Sapau v Posangat [2013] PGNC 12; N4948 (10 January 2013)

N4948

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 06 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND
IN THE MATTER OF DISPUTED RETURNS FOR THE MANUS PROVINCIAL ELECTORATE

BETWEEN

MICHAEL T. SAPAU
Petitioner

AND

PARKOP POSANGAT
Returning Officer, Manus Provincial Electorate
First Respondent

AND

ANDREW TRAWEN
Electoral Commissioner, Papua New Guinea Electoral Commission
Second Respondent

AND

PAPUA NEW GUINEA ELECTORAL COMMISSION
Third Respondent

AND

CHARLIE BENJAMIN
Fourth Respondent

Lorengau: Sawong, J.
2 013: 09th & 10th January,

ELECTION PETITION – application to stop the trial – grounds of allegations of bribery allowed to proceed to trial – failure by petitioner to prove whether person allegedly bribed was a registered voter - failure by petitioner to prove essential elements of allegations of bribery – petition stopped and dismissed

Case Cited

Benny Diau v. Mathew Gubag [2002] SC775
Ben Micah v. Ian Ling Stuckey, N 1790
Desmond Baira v. Kilroy Genia, SC579
Neville Bourne v. Voeto [1977] PNGLR298
Nigel Agonia v. Albert Karo & Another [1992] PNGLR463
Gabriel Dusava v. Peter Waranaka [2008] N3368
Jimson Sauk v. Don Pombo Polye & Electoral Commission [1999] SC644
Daniel Kapi v. Takai Kopi [1997] SC548
Jim Nomane v. David Anggo [2003] N2354

Counsel

L. Yandaken, for the Petitioner
J. Kolkia, for the First, Second and Third Respondents
N. Kiuk, for the Fourth Respondent

10th January, 2013

1. SAWONG J: Introduction: This is a trial of an Election Petition involving the Manus Regional Seat. On or about 09 or 10 July 2012, counting for that Seat was completed and the First Respondent declared the Fourth Respondent, Mr. Charlie Benjamin as the winner for that Seat.

2. Mr. Benjamin scored 8,155 votes and the Petitioner, Mr. Sapau scored 7,412 votes, a difference of 743 votes.

3. Unhappy with the results, Mr. Sapau filed this petition, challenging Mr. Benjamin's win.

4. There were three (3) parts in the Petition. At the commencing of the hearing, the respondents challenged the competency of the grounds. As a result, all except one ground were dismissed as being incompetent. Only ground 1in Part C of the Petition was found to be competent and allowed to proceed to trial.

5. At the close of the Petitioner's case, the respondents have submitted separately that the trial should be stopped at this point of the trial. The Petitioner opposes that application.

6. This ruling is in relation to that application.

Evidence

7. The evidence for the Petitioner consisted of the oral and 3 affidavits of Willy Lawrence. No other witnesses were called and the Petitioner closed his case.

8. The three affidavits were tendered through him and were these:

1. Affidavit sworn 6th August 2012 and filed 22nd November 2012 – Exhibit P-1.
   
2. Affidavit of Willy Lawrence sworn 17th September 2012 and filed 21st September 2012 – Exhibit P-2.
   

100. Affidavit of Willy Lawrence sworn 31st August 2012 which is annexed as Annexure N21 to the affidavit dated 17th September as set out above – Exhibit P.3.
     

9. There is no issue that this Court has jurisdiction to hear and determine this kind of applications in an election petition when it is appropriate to do so. It is not the case that in every election petition such an application should be made. But is clear that this Court has the jurisdiction to hear and determine such an application. In Benny Diau v. Mathew Gubag [2002] SC775, the Supreme Court said at p. 8:

"We accept the proposition that the National Court has jurisdiction to stop an election petition trial on appropriate case, after the petitioner has closed its case, if the petitioner fails to an essential ground for invalidating the election result". See also Ben Micah v. Ian Ling Stuckey, N 1790, Desmond Baira v. Kilroy Genia, SC579.

10. It is necessary at the outset to set out some general principles before I proceed further. The first is that in an election petition the onus is on the petitioner to prove his or her grounds in the petition. See Neville Bourne v. Voeto [1977] PNGLR298.

11. Secondly where the grounds is or are based on bribery or undue influence or the like, the petitioner must produce evidence in proof of each and every element of that offence. Where the petitioner does not call any evidence in proof of an essential element of the offence, then that particular ground may be dismissed. See Ben Micah v. Ian Ling Stuckey (supra); Benny Diau v. Mathew Gubag (supra).

12. The principles of law relating to allegations grounded on bribery have been judicially considered and discussed in many Supreme and National Court decisions in this jurisdiction. These principles may be found in Raymond Agonia v. Albert Karo & Another [1992] PNGLR463, Ben Micah v. Ian Ling- Stuckey (supra), Benny Diau v. Mathew Gubag (supra), Gabriel Dusava v. Peter Waranaka [2008] N3368.

13. In Benny Diau v. Mathew Gubag (supra) the Supreme Court, considered a number of grounds which had been founded in bribery. In the National Court the trial judge dismissed some of the grounds as being incompetent and allowed three grounds of bribery to proceed to trial. After the petitioner's case was closed, counsel for the 1st Respondent made an application to stop the trial. He upheld the application and dismissed the remaining grounds as not being proved. Benny Diau, being aggrieved by that decision lodged an application to review the decision of the trial judge. The Supreme Court said this:

"The question before us is whether the trial judge erred in stopping the trial in the present case.

Ground 1.

In relation to the evidence of bribery on this ground, the trial judge made two points. First, the key witness, Sam Gawar who allegedly was offered the bribery was not called to give any evidence of bribery. Second, no evidence was called to prove that Sam Gawar was an elector as alleged. We consider that the lack of evidence on the second point is fatal. Whether or not there was bribery of Sam Gawar, the fact that he was not proven as an elector would have no impact on the result of the election. We do not find any error in stopping the case on this ground.

Ground 3.

This ground was dismissed by the trial judge on the same basis, namely, that Bill Bial who is alleged to have been bribed was not called to give evidence. There was no other evidence to prove this allegation. Further still no evidence was called to prove that Bill Bial was an elector for the Sumkar Open Electorate seat. Lack of evidence on both matters is fatal and it is pointless going on with the trial. We do not find any error in stopping the case on this ground.

One of the essential elements of the offence of bribery, is that the person said to have received that money, or this property etc must be an elector – a person registered to vote. If he or she is not registered to vote she/he cannot be an elector."

14. Mr. Kiuk and Mr. Kolkia have made several submissions urging the Court to stop the trial at this stage. The submissions made raise a number of issues. One of the issues is whether Willy Lawrence is a person registered to vote – an elector. I think this issue is critical to this ground being tried. I therefore propose to deal with this issue first.

15. Mr. Kiuk, first submitted that there was no evidence that Willy Lawrence is an elector. He submitted that the petitioner has not produced the Common Roll to show that the witness was indeed enrolled in the common roll as an elector. Further he submitted that, the witness did not state anywhere in his affidavits that Willy Lawrence was an elector registered to vote at Sori No.1 village, Ward 14 in the Bisikani – Sobaribei LLG polling area or anywhere else.

16. He submitted that it is an essential element of the offence of bribery that the petitioner must prove that the person alleged to have been bribed was an elector. He submitted that as there was no evidence that Willy Lawrence was an elector, the Petitioner has failed to prove an essential element of bribery, the Court should stop the trial now and dismiss the petition.

17. Mr. Kolkia made similar submissions on this aspect. He submitted that there was no evidence that Willy Lawrence was an elector.

18. Mr. Yandaken submitted that there was some evidence which suggest that Willy Lawrence was registered to vote as an elector and therefore the Court should not stop the case at this stage but call upon the fourth respondent and his witness to give evidence. He relied on a part of the Supreme Court judgment in Benny Diau v. Mathew Gubag (supra).

19. The Supreme Court in that case ordered a retrial on one of the grounds on the basis that there was some evidence that a witness who had signed an affidavit said that she was an elector and was given a certain amount of money on 16th June 2002, where as the pleading stated that it was given in 17th June 2003.

20. The Supreme Court said this at p.8:

"Ground 11

"The trial judge struck down this ground on the basis that there was variance with the pleading that the act of bribery was offered on 17th June 2003, whereas Miss Uleti in her affidavit stated that bribery was offered on 16th June 2002. This ground is to be distinguished from grounds 1 and 3. There is no issue about whether or not Miss Uleti is an elector. So far as the date on which the bribe was offered, it is a question of weight to be given to the evidence by Miss Uleti. In this regard, there was evidence of bribery offered on 16th June. Whether this should be believed is a matter that can be decided at the end of the trial. In this regard, the trial Judge should have allowed the trial to continue and ask the First Respondent if he wishes to call any evidence. In this regard, the trial judge erred in stopping the trial on ground 11. He should have allowed the trial to continue. We would allow this ground of review and direct that the trial should proceed on this ground."

21. The facts of that case are clearly different from the present case. There was no issue that the witness, Ms. Uleti was an elector. The only difference was the date and year the bribe was offered or given.

22. Here there is an issue of whether there is any evidence that Willy Lawrence is an elector, a person registered to vote.

23. In my opinion the point relied on by Mr. Yandaken does not fall squarely in this case. There is a difference of facts and or evidence between the evidence in Diau's case and this case. One of the differences is as I have stated above whether Willy Lawrence is an elector – a person registered to vote.

24. The onus is on the petitioner to prove each and every element of the offence of bribery. As regards the issue of whether Willy Lawrence was an elector, the simplest evidence would have been to produce the common roll for Sori No.1 village, Ward 14 Bisikani – Sobaribei LLG polling area or anywhere else for the Manus Regional Seat to show that Willy Lawrence was registered to vote – an elector. No such evidence was produced.

25. Secondly, Willy Lawrence does not state or say anywhere in his affidavits that he is a registered voter – an elector. Moreover, his first affidavit, exhibit P.1 is of no value at all simply because whilst the cover page has his name, the substance of it bears the name of someone else – called "Willey Eyiei". In cross-examination he said he was not Willy Eyiei. On that basis alone this affidavit is rejected. That leaves the other two affidavits – exhibits P.2 & P.3, but as I have said earlier, Willy Lawrence does not say anywhere in those affidavits that he is an elector.

26. Thirdly, in his sworn oral evidence in chief, he does not say that he was an elector.

27. Insofar, as this issue is concerned, the somewhat flimsy attempt by Willy Lawrence to say he was registered as voter, during cross-examination and re-examination, has demonstrated that indeed he was not registered. His belated attempt to suggest that he was registered under another name or that he is known by another name does not assist the petitioner's case. Jimson Sauk v. Don Pombo Polye & Electoral Commission [1999] SC644, Daniel Kapi v. Takai Kopi [1997] SC548, Jim Nomane v. David Anggo [2003] N2354, Ben Micah v. Ian Ling-Stuckey (supra).

28. In the final analysis, in my opinion there is no iota of evidence that Willy Lawrence is an elector - registered to vote, either at Sori No.1 village or anywhere else in the Manus Province. The petitioner has offered no evidence in proof of this essential element of the ground of bribery.

29. Therefore, I uphold the application and dismiss the remaining grounds of the petition. As there are no remaining grounds to proceed, the petition is dismissed.

30. In view of my conclusions on this issue, I do not consider it necessary to consider the other submissions advanced by the parties.

31. I make the following Orders:

1. Ground 1 of Part C of the Petition is dismissed.
   
2. The Petition, EP 6 of 2012 is dismissed.
   
3. The Petitioner shall pay the Respondents costs to be taxed, if not agreed.
   
4. The security deposit is to be shared equally between the respondents.
   

_____________________________---____________________________

Yandaken Lawyers: Lawyer for the Petitioner
Kimbu Lawyers: Lawyer for the First, Second & Third Respondents
Nikuma Lawyers: Lawyer for the Fourth Respondent