N7411

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 32 OF 2017

IN THE MATTER OF AN ELECTION DISPUTE FOR THE                                                                                           
WOSERA GAWI ELECTORATE

BETWEEN:
FRANCIS ESSACU BAINDU                                                                                                                                                                     Petitioner 

AND:
JOSEPH JERRY YOPIYOPI                                                                                                                                                            First Respondent

AND:
THE ELECTORAL COMMISSION                                                                                                                      Second Respondent

Wewak: Manuhu, J
2018: 24, 25 & 27 July

ELECTIONS – No Case to Answer Submission – Illegal practice – Elements – Bribery – Successful candidate – A person other than the candidate – Result of the election was likely to be affected - It is just that the election should be declared void.

PRACTICE AND PROCEDURE – Evidence – Witnesses – No affidavit filed  – Consequences of

Cases Cited.

Ken Fairweather v Jerry Singirok & Ors (2013) SC 1279
Sandy Talita v Peter Ipatas (2016) SC 1603  
Francis Komanrea-v-Alois Sumunda (2003) N2421

Counsel:

C. Mende, for the Petitioner,
R. Saulep, for the First Respondent,
J. Simbala, for the Second Respondent.

27th July, 2018

1.	MANUHU,J: This is the ruling on the no case to answer submission by the respondents.

2.	The First Respondent was the successful candidate in the 2017 National General Elections for the Wosera Gawi Electorate in East Sepik Province.  He received a total of 10,822 votes after the final elimination.  The Petitioner was first runner up with 7,896 votes, a difference of 2,926 votes.  The Petitioner seeks to void the result of the election.

3.	There were seven allegations of bribery in the petition.  They were:

•	Bribery by Paul Kombuli
•	Bribery by Nelson Buka (T Shirts)
•	Bribery by Nelson Buka (Solar Panel)
•	Bribery by Theo Paul
•	Bribery by Samuel Kilawe
•	Bribery by Clement Koma
•	Bribery by the First Respondent

4.	The allegation of bribery by Paul Kombuli was abandoned before the hearing of the competency application, which application was subsequently dismissed.  The allegations of bribery by Nelson Buka (T Shirts), Theo Paul, Samuel Kilawe, and the First Respondent were abandoned earlier this week before the commencement of the substantive hearing and in the course of arguments on whether witnesses who did not file any affidavit should be allowed to give evidence.  We were then left with just two grounds for substantive hearing, namely, the allegations of bribery by Nelson Buka (Solar Panel) and by Clement Koma.

5.	Against Nelson Buka, it was alleged that he, with the knowledge or authority of the First Respondent, gave to Lux Keletku and his family a complete solar kit to procure their votes in the 2017 National General Election thereby contravening section 103 of the Criminal Code.  The Petitioner then pleaded section 215(1) and 212(1)(f) of the Organic Law on National and Local-level Government Elections to nullify and void the result of the election.

6.	It was alleged against Clement Koma that he, with the knowledge or authority of the First Respondent, gave to Lazarus Kaiban a Yamaha Out Board Motor to procure his vote and votes of other youths in the 2017 National General Election thereby contravening section 103 of the Criminal Code.  The Petitioner then pleaded section 215(1) and 212(1)(f) of the Organic Law to nullify and void the result of the election.

7.	At the substantive hearing, the relevant common roll was tendered by consent and marked as Exhibit P1.  Lux Keletku was called and gave oral evidence to compliment his affidavit which was admitted and marked as Exhibit P2.  His evidence related to the allegation against Nelson Buka. 

8.	The Petitioner then sought to call three witnesses who were earlier summoned but who did not have any affidavit in the file as directed by the Directions Judge.  It was the respondents’ complaint that because they did not have any affidavit from those witnesses, they were likely to be prejudiced in that they did not know what the witnesses would say and they were not prepared to cross-examine and call evidence in rebuttal if need be.  If an adjournment was sought, it would be costly to all parties.  Even the Petitioner’s counsel did not know what the summoned witnesses would say as he had not spoken to them.

9.	The Court ruled that in any legal proceeding, whether a witness is called is usually dictated by relevance of evidence.  In this situation, in the absence of any affidavit, the Court as well as counsel were unable to determine whether the three witnesses’ evidence would be on point and relevant to the matters in question. 

10.	In any case, if the Court permitted the three witnesses to give evidence, the hearing would have to be adjourned to enable the respondents to obtain further instructions.  An adjournment would have been less disruptive if it concerned just one witness but there were three.  How could we manage that? Should they all give evidence in chief now and be cross-examined later?  The hearing was scheduled to be completed this week, not later.    

11.	It was also noted that if the Petitioner’s counsel had not taken instructions from the three witnesses, how did the allegations come into existence?   Any allegation should be premised upon instructions.  It is not the other way around.

12.	For the foregoing reasons, the Court refused the calling of the three witnesses.  

13.	With no more witnesses to call, the Petitioner closed his case. 

14.	The allegation of bribery by Clement Koma was consequently unsupported by evidence and was dismissed.  Technically, it was dismissed on the basis that there was no case for the respondents to answer to.  A proper no case to answer submission was made in relation to the allegation of bribery by Nelson Buka.

15.	In that regard, the Court is of the view that there is prima facie evidence of bribery against Nelson Buka.  Lux Keletku’s evidence is that he met Nelson Buka on 20 June 2017 at Maprik.  Nelson Buka told him that he would be given a gift.  They met as agreed on 27 June 2017 and Nelson Buka gave to him a solar panel.  Nelson Buka told him to vote for the First Respondent.  That is prima facie evidence of bribery by Nelson Buka.

16.	Bribery is an illegal practice under section 215 of the Organic Law. In other words, an illegal practice includes bribery or undue influence and attempted bribery or undue influence: See Ken Fairweather v Jerry Singirok & Ors (2013) SC 1279 and Sandy Talita v Peter Ipatas (2016) SC1603.  

17.	There are also other elements of section 215 that the Petitioner has to establish at this stage.  The section reads:
  
“215. VOIDING ELECTION FOR ILLEGAL PRACTICES.

“(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) 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.”

18.	Where bribery, undue influence or attempts to commit them are committed by a “successful candidate” his election “shall be declared void” regardless of whether the “the result of the election was likely to be affected and regardless of whether it is just to void the election result”(subs. (1) and (3)(b)).  Where an illegal practice by the successful candidate does not involve bribery, undue influence or attempts to commit those illegal practices, it has to be shown that the result of the election was likely to be affected and it is just that the result should be voided (subs (3)(b).

19.	The allegation in question was not committed by the First Respondent so these provisions do not apply.      
    
20.	On the evidence, the applicable provision is subs. (3)(a).  However, where bribery was committed by “a person other than the candidate” voiding an election is not automatic.  It has to be further shown that the result of the election was likely to be affected and that it is just that the result should be declared void (subs. (3)(a).  See Francis Komanrea v Alois Sumunda (2003) N2421.  

21.	This means that at the closure of Petitioner’s case, there must be prima facie evidence on the following: 

•	illegal practice
•	by another person
•	with the knowledge or authority of the successful candidate
•	result of the election was likely to be affected 
•	it is just that the result should be declared void

22.	The Court is satisfied that there is prima facie evidence that Nelson Buka bribed Lux Keletku with a solar panel on 27 June 2017.  As bribery is an illegal practice, the first requirement as well as the second requirement have been met.  In relation to knowledge and authority, there is sufficient evidence upon which an inference can be drawn that the First Respondent authorised and knew about the alleged bribery. 

23.	In relation to the fourth requirement, there is no evidence that the result of the election was likely to be affected.  The allegation did not plead that the result was likely to be affected.  For argument sake, the same can be said in relation to the allegation of bribery by Clement Koma.  Both allegations did not plead that the result of the election was likely to be affected. The Petitioner was fortunate that both grounds passed the competency test.  

24.	The petition in paragraph B5 shows that the First Respondent won by 2,926 votes.  In the absence of evidence, that is the only information before the Court to determine the issue at hand.  Clearly therefore, the alleged bribery did not affect the result of the election.  The consequence is fatal.

25.	In all the circumstances, I will uphold the no case to answer submission.  There is no case for the respondents to answer to.  

26.	As there are no grounds left for further determination, the entire petition has to be dismissed and I so order with costs.  The security deposit shall be paid to the respondents to be shared equally.

Orders accordingly.
_______________________________________________________________
Wantok Legal Group: Lawyer for the Petitioner			
Saulep Lawyers:  Lawyer for the First Respondent		
Harvey Nii Lawyers:  Lawyer for the Second Respondent