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Zeming v Bomareo [2019] PGNC 447; N8216 (26 November 2019)

N8216

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 80 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF A DISPUTED RETURN FOR THE TEWAE-SIASSI OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS

BETWEEN:
MAO ZEMING
Petitioner

AND:
DR KOBBY BOMAREO
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: David, J
2019: 19^th & 26^th November

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – objections to competency of petition – five grounds raised in petition – two grounds abandoned at the hearing of objections to competency of petition - remaining grounds pursued, two on undue influence and one on bribery – objections allege failure to plead material facts relied to invalidate election or return, and want of attestation of petition by two witnesses whose occupations and addresses are stated - all remaining grounds of petition struck out – Organic Law on National and Local-level Government Elections, Sections 206, 208, 209, 210 and 217 - Election Petition Rules, Rules 12 and 16 - Criminal Code, Sections 102 and 103.

Cases Cited:
Mapun Papol v Antony Temo (1981) PNGLR 178
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Ludger Mond v Jeffery Nape (2003) N2318
Ginson Saonu v Bob Dadae (2004) SC763
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Steven Pirika Kamma v John Itanu (2007) N3246
Powes Parkop v Wari Vele (No 1) (2007) N3320
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Peter Charles Yama v Anton Yagama (2012) N4928
Norbert Kubak v Andrew Trawen (2012) N4992
Paru Aihi v Peter Isoaimo (2013) SC1276
Luther Wenge v Kelly Naru (No.1) (2013) N5003
Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213
Talita v Ipatas [2016] SC1603
Kirilyo v Tkatchenko (2017) N7008
Bire Kimisopa v Henry Ame (2018) N7080
Simon Bintangor Sia v Peter Numu (2018) N7106
Edward Baafe v Peter Sapia (2018) N7123
Simon Takep Kaiwi v William Tongamp (2018) N7435

Legislation cited:
Organic Law on National and Local-level Government Elections
Election Petition Rules 2017
Criminal Code

Counsel:

Dakan E Doiwa, for the Petitioner
Brendan Lai, for the First Respondent
Lance Okil, for the Second Respondent

RULING ON OBJECTIONS TO COMPETENCY OF PETITION

26^th November, 2019

1. DAVID, J: INTRODUCTION: This is the ruling of the Court on the objections raised in relation to the competency of the original petition filed in these proceedings on 29 August 2017. The original petition was resurrected after the Court upheld the respondents’ objections to the competency of a fresh petition filed by the petitioner and back- dated to 29 August 2017 (the date when the original petition was rejected by the National Court in Lae for being filed out of time) following the decision of the Supreme Court holding that the original petition was filed within time.

BRIEF BACKGROUND

2. The background facts of the challenge mounted by this election petition are not disputed. I reaffirm that following the issue of writs on 21 April 2017 for the conduct of the 2017 National General Elections for the 10^th National Parliament including the writ for the Tewae-Siasi Open Electorate in the Morobe Province (hereafter "the Electorate"), the Petitioner, Mao Zeming (hereafter "the Petitioner") and the First Respondent, Dr Kobby Bomareo (hereafter “the First Respondent”) were amongst 37 candidates who contested the seat for the Electorate. Polling for the Electorate was conducted from 24 June 2017 to 8 July 2017. The First Respondent polled 8,236 votes after elimination 35 when the Petitioner was eliminated and was declared the successful candidate for the Electorate. He was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament. The Petitioner polled 5,317 votes and was the second runner up to the First Respondent.

3. Aggrieved by the outcome, the Petitioner has disputed the validity of the election or return of the First Respondent as the successful candidate for the Electorate by filing a petition on 29 August 2017 addressed to the National Court pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law on National Elections). The petition was filed in the National Court at Lae. In the petition, the Petitioner raises issues of illegal practices involving undue influence and bribery to vitiate the election or return.

GROUNDS OF PETITION

4. Five grounds were pleaded in the petition; the first was for voting when not registered and entitled to vote; the second and third are instances of undue influence; and the fifth an instance of bribery. The first and fifth grounds were abandoned by the Petitioner at the hearing.

5. With regard to illegal practices involving undue influence, the two instances relied on by the Petitioner are these.

6. The first instance of undue influence allegedly committed by the first respondent is pleaded as the second ground and is in the following terms:

1. Candidate or Member-elect for Tewi Siassi (Box 29) Dr Kobby Bomareo with his wife were sitting on the chair outside the main entrance of the market place where polling was held just 10 meters from the Candidate and his Wife sat.
2. The voters when vesting their votes, say Dr Kobby Bomareo being present throughout the whole period of the voting.

100. An old man MARLON LOTTO was assisted by candidate Dr Kobby Bomareo by writing his own box number and giving it to him. The old man realised that the BOX NO:29 was not supposed to be his first choice so he came to see my scrutineers and asked them to assist him with his first choice candidate BOX 39 – Mao Zeming, then my scrutineers say the piece of paper that was written by Dr Kobby Bomareo. (sic)

7. The second instance of undue influence allegedly committed by the first respondent is pleaded as the third ground and is in the following terms:

1. On 29 June 2017, polling commenced at Wasu Station, however due to the fact that the regular marketeers arrived late and the polling started at 1:00 pm. When the polling started the scrutineers namely; Daniel Sarong and Mr Lope complained to the polling officials to call out the names of the voters as we could see that there are new individuals waiting in que to vote.
2. When the polling was stopped to rectify the situation, a supporter of the first respondent, Mr Agaya Boko shouted obscenities at us and told voters that this was time for the people to vote for their Wasu leader, Dr Kobby Bomareo.

100. When the polling eventually restarted with the polling officials calling the names of the voters, one of the candidates, one Sarry Kuso. Arrived at the polling booth and went into cast his vote. When he came out, he sarcastically remarked that as a candidate he couldn’t remain at the polling venue as it would be regarded as inducement.

4. The candidate Mr Sarry Kuso was referring to the First Respondent and his wife who had brought their chairs and were sitting beside the polling area. The people also noticed that there were no regular policemen and security forces available. (sic)

8. With regard to illegal practices involving bribery, the instance relied on by the Petitioner is pleaded as follows:

1. Dr Kobby Bomareo and his wife bought betel nut and cigarette giving it to people within the polling area during the period at all polling booths.
2. An old man MARLON LOTTO was assisted by candidate Dr Kobby Bomareo by writing his own box number and giving it to him. The old man realised that the BOX NO>29 was not supposed to be his first choice so he came to see my scrutineers and asked them to assist him with his first choice candidate BOX 39 – Mao Zeming, then my scrutineers say the piece of paper that was written by Dr Kobby Bomareo.

100. On Friday, 30 July 2017, the polling started again at Wasu and the candidate Dr. Kobby Bomareo was seen again carrying his chair and sat at the same location 10 metres where the polling was held until the polling period ended. (sic)

RELIEF SOUGHT IN PETITION

9. The Petitioner seeks, among others, the following relief:

1. A declaration pursuant to Section 212(1)(f) and (4) and Section 215(1) of the Organic Law on National Elections that the return of the first respondent as the member for Tewai Siassi Open Electorate in 2017 National General Election is absolutely null and void.
2. A declaration pursuant to Section 212(1)(f) and (4) and Section 215(1) of the Organic Law on National Elections that the National General Election for the Tewai Siassi Open Electorate is null and void.
3. An order that a by-election for the Tewai Siassi Open Electorate be held forthwith.

OBJECTIONS TO COMPETENCY OF PETITION

10. Both respondents have filed notices of objection to the competency of the petition. The first respondent’s notice of objection was filed on 21 October 2019. The second respondent’s notice of objection was filed on 22 October 2019. To support the first respondent’s objection, he relies on his own affidavit sworn and filed on 4 November 219. The second respondent does not rely on any affidavit.

11. Both respondents’ objections are predicated on the argument that the requirement to plead material facts relied on to invalidate the election or return under Section 208(a) of the Organic Law on National Elections has not been complied with.

12. The first respondent’s other objection is based on the requirement under Section 208(d) of the Organic Law on National Elections. It is alleged that the petition was not attested by two witnesses as one of them, the first witness Barnabas Nalong has not met the requirement to state his occupation.

13. The petitioner relied on and or made reference to the affidavits of the first respondent sworn on 14 June 2019 and filed on 17 June 2019 and that of Pauline K. Bomareo also sworn on 14 June 2019n and filed on 17 June 2019.

LAW ON OBJECTIONS TO COMPETENCY

14. It is trite law that the question of competency of a petition in itself raises the issue of jurisdiction and this can either be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in the petition and at any stage of the proceedings: see Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Powes Parkop v Wari Vele (No 1) (2007) N3320; Sir Arnold Amet v Peter Charles Yama (2010) SC1064; Peter Charles Yama v Anton Yagama (2012) N4928; and Norbert Kubak v Andrew Trawen (2012) N4992.

15. It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds: Peter Charles Yama v Anton Yagama (2012) N4928. It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed: Norbert Kubak v Andrew Trawen (2012) N4992. Any prejudice caused to the petitioner can be accommodated by an order for costs: Peter Charles Yama v Anton Yagama (2012) N4928. It was held in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that issues of competency of a petition can also be raised in the Supreme Court in the case of a review even if they were not raised before the National Court.

16. Rule 12 of the Election Petition Rules permits a respondent in a petition who objects to the competency of the petition to file an objection in accordance with the prescribed Form 4 within 21 days after service of the petition

17. According to Rule 16 of the Election Petition Rules, the Court can deal with any objection to the competency of a petition at the trial of the petition.

18. Issues relating to the competency of a petition arise usually because of the requirements under Sections 208, 209 and 210 of the Organic Law on National Elections.

19. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law on National Elections and the petition must strictly comply with each and every requirement: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, Holloway v Ivarato (1988) PNGLR 99.

20. Section 208 (Requisites of petition) of the Organic Law on National Elections specifies five pre-requisites of a petition. It states:

"A petition shall:

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

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

(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)."

21. A further pre-requisite is set out under Section 209 (Deposit as security for costs) of the Organic Law on National Elections. It provides that a security deposit in the amount specified must be paid at the time of filing the petition. It states:

"At the time of filing the petition, the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs."

22. Section 210 (No proceedings unless requisites complied with) of the Organic Law on National Elections provides that unless the pre-requisites under Sections 208 and 209 are met, a petition cannot be heard. It states:

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

23. In Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, the Supreme Court at p.345 said:

"The requisites in s.208 and s.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 proceeding unless s.208 and s. 209 are complied with.....

24. Similar sentiments were expressed by the Supreme Court in Mapun Papol v Antony Temo (1981) PNGLR 178 and Paru Aihi v Sir Moi Avei (No 2) (2003) SC720.

25. A reason behind the need for strict compliance with Section 208 if not the most important or fundamental one in my respectful view was expressed in Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342 at p.345 in the following terms:

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s.210."

26. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.

27. In Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, the Supreme Court also observed that the Organic Law on National Elections gave no power to dispense with the mandatory requirements. It held:

"But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v Antony Temo (supra) )."

28. The requirements under Section 208 (b), (c) and (e) and Section 209 of the Organic Law on National Elections are not in issue in the present case.

29. It is possible for an objection to be raised by a respondent to a petition if Section 206 of the Organic Law on National Elections is not complied with: See Form 4 of the Election Petition Rules. This is because Section 206 of the Organic Law requires that the validity of an election or return may only be disputed by petition addressed to the National Court and not otherwise. That is not in issue in the present case.

UNDUE INFLUENCE

FIRST RESPONDENT’S SUBMISSIONS

30. Mr Lai for the first respondent contends that the facts pleaded under the second and third grounds of the petition are insufficient to establish the elements of undue influence prescribed under Section 102 of the Criminal Code. He states that:

1. the petitioner has failed to plead the names of the persons who were unduly influenced by the actions and/or omissions of the first respondent;
2. the petitioner has failed to plead the actual force exerted by the first respondent and his wife by their physical presence in the vicinity of the polling area.
3. the petitioner has failed to plead that one Marlon Lotto was an “elector” or the other persons present at the polling area to cast their votes were “electors” which is a critical fact that must be pleaded when relying on the ground of undue influence.
   

SECOND RESPONDENT’S SUBMISSIONS

31. Mr. Okil for the second respondents supports the first respondent’s submissions and advanced similar arguments. In addition, he states that the mere presence of the first respondent within the vicinity of the polling booth does not in itself constitute a sufficient basis to allege undue influence. As to Marlon Lotto, counsel states that the facts do not establish any undue influence was exerted over him, the crucial element of inducement is not sustained on the facts, and Marlon Lotto is actually described as being “assisted” by the first respondent.

PETITIONER’S SUBMISSIONS

32. Ms. Doiwa for the petitioner contends that the facts pleaded for both grounds are sufficient to meet the requirement of Section 208(a) as:

1. the utterances made by the first respondent are essentially contained in the affidavit material and the first respondent is already aware of the allegations made against him in respect of undue influence of Marlon Lotto and other persons.
2. The facts about fraud and inducement occasioned by the positioning of the first respondent in close proximity to the polling booth are pleaded and or are known to the first respondent or can be inferred.
3. The question whether Marlon Lotto or other persons are electors can be implied as they were there to cast their votes.

33. Ms Doiwa has referred the Court to a number of cases including Holloway v Ivarato [1988] PNGLR 99, Steven Pirika Kamma v John Itanu (2007) N3246, Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213 and Simon Bintangor Sia v Peter Numu (2018) N7106 to support her submissions and I have considered them.

34. In addition, it was argued that the affidavit material filed in relation to the dismissed petition and the petition currently under consideration have already demonstrated that the parties aware of their respective cases so in the circumstances, real justice need to be observed as is stipulated by Section 217 of the Organic Law on National Elections and the matter be progressed to trial.

REASONS FOR RULING

35. The parties have produced lengthy, comprehensive and extensive written submissions. I am indebted to the in-depth discussion of the law and their application to determine the relevant issues in the objections. The written submissions were amplified in the respondents’ respective oral submissions. I have considered all the submissions both written and oral advanced by the parties.

36. The allegations of undue influence are based on the offence of undue influence prescribed under Section 102 of the Criminal Code. That Section states:

102. Undue influence.

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.

37. The essential elements of the offence of undue influence under Section 102(a) and Section 102(b) are succinctly set out by Makail, J in Edward Baafe v Peter Sapia (2018) N7123 at paragraphs 19, 20, 21 and 22 and I restate them below:

19. The elements of the offence of undue influence under Section 102(a) are:

19.1. The identity of the offender;

19.2. The form of threat, force or restraint used, or on account of his having voted or refrained from voting;

19.3. Inducement to vote or refrain from voting;

19.4. The identity of the person threatened, forced or restrained (unduly influenced); and

19.5. The person is an elector.

20. To sustain an offence under Section 102(b) the petitioner must plead and prove that the first respondent:

20.1. by force or fraud; and

20.2. prevented or obstructed the free exercise of the franchise by an elector or compelled or induced the elector to vote or refrain from voting at an election.

(See Peter Isoaimo v. Paru Aihi (2012) N4921.)

21. As it is allegedly committed during election, there are two additional requirements under Section 215 of the Organic Law. Section 215 states:

“215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void

(2) ...........

(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 a 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.” (Underlining is mine).

22. They are:

(a) The offence was committed by a candidate; or

(b) If not, it was committed with the candidate’s knowledge or authority.

38. It is unclear from a careful examination of the two grounds in the petition alleging undue influence as to which subjection of Section 102 the allegations fall under.

39. If the allegations are pursued under Section 102(a), the facts relevant to the second, third, fourth (as to other voters) and fifth elements are insufficient and or lacking.

40. If the allegations are pursued under Section 102(b), the facts relevant to the first two elements are also insufficient and lacking.

41. Pleadings drive the evidence: Ludger Mond v Jeffery Nape (2003) N2318. Therefore, the submissions by Ms Doiwa that the parties are already aware of the allegations through the dismissed petition and the petition under consideration and affidavit materials already filed and exchanged are misconceived and rejected. Section 217 is not of assistance in that regard. I accept the respondent’s submissions instead. In the circumstances, the second and third grounds in the petition are struck out.

BRIBERY

FIRST RESPONDENT’S SUBMISSIONS

42. Mr Lai contends that the ground alleging bribery should be struck out in its entirety as there are no pleadings addressing two essential elements of the offence of bribery namely, whether the person allegedly bribed, Marlon Lotto was an elector and that the bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.

SECOND RESPONDENT’S SUBMISSIONS

43. Mr Okil contends that this ground is misconceived when considered in light of the facts relied upon. The contention that the first respondent was at the polling area giving betel nut and cigarettes to voters cannot be sustained as an allegation of bribery when the ‘people’ referred to are not properly identified by their names and whether or not they were electors. It was argued that the first respondent’s intention to associate with such alleged conduct is not described either. In addition, it was contended that the balance of the facts pleaded do not appear to be connected with the issue of bribery.

PETITIONER’S SUBMISSIONS

44. Ms Doiwa argues that the facts pleaded for the allegation of bribery pursued under Section 103(a)(iii) of the Criminal Code are sufficient as:

1. the utterances made by the first respondent can and have been stated in the affidavit material and this is a matter for trial;
2. the first defendant is named and identified as a candidate in the petition;
3. there is no requirement in an allegation of bribery that voter bribed must have voted for the candidate from whom the bribe originated;
4. the petition has sufficiently and elaborately informed the first respondent of the allegations level against him so that he may adequately defend himself; and
5. the respondents’ objections are over semantics and ”legal nit-picking.”

45. In support of her submissions, counsel referred the Court to Holloway v Ivarato [1988] PNGLR 99, Simon Takep Kaiwi v William Tongamp (2018) N7435, Luther Wenge v Kelly Naru (No.1) (2013) N5003 and Bire Kimisopa v Henry Ame (2018) N7080. I have considered the cases in light of the submissions.

REASONS FOR RULING

46. The allegation of bribery is based on the offence of bribery prescribed under Section 102 of the Criminal Code. That Section states:

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 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.

47. It is established in our jurisdiction that a petition based on bribery must plead the essential elements of the offence of bribery alleged: Paru Aihi v Peter Isoaimo (2013) SC1276. The essential elements of the offence of bribery are:

1. Date when the offence was committed;

2. Name of the offender;

3. Name of the person bribed

4. The person bribed was an elector; and

5. The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.

48. A cursory perusal of the petition discloses that not all the essential elements are pleaded. Facts relating to the fourth and fifth elements are insufficient and or are lacking. It has also not been pleaded whether the “people” who have not been named or identified and who were given betelnut and cigarettes by the first respondent and his wife within the polling area were electors. I also adopt my earlier observations concerning undue influence in relation to pleadings and reject the petitioner’s submissions as being misconceived. In the circumstances, I strike out this ground

ATTESTING WITNESS’ OCCUPATION

FIRST RESPONDENT’S SUBMISSIONS

49. Mr Lai for the first respondent contends that the petition is incompetent and should be dismissed on the basis that it fails to meet the mandatory requirements of Section 208(d) of the Organic Law on National Elections as the first attesting witness has stated an occupation which cannot be defined and accepted as a valid occupation.

SECOND RESPONDENT’S SUBMISSIONS

50. Mr. Okil for the second respondent adopted the first respondent’s submissions and supported the First Respondent submissions to dismiss the petition for want of compliance with Section 208(d) of the Organic Law on National Elections.

PETITIONER’S SUBMISSIONS

51. Ms Doiwa for the petitioner argues that the term “Community Representative” is a sufficient description of the work undertaken by the witness Mr Barnaba Nalong for the purpose of Section 208(d). The Court was referred to Paru Aihi v Sir Moi Avei (No.2) (2003) SC720 where the Supreme Court held that the term “villager” was sufficient description of occupation.

REASONS FOR RULING

52. Section 208(d) of the the Organic Law on National Elections provides that:

“A Petition shall ....

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

53. Section 208(d) requires that the petitioner’s petition must satisfy the following requirements:

1. it shall be attested;

2. by two witnesses;

3. their occupations must be stated; and

4. their addresses must be stated.

Compliance with the requirement under Section 208(d) is significant and substantial as non-compliance can determine the fate of the petition: Paru Aihi v Sir Moi Avei (No.2) (2003) SC720.

54. Section 210 of the Organic Law on National Elections provides:

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

55. As I have alluded to earlier, the mandatory requirements of Section 208 of the Organic Law on National Elections must be strictly complied with: Delba Biri v Bill Ninkama [1982] PNGLR 342. Substantial compliance with each of the requirements of Section 208 of the Organic Law on National Elections is not sufficient: Kirilyo v Tkatchenko (2017) N7008. Moreover, those requirements cannot be dispensed with.

56. The observation of the Supreme Court in Talita v Ipatas [2016] SC1603 is pertinent in this regard. There the court observed at paragraph 19 as follows:

“Where the names of description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. ...”.

57. In Paru Aihi v Sir Moi Avei (No.2) (2003) SC720, by majority decision (4-1), it was held that the term “occupation” simply means one’s trade, profession, business or calling; things or activities one does for a living and the the term “villager” was sufficient description of occupation. The Supreme Court went on to say that the term “villager” in PNG context was not only descriptive of where he is from or lives in the village, but he is a multi-skilled person – a “jack of all trades”.

58. Clearly, the petition has been properly attested. Guided by the decisions in Paru Aihi v Sir Moi Avei (No.2) (2003) SC720 and Talita v Ipatas [2016] SC1603, I would find that Mr. Nalong’s occupation as Community Representative is sufficient. His occupation is not unclear. It was used in the context of where he was resident at the material time, i.e., at Kampala Village, Siassi Local-level Government area, Tewai-Siassi, Morobe Province. The assertion that Mr Nalong was the Community Representative at Kampala Village, Siassi Local-level Government area, Tewai-Siassi, Morobe Province.at the material has not been challenged by any evidence to the contrary. In the circumstances, I reject the respondents’ objection.

SUMMARY

59. Five grounds were pleaded in the petition. The first and fifth grounds were abandoned by the Petitioner at the hearing. The surviving grounds namely, the second, third and fourth dealing with allegations of undue influence and bribery have been determined in favour of the respondents and struck out.

60. For these reasons, the petition is non-compliant with Section 208(a) of the Organic Law on National Elections and shall be dismissed.

ORDERS

61. The formal orders of the Court are:

1. The first and fifth grounds of the petition were abandoned by the petitioner.
2. The objections to competency filed by the First Respondent and the Second Respondent on 21 October 2019 and 22 October 2019 respectively alleging non-compliance with Section 208(a) of the Organic Law on National and Local-level Government Elections are upheld.
3. The objection to competency filed by the First Respondent on 21 October 2019 alleging non-compliance with Section 208(d) of the Organic Law on National and Local-level Government Elections is refused.
4. The whole of the petition filed in EP No.80 of 2017 filed on 27 September 2019 as the resurrected petition pursuant to the Court order of 20 August 2019 is dismissed for being incompetent.
5. The security deposit of K5,000.00 paid by the petitioner into the National Court Trust Account be paid in equal proportions to the first and second respondents.
6. The petitioner shall pay the first and second respondents’ costs of and incidental to the entire proceedings which, if not agreed, shall be taxed and which shall take into consideration the forfeiture of the security deposit.
7. The time for the entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.

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Makap Lawyers: Lawyers for the Petitioner
BS Lai: Lawyers for the First Respondent
Kimbu & Associates: Lawyers for the Second Respondent