Nomane v Mori [2013] PGNC 240; N5059 (18 February 2013)

N5059

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP 69 OF 2012

IN THE MATER OF THE ORGANIC LAW ON NATIONAL & LOCAL LEVEL GOVERNMENT ELECTIONS AND;

IN THE MATTER OF THE DISPUTED RETURNS FOR THE CHUAVE OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS.

BETWEEN:

JIM NOMANE
Petitioner

AND:

WERA MORI
First Respondent

AND:

ELECTORAL COMMISSIONER
Second Respondent

Kundiawa: Gauli, AJ.
2013: 11, 12, 18 February

ELECTION PETITION – PRACTICE & PROCEDURE - Objections to competency – Grounds of – Insufficiency of pleadings – Allegations of bribery – Pleadings of relevant and material facts – Failure to plead the facts with clarity and sufficiently – Pleadings inadequate and insufficient – Objections upheld - Petition dismissed.

ELECTION PETITION – PRACTICE & PROCEDURE – Objection to competency – Preliminary application – Motion to transfer trial to another venue – A lawyer for different firm standing in for a lawyer having carriage of the petition – No more than one lawyer in election petition – Section 222 (2) of the Organic Law on National and Local Level Government Election – Application refused – Motion stayed until after the decision on objection to competency.

ELECTION PETITION – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Attestation of petition – Meaning of attests – purpose of – Petition incompetent – Organic Law on National & Local Level Government Elections – Section 208(d) & 210 – National Court Election Petition Rules, 2002 (as Amended) 2007 – Rule 15.

Facts:

This is an Election Petition of Mr. Jim Nomane, who was the runner up in the Chuave Open Electorate in the 2012 National Elections against the First Respondent Honorable Mr. Wera Mori (MP), who was returned the winner at the said election. The petition is grounded on nine (9) allegations of bribery. The Petitioner is seeking to void the election of the First Respondent that he was not a duly elected Member for Chuave Open Electorate, Chimbu Province, pursuant to Section 215 (1) of the Organic Law. The First Respondent then filed a Notice of Objection to Competency raising various issues of competency.

Held:

(a) The Petitioner failed to fully state the name of a particular Organic Law of which he was pleading s. 215 of the Organic Law.

(b) In pleading, bribery under s.103 of the Criminal Code Act, the Petitioner failed to plead specific subsections under s.103 the First Respondent is alleged to have committed since there are high range of bribery offences with varying elements to be established under this provision.

(c) The Petitioner failed to plead s. 102 of the Criminal Code Act in particular to cases where he alleged bribery that involved undue influence.

(d) The Petitioner sufficiently pleaded the addresses of the two attestingwitnesses but they have not provided sufficient details of their occupation, byfailing to name their employers and or their employment addresses.

(e) In all five bribery allegations, there are adequate pleadings of the First Respondent handing out money to specific person to dish out to the electors in their groups or Wards. However, there are insufficient pleadings as to when and where those persons who received the money from the First Respondent distributed or shared the money to the individual electors.

(f) The First Respondent's objections to competency is upheld.

(g) The Petition is dismissed in its entirety.

Cases Cited:

Korak Yasona v Castan Maibawa (1998) EP 21 of 1997
Korak Yason v Castan Maibawa (1998) SC 552
Miki Kaeok v Rimbin Pato & Or (2005) SC 877
Daniel Don Kapi v Samuel Abal (2005) N2859
Delba Biri v Bill Ninkama [1982] PNGLR 342
Powes Parkop v Wari Vele (No. 1) (2007) N3320
Robert Kopaol v Philemon Embel (2008) N3319
Michael Sapau & Ors v Charlie Benjamin & Ors (EP 06 of 2012) N4947
Sir Arnold Amet v Peter Yamah (2010) SC 1064
Kamma v Itamu (No.2) (2008) N3261
Peter Isoaimo v Paru Aihi & Ors (2012) N4921
Jim Nomane v David Anggo (No. 1) (2003) N2496
Sir Barry Holloway v Aita Ivarato [1988-89] PNGLR 99
Raymond Agonia v Albert Karo [1992] PNGLR 463
James Yoka Ekip & Simon Sanagke v Gordon Wimb, William Duma & Ors (2012) N4899
Paru Aihi v Sir Moi Avei (2003) SC 720
Philip Kikala v Nixon Mangape (EP 18 of 2012) (dated 18 January 2013)
Saonu v Dadae (2004) SC 763
Benias Epe Peri v Nane Petrus & Anor (EP 73 of 2003)
Allan Ebu v Roy Evara [1983] PNGLR 201
Roger Tongai Palme v Michael Mel & Ors (1989) N808
Milli v Gaima [1997] PNGLR 128
Polye v Sauk (EP 76 of 1997)
Francis Koimanrea v Electoral Commission & Paul Tiensten (2003) N2421

Counsel:

Mr. Kenneth Aisi, for the Petitioner
Mr. John Napu, for the First Respondent
Mr. Ray Williams, for the Second Respondent

RULING ON OBJECTIONS TO COMPETENCY

18th February, 2013

1. GAULI, AJ: This is an Election Petition of Mr. Jim Nomane, who was the runner up in the Chuave Open Electorate in the 2012 National Elections against the First Respondent Honorable Mr. Wera Mori (MP), who was returned the winner at the said election. The petition is grounded on nine (9) allegations of bribery. The Petitioner is seeking to void the election of the First Respondent that he was not a duly elected Member for Chuave Open Electorate, Chimbu Province, pursuant to Section 215 (1) of the Organic Law.

BACKGROUND

2. The Petitioner Mr. Jim Nomane and the First Respondent Honorable Wera Mori (MP) were both candidates for the Chuave Open Electorate in the 2012 National Election amongst 43 other candidates. The Writs were opened on the 18th of May and the polling commenced on the 7th July 2012. The First Respondent polled 4,501 first preference votes while the Petitioner polled 2,925 first preference votes, a difference of 1,576 votes. After all the elimination process, the Respondent polled 9,130 votes while the Petitioner was 5, 046 out of the total allowable votes of 15,872. The absolute majority was 7,937 votes being 50% + 1. On the 29th of July 2012, the Electoral Commission (Second Respondent) declared the Respondent Honorable Wera Mori member – elect for the Chuave Open Electorate.

3. The petition was filed on the 3rd of September 2012, within 40 days after the declaration in compliance to s.208(e) of the OLNLGE. The service was effected, directions hearing completed and the hearing of the petition fixed. The First Respondent filed a notice of objection to competency on the 11th of October 2012. On the 14th November 2012, the Second Respondent was granted to be joined as a party in the petition. On the 6th of February 2013, the Petitioner filed a notice of motion seeking orders for the hearing of the petition to be transferred from Kundiawa to Goroka, Eastern Highlands Province, pursuant to Rule 10 (1) of the National Court Election Petition Rules 2007 (as Amended). Finally, on 12th of February 2013, four of the nine allegations on bribery were effectively withdrawn during the submission on objection to competency.

PRELIMINARY APPLICATION

4. At the commencement of the submissions on objections to competency, Mr. P. Punau of Stevens Lawyers, who stood in for Manase Lawyers for the Petitioner, made a preliminary application that there is a motion on foot by the Petitioner seeking for orders to transfer the trial of this petition to another location. He requested if this motion be dealt with first. The Petitioner and his lawyer were not present at the time.

5. Mr. John Napu for the First Respondent objected to the preliminary application for two reasons. Firstly, in an election petition, there should be only one lawyer representing a party, not two lawyers, pursuant to Section 222 (2) of the Organic Laws on National & Local Level Government Elections, which said: "In no case shall more than one counsel appear on behalf of a party". Secondly, the Respondents have no notice of that motion until the ninth hour. Mr. Napu further submitted that the Petitioner is not present, he asked the Court to dismiss the petition for want of prosecution.

6. Mr. Ray Williams, for the Second Respondent, submitted that the petition raised number of issues. If the matter is briefed out to the other counsel then that should be okay to proceed with the petition. We do not know if the other lawyer is ready to proceed. In Korak Yanona -v- Castan Maibawa (1998) EP 21 of 1997, Sawong, J dismissed the petition for want of prosecution. In Daniel Don Kapi -v- Samuel Abal (2005) N2859, Sevua J (as he then was), stressed the importance of diligent prosecution of the petitions. The petitioner bears the heavy responsibility for the conduct of the petition. Mr. Williams referred to the case of Delba Biri-v- Bill Ninkama [1982] PNGLR 342, for the Court to be guided by the substantial merits and good conscience of the case to do justice.

7. The petitioner in his motion was seeking to have the trial of the petition transferred to another location. The National Court has power to transfer the hearing of the petition to another venue if the Court so determines, pursuant to Rule 10 (1) of the National Court Election Petition Rules 2007 (as Amended) 2007, which said: "A petition may be heard at the place where the petition was filed or at any other venue determined by the Court". Having heard from all the parties on the preliminary application, I orally ruled that the petitioner's motion be stayed until the issue on the objection to competency is dealt with.

8. In my respective view, such a motion to be heard if the Court decided otherwise that the petition will proceed into trial on the substantive matters. Once the trial of the petition is fixed to a particular location, the trial should proceed unhindered unless there are exceptional reasons. Both the Court and the other party have made commitments in terms of expenses on vehicle hire and accommodations already. To hear the motion to transfer the trial to another venue would be inconvenient for them. Since there is an objection to competency on foot, this Court must proceed to hear the issue on competency first for a simple reason that objection to competency does not require witnesses to be called. If the application on competency fails, then the court may have to determine the petitioner's application whether or not to transfer the trial of the petition to another venue. Further to that, Section 222 (2) of the OLNLGE does not require more than one lawyer to represent a party in the election petition cases. This Court would be seeing to be acting in breach of s.222(2) of the OLNLGE if the petitioner's motion is entertained now because that may appear that there are two different law firms representing the petitioner. The preliminary application to move the petitioner's motion is therefore refused.

9. The First Respondent submitted that the Court should dismiss the petition for want of prosecution. The petitioner and his legal representative were not present on the first day of the sitting because they have filed a motion to have the hearing moved to another location. That is to say that they have a reason for being not present. If they were absent without a reason, I would consider the application to dismiss the petition.

10. This Court has power to dismiss the petition for want of prosecution pursuant to Rule 18 of the National Court Election Petition Rules 2007 (as Amended), where the petitioner failed to do what he is required to do or he has not complied with any direction, the Court may on its own motion or on the application by a party dismiss the petition. The power to dismiss is a discretionary one and should only be exercised where the Court is satisfied that the petitioner has not complied with any of the directions given by the Court: see Miki Kaeok -v- Rimbin Pato & Ors (2005) SC 877; and Daniel Don Kapi -v- Samuel Abal (2005) N2856. In the letter mention case, Sevua, J (as he then was), held that: "(2) Where the petitioner failed to comply with the orders or directions issued by the Court, petition will be dismissed".

11. The case of Delba Biri -v- Bill Ninkama (above), is the case where it sought to amend the election petition at the time of the trial of the petition. The Supreme Court said that the National Court may allow the amendment of the petition which does not comply with all or any of the requirements of Section 208 of the OLN&LLGE where the application is made within the period of two months after the declaration of the result of the election. The Supreme Court also said that the National Court does not have the power to allow the amendment two months after the declaration of the results of the election. In the present case, the petitioner is not seeking to amend the petition, therefore the case of Delba Biri -v- Bill Ninkama (supra) does not apply here.

12. The decision in Korak Yasona -v- Castan Maibawa (above), as referred to by the Court for the Second Respondent, is a case where the petitioner had filed affidavits but failed to serve them during the directions hearing, resulting in the petition being dismissed. That decision went before the Supreme Court for a review and the Supreme Court dismissed the decision of the National Court and referred the petition for trial in the National Court: see Korak Yasona -v- Castan Maibawa (1998) SC 552.The scenario in the present case is quite different to that of Yasona -v- Maibawa (supra) therefore it is not applicable and the decision of Sawong, J cannot be said to be a case precedent. Given the circumstances as it is, the petitioner's absence from Court has a reason behind it. This Court would have done injustice to the petitioner to dismiss the petition at that stage. The application by the First Respondent to dismiss the petition was therefore refused.

OBJECTIONS TO COMPETENCY

13. This Part of the Petition covers three main areas on objections to competency. These areas are: (1) Statutory Basis; (2) Attestation of Witnesses and (3) Allegations on Bribery. I will deal with them in that order.

14. The First Respondent in his Notice of Objection to Competency raised two grounds. Firstly, the Petitioner invoked Section 103 of the Criminal Code instead of Section 215 of the Organic Law on National and Local Level Government Elections to nullify the Respondent's election victory. Secondly, the pleadings are insufficient therefore the whole petition is incompetent. The petition did not adequately set out the material and relevant facts he relied upon on the alleged briberies to invalidate the election.

15. After hearing submissions from the lawyers for the First and the Second Respondents, the proceedings were adjourned to allow the Petitioner to make available his submissions on objection to competency. It is only fair and just that the petitioner be given that opportunity to make available to Court his submission even if the petitioner and or his legal representative could not be present in court. Following the adjournment, Mr. Aisi Kenneth of Manase Lawyers for the petitioner has available himself the next day and present his submission in Court.

16. The First Respondent raised a number of grounds on an objection to competency based on the facts pleaded in the petition on allegations of bribery. The petitioner in his submission withdrew four out of the nine grounds of his petition, particularly Bribery Cases 1, 2, 4 & 7.

17. It is a trite law that, whenever an objection to competency is filed, the Court must deal with the issue on competency first before proceeding to trial on the substantive petition as the competency application always precedes the trial: see Powes Parkop -v- Wari Vele (No.1 ) (2007) N3320 and Robert Kopaol -v- Philemon Embel (2008) N3319. The jurisdictional basis on objection to competency of the petition is founded on Section 210 of the Organic Law on National & Local Level Government Election (OLNLLGE) and Rule 15 of the National Court Election Petition Rules 2007 (as amended). The law currently now in this jurisdiction is that a Respondent or the Court on its own volition may raise issues as to the competency on any ground in the petition: see Michael Chapau -v- Charlie Benjamin & Ors N4947, EP NO. 06 of 2012 dated 8th January 2013.

18. It is important that I should state the law on pleading as stipulated under Sections 208, 209 and 210 of the Organic Law. These provisions states:

208 Requisites of petition

A petition shall –

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a personwho was qualified to vote at the election; and

(d) be attested by two witnesses whose occupation and addresses are stated; and

(e) be filed in the Registry of the National Court in Port Moresby or at the Court house in any Provincial Headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

209 Deposits as security for cost.

At the time of filing the petition the petitioner shall deposit with the registrar of the National Court the sum of K5, 000.00 as security for costs.

210 No Proceedings unless requisites complied with

Proceedings shall not be heard on a petition unless the requirements of Sections208 and 209 are complied with.

19. The requirement in Section 209 of the Organic Law has been complied with by the petitioner therefore it is not an issue. The only issue is whether all or some of the requisites under Section 208 have not been complied with that would make the petition incompetent.

20. The competency to the petition does not discern into the merit of the petition rather its concern is on the sufficiency of the pleadings and the legality or the validity of the petition: see Sir Arnold Amet -v- Peter Yama [2010] SC 1064. The competency to a petition depends on the facts pleaded. The petition must clearly set out the facts pleaded. The law is well settled by the Supreme Court in Sir Barry Holloway -v- Aita Ivarato & Another [1988-89] PNGLR 99, which held that:

"The facts which must be set out under s. 208 (a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved".

21. As to what "the facts" are as contemplated by s. 208(a) of the Organic Law, Kapi DCJ, (as he then was), (with whom Los and Hinchcliffe JJ agreed), said at page 101, which statement of law has been followed by many later cases:

"The requirement of s.208(a) of the Organic Law is to set out the fact which constitutes grounds upon which an election or return may be declared invalid. Setting out ground without more does not satisfy the requirements of s.208(a) of the Organic Law. The facts set out under s.208 (a) of the Organic Law would necessarily indicate the ground upon which the petitioner relies. The facts which must set out under s. 208 (a) of the Organic Law are material or relevant facts which would constitute the ground or grounds upon which an election or return may be invalidated. In setting out the facts, they 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 that facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading that is the 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".

22. The reason for a strict compliance to Section 208 of the Organic Law is quite obvious and that is to make the opponent party be aware of what the other party is saying against him. Thus the principles in Brown -v- Dunn in civil proceedings are also applicable in the proceeding in the election petition matters not only as rule of practice but more importantly as a rule that allows fair play to all the parties: see Kamma -v- Itamu (No.2) (2008) N3261.

STATUTORY BASIS
23. This part of the petition mainly deals with Section 215 of the Organic Law on National Local Level Government Elections and Sections 102 & 103 of the Criminal Code Act on undue influence and bribery.

Ground 1 – Statutory Basis – s.215 OLNLLGE.
24. The Paragraphs 7.4, 7.6, 7.7, and 7.10 of the Petition relates to the allegations on bribery. And the petitioner made mention of s.215 of the Organic Law to move the election of the First Respondent declared null and void.

25. The First Respondent submitted that there are more than one Organic Law and the petition did not specify which Organic Law he was relying on. To make sure the petition is competent, he should name the particular Organic Law in full, such as the "Organic Law on National and Local Level Government Elections" and not just the Organic Law. The Court must not be allowed to draw inference to cover drafting inadequacies the Court should rule that an inadequately drafted petition is incompetent.

26. The petitioner submitted that "Organic Law" referred to is the "Organic Law on National and Local Level Government Elections". And that should be read together with the wording on the front or cover page of this Petition which reads: "IN THE MATTER OF ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS".

27. I disagree with the Petitioner's submission. It is vitally important that the law must be fully pleaded with sufficient clarity in a petition, and that an Organic Law must be named in full, for example the "Organic Law on National and Local Level Government Elections" and not just an Organic Law. The wordings on the front cover page of the Petition, for that matter, are not part of the pleadings in a petition. The error or inadequacy of pleadings was repeated in all the alleged bribery instances in this petition. That in my view is a serous matter. The Court must not be allowed to draw inferences under what Organic Law a certain provision has been pleaded. There must be no vacuum left behind. To do so would mean the petition is incompetent. As professional legal officers, that responsibility lies on the lawyers drafting the pleadings in a petition. Naming a particular statutory law in full is a material and relevant fact to satisfy s.208 (a) of the OLNLGE. Any errors in the petition cannot be amended in Court during submissions on objections to competency stage as per the decision of the Supreme Court in Delba Biri -v- Bill Ninkama (supra). I uphold this ground of objection to competency.

Ground 2: Statutory Basis – s. 103 of the Criminal Code Act – Bribery.
28. In paragraph 7 of the Petition, it is alleged that the First Respondent committed bribery thereby contravening s.103 of the Criminal Code Act. The First Respondent submitted that the petition did not state the relevant subsection under s.103 of the Criminal Code Act, the First Respondent is alleged to have violated. In Peter Isoaimo -v- Paru Aihi & Ors N4921, His Honor Cannings, J said at paragraph 9 that "because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a Petitioner must specify what particular bribery offences are alleged to have been committed". In Peter Isoaimo -v- Paru Aihi case (above) the petitioner argued that the First Respondent committed bribery under s. 103(a) (iii) and s.103 (d) of the Criminal Code, and that was sufficient.

29. In the present case, the petitioner submitted that paragraph 7 of the Petition is only an introduction and it declares that the actions of the Petitioner as pleaded the entire petition are criminal in nature. It is a general statement allegation setting out the general parameters of fact to be pleaded and they do not contain the facts.

30. I understand that the term "Petitioner" in his submission refers to the "Respondent" as per the paragraph 7 of the Petition and that is the First Respondent. Bribery is a criminal offence and the law requires that the petitioner must prove bribery beyond reasonable doubt. Section 103 (a) – (g) of the Criminal Code Act has seven different offences of bribery all having the Criminal Code Act: see Peter Isoaimo -v- Paru Aihi & Ors (supra). The pleadings must be specific and with clarity and not just in mere general terms. The decision of the Supreme Court in Holloway -v- Ivarato (above) is applicable as well. Any pleadings made in general terms will not suffice. I uphold this ground of objection to competency.

Ground 3: Statutory Basis - s.102 of the Criminal Code Act – Undue Influence.
31. The First Respondent submitted that statutory provisions of the Criminal Code must be pleaded. He referred to the recent decision in Michael Sapau & Ors -v- Charlie Benjamin & Ors. (EP No. 06 of 2012; dated 08th January 2013) N4947, where Sawong J, said in paragraph 9, that undue influence under s.102 of the Criminal Code Act must be pleaded. This will assert the intention of the First Respondent who is alleged to have induced or bribed the electors. It is submitted that there is not specific mention of s. 102 in the petition to support the pleadings relating to undue influence which constitute the motive of bribery. When the cases of Delba Biri -v- Bill Ninkama (supra) is applied here, this petition should be held incompetent and it must be dismissed for want of competency. The Supreme Court in Delba Biri -v- Bill Ninkama (supra) said at page 345:

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208 of the OLNLGE..."

"In our opinion, it is beyond argument that if a petition does not comply with all the requirements of s.208 of the Organic Law on National and Local Level Government Elections, then there can be no proceedings because of s.210".

32. The Petitioner in his submission, indirectly addressed this ground of the objection to competency. He referred to a case of Jim Nomane -v- David Anggo (No.1) (2003) N2496, where Justice Gavara - Nanu said:

"In my opinion, such particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded. And it is appropriate and necessary that the person who committed it and upon whom it is committed, how it was committed and specific, if not, general description of when it was committed are pleaded, so that not only the opposing party is sufficiently informed of what is alleged in the petition but the Court is also sufficiently informed of the issues raised in the allegations. (see Neville Bourne -v- Manasseh Voeto [1977] PNGLR 298. See also Raymond Agonia -v- Albert Karo & Electoral Commission [1992] PNGLR 463.

33. It is undoubtedly clear that the case of Jim Nomane -v- David Anggo (No. 1) above, which also endorsed the case of Holloway -v- Ivarato (supra), confirms and supports that in undue influence and bribery cases, it is necessary to plead the facts that constitute the elements to comply with the requirements of the s.208 of the Organic Law on National and Local Level Government Elections. These two cases stressed the point that the pleadings must be clear and sufficient to inform both the opposing party and the Court as to what the facts and issues are all about so that the opposing party is not caught off guard. To induce means to persuade or influence someone from doing or not doing something. I find that the Petitioner failed to plead s. 102 of the Criminal Code Act that the First Respondent had the intention to induce the electors to vote for him by giving or promising to give money or gifts. I uphold this ground of the objection to competency.

ATTESTATION OF WITNESSES
34. The main concerns here on the attesting witnesses is their address and occupations as to whether they have provided sufficient details that would satisfy the requirements of s.208 (d) of the OLNLGE.

Grounds 4, 5 & 6: Attesting Witnesses – Philip Tengen & Anna Bawi
35. The s.208 (d) of the OLNLGE requires that the witnesses attesting the petitioner signing the petition must state his occupation and address. It is a mandatory requirement under the said statutory law. The attesting Mr. Philip Tengen gave his residential address as: Red Corner, Kama Village, Bihute Road, P.O. Box 251, GOROKA and his occupation as a driver. And the witness Anna Bawi gave her address as: Section 337 Lot 180, Tent City, P.O. Box 567, LAE, and her occupation as Legal Secretary. The residential address of witness Anna Bawi is not disputed and so it is not an issue here, though she did not provide the name of the street where her residence is situated.

36. The residential address of Mr. Philip Tengen is been objected. The First Respondent submitted that Kama covers the entire western half of the Township of Goroka i.e. from Guava street up to Dog street, the Medical Research Institute, West Goroka Community school, Sir Danny Leah Oval down to Sipiga area, the Lopi street down to Bihute. Within this area there are five local clans, 11 villages and couple of settlement. But there is no village known as Kama.

37. The Petitioner submitted that Mr. Philip Tengen is a registered voter of Chuave Electorate therefore he is a credible person to attest the signing of the petition by the petitioner. As such there is no legal basis for objection.

38. I would think that the petitioner got it all mixed up here. The issue here is the attesting witnesses address and not whether he is an elector or not. The First Respondent, on the other hand, has not provided a map of the Township of Goroka to show the Court that there is no such place or village called Kama. If the whole area as described by the First Respondent is called Kama, then it is most probable, if not, possible, that there would exist a place called Kama Village. It is common knowledge that no place can be given a name without existence of such a place, land or village. I am not convinced that Kama village does not exist there in the township of Goroka.

39. The First Respondent further submitted that a witness Mol Siboa, who has filed an affidavit, has personal knowledge of the attesting witness Mr. Philip Tengen, that he (Mr. Tengen) is not a Kama Villager but he is from Irelya village, Wapenamanda District of Enga Province. It may so that Mr. Tengen is not a Kama Villager; nevertheless, he is required to provide his address of residence, pursuant to s. 208 (d) of the OLNLGE. This provision does not require where a person originates or where he comes from, except his name, occupation and address so that he can easily be identified and located; see Raymond Agonia -v- Albert Karo [1992] PNGLR 463.

40. In the case of James Yoka Ekip & Ors -v- Gordon Wimb, William Duma & Ors N4899, where the attesting witness gave his residential address as 8 Mile in NCD, was fatal resulting in the petition been dismissed for want of compliance to s. 208(d) of the OLNLLGE. I find that the residential address of the attesting witness Mr. Tengen as provided is quite detail and precise. He resides at Kama Village which is at Red Corner along Bihute road. And I find that he has complied to s. 208(d) of the OLNLLGE. I would dismiss this ground of the objection to competency.

41. I turn to the objection relating to their occupations. Mr. Philip Tengen only said he is a driver without giving further specific details as to whether he is a PMV driver, taxi driver or as a driver employed by one of the companies or government department or by any of the institutions, while Anna Bawi said she is a legal clerk without stating the law firm she is employed with.

42. The Petitioner submitted that Anna Bawi is employed as Secretary of Manasseh & Company Lawyers who represent the petitioner. She typed this petition therefore she is a credible person to attest to the signing of the petition. The requirements of Section 208(d) of the Organic Law has been complied with. There is no requirement that they must be residing in the electorate nor must they be aware of the facts. This is knit-picking when the petition is meant to be drafted by the petitioner in person because of section 222 of the OLNLGE. Section 214 of the Organic Law requires that the National Court may inquire into whether or not the Petition is duly signed by the attesting witnesses, when there is a challenge to the signing of the petition by the petitioner. There is no legal basis for this objection. The Supreme Court comprising of five members in Paru Aihi -v- Sir Moi Avei (2003) SC 720 said:

"The purpose of the requirement of Section 208 (d) as with other requirements in Section 208 is to retain the genuine or veracity of the Petition".

43. In the case of William Duma (supra) where the attesting witness said he was a taxi driver with no further details, the Court dismissed the petition for being incompetent due to non compliance to s. 208 (d) of the OLNLLGE. I find the case of William Duma (supra) and Holloway -v- Ivarato (supra) are relevant to the present case. In the absence of further details of their occupation as driver or a legal clerk without naming their employers, I find that these grounds of the petition are incompetent for noncompliance to the requisites under s.208(d) of the OLNLLGE.

44. The law regarding attesting witnesses in election petition cases is well established in Raymond Agonia -v- Albert Karo [1992] PNGLR 463 and in a recent decision in James Yoka Ekip & Ors -v- Gordon Wing, William Duma & Ors, N4899, that the failure by the attesting witness to disclose the firm, organization or company the attesting witness is working for is sufficient to render that s.208 (d) of the OLNLGE has not been complied with thereby s. 210 of the OLNLGE comes into play.

45. The petitioner has raised some very important points. But the law is well settled in Delba Biri -v- Bill Ninkama & Ors [1982] PNGLR 342, by the Supreme Court, that a petition must strictly comply with s. 208(d) of the OLNLGE and failure to comply with s. 208(d), there can be no proceedings on the petition as per s. 210 of the OLNLGE. In the present petition, both attesting witnesses failed to disclose the relevant and material facts of their employment, particularly the name and address of their employers for the purposes of their easy identification if need be.

46. The decision of the Supreme Court in Paru Aihi -v- Sir Moi Avei (supra) is very precise and clear in that unless there is full compliance to s. 208(d) of the OLNLGE, the attestation of a petition by the witnesses may be rendered as not genuine. The recent decision in Philip Kikala -v- Nixon Mangape (Unreported and Unnumbered) (EP No. 18 of 2012; dated 18th January 2013), clarifies the issue on the genuineness of the petition. Justice Makail discussed at length the word "(attest)" in his judgment. The Oxford Dictionary defines the word "attest" means "to bear witness to" or "to show or prove that something is true". Following the views expressed by Justice Kandakasi in James Yoka Ekip & Ors -v- Gordon Wimb & Ors (2012) N4899 he made by way of obiter dictum, Justice Makail in Philip Kikala -v- Nixon Mangape said (at paragraph 76 and 77:

"... In my view, His Honor's interpretation in that case is not restrictive but one that is plain and clear. It is reasonable to expect the two witnesses to know all the facts of an election petition or have personal knowledge of what transpired in the whole of the electorate or some of them and be in a position to prove all or some of them. In other words, one cannot attest to a petition if he has no knowledge of what actually happened on the ground during the election in the electorate".

"In deed, a closer examination of His Honour's reasons shows that his Honour did qualify his reasoning that the person attesting the petition must be in a 'position to testify, confirm, verify or prove all or any of those facts'. So there is a qualification. The witness attesting the petition need not know all the facts supporting the grounds of the petition. Some will suffice. One cannot look far to find persons or witnesses who can attest to the petition. They may be voters, scrutineers or mere observers".

47 Although it has not been raised a an issue here in this petition that the witnesses attesting a petition should be someone who knew the facts or some of the facts that occurred at the time of the election, the case of Philip Kikala -v- Nixon Mangape (supra) has nevertheless set a precedent that the attesting witnesses must be someone who knows and can testify, confirm or verify all or some of the facts pleaded in a petition. The attesting witnesses who are knowledgeable about some of the facts that occurred during the election will no doubt make the petition to be a genuine one. And I do apply and adopt the decision of His Honour Makail J in Philip Kikala -v- Nixon Mangape (supra). In the present petition, these two attesting witnesses, Anna Bawi and Philip Tengen were not in Chuave Open Electorate during the election therefore they did not witnessed all or some of the events that are the subject of this petition. Thus they are not in a position to verify the content of the petition and that renders this petition incompetent. I uphold this ground of objection to competency.

ALLEGATIONS ON BRIBERY
48. From the discussions in Ground 1 – 6 on the Statutory and Attestation of witnesses above, there can be no doubt that this petition is incompetent to proceed to trial. Nevertheless, it is appropriate that I should discuss the remaining grounds on objection to competency which are mainly grounded on allegations on bribery, particularly Ground 9 (Bribery Case 3); Ground 11 (Bribery Case 5); Ground 12 (Bribery Case 6); Ground 14 (Bribery Case 8) & Ground 15 (Bribery Case 9). T he other allegations on bribery have been withdrawn. I will deal with these grounds together.

49. The law is well established in Allan Ebu -v- Roy Evara (supra) and Roger Tongai Palme -v- Michael Mel & Ors (1989) N808, by Bredmeyer and Woods, JJ respectively, that where a petition is grounded on bribery, any alleged act of bribery or undue influence done before a person is properly nominated as a candidate or before the commencement of polling, they cannot be facts relied upon to invalidate an election.

Ground 9: Bribery Cases 3 - Para 7.4 of the Petition
50. In the pleadings, the petition alleged that on 22nd of June 2012, at Siri village the First Respondent handed out a total of K5,000.00 by giving it to various groups including the Siri Elementary School received by an elector Tom Peter a teacher, for the mothers received by an elector Martha Sinowai; for the men received by an electors Mr. Ware Si; for the youths of South Siri SDA Church received by an elector Peter Nime and for the security boys received by an elector Nime More. On 7th of July, an elector Peter Ako received K50.00 from Peter Nime.

Ground 11: Bribery Case 5 - Para 7.6 of the Petition
51. It is pleaded that on the 4th of May 2012, the First Respondent, he handed out K10,000.00 to Sebastian Kendaura of Korou village, Ward 8, Chuave LLG, for the maintenance work the people have carried out on an old airstrip which he told them to do. And he went back to fulfill his promise to them. While handing the money over, he said that they must think carefully and give him the first vote. A day after receiving the money, Sebastian Kendaura distributed the money to all those people who took part in cutting the grass on the old Nambayufa airstrip. On the 7th July 2012, an elector Jeremy Koi received his share of that money.

52. This giving of this money took place two weeks before the Writs were opened on the 18th of May 2012. And the money was given in payment for some maintenance work done. Relying on the decisions in Allan Ebu -v- Roy Evara (above) and Roger Palme -v- Michael Mel (above), I uphold this ground of objection to competency and I struck out the Paragraph 7.6 of the Petition for being incompetent.

Ground 12: Bribery Case 6 - Para 7.7 of the Petition.
53. It is pleaded that on Sunday 24th June 2012, the First Respondent returned to Fiomo village, Ward 7, Siane LLG and gave K2,000.00 to an elector Nathan Pamundi on behalf of the electors from Wanuma and Atino clans of Homo village. And Natha Pamundi shared the money amongst the electors from the said clans. The electors Eros Pamundi and Emma Charles received their share of the money with the intention of procuring votes for the First Respondent. During polling on the 7th July 2012 at Nambawufa old airport polling are, elector Jeffery Fongu said they will give their vote where the money came from.

Ground 14: Bribery Case 8 - Para 7.9 of the Petition.
54. The pleadings alleged that on or about 23 June 2012 at Subaru Hausman in Miamapnom village, Ward 11, Chuave LLG, the First Respondent gave K15,000.00 to the electors from the three clans of Ward 11 to induce them to vote for him. In giving the money to the electors from Duma Tribe, the First Respondent said that as he has given them a total of K30,000.00 he claims the first vote from them. Earlier on the 18th May 2012 he gave them K15,000.00 includes the rugby jerseys for the youths and other gifts. The First Respondent distributed the second butch of K15,000.00 in the following manner:-

• K4,000.00 - to an elector Koibori Bandi for the electors from Komagam clansmen and Peter Koma received K18.00 from that;
• K4,000.00 - to an elector Borom Dominic for electors from Komagam clansmen and Solomon Yomba received K18.00 from that;
• K6,000.00 - to an elector Kilo Michael Yame for Supagam clansmen and Vincent Mori received K25.00 from that and;
• K1,000.00 - to an elector Yame Dere for the grandstand.
  

Ground 15: Bribery 9 - Para 7.10 of the Petition.
55. It is pleaded that on 5th July 2012 at Subaru Hausman, Miamapnom village, Ward 11, Chuave LLG, the first Respondent is alleged to have given K2,000.00 to Kilo Michael Yame and said " This is for the mothers to spend and give me the vote". It was intended to induce the electors to cast their vote for the First Respondent. And Kilo Michael Yame distributed the money to the electors – Mary Vincent, Lilly Vincent and Iso Agiri received their shares.

56. In Grounds 9, 12, 14 & 15 above, the pleadings are very similar. The monies were given with intentions to induce and or bribe electors. The monies were given to certain individuals for distribution to their respective groups of members.

57. First Respondent submitted that there was no pleading as to when and when the money was distributed to the individual recipients if there was such a flow of the money from the First Respondent to the receivers. The pleadings are grossly insufficient therefore the requirements of s. 208 of the OLNLGE have not been met. The First Respondent handed out money on the following dates – 22nd, 23rd, 24th of June and 5th July 2012 to certain persons for distributions to individual electors in their groups, villages, clans or tribes.

58. As electors Peter Ako received K50.00 on the 7th July 2012, some two weeks later. There is no pleading as to where that K50.00 came from. For the other electors namely Eros Pamundi, Emma Charles, Mary Vincent, Lilly Vincent and Iso Agiri who received their shares, the dates, time and places they were given the money have not been pleaded. The handouts were to the groups and in one instance, to an institution and not to the individuals therefore inducement and intentions are insufficiently pleaded.

59. He referred to a case of Michael Sapau & Ors -v- Charlie Benjamin & Ors N4847, where Justice Sawong said at paragraph 17:

"Where the ground or grounds relied on is founded on bribery or undue influence, the grounds must not only set out the relevant facts constituting the allegations of the bribery of undue influence. The grounds must in addition set out the names of the persons alleged to have been bribed, there must also be allegations that this money, that property or that gift was offered by the successful candidate and that the reason it was given or offered was to get named electors to vote or not to vote or interfere unlawfully, as the case may be, in the free voting of an election; per Sheehan, J in Agonia -v- Karo & Electoral Commission [1992] PNGLR 463".

60. The petitioner submitted that in all these paragraphs the pleadings are succinctly clear and contain relevant facts constituting the elements of bribery, pursuant to s. 103 of the Criminal Code Act. He submitted that certain parts or sub-paragraphs of the petition be read together to make meaning out of it. He referred to a case of Milli -v- Gaima [1997] PNGLR 128 where Woods, J as then he was, allowed certain aspect of the petition to be read together to make sense. Also in Polye -v- Sauk, EP 76 of 1997, the Court stated that parts of the petition "to be read together to make sense".

61. The Petitioner submitted that the petition has pleaded the date, time and the place of the incident of the bribery and the names of the electors who received the money from the First Respondent and the amount. The intention to bribe was pleaded and the electors received the money. He submitted that in Saonu -v- Dadae (2004) SC 763, the Supreme Court approved the ruling by His Honour Hinschcliff, J in Benias Epe Peri -v- Nane Petrus Thomas and Acting Electoral Commission (EP 73 of 2003) that the legislation never intended to allow all kinds of objections and complicate issues regarding the facts of the case raised by lawyers to suppress the crux of the petition. In fact, the objections are knit-picking. There are sufficient facts constitutions the elements of the offence of bribery being pleading in the petition. Therefore this ground should proceed to trial.

62. The First Respondent, in reply, submitted that election petitions are serious matters and lawyers are bound to some great details in drafting petitions. We are moving forward and the Courts have set high standards already. We must not move backward and lower the high standards already set by the Courts but move forward and maintain it. The Second Respondent agreed with the First Respondent.

63. To some extent I do agree with the Petitioner that date, place, time, the amount of money alleged to be involved in the bribery and the names of the electors who received the money intended to bribe other electors have been pleaded. But I noted that there are loopholes in the petition. For example; the money given to Siri Elementary School. Who did the First Respondent intended to bribe or induce. Is it the teachers, parents or the students? The students of that school would be under aged to vote. There is no pleading that these children were electors and have casted their votes at the election. It is not even pleaded if the giving of the money to that school was to induce the students, parents or the teachers.

64. Regarding the monies given to other persons to be distributed to their respective groups such as the women's group, men's group, the youths and the security boys. There is no pleading as to the number of electors from each of these groups who have in fact received the money, the name of the person from whom they received the money, the dates, time and places where they received the money and the amounts each elector received. The money given to Ako Peter on the 7th of July 2012. That was on the polling date. There is no mention whether he received the money before or after he casted his vote.

If I may use the very words of Sakora, J in Francis Koimanrea -v- Electoral Commission & Paul Tiensten (2003) N2421 and Kandakasi, J in James Yoka Ekip (supra) where each respectively said: "wild sensationalist, unmeritorious and unsustainable allegations" in the petition must not go to trial: see also Philip Kikala -v- Nixon Mangape (supra). Applying the decision in Michael Sapau & Ors -v- Charlie Benjamin & Ors (supra). The pleadings failed to satisfy the requisite of s. 208 thus s. 210 of the OLNLGE comes into force.

65. In paragraph 7.9(a) of the Petition, the K15,000.00 was intended to be given to the electors for the three clans. These three clans have not been named and no mention of the money been given to ay named electors. In Paragraph 7.9(a) of the Petition, the money was alleged to have been given to the electors from Duma Tribe but it failed to mention the name or names of the recipients. Paragraph 7.0(c) of the Petition is just an explanation to the First Respondent's comment in Paragraph 7.9(b).

66. Paragraph 7.9(d) of the Petition shows how the First Respondent distributed the K15,000.00. From the list of the money been distributed, it mentioned only two clans, the Komagam and Supagam clans. It did not plead if these two clans belong to a Duma Tribe. There is no mention of the dates and places where the recipients Peter Koma, Solomon Yomba and Vincent Mori where given their shares. The pleadings in whole of Paragraph 7.9 are unclear and quite confusing. In my view, even if certain parts of the petition are to be read together, pleadings as they stand could not be able to improve the petition one way or the other.

67. The recent case in Michael Sapau & Ors -v- Charlie Benjamin & Ors (supra) clearly established that in allegations of bribery and or undue influence cases, the grounds must not only set out the relevant facts constituting such allegations but it must set out the names of persons alleged to have been bribed or induced.

68. Since the money was intended to induce others, it is important that the date and place where the mothers received the money need to be specifically pleaded. And equally important that s. 102 of the Criminal Code must be pleaded. I adopt the decision of Michale Sapau & Ors -v- Charlie Benjamin & Ors (supra). Hence, I find that the pleadings as they stand are insufficient to satisfy the requirements of s. 208(a) & (d) of the OLNLE and I allow this ground of the objection to competency.

CONCLUSION
69. From the above findings, I summarize my rulings on the objection to competency on each ground of pleadings in the petition in the following:

(h) The Petitioner failed to fully state the name of a particular Organic Law of which he was pleading s. 215 of the Organic Law.

(i) In pleading, bribery under s.103 of the Criminal Code Act, the Petitioner failed to plead specific subsections under s.103 the First Respondent is alleged to have committed since there are high range of bribery offences with varying elements to be established under this provision.

(j) The Petitioner failed to plead s. 102 of the Criminal Code Act in particular to cases where he alleged bribery that involved undue influence.

(k) The Petitioner sufficiently pleaded the addresses of the two attesting witnesses but they have not provided sufficient details of their occupation, by failing to name their employers and or their employment addresses.

(l) In all five bribery allegations, there are adequate pleadings of the First Respondent handing out money to specific person to dish out to the electors in their groups or Wards. However, there are insufficient pleadings as to when and where those persons who received the money from the First Respondent distributed or shared the money to the individual electors.

70. In the light of the above findings, I uphold the First Respondent's objection to competency on all the grounds been objected o since the requirements of the Section 208 (a) & (d) of the OLNLGE have not been complied. Having upheld the First Respondent's objection to competency in its entirety, there is no need for this Court to proceed to trial. In the same token, the Petitioner's motion to have the trial of the petition transferred to another venue is dismissed.

ORDERS OF THE COURT:

(a) The First Respondent's objections to competency is upheld.
(b) The Petition is dismissed in its entirety.
(c) The Petitioner shall pay the Respondents' costs to be taxed if not agreed.
(d) The security deposit of K5,000.00 held by the Registrar to be released and paid to the Respondents in equal shares.

_________________________________________________________________
Manase & Company Lawyers: Lawyers for the Petitioner
Napu & Company Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent