Simitab v Isifu [2018] PGNC 12; N7068 (16 January 2018)

N7068

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 40 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE
WEWAK OPEN ELECTORATE

JIM SIMITAB
Petitioner

V

KEVIN ISIFU
First Respondent

ELECTORAL COMMISSION
Second Respondent

Wewak: Cannings J
2018: 15, 16 January

ELECTIONS – petitions – objection to competency of petition – need for strict compliance with Organic Law on National and Local-level Government Elections, Section 208 (requisites of petition) – Section 208(a): whether facts relied on to invalidate the election adequately set out.

Two respondents to an election petition objected to competency of the petition, which, after two grounds were abandoned, consisted of five grounds of challenge, all relating to bribery and other illegal practices allegedly committed by or on behalf of the first respondent (the successful candidate). Both respondents relied on the same ground of objection to each ground of the petition: that the petition was in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections in that it did not adequately set out the facts relied on to invalidate the election.

Held:

(1) Strict compliance with each of the requirements of Section 208 of the Organic Law is required. Substantial compliance is not sufficient.

(2) The facts set out in respect of respect of each of the grounds of the petition were adequate. Therefore both objections were dismissed.

Cases cited

The following cases are cited in the judgment:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Fairweather v Singirok (2013) SC1293
Holloway v Ivarato [1988] PNGLR 99
Kapris v Simon (2013) N5001

OBJECTIONS

This is a ruling on objections to competency of an election petition.

Counsel

M Murray, for the Petitioner
A W Jerewai, for the First Respondent
H Nii, for the Second Respondent

16^th January, 2018

1. CANNINGS J: This is a ruling on two objections to competency of an election petition. The petition, consisting originally of seven grounds of challenge, was filed by unsuccessful candidate Jim Simitab, disputing the election of first respondent Kevin Isifu as member for Wewak Open in the 2017 general election.

2. Just prior to the hearing of the objections the petitioner abandoned the first and seventh grounds of challenge, leaving the petition with five grounds of challenge, all relating to bribery and other illegal practices allegedly committed by or on behalf of the first respondent (the successful candidate).

3. Both respondents (the second respondent is the Electoral Commission) rely on the same ground of objection to each of the five grounds of the petition: that the petition is in breach of Section 208(a) (requisites of petition) of the Organic Law on National and Local-level Government Elections in that it does not adequately set out the facts relied on to invalidate the election. Section 208 provides that “a petition shall set out the facts relied on to invalidate the election or return”.

4. It has been accepted without question since the seminal decisions of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1988] PNGLR 99 that the requirements of Section 208 of the Organic Law must be strictly complied with and that respondents to an election petition have a right to object to its competency.

5. I will determine the objections by addressing each ground of the petition in turn, in each case summarising the ground of the petition, then setting out the alleged deficiencies in the facts set out in the ground and then determining the objection. I will retain the original numbering of the grounds of the petition, ignoring Nos 1 and 7 as they have been abandoned.

GROUND 2: ILLEGAL PRACTICES, SPECIFICALLY BRIBERY, LOWAN NO 1 VILLAGE, 21 JUNE 2017 (para 15 of petition)

Allegations

6. This ground of the petition alleges that the first respondent went to the village and:

• presented a pig to the people of the village; and
  
• made a statement just before his campaign speech:
  

Yupela olgeta Kaikai dispela pik na givim mi namba wan vout bilong yupela.

[You can all eat this pig and vote me as your first preference.]

7. It is further alleged that:

• with the first respondent’s knowledge, one of his campaign coordinators, Henry Weisam, gave Jeffery Blasagi, an elector, K1,000.00 for another pig that had been given the previous day to another candidate, Jack Solomon; and
  
• Jack Solomon was a running mate of the first respondent and during the activity of dividing the pig meat and giving it to “all houses” in the village, stated:
  

Yupla olgeta kaikai displa pik na givim mi ol Namba wan vout na sapos yu stap wantaim Jack Solomon orait givim ol Namba wan vout bilong yupla long em na ol Namba tu givim i kam long mi.

[You can all eat this pig and vote me as your first preference and your second preference to Kevin Isifu.]

• by reason of those actions, three electors (Jeffery Blasagi, his wife Joiclyn Blasagi, and Jeffery Bial (who also received K1,000.00 for a pig provided to the first respondent)) cast their votes for the first respondent.
  

8. It is claimed that:

• the first respondent has therefore acted contrary to Sections 50(1)(c) and (d) of the Constitution and Sections 101(1), 102(b), 103(a)(iii) and (d) and 106(1)(a) of the Criminal Code; and therefore
  
• the election of the first respondent should be declared null and void under Section 215(1) of the Organic Law.
  

Objections

9. The respondents argue that this ground of the petition does not adequately set out the facts relied on to invalidate the election, in the following respects:

1. names and number of electors at the village are not specified;
   
2. it is not pleaded that any of the three persons allegedly bribed were present when the first respondent made his speech;
   
3. names of electors amongst whom pork was shared were not specified;
   
4. it is not pleaded when and where the pig was roasted, by whom it was roasted and what part of the pig was given to the three persons allegedly bribed;
   
5. it is not pleaded that any of the three persons named were electors in the Wewak Open electorate;
   
6. it is not specified how giving a man K1,000.00 for his pig can constitute bribery;
   
7. it is not pleaded that the alleged illegal practices committed by persons other than the first respondent were committed with his knowledge or authority, which was required under Section 215(3) of the Organic Law;
   
8. it is not pleaded that the result of the election was likely to be affected, and that it was just that the first respondent should be declared not to be duly elected, which was required under Section 215(3) of the Organic Law, due to some acts of alleged bribery being committed by persons other than the first respondent.
   

Determination

10. I am not persuaded that the facts referred to in objections (1) to (5) are necessary to constitute a good ‘pleading’ of ground 2 of the petition, so I dismiss those objections. I note the respondents’ reference to the decision of David J in Kapris v Simon (2013) N5001, in which his Honour indicated that it is necessary to state expressly in a petition that an allegedly bribed elector was an elector in the electorate that is the subject of the petition. However I am not bound by that decision and I am not persuaded that I ought to follow it.

11. As to (6), which raises the question of whether the man who was allegedly paid K1,000.00 for his pig was bribed, I consider that this is a matter of evidence and submissions, which can be dealt with at a trial.

12. As to (7) and (8) the respondents have raised valid points about the desirability, if not requirement, for a ground of a petition that alleges bribery or undue influence committed by a person other than the successful candidate to expressly allege two things:

• that the alleged bribery or undue influence was committed with the successful candidate’s knowledge or authority; or
  
• that the alleged bribery or undue influence was of such a nature that the result of the election was likely to be affected and that it is just that the successful candidate should be declared not duly elected or that the election should be declared void.
  

13. These requirements arguably arise from Section 215(3) of the Organic Law, which states:

The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

14. In ground 2, alleged bribery and other illegal practices have been committed by Henry Weisam and Jack Solomon. If this ground of the petition were based solely on those alleged practices I would rule that by failing to plead the matters required by Section 215 there was a failure to set out adequate facts. However because the alleged bribery and other illegal practices committed by Henry Weisam and Jack Solomon are so closely connected to the act of bribery alleged directly against the first respondent, I consider that it would not be proper to strike down the whole ground. Nor would it be proper to disregard the illegal practices allegedly committed by Henry Weisam and Jack Solomon or to put a notional blue line through those allegations and leave the bribery allegation against the first respondent intact.

15. This apparent defect in ground 2 might or might not be cured by evidence and/or submissions at a trial. At this stage, however, I have concluded that it is not a good reason to strike out the whole ground. The objection to ground 2 is therefore dismissed.

GROUND 3: ILLEGAL PRACTICES, SPECIFICALLY BRIBERY, UMAMUM VILLAGE, 21 JUNE 2017 (para 16 of petition)

Allegations

16. This ground of the petition alleges that the first respondent went to the village and:

• presented a pig to the people of the village; and
  
• made a statement just before his campaign speech:
  

Yupla olgeta kaikai displa pik na givim mi ol Namba wan vout na sapos yu stap wantaim Jack Solomon orait givim ol Namba wan vout bilong yupla long em na ol Namba tu givim i kam long mi.

[You can all eat this pig and vote me as you first preference and if you are supporting Jack Solomon, then vote for him as your first preference and vote for me as your second preference.]

17. It is further alleged that:

• by reason of those actions, an elector, Caspar Messi, cast his vote for the first respondent.
  

18. It is claimed that:

• the first respondent has therefore acted contrary to Sections 50(1)(c) and (d) of the Constitution and Sections 101(1), 102(b), 103(a)(iii) and (d) and 106(1)(a) of the Criminal Code; and therefore
  
• the election of the first respondent should be declared null and void under Section 215(1) of the Organic Law.
  

Objections

19. The respondents argue that this ground of the petition does not adequately set out the facts relied on to invalidate the election, in the following respects:

1. names and number of electors at the village are not specified;
   
2. it is not pleaded that the person allegedly bribed was present when the first respondent made his speech;
   
3. it is not pleaded when and where the pig was roasted, by whom it was roasted and what part of the pig was given to the person allegedly bribed;
   
4. it is not pleaded that the person named was an elector in the Wewak Open electorate.
   

Determination

20. For similar reasons set out in relation to ground 2, I am not persuaded that the facts referred to by the respondents are necessary to constitute a good pleading. The objection to ground 3 is dismissed.

GROUND 4: ILLEGAL PRACTICES, SPECIFICALLY BRIBERY, AROHIMI VILLAGE, 21 JUNE 2017 (para 17 of petition)

Allegations

21. This ground of the petition alleges that the first respondent went to the village and:

• presented a pig to the people of the village; and
  
• made a statement just before his campaign speech:
  

Yupla olgeta kaikai displa pik na givim mi ol Namba wan vout na sapos yu stap wantaim Jack Solomon orait givim ol Namba wan vout bilong yupla long em na ol Namba tu givim i kam long mi.

[You can all eat this pig and vote me as you first preference and if you are supporting Jack Solomon, then vote for him as your first preference and vote for me as your second preference.]

22. It is further alleged that:

• by reason of those actions, an elector, John Topi, cast his vote for the first respondent.
  

23. It is claimed that:

• the first respondent has therefore acted contrary to Sections 50(1)(c) and (d) of the Constitution and Sections 101(1), 102(b), 103(a)(iii) and (d) and 106(1)(a) of the Criminal Code; and therefore
  
• the election of the first respondent should be declared null and void under Section 215(1) of the Organic Law.
  

Objections

24. The respondents argue that this ground of the petition does not adequately set out the facts relied on to invalidate the election, in the following respects:

1. names and number of electors at the village are not specified;
   
2. it is not pleaded that the person allegedly bribed was present when the first respondent made his speech;
   
3. it is not pleaded when and where the pig was roasted, by whom it was roasted and what part of the pig was given to the person allegedly bribed;
   
4. it is not pleaded that the person named was an elector in the Wewak Open electorate.
   

Determination

25. For similar reasons set out in relation to ground 2, I am not persuaded that the facts referred to by the respondents are necessary to constitute a good ‘pleading. The objection to ground 4 is dismissed.

GROUND 5: ILLEGAL PRACTICES, SPECIFICALLY BRIBERY, SOWOM EX-SERVICEMEN SETTLEMENT, 21 JUNE 2017 (para 18 of petition)

Allegations

26. This ground of the petition alleges that the first respondent went to the settlement and:

• presented a pig to the people of the settlement; and
  
• made a statement just before his campaign speech:
  

Yupla olgeta kaikai displa pik na givim mi olgeta Namba wan vout na sapos yupla stap wantaim Jack Solomon orait yupla givim em ol Namba wan vout na tromoi ol Namba tu vout bilong yupla kam long mi”

[You can all eat this pig and vote me as you first preference and if you are supporting Jack Solomon, then vote for him as your first preference and throw in your second preferences for me.]

27. It is further alleged that:

• by reason of those actions, an elector, Samson Kabu, cast his vote for the first respondent.
  

28. It is claimed that:

• the first respondent has therefore acted contrary to Sections 50(1)(c) and (d) of the Constitution and Sections 101(1), 102(b), 103(a)(iii) and (d) and 106(1)(a) of the Criminal Code; and therefore
  
• the election of the first respondent should be declared null and void under Section 215(1) of the Organic Law.
  

Objections

29. The respondents argue that this ground of the petition does not adequately set out the facts relied on to invalidate the election, in the following respects:

1. names and number of electors at the settlement are not specified;
   
2. it is not pleaded that the person allegedly bribed was present when the first respondent made his speech;
   
3. it is not pleaded when and where the pig was roasted, by whom it was roasted and what part of the pig was given to the person allegedly bribed;
   
4. it is not pleaded that the person named was an elector in the Wewak Open electorate.
   

Determination

30. For similar reasons set out in relation to ground 2, I am not persuaded that the facts referred to by the respondents are necessary to constitute a good pleading. The objection to ground 5 is dismissed.

GROUND 6: ILLEGAL PRACTICES, SPECIFICALLY BRIBERY, BOUTIQUE HOTEL, 24 JUNE 2017 (para 19 of petition)

Allegations

31. This ground of the petition alleges that at the Boutique Hotel:

• the first respondent met with three members of his campaign committee, Albert Kongomori, Julius Wawojin and Tobias Narun, and gave each of them a bundle of K5,000.00 cash in K50.00 notes; and
  
• made a statement to them, which had the effect of being a directive to them to give money to voters to induce them to cast their vote for the first respondent:
  

Yupla kisim moni na go baim Namba wan vout blong mi. Sopos yupla no nap baim Namba wan vout blong mi orait yupla mas baim Namba tu vout blong mi.

[You can take this money and go buy the number 1 vote for me. If you cannot buy the number one vote for me then buy the second vote for me.]

32. It is further alleged that:

• at 4.00 pm on 24 June 2017 at Wainjo village, Albert Kongomori gave K100.00 in two K50.00 notes to Jacob Kwaigau who kept one note for himself and gave the other to his wife Lilian Kwaigau; and
  
• by reason of those actions, Jacob Kwaigau and Lilian Kwaigau, who are electors, cast their votes for the first respondent.
  

33. It is claimed that:

• the first respondent has therefore acted contrary to Sections 50(1)(c) and (d) of the Constitution and Sections 101(1), 102(b), 103(a)(iii) and (d) and 106(1)(a) of the Criminal Code; and therefore
  
• the election of the first respondent should be declared null and void under Section 215(1) of the Organic Law.
  

Objections

34. The respondents argue that this ground of the petition does not adequately set out the facts relied on to invalidate the election, in the following respects:

1. this ground of petition is tainted with malice and bad faith as the person specified in the petition as having witnessed the events, Jackson Kwaigau, was at the material time a supporter and scrutineer for the first respondent;
   
2. it is not pleaded what the person actually said when giving the cash to the two electors allegedly bribed;
   
3. it is not pleaded that either of the two persons named were electors in the Wewak Open electorate;
   
4. it is not pleaded that Albert Kongomori acted with the knowledge or authority of the first respondent, as required under Section 215(3) of the Organic Law;
   
5. it is not pleaded that the result of the election was likely to be affected, and that it was just that the first respondent should be declared not to be duly elected, which was required under Section 215(3) of the Organic Law.
   

Determination

35. As to objection (1), the question of whether a petition is tainted with malice or bad faith is not a matter that goes to the competency of the petition.

36. As to (2) the question of what the person actually said when giving the cash to the two electors allegedly bribed is a question of evidence and can be adequately addressed at trial.

37. As to (3), as I indicated earlier, it is not necessary to plead that either of the two persons named were electors in the Wewak Open electorate.

38. As to (4), it is adequately pleaded that Albert Kongomori acted with the knowledge or authority of the first respondent.

39. As to (5), on the facts alleged in ground 6, which include an allegation that Albert Kongomori acted with the authority of the first respondent, it would not appear to be necessary to plead that the result of the election was likely to be affected, and that it was just that the first respondent should be declared not to be duly elected (Fairweather v Singirok (2013) SC1293).

40. The objection to ground 6 is therefore dismissed.

CONCLUSION

41. Each respondent’s objection to competency is dismissed. The petition will proceed to trial on grounds 2 to 6 of the petition. The question of costs of the hearing of the two objections is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that costs follow the event. The respondents will pay the petitioner’s costs of the objection irrespective of the outcome of the trial.

ORDER

(1) The first respondent’s objection to competency of the petition is dismissed.

(2) The second respondent’s objection to competency of the petition is dismissed.

(3) The respondents shall pay the petitioner’s costs of each objection on a party-party basis, irrespective of the outcome of the trial, which shall, if not agreed, be taxed.

(4) The petition shall proceed to trial in accordance with directions of the Court.

Ruling accordingly.

____________________________________________________________
Murray & Associates Lawyers: Lawyers for the Petitioner
Jerewai Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent