Re the Komo-Magarima Open Parliamentary Election; Kaiabe v Makiba [1989] PGNC 8; N723 (5 June 1989)

Unreported National Court Decisions

N723

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 111 OF 1987
IN RE KOMO-MAGARIMA OPEN PARLIAMENTARY ELECTION
ALUAGO ALFRED KAIABE
-V-
MARABE MAKIBA

Mendi & Waigani

Amet J
13-23 March 1989
21 April 1989
24-25 April 1989
5 June 1989

AMET J: This islection petition bron brought pursuant to s. 206 of the Organic Law on National elections by Mr. Aluago Alfred Kaiabe who was a candidate in the 1987 general elections for the Komo-Magarima Opectorate. Mr. Marabe Makibaakiba was duly elected with 5280 votes from a field of twelve candidates. Mr. Kaiabe was runner-up with 4373 votes and their nearest rival polled 2640 votes. A total of 15517 votes were cast.

Mr. Kaiabe, the petitioner, disputes the validity of the election of Mr. Makiba specifically under s. 215(1) of the Organic Law. Section 215(1) provides that:

“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.”

The six grounds of the petition finally relied upon by the Petitioner allege both bribery or attempted bribery and undue influence or attempted undue influence. I will refer to them by the number and in the order in which they were pleaded in the petition. I paraphrase the grounds for convenience.

1B. Oabout 24th April 1987, at7, at Magarima station, after nomination the Respondent unduly influenced or attempted to unduly influence voters by making false and misleading statements in general and of the Petitioner to a crowd of over one thousand (1000) people. (alleged statements was pleaded).

1F. On Thursday 18th June 198 , at Kangulu in Komo the respondent gave K80.00 in cash to five voters and at the same time made false and misleading statements generally and o Petir theundulluencing and or bribing said said votervoters.

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2A. That on or about th 6thth 15th June 1987, the Respondent gave a National Development Fund (NDF) cheque valued at K600 to two members representing the congregation of TiCathohurchhe pre of about 200 people therebyereby undu unduly inly influenfluencing or attempting to unduly influence or bribing or attempting to bribe voters.

2C. ټ That on or boor bout 20th June 1987, the Respondent gave an NDF cheque valued at K400.00 to a Pastor Tigi on behalf of the congregation of Migili Local Church, thereby unduly influencing or attempting to unduly influen bribing or attempting to brto bribe voters.

2D. ҈ on or abor about thut the same date the Respondent gave another NDF cheque valued at K600.00 to one Wai Hago thereby unduly influencing or attempting to unduly influence or bribing or attng toe him and other vher votersoters.

5. &##160; That on or about 29ut 29 June 1987 Messrs. Aya Dabuma and Tiabe Benalia, with the Respondents knowledge and/or authority gave K23.00 to one Kawai Habela thereby unduly influencing or brisaid Habed other vote voters.

I propose to deal with the issues of facts relating to these grounds and then refer to the principles of law and apply them as might be necessary and relevant. I propose to deal with the three grounds relating to the use of NDF cheques first.

GROUNDS 2A, 2C AND 2D

I am satisfied that these cheques were paid out by the Respondent to bona-fide church and local business groups upon their request for financial help to the Respondent as the sitting Member of Parliament. That of course is a legitimate government function. The Petitioner had taken issue with the timing of the payments by the Respondent and the manner in which he made the payments, using them as electioneering tools unfairly. For the same reasons I expressed in dismissing similar allegations in M.P. 96 of 1987 in the petition of Brian Campbell -v- Arnold Marsipal in the Manus Provincial Electorate I dismiss these three grounds, as not being sustained. I cannot be entirely satisfied that the Respondent ‘unduly influenced’ or ‘bribed’ any of the voters, the receipients and beneficiaries of the cheques. I consider it morally and ethically wrong but I cannot attach an almost criminal consequence of undue influence to the practice. I do consider however that if a sitting M.P. did receive the cheques in plenty of time but simply kept them to use for electioneering purposes, it may amount to undue influence or bribery.

GROUND 5.

In relation to this ground, as I indicated to lawyers in their final addresses, even if the truth were as the Petitioner has alleged I could not find that that amounted to undue influence or bribery, for the simple reason that it is a perfectly legitimate electioneering practice for a candidate to give money to campaign managers and their teams to campaign for him. This ground is therefore dismissed.

This then leaves the first two grounds 1B, and 1F. Though they do relate in relation to the allegations of reference by the Respondents to the character of the Petitioner and other Highlands leaders of the past and present, I will deal with them seperately and then combine my conclusions on them.

GROUND 1B

On the 24th April, 1987, at Magarima station some candidates from the Magarima constituency of the electorate nominated. Amongst them was the Respondent. There were variously described as being between 1000 to 3000 people supporting the various candidates present to witness the nominations. Following the nominations several candidates made campaign speeches. The Respondent, as the current sitting member appeared to have the largest group of supporters. He made a speech first.

In the course of this speech, it is alleged that the Respondent made reference to some of the services which have been provided to the Magarima constituency, since he was their Member of Parliament, and that it was he who brought these developments to the district. He mentioned the Magarima District office complex, the Magarima High School, and the Kants Health Centre as examples of the development he had brought to the district. It is alleged that the Respondent had said that the contest for the seat was like war between the Huli’s and the Magarima’s and that if the people didn’t vote for him and a Huli constituency candidate was elected, the part-completed projects would be discontinued, and the developments such as the District Office, Health Centre and High School would all be removed to the Huli area and Magarima would return to being bush.

It is alleged also that the Respondent had made reference to some of the educated candidates including the Petitioner and some former school teachers and also referred to Mr. Kindi Lawi, the former M.P. for Western Highlands Province who was convicted and imprisoned for misappropriation and current Koroba-Lake Kopiago M.P., Mr. Aruru Matiabe who was at one time accused of misappropriating NDF money. The Respondent, it is alleged, said people should not vote for educated candidates such as the Petitioner because they would end up misappropriating government money like Mr. Lawi and Mr. Matiabe.

The petitioner called two witnesses only in support of these two main allegations, Mr. Peter Purially, one of the candidates, and a United Church Pastor Rev. Clarence Kapali. The Respondent himself gave evidence denying the allegations and called another United Church Pastor Rev. Aya Dabuma, who was a member of the Provincial Government and also campaign Manager for the Respondent. He too denied the Respondent ever made any such statements.

GROUND 1F.

In this ground the Petitioner alleges that the Respondent went to Kangulu Village/Station which is past Huli constituency, the Petitioner’s area, and deep into the Komo constituency, very late at night in the very early hours of the next day about 2.00 a.m. He did so with ulterior motives, it is alleged. The Petitioner alleges that the Respondent arranged for the attendance, at his school teacher cousin Wilson Pawa’s house, of three reknown persons from the area namely Pastor Arawi Tombaya, Dambali Hago and Pani Waralogo. These three men went to Wilson Pawa’s house, an hours walk from where they were sleeping in one Samson Pulube’s house.

These three men said the Respondent gave to Pastor Arawi K80.00 in cash which Pastor Arawi shared giving K20.00 to each of the other two and took K20.00 for Samson Pulube. That in so doing the Respondent had told them to spread what he had told them. He is alleged to have made similar references to the fact of the Petitoner being educated, making similar remarks, as under ground 1B, about Mr. Kindi Lawi and Mr. Aruru Matiabe being educated and so people should not vote for the Petitioner and other educated candidates because they would end up like Mr. Lawi and Mr. Matiabe and misappropriate government money.

It is alleged also that the Respondent told the three men he gave money to that, because he was a lawyer, the Petitioner had arranged for the release of some warriors who were arrested by police following two tribal fights, and that if the Petitioner was elected he would cause a breakdown of law and order because the police have been demoralised and the people would return to paybacks and the like.

The Respondent called two witnesses in support of his denial of the Petitioner’s allegations; his cousin teacher Wilson Pawa and his campaign manager for the Komo area Pipe Paliabe. All three denied any such conversation taking place and that it was early in the evening about 7.00 p.m. that the Respondent arrived, and that he went to sleep at 10.00 p.m. He did not give any money to Pastor Arawi. He only gave K100 to Pipe Paliabe for his own use.

I do not propose to discuss the evidences of the witnesses in any depth. Several circumstancial primary facts should be stated at the outset which will lay the foundations for the conclusions of facts that I shall arrive at.

Firstly, I can take judicial notice of the fact that Mr. Kindi Lawi the former M.P. for Western Highlands was convicted and imprisoned by the National Court and subsequently affirmed on appeal, by the Supreme Court, for misappropriation of NDF moneys.

Secondly, I accept as a fact that the current M.P. for Koroba-Lake Kopiago was at one time previously accused of misappropriating government money.

Thirdly, both are educated national leaders from the Highlands region.

Fourthly the Petitioner is also educated, one of the few from his area. He is a qualified practicing lawyer.

Fifthly, prior to the elections there were two tribal fights in the Huli/Tari area between Pari and Kole clans and between Haro and Taraka clans. There were some four deaths in one of these fights and a number of warriors were imprisoned or taken into police custody, and the petitioner had secured their release from police custody lawfully.

Sixthly, the Petitioner had an earlier campaign poster with 3 policy statements upon which he ran. The third statement made specific reference to the Petitioners intention to work closely with Mr. Aruru Matiabe should he be elected, in the following terms:

“3. ҈ Makim Akim Alfred Aluago eayabe na mi ken wok wantaim lidaman olsem Yawale Kulu na Aruru Matiabe long karim developmen ikam long Duguba, Komo, Benalia, Hulia na Magarima.”

This translates into Englismean:

“Vote Alte Alfred fred Aluago Kayabe and I will work with leaders like Yawale Kulu and Aruru Matiabe to bring development to Duguba, Komo, Benalia, Hulia and Magarima.”

Seventhly, the Petitioner replaced the poster containing the above statement with one without the statement which referred to Aruru Matiabe.

The Petitioner said he replaced the earlier poster with that statement because he learned of the allegations that the Respondent was making derogatory statements about his association and stated desire to work with Mr. Aruru Matiabe should he be elected. The Respondent of course denied making any such statements. He denied specific knowledge of the statements on the Petitoner’s campaign poster, though he had seen the poster publicly displayed.

The Petitioner’s contention is that because he had publicly stated his intention to work with Mr. Aruru Matiabe, and because of the past allegations of misappropriation against Mr. Matiabe, the Respondent had used that association and past allegation to descredit him. Using the fact of his university education, the Petitioner alleges that the Respondent then used the other known fact of Mr. Kindi Lawi’s conviction and sentence for misappropriation and associated him, the Petitioner, with Messrs. Lawi and Matiabe and falsely told people that the Petitioner would also steal government money if he was elected.

The fact, which I have accepted, that the Petitioner did change his poster, EXH. ‘D’ to EXH. ‘E’, renders consistency with his allegation that he heard that the Respondent was using his education and stated intention to work with Mr. Aruru Matiabe against him by making the alleged false accusations.

In relation to the two grounds 1B and 1F, the witnesses for the Petitioner were Peter Purially, one of the candidates from the Magarima constituency, Rev. Clarence Kapali, a United Church Pastor, also from the Magarima constituency, and an APCM (ECP) Pastor Arawi Tombaya and two other witnesses Dambali Hago and Pani Waralogo, all from the Komo constituency. All these five (5) are independent unrelated witnesses.

The Respondents witnesses Wilson Pawa, is a cousin, Pipe Paliabe and Rev. Aya Dabuma were both campaign Managers. None of them can be said to be independent. I was not impressed with their evidence generally. I was not impressed with Rev. Aya Dabuma’s evidence and denials of his relationship with the Petitioner over the Petitioners wife. I was left with the distinct impression he was not being truthful and was evasive. This did not support his credibility.

I was not impressed with the Respondent’s denials of use of and reference to any of the candidates by name. That is I believe an untruth. There is no law against using and referring to other candidates by name. It is false and defamatory statements against such persons which is not permitted.

I accept the evidence of Peter Purially and Rev. Clarence Kapali, so far as it goes, that the Respondent did say words to the effect that if voters did not vote for him and he lost the services would be withdrawn and taken to the Huli area and that Magarima was going to become bush. I am satisfied that such words to that effect are manifestly untrue and misleading.

I find as a fact that the Respondent did say words to that effect with the intention that the people should believe it and act upon it.

I am also satisfied that the Respondent did make reference to Messrs. Kindi Lawi and Aruru Matiabe and the Petitioner’s educational background and his association with Aruru Matiabe. I am entirely satisfied, given the facts I have found that the Respondent did make statements to the effect deposed to by all of the Petitioners witnesses.

I am not able to find any reason why pastors Kapali and Arawi Tombaya, in particular, should lie about times and what they heard. They have no vested interest.

I further accept entirely the evidence of Pastor Arawi, Pani Waralogo and Dambali Hago about the meeting at Wilson Pawa’s house at Kanguiu. Again I cannot find any reason why they should lie about the time and what was said.

I cannot understand why they would swear that the meeting took place at 2.00 a.m. whilst the Respondent and Pipe Paliabe and Wilson Pawa insisted it was from 7.00 p.m. to 10.00 p.m. only.

I therefore find as facts established to my entire satisfaction the grounds alleged in 1B and 1F. I simply do not accept all the evidence of the Respondent and his supporters. None of them are independent.

The issues of law still remain whether what the Respondent said and did amount to or constitute “undue influence” as defined by s. 102 of the Criminal Code which reads as follows:

“102 & Undue Influence.

Any person who -

(a) ـ ..............

(b) &&##160; by force on e on fraud ntsvents or obstructs the free exercise of the franchise by a by an elector, or by any such means compels orces actor te or refrrom voting at an election, ..n, ...R.”

In re Menyama Open Parliameniamentary Election [1977] P.N.G.L.R. 298 Frost C.J. held that:

“(3) To ituteeunduluinfluence unce under s. 102 of the Criminal Code it will be sufficient to prove that a person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud fe pur therncludinluding a fg a false alse statement made by a person to an elector, known to be false or without belief in it’s truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the electors exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate.”

Applying this test to the evidence as I have found, I am entirely satisfied that the Respondent had made false statements to electors known to be false and without belief in it’s truth and careless whether it be true or false with the intention that the electors should act upon it, thereby preventing or obstructing the free exercise of their franchise. This amounted to undue influence. The petition therefore succeeds on grounds 1B and 1F.

The automatic consequence of this finding is that by virtue of s. 215(1) of the Organic Law I declare the election void. I shall direct the Registrar under s. 216 promptly to report this decision to the Speaker of Parliament and also the Electoral Commission.

I award the costs of the Petitioner against the First Respondent pursuant to s. 223 of the Organic Law and the deposit of K200 is to be returned to the Petitioner.

Lawyer for the Petitoner: Aluago Alfred Kaiabe

Counsel: Aluago Alfred Kaiabe

Lawyer for The Respondent: Blake Dawson Waldron

Counsel: Mr. K. Kua