N10158
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 35 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
KAIRUKU OPEN ELECTORATE

PARU AIHI
Petitioner

V

PETER NAMEA ISOAIMO
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Berrigan J
2023: 6th, 13th March

ELECTION PETITION – OBJECTION TO COMPETENCY OF THE PETITION – Organic Law on National and Local-level Government Elections – S 208 (requisites of petition) – s 208(a), whether facts relied on to invalidate the election sufficiently set out.

The respondents object to the competency of an election petition containing three grounds of bribery relied upon to challenge the election of the first respondent pursuant to s 215 of the Organic Law on National and Local-level Government Elections. The respondents contend that the facts pleaded are deficient and insufficient to make out the grounds of the petition, including that: the allegations do not contain the age or date of birth of the electors, or a statement that the persons allegedly bribed appear in the 2023 Electoral Common Roll for the electorate; the allegations do not state the exact date and venue where polling was held; the allegations do not state whether any or all of the persons allegedly bribed voted for the first respondent as a result of the alleged bribes; and for otherwise being vague and ambiguous. Further, that two of the allegations are defective for invoking s 215(1) of the Organic Law when it is not alleged that the first respondent personally committed or was directly involved in the commission of the alleged offences. 

Held: 

(1)	The offence of bribery is complete at the time the person gives, confers or procures or promises or offers to give, or procure any property or benefit for the purposes outlined in s 103(a)(i) and (iii) of the Criminal Code.  The offence is also complete when a person advances or pays any money to or to the use of a person with the intent that it will be used for those purposes pursuant to s 103(d) of the Criminal Code.  It is therefore not necessary for the petitioner to prove in every case that the person allegedly bribed received the property or benefit to establish the offence.  It is also not necessary for the petitioner to establish that the person allegedly bribed voted for the candidate to establish the offence.   

(2)	It is not necessary for a petitioner to expressly state the operative provision under s 215 of the Organic Law.  What is required under s208(a) of the Organic Law is that the petition set out the facts relied on to invalidate the election or return.  Furthermore, the first respondent concedes that s 215(3) is disclosed on the facts alleged in Allegations No. 1 and No. 2. It would be contrary to the Court’s obligation under s217 of the Organic Law to dismiss the allegation at this stage in those circumstances: Hagahuno v Tuke (2020) SC2018, applied.  In addition, the petition alleges that the first respondent committed the offences by doing the act constituting the offence or by aiding, or doing an act with the intention of aiding, or counselling or procuring another person to commit the offence for the purpose of s 7 of the Criminal Code.  

(3)	The objections to the competency of Allegations 1, 2 and 4 of the petition are refused.  The allegations sufficiently plead the essential elements of the offences alleged under s 103(a)(i) and (iii) and 103(d) of the Criminal Code in each case and the facts relied upon to establish those elements.  The allegations give sufficient details of the date and place of the alleged offences of bribery, the names of the persons involved, the names of the persons allegedly bribed, that they were electors, that the bribes were offered with the intention of causing or inducing the elector to vote for the first respondent, who was a candidate at the time, and the basis upon which it is alleged that the offences were committed by or with the knowledge and authority of the first respondent. 

The objections to the competency of the petition are refused. 

Cases Cited

Hagahuno v Tuke (2020) SC2018
Kopaol v Embel (2003) SC727
Diau v Gubag (2004) SC775
Isoaimo v Aihi (2012) N4921
Waranaka v Dusava (2009) SC980 
Fairweather v Singirok (2013) SC1293

References Cited

Sections 208, 215 of the Organic Law on National and Local-level Government Elections
Section 103 of the Criminal Code

Counsel

D Kipa, for the Petitioner
T Kamuta, for the First Respondent
M Ninkama, for the Second Respondent

13th March, 2023

1.	BERRIGAN J: This is a ruling on an objection to the competency of an election petition.  The petition was filed by the petitioner and unsuccessful candidate, Paru Aihi, disputing the election of the first respondent, Peter Namea Isoaimo, as the successful candidate for the Kairuku Open Electorate. 

2.	The petitioner seeks declarations that the first respondent was not duly elected and that his election is void, pursuant to s 212(f) and 212(h) of the Organic Law on National and Local Level Government Elections (the Organic Law), respectively, and an order that the Electoral Commission, the second respondent, conduct a by-election, pursuant to s 212(3) of the Organic Law.  

GROUNDS OF THE PETITION 

3.	The petition filed on 7 September 2022 contains four grounds, all of alleged bribery:

1.	Allegation No. 1 - Bribery at Inauaia Village, Ward 5 Meko LLG Area, Kairuku District, Central Province.

2.	Allegation No. 2 – Bribery at Delena Village, Kairuku LLG Area, Central Province.

3.	Allegation No. 3 – Attempted Bribery at Aipeana Village, Mekeo LLG Areas, Central Province.

4.	Allegation No. 4 – Bribery at Hisiu Village, Ward 6, Mekeo LLG Area, Central Province.

4.	Allegation No. 3 has since been abandoned.

GROUNDS OF OBJECTION TO COMPETENCY OF PETITION

5.	The first respondent filed a notice of objection to competency on 4 October 2022.  The grounds of objection are supported by the second respondent, who raised additional arguments in oral submissions in support of the grounds raised. 

6.	The first respondent objects to the petition on the basis that it does not meet the requirements of s 208 (requisites of petition) of the Organic Law, which states (emphasis mine):

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).

7.	In short, the first respondent contends that material and relevant facts probative to the grounds pleaded are deficient and insufficient to make out the grounds of the petition.  

8.	Objections are made to each of the grounds or allegations contained in the petition.  

ALLEGATION No. 1  

9.	It is alleged that:

On 20th May 2022 at about 7:00pm, Andrew Efi of Inauaia village gave Paul Keamau Mapai and Peter Eko K1, 000.00 each to vote for the First Respondent.  He also promised to make further payments to them. 

Andrew Efi, Paul Keamau Mapai and Peter Eko were all electors from the Inauaia village, Ward 5 of the electorate.

Andrew Efi was the village campaign coordinator for the First Respondent at the material time and since 2017.  The First Respondent had financially assisted Andrew Efi purchased a brand new Hyundai H65 PMV truck named “Maams Em Jay” for his support in the 2017 NGE.

The First Respondent had also between May and June 2022 authorized a K30, 000.00 cheque from the Kairuku/Hiri Covid 19 Trust Account deposited into Andrew Efi’s personal Bank Account with Kina Bank or Bank South Pacific to use for bribing and including electors from the village to vote for the First Respondent…

The First Respondent had or ought to know of Andrew Efi’s action because he was his campaign coordinator and have funded him in the past.  The actions of Andrew Efi were promoted and approved by the First Respondent under the circumstances.

Distributing money to both men by Andrew Efi on behalf of the First Respondent was to procure their votes at the election for the First Respondent, and in order to induce the two electors to endeavour to return the First Respondent at the election.  This act was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the Organic Law on National and Local Level Governments Elections (OLNLLGE).

10.	The first respondent contends that Allegation No. 1 fails to comply with s 208(a) of the Organic Law on the basis that: (a) the material and relevant facts are deficient and insufficient; (b) base facts have not been pleaded; and (c) section 215(1) of the Organic Law is inapplicable.

11.	In particular, the first respondent submits that the following matters are not pleaded: the age, dates of birth of Andrew Efi, Paul Keamau Mapai and Peter Eko; whether the names of those persons appear in the 2023 Electoral Common Roll for Inuaiai Village, Ward 5 of the electorate; whether any or all of them voted for the first respondent as a result of the alleged bribes; the exact date and venue where polling was had; the details of the bank account of Andrew Efi into which K30,000 was paid, the details of the cheque in that amount, and the date it was deposited. The allegation is ambiguous because it says that monies were paid between May and June and does not make clear whether it was to a BSP or Kina Bank account.  

12.	It is further submitted that the petition does not state the specific and clear instructions given directly or indirectly by the first respondent to Andrew Efi authorising him to bribe the named electors with the said monies.

13.	Finally, it is submitted that s 215(1) of the Organic Law is inapplicable because the act of bribery must be committed by the winning candidate personally to attract s 215(1) of the Organic Law.  What is pleaded attracts the operation of s 215(3) of the Organic Law instead.

14.	The second respondent supports the objections. It submits that the petition fails to include what the first respondent told Andrew Efi for the purposes of establishing that he told him to bribe the persons named. The allegation is based on “assumptions”. Section 215(1) of the Organic Law has no application.  It does not apply to servants or agents, it only applies where the candidate is directly involved. 

Consideration

15.	It is well-settled that “bribery” in s 215 of the Organic Law means one of the offences of bribery created by s103 of the Criminal Code, which provides (emphasis added to those subsections relied upon by the petitioner): 

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.

16.	It also appears to be settled that, as to the facts that are to be stated in support of an allegation of bribery, it is necessary only that the petition state the essential elements of the offence, including the date of commission of the alleged offence, the name of the offender, the name of the person bribed, that the person bribed was an elector, 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, and that the winning candidate was in fact a candidate at the time of the alleged offence:  Hagahuno v Tuke (2020) SC2018. 

17.	Returning to Allegation No. 1, the grounds of objection are refused. 

18.	The allegation sufficiently pleads the essential elements of the alleged offences under s 103(a)(i) and (iii) and 103(d) of the Criminal Code and the facts relied upon to establish those elements.  The allegation gives sufficient details of the date and place of the alleged bribery, the persons involved, and sufficiently alleges that the alleged bribery was committed by or with the knowledge or authority of the first respondent.  For completeness I note that there is no dispute that the first respondent was a candidate at the relevant time.  This is pleaded in the introductory paragraphs of the petition. 

19.	In summary, it is alleged that on 20 May 2022, Andrew Efi, gave monies to two named electors of Inauaia Village, Ward 5 in the electorate, namely Paul Keamau Mapai and Peter Eko, “on account of anything” to be done in their capacity as electors, or “in order to induce them” to vote for the first respondent, that he also promised or offered to give them further monies for that purpose, contrary to ss 103(a)(i) and (iii) of the Criminal Code, respectively, and that he did so with the knowledge and authority of the first respondent, in particular that the first respondent “gave” certain monies to Andrew Efi “in order to induce” him “to endeavour” to procure the vote of the named electors, contrary to s 103(a)(iii) of the Criminal Code, and “advanced” or “paid” certain monies “with the intent” that they be used for those purposes, contrary to s 103(d) of the Criminal Code, respectively.  That is sufficient for the purposes of the competency of the petition. 

20.	Allegation No. 1 does not expressly state that Mapai and Eko are “persons whose names appear on the roll” for Inuaiai Village, Ward 5 of the electorate but it is not necessary for a petition to state those words precisely.  The petition refers to an “elector”, which is defined under s 3 of the Organic Law to mean “a person whose name appears on a Roll” and the allegation sufficiently identifies the persons concerned by name, and the place at which they are electors.  The evidence to prove those matters is properly a matter for trial.  

21.	It is not necessary to prove that the elector went on to cast a vote for the candidate to establish the offences alleged, although evidence that they did may be relevant for that purpose.  

22.	Section 103 creates several different offences not only between the various subsections (a) to (g) but also within those subsections. 

23.	The offence of bribery is complete at the time the person gives, confers or procures or promises or offers to give, or procure any property or benefit for the purposes outlined in s 103(a)(i) and (iii) of the Criminal Code.  The offence is also complete when a person advances or pays any money to or to the use of a person with the intent that it will be used for those purposes pursuant to s 103(d) of the Criminal Code.  It is therefore not necessary for the petitioner to prove in every case that the person allegedly bribed received the property or benefit to establish the offence.  It is also not necessary for the petitioner to establish that the person allegedly bribed voted for the candidate to establish the offence.   

24.	It is not necessary as a matter of law for the petitioner to prove that the candidate gave specific instructions to Andrew Efi to establish the alleged offences.  An allegation may be established by direct evidence or by inference. 

25.	Allegation No 1 sets out in sufficient detail the facts upon which the petitioner relies to establish the inference that Andrew Efi acted with the first respondent’s knowledge or authority.  These include that Efi was the first respondent’s long serving campaign manager at the relevant time, and that a cheque was drawn in favour of Efi from the Kairuku/Hiri Covid 19 Trust Account.  

26.	It is not surprising that the petitioner does not have access to the details of Efi’s bank account or the date upon which the alleged cheque was deposited. It would be surprising if he did.  The key point is that the petition alleges that there was a cheque, the value of that cheque, that it was drawn from a particular account, and paid to Efi, during the relevant period, for the purposes alleged. Furthermore, the allegation that a cheque was paid to Efi by the first respondent for this purpose is only one of the facts that the petitioner will rely upon to establish that the offences under s 103(a)(i) and (iii) were conducted by or with the knowledge and authority of the first respondent.

27.	I am satisfied that the alleged facts, if proven, are capable of constituting the alleged offences of bribery under s 103 of the Criminal Code: see Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Isoaimo v Aihi (2012) N4921.  The petitioner has been given sufficient notice of the facts alleged.  Whether or not the evidence is sufficient to establish the allegations to the requisite standard, having regard to s 217 of the Organic Law, is a separate question, and is a matter for trial. 

28.	Finally, the allegation is not defective for referring to s 215(1) instead of s 215(3) of the Organic Law.

29.	Section 215 (voiding petition for illegal practices) states (emphasis mine):

(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.

30.	Firstly, whilst it might be preferable, it is not necessary for a petitioner to expressly state the operative provision under s 215 of the Organic Law.  What is required under s 208 is that the petition set out the facts relied on to invalidate the election or return:  s 208(a) of the Organic Law applied.   That is for obvious reasons.  The Organic Law envisages that a person other than a lawyer may file a petition challenging an election.  

31.	In addition, the first respondent concedes that s 215(3) is disclosed on the facts alleged in Allegation No. 1. It would be contrary to the Court’s obligation under s 217 of the Organic Law to dismiss the allegation in those circumstances.  Section 217 requires the Court to be guided by the substantial merits and good conscience of the case without regard to legal forms or technicalities, including at the competency stage: Hagahuno, supra, applied.

32.	Furthermore, it is unclear what the petitioner means by the contention that s 215(1) of the Organic Law requires that the act of bribery be “committed by the winning candidate personally”.  Or the second respondent’s submission that s 215(1) does not apply to servants or agents but only when the candidate is “directly involved”.  

33.	On its face s 215(1) of the Organic Law contains no such words.  There is no reason for imputing additional words into the meaning of the word “committed” in s 215 of the Organic Law.   

34.	It is not the case that s 215(1) read on its own or in combination with the balance of the provision applies only where the candidate is the person who physically does the act constituting the offence of bribery under s 103(a), that is the “giving, conferring” etc.  Section 215(1) applies when the candidate has “committed or has attempted to commit bribery”.    

35.	If it is necessary to understand what is meant by the word “commit” then reference should be had to s 7 (principal offenders) of the Criminal Code, which applies to all offences in the Criminal Code including those contained in s 103. 

36.	Section 7 provides that every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence, or aids, or counsels or procures a person to commit an offence, shall be deemed to have taken part in committing the offence.

37.	Furthermore, s 215(3) does not create an offence.  Rather it makes plain that if an offence of bribery is committed by someone other than a candidate and without their knowledge and authority then an election will not be declared void unless the additional matters set out at the end of s 215 are established.  In my view that is consistent with the Supreme Court decision in Fairweather v Singirok (2013) SC1293, see especially [21].  

38.	If anything, s 215(3) extends the circumstances in which an election will be voided automatically to those not only where the candidate’s conduct might strictly be captured by s 7 of the Criminal Code but to those where the offences take place with a candidate’s “knowledge or authority”.  It is, however, not necessary for me to decide that here. 

39.	In addition, putting aside s 7, s 103 of the Criminal Code itself makes it clear that a person commits the offence of bribery if they do any of the things set out at subsections (a) to (f) of that provision.  

40.	As above, the petitioner alleges that the first respondent gave monies to Efi “in order to induce” him to “endeavour to procure … the vote of” the electors, which is an offence contrary to s 103(a)(iii).  The petitioner also alleges that the first respondent advanced or paid money to Efi for the purposes of s 103(a)(i) and (iii), which is an offence of its own under s 103(d) of the Criminal Code.  

41.	In all the circumstances it is my view that s 215(1) of the Organic Law has been properly invoked by the petitioner in Allegation No. 1.  

Allegation No. 2 

42.	The petition alleges that:

On 13th June 2022 during the campaign period Marcel Makuri returned to Delena village with Ume Luke (skipper), Josiah Ume, Andrew Marcel, Gima Luke and Morea Gima with a dinghy and a 40 hp Yamaha outboard motor engine the First Respondent purchased.

At about 8:30pm that night, the named persons arrived at the village with the items to a rousing welcome from the villagers who gathered in the night to witness it.  Kila Ume and Ali Midian who were both electors from the village were present that night with a group of less than 100 villagers to witness the event. 

Marcel Makuri and his travelling group informed the villagers that the new dingy and the motor was given by the First Respondent.

Marcel Makuri was First Respondent’s campaign chairman in Delena village.  He was an elector of the village.  Because of him receiving the boat, he voted for the First Respondent. 

The release of the dinghies and 40 hp Yamaha outboard motor engine were to induce and procure votes from the electors in the village to vote for the First Respondent and to return him as the winning candidate for the electorate at the election… 

As a consequence the village electors voted for the First Respondent and returned him at the election.   

These actions by the First Respondent was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the OLNLLGE.

43.	The first respondent submits that the allegations are deficient.  It fails to provide the names and personal identification details of the 100 alleged voters or state that they are contained on the electoral roll.  There is no evidence of who was enticed and no statement as to when and for whom they voted.  The petition fails to set out the specific and clear instructions given directly or indirectly by the first respondent.  It incorrectly refers to s 215(1) of the Organic Law instead of s 215(3).   

44.	The second respondent says that Allegation No 2 is vague.  Furthermore, it alleges that the first respondent bribed Makuri.  A candidate cannot bribe their own supporter.  The allegations fail to otherwise name those who benefitted. 

45.	I am not persuaded by the arguments. 

46.	Dealing with the second respondent’s arguments first.  

47.	Waranaka v Dusava (2009) SC980 is not authority for the proposition that a candidate cannot as a matter of law bribe their own “supporter”.  Section 103 makes no such distinction.  The provision refers to “electors”.  Whilst there may well be practical issues establishing to the requisite standard that any payments made to a particular “supporter” were for the purpose of inducing them to vote for the candidate, that is a matter separate from the legal definition of the offence.    

48.	Every case must be determined on its own facts and circumstances. The issue in Waranaka was whether the trial judge had erred in finding the offence proven to the requisite standard on the evidence.  The Supreme Court found that the trial judge erred in failing to consider certain questions on the evidence which raised doubts about the allegations, including this one: “So how could Mr. Waranaka have given the money to his opponents’ supporters when his own supporter Mr. Hipmaningi was there? If he was to give the money to anyone who was there building the campaign platform, he would have ensured to give it to his own supporter or man as opposed to his opponents.”.  That is a question about the safeness of a factual finding and not a statement of general legal principle.

49.	Furthermore, it is not case that a person must “benefit” before an offence of bribery is established.  As explained above, the offences are complete upon the giving, conferring, procuring, promising, or offering to give or confer etc.  Or in other words a person will still be liable under s 103 even if the person they attempt to bribe rejects the offer.  In addition, the allegation does name at least some of those who were allegedly given, promised or offered a benefit. 

50.	I am also satisfied that the petition sufficiently sets out the facts upon which it relies to establish the elements of the alleged bribery.  

51.	In summary, it is alleged that on 13 June 2022, Marcel Makuri, gave or offered to give some property, or benefit, in the form of a boat, to 100 electors at Delena Village, including in particular, two named electors, Kila Ume and Ali Midian, on account of or in order to induce them to vote for the first respondent, for the purpose of s 103(a)(i) and (iii) of the Criminal Code, and further, that the first respondent gave the boat to Marcel Makuri for the purpose of inducing him to vote for him, and for the additional purpose of inducing Makuri to endeavour to induce others to vote for him, both being contrary to ss 103(a)(iii), and further, that in doing so the first respondent also advanced or paid money for that purpose, contrary to s 103(d) of the Criminal Code.  Whether or not the offence under s 103(d) can be established in circumstances when it was allegedly property and not “money” that was advanced, having regard to s 217, is not a matter I need to decide now. 

52.	The allegation sufficiently states the date of the alleged offence, the name of the alleged offender, the names of the two persons allegedly bribed, that they were electors for the particular village, and that the bribe was offered with the intention of causing or inducing them to vote for the person returned at the election.  The facts relied upon to establish each of those matters is also sufficiently set out. 

53.	As above, it is not necessary to establish that the named electors did in fact vote for the candidate to establish the offences. 

54.	I repeat my comments regarding s 215 of the Organic Law above.  In addition, putting aside questions of knowledge and authority, and section 7, it is again alleged that the first respondent also contravened s 103(a)(i) and (iii) and 103(d) of the Criminal Code. 

Allegation 4 

55.	It is alleged that:

On 30 June 2022 (as amended) at between 9:00pm and 10:00pm Francis Naime Ovia and Imura Nadile both electors from Hisiu village, Ward 6, Mekeo LLG, Kairuku, Central Province were standing on the roadside at the Agevairu Station along Hiritano Highway when a black Landcruiser Station Wagon pulled up beside them.

The First Respondent sitting on the offside winded his glass down and the two men recognized him and walked towards.  The First Respondent pulled out silver pistol, loaded magazine bullets in their face and said “you agevairu boys pulled down my election banner that was hung across the road?” The two men got scared.

The two men responded they did not know who pulled it down as it could be anybody since it was campaign period and many candidates and their supporters frequented the road and some could have sat on the canopy of a PMV truck and pulled it down.  He apologized and gave them a K100 note each and asked them to vote for him and left.

On polling day they both voted for the First Respondent because of the money given to them…

Distributing money to both men by the First Respondent was to procure their votes at the election for him and in order to induce the two electors to endeavour to return the First Respondent at the election.  This act was contrary to Section 103 (a)(i) and (iii) and Section 103 (d) of the Criminal Code and Section 215 (1) of the OLNLLGE.

56.	The first respondent repeats his objections on the basis that the petition does not expressly state that the electors are named on the common roll, and that the petition fails to include the personal identification details, including age, to enable identification of them in the relevant electorate.   He again contends that the petition is defective for failing to plead the exact date and location where the said electors voted. 

57.	I reject the grounds of objection. 

58.	In summary, it is alleged that on 30 June the first respondent gave K100 each to two persons, Francis Naime Ovia and Imure Nadile, electors from Hisiu village in the Kairuku electorate, for the purpose of causing or inducing them to vote for him at the upcoming election. 

59.	The allegation gives sufficient details of the date and place of the alleged bribery, the names of the persons allegedly bribed, the fact that they are electors, of Hisiu Village, in the Kairuku electorate, and the basis and purpose upon which it is alleged that the first respondent gave monies to those persons, including the words allegedly used by him.  

60.	Again, it is not necessary to establish that the electors allegedly bribed actually voted for the candidate to establish the offences.  

61.	I am satisfied that the alleged facts pleaded in the allegations, if proven, are capable of constituting offences under s 103(a) or (d) of the Criminal Code. 

CONCLUSION

62.	In conclusion, the objections to Allegations 1, 2 and 4 of the petition are refused. The allegations sufficiently plead the essential elements of the offences alleged under s 103(a)(i) and (iii) and 103(d) of the Criminal Code in each case and the facts relied upon to establish those elements.  The allegations give sufficient details of the date and place of the alleged offences of bribery, the names of the persons involved, the names of the persons allegedly bribed, that they were electors, that the bribes were offered with the intention of causing or inducing the elector to vote for the first respondent, who was a candidate at the time, and the basis upon which it is alleged that the offences were committed by or with the knowledge and authority of the first respondent.

63.	I am satisfied that the alleged facts pleaded in the grounds, if proven, are capable of constituting offences of bribery under s 103 of the Criminal Code.  

64.	Whether those matters are established to the requisite standard is a matter for the trial.

65.	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”. 

66.	None of the first respondent’s objections have been successful.  The second respondent fully supported those objections and with respect to Allegations No. 1 and 2 expanded on them in submission.  In the circumstances the respondents will share the cost of the objection to competency.

67.	I make the following orders.

ORDERS

(1)	The objections to the competency of Allegations 1, 3 and 4 of the petition are refused.
(2)	The first and second respondents shall pay the petitioner’s costs of the objections to competency, on a party-party basis, which shall, if not agreed, be taxed.
(3)	The respondents will bear their own costs of the objections to competency. 
(4)	The petition shall proceed to trial on Allegations 1, 2 and 4 of the petition in accordance with directions of the Court.
_____________________________________________________________
Wang Dee Lawyers:  Lawyers for the Petitioner
Kamutas Legal Services: Lawyers for the First Respondent 	
Harvey Nii Lawyers: Lawyers for the Second Respondent