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Leonard v Wesley [2014] PGNC 187; N5812 (20 August 2014)

N5812


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


E.P. NO. 65 OF 2012


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


AND:


IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE SAMARAI-MURUA OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS


BETWEEN:


ISI HENRY LEONARD
Petitioner


AND:


GORDON WESLEY
First Respondent


AND:


ANDREW TRAWEN
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent


Alotau: Kariko, J
2014: 18th & 20th August


ELECTION PETITION – Objection to competency – Petition alleging bribery – Whether sufficient facts pleaded – Facts must constitute the alleged offences – Facts must cover elements of the offences – Facts must be material and relevant – section 208(a), Organic Law on National and Local Level Government Elections.


ELECTION PETITION – Objection to competency – Petition alleging bribery – – Whether petitioner required to plead the law – Whether pleading facts includes pleading the particular offence of bribery under section 103, Criminal Code – section 208(a), Organic Law on National and Local Level Government Elections.


Facts:


An objection to the competency of an election petition on the basis the petition does not set out sufficient facts (including specifying the relevant provision of section 103 of the Criminal Code in respect of grounds of bribery) as required by s.208(a) of the Organic Law on National and Local Level Government Elections.


Held:


(1) Section 208(a) of the Organic Law on National and Local Level Government Elections requires pleading of relevant and material facts that constitute the ground(s) relied upon to invalidate an election return, and the facts must be sufficient and clearly indicated to the other parties what is alleged and to sufficiently inform the Court of the issues involved.

Sir Barry Holloway v Aita Ivarato and Electoral Commission [1988] PNGLR 99 applied.


(2) Section 208(a) does not require a petitioner to plead the law, including specifying the relevant provision of section 103 of the Criminal Code where bribery is a ground of the petition.

Dick Mune v Anderson Agiru & Ors (1998) SC590 followed.
Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242 not followed.


(3) Four of the eleven grounds of the petition are struck out for failing to plead sufficient facts in accordance with s. 208(a).

Cases cited:


Benias Epe Peri v Nane Petrus Thomas and Acting Electoral Commissioner (Unreported and Unnumbered judgment of 20/4/04)
Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213
Charles Luta Miru v David Basua (1997) N1628
Delba Biri v Bill Ninkama [1982] PNGLR 342
Dick Mune v Anderson Agiru & Ors (1998) SC590
Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242
Jim Nomane v Wera Mori and Electoral Commissioner of PNG (Unreported and Unnumbered judgment of 18th February 2013)
Jimson Sauk v Don Pom Polye (2004) SC769
Ken Fairweather v Jerry Singarok & Electoral Commission (2013) SC1293
Ludger Mond v Jeffrey Nape (2003) N2318
Neville Bourne v Manasseh Voeto (1977) PNGLR 298
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921
Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295
Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 463
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064
Sir Barry Holloway v Aita Ivarato and Electoral Commission [1988] PNGLR 99
Steven Pirika Kama v John Itanu, Andrew Trawen & Michael Laimo (2007) N3246
The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43


Legislation:


Organic Law on National and Local Level Government Elections
Criminal Code


Counsel:


Ms D Mewerimbe, for the petitioner
Mr A Kongri, for the first respondent
Mr C Okil, for the second respondent


RULING


20th August, 2014


  1. KARIKO, J: This is an objection to the competency of the election petition.
  2. Although each of the respondents filed separate notices of objection to competency, the second respondent the Electoral Commissioner was granted leave at the hearing to withdraw his notice.
  3. Before dealing with the first respondent’s objection to competency, I briefly refer to the election petition.

The petition


  1. The petitioner Isi Henry Leonard was the runner-up to the first respondent Gordon Wesley who won the seat for the Samarai-Murua Open electorate in the 2012 general elections.
  2. Mr Leonard filed this petition on 2nd September 2012 pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election and return of Mr Wesley.
  3. In the petition, Mr Leonard firstly makes a general allegation that Mr Wesley and certain of his campaign committee members committed acts of bribery by distributing cash and goods to electors to induce them to vote for Mr Wesley in the elections.
  4. Mr Leonard then alleges eleven (11) specific instances of bribery that occurred after the issue of the election writ on 18th May 2012 and it is based on those acts that he seeks to have the election and return of Mr Wesley for the Samarai-Murua Open electorate declared void in accordance with section 215(1) of the Organic Law.

Objection to competency


  1. In his amended notice of objection to competency, Mr Wesley states that the election petition does not meet the strict requirements of section 208 of the Organic Law in that:
  2. Mr Wesley however abandoned the objection based on section 208(d) in light of the recent decision of the Supreme Court (Salika, DCJ, Cannings, J and Kariko, J) in Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295.
  3. I heard arguments from counsel for both Mr Wesley and Mr Leonard on Mr Wesley’s remaining objections and I now rule on the application to dismiss the petition.

The issues


  1. The issues for my determination are:

Competency of election petition


  1. Section 210 of the Organic Law provides:

210. NO PROCEEDING UNLESS REQUISITES COMPLIED WITH.


Proceedings shall not be heard on a petition unless the requirements of s.208 and 209 are complied with.


  1. The law is clearly stated in the leading case of Delba Biri v Bill Ninkama [1982] PNGLR 342 that pursuant to s.210 of the Organic Law an election petition cannot proceed to trial and must be dismissed where a petitioner fails to strictly comply with the mandatory requirements of section 208 and section 209 of the Organic Law. This legal principle is not disputed and counsel cited a number of other case authorities that re-affirm the proposition, including Paru Aihi v Moi Avei (No. 2) (2003) SC270; Jimson Sauk v Don Pomb Polye (2004) SC769; Sir Arnold Amet v Peter Charles Yama (2010) SC1064; and Kikala v Mangape (supra).

Pleading “the facts”


  1. One of the mandatory requirements set out in section 208(a) of the Organic Law is that an election petition shall “set out the facts relied on to invalidate the election or return”. Section 208(a) requires a petitioner to set out facts that constitute the grounds upon which he relies to invalidate the election or return, as failure to do so will render his petition incompetent; Delba Biri v Bill Ninkama (supra).
  2. The law is also well-settled as to what is meant by the term “the facts” referred to in section 208(a). In Sir Barry Holloway v Aita Ivarato and Electoral Commission [988] PNGLR 99 at 101 Kapi, DCJ (with whom Los, J and Hinchliffe, J agreed) described the requirements of that provision in the following statement, that has been approved in a many subsequent cases:

“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.......s 208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved......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.” (My underlining)


  1. The parties accept this statement of law that pursuant to section 208(a):

Pleading bribery


  1. The courts have also stressed that where illegal practices (electoral and Criminal Code offences, and that includes bribery) are alleged, all the constituent elements of the offences must be pleaded in the grounds of a petition to meet the requirements of section 208(a) of the Organic Law. See for example, Neville Bourne v Manasseh Voeto [1977] PNGLR 298 ; Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 46; Charles Luta Miru v David Basua (1997) N1628; Ludger Mond v Jeffrey Nape (2003) N2318; and Sir Arnold Amet v Peter Charles Yama (supra).
  2. As to what constitutes bribery as a ground for invalidating an election, the courts have referred to the criminal offence of bribery found under section 103 of the Criminal Code.
  3. In Peter Isoaimo v Paru Aihi & Electoral Commission of PNG (2012) N4921, Cannings J observed that section103 provides a number of different circumstances that amount to bribery. This point was recognized by Sheehan, J in the earlier case of Agonia v Karo (supra) when his Honour stated:

“s.103 of the Criminal Code is a large and extensive section, incorporating a range of corrupt practices of unlawful inducement, which in the several circumstances set out in the section, may make out the charge of bribery.”


  1. Later on, his Honour Sheehan, J observed that:

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


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

(My emphasis)


  1. In relation to pleading bribery as a ground in a petition, his Honour stated:

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


Pleading the law


  1. Relying on the recent case of Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242, the first respondent submitted that the law now is that section 208(a) of the Organic Law requires a petitioner who alleges bribery to plead the specific provision of section 103 of the Criminal Code that constitutes the ground of bribery.
  2. Until that decision, it was settled law that section 208(a) of the Organic Law does not require the law to be pleaded. The leading authority for that proposition which has been approved in a long line of cases is Dick Mune v Anderson Agiru & Ors (1998) SC590 where Woods, J (with whom Amet, CJ agreed) stated that:

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


  1. In the same case, Injia, J (as he then was) also agreed with Woods, J and added a qualification when he said:

“I also agree with Woods, J that there is no requirement in s.208(a) that a petition should plead the law or relevant statutory provision which defines that ground. However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice.” (My underlining)


  1. In my view, his Honour was simply saying that in certain instances where the ground alleged in the petition is based on a breach of a statutory power or duty imposed on a public official, it would be sensible to cite the relevant statutory provision so as to help the other party and the court better appreciate the facts and the grounds constituted by the facts. In my view, His Honour was not suggesting that citing the relevant statutory provision is a requirement of section 208(a).
  2. In Isoaimo v Aihi (supra), Cannings, J while discussing section 103 of the Criminal Code stated 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.” (My emphasis). It is interesting to note that his Honour offered the comments at the end of a trial, and he did not state that specifying the particular bribery offence is a requirement of section 208(a) of the Organic Law. Indeed that was not an issue before his Honour. Further it is noted that his Honour did not make any reference at all to Mune v Agiru (supra).
  3. In Jim Nomane v Wera Mori and Electoral Commissioner of PNG (Unreported and Unnumbered judgment of 18th February 2013), Gauli, AJ relied on the obiter statement of Cannings, J to dismiss the grounds of bribery in the election petition because the particular offence under section 103 of the Criminal Code was not specified. His Honour Gauli, AJ also did not refer to Mune v Agiru (supra), meaning that he applied an obiter of the National Court that is contrary to a Supreme Court pronouncement.
  4. The decision by Gauli, AJ was appealed to the Supreme Court (Jim Nomane v Wera Mori (2013) SC1242) and on the particular issue of citing the relevant Criminal Code provision, the Court (Kandakasi, J, Cannings, J and Collier, J) found no error by the trial judge and after acknowledging Mune v Agiru (supra), held that the courts have in recent times taken a stricter approach to the pleading of facts required by section 208(a) of the Organic Law, and cited as example the case of Amet v Yama (supra) decided by the Supreme Court comprising Salika, DCJ, Batari, J and Davani, J.
  5. Reference was made in particular to the statements by her Honour Davani, J at paragraphs 101, 113 and 114 of her judgement:

“[101] There is no denying, that election petitions are serious matters. They challenge the wishes of the majority of electors in an election petition. Those who instigate any challenge must comply with the mandatory pre-requisites under ss 208 and 209 of the OLNLLGE. This includes the requirement to plead all the material and relevant facts sufficient to constitute a ground of any illegal practice or undue influence. [Underlining in original]

........................


[113] When allegations of undue influence and bribery are made in a petition, these constitute allegations of criminal offences as well as electoral offences. Since the case of In Re Menyamya Open Parliamentary Election, Neville Bourne v Manesseh Voeto (supra), the law requires undue influence and bribery (ss 102 and 103 Criminal Code respectively) to be pleaded and proven as criminal offences. That is to say, firstly, that all the constituent elements of these two offences be pleaded (according to s 208 (a)) in the ground of a petition, and secondly, proven or established in evidence by the criminal standard of proof, proof beyond reasonable doubt...


[114] As criminal offences, allegations of these misdemeanours must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence. If any element of the offence alleged is omitted or not pleaded, then the facts have not been pleaded as required by s 208(a), rendering the allegation liable to be struck out.”


  1. The Supreme Court in Nomane v Mori (supra) also referred to the case of The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43 where the Supreme Court confirmed the practice in criminal law to state in an Information the relevant statutory provision allegedly breached. That case was relied upon to propose that bribery alleged in an election petition must be pleaded as one would draft a criminal charge, including citing the statutory provision creating the offence. Applying those case references together with the statement of Cannings, J in Isoaimo v Aihi (supra), the Court concluded that an election petition alleging bribery must state the particular offence under section 103 of the Criminal Code to comply with the requirement to plead facts under section 208(a) of the Organic Law.
  2. In my respectful opinion, the statements quoted from the judgement of Davani, J in Amet v Yama (supra) do no more than re-affirm the law that I discuss above at paragraphs 13 to 16. Again with respect, I do not consider the case of Amet v Yama (supra) over-ruled the views expressed in Mune v Agiru (supra).
  3. In my further opinion, the drafting of a criminal charge of bribery in criminal practice cannot be regarded as the same as pleading facts that constitute the illegal practice of bribery in an election petition.
  4. I should add that Counsel for the first respondent also referred to the case of Ken Fairweather v Jerry Singarok & The Electoral Commission (2013) SC1293 citing the head note that the Supreme Court (Mogish, J, Cannings, J and Poole, J) purportedly held that “A petition that alleges that the successful candidate or any other person committed bribery should plead which particular offence under section 103 (bribery) of the Criminal Code is allegedly committed.”, approving Nomane v Mori (supra). Despite the head note, a reading of the decision shows that the issue was in fact not decided for the reason that it was not properly before the Supreme Court, not having been raised in the National Court.
  5. From the above discussions, I conclude that the statement of law in Mune v Agiru (supra) that there is no requirement under section 208(a) of the Organic Law to plead the law, remains the law. In fact, the decision in Nomane v Mori (supra) does not state that the statement of law in Mune v Agiru (supra) no longer applies or is over-ruled.
  6. I think it also important to emphasise the explanation by Woods, J in Mune v Agiru (supra) that “... any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers.”
  7. It is common knowledge that every general election sees not only a significant increase in the number of election petitions but also a notable jump in the number of objections to competency. As Hinchliffe, J remarked in Benias Epe Peri v Nane Petrus Thomas and Acting Electoral Commissioner (Unreported and Unnumbered judgment of 20/4/04):

“...we are making it more and more difficult for petitions to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by a Counsel then it had to be with leave of the Court (see s.222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all to turn into a nightmare...”.


  1. Similar sentiments were expressed in Jimson Sauk v Don Pom Polye (2004) SC769; Steven Pirika Kama v John Itanu, Andrew Trawen & Michael Laimo (2007) N3246; and Bryan Kramer v Nixon Philip Duban (No.2) (2013) N5213.
  2. The concerns are again pertinent with the proposition that an election petition that claims bribery should plead which particular offence under section 103 of the Criminal Code is allegedly committed. How can pleading “the facts” include pleading “the law”? I am unable to agree that Legislature intended by section 222 and 208(a) of the Organic Law that a petitioner (not a lawyer) should plead the law in his petition.
  3. I strongly think that an unintended mischief would result if after pleading the facts in accordance with the principles established by Holloway v Ivarato (supra) that a petition alleging bribery is dismissed for not pleading the particular offence under section 103 of the Criminal Code. An otherwise meritorious ground of a petition alleging a serious illegal practice (amounting to a criminal offence) that in the public interest the court should inquire into, meets “defeat... at the very door steps of justice”, borrowing the words of Kandakasi, J in Pirika v Itanu (supra). That would be the case in respect of the fourth ground of bribery in this petition, and I will allude to this again when later discussing that ground.
  4. I also consider that the views of the Supreme Court in Kikala v Mangape (supra) regarding the application of section 217 of the Organic Law support the position I take. The Court said of this provision:

“... it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.


The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:


With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start."


  1. Based on the foregoing, I dismiss the objection to competency of the petition based on the argument that a petitioner claiming bribery should plead which particular offence under section 103 of the Criminal Code is allegedly committed.

The bribery allegations


  1. I now consider the specific instances of bribery alleged in the petition and in particular determine whether sufficient facts have been pleaded as required by section 208(a) of the Organic Law.

Alleged Bribery # 1


  1. The facts for first alleged act of bribery read:

"On 27 June, 2012, during the polling on Rossel Island, a strong supporter and campaign coordinator for the First Respondent namely Mr. Kosmas Piduwa of Jingo Ward, who was an elector himself gave cash payments to the following electors namely;


(i) Kwa Muo = K250.00

(ii) Mary Jerome = K 50.00

(iii) John Tabe = K 50.00

(iv) Edena Aluses = K 50.00

(v) Fatima Robert = K 50.00

(vi) Cecelia Teba = K 50.00


When the payment was made to the above recipients who are electors in the Samarai-Murua Electorate, Mr. Kosmas Piduwa said;


"Mr. Gordon Wesley gave me these monies to give them to you voters so that you can vote for him this election"


This payment of cash to the above named electors was witnessed by Mr. Gregory Celestine who is a ward councillor of Dumumu Ward; Rossel Island, Milne Bay Province.


The conduct and action of Mr. Kosmas Piduwa, a strong supporter and campaign committee coordinator of the First Respondent in inducing the above named electors to vote for the First Respondent was done with the knowledge and authority of the First Respondent."


  1. Mr Wesley argued that the facts are not sufficient to constitute the ground of bribery because the exact details of the location and time when the payments were made have not been provided.
  2. To my mind, the pleaded facts sufficiently establish the ground of bribery and it is not necessary to state the exact details of the location and time of the payments. The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 2


  1. The facts of second alleged act of bribery are:

"On Sunday 27th May, 2012, two strong supporters and campaign committee coordinators for the First Respondent namely Messrs Imasa Isei and Piesa Ronny of Liak village, Misima Island, who are also electors, gave a musicial instrument to the United Charismatic Movement Church of Bagilin village, Misima Island. The members of this church, who are electors, received the musical instrument.


When the delivery of this musical instrument was done, the two strong supporters and campaign coordinators of the First Respondent said;


"This musical instrument is from Mr. Gordon Wesley to you, the members of this church to use and he wants you members to vote for him in this election"


The delivery of musical instrument made to this church was witnessed by one Edward Telet an elector, of Liak village, Misima Island.


The conduct and actions of these two strong supporters and campaign committee members and coordinators of the First Repondent in inducing the members, who are electors, of this church to vote for the First Respondent was done with the knowledge and authority of the First Respondent."


  1. Counsel for the first respondent submitted that the facts are not sufficient to constitute the ground of bribery because the names of the recipients of the instrument and the time of the day when the musical instrument was presented are not pleaded.
  2. I accept the submission concerning the names of the recipients. As it is reads, the claim is that the musical instrument was presented to a Church. Which person or persons actually received the instrument on behalf of the Church? Was that person or were those persons electors? Such information is necessary for Mr Wesley to know so that he can properly defend the allegation.
  3. This alleged ground of bribery is accordingly struck out.

Alleged Bribery # 3


  1. The facts of the third alleged act of bribery state:

"On 23rd June, 2012 during the campaign period, the First Respondent and his Protocol Officers got on board the Samarai Murua barge from Alotau to Misima, Sudest and Rossel Islands.


On this trip from Alotau to Misima, Sudest and Rossel Islands, the First Respondent and his Protocol Officers, the First Respondent stopped at each village of Misima, Sudest and Rossel Islands and gave out to the electors of these villages material goods and machinery items and equipment which were on board, the Samarai-Murua barge.


The following material goods and machinery items were distributed by the First Respondent and his Protocol Officers;


(i) Building Materials

(ii) Toilet Pots

(iii) 18 Cartons of nail;

(iv) 6 bales of second hand clothes;

(v) One chain saw

(vi) Sewing machines

(vii) One (1) set of soccer uniforms for each ward for these named places

such as Misima, Sudest and Rossel Islands.

(viii) Water Tanks

(ix) 6 cartons of office stationery


The distribution of these material goods and machinery items to the electors of these villages was witnessed by one elector and Ward Councillor of Rossel Island, namely Ruben Mongi.


When the distribution of the above named goods and items were made, the First Respondent told electors that they should think of him in the election and vote for him."


  1. The first respondent contended that the facts are too general as they do not state for example:
  2. I agree with the submission and strike out this alleged ground of bribery.

Alleged Bribery # 4


  1. The facts pleaded for the fourth alleged act of bribery are:

"On the 24th June, 2012, at Mopa village, the Samarai-Murua barge over night and anchored. The First Respondent invited 6 ward councillors into the cabin of the Samarai-Murua barge and gave them cash payment of monies of One Hundred Kina (K100.00) each.


The names of the 6 ward councillors, the wards they represent and the amount of monies received is set out in table format below;


No.
Name of Councillor
Ward Name
Amount
1
Vaspa Aron
Morpa-Yong Bay
K100.00
2
Isikiel Badia
Pun-Ulanga Bay
K100.00
3
Giwe Bopiu
Ajaru
K100.00
4
Keven Silyvester
Abeleti-East Point
K100.00
5
Daniel Aron
Jinjo
K100.00
6
Ruben Mongi
Pambwa Saman
K100.00

This payment of monies to the 6 ward councillors by the First Respondent was witnessed by the elector Ruben Mongi who was also a recipient of K100.00.


When the First Respondent made the payment to these 6 ward councillors named above, who are also electors, he said the payment of K100.00 was for them to support him and vote for him and that any ward councillor who does not support him and vote for him in the election will not get any form of assistance from his administration when he wins the election.


The payment of these monies of K100.00 each to the ward councillors and the threat of the First Respondents administration not supporting those ward councillors in the future should they not support and vote for the First Respondent induced elector, Ruben Mongi to vote for the First Respondent.


At the trial of this Petition, witnesses will be called and photographs will be tendered which will show the First Respondent standing on the Samarai-Murua barge with load of material goods and items to be distributed to the electors."


  1. Mr Wesley did not challenge the facts pleaded in respect of this ground of bribery.
  2. It is necessary that I stress again that if I followed Nomane v Mori (supra), then this ground of bribery that has been properly pleaded with material and relevant facts to constitute the ground to invalidate the return of Mr Wesley and is therefore in accordance with the statement of law in Holloway v Ivarato (supra), would have to be struck out.

Alleged Bribery # 5


  1. The facts for the fifth alleged act of bribery read:

"On Friday, 1st June, 2012, one strong supporter and campaign coordinator of the First Respondent namely one Solomon Sete gave, an elector, member and treasurer of the United Church Women Fellowship of Bagilina village namely Dasenta Duigu the sum of K500.00 cash.


When the payment was made, Mr. Solomon Sete told elector Dasenta Duigu that the sum of K500.00 was given by the First Respondent to her for some services rendered during his campaign launching at Liak village on 23rd May 2012 although payment for those services were already settled.


The payment of these monies were done to induce elector Dasenta Duigu of Bagilina village, Misima island with the intention to induce her to vote for the First Respondent. The payment did induce the elector, Dasenta Duigu and she did in fact vote for the First Respondent because of the payment of K500.00.


The conduct and action of Solomon Sete, a strong supporter and campaign coordinator of the First Respondent was done to induce elector Dasenta Duigu to vote for the First Respondent and this was with the knowledge and authority of the First Respondent."


  1. The first respondent argued that the facts are not sufficient to constitute the ground of bribery because the following is not set out:
  2. I do not consider it necessary to state the exact details of the location and time of the payment. How Mr Wesley had knowledge of and authorized the payment is a matter of evidence. It is not alleged that Mr Sete said anything when giving the money, and how the presentation amounted to an inducement is a matter of evidence.
  3. I find that sufficient facts have been pleaded for the purpose of section 208(a). The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 6


  1. The sixth alleged act of bribery is pleaded as follows:

"On Sunday 27th of May, 2012, a strong supporter and campaign coordinator for the First Respondent, namely Solomon Sete approached an elector namely Karol Kawate of Bagilina village, Misima island and gave him K10.00 and said that the K10.00 cash was a gift from the First Respondent and that he should think of the First Respondent on the polling day.


The strong supporter and campaign coordinator for the First Respondent namely Solomon Sete also delivered to elector Karol Kawata a bolt of material for the electors of Potou section of Bagilina village, Misima island and Mr. Solomon Sete told Karol Kawate to tell the electors of Potou section of Bagilina village that these bolt of materials were from the First Respondent.


The conduct and action of Mr. Solomon Sete in distributing cash and material goods to Mr. Karol Kawate, an elector, was done to induce him and the electors to vote for the First Respondent and this was done with the knowledge and authority of the First Respondent."


  1. The first respondent suggested that the facts are not sufficient to constitute the ground of bribery because the facts do not state:
  2. Again, I do not consider it necessary to state the exact details of the location(s) and time(s) the money and material were given. How Mr Wesley had knowledge of and authorized the payment is a matter of evidence. Who actually benefitted from the material given to Karol Kawate is not essential because the allegation is that Karol Kawate who is an elector, was bribed.
  3. I find that sufficient facts have been pleaded for the purpose of section 208(a). The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 7


  1. The facts for the seventh alleged act of bribery are:

"On the 2nd of June, 2012, the First Respondent delivered a 28 Feet Plywood Board to the electors of Budi Budi of Woodlark island. The First Respondent also delivered material goods such as sawing machines, roofing iron sheets, bags of second hand clothes to the Budi Budi people of Woodlark island.


These distribution of goods and items to the electors of Budibudi of Woodlark island were witnessed by one Wesley Maseau of Woodlark Island, who is an elector, recipient of these goods and beneficiary of the Plywood Boat.


The conduct and action of the First Respondent was done with the intention to induce the electors to vote for him in the election."


  1. I find the facts as vague and general and ought to have provided further details to better inform the first respondent of the allegation against him, namely:
  2. Accordingly, I strike out this ground of bribery.

Alleged Bribery # 8


  1. The facts of eighth alleged act of bribery state:

"On the 25th of May, 2012, the First Respondent and his campaign coordinators and Protocol Officers went to Bwagabwaga village, on the Samarai-Murua Barge and delivered 2 x 40 HP Yamaha Outboard Motor engines.


An elector by the name of Hileia Josaiah received the 1 x 40 HP Yamaha round head (short shaft) out Board motor engine whilst the other elector namely Mr. Billy Seiki received the 1 x 40 HP Square head (short shaft) outboard motor engine.


The elector, Billy Seiki, also received a 19 feet Banana Boat from the First Respondent on 14th June 2012. These material goods and machinery items were delivered by the First Respondent and witnessed by one elector namely Iso Nelson of Bwagabwaga village, Misima island.


The First Respondent made deliveries of these material goods and machinery items to electors during the campaign period with the intention to induce the electors to vote for the First Respondent in the election."


  1. The first respondent argued that the facts are not sufficient to constitute the ground of bribery because the following are not set out:
  2. Again, I do not consider it necessary to state the exact details of the location(s) and time(s) the named items were given. It is not alleged that Mr Wesley said anything when giving the goods and how the presentation amounted to an inducement is a matter of evidence.
  3. I find that sufficient facts have been pleaded for the purpose of section 208(a). The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 9


  1. The facts pleaded in respect of the ninth alleged act of bribery are:

"On 06 June, 2012, a strong supporter and coordinator for the First Respondent namely Mr. Solomon Sete was at Bwagabwaga village campaigning for the First Respondent and Provincial candidate John Luke Critin.


After the campaign, Solomon Sete, met Mrs. Milika Iso of Bwagabwaga village, an elector, who is the President of the United Church Women Fellowship Group and gave the sum of K350.00 cash for the United Church Women Fellowship Group. Mrs. Milika Iso gave the K350.00 to a Nancy Hileia, an elector and treasurer of the United Church Women Fellowship Group.


This payment of K350.00 by the strong supporter and campaign coordinator of the First Respondent was not requested for nor was it solicited by the Bwagabwaga United Church Womens' Fellowship Group but was paid with the intention to induce the members, who are electors, including Mrs. Milika Iso, to vote for the First Respondent.


This action and conduct of Mr. Solomon Sete, a strong supporter and campaign coordinator for the First Respondent was done with the knowledge and authority of the First Respondent."


  1. Mr Wesley contended that the facts are not sufficient to constitute the ground of bribery because it is not stated:
  2. I do not consider it necessary to state the exact time of the payment. It is not alleged that Mr Sete said anything when giving the money and how the presentation was an inducement is a matter of evidence.
  3. I find that sufficient facts have been pleaded for the purpose of section 208(a). The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 10


  1. The facts of the tenth alleged act of bribery read:

"On the afternoon of Wednesday 23 May, 2012, at the West Liak village on the North Coast of Misima Island, the First Respondent presented the car "keys" of PMV "Mulolu" to the ward councillor of Bagilina village namely Mr. Steven Stanley.


During the presentation, the First Respondent said that the PMV truck was for the benefit of the Bagilina community and that all electors of that community who vote for him were to benefit from the use of the PMV truck.


The First Respondent said that the electors of Bagilina village were fortunate to receive this PMV truck form him and that he expected them to vote for him in return. As requested, the electors of Bagilina village voted for him and the First Respondent scored 1009 votes from this village.


This payment was witnessed by one Donigo Israel of Bagilina village, Misima island, an elector and member of the Bagilina village and community, he was also a beneficiary of the PMV Truck given by the First Respondent as he voted for the First Respondent.


The presentation of this PMV Truck by the First Respondent to the electors of Bagilina village, including electors Steven Stanley and Donigo Israel, during the campaign at Bagilina village was intended to induce the electors to vote for him in the election."


  1. Counsel for Mr Wesley submitted that the facts are not sufficient to constitute the ground of bribery because the pleadings do not state:
  2. I do not consider it necessary to state the exact time of the payment. Who actually benefitted from the PMV is not critical because the allegation is that the PMV was donated to the village so that the electors from the village would vote for Mr Wesley. While the precise words spoken by Mr Wesley when presenting the PMV are not quoted in the pleadings, the effect of his statements are set out, and that is adequate.
  3. I find that sufficient facts have been pleaded for the purpose of section 208(a). The facts pleaded clearly inform the respondent Mr Wesley and the Court of the issues raised by the ground.

Alleged Bribery # 11


  1. Counsel for Mr Leonard conceded that no act of bribery is disclosed by the facts pleaded and therefore abandoned this ground of bribery. It is accordingly struck out.

Conclusion


  1. I have found only four of the eleven grounds of the petition do not meet the requirements of section 208(a) of the Organic Law, and those grounds are struck out. This election petition will now proceed to hearing on the remaining seven grounds of bribery.

Orders


  1. This Court orders that:

_______________________________________________________________
Mawa Lawyers: Lawyers for the Petitioner
Twivey Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent

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