N10177

PAPUA NEW GUINEA
[N THE NATIONAL COURT OF JUSTICE]

EP NO. 13 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE AUTONOMOUS REGION OF BOUGAINVILLE PROVINCIAL ELECTORATE

BETWEEN:
JOE LERA
-Petitioner- 

AND:
HON. PETER TSIAMALILI, MP
-First Respondent-

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Second Respondent-

Buka: Numapo J
2023: 20th February & 02nd March

ELECTION PETITION: PRACTICE AND PROCEDURE – A petition based on bribery must plead all the essential elements of the offence of bribery - Petitioner must plead all the necessary facts and constituent elements of bribery to invalidate the election - Material aspects of a petition based on bribery are the elements of the offence of bribery under s. 103 of the Criminal Code Act read together with s.217 of the Organic Law - Petitioner has not produced any evidence to substantiate the pleadings and invalidate the election – Having regard to the terms of s. 217, the petition is dismissed.  

Cases Cited: 

David Arore v John Warisan (2008) SC1030 
Robert Lak v Paias Wingti (2003) N2358 
Zeipi v Gagarimabu (1999) SCR 5 of 1998 (Unreported and Unnumbered) 
Turai Elemi v Sir Ano Pala & Electoral Commission (2023) N10134 
Pawa Wai v Jamie Maxtone Graham (2005) N2768)
Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC579 
Puaria v Lera [2013] PGNC 55; N5148 (8 April 2013) 
Yagama v Uguro [2018] PGNC 67; N7135
Hagahuno v Tuke (2020) SC2018 
Amet v Yama (2010) SC1064 
Sokoreka v Naguri [2018] PGNC 128; N7207 
Kikala v Electoral Commission [2016] PGNC 86; N6278
Tabar v Wong (2018) N7122
Louma v Tomuriesa & Electoral Commission (2012) N4920 
Tomokita v Tomuriesa (2018) N7206
Tony Aimo v Ezekiel Anisi & Electoral Commission (2012) N4870 
Waranaka v Maru [2018] PGNC 252; N7346

Counsels:

T. Dawidi, for the Petitioner
T. Kuma, for the First Respondent
Nicholas Tame, for the Second Respondent.

DECISION

2nd March, 2023

1.	NUMAPO J: This is a ruling on a no-case submission by the First and Second Respondents at the close of the Petitioner’s case, brought pursuant to Section 206 of the Organic Law on the National and Local Government Elections (“the OLNE or the Organic Law” hereinafter) by the Petitioner who was a candidate in the 2022 National General Elections for the Provincial Seat of the Autonomous Region of Bougainville (AROB). 

2.	Earlier, on the 20 February 2023, I dismissed an objection to competency filed by the Respondents and ordered that the matter proceed to trial on the substantive petition.

3.	The Respondents made a no-case submission after the Petitioner closed its case following oral evidence from two of its witnesses namely; Simon Haoni and Celine Kapu on two allegations of bribery pursuant to section 103 of the Criminal Code. 

4.	Petitioner initially informed the Court at the preliminary hearing that he would be calling a total of 13 witnesses for the trial of the substantive petition.  However, in his notice pursuant to section 35 of the Evidence Act filed on the 12 January 2023, the Petitioner informed the Court that he intends to rely on the written statements of 11 witnesses namely; Simon Haoni, Cecilia Stanley, Jonitha Molo, Immaculate Mosong, Adelaide Taneo, Sherline Kapu, May Kapu, Julitha Moroko, Robert Busin, Flora Masina and Geraldine Sapos.  Except for Sherline Kapu and Simon Haoni, none of the other witnesses were called to give oral evidence or cross-examined on their affidavits.

A.	GROUNDS OF PETITION

5.	On the 28 July 2022, the First Respondent was declared winner as the duly elected Provincial Member for Bougainville in the Autonomous Region of Bougainville (AROB).  He polled 47,460 votes defeating the Petitioner who polled 25,011 with the difference of 22,549 votes between the First Respondent and the Petitioner.  

6.	Petitioner challenged the results of the election alleging two instances of bribery pursuant to section 103 of the Criminal Code Act, allegedly committed at Namukon market on the 4 June 2022 and Karoola market on the 2 July 2022 respectively.  

7.	Petitioner alleges that from the date of the issuing of the Writs on the 12 May 2022, during campaigning and right before polling took place the First Respondent and his campaign team went around distributing cash, as part of his election campaign in various villages in the Bougainville Provincial Electorate. 

8.	Petitioner alleges that the First Respondent, his campaign coordinators, committees and supporters’ conduct in giving out cash, through the campaign period and during polling were committing bribery, in order to gain an unfair advantage over other candidates contesting the same electorate.

B.	LAW

9.	Section 206 of the Organic Law allows an aggrieved person the right to challenge the result of an election through an election petition to invalidate the election or its result.

Section 206 states:

“206. Method of Disputing Returns

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.”

Section 215 provides:-

“215. Voiding Elections 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)	 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.”

In election petition cases, the Court is required to be guided by the substantial merits of the case and not to be restricted by legal forms or technicalities, or be subjected to the strict rules of evidence (Hagahuno v Tuke (2020) SC2018). 

10.	Section 217 of the Organic Law states:

217. Real justice to be observed

“The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

11.	The offences of bribery and undue influence are prescribed under Sections 102 and 103 of the Criminal Code Act respectively.

12.	Section 102 of the Criminal Code Act prescribes the offence of undue influence in these terms:

102. Undue Influence

A Person who –

(a) uses or threatens to use 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 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 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.

Section 103 of the Criminal Code reads:

103. Bribery

“A person –

(a)	Gives, confers or procures or offers to give or confer, or to procure or attempt to procure, to, on, 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)	An 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 or receives or obtains, or agrees to receive or obtain, any property or benefit for himself or any other person, on account of anything done or omitted to be done, 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 obtain, 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 the 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 purposes 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 (e0 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.”

C.	ALLEGATIONS OF BRIBERY

13.	The Petitioner alleges two instances of bribery as follow:

Bribery Case 1 – Namukon Market, Gagan Village, Peit Constituency, Buka

14.	On 4 June 2022 around 7:30am at Namukon market, Gagan Village, Petisun Ward, Peit Constituency, Buka, the First Respondent in the company of his campaign committee comprising Fidelis Semoso, Franscisca Semoso, Callen Kimarei, Scott Francis, Alvin Papi and others arrived to campaign for the first respondent. 

15.	The First Respondent in full view of the market vendors and goers gave K5,000.00 in cash comprising K100.00 notes to Fidelis Semoso who then passed the bundle of cash to Simon Haoni, a Ward Member of Petisun Ward and instructed him in tokpisin saying: “Yu go baim off olgeta samting blo lain I market na tokim ol lo votim Junior Tsiamalili tasol.” (You go and pay off all the market food and tell them to vote for Junior Tsiamalili only).

16.	The campaign manager, Fidelis Semoso spoke to the market vendors and others on behalf of the First Respondent saying in tokpisin: “Yupla harim, nogat lida I bin save mekim olsem bipo. Olsem na yupla olgeta mas votim Peter Tsiamalili  Junior tasol.  Sapos moni nonap, Simon Haoni bai kam lukim mipla long Monday 6 July 2022 na bai kam kisim outstanding money.”
(You all listen there is no leader like this before. So you all must vote for Peter Tsiamalili Junior only. If the money is not enough, Simon Haoni will come and see us on Monday 6 July 2022 and get the outstanding money).

17.	Simon Haoni then proceeded to give the money out to the vendors including Cecilia Stanley, K50.00 an elector from Petisun Ward, Peit Constituency, for her scones.

18.	The Petitioner alleges that distribution of cash to the vendors in the pretext of paying for the market goods and the words uttered by the First Respondent’s campaign committee, Fidelis Semoso, was intended to garner support from Simon Haoni, Cecilia Stanly and other market vendors’ votes, whose votes were expected to be given in return to the First Respondent at polling.

19.	The distribution of cash and uttering of the words to eligible voters from Petisun and those present at the Namukon market was intended to induce electors to exercise their rights to vote in the First Respondent’s favour, thus preventing the free exercise of the franchise of electors and thereby breaching section 50 of the Constitution, section 178 of the ONLE, sections 101, 102 (b) and 103 (i) and (iii) of the Criminal Code Act. 

Bribery Case 2 – Karoola Market, Banis Ward, Halia Constituency, Buka

20.	On the 2 July, 2022, between 7am and 8am before the end of the campaigning period and commencement of polling, the First Respondent in the company of his campaign committee; Fidelis Semoso, Francisca Semoso, Callen Kimarei, Scott Francis, Alvin Papi and other members of the campaign team arrived at the Karoola market in Buka.  A popular market for vendors from the surrounding villages, including the islands of Petats, Pororan and Matsungan, with an estimated crowd of around 500 people attending at any one day.

21.	At the market, the First Respondent and his campaign committee split into three groups and moved around the market pretending to buy food but instead they handed out cash to the market vendors and others who were present there at the time.  They also distributed Pangu Caps and T-shirts. 

22.	One of the campaign committee members, Fidelis Semoso was with one group of supporters handing out cash at the market.  They gave K100 to Celine Kapu, an elector in the Banis Ward in the Halia Constituency and also a Banis Ward Steering Committee member in order for her to campaign for the First Respondent.

23.	Celine Kapu was then told to go and see a Margaret Gaemate and get K3, 700.00 given to her by the First Respondent and she was instructed to give the money to the market vendors, based on the quantity of items they were selling. Celine Kapu received K100 from that K3,700.00.

24.	Celine Kapu then asked the First Respondent if he was going to give a campaign speech at the market but the First Respondent replied in pidgin saying; “Campaign taim i stop lo midnight na mi no nap campaign nau. Campaign blong mi olsem tasol” (The campaign has stopped at midnight and I am not able to do my campaign now).  Petitioner interprets this to mean “that the handing out of cash to the market vendors was his campaign.”

25.	Celine Kapu then distributed the K3, 700.00 after the First Respondent and his committee left the market. The following vendors who were also electors received payments as follows:

(i)	  	Flora Masina – K150.00
(ii)	  	Geraldine Sapia – K120.00
(iii)	Mary Kapu – K110.00
(iv)	Roberta Kapu – K270.00; and
(v)	Julitha Moroko – K150.00.

26.	Celine Kapu was also instructed to distribute the K3, 700.00 for the various hamlets in the Banis Ward, Halia Constituency as follows:

(i)	Hunua hamlet– K350.00
(ii)	Kapiak hamlet – K370.00
(iii)	Karoola hamlet– K600.00
(iv)	Tolabay hamlet – K800.00
(v)	Inau/Hanru hamlet – K350.00

27.	Petitioner alleges that the distribution of cash to eligible voters at Karoola market was intended to induce electors to exercise their rights to vote in the First Respondent’s favour, thus preventing the free exercise of the franchise of electors and thereby breaching section 50 of the Constitution, section 178 of the OLNE, sections 101, 102(b) and 103 (i), (ii) and (d) of the Criminal Code Act. 

28.	 As a consequence of the distribution of cash and uttering of words to eligible voters from Karoola market the Petitioner submitted that the election of the First Respondent be declared null and void pursuant to section 215 (1) of the ONLE.

D.	EVIDENCE IN SUMMARY

29.	From a total of 11 unsworn written statements filed, the Petitioner called only two witnesses namely; Celine Kapu and Simon Haoni who gave oral evidence in addition to their written statements filed.

30.	Simon Haoni - deposed an unsworn written statement (Doc. No. 19) filed on 14 October 2022.  In his oral evidence to the Court he said his full name is ‘Simon Haoni Rakeit.’  The name he used in both his written statement and oral evidence is Simon Haoni.  His oral evidence is to be considered together with his statement.

31.	On 2 June 2022, the First Respondent and his campaign committee requested Simon Haoni to allow them to use his place to do their campaigning.  He agreed for them to do their campaigning at Namukon market. 

32.	On 4 June 2022, he left his house early in the morning to go and inform the people at Namukon market that the First Respondent and his campaign committee will do their campaigning there from 4:30am to 5:00am. 

33.	Not long after, he heard the loud speaker announcing the arrival of the First Respondent and his campaign team and he told everyone to go down to Namukon market. However, people were already there when the First Respondent and his campaign team arrived.  His name (Simon Haoni) was announced and acknowledged by the campaign committee as he is the Market Manager and manages the Namukon market. 

34.	He walked across to meet the campaign team and the first person to meet him and shook his hands was the First Respondent who then told him he (Simon) was ‘a leader and a powerful man.’  The First Respondent told him to take his PNC Cap off and not to wear it again and gave him a Pangu Pati Cap instead with a ‘T’ shirt and told him that from now on he will be a Pangu Pati supporter. The First Respondent also gave him 50 ‘T’ shirts to distribute to the people.  He was at the time the PNC Party Coordinator in Bougainville for the 2022 National General Election (NGE). 

35.	The First Respondent then called him over to where his campaign committee were setting up the stage to do their campaigning and continuously referred to him as a leader and a powerful man.  First Respondent then called him over to the back of his vehicle and people started following them to the back.

36.	First Respondent kept referring to him as a powerful leader and uttered these words; “make sure you convince your voters to vote for me” and went into his car and got his wallet out and gave him K300.00 and told him that he trusted him. People were watching and were smiling when they saw what happened.  The First Respondent then shook his hands and thanked him. 

37.	Simon Haoni then went over to the microphone and announced the presence of the First Respondent, Fidelis Semoso and the rest of the members of his campaign team.  He then told the people to only vote for the First Respondent and everybody started clapping their hands and shouted; “Peter Tsiamalili, Peter Tsiamalili...” 

38.	He was never a supporter of Peter Tsiamalili and this was the first time he supported the First Respondent.  He did that because he was given K300.00 by the First Respondent. 

39.	According to the witness, the K5,000.00 he received from Fidelis Semoso “was to pay the vendors for their food sold at the market.”  The situation at the market was chaotic because everyone wanted to be paid.  He then distributed the money to the vendors and provided a list of names of people who received the money (attached to his written statement).  He did not mention if the money was given to bribe the voters.

40.	Celine Kapu – filed an unsworn written statement on 14 October 2022 (Doc. No. 17) under the name ‘Sherline Kapu’.  In her oral evidence, she told the court that she is one and the same person under both names, the spelling of her first name is different but the pronunciation is the same.  Her oral evidence is in addition to what she had deposed in her written statement. 

41.	She told the Court that she was at Karoola market on 2 July 2022 between 7am – 10am when she was given K100.00 by the First Respondent who then told her to campaign for him.  She was then told to go and see a Margaret Gaemate who gave her K3,700.00 with specific instructions to pay off all the vendors at the market for their food. 

42.	She then distributed the money to the various hamlets within the Banis Ward in Halia Constituency including some individuals as shown above.  She received K100.00 from the K3,700.00.  She asked the First Respondent if he wanted to do his campaign speech at the market. 

43.	The First Respondent told her that he didn’t need to do any campaigning as his campaign is, and made reference to the cash handed out by his campaign committee.  It is not clear if the food sold at the market were taken by the First Respondent and his campaign team after they were being bought.  She did not say if the money given to her and the vendors were meant to garner support from them to vote for First Respondent. 

44.	At the close of the Petitioner’s case, the First and Second Respondents apply to make no-case submissions and were granted leave to do so.  Both filed their respective submissions and also gave oral presentations.

E.	NO-CASE SUBMISSION

45.	The law in relation to no-case submission in election petition cases is similar in many respects to that of a criminal proceeding. 

46.	There are two ways by which a petition can be stopped at the no-case submission stage.

47.	Firstly, at the conclusion of the petitioner’s case, the respondent is entitled to make a no-case submission if he is of the opinion that the evidence adduced in support of the allegation do not support the essential elements of bribery under section 103 of the Criminal Code or that, the evidence in itself is insufficient to sustain the allegation of bribery and therefore, the case must stop there.
 
48.	Secondly, the principles of law developed in this jurisdiction on no-case submission in election petition cases made it clear that, it is entirely within the discretion of the trial judge hearing the petition having regard to the terms of s.217 of the Organic Law to stop the case, if it is clear that there is no evidence to prove any ground for invalidating an election; (see: David Arore v John Warisan (2008) SC 1030; Robert Lak v Paias Wingti (2003) N2358; Zeipi v Gagarimabu (1999) SCR 5 of 1998 (Unreported and Unnumbered); Pawa Wai v Jamie Maxtone Graham (2005) N2768).

49.	The late Kapi CJ (as he then was) in Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579 stated it more clearly where his Honour said:

“Whether or not a judge should stop a case at the close of the petitioner’s case is a matter up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the court to have regard to the terms of s. 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion, it would be open to a judge having regard to the terms of s. 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground of invalidating an election”.

50.	In Wai v Graham (2005) N2768, Salika J (as he then was) in considering whether to exercise his discretion to stop the case after the petitioner’s case, cited the case of Desmond Baira v Kilroy Genia (supra) and added that:

“These line of authorities support the proposition that in an election petition an application may be made to stop the petitioner’s case at the close of his evidence. It is then left to the presiding judge to consider the application and decide whether the application can succeed. In considering the application the judge would go through the evidence adduced by the petitioner and his witnesses. If the judge finds there is material evidence on the material aspects of the petitioner then the application should not be dismissed. If on the other hand, the judge considers that there is no evidence on the material aspect of the petitioner’s case then he has the discretion to stop the case there without proceeding further.”

51.	Injia DCJ (as he then was) made a similar observation on a no case in Arore v Warisan (supra); where his Honour said:

“…..Election Petition Rules is silent on the procedure for ‘no case submission.’ However, case law establishes that a no case submission is open in a trial in an election petition….it is entirely a matter of discretion and it would be open to a judge having regard to s. 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.”

F.	RESPONDENT’S NO-CASE SUBMISSION

(1)	Bribery Case 1 – Namukon Market

52.	Counsels for the First and Second Respondents submitted that Paragraphs 5, (1), (2) (1)-(8) of the petition clearly plead an allegation of bribery allegedly committed by one, Fidelis Semoso who is alleged to be the supporter of the First Respondent.  The allegation involves an amount of K5,000.00 that was used to pay off all the markets vendors.  There is no pleading in the petition in relation to the K300.00 given to witness Simon Haoni by the First Respondent.  In that regard, the evidence does not support the allegation of bribery.
 
53.	 The evidence in relation to K300.00 is completely new and outside of the 
grounds of petition, and could not be pleaded as it does not go to prove any of grounds of the petition.

54.	Respondents further submitted that if bribery was committed by any other 
persons other than the First Respondent, the Petitioner had failed to show the connection between that person and the First Respondent.  Counsels referred to the case of Puaria v Lera [2013] PGNC 55; N5148 (8 April 2013). The Court in that case held, amongst others, that the petitioner failed to establish the connection between the first respondent and the person who committed the alleged act of bribery and whether or not, it was done with the consent and authority of the first respondent. 

55.	Respondents further submitted that if the alleged bribery was committed by 
Fidelis Semoso the witness had failed to establish a connection between him and the First Respondent. 

56.	Counsels referred to the number of case laws that established these requirements, like in the case of Yagama v Uguro [2018] PGNC 67; N7135 where his Honour Makail J held that:

“Section 215 (3) of the Organic Law provides two additional elements which are:

(1)	The offence was committed by the candidate; or
(2)	If not, by a person other than the candidate with the candidate’s knowledge and authority. 

And since this is a case of alleged bribery by a person other than the First Respondent, it is necessary therefore that the Petitioner pleads that the alleged bribery was done with the knowledge or authority of the First Respondent.”

57.	Respondents in closing, submitted that the amount of money pleaded in the petition is K5,000.00 and not K300.00 but that the Petitioner has not led evidence relating to the K5,000.00.  This allegation stands unsupported by any credible evidence.  The written statement filed by Simon Haoni does not prove that the offence of bribery was committed by the First Respondent.  It was Fidelis Semoso who committed the alleged bribery but that the Petitioner failed to show the connection between Fidelis Semoso and the First Respondent and whether or not Fidelis Semoso gave the money with the consent or authority of the First Respondent.
 
Bribery Case 2 – Karoola Market

58.	With respect to the allegation of bribery at Karoola market on 2 July 2022 between 7am – 10am, Celine Kapu also known as ‘Sherline Sakoe Kapu’ gave evidence.  She deposed an unsworn written statement filed on 14 October 2022. Her oral testimony is in addition to her written statement.

59.	In her statement she said she received K3, 700.00 from Margaret Gaemate and was instructed to distribute the money amongst the vendors which she did. She was also instructed to campaign for the First Respondent.  This was confirmed during cross-examination and re-examination.  There is a big difference between campaigning for someone and voting.  It’s the voting that matters not the campaigning. 

60.	Petitioner pleads in Paragraph 4(3)(4) in page 3 of the petition that Sherline Kapu received K100 from a campaign committee member, Fidelis Semoso but in her oral testimony she said she received the money from the First Respondent. She was then told to go and campaign for him. 

61.	Respondents submitted that there were some inconsistencies in the evidence and furthermore, that the evidence does not support the pleading hence, the allegation could not be sustained and must be dismissed.

62.	Given these inconsistencies in the evidence, Respondents submitted that the pleadings were unsubstantiated and the allegation of bribery at Karoola market could not be proven and must be dismissed.  

G.	PETITIONER’S RESPONSE TO NO-CASE SUBMISSION

63.	Counsel for the Petitioner opposes the respondents’ no-case submission and submitted that it is misconceived and should not be dismissed. 

64.	Counsel submitted that the essential elements of the offence of bribery are:

(1)	Identity of the person by name, the successful candidate that made the payment or promise;

(2)	Identity of the person by name who is bribed;

(3)	Form and value of the money (property) or benefit; 

(4)	The purpose of the payment – to induce the person to endeavour to procure the return of a person, the successful candidate, at an election; and

(5)	The person bribed is an elector. 

65.	Counsel further submitted that the matters raised by the Respondents in their no-case submission have already been put to rest by the Supreme Court in Hagahuno v Tuke (2020) SC2018. In that case his Honour Kandakasi DCJ at paragraph 28 stated:    

“Challenging an election petition on the basis of a lack of proper pleadings and/or a petition not being in a correct form comes under “legal forms or technicalities” which in my humble view is expressly prohibited or excluded from any consideration by s.217. Of course, this does not save a petition which fails to state at all, any facts under s. 208(a) that discloses a valid ground to void an election outcome or fails completely to meet any of the other requirements of s.208 (b) to (e). For clarity, may I point out that, however hopelessly pleaded a petition might be, if the facts stated, disclose a known ground for voiding an election and the petition on the face of it meets all the requirements under s.208 and s.209, it would be sufficient for the purposes of s.210, and that such a petition should be allowed to progress to trial without delay. Any argument against a petition of this type as being incompetent and would constitute a technical issue, which is prohibited by s.217”. 

66.	Petitioner called two witnesses, one for each count of bribery in the petition. Their written statements were tendered on 14 October 2022 and both gave oral evidence on 23 February 2023. 

67.	The first witness Simon Rakeit Haoni told the Court he was present at the Namukon market on the 2 June, 2022 when he was called to go and meet Peter Tsiamalili’s campaign team. 

68.	He was met by Peter Tsiamalili at his car and he (Tsiamalili) took K300.00 out of his wallet and gave it to him and told him to support his campaign, with his leadership and influence he has within the Petisun Ward of the Peit Constituency. 

69.	He then gave a speech, amongst other speakers asking the public and the market vendors to vote for Peter Tsiamalili.

70.	The second witness, Celine Kapu gave evidence that on the 4 July 2022 she was at Karoola market when Peter Tsiamalili and his campaign team arrived and she was given K100.00 by Peter Tsiamalili and told her to go and campaign for him.

71.	She is a registered voter and has voted in the 2022 National General Election. 

72.	The bribe of K300.00 was offered to Simon Haoni by Peter Tsiamalili and he was told to campaign for him. 

73.		Counsel submitted that the case requisite elements to prove bribery have been established from the evidence adduced from the two witnesses.

74.		Counsel further submitted that the no-case submission is misconceived in that it offends against the requirements of s. 217 of the Organic Law and the principles of law developed in Hagahuno v Tuke (supra) in relation to election petition cases. 
 
75.	 	Petitioner relies on the case of Robert Lak v Paias Wingti (2003) N2358 which held that, whether or not a case should be stopped is a matter entirely at the discretion of the court, having regard to the terms of s. 217 of the Organic Law. 

76.	Accordingly, Counsel submitted that the no-case submission should be dismissed and the trial allowed to continue.  

H.	RULING

77.	I begin by stating the requirement of law, which is that, a petition based on bribery must plead the essential elements of the offence of bribery.

78.	 The material aspects of a petition based on bribery are the elements of the offence of bribery under s. 103 of the Criminal Code Act read together with s. 217 of the Organic Law (Hagahuno v Tuke (supra).

79.	 Material facts must be clearly pleaded and demonstrated through pleadings. The petitioner must plead all the necessary facts and constituent elements of bribery under s. 103 of the Criminal Code to invalidate the election.

80.	 However, since Hagahuno v Tuke, any challenge of the election petition based on proper pleadings is considered strict compliance with legal forms and technicalities, which is prohibited by s. 217 of the Organic Law.

81.	Respondents in their objection to competency sought to dismiss the petition arguing that the pleadings were bad but the objection was dismissed as I was satisfied that the petition contained facts that discloses a known ground for voiding an election, and the petition itself on face value, meets all the requisites of s. 208 and s.209 and is sufficient for purposes of s. 210 of the Organic Law to proceed to trial on the substantive petition.

82.	The onus is on the Petitioner to prove all the essential elements of the offence of bribery, failing that, I have the discretion, as the presiding judge, to stop the case, if I find that there is insufficient evidence on the material aspect of the petition having regard to the terms of s.217 of the Organic Law (see; Warison v Arore (supra); Perry Zeipi v Gabia Gagarimabu (1999) SCR 5 of 1998 (Unreported and Un-numbered), and Turai Elemi v Sir Ano Pala & Electoral Commission (2023) 20 February 2023 – (EP No, 64 of 2022). 

83.	 In that regard, the argument advanced by the Petitioner after the close of its case that the pleading offends against Hagahuno v Tuke (supra) and s.217 of the Organic Law is, in my view, misconceived.  This sort of argument should have been raised during the hearing on objection to competency and not after the trial on the substantive petition has commenced.
 
(i)  Allegations of Bribery 

84.	With respect to the Namukon market bribery allegation, it was not disputed that Fidelis Semoso gave K5,000.00 to Simon Haoni to pay off the market vendors. 

85.	Although, the Petitioner pleaded in the petition that the First Respondent gave the K5,000.00 to Simon Haoni, he has not produced any evidence to substantiate this pleading. 

86.	I am therefore, satisfied that it was Fidelis Semoso who committed the act of bribery and not the First Respondent.

87.	Having established that, it follows thereon, that the Petitioner must show if there is any connection, directly or otherwise, between Fidelis Semoso and the First Respondent and that the bribery was committed with the full knowledge, consent or authority of the First Respondent.

88.	Principles of law developed in this area requires the petitioner to plead that the alleged bribery was done with the knowledge or authority of the first respondent especially, where the alleged bribery was committed by a person other than the candidate himself (see: Puaria v Lera [2013] PGNC 55; N5148 and Yagama v Uguro [2018] PGNC 67; N7135).

89.	Makail J, made this requirement more pronounced in the case of Sokoreka v Naguri [2018] PGNC 128; N7207 where his Honour said:

“For anyone can claim to be or ‘a known close and strong campaign committee member’ or strong supporter of a successful candidate, but it does not follow that what ‘a known close and strong campaign committee member’ or strong supporter did was with the knowledge or authority of the successful candidate.” 

“There must be facts to demonstrate that the first respondent was aware or informed of what his known close and strong campaign committee member did or that the first respondent told him to do what he did to show that connection or nexus.”

“The law recognizes this and makes that distinction in Section 215 (3) (a) of the Organic Law to protect the successful candidate/member and the integrity of the electoral process from being abused. So must the petitioner make this distinction when preparing the petition.”

“Failure to make that distinction and to simply make a general allegation that these persons were supporters or cronies of the first respondent had resulted in no foundation in the pleadings for evidence to be called to prove and hold the first respondent liable for the actions or conduct of others.” 

90.	I adopt and apply Makail J’s observation in Sokoreka v Naguri (supra) and state here that the Petitioner has failed to show through evidence, firstly, that a connection exist between Fidelis Semoso and the First Respondent, and that the First Respondent would have known or ought to have known of what Fidelis Semoso did and, secondly, that on the basis of this connection, Fidelis Semoso bribed Simon Haoni with the knowledge, consent or authority of the First Respondent. 

91.	Section 215 (3) (a) of the Organic Law protects the successful candidate and the integrity of electoral process from being abused by making it mandatory on the part of the Petitioner to prove that the alleged illegal practice was committed with the candidate’s full knowledge or authority in order to void his election win.  Failing to prove that, the candidate’s election win will be deemed fair, proper and valid.

92.	The rationale for this is that, why should a winning candidate be penalized of his election victory for the actions or conduct of some unknown persons who may be acting independently with ulterior motives and in bad faith, to discredit him.

93.	In the present case, the only evidence linking Fidelis Semoso to the First Respondent is that the First Respondent was present at Namukon market on that day when Fidelis Semoso gave K5, 000.00 to Simon Haoni.  A market is a public place open to everyone and the First Respondent’s presence there, is not unusual.

94.	Furthermore, although the First Respondent was present at the market, no campaigning took place on that day to give anyone the impression that the K5, 000.00 was given to bribe voters to support the First Respondent.

95.	I note from the various affidavits filed that Fidelis Semoso was the former Provincial Member for Bougainville and is currently the Mayor of Buka Town and a very successful businessman.  For all we know, he could be acting on his own volition in giving out the money as he has the means to do so, to show his support for the First Respondent.  As a citizen he has every right to support any candidate of his choice.  I find nothing wrong with that. 

96.	The only evidence of Simon Haoni allegedly receiving money directly from the First Respondent was in relation to the K300.00, however, there is nothing in the pleadings relating to the K300.00.  This evidence is new and is not of any material relevance as it does not substantiate the pleading. 
 
97.	All in all, I find no evidence from the Petitioner that supported the allegation of bribery at Namukon market.  The allegation is not supported by any facts.

98.	Finally, Simon Haoni testified that there were a lot of people present at the time and (quote) “he saw the First Respondent giving K5, 000 cash in K100 notes to Fidelis Semoso to pay off the market vendors in front of everyone” and secondly, “the First Respondent took out K300 from his wallet and gave it to him and when the people saw that they started cheering and clapping” (unquote). Well and good but why can’t these people be called to give evidence and corroborate Simon Haoni’s evidence? 

99.	The failure of the Petitioner to call additional witnesses suggests to me two things; firstly, either his witness Simon Haoni is not telling the truth, or secondly, that the Petitioner simply does not have any more witnesses to call to give evidence to support his allegation on bribery. 

87. 	Consequently, Simon Haoni’s evidence stands uncorroborated and unsupported in any material facts regarding the allegation of bribery. 

88. 	I observed Simon Haoni’s demeanour as a witness and found it wanting.  His evidence, for the most part, is riddled with falsehood and lies. There were inconsistencies in his evidence. At times he contradicted himself. I found him less credible and an unreliable witness.  He is not telling the truth.  
 
89. 	With respect to the Karoola market bribery allegation, Celine Kapu in her evidence said she received K100.00 from the First Respondent but in Paragraph 4(3) in page 3 of the petition, she stated that she received K100 from Fidelis Semoso. 

90. 	The evidence relating to the K100 given to her by the First Respondent is new evidence that has not being pleaded in the petition to invalidate the election result.  This goes against the rules on pleading and I must therefore, reject this evidence.

91. 	In her unsworn written statement she stated that she received K3, 700.00 from Margaret Gaemate, a member of the First Respondent’s campaign team.

92. 	No evidence was led in relation to the K3, 700.00 pleaded in the petition.  She only made reference to it when it was raised during cross-examination and re-examination.  Had the questions not raised, she probably would not have made any mention of it at all.  However, I can only speculate. 

93. 	Even if Margaret Gaemate did give Celine Kapu the K3, 700, the Petitioner has not produced any evidence showing that Margaret Gaemate did so with the full knowledge, consent or authority of the First Respondent. 

94. 	Furthermore, Margaret Gaemate’s name was not on the list of names of people that comprised the First Respondent’s campaign committee that visited the Karoola market on that day.
  
95. 	The only time Margaret Gaemate’s name was mentioned was when Celine Kapu was told to go and see her and get the money.  It is not known if she was part of the campaign team and therefore, gave the money in support of the First Respondent.

96. 	For all we know, Margaret Gaemate could be one of those market vendors or an ordinary member of the public doing her marketing on that day.  Petitioner has failed to establish, to the satisfaction of this Court, the connection between Margaret Gaemate and the First Respondent (Puaria v Lera (supra)).

97. 	Where a Petitioner pleads bribery, the onus is on him to show that the person committing bribery did so with the knowledge, consent or authority of the candidate, and secondly, that the person who committed an act of bribery is connected to the candidate, to comply with the requirements of s. 215 (3) (a) of the Organic Law (Sokoreka v Naguri (supra)).

98. 	Like in Namukon market, no campaign was carried out at Karoola market to give anyone any reason to believe that because Celine Kapu was bribed she allowed the First Respondent and his team to do their campaigning. 

99. 	I conclude that the evidence of both witnesses (Simon Haoni and Celine Kapu) for the Petitioner failed to substantiate the pleadings and are not supported by any material facts to satisfy the elements of the offence of bribery under s. 103 of the Criminal Code and s. 217 of the Organic Law, read together.  The evidence as it stands is inadequate and insufficient to support the two allegations of bribery allegedly committed at Namukon and the Karoola markets on 4 June 2022 and 2 July 2022 respectively.  Accordingly, the allegations must be dismissed.

(ii) Pleadings

100.	The misunderstanding on pleadings became apparent to me that I need to re-state for clarity, the purpose and requirements of pleadings, for the benefit of all. 

101.	Essentially, the purpose of pleadings is to ascertain with precision, matters on which parties differ and the points in which they agree to arrive at certain clear issues upon which the parties would then lead evidence in presenting their cases.

102.	Pleadings assist the parties to properly prepare for a trial.  By knowing exactly what is in dispute, the parties are in a better position to determine what evidence to adduce. 

103.	Pleadings must be clear and precise and it is the duty of the Petitioner to ensure that this is the case.  If the Petitioner fails to plead clearly and correctly, he does so at his own peril.

104.	It is not the duty of the Court to work out or assume or guess what may have or would have been intended and ought to have been pleaded in the petition by the petitioner.  The Court does not act on assumptions or speculations or guess work on what might be the intention of the petitioner (Wai v Graham (supra)).

105.	Incorrect citing of statutes, incorrect spelling of names or omission of words etc. in the pleadings do not satisfy the requirements of s. 208 of the Organic Law.  It is the Petitioner or his lawyer who must ensure that the petition is entirely correct (Amet v Yama (2010) SC 1064).

106.	When pleadings are made, petitioner is expected to produce evidence that is based on the pleadings.  Evidence which do not conform to the requirements on pleading cannot be accepted.

107.	As I pointed out, the Petitioner is not at liberty to introduce new evidence that is not based on pleadings.  Evidence cannot be led on allegation that has not being properly pleaded. This is unfair to the other party.

108.	The Supreme Court made this requirement on pleading very clearly in Kikala v Electoral Commission of Papua New Guinea [2016] PGNC 86; N6278 (27 April 2016) held that:

“….At the outset it is appropriate to mention that pleadings are pleadings. When pleadings are made, evidence need to be adduced to substantiate the pleadings, If evidence is adduced on allegations not pleaded then the evidence cannot be sustained as it has no bases.”

(iii)	Elector / Voter Identification

(a)	Peit Constituency

109.	In relation to elector/voter identification, the common roll for Peit Constituency (Male) was tendered as exhibit to Court which contained names of all the eligible male voters of this constituency.  

110.	The name ‘Simon Haoni’ does not appear on the common roll.  “Rakeit Simon” is the name registered with Elector number 2090848 on the common roll.  Simon Haoni claimed that this was his name.  That name (Rakeit Simon) however, was not crossed out with a red ink to indicate that the voter has voted.  This means that “Rakeit Simon” has not voted.  In his evidence, he claimed that he has voted but there is no evidence on record indicating that he did.  I accept the common roll record as prima facie evidence of people registered as eligible voters and people who have voted. 

111.	In the petition, he is referred to as Simon Haoni.  He is also listed as Simon Haoni on the cover page of his written statement filed.  He gave oral evidence under the name Simon Haoni.  At no stage was he referred to as ‘Rakeit Simon.’ Hence, he cannot be the same person registered as ‘Rakeit Simon’ on the common roll.

112.	In Tabar v Wong (2018) N7122, where a similar situation as the current case occurred where the respondents applied to stop the trial and dismiss the petition on the grounds that the witness was not listed on the common roll as a voter/elector and cannot be bribed.  The petition was dismissed on this ground.

113.	I restate here the decision in that case where the Court held that; “An “elector” is defined in section 3 of the Organic law as “…a person whose name appears on the Roll as an elector.”

114.	The Court went on to say: “If August Punion said that he is an elector, his name, must appear on the Common Roll for Gazelle Open Electorate. This view appears to be too legalistic and technical but that is the only to put to rest the elector identity issue. Here the name “August Punion” does not appear. He is therefore, not an elector within the meaning of section 3 of the Organic Law.  

115.	The Court concluded that: “He can explain why he is also Lakit Punion or why the Common Roll is flawed and should not be accepted on face value, or he was allowed at polling to vote under the name, Lakit Punion, but the bottom line is that, August Punion which is the name he swore his affidavit by, does not appear anywhere in the Common Roll.”

116.	In Leonard Louma v Douglas Tomuriesa & Electoral Commission (2012) N4920, where a no case submission was upheld and the petition dismissed on the ground that the petitioner failed to prove that the persons allegedly bribed were electors.

117.	I find that Simon Haoni, if indeed he is ‘Rakeit Simon’, has not voted and by not having his name on the common roll, he is not an eligible voter within the meaning of s. 3 of the Organic Law and therefore, not capable of being bribed. 

118.	I am satisfied that Simon Haoni or Rakeit Simon is not an eligible vote capable of being bribed. Even if he is, he has not voted and by reason of that he cannot be bribed. 

(b)	Halia Constituency

119.	“Sakoe Sherline” is registered as a voter at Banis Ward in Halia Constituency with voter number 5349151.  Celine Kapu claimed that she also known by this name.

120.	I must agree with the respondents that ‘Celine Kapu’ or ‘Sherline Kapu’ cannot be ‘Sherline Sakoe’.  These are two totally different names altogether, both in spelling and pronunciation.  There is no proper identification or official record produced to the Court to verify and/or confirm that ‘Sakoe Sherline’ is the same as ‘Sherline Kapu’ or ‘Celine Kapu’.  There is no evidence to establish that she is the one and the same person. 

121.	In the absence of any logical explanation on the different names used or any form of identification, it would be difficult to accept that the person registered as a voter called “Sherline Sakoe” is the same as ‘Sherline Kapu’ or ‘Celine Kapu’.  

122.	Based on this finding, I am satisfied that ‘Sherline Kapu’ or ‘Celine Kapu’ is not a registered voter within the meaning of s. 3 of the Organic Law and therefore is not capable of being bribed.

123.	The importance of having one’s name on the common roll is a requirement of law (s.3 ONLE) in that to be an eligible voter, one must be registered on the common roll.

124.	In Tomokita v Tomuriesa (2018) N7206, the Court said: 

“One of the grounds of no case submission is that the persons allegedly bribed were not electors because their names are not on the Common Roll. In all criminal offences like the offence of bribery under section 103 of the Criminal Code, there must be specific victim. Where bribery is alleged in an election petition, the facts pleaded must be specific as to the identity of the victim or identity of the person bribed by name, Then, evidence must be adduced to prove the identity of the victim.” 

125.	The Court went on further to say:

“….where the names of the persons are inconsistent with or do not appear on the Common Roll, a copy of which was tendered by consent, the Court has discretion by virtue of s. 217 of the Organic law to dispense with the strict requirements of the rules of evidence and accept their evidence as proof of tem being electors. The petitioner’s invitation to invoke s, 217 is indeed a request to dispense with the requirement under s. 3 of the Organic Law which provides that; “elector means a person whose name appears on the Roll as an elector.”

126.	In Tony Aimo v Ezekiel Anisi & Electoral Commission (2012) N4870, the Court held that:

“Having a name on the Common Roll is crucial to avoid uncertainty and abuse of the right to vote”. 

127.	All in all. I find that Simon Haoni and Celine Kapu are not registered voters on the common roll of Peit and Halia Constituencies respectively, and are therefore, not eligible voters within the meaning of s. 3 of the Organic Law and are not capable of being bribed.

(iv) Undue Influence

128.	Although, allegation of undue influence was raised, there is no pleading based on it.  Even if it was pleaded, Petitioner had not led evidence in relation to the offence of undue influence. 

129.	Whilst it is the prerogative of the Petitioner to decide on the pleadings, I find this rather unusual for the reason that in most election petition cases undue influence (s.102) and bribery (s.103) normally go hand-hand but pleaded separately.  Needless to say, this was not the case in this instance.

130.	Since it was not raised, I need not say much except for completeness say that the Supreme Court said in Amet v Yama (supra) in relations to allegations of undue influence under section 102 of the Criminal Code read together with section 217 of the Organic Law, that: 

“To prove the allegations of undue influence under s.102(b) of the Code, (read together with an illegal practice under s.215 (3) (b) of the Organic Law). The petitioner must plead in clear, concise and sufficient terms:

(iii) 	The inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes accrued by the winner and the runner up to determine whether or not the result was or would have been affected.

(iv) 	It is just that the candidate should be declared not duly elected or that the election should be declared void.”

131.	Kandakasi J (as he then was) made similar observations in the case of Waranaka v Maru [2018] PGNC 252; N7346. 

132.	Having said that, I am satisfied that there is no undue influence as it has not been pleaded and furthermore, there is no evidence to support the allegation. 

I. 	DISCRETION TO STOP THE CASE

133.	It is entirely within the discretion of the presiding judge hearing the petition having regard to the terms of s.217 of the Organic Law to stop the case, if it is clear that there is no evidence to prove any ground for invalidating an election; (see: David Arore v John Warisan (2008) SC 1030; Robert Lak v Paias Wingti (2003) N2358; Zeipi v Gagarimabu (1999) SCR 5 of 1998 (Unreported and Unnumbered); Pawa Wai v Jamie Maxtone Graham (2005) N2768).

134.	I should add further that the exercise of this judicial discretion must be based on proper principles of law and not exercised arbitrarily. 

135.	The evidence or lack of it that prompted the judge to exercise his discretion to stop the case after the no case submission must be stated clearly with reasons for doing so.

136.	I have made my observations on each of the aspects of my findings throughout this judgment and would simply refer to them as reasons for stopping this case at this stage of the proceedings. I see no utility in continuing further. I do not intend to call on the respondents to call evidence as there is nothing substantive in the petitioner’s evidence to warrant a rebuttal.

137.	I found generally that the requisite elements of bribery pursuant to section 103 of the Criminal Code and s. 217 of the Organic Law read together has not been proven hence, the allegations could not be sustained.

138.	I have doubts in the credibility of the witnesses called by the petitioner and found them to be unreliable and am not convinced that they are telling the truth. 

139.	All in all, I find no evidence supporting the allegation of bribery pleaded in the petition to invalidate the election results of the Bougainville Provincial Seat. 

140.	Based on what I have said so far, and having regard to the terms of s. 217 of the Organic Law, I dismissed the petition in its entirety.

J. 	ORDER 
 
141.	I make the following Orders:

(1)	Petition is dismissed.

(2)	Security deposit of K5, 000.00 to be paid to the Respondents in equal terms.

(3)    Petitioner pays the costs of this proceeding, to be taxed, if not agreed.

Orders Accordingly
__________________________________________________________________
Dawidi Lawyers:  Lawyers for the Petitioner
Bradshaw Lawyers:  Lawyers for the First Respondent
Nicholas Tame Lawyers:  Lawyers for the Second Respondent.