Dusava v Waranaka [2008] PGNC 71; N3367 (19 March 2008)

N3367

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP NO. 22 OF 2007

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

IN THE MATTER OF THE DISPUTED RETURN FOR THE YANGORU-SAUSSIA ELECTORATE IN THE 2007 GENERAL ELECTIONS

BETWEEN:

GABRIEL DUSAVA
Petitioner

AND:

PETER WARARU WARANAKA
First Respondent

AND:

FRANK UONE
Second Respondent

AND:

ANDREW TRAWEN,
PAPUA NEW GUINEA ELECTORAL COMMISSIONER
Third Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Wewak: Manuhu J
2008: 17 & 19 March

PARLIAMENT – elections – objection to competency – failure to plead facts – relevant principles on allegation of bribery – objection dismissed.

Cases Cited.

Delba Biri v Bill Ninkama [1982] PNGLR 342
Dick Mune v Anderson Agiru (1998) SC590
Holloway v. Ivarato [1998] PNGLR 88
Raymond Agonia v. Albert Karo and Electoral Commission [1992] PNGLR 463.

Counsel:

F. Alua, for the Petitioner.
T. Sirae, for the First Respondent.
R. William, for the Second, Third and Fourth Respondents.

19 March, 2008

1. MANUHU, J: Introduction: This is the ruling on the objection to competency of the petition within which the petitioner alleges five (5) instances of bribery, and; consequently, seeks, pursuant to Section 215(1) of the Organic Law on National and Local-Level Government Elections (Organic Law), to void the election of the First Respondent as the duly elected member for Yangoru-Saussia Open Electorate, East Sepik Province, in the 2007 General Elections.

2. The respondents, pursuant to section 208(a) of the Organic Law, are challenging the competency of the petition on the basis that the petition does not set out the facts relied on to invalidate the election in that it does not properly plead facts establishing the essential ingredients of each allegation of bribery. That is the main issue.

3. It is necessary to set out the legal principles relevant to the pleadings on an allegation of bribery in a petition. These principles are important in the subsequent consideration of the respondents’ objections to competency of the petition.

Principles on pleadings

4. The starting point is the Organic Law itself particularly section 208. Section 208 (a) provides that a petition "shall set out the facts relied on to invalidate the election or return." The provision is mandatory.

5. The rationale is explained in the case of Delba Biri v Bill Ninkama [1982] PNGLR 342. At page 345, the Supreme Court said:

"An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

6. In a petition, therefore, the facts "must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved": Holloway v. Ivarato (1998) PNGLR 88.

7. Bribery, which the petitioner alleges, is a criminal misdemeanour under section 103 of the Criminal Code and is a ground for the voiding of elections under section 215 (1) of the Organic Law. Section 103 provides:

"A person who—

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, 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 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, 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 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 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." (emphasis in bold mine)

8. On the question of pleading an allegation of bribery, Sheehan J, in Raymond Agonia v Albert Karo (above) said:

"Without analyzing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election."

"It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on "account of", or "in order to induce", or "with the intent that", are all phrases that show that the purpose of offering the inducement is an element of the offence. .....

"In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegation that this money, that property, or that gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."

9. The petitioner has specifically pleaded sections 103 (a) and (d). It is important to note that in an allegation of bribery under section 103 (a), it is not necessary to plead how the elector voted or acted on the money received from the candidate. There are two reasons for this.

10. First, how the receiver of a bribe conducted himself is not an element of section 103 (a). Under subparagraph (a), it is bribery when "A" gives money to "B" to unduly secure "B’s" vote for "A". The crime of bribery is complete there and then. Whether "B" carried out the desired act and voted for "A" is not relevant.

11. Similarly, in a bribery allegation under section 103 (d), it has to be pleaded that the money given was intended by the candidate for distribution to other electors. His intention is the element. Whether the money was distributed is not relevant and need not be pleaded. It is bribery when "A" gives money to "C" with the intent that such money will be applied to unduly influence "B" to vote for "A". The crime of bribery is complete there and then.

12. Secondly, bribery, if established, will automatically render the election void, regardless of whether the result would have been affected by the bribery. Section 215 reads:

"215. Voiding election 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."

13. The effect of an act on the result is relevant only under section 215 (3). It is not relevant if the candidate is guilty of bribery. The rationale is clear. Candidates should not bribe the voters. A candidate who bribes the voters is not worthy of holding a leadership position in Parliament. Section 215 (1) seeks to weed out bribery and undue influence by candidates in elections, which is a good thing. Section 215 (1) sets a very high standard for a person wanting to be his people’s representative. It is, therefore, not necessary to plead how the person or persons bribed conducted themselves or voted during the election.

14. Furthermore, the Supreme Court has stated that it is not necessary to plead the law in the petition. In the case of Dick Mune v Anderson Agiru (1998) SC590, the Supreme Court said:

"The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers."

15. Bearing all the above principles in mind, the Court will take a practical approach in its consideration of the objections. It is necessary to demand clarity of facts to facilitate identification of relevant issues. At the same time, in considering the objections, the Court will be guided by substantial merits and good conscience taking into account that each case must be decided on its own merits.

Consideration of Objections

16. The five bribery allegations are pleaded in Fact 2, Fact 4, Fact 5, Fact 6 and Fact 7.

Fact 2: Bribery of Marcus Paringu

17. Paragraph 2 quotes the First Respondent saying to Marcus Paringu: "hey, why do you not want to stay with us little people and you stay with Dusava?" This, it is submitted, is evidence and not material facts.

18. I have considered the objection and am of the opinion that substantially what the First Respondent is alleged to have stated is relevant and brings the issue of bribery to the fore in that the K50.00 was given at the time those words were allegedly uttered by the First Respondent.

19. Paragraph 6 alleges that Marcus Paringu received K50.00 from the First Respondent and spent it. He voted for the First Respondent. His son and daughter also voted for the First Respondent because Marcus Paringu told them to do so. Paragraph 6 is also challenged on the basis that it amounts to illegal practice and not bribery. I disagree, with respect. What is alleged in paragraph 6 fits with the definition of bribery under Subparagraphs (a) and (d) of Section 103.

20. It is also submitted that Fact 2 does not allege that Marcus Paringu was an elector. The petitioner concedes but paragraph 7 of Fact 2 alleges that Marcus Paringu actually voted for the First Respondent. That, in my view, is sufficient demonstration that Marcus Paringu was an elector.

21. In addition, Fact 2 does not create any confusion. It is specially pleaded that on 7th June 2007 at 10.00 am, at Wamaian Village, in the Numbo LLG area of the Yangoru-Saussia Open Electorate, the First Respondent, who was already a candidate, gave K50.00 to Marcus Paringu and asked the receiver to think of him. Marcus Paringu used the money and, being an elector, actually voted for the First Respondent. Marcus Paringu also told his son, Bradley, and daughter, Anneth, to vote for the First Respondent which they did. It is suggested that Marcus Paringu was initially a petitioner’s supporter. It is alleged that this amounts to bribery.

22. There is nothing confusing or unreasonable about the pleaded facts. In the circumstances, the objection against Fact 2 is dismissed.

Fact 4: Bribery of Ingian Noah Kuhune

23. It is pleaded under Fact 4 that on Friday 28 June 2007 at about 3.00 pm, the First Respondent arrived at Niakandogum No. 2 Village in the Yangoru-Saussia Open Electorate and gave K50.00 and his election poster to Ingian Noah Kuhune who was an elector. It is pleaded that this amounts to bribery.

24. It is firstly submitted that Fact 4 does not state if the elector actually voted for the First Respondent. As I have earlier indicated, whether the elector acted in favour of the First Respondent and voted for him, which is a secret process, is not relevant, especially at this stage. It is also argued that Fact 4 fails to refer to the relevant law to support the allegation of illegal practice. Illegal practice is, however, not pursued by the petitioner but it is not necessary to plead the law.

25. The objections against Fact 4 are, therefore, without merits.

Fact 5: Bribery of Alois Maniura

26. It is pleaded under Fact 5 that between about 10.00 am and 12.00 noon, on 28th May 2007, the First Respondent drove to Huaindua Village in the Yangoru-Saussia Open Electorate to attend one of his political campaign gatherings. The First Respondent gave K3,800.00 in cash to Ward Member Soli Warahambe and Alois Maniura, an elector. The K800.00 was for the payment of a pig slaughtered for the occasion. The K3,000.00 was the First Respondent’s contribution to a customary compensation payment for two deaths in 2003 and 2004. It is alleged that these acts constitute bribery.

27. It is contended that the purpose for the payment of K3,800.00 is not illegal or unlawful. The bribery allegation cannot, therefore, be sustained. The allegations under Fact 5, however, fits with Subparagraph (d) of Section 103. It is bribery when "A" gives money to "C" with the intent that such money will be applied to unduly influence "B" to vote for "A".

28. The argument against Fact 5 is, therefore, also without substance.

Fact 6: Bribery of Oscar Manihao

29. Fact 6 pleads that on 14th May 2007 at 12.00 noon at Maringei Village in Yangoru-Saussia Open Electorate, the First Respondent gave K2,000.00 to Oscar Manihao, an elector, on behalf of the auxiliary. It is alleged that this constitutes bribery.

30. It is contended that Fact 6 does not identify "other electors" as alleged. Fact 6, in my view, is substantially consistent with Section 103 (a) and (d). As I have repeated, it is bribery when "A" gives money to "C" with the intent that such money will be applied to unduly influence "B" to vote for "A".

31. Accordingly, the argument against Fact 6 must fail.

Fact 7: Bribery of Juliana Saisehunie

32. Fact 7 pleads that at about 1.00 pm on 24th June 2007, the First Respondent promised Juliana Saisehunie, an elector, and a women’s group that he would deposit K5,000.00 into their bank account upon winning the election. A week earlier on 16th June 2007, a Joseph Wanji, a campaign manager for the First Respondent, had told the people from the said village that they contribute K5.00 each and open an account with the East Sepik Savings & Loans Society. The First Respondent would later top up their account with K5,000.00. It is alleged that this constitutes bribery.

33. It is argued that paragraph does not plead names of families and groups and "other electors". In my view, it is sufficient that Juliana Saisehunie is named as an elector to whom a promise was made by the First Respondent.

34. The objection against Fact 7 is also without merit.

35. In all of the five allegations of bribery, I am satisfied of the following:

• the First Respondent is named.
• the First Respondent is named as a candidate.
• the First Respondent’s relationship with persons allegedly bribed is explained.
• the persons allegedly bribed are named.
• the persons allegedly bribed are identified as electors.
• the persons allegedly bribed are electors in the Yangoru-Saussia Open Electorate.
• the dates are specified.
• times are specified.
• places are specified.
• amounts of money given or promised are specified.
• the elements of bribery are particularized.
• the intention of the First Respondent is pleaded.
  

36. All of these, in my view, constitute substantial compliance with section 208 (a) of the Organic Law. To dismiss a petition which has substantially complied with Section 208, as is the case here, would result in a serious injustice and, for that matter, could undermine efforts to safeguard the election process and ensure that elections are conducted in a fair and in a democratic manner.

Conclusion

37. In the final analysis, this is merely a competency issue. The allegations may or may not be proved in the substantive hearing where the standard of proof is quite different. Any finding here, therefore, is without prejudice to any party.

38. Be that as it may, there are substantial merits in the pleaded facts of the five allegations of bribery warranting a substantive hearing. The petition should proceed to substantive hearing on the five bribery allegations. The objection to competency is, accordingly, dismissed with agreed or taxed cost.

Orders accordingly.
__________________________

Harricknen Lawyers: Lawyer for the Petitioner
Henaos Lawyers: Lawyer for the First Respondent
Nonggorr & Associates Lawyers: Lawyer for the Second, Third and Fourth Respondents