N10215
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 2 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
MANUSPROVINCIAL ELECTORATE

KEPO POMAT
Petitioner

V

CHARLIE BENJAMIN
First Respondent

SIMON SINAI IN HIS CAPACITY AS THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Narokobi J
2023: 1st & 2nd May

ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, grounds of a petition, whether petition adequately pleads grounds, s 208 (requisites of petition) – s 208(a): whether facts relied on to invalidate the election adequately pleaded. 

The Petitioner, Kepo Pomat alleges bribery by the First Respondent, Charlie Benjamin in his Petition. The Respondents contend in their Objection to Competency of the Petition that it does not comply with ss 208(a) of the Organic Law on National and Local Level Government Elections (the Organic Law) in that the Petition does not plead material facts.

Held:

(1)	The allegation of bribery in the Petition, is inadequately pleaded for purposes of s 208(a) of the Organic Law, despite taking into consideration the requirements of s 217 of the Organic Law and the recent Supreme Court case of Hagahuno v Tuke (2020) SC2018.

(2)	The Petition is accordingly dismissed for non-compliance with s 208(a) of the Organic Law with appropriate orders for costs.

Cases Cited

The following cases are cited in the judgment:

Fairweather v Singirok (2013) SC1293
Hagahuno v Tuke (2020) SC2018
Ludger Mond v Jeffrey Nape (2003) N2318

Counsel:

G Geroro, for the Petitioner
W Steven for the First Respondent
S Kunai for the Second Respondent

RULING

2nd May, 2023

1.	NAROKOBI J: The Petitioner has challenged the results of the Manus Provincial seat, alleging bribery by the First Respondent, contrary to s 215 of the Organic Law on the National and Local-Level Government Elections (Organic Law).

2.	Both Respondents have filed Objections to the Competency of the Petition, stating non-compliance with s 208(a) of the Organic Law on the basis that the Petition has been inadequately pleaded. Section 208 of the Organic Law states:

208. Requisites of Petition.

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).

3.	The Respondents say that the Petition does not adequately state the facts as required by s 208(a) of the Organic Law. Section 210 states that a Petition shall not be heard unless it has met all the requirements of ss 208 and 209 of the Organic Law. The latter provision relates to paying of a security. What the Respondent take issue with is the following pleadings in the Petition at paragraphs five and six:

5.The Petitioner claims that on or about June 2022 and the preceding days prior to the polling days for the Manus Provincial seat, the First Respondent gave certain individuals who would vote in the upcoming 2022 National General Election monies and goods in order to induce them to endeavor to procure votes or to vote for the First Respondent in the upcoming 2022 National Genersl Election.

6.The Petitioner alleges that as a direct result of the First Respondent bribing voters in the months and days prior to the 2022 National General Election, the First Respondent was declared by the Manus Provincial Returning Officer Tony Balema on the 29th day of July 2022 in Lorengau, Manus Province as the successful candidate for Manus Provincial Electorate.

4.	Both Respondents say that the Petition is vague, ambiguous and lacking in particulars. They say that the following are the elements of the allegation of bribery, having regard to the seminal case of Hagahuno v Tuke (2020) SC2018:

1)	The date of commission of the alleged offence of bribery;
2)	The name of the offender;
3)	The name of the person bribed;
4)	That the person bribed was an elector;
5)	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
6)	The winning candidate was in fact a candidate at the time of the alleged offence.

5.	The Respondents submits that the Petition contains none of these elements of the allegation of bribery, except for naming the alleged offender, that is the First Respondent.

6.	In the Respondent’s submissions, following the case of Hagahuno, it is essential to plead all these elements of the allegation of bribery.

7.	The Petitioner as I understand him, accepts that he has not pleaded all the material facts of the allegations. He, however, refers to certain passages of Hagahuno that provides the principles behind which the Supreme Court took the view that it did, especially the requirement to do substantial justice to the consideration of an election petition as required by s 217 of the Organic Law, and by giving a fair, large and liberal interpretation to that provision (Constitution, schedule 1.5) and submits that it is binding on the National Court.

8.	The Petitioner submits that his Petition meets the challenge of the Respondents such as to enlivens the jurisdiction of the National Court to proceed to trial.

9.	In my view, enlivening the jurisdiction of the National Court is only possible if the material facts constituting the allegations are pleaded. The rationale behind this is to ensure a level playing field, so that each party can come prepared to engage as it were.

10.	Whilst it is often said that requiring material facts is dwelling into typical lawyering and nit picking, each case must be decided on its own merits. As the Respondents submits, allegations of bribery are serious allegations (Fairweather v Singirok (2013) SC1293), and it will result in the name and integrity of the person alleged to have done it, being tarnished, and called into question in the eyes of the public, especially of a leader, who trades in his reputation to retain the confidence of the people at each national general election. So, when balancing the obvious right of the Petitioner to come to court, the duty to ensure that it is a meritorious case rest on him and cannot be resiled from.

11.	It is not an overly complex and complicated task to simply state circumstances surrounding the allegations, that is, by stating the date when it happened, where it happened, who offered the bribe, whether it was done with the knowledge and authority of the winning candidate. In light of the Hagahuno case, and speaking for myself, it will not be held against the Petitioner if these details are stated, but not in the usual robust drafting style of lawyers.

12.	It is often said that pleadings drive the evidence (Ludger Mond v Jeffrey Nape (2003) N2318). This is true. But at a more fundamental level, the underlying principle in all forms of litigation, subject to few exceptions, requires observance of the principles of natural justice – the right to be heard. A party brought to court, must know what it is that is compelling him to come to court, so that he or she can come prepared to answer the allegations. In this case, a person was alleged to have been bribed by the First Respondent. It will be an onerous task for the First Respondent to defend himself if he does not know what he must answer to. It is no answer to his right to defend himself, for the Petitioner to say that he was a layman. It is also no answer to say that he has already filed his evidence.

13.	As the Respondents correctly submitted, the essential facts as found by Hagahuno (referring to the headnotes) that must be pleaded to maintain the allegation of bribery are:

(4) As to the facts that are to be stated in support of allegations 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 of bribery, 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. Here the petition stated the necessary details, sufficient to put the respondents on notice what the allegations were, and result in a fair trial.

14.	I am not persuaded by the Petitioner as to how I should adopt the passages that he refers to in Hagahuno over this requirement referred above. In my view this is the ratio decidendi of Hagahuno. Substantial justice under s 217 of the Organic Law, is both a sword and a shield. That is to say, it works both ways. It allows the courts to consider meritorious cases, and it creates a level playing field for the Petitioner to bring his allegations and the Respondents to respondent to them for an even contest. In this way substantial justice is achieved.

15.	Here the allegation is based on guesswork. Of all the essential elements of bribery, only one is pleaded. There is simply too much lacking in material particulars for me to consider how I can cure the defects so to speak by application of s 217 of the Organic Law as interpreted by Hagahuno. The Petitioner has not availed himself of the opportunity to amend the Petition. In my view, substantive justice requires a level playing field. As the pleadings stand, it will not be a level playing field. The First Respondent would have great difficulty assembling his evidence because the allegation does not state the material or essential facts of the offence of bribery. A fair trial will not be possible as the allegation in the Petition does not state what occurred and who was or were involved. For this reason, I have reached the conclusion that the Petition must be dismissed with appropriate orders for costs.

16.	On the issue of costs, I accept the Petitioners submissions that he drafted the Petition himself, so I will limit the costs to K5,000, which means that the K5,000 deposit will be forfeited and shared equally by the two Respondents.

17.	The orders I now make on account of my findings are therefore:

1)	The Petition is dismissed in its entirety for non-compliance with s208(a) and s 210 of the Organic Law on National and Local Level Government Elections (Organic Law).
2)	The Petitioner’s security of costs paid pursuant to s 209 of the Organic Law is forfeited and converted to costs of the Respondents which shall be shared equally between them.
3)	Time for the settlement of the orders is abridged to the date of settlement which shall take place forthwith.

Judgment and Orders accordingly.
________________________________________________________________
Geroro Lawyers: Lawyers for the Petitioner
Taito Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondents