authority of the successful candidate it is not necessary to prove the two matters in the proviso at the end of Section 215(3).

36.	This means that, if it is adequately pleaded that the illegal practice was committed with the knowledge or authority of the successful candidate it is not necessary to plead the two matters in the proviso at the end of Section 215(3). However, if it is not adequately pleaded that the illegal practice was committed with the knowledge or authority of the successful candidate – which is the case in ground 2 of this petition – it is necessary to plead the two matters in the proviso at the end of Section 215(3).

37.	Furthermore, this ground of the petition concludes with the allegation that the first respondent had committed bribery. This contradicts the allegation that Akipe Puala committed bribery. 

38.	The general objection to ground 2 of the petition is sustained. Ground 2 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 3 OF PETITION: BRIBERY COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, PARINAMU WARD 1, TEBI LLG

39.	This ground alleges:

(a)	On Monday 26 June 2017, at around 4 pm, at Parinamu ward 1 at Pari village, the First Respondents campaign manager, Stanley Pajari Pongoli, gave K10,000.00 in cash to Handape Parila a supporter of the First Respondent in the presence of electors including Horia Ikiya and uttered words to the effect “that he had Pari Ward no 1 monies totalling K10,000.00 to buy votes for the First Respondent”.

(b)	On the next day, Tuesday 27 June 2017 in the morning, Handape Parilla in the presence of electors including Horia Ikiya uttered words to the effect that, “ I have James Marape’s money and each voter who wanted to give first preference vote to James Marape will be paid K50.00 after the vote was taken.”

(c)	On the polling day, Tuesday 27 June 2017 around 6 pm, Handape Parilla then gave K50 cash to Horia Ikiya as reward for voting for the First Respondent as confirmed by Handape Parilla, and in the presence of Ekape Mulungu, Taiga Aliapu, Andy Allan and Ekawe Handape.

(d)	Stanley Pajari Pngoli gave the K50 cash to Handape Parilla with the intent to corruptly induce them, being persons registered on the common roll for the Tari-Pori Open electorate, to secure the return of the First Respondent in the Tari-Pori Open Electorate in the 2017 General Elections.

(e)	The First Respondent is alleged to have committed bribery pursuant to Section 103 of the Criminal Code and Section 215 of the Organic Law.

40.	The respondents raised three objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and  

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act of bribery or undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed bribery; 
(iv)	incorrectly referred to the persons subject to the bribery as an “eligible voter”, whereas the correct terminology is “elector”.

41.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

42.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

43.	I uphold objections (c) (i), (ii) and (iii). Ground 3 of the petition is a clear allegation that the first respondent’s campaign manager, Stanley Pajari Pongoli, committed the offence of bribery of Handape Parila and others.  However it is not alleged that the offence of bribery was committed with the knowledge or authority of the first respondent. The only way this ground of the petition could succeed at a trial is, if the elements of Section 215(3) of the Organic Law were proven:

•	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.

44.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. 

45.	Furthermore, this ground of the petition concludes with the allegation that the first respondent had committed bribery. This contradicts the allegation that Stanley Pajari Pongoli committed bribery. 

46.	The general objection to ground 3 of the petition is sustained. Ground 3 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 4 OF PETITION: BRIBERY COMMITTED BY FIRST RESPONDENT, ANDAWALE WARD 2, TARI URBAN LLG

47.	This ground alleges:

(a)	On Sunday 25 June 2017 at around 12 noon at the First Respondent’s residence located at Paipali village, Tari-Urban LLG, the First Respondent gave the Councillor for Andawale No 2 ward, Hame Matiabe, K10,000.00 in cash.

(b)	On the same day, at around 8 pm, at the residence of Hiputaya Tagobe, Hame Matiabe with the knowledge and authority of the First Respondent and in the presence of Hama Tagobe, Hanguari Mbuliaria and David Hanguari gave K400.00 to John Angoea, an elector from Andawale ward no 2.

(c)	John Angoea on the same night then gave the money to (amongst others) as follows:

(i)	K40.00 to Eroli Angoea, an elector from Andawale no 2 ward to vote for the First Respondent;
(ii)	K40.00 to Matialu Angoea, an elector from Andawale no 2 ward to vote for the First Respondent.

(d)	The First Respondent gave the K10, 000.00 cash to Hame Matiabe with the intent to corruptly induce them and other ward members being persons registered in the common roll for Tari Pori Open electorate to vote for him.

(e)	The First Respondent gave the K10,000.00 cash to Hame Matiabe with the intent to corruptly induce them, being persons registered on the common roll for the Tari-Pori Open Electorate, to secure the return of the First Respondent in the Tari-Pori Open Electorate in the 2017 General Elections.

(f)	The First Respondent is alleged to have committed bribery pursuant to section 103 of the Criminal Code and section 215 of the Organic Law.

48.	The respondents raised two objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated.

49.	As to (a), the respondents raised similar arguments to those raised in relation to ground 1 of the petition. I am, as I was in ground 1, unimpressed by the arguments. The facts alleged are straightforward. The allegation is that the first respondent bribed Hame Matiabe with K10,000.00 cash. Offences of bribery under Sections 103(a)(i) and (iii) of the Criminal Code are adequately alleged. 

50.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

51.	The general objection to ground 4 of the petition is refused. Ground 4 of the petition adequately sets out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.

GROUND 5 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, TATI 1 WARD, PORI LLG

52.	This ground alleges:

(i)	On Tuesday 27 June 2017 between 4 pm and 11 pm at the Tade Community School, the gazetted polling place, Mr Larsen Marape, (the First Respondent’s brother) the Presiding Officer Mr Andrew Homogo, Returning Officer Tom Hingil and other scrutineers and supporters of the First Respondent threatened to use force on eligible voters including Cedrick Karai and Tati Angi in order to mark ballot papers on behalf of the First Respondent by:

Particulars of “threatened use of force”

A.	Instigating an argument that led to a fight between a scrutineer or a candidate Mr Michael Pero and Mr Marape

(ii)	The actions of Mr Marape and others therefore caused eligible voters including Cedrick Karai and Tati Angi not to cast their votes.

(iii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

53.	The respondents raised three objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; or
(ii)	fails to plead that the result of the election was likely to be affected by the undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; or
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; or
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”.

54.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent in that the elements of an offence of undue influence under Section 102 of the Criminal Code are adequately pleaded. Section 102 states:

A person who—

(a)	uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i)	in order to induce him to vote or refrain from voting at an election; or
(ii)	on account of his having voted or refrained from voting at an election; or

(b)	by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

55.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

56.	I uphold objections (c)(i), (ii) and (iii). Ground 5 of the petition is a clear allegation that the first respondent’s brother, Larsen Marape, and other named persons, committed the offence of undue influence of Cedrick Karai and Tati Angi and others named.  

57.	It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent. This allegation has been made by the allegations contained in the following paragraphs of the petition, which precede and are to be read as applying to each of grounds 5 to 13 of the petition:

GROUNDS RELATING TO UNDUE INFLUENCE

On Tuesday 27 June 2017, the day of polling the First Respondent’s election managers, scrutineers and supporters with the knowledge and authority of the First Respondent had: 

(a)	Used force and/or threatened to use force in order to induce certain eligible voters at various times and at various polling places to vote or refrain from voting on the polling day (Category One); and

(b)	Used force to prevent or obstruct certain eligible voters at various polling places and at various times from voting on the polling day (Category Two).

58.	However, no facts are alleged to demonstrate when, how or at what place, the first respondent knew of or authorised the act of undue influence. The only way ground 5 of the petition could succeed at a trial is, if the elements of Section 215(3) of the Organic Law were proven:

•	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.

59.	That means those elements had to be pleaded in the petition. They are not. This is a material defect.

60.	Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that Larsen Marape and others committed the offence of undue influence. 

61.	The general objection to ground 5 of the petition is sustained. Ground 5 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 6 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, PAIPALI, PIRIBU 2 WARD, TARI URBAN LLG

62.	This ground alleges:

(i)	On Tuesday 27 June 2017 at Paipali village, the gazetted polling place, John Tipa, Election Manager of Hela Province, and Mr Gibson Marape, the First Respondent’s brother, in the company of the First Respondents scrutineers and supporters used force on eligible voters including Steven Muli, the Petitioner’s scrutineer in order to mark ballot papers on behalf of the First Respondent:

Particulars of “use of force”

A.	Mr John Tipa, Election Manager of Hela Province, shouted in a threatening voice to the electors at Paipali ward that this ward belongs to the First Respondent and therefore the voters should give the First Respondent their first preference vote.

B.	Mr John Tipa, Election Manager of Hela Province, punched Mr Steven Muli, one of the Petitioners scrutineers when he objected to their conduct;

C.	Gibson Marape and certain police officers confiscated Mr Muli’s phone and K70.00 cash.

(ii)	The actions of Mr John Tipa and Mr Marape caused eligible voters including Mr Steven Muli not to cast their votes.

(iii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

63.	The respondents raised three objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and  

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”.

64.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

65.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this ground of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

66.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent had undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence committed the offence of undue influence. 

67.	The general objection to ground 6 of the petition is sustained. Ground 6 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 7 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, PAI 2 WARD, TEBI LLG

68.	This ground alleges:

(i)	On 27 June 2017, between 5 pm to 11 pm, at Haro village, the gazetted polling place, Mr Warren Marape, the First Respondent’s brother, supporters and scrutineers of the First Respondent in the physical presence of the First Respondent threatened to use force on eligible voters including Heleki Kai and Abol Pokolo by:

Particulars of “threatened use of force”

A.	Mr Warren Marape uttered words to eligible voters including Heleki Kai and Abol Pokolo to the effect that all ballot papers allocated to the Pai 2 ward belonged to the First Respondent;

B.	The words uttered were done so in the presence of heavily armed policemen who were using vehicles registration numbers EAG 135 and BED 589 belonging to the First Respondent;

C.	One of the police officers pointed a gun at Heleki Kai when he objected as a scrutineer for the Petitioner as to the conduct of Mr Warren Marape, the presence of the First Respondent and the Respondents supporters;

D.	Mr Heleki Kai assaulted and chopped Mr Abol Pokolo on his right hand with a bush knife and took his mobile phone and K70.00 cash from his pocket when he also objected to the conduct of Mr Warren Marape, the First Respondent and the First Respondent’s supporters conduct;

E.	The words uttered by Mr Warren Marape were also done in the presence of the First Respondent and the First Respondent encouraged it.

(ii)	The actions of Mr Warren Marape, the First Respondent and the First Respondents supporters above therefore prevented the eligible voters including Heleki Kai and Abol Pokolo from casting their votes.

(iii)	Most of the ballot papers were marked for and on behalf of the First Respondent by Mr Warren Marape, Mr Timothy Tiki, Presiding Officer Nigo Muli Lari, Assistant Presiding officer and Mr Thomas Takima, finger painter. The First Respondent obtained 805 votes from the 918 votes for this ward.

(iv)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

69.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

70.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

71.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

72.	I dismiss objections (c)(i) and (ii) and (iii). Ground 7 of the petition is a clear allegation that Warren Marape committed the offence of undue influence of Hepale Kai and Abol Pokolo and others described. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent. This allegation has been made by the allegations contained in the paragraphs of the petition that precede and are to be read as applying to each of grounds 5 to 13 of the petition. In addition it is alleged that the offence of undue influence was committed in the “physical presence” of the first respondent. This is a sufficient statement of fact to demonstrate when, how and at what place the first respondent knew of or authorised the act of undue influence. It was not necessary for ground 7 of the petition to plead:

•	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.

73.	Though this ground of the petition concludes with the allegation that the first respondent committed undue influence and though this contradicts the allegation that Warren Marape and others committed the offence of undue influence, I do not consider that that is a material defect.

74.	I dismiss objection (d) as it is conceivable that, though ostensibly unlawful, polling in fact continued into the night-time on the actual polling day. The allegation of the timing of the events does not render the ground ‘not credible’. Even if it did, that is a matter to be tested at trial. It is not something that goes to the competency of the petition.  

75.	The general objection to ground 7 of the petition is refused. Ground 7 of the petition adequately sets out the facts relied on to invalidate the election as required by Section 208(a) of the Organic Law. It remains.

GROUND 8 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, TUGU 1 WARD, PORI LLG

76.	This ground alleges:

(i)	On 27 June 2017 between 5 pm and 11 pm at the gazetted polling place at Tugu aid post the Presiding Officer, Mr Nelson Newe Pendago and Mr Hipson Hipula Ambula, former provincial member for Pori, threatened and used force in particular by:

Particulars of “threatened and use of force”

A.	Being in the presence of heavily armed policemen and defence personal including scrutineers and supporters of the First Respondent; and

B.	Uttering words to eligible voters, including Mr Aki Hiru and Mr Abol Kepawi who were present at the relevant times including the Petitioners scrutineer Mr Aki Hiru when they objected to ballot papers being marked by Mr Nelson Newe Pendago, the Presiding Officer and Mr Hipson Hipula Ambula, for and on behalf of the First Respondent;

(ii)	Therefore, the actions of Mr Nelson Tangago and Mr Hipson Hipula Ambula prevented eligible voters including Mr Aki Hiru and Mr Abol Kepawi from casting their votes.

(iii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

77.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and 

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

78.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

79.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

80.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

81.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

82.	I dismiss objection (d) for the reasons given earlier. 

83.	The general objection to ground 8 of the petition is sustained. Ground 8 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 9 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, WAGALA WARD, PORI LLG

84.	This ground alleges:

(i)	On Tuesday 27 June 2017, Mr David Homabe, a supporter of the First Respondent, in the presence of heavily armed policemen using land cruiser vehicle registration number IAC 059 which belonged to the First Respondent stopped eligible voters at Erep/Torm village from voting and proceeded to mark all ballot papers from ballot boxes described as “EC 011868, out tag 559468; inner tag 067792, Team No 186” at the polling booth thereby preventing eligible voters including David Bali and Gibson Etaka from voting.

(ii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

85.	The respondents raised three objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”.

86.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

87.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

88.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

89.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

90.	The general objection to ground 9 of the petition is sustained. Ground 9 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 10 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, KURANDA 2 WARD, PORI LLG

91.	This ground alleges:

(i)	On Tuesday 27 June 2017, between 4 pm and 11 pm at the gazetted polling place which was Hungi market, the Ward Councillor for Kuranda 2 ward, Mr Patrick Pipe Payangi threatened and used force in order to mark all ballot papers allocated to the Kuranda 2 ward for and on behalf of the First Respondent by:

Particulars of “threatened and use of force”

A.	Uttering words to eligible voters including Mr Undiape Paul Maya to the effect that all the ballot papers belonged to the First Respondent in the presence of heavily armed policemen and the First Respondents supporters;

B.	causing fear amongst eligible voters who would not do anything.

(ii)	The actions of Mr Payangi therefore preventing eligible voters such as Mr Maya from casting their votes.

(iii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

92.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and  

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and 

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

93.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

94.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding ground 1 of the petition, for the petition to plead the law.

95.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

96.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

97.	I dismiss objection (d) for the reasons given earlier. 

98.	The general objection to ground 10 of the petition is sustained. Ground 10 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 11 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, TAPAYAMAPU WARD, PORI LLG

99.	This ground alleges:

(i)	On Tuesday 27 June 2017 at the gazetted polling place at Hungi market, between 5 pm and 12 pm, the Presiding Officer Jack Pura, Mr Para Kerene, Assistant Presiding Officer used force on certain eligible voters including Mr James Okoli, a scrutineer of the Petitioner, in order to mark a number of ballot papers allocated for the Tapayamapu ward for and on behalf of the First Respondent and therefore prevented those eligible voters from casting their votes.

(ii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of Criminal Code and Section 215 of the Organic Law.

100.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and  

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and 

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

101.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

102.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

103.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this ground of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

104.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

105.	I dismiss objection (d) for the reasons given earlier. 

106.	The general objection to ground 11 of the petition is sustained. Ground 11 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 12 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, TIBA WARD, PORI LLG

107.	This ground alleges:

(i)	On Tuesday 27 June 2017 at the gazetted polling place at Tiba Elementary School between 6 pm and 12 pm, Mr Benson Bruce, Presiding officer, and Mr Alex Andane, Assistant Presiding Officer used force on certain eligible voters including Mr Hundia Piwa, a scrutineer of the Petitioner, in order to mark a number of ballot papers allocated for the Tapayamapu ward for and on behalf of the First Respondent and therefore prevented those eligible voters including Mr Hundia Piwa from casting their votes.

(ii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

108.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the act undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and 

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

109.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

110.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

111.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

112.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

113.	I dismiss objection (d) for the reasons given earlier. 

114.	The general objection to ground 12 of the petition is sustained. Ground 12 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

GROUND 13 OF PETITION: UNDUE INFLUENCE COMMITTED BY A PERSON OTHER THAN THE FIRST RESPONDENT, KURANDA 1 WARD, PORI LLG

115.	This ground alleges:

(i)	On Tuesday 27 June 2017 between 5:30 pm and 12 pm at Hungi market the gazetted polling place, Mr Hepale Wapiago, Councillor for Kuranda 1 ward, Mr Tom Hewale and Mr Sam Habale, Assistant Presiding Officer, threatened and used force on eligible voters including Mr John Aliwali in order to mark ballot papers for and on behalf of the First Respondent thereby preventing eligible voters including Mr Aliwali from casting their votes.

(ii)	The First Respondent is alleged to have committed undue influence pursuant to Section 102 of the Criminal Code and Section 215 of the Organic Law.

116.	The respondents raised four objections:

(a) the facts pleaded were convoluted, confusing, vague and/or insufficient; and 

(b) the precise provision of the Criminal Code allegedly breached was not stated; and 

(c) this ground: 

(i)	fails to state with particularity that the acts were committed with the knowledge or authority of the first respondent; 
(ii)	fails to plead that the result of the election was likely to be affected by the undue influence and that it was just that the first respondent be declared not to be duly elected or that the election should be declared void; 
(iii)	confusingly concludes with an allegation that the first respondent had committed undue influence; 
(iv)	incorrectly referred to the persons subject to the undue influence as an “eligible voter”, whereas the correct terminology is “elector”; and 

(d) this ground alleges that the act of undue influence was committed at night-time on the date of polling, which is not credible. 

117.	I dismiss objection (a) as the general allegation is sufficiently clear and coherent.

118.	I dismiss objection (b) as it was not necessary, for the reasons I gave regarding 1 of the petition, for the petition to plead the law.

119.	I uphold objections (c)(i), (ii) and (iii). This ground of the petition is a clear allegation that persons other than the first respondent committed the offence of undue influence of the alleged victims named. It is alleged that the offence of undue influence was committed with the knowledge and authority of the first respondent, by the paragraphs of the petition that precede and apply to each of grounds 5 to 13 of the petition. However, no facts are alleged to demonstrate when, how or at what place the first respondent knew of or authorised the act of undue influence. The only way this of the petition could succeed at a trial is if the elements of Section 215(3) of the Organic Law were proven:

•	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.

120.	That means those elements had to be pleaded in the petition. They are not. This is a material defect. Furthermore, this ground of the petition concludes with the allegation that the first respondent committed undue influence. This contradicts the allegation that persons other than the first respondent committed the offence of undue influence. 

121.	I dismiss objection (d) for the reasons given earlier.

122.	The general objection to ground 13 of the petition is sustained. Ground 13 is struck out as it fails to adequately set out the facts relied on to invalidate the petition.   

CONCLUSION

123.	Ten grounds of the petition are struck out: grounds 2, 3, 5, 6, 8, 9, 10, 11, 12 and 13. Three remain: grounds 1, 4 and 7. The petition will proceed to trial on those three grounds. 

124.	The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the parties bear their own costs as none has fully succeeded. 

ORDER

(1)	The respondents’ objections to the competency of grounds 2, 3, 5, 6, 8, 9, 10, 11, 12 and 13 of the petition are sustained, and those grounds are struck out. 

(2)	The respondents’ objections to the competency of grounds 1, 4 and 7 of the petition are refused, and those grounds remain.

(3)	The parties will bear their own costs pertaining to the hearing of the objections to competency. 

(4)	The petition shall proceed to trial on grounds 1, 4 and 7 of the petition in accordance with directions of the Court.
_____________________________________________________________
Haiara’s Legal Practice: Lawyers for the Petitioner		 
Leo Lawyers: Lawyers for the First Respondent 		
Kimbu & Associates Lawyers: Lawyers for the Second Respondent