Ariva v Kuta [2002] PGDC 11; DC207 (7 October 2002)

DC207

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 10 OF 2002.

In The Matter Of The Organic Law On National And Local Level Government Elections.

AND

In The Matter Of A Dispute Of Returns For The OKAPA LOCAL Level Government Council Elections For The Ofafina Ward Twelve (12).

BETWEEN

Kee Ariva And Six Others
Petitioner

V

Jason Kuta
First Respondent

Pai
Second Respondent

Electoral Commission
Third Respondent

GOROKA: MANUE F. Magistrate
2002: 12th September; 7th October

REASONS FOR JUDGEMENT

MANUE F: This is a Local Level Government Elections Petition filed by the

Petitioner of the 2002 General Elections. The Petitioner is disputing the return of the first Respondent as the duly elected Councillor of Ward 12 of the Okapa Local Level Government Council. He was duly declared Winner on the 10th July 2002.

GROUNDS OF PETITION:

The Petitioner relies on three (3) grounds to overturn this elections and they briefly are:- Bribery, illegal practices and undue influence.

The illegal practices relied on were that the first respondent made a mumu for his voters after the official date of close of campaign and that undue duress or influence was applied to Voters on the polling date.

The illegal practices and undue influence allegations were struck out prior to going for trial for non-compliance with Section 208 (a) of the Organic Law on National and Local Level Government Elections.

The Bribery ground went on for trial.

THE ISSUE:

Was there weight in the evidence for Bribery?

FACTS:

Facts relied on were wholly circumstances and hearsay.

Polling in the Eastern Highlands Province was scheduled and conducted on the 21st of June 2002.

Prior to the polling date, it was allege that on the 19th June of 2002, the first respondent was seen by several of the Petitioners witnesses going to other villages of the Ward, where the witnesses later learnt from reliable sources that the first respondent had been distributing some cash money to eligible voters of Ward 12.

The recipients of the money were not called as witnesses.

THE LAW:

Bribery is an indictable offence under Section 103 of the Criminal Code Act and for the benefit of the parties in these terms:-

Section 103 – Bribery

A person who: -

(a) gives, confers or procures, or promises of offers to give or confer, or to procure or attempt to procure, to, 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 of 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 at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

The Section incorporates a range of corrupt practices, which in several circumstances set out in the section may make out the charge of bribery.

EVIDENCE:

As stated earlier, evidence advised all hearsay and circumstances. The recipients of the monies paid as bribe did not appear as witnesses. The Court was entitled to admit the hearsay evidence liberally by reason of Section 217 of the Organic which is set out here:-

217: Real Justice to be observed.

"The .................... 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".

Having admitted all the evidence the questing now is whether I should require direct evidence to give weight to admissible evidence – Court for the charge of Bribery.

Bribery has always been held to be a serious matter. It carries a penalty, if found guilty of a fine of K400.00 or imprisonment for a term not exceeding one year.

Although I am at liberty to admit and give consideration to evidence by reason of Section 217 if my view that weight to admit evidence must be given by direct source of evidence.

The facts show that there was several recipients of the alleged bribe monies. All it requires was for the petitioner to call only one of them to establish and give weight to his allegations. Only one of as little as 01 toea to over turn and election. (See MICHAEL MEL V WILLIAM EKIP WII and ELECTIORAL COMMISSION [1993] NU98.

In the words of Frost CI at 304 (See Re MENYAMA OPEN PARLIMENTARY ELECTION, BOURNE V KOEFO [1977] PNGLR 298).

His Honour commenting on Section 217 of Organic Law said:-

"It is well established that such a provision is procedural Section. In clear terms it enables the Courts to act on evidence whether it is in accordance with the law of evidence or not. Accordingly, I would admit the evidence of the witness which was objected to on the ground of hearsay, but the question of weight remains for there is a clear distinction between the weight to be given to evidence which is direct and admissible in a Court of law and hearsay evidence".

May I say that, there is a danger in admitting hearsay evidence and disregard giving weight to it from direct sources of evidence. In Papua New Guinea, everyone who goes into elections, whether it be the National or the Local Level Government representation, each candidate has the mentality of always winning. There are no losers and they do not accept defeat.

Bearing in mind that, any Petitioner would do and say anything under the Sun to convince the Court. And so, we must be weary and take stock of what is being claimed.

Any petitioner may file any allegations under oath, by was of affidavits, and it the Court too liberally accept them, without the technicality of being tested of the witness. Stand, then, there is a real danger that anything said would send in order for them to get what they want.

In my view, there is no weight by way of direct evidence of the allege bribery and an not satisfied that an offence under Section 103 of the Criminal Code has been made out.

FORMAL ORDER:

The Petition is dismissed.

In Person: In Person
In Person: In Person