N10641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 23 OF 2022 (IECMS)

IN THE MATTER OF DISPUTED RETURN FOR THE AITAPE LUMI OPEN ELECTORATE

BETWEEN:
PATRICK PRUAITCH
Petitioner

AND:
THE HON. ANDERSON MISE, MP
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Wewak & Port Moresby: Frank, J
2023:  29th February, 31st March

ELECTION PETITION – Objection To Competency

Counsel:

Mr G. Sheppard, for the Petitioner
Mr A. Manase, for the First Respondent
Mr K. Kil, for the Second Respondent

31 March, 2023
RULING

1	FRANK J: The petitioner and the first respondent contested the National General Elections for the seat in the National Parliament as the parliamentary representative for the Aitape-Lumi Open electorate (“Electorate”). The first respondent was declared as the winner in that contest. Aggrieved by that outcome, the petitioner seeks to upset it by the petition instituting this proceeding.
2	This court cannot inquire into the petitioner’s grievance in the petition unless it meets the conditions imposed by sections 208 and 209 of the Organic Law On National And Local-Level Government Elections (“Organic Law”).

3	Of these conditions, the respondents contend that the petition does not: 
3.1	set out, contrary to s.208(a) of the Organic Law, the facts upon which the first respondent’s return as the successful candidate might be invalidated;
3.2	state the relief which the petitioner seeks as required by s.208(e) of the Organic Law;
3.3	bear the signature, the occupations and address of each of the two witnesses as required by s.208(d) of the Organic Law.

4	In the petition the petitioner alleges that the first respondent committed bribery within the meaning of s.215(1) of the Organic Law.

5	The respondents contend by their respective notices of objection to competency that the petition is incompetent, firstly, because contrary to s.208(a) of the Organic Law, it does not plead all of the relevant and material facts to found the 4 counts of bribery under s.97B and the 3 counts of bribery under s.103 of the Criminal Code allegedly committed by the first respondent.

6	Each of the 4 counts of bribery under s.97B are pleaded in paras.18, 22, 26, 30 and 34 in similar terms. Para.18 is in these terms:

C: THE GROUNDS upon which the Petitioner relies are:
Allegation 1 - Direct Bribery - Moses Kempa
17. 	…
18. 	On Tuesday, the 5th day of July, 2022, in Papua New Guinea, the First Respondent (a candidate in the 22NGE of the ALOE) offered to Moses Kempa, a person employed in the Public Service (as defined in s.83A (g) of the Criminal Code) as Assistant Returning Officer for West Wapei Rural LLG within the ALOE by the Second Respondent, a gratification of K200, as an inducement or reward for Moses Kempa performing or abstaining from performing, or aiding in procuring or hindering the performance of an official act, that is the performance of Moses Kempa's official duties as an Assistant Returning Officer in the 22NGE for ALOE, and thereby committed the offence of bribery of a member of the Public Service, contrary to s.97B.(1)(b) of the Criminal Code, and s 215 (1) of the Organic Law.

7	The only differences between paras. 18, 22, 26, 30 and 34 of the petition are in respect of the date, name of the ARO, the Local-level Government (“LLG”) area and the monetary amount.

8	Each of the 3 counts of bribery under s.103(a)(iii) are pleaded in paras.20, 24, 28 and 32. Para.20 is in these terms:

On Tuesday, the 5th day of July, 2022, in Papua New Guinea, as the bank statement for the First Respondent's account number 1001328839 held at Bank South Pacific ("the First Respondent's Bank Account") demonstrates, the First Respondent (a candidate in the ALOE for the 22NGE) gave to Moses Kempa, a person employed in the Public Service (as defined in s.83A (g) of the Criminal Code) as Assistant Returning Officer for West Wapei Rural LLG in the ALOE by the Second Respondent, by transferring from the First Respondent's bank account to Moses Kempa's bank account, the sum of  K200, with the intention of procuring, causing or inducing Moses Kempa to endeavor to procure the return of the First Respondent as the member for ALOE at the 22NGE, and thereby committed an act of bribery contrary to s.103 (a) (iii) of the Criminal Code, and s.215 (1) of the Organic Law.

9	The only differences between paras.20, 24, 28, and 32 of the petition are in respect of the date, name of the ARO, the LLG area and the monetary amount.

10	These paras are the subject of first respondent’s notice of objection to competency paras 3, 5, 7 and 9.

Objection Against bribery under s.103(a)(iii)

11	As the first respondent’s notice of objection to competency goes into particulars and covers all the objections which the second respondent raises in its notice of objection to competency, I follow the first respondent’s notice of objection to competency to address them together. I commence with the objections raised against the pleading of bribery under s.103(a)(iii), adopting the sequence in para 3 of the first respondent’s notice of objection to competency.

12	The objections set out below (in italics with the corresponding ruling and reasons in regular font next to it) are that each of the following was a material fact, however, it has not been pleaded/alleged:

12.1	What the acts and or omissions complained of (“Offending Conduct”) of the Assistant Returning Officer (“ARO”) were: This is misconceived: it is not a material fact of the offence that the Offending Conduct be pleaded; 
12.2	That the money allegedly paid (“Benefit”) by the first respondent to the ARO induced or influenced the ARO: This objection is dismissed it is not an element of the offence that the benefit in fact induced or influenced the ARO;
12.3	That because of that inducement or influence, the outcome of the election was affected in favour of the first respondent: It is not an element of the offence as it is constituted in s.103(a)(iii) or s.215(1) of the Organic Law. This objection is dismissed;
12.4	What the functions and duties of the ARO to which the Offending Conduct relate are: This objection is dismissed for these reasons:
(a)	It is not an element of the offence that those functions and duties be pleaded;
(b)	subject to the determination later herein of the objection on account of non-compliance with the Form of the petition, the functions of the second respondent are pleaded in paras 6 to 10 of the petition, some of which are undertaken by a Returning Officer and an ARO pursuant, for instance, to sections 3 to 6 of the Electoral Law (National Elections) Regulation 2007;
12.5	That the benefit was intended to bribe the ARO: This objection is misconceived and dismissed as it is not an element of the offence that the intent be pleaded.  As the Supreme Court in Kikala v Electoral Commission (2013) SC1295, the full Supreme Court at paras 35 -36, said:
36. 	It will be observed that there is no element of 'intention', as such, required to be proven, in order to prove any of the offences under Section 103(a). This is borne out by the provisions of the Criminal Practice Rules which prescribe how, in criminal proceedings before the National Court, an indictment containing a charge of bribery under Section 103(a) of the Criminal Code is to be drafted. ... .
12.6	The time and location at which the first respondent delivered the benefit to the ARO: This objection is misconceived: it is not alleged that the first respondent met the ARO in person and delivered to him the Benefit; it is in fact pleaded that the Benefit was transferred from the first respondent’s bank account to the bank account of the ARO;
12.7	That the ARO was an “elector” within the meaning of s.103(a)(iii): This objection is misconceived for these reasons:
(a)	the allegation is founded on the “first leg” of the provision italicized in its reproduction set out below:

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;
(b)	the allegation is not that the ARO was an elector (the ‘second leg’ element);
12.8	the words or statements by the first respondent to the ARO which were made at the time the benefit was delivered: This objection is misconceived as it is premised on the first respondent and the ARO having met in person when the first respondent delivered the benefit to the ARO. As noted earlier, that is not what is alleged;
12.9	The mode by which the benefit was passed, conveyed or transmitted to the ARO: This is misconceived: the mode of transacting the Benefit is in fact pleaded;
12.10	No entity by the name, “Bank South Pacific” exists: This objection is knitpicking; the identity of the bank cannot be mistaken, and the entity is not a material fact: it is part of the description of the manner in which the Benefit was conveyed to the ARO.

Objections against bribery under s.97B

13	With respect to the objections against bribery under s.97B, this provision provide:

97B.	Bribery of member of Public Service.
(1)	A person who offers to a person employed in the Public Service, or being a person employed in the Public Service, solicits or accepts a gratification as an inducement or reward for—
(a)	the person employed in the Public Service voting or abstaining from voting at any meeting in favour of or against any measure; or
(b)	the person employed in the Public Service performing or abstaining from performing or aiding in procuring or hindering the performance of an official act; or
(c)	the person employed in the Public Service aiding in procuring or preventing the passing of any vote or granting of any contract in favour of any person; or
(d)	the person employed in the Public Service showing or refraining from showing any favour of disfavour in his capacity as a person employed in the Public Service,
is guilty of an offence.
Penalty: A fine at the discretion of the Court or imprisonment for a term not exceeding seven years, or both.
(2)	An offence under Subsection (1) is committed notwithstanding that the person employed in the Public Service had no right or opportunity to show or refrain from showing favour or that the inducement was not in relation to the affairs of the public body.

14	The first of the objections against the bribery alleged pursuant to s.97B is that it does not fall within the scope of s.215(1) of the Organic Law.

15	This was not an objection in the first respondent’s notice of objection to competency; it was raised in the first respondent’s Amended Notice of Objection To Competency dated 21 and filed 24 October 2022 which I struck out on 28 February 2023 as being an abuse of process. However, as the petitioner has addressed it in paras. 41 to 44 of its submissions filed 28 February 2023 and orally, I now consider it.

16	The first respondent cites Bourne v Voeto [1977] PNGLR 298, Haoda v Ganasi (2013) N5136 and Pokaya v Marape (2018) N7234 and cases cited therein such as Kala v Temu (2018) N9234, Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Waranaka v Dusava (2009) SC980 and Amet v Yama (2010) SC 1064  as authorities for the proposition that s.97B  falls outside the scope of the s.215(1) of the Organic Law.

17	As “bribery” in s.215 of the Organic Law is not defined in a constitutional law or an Act of Parliament, it is not clear what it means.

18	None of those authorities had the occasion to deal with the offence of bribery under s.97B or an offence other than bribery under section 103 for the purpose of s.215(1) and for that reason are of no assistance.

19	The trial judge in Bourne adopted the definition of undue influence in the Criminal Code for its certainty.

20	I am therefore not persuaded by the submission of the first respondent that bribery under s.97B is not a ground that is sufficient for the purpose of satisfying s.215(1) of the Organic Law; it has not been explained why it is not sufficient. 

21	For these reasons, I reject this objection.

22	The next set of objections of the first respondent (set out in italics with the corresponding ruling and reasons (in regular font next to it) are that, contrary to s.208(a) of the Organic Law, each of the following was a material fact but has not been pleaded:

22.1	The functions or duties of the ARO which the ARO was to have performed or discharged or not performed or discharged (“Official Tasks”): The official tasks such as those pleaded in paras. 6 to 10 of the petition are matters provided for by law. While pleading it or a reference to it would add clarity to a ground sought to be established by such matters, as a matter prescribed by law, I do not consider an official task to be a material fact of which, a failure to plead it, would render incompetent a set of facts upon which it is sought to establish a ground.
22.2	The act or omission in the discharge of the Official Task complained of (“Offending Conduct”): With respect to this –
(a)	by reference to the Criminal Practice Rules on pleading of a charge under s.97B, a description of the Offending Conduct is a material fact that should be pleaded. Without it, the petitioner might not be able to prove the offence the first respondent is alleged to have committed for the purpose of s.215(1) of the Organic Law. This, however, does not warrant the striking out of the entire para. which contains the offence provision;
(b)	As bribery in s.215(1) of the Organic Law is undefined and the essence of the offence being the offer or provision of a benefit to induce another person to be dishonest or to conduct himself or herself so as to interfere with the ordinary and lawful course of, in this instance, an election, it might be arguable, as a point of law,  that the act or omission which has not been pleaded is not a material fact for the purpose of s.215(1) of the Organic Law;
(c)	At the trial, the first respondent would still be able to require the petitioner to call evidence according to its pleading. No prejudice would be occasioned on the respondents;
22.3	The payment influenced or induced the ARO to commit the Offending Conduct:  It is not an element of the offence that it be pleaded that the benefit influenced or induced the ARO to be dishonest or to conduct himself so as to interfere with the ordinary and lawful course of the election.
22.4	The payment was made with the intention of bribing the ARO: This objection is dismissed for the reasons the similar objection in respect of the paras pleading s.103(a)(iii) has been rejected.
22.5	The Offending Conduct affected the outcome of the election in favour of the first respondent: This objection is dismissed for the reasons the similar objection in respect of the paras pleading s.103(a)(iii) has been rejected;
22.6	The time and location where the first respondent gave the money to the ARO: This objection is misconceived for the reasons the similar objection in respect of the paras pleading s.103(a)(iii) has been rejected. The time and location are not material facts.
22.7	The ARO was an elector. And, if the ARO was an elector, the Ward and LLG in which he was an elector: These objections are misconceived. The fact of being an elector is not an element of the offence.
22.8	what the words or statements uttered at the time the money was paid were:. This objection is misconceived; it is not alleged that any word or statement was uttered or made.

23	With respect to the entire para., it is incompetent, the first respondent contends, as it pleads facts in the alternative: There might be merit to this objection if the allegation relates to a specific Offending Conduct. It is sufficiently clear that the allegation relates to the discharge by the ARO of his official tasks in the course of the Election.
24	In the first respondent’s submissions at para 60, the first respondent submits that the petition is incompetent because the date of the payment pleaded there occurred after 29 July 2022 when the first respondent had already been declared as the winning candidate. There is no prescription of time, mode and form of bribery and its reward or benefit. This is not an issue of incompetence.

25	As similar objections are raised against paras. 18, 26, 30 and 34 of the petition, for the reasons given in dismissing the objections in respect of para.22 of the petition, the objections against those paras of the petition are also dismissed for those reasons.

Incompetence on Account of Non-Compliance with Form 1

26	The first respondent next contends in paras 52 to 57 and 62 of his submissions that the petition is incompetent because (1) either that the facts pleaded in Part B of the petition are insufficient or that no facts are pleaded in Part B to found the grounds pleaded in Part C of the petition.

27	Accepting that s.208(a) of the Organic Law requires that the relevant or material facts be pleaded, Form 1 and its division into Parts A to D are not requirements of the Organic Law. 

28	For these reasons, if, for instance, facts F1, F2, F3 and F4 found a ground of bribery under s.215(1) of the Organic Law, however only facts F1 and F2 are pleaded under Part B and facts F3 and F4 are pleaded under Part C, the net effect should not be that insufficient or material facts have not been pleaded on account of the mis-placement of facts F3 and F4 under Part C, as is the effect of the proposition advanced by the first respondent in its submissions.

29	The division in Form 1 into parts was not intended, I do not think, to add another condition of competence but provide a guide and facilitate clarity of pleading in a petition.

30	For these reasons, I am not persuaded that pleading all or some of the facts in Part C renders the petition in this instance incompetent.
31	Under Rule 22(1) of the Election Petition Rules 2017 (as amended), this court may dispense with compliance with a requirement of the Rules and under Rule 22(2), substantial compliance shall be regarded as sufficient.

Breach of Bank & Customer Confidentiality

32	At para 63 of its submissions, the first respondent submits that the petition is incompetent because the matters of facts pleaded were sourced or provided in breach of the first respondent’s right in his customer/banker relationship with his bank.

33	I dismiss it as it was not raised in his notice of objection and such an issue is not one of competence.

Objections of the Second Respondent

34	The second respondent filed its notice of objections to the competency of the petition on 30 September 2022. Its submissions on those objections was filed on 28 February 2023.

35	Except for objection 8 in its notice, the grounds of objections it has raised are similar to those of the first respondent which I have addressed. Therefore, I adopt my determination of an objection raised by the first respondent in determining a similar objection raised by the second respondent.

Attesting Witness to a Petition

36	The second respondent objects to the competency of the petition on the ground that the two attesting witnesses are not residents of the Electorate and therefore do not have first-hand knowledge of the facts pleaded in the petition. This was the view of this court in Kikala v EC and Mangape (2013) N4960. In Kikala v EC & Mangape (2013) SC1295, the Supreme Court held that s.208(d) of the Organic Law requires that each witness is able to testify that the person who signed the petition is the petitioner, and where the Supreme Court has also expressed a view which supports that advanced by the second respondent, I prefer and follow Kikala SC1295 for the reasons explained there.

37	For these reasons, I dismiss the objections raised by both respondents. As to the form of the petition, the requirement to plead the facts and grounds according to the parts in Form 1 is dispensed with. Costs of the objections hearing shall be in the cause. 
____________________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner 
Manase & Co. Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent