Kramer v Duban [2013] PGNC 48; N5213 (18 March 2013)

N5213

PAPUA NEW GUINEA
[In the National Court of Justice]

EP No. 60 of 2012

Between

BRYAN KRAMER
Petitioner

And

NIXON PHILIP DUBAN
First Respondent

And

ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea (No.2)
Second Respondent

MADANG: Gavara-Nanu J
2013: 14,15 & 18 March

PRACTICE AND PROCEDURE - Election petition - Objection to competency - Pleadings in an election petition - Organic Law on National and Local Level Government Elections - Requirements of ss. 208 (a), 217 and 222 discussed - Duty on the Courts to have regard to requirements of s. 217.

PRACTICE AND PROCEDURE - Election petition - Objection to competency - Organic Law on National and Local Level Government Elections - Requirements of s. 208 (d) - Attestation of the election petition - Attesting witness giving his occupation as "self employed" - Whether "self employed" falls within the definition of "occupation" which is a requirement of s. 208 (d).

PRACTICE AND PROCEDURE – Election petition - Objection to competency - Organic Law on National and Local Level Government Elections; s.3(1) - Definition of a "candidate" - National elections - Question of when the winning candidate became a candidate discussed.

Cases cited
Anthony Michael Siaguru v. David Unagi and The Electoral Commissioner [1987] PNGLR 372
Delba Biri v. Bill Gimbogl Ninkama and Others [1982] PNGLR 342
Dick Mune v. Anderson Agiru (1998) SC590.
Ephram Apelis v. Sir Julius Chan (1998) SC573
Holloway v. Ivarato [1998] PNGLR 99
James Yoka Ekip & Simon Sangake v. Electoral Commission & William Duma
(2012) N4899
Jim Nomame v. David Anggo (No.1) (2003) N2496
Luke Alfred Manase v. Don Pomb Polye (2009) N3718
Mathias Karani v. Yawa Silupa (2004) N2517
Neville Bourne v. Manesseh Voeto [1977] PNGLR 298
Paru Aihi v. Sir Moi Avei (No.2)[2003] PGSC11; SC720
Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523
Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921
Peter Waieng v. Tobias Kulang and Electoral Commission EP No. 75 of 2012 (March, 5 & 8, 2012)
Robert Kopaol v. Philemon Embel (2003) SC727
Sinasina Yongomug Open Electorate N1123
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064,
Steven Pirika Kamma v. John Itanu and Ors (2007) N3246
Vagi Mae v. Jack Genia and Electoral Commission of Papua New Guinea (1992) N1105

Counsel
Y. Wadau for the petitioner
S. Jubi for the 1st respondent
J. Umbu for the 2nd respondent

1. GAVARA-NANU J: The respondents have each filed a Notice of Objection to Competency challenging the competency of the petition. The first respondent's objection was filed on 26 September, 2012, and the second respondent's objection was filed on 27 September, 2012. The objections were heard one after the other on 14 and 15 March, 2013, with the second respondent's objection being heard first.
   
2. The objections specifically challenge the competency of paragraphs 5.2 to 5.5 of the petition which plead the grounds of the petition. No such challenges are mounted against paragraphs 1 to 5.1 which plead the introduction to the petition and the background facts.
   
3. Paragraphs 1 and 2 of the petition state that the petitioner and the first respondent were candidates for the Madang Open electorate in 2012, national elections. Paragraph 3 states that the second respondent by its servants and employees conducted the election for the Madang Open electorate in 2012 national elections. Paragraphs 4 (a) and (b) state that the petitioner and the first respondent are citizens living in Madang Province and state their respective places of residence. Paragraph 4 (c) states that the first respondent was declared as duly elected member for Madang Open electorate on 24 July, 2012, with 8,483 votes and the petitioner was the runner up polling 7, 939 votes thus a marginal difference of 544 votes. As I said, these claims are not challenged or disputed.
   
4. Paragraph 5 in the introduction pleads the grounds relied upon by the petitioner to invalidate the election of the first respondent as the Member for Madang Open electorate, namely, illegal practices, bribery, attempted bribery and undue influence. Paragraph 6 pleads the relief sought.
   
5. In paragraph 5.1 the petitioner alleges generally that in the period preceding and during the national elections in 2012, for Madang Open electorate, the first respondent committed or attempted to commit, directly or indirectly acts of bribery with the knowledge and intention to cause or create undue influence over the voters or electors to vote for him in the said national election, contrary to ss. 102, 103 and 106 of the Criminal Code, Act, Chapter No. 262 and s. 215 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE).
   

6. Paragraphs 5.2 to 5.5 plead particulars of bribery, attempted bribery and undue influence and names of the persons or the electors allegedly bribed, and or unduly influenced or who the first respondent attempted to bribe.

7. Mr. Joppo Umbu of counsel for the second respondent whose objection was heard first, in attacking the competency of paragraph 5.2 of the petition, argued that on 20 April, 2012, which is the date the first respondent is alleged in paragraph 5.2 to have committed bribery and undue influence under ss. 102 and 103 of the Criminal Code Act (Ch.262), the first respondent was not yet a "candidate" therefore he could not have committed those offences. Mr. Umbu argued that because 20 April, 2012, fell within the period before the day the writs for the 2012, national elections were issued which was 23 May, 2012, the first respondent was not yet a candidate for Madang Open electorate. Mr. Umbu submitted that because the first respondent was not a candidate on 20 April, 2012, paragraph 5.2 is misconceived. He argued that the facts pleaded in the paragraph cannot support and establish the grounds of the petition.

8. On this point, it is to be noted that the second respondent has also posed the following question in paragraph 4 of his objection:

"One of the important questions the Court must ask itself in the circumstances, among others, is how back in time should an alleged act of bribery happen, from the date the candidate's nominations, (sic.), for it to be included in the calculations of the allegation of bribery for that election?" (my underlining).

9. In this paragraph, the second respondent effectively throws the question as to when the first respondent became a candidate for the Madang Open electorate in the 2012 national elections back to the Court. This shows that the second respondent has no firm and proper legal basis to challenge the competency of paragraph 5.2 of the petition. In any event, Mr. Umbu has not made any clear submission as to when he says the first respondent became a candidate.

10. The question nonetheless has in my view been answered by the petitioner, Mr. Bryan Kramer who appeared in person. In his written and oral submissions, Mr Kramer submitted that going by the definition given to the word "candidate" in s. 3 of the OLNLGE, the first respondent was a candidate for the Madang Open electorate on 20th April, 2012.

11. Section 3 of the OLNLGE is in these terms:

"candidate", in Parts II and XVII, includes a person who, within three months before the first day of the polling period, announces himself as a candidate for election as a member of the Parliament;

12. Mr. Kramer told the Court that given this definition of a 'candidate' the first thing to establish is the first day of polling for the Madang Open electorate which he said was 23 June, 2012, this was conceded by Mr. Umbu. Mr. Kramer submitted that having regard to this definition of a 'candidate'; when three months period is calculated backwards from 23 June, 2012 as stipulated under s. 3 of OLNLGE, the period ends on 23 March, 2012, thus making 20 April, 2012, to fall within the three months before the first day of polling period, thus also making the first respondent to fall within the definition of a "candidate". Mr Kramer told the Court that on 20 April, 2012, the first respondent during his speech at the youth camp held at Silopi Parish of the Lutheran Church also declared that he was a candidate for the Madang Open electorate.

13. Looking at the submission made by Mr. Umbu on this point and given the clear definition of a "candidate" in s. 3 of the OLNLGE, Mr. Umbu's argument plainly lacks merit and is in my view misconceived. His submission did not address s. 3 of the OLNLGE at all which is pivotal and determinative.

14. Section 3 of the OLNLGE is very clear and specific. The definition of a "candidate" given in the section makes it very plain that 20 April, 2012, fell within the three months period before the first day of the polling period for the Madang Open electorate which as noted was 23rd June, 2012. I therefore accept Mr. Kramer's submission that the first respondent was a candidate on 20 April, 2012, when he allegedly committed bribery and undue influence. The second respondent's challenge against paragraph 5.2 of the petition must therefore fail.

15. The second respondent's failed challenge against the competency of paragraph 5.2 of the petition automatically operates to negate any challenge to paragraph 5.3 of the petition because in paragraph 5 of his objection the second respondent states that his comments or arguments against paragraph 5.3 of the petition are same as those for paragraph 5.2.

16. Paragraph 6 of the second respondent's objection challenges the competency of paragraph 5.4 of the petition. In this paragraph the second respondent contends that paragraph 5.4 does not state as to whom the cheque for K300,000.00 which the first respondent is alleged to have given to Yagaum Lutheran Rural Hospital on 11 June, 2012, was made. The respondent also claims that paragraph 5.4 is vague and ambiguous. He claims that it is unclear from paragraph 5.4 as to who could be unduly influenced to vote for the first respondent. It is further claimed that even if the cheque was made in favour of Yagaum Lutheran Rural Hospital, it was not improper or illegal because the persons named in paragraph 5.4 who were present at the hospital during presentation of the cheque and who received the cheque were officials and staff of the hospital and they were only there to receive the cheque on behalf of the hospital. It was argued that those people could not be bribed or unduly influenced.

17. In regard to paragraph 5.5 of the petition the second respondent claims in paragraph 7 of the objection that Yagaum Lutheran Rural Hospital and Kama Road Project for which the first respondent is alleged to have claimed that he secured K7 million, were incapable of being influenced therefore the paragraph is misconceived. The second respondent also claims in paragraph 7 of his objection that paragraph 5.5 does not state who were bribed or unduly influenced to vote for the first respondent. Mr. Umbu submitted that paragraph 5.5 is insufficiently pleaded.

18. The second respondent also says in paragraph 7 of the objection that paragraph 5.5 fails to state how the K7 million funding allegedly secured by the first respondent for community projects could influence the people or how it was intended to influence the people who are named in the paragraph, to vote for the first respondent. Lastly, the second respondent claims that paragraph 5.5 does not plead any overt acts or utterances made by the first respondent which were intended to induce or to unduly influence people to vote for him.

19. Mr. Umbu submitted that these are major omissions and flaws which demonstrate clearly that the petition is insufficiently and badly pleaded and does not meet the requirements of s. 208 (a) of the OLNLGE, and should be dismissed for being incompetent.

20. Mr. Samson Jubi of counsel for the first respondent supported and adopted Mr. Umbu's submissions on the second respondent's objection.

21. Mr Kramer's overall argument in response was that the petition satisfies the requirements of s. 208 (a). He submitted that the facts pleaded in paragraphs 5.2 to 5.5 of the petition make clear and specific allegations of bribery and undue influence being committed by the first respondent on 20 April, 2012, 11 June, 2012, and 13 June, 2012. He argued that the facts pleaded in the petition support the grounds of the petition and if the first respondent is denying the allegations then he should defend them at the trial. He argued that the petition is competent and should go to trial.

22. Apart from the requirements of ss. 206 and 209 of the OLNLGE which respectively provide for a petition to be addressed to the National Court and for a petitioner to pay the security deposit of K5,000.00 with the Registrar of the National Court at the time of filing the petition, which if not complied with can result in the petition being dismissed for want of compliance, the petition itself must comply with the mandatory requirements of s. 208 (a) to (e) of the OLNLGE.

23. Here, the second respondent's objection only raises s. 208 (a), which provides:

208. Requisite of petition

"A petition shall –

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

24. Mr. Umbu cited a number of cases in support of the objection, including Delba Biri v. Bill Gimbogl Ninkama and Ors [1982] PNGLR 342; Sir Arnold Amet v. Peter Charles Yama (2010) SC1064; Ephraim Apelis v. Sir Julius Chan (1998) SC573. However, I find that all these cases basically reiterate the trite and a well established rule in respect of s. 208 (a) that a petition must set out or plead all the relevant and material facts that support the grounds of the petition. I indeed adopt these cases as stating the correct law regarding requirements of s. 208 (a).

25. In Jim Nomane v. Daniel Anggo (No.1) (2003) N2496, I stated the rule this way:

"In this regard, I am of the opinion that in some cases the Courts have given unnecessary technical meaning to the word 'facts' in s. 208 (a) and have as the result held that to set out or plead 'facts', as required in that section, the petitioner must plead the specific dates and times when the alleged incidents happened and the names of persons involved in those alleged incidents.

In my opinion, such particulars may only be necessary in allegations such as undue influence and bribery, for which facts constituting their elements as criminal offences must be sufficiently pleaded".

26. In that case, I also cited a passage in Holloway v. Ivarato [1988] PNGLR 99 at 101, in which the then Deputy Chief Justice Sir Mari Kapi said:

"It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts. 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 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".

27. Same rule or principle was with respect stated by Kandakasi J in Steven Pirika Kamma v. John Itanu and Ors (2006) N3246 where his Honour said:

"....What the Courts and the parties should be looking at is whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the fact alleged and not necessarily every single detail of or about the fact stated. Such details should be left for trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or, irregularity or, error or omissions which affected the results (sic.) of an election".

28. All these and other cases cited by counsel including the recent decision by Kandakasi J, in James Yoka Ekip & Simon Sangake v. Electoral Commision & William Duma (2012) N4899, state the same rule although differently.

29. I find the above statements of the rule to be in harmony with the scheme and intent of ss. 217, 222 and 208 (a) of OLNLGE. Section 208 (a) expressly requires the petitioner to set out facts, viz, relevant and material facts which should support and establish the grounds of the petition and which as far as the petitioner is concerned may invalidate the election or the return. The facts pleaded should also sufficiently inform the Court of the issues before it and the respondents should also know from the facts pleaded what to meet at the trial and how to prepare their cases: Holloway v. Ivarato (supra), Anthony Michael Siaguru v. David Unagi and Electoral Commissioner [1987] PNGLR 372 and Vagi Mae v. Jack Genia and Electoral Commission of Papua New Guinea (1992) N1105. This of course is a general rule of pleading: Sinasina Yongomug Open Electorate N1123.

30. Mr. Umbu also submitted that the petition is flawed because it does not plead the elements of bribery and undue influence. This argument is itself flawed because there is no requirement under s. 208 (a) that a petition must plead elements of the offences allegedly committed. This is just another way of saying that the petition should plead law, which clearly is not a requirement under s. 208 (a). When pleading or setting out facts in a petition under this section the petitioner is also not required to plead evidence by which the grounds of the petition would be proved: Anthony Michael Siaguru v. David Unagi and Electoral Commissioner (supra) and Mathias Karani v. Yawa Silupa (2004) N2517. The facts pleaded also should not be a long winded statement of facts which may result in the pleadings becoming convoluted, confusing and repetitious. In my view what is envisaged by s. 208 (a) is a petition which sets out succinct and precise statement of the relevant and material facts that would support the grounds of the petition and which may invalidate the election or the return: Holloway v. Ivarato (supra), Luke Alfred Manase v. Don Pomb Polye (2009) N3718, Dick Mune v. Anderson Agiru (1998) SC590 and Sinasina Yongomug Open Electorate (supra).

31. Submissions were made to the effect that it is necessary to plead elements of the alleged bribery and undue influence or intention to unduly influence voters because of the need to prove the allegations beyond reasonable doubt. This argument was based on what the Court said in Nevill Bourne v. Manasseh Voeto [1977] PNGLR 298. I reject this submission as misconceived because the issue of standard of proof is irrelevant to objection to competency. It is not an issue before the Court. The issue before the Court is whether the pleadings comply with the requirements of s. 208 (a).

32. But even if the issue is before the Court, as I said in my ruling in another interlocutory application in this case that in Neville Bourne v. Manasseh Voeto (supra) the Court said the standard of proof in election petition trials is –"to the entire satisfaction of the Court". I do not think the Court in that case said the standard of proof is beyond reasonable doubt. In any event, the fact that the election petition hearings are not criminal proceedings must naturally mean that the standard of proof in election petitions cannot be the same as the criminal standard of proof. In this regard, I also think that what the Court said in Neville Bourne v. Manasseh Voeto (supra) regarding standard of proof in an election petition has been taken out of its proper context.

33. As to the challenge to the pleadings, in my view it is also not a requirement under s. 208 (a) to plead the types of bribery and or undue influence the first respondent is alleged to have committed under ss. 102 and 103 of the Criminal Code Act, because that would also amount to pleading law. It would therefore follow that the Court would have no power to dismiss a petition either because it had not pleaded the elements of the offence allegedly committed or that the types of offences committed have not been pleaded. Pleading elements and or the types of the offences committed together with facts will be tantamount to pleading mixed facts and law which again is not a requirement under s. 208 (a): Luke Alfred Manase v. Don Pomb Polye (supra). Pleading elements and or the types of offences allegedly committed in a petition is not only outside the requirements of s. 208 (a) but it would in my view also defeat the purpose and intent of s. 222, which implicitly provides that a petition should ordinarily be prepared and prosecuted by the petitioner personally who may not appreciate and understand the law or the elements or the types of offences allegedly committed. Such matters should in any event be established by the facts pleaded.

34. Section 222 provides:

222. Counsel or solicitor.

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of a party.

35. I have no reason to depart from what I said in Jim Nomane v. David Anggo (No.1) (supra) regarding the requirement of s. 208 (a). On this point I also respectfully agree with what Injia DCJ (as he then was) said in Paru Aihi v. Sir Moi Avei [2004] PGNC 250; N2523, his Honour said:

"In my view, I should say at the outset, that pleading of relevant facts does not mean pleading the law or the requirements or elements of the offence, or a re-statement of the elements of the offence in some meticulous fashion. After all, the intention of the Organic Law is that an ordinary citizen who is aggrieved by the result of an election should be able to come to Court without the assistance of a lawyer if he chooses not to have one, to file an election petition and prosecute it".

36. This statement in my respectful view resonates the requirements of both ss. 208 (a) and 222 of the OLNLGE.

37. The pertinent question then is – Do the facts set out or pleaded in paragraphs 5.2 to 5.5 of the petition meet the requirements of s. 208 (a) of the OLNLGE?

38. Starting from paragraph 5.2 of the petition, it is noted that the paragraph states that on 20 April, 2012, at Silopi Youth Camp held at Aufan village, Transgogol Local Level Government Area Madang Province, the first respondent after making his campaign speech gave out K50 and K100 notes to named individuals. The names of those individuals have been pleaded in this paragraph and the respective amounts they each received. The paragraph alleges that the monies were given purposely to unduly influence those individuals to vote for the first respondent in the 2012, national elections. I consider that the facts pleaded in this paragraph meet the requirements of s. 208 (a). I come to the same conclusion in regard to the facts pleaded in paragraph 5.3 of the petition, I consider that the facts pleaded in that paragraph also meet the requirements of s. 208 (a). I also find that the facts pleaded in paragraphs 5.4 and 5.5 meet the requirements of s. 208 (a). In regard to these two paragraphs, there is evidence that there were voters or people present when the first respondent presented a cheque for K300,000.00 at Yagaum Lutheran Rural Hospital; in respect of paragraph 5.5, the first respondent is alleged to have told the people at the gathering that he had arranged for or secured K7 million funding for Kama road. I am satisfied that the facts pleaded in these paragraphs meet the requirements of s. 208 (a).

39. The petitioner has also pleaded the number of votes collected by the first respondent and himself. He has also pleaded how the result of the election was affected: Robert Kopaol v. Philemon Embel (2003) SC272, I find no ambiguity in the manner the petition is pleaded. I consider that the facts pleaded in the petition are relevant to the grounds of the petition and if proved can go to establish bribery and undue influence against the first respondent, and can result in invalidating the election or the return of the first respondent as Member for Madang Open electorate.

40. For the foregoing reasons the second respondent's objection is dismissed with costs.

41. In regard to the first respondent's objection, Mr. Samson Jubi of counsel for the first respondent raised four grounds, which he argued render the petition incompetent, they are:

i. one of the two persons who attested the petition, namely Pak Kui failed to state his occupation as required under s. 208 (d) of the OLNLGE.

ii. the first respondent was not a "candidate" on 20 April, 2012, when he is alleged to have committed bribery and undue influence.

iii. the petition in paragraph 5.4 does not plead or disclose the nature and element of the intention by the first respondent to induce or to unduly influence the voters named in the paragraph to vote for him.

iv. the petition in paragraph 5.5 does not plead or disclose names of 250 or more people mentioned in the paragraph who were present at the gathering at Silibob village on 13 June, 2012, Ward 4 Ambenob Local Level Government Area of Madang Open electorate, when the first respondent gave his campaign speech. Further, the paragraph does not plead any overt actions and or omissions by the first respondent to unduly influence voters and elements of inducement to procure votes from the 250 or more people at the gathering.

42. I will address the first respondent's submission in the order of the grounds of objections raised:

i. Did Pak Kui, one of the two persons who attested the petition fail to state his occupation?

43. In attesting the petition, Pak Kui stated his occupation as "self employed". Mr. Jubi argued that this is insufficient description of his 'occupation' therefore it does not meet the requirement of s. 208 (d) of OLNLGE, which provides that the petition be attested by two witnesses whose 'occupation' and addresses are stated. In Paru Aihi v. Sir Moi Avei (No.2) [2003] PGSC 11; SC720, the Supreme Court in discussing the purpose of s. 208 (d) said, it is – "to satisfy the Court and affected parties that the petition is genuine". The Supreme Court went on to say – "The occupation of a witness attaches to the witnesses' capacity to verify the petition. For instance, an infant or a mute person lacking full capacity would not be expected to verify or attest a petition". The Supreme Court held that "a villager" given by an attesting witness as his occupation was a sufficient description of the occupation of the attesting witness for purposes of s. 208 (d), because a villager engages and occupies himself everyday in gardening, fishing and such other gainful activities to sustain himself in life thus constituting his occupation.

44. In the instant case, the question is whether "self employed" is an adequate description of Pak Kui's occupation for purposes of s. 208 (d). This very question was recently considered by Batari J, in EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission (March, 5 & 8, 2013), there his Honour said:

"In this case the generic term, "self employed" falls within the ambit of "occupation." Stating one's occupation as "self employed" imparts a common sense understanding and perception of one earning a living, working for himself or preoccupying his time, energy and resources working for himself. He could be a PMV operator, a trade store owner, etc. The description, "self employed" could not mean anything else. It adequately describes the attesting witnesses' occupation.

I adopt the majority view in Paru Aihi v. Sir Moi Avei (supra) that, the term "occupation" in the context of s. 208 (d) simply means, one's trade, business or calling; things or activities one does for living....".

45. I agree that when plain and common sense or logical meaning is given to the adjective "self-employed" it connotes a person working for himself and earning a living or sustaining himself in life by engaging and occupying himself in gainful activities of whatever nature such as gardening, fishing and hunting or a person engaged in a trade or profession, or business and is making a living and sustaining himself. All such engagements or vocations would clearly constitute a person's occupation. "Self –employed" is an ordinary descriptive term or phrase which should be given its plain and ordinary meaning. Taking this approach, I am satisfied that 'self-employed' in this case describes Pak Kui's occupation and meets the requirement of s. 208 (d). This ground is therefore dismissed.

ii. Was the first respondent a "candidate" for Madang Open electorate on 20 April, 2012?

46. This ground relates to paragraphs 5.2 and 5.3 of the petition. Mr. Jubi argued that 20 April, 2012, the date on which it is alleged in these two paragraphs that the first respondent committed bribery and undue influence, was well outside the campaign and polling period. It was therefore submitted that the first respondent was not a candidate for Madang Open electorate within the meaning of s. 3 of the OLNLGE on 20 April, 2012. Mr. Jubi therefore argued that the first respondent could not have committed bribery and undue influence on 20 April, 2012, under ss. 102 and 103 of the Criminal Code Act. I have already decided this issue when ruling on the second respondent's objection, I ruled there that by or on 20 April, 2012, the first respondent was a "candidate" for Madang Open electorate. I adopt what I said there and find that the first respondent was a "candidate" for Madang Open electorate on 20 April, 2012.

47. Mr. Jubi also argued that the two paragraphs are unclear and ambiguous. He argued that they are also insufficiently pleaded. He contended that it is not clear from the two paragraphs whether bribery or undue influence is alleged to have been committed by the first respondent. He also argued that the paragraphs are pleaded in third person, in that the paragraphs do not plead or state the words actually spoken by the first respondent to induce voters to vote for him, such as telling the people to vote for him or to think of him during polling and so on. Mr. Jubi therefore argued that the pleadings in the two paragraphs do not meet the requirements of s. 208 (a). He also cited the recent decision in Peter Isoaimo v. Paru Paru Aihi (2012) N4921 in support this argument. In that case the learned trial judge held that because s. 103 of the Criminal Code Act, provides high number of alternative elements, a petitioner has to specify the type of bribery offence allegedly committed. Again, as I said in my ruling on the second respondent's objection, that type of pleading would amount to pleading law which is outside the requirement of s. 208 (a). I stated my reasons in that ruling that the pleadings in the two paragraphs meet the requirements of s. 208 (a). I adopt those reasons here and find that the pleadings in the two paragraphs meet the requirements of s. 208 (a). I therefore dismiss this ground.

iii. The petition in paragraph 5.4 does not plead or disclose the nature and element of intention by the first respondent to induce or unduly influence the voters named in the paragraph to vote for him.

48. Mr. Jubi submitted that the paragraph does not plead or state as to who the cheque for K3000,000.00 was made. He further submitted that if the cheque was made to Yagaum Rural Lutheran Hospital, then that has not been pleaded, and even if the cheque was made to the hospital, it could not be influenced because it is not a person. Mr. Jubi argued that the paragraph does not plead or state any words spoken by the first respondent to induce or influence voters.

49. As I said in my ruling on the objection by the second respondent that there is no requirement under s. 208 (a) to plead elements of bribery or undue influence, such pleading would amount to pleading law, which is outside the requirements of s. 208 (a). I find that the facts pleaded in the paragraph meet the requirements of s. 208 (a). I therefore dismiss this ground.

iv. Whether the petitioner should have in paragraph 5.5 of the petition pleaded or disclosed names of 250 or more people who were gathered at Silopi village, Ward 4 in Ambenob Local Level Government in Madang Open electorate on 13 June, 2012, to hear the first respondent give his campaign speech; and whether the nature and element of inducement offered by the first respondent and any overt actions or omissions by the first respondent amounting to inducement should have been pleaded?

50. Firstly, in my view, it is unnecessary to plead or disclose the names of 250 or more people who were present at the gathering at Silopi village on 13 June, 2012, when the first respondent made his campaign speech. The petitioner has pleaded or disclosed names of 7 people who he says were unduly influenced. This is in my view sufficient pleading. Secondly, any overt actions or omissions by the first respondent should be established by the facts pleaded. I therefore see no error in the pleadings. Thirdly, pleading elements of undue influence is same as pleading law, which is outside of the requirements of s. 208 (a). I therefore dismiss this ground.

51. All the grounds of objection by the first respondent having been dismissed, the objection by the first respondent is also dismissed with costs.

________________________________________

Young Wadau Lawyers : Lawyers for the petitioner
Twivey Lawyers : Lawyers for the first respondent
Harvey Nii Lawyers : Lawyers for the second respondent