In the Matter of The Organic Law on National and Local-Level Government Elections; Yagama v Wan [1997] PGNC 134; N1692 (16 October 1997)

Unreported National Court Decisions

N1692

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP NO. 29 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
IN THE MATTER OF THE DISPUTED RETURN FOR THE USINO BUNDI OPEN ELECTORATE
BETWEEN: ANTON YAGAMA
PETITIONER
AND: GEORGE WAN
1ST RESPONDENT
AND: THE ELECTORAL COMMISSION
2ND RESPONDENT

Waigani

Sawong J
13 October 1997
16 October 1997

ELECTION PETITION - application to strike out petition - Compliance with s. 208(a) of the Organic Law on pleading grounds and pleading facts - Election Petition – all egations of undue influence - bribery.

Counsel

Mr. L. Senar, for Petitioner

Dr. A. Marat,, for First Respondent

Mr. D. Steven, for Second Respondent

16 October 1997

SAWONG J: This is a Petition disputing the election of the First Respondent as member for the Usino-Bundi Open Electorate in the National Parliament in the recent 1997 National Elections.

The respondents in particular the First Respondent have by Notice of Motion moved to strike out the whole of the allegations in the petition on the basis that the Petition does not comply with s. 208(a) of the Organic Law on National Elections.

Dr. Marat has argued that the Petition has not pleaded certain essential elements of the offences of bribery or undue influence. He submitted that these certain essential elements are relevant material facts have not been pleaded, and therefore the petition fails to comply with s. 208(a) of the Organic Law.

As to what facts are required has been determined by the National and Supreme Courts in various cases. The main statements to guide us are set out in Holloway -v- Ivarato [PNGLR] 463, which followed and applied the principles enunciated in Biri -v- Ninkama [1982] PNGLR 342.

The allegations in the Petition alleged bribery or attempted bribery or undue influence by the First Respondent and or his agents and servants with his full knowledge and or authority to procure his election. It has been submitted that to establish and maintain the grounds of bribery as set in paragraphs 1.1 to 1.3 inclusive of the Petition, the petitioner must not only state the ground of bribery or attempted bribery, but must specifically plead the facts going to the elements of the offence. The case of Agonia -v- Karo supra, sets the clear analysis of the principles to be considered when considering allegations of bribery. In that case the Court considered and analysed carefully what are the sufficient material facts when an allegation of bribery is made.

It is well established that petitioning on the basis of bribery or attempted bribery or undue influence, is in fact a charge that the election should be overturned because a criminal offence has been committed. It is also settled that only one act of bribery or undue influence to invalidate an election. Consequently as the offence of bribery, attempted bribery or undue influence in an election is in effect the criminal offence then any such allegation must state or plead all the relevant material facts to establish each element of such an offence. This would entail, in my view, the necessity to state in clear and unambiguous terms the elements of that offence.

I now turn and apply these principle and consider each of the grounds and the allegations. In ground 1.1 & 1.2 the Petition alleges that the First Respondent and his servants and agents committed bribery or attempted bribery to induce voters to vote him.

Dr. Marat submits that by pleading “ many others” in the pleading is too vague. He submitted that the pleadings as set out do not show or state the essential and material elements of the offence of bribery. Consequently, he submitted that this pleading be struck out.

Mr. Senar on the other hand submitted that the pleading as state set out clear the facts and elements of the offence of bribery. Consequently the pleading should remain.

I consider and accept Mr Senar’s submission. In my view looking at the pleadings as it is stated in paragraph 1.1, show clearly the facts. I consider that the pleading as pleaded must be read together and once one does that it would be quite clear. I do not accept Dr. Marat’s submission. If one does what Dr. Marat urges, that is to look at each of the sentences or words separately, it would in my view create confusion and will not make any sense.

In the present case, the petitioner has stated the names of the electors, the date of the alleged act of bribery, who said and offered the bribes and the names of the recipient electors.

In my view these allegations as pleaded clearly state the relevant material facts. In the circumstances these grounds must remain and go to trial. I refuse the respondents application.

Ground 1.3. In this ground it is alleged that the First Respondent’s agent, at a village attempted to bribe unknown number of villagers by collecting their names with the intention of giving them food.

I consider that these ground cannot remain because it is too general and it does not state the names of the villagers and whether those villagers were electors. This ground is dismissed.

Ground 2.1 alleges undue influence allegedly committed by the servant and or agent of the First Respondent upon an eligible voter. The pleadings state the relevant material facts as to where, and who committed the act of undue influence and upon an elector. I consider that pleadings as pleaded state the material facts. Consequently, this ground must remain and go to trial.

The end result is that the only ground struck out is ground 1.3. Ground 1.1, 1.2 and 2.1 are to remain and be tried.

In the circumstances, the question of costs is reserved.

Lawyer for the Petitioner: Lucas Senar & Associates

Lawyer for the 1st Respondent: Marat Lawyers

Lawyer for the 2nd Respondent: Maladinas Lawyers