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Kaiwi v Tongamp [2018] PGNC 459; N7435 (27 August 2018)

N7435
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO.72 OF 2017


IN THE MATTER OF AN ELECTION DISPUTED RETURN FOR THE JIWAKA REGIONAL SEAT


BETWEEN
SIMON TAKEP KAIWI
Petitioner


AND
DR. WILLIAM TONGAMP
First Respondent


AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent


Mount Hagen & Waigani: Makail, J
2018: 24th, 29th May & 27th August


ELECTION PETITION – Trial – Bribery allegations – Bribing of voters – Proof of – Organic Law on National and Local-level Government Elections – Section 217 – Criminal Code – Section 103


Cases cited:


Powes Parkop v. Wari Vele & Electoral Commission (No. 3) (2007) N3322
Simon Takep Kaiwi v. Dr. William Tongamp & Electoral Commission (2018) N7208


Counsel:


Mr. T. Kuma, for Petitioner
Mr. M. Kuma, for First Respondent
Mr. L. Okil, for Second Respondent


JUDGMENT


27th August, 2018


1. MAKAIL, J: The allegation which survived the competency challenge is one of bribery of a group of electors by the first respondent at Tombil village on 24th June 2017. It is alleged that, the first respondent gave a pig and cash of K2,000.00 to Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi, Peter Negints and Kapil Kondi who were electors and told them to go, campaign and vote for him. They sold the pig, shared the proceeds together with the cash of K2,000.00 amongst themselves and voted for the first respondent: see Simon Takep Kaiwi v. Dr. William Tongamp & Electoral Commission (2018) N7208.


Issues


2. The issues are straight forward:


(a) Did the first respondent give a pig and cash of K2,000.00 to Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi, Peter Negints and Kapil Kondi?


(b) If so, was the giving of the pig and cash of K2,000.00 intended to induce them to vote for the first respondent or procure the return of the first respondent as Governor of Jiwaka Province?


(c) If so, were these persons electors?


3. From the evidence of Paul Kondi, Robert Erick and Kalister Geruye for the petitioner, Jimbin Kondi, Peter Negints and first respondent for the first respondent and the Returning Officer, Mr. Stepfen Wamil Wusik for the second respondent, the following facts are not disputed:


4. The facts which are disputed are:


Did the first respondent give a pig and cash of K2,000.00 to Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi and Peter Negints?


5. The evidence is conflicting. It comes down to whose evidence should be believed and accepted. The first respondent attacked the petitioner’s witnesses’ affidavit tendered as exhibit “P1”, “P2” and “P3” on the ground that the affidavits are in identical terms and on the authority of Powes Parkop v. Wari Vele & Electoral Commission (No. 3) (2007) N3322 raised serious questions as to the authenticity and credibility of the evidence.


5. For example, at paragraphs 3 to 7 of his affidavit, Paul Kondi stated:


“3. On the 24th day of June, 2017 after nomination and before polling, I went to Tombil Village with my mother and a few of my tribesmen upon invitation by the Governor of Jiwaka Province, Dr. William Tongamp.


  1. News had gone throughout all of Jiwaka Province that the Governor, Dr William Tongamp was giving out cash and pigs to people all over the province to gain their support for the 2017 National Elections.
  2. As my mother is from the Berekpa tribe, where William Tongamp hails from, I decided to go as well with my clansmen. Some of the boys who accompanied me were Jimbin Kondi, Peter Negints, Robert Erick and Kalister Geruye. All of those boys are registered as voters in the Angenmol Rest-house.
  3. At around 2.00pm, on that day, we were called into the yard by Dr William Tongamp, who personally thanked us for coming and expressing our support for him to regain the governorship of Jiwaka Province. He gave us K2,000.00 cash, all in K50 notes and one huge pig, which would be valued at about K5,000.00. He told us to go and campaign for him and vote for him. With the cash, we were given 100 election posters of Dr William Tongamp.
  4. We shared the money amongst ourselves and sold the pig on the way home and got another K1,000.00 which we also shared.”

6. Except for a minor variation at paragraph 5 due to the reference to Paul Kondi’s mother being from Berekpa tribe where the first respondent hailed from, the rest of the paragraphs from 4 to 7 in the affidavit of Robert Erick and Kalister Geruye are in identical terms as Paul Kondi’s affidavit. For example, Robert Erick stated:


“3. On the 24th day of June, 2017 after nomination and before polling, I went to Tombil Village with my mother and a few of my tribesmen upon invitation by the Governor of Jiwaka Province, Dr. William Tongamp.


  1. News had gone throughout all of Jiwaka Province that the Governor, Dr William Tongamp was giving out cash and pigs to people all over the province to gain their support for the 2017 National Elections.
  2. Some of the boys who accompanied me were Paul Kondi, Jimbin Kondi, Peter Negints and Kalister Geruye. All of those boys are registered as voters in the Angenmol Rest-house.
  3. At around 2.00pm, on that day, we were called into the yard by Dr William Tongamp, who personally thanked us for coming and expressing our support for him to regain the governorship of Jiwaka Province. He gave us K2,000.00 cash, all in K50 notes and one huge pig, which would be valued at about K5,000.00. He told us to go and campaign for him and vote for him. With the cash, we were given 100 election posters of Dr William Tongamp.
  4. We shared the money amongst ourselves and sold the pig on the way home and got another K1,000.00 which we also shared.”

7. The same sort of deficiency may be attached to the first respondent’s witnesses’ affidavits marked exhibits “D1” and “D2” because except for one or two minor variations, they are also in identical terms. For example, at paragraphs 2 to 23 of his affidavit, Peter Negints stated:


“2. My name was mentioned in the Petition filed by Simon Kaiwi (alleging) that I and others were bribed by Honourable Dr. William Tongamp, Governor of Jiwaka Province.


  1. What is alleged in the petition is not true.
  2. I was not bribed as alleged.
  3. My family has ties with Dr William Tongamp; as my mother (named in the petition as Kapil Kondi) is from Dr. Tongamp’s tribe (actually our mother is the sister of Dr. Tongamp’s father).
  4. Dr. Tongamp’s elder brother Martin Tongamp got married to one of our sister (sic) Therese.
  5. I am a supporter of Dr. Tongamp (supported him since 2012 and against in the last election).
  6. As a supporter I went to Dr Tongamp’s residence with other boys from our village.
  7. While at Dr. Tongamp’s residence, Martin Tongamp saw me and the other boys.
  8. He called me and Jimbin Kondi to the side of Dr. Tongamp’s house and gave me K600.
  9. He told me that there were a lot of pigs donated by the Jiwaka people and said to give me and the boys one pig to take back to our village.
  10. Whilst there, I did not see Dr. Tongamp anywhere on the premises that time.’
  11. Towards the afternoon, we got a pig from Martin Tomgamp and left for our village.
  12. On the way, Frank Pikip saw us and requested to buy the pig.’
  13. We agreed and give the pig to Frank Pikip and he paid us K1,200.00.
  14. I picked up the money from Frank Pikip and together with the money given by Martin Tongamp shared with the boys.
  15. What is alleged in the petition is not true.
  16. We did not meet Dr. Tongamp and obtained from him K2,000.00 as alleged.
  17. I only got K600 (all K100 notes) from Martin Tongamp and not K2,000.00 (all in K50 notes) as alleged.
  18. The only person that Martin Tongamp giving me the money is Jimbin Kondi and not others.
  19. What is alleged in the petition is a total lie.
  20. I did not even sit with the (sic) Simon Kaiwi or his lawyer and told them of what is alleged in the petition ( particularly ground 3.4 of the petition).
  21. I was surprise (sic) when I was told of these allegations involving me and others from Kosge and Golnamne villages.”

8. At paragraphs 2 to 23 of his affidavit, Jimbin Kondi stated:


“2. My name was mentioned in the Petition filed by Simon Kaiwi (alleging) that I and others were bribed by Honourable Dr. William Tongamp, Governor of Jiwaka Province.


  1. What is alleged in the petition is not true.
  2. I was not bribed as alleged.
  3. My family has ties with Dr William Tongamp; as my mother (named in the petition as Kapil Kondi) is from Dr. Tongamp’s tribe (actually our mother is the sister of Dr. Tongamp’s father).
  4. Dr. Tongamp’s elder brother Martin Tongamp got married to one of our sister (sic) Therese.
  5. I am a supporter of Dr. Tongamp (supported him since 2012 and against in the last election).
  6. I accompanied Peter Nekints and other boys from our village to Dr Tongamp’s residence.
  7. While at Dr. Tongamp’s residence, Martin Tongamp saw Peter Nekints and me with other boys.
  8. He called us to the side of Dr. Tongamp’s house and gave K600.0 to Peter Nekints.
  9. He told us that there were a lot of pigs donated by the Jiwaka people and said to give to use one pig to take back to our village.
  10. Whilst there, I did not see Dr. Tongamp anywhere on the premises that time.
  11. Towards the afternoon, we got a pig from Martin Tomgamp and left for our village.
  12. On the way, Frank Pikip saw us and requested to buy the pig as he was buying pigs for his bribe price and said to pay K1,240.00.
  13. We gave the pig to Frank Pikip and he paid us K1,200.00.
  14. Peter Nekints picked up the money from Frank Pikip and together with the money given by Martin Tongamp he shared with us.
  15. We were never bribed by Dr. Tongamp as alleged.
  16. We did not meet Dr. Tongamp and he gave us K2,000.00 as alleged.
  17. Peter Nekints only got K600 (all K100 notes) from Martin Tongamp and not K2,000.00 (all in K50 notes) as alleged.
  18. I was with Peter Nekints when Martin Tongamp gave him K600.
  19. What is alleged in the petition is a total lie.
  20. Me and Peter Nekints did not meet Simon Kaiwi or his lawyer and told them of what is alleged in the petition.
  21. I was surprise (sic) when I was told of these allegations involving me and others from Kosge and Golnamne villages.”

9. I am satisfied that this deficiency explains why both sides were not entirely truthful about the events that occurred on the date in question. In addition, while the first respondent’s evidence was not tested in cross-examination, the denials he made in his affidavit (Exhibit “D3”) are too general and vague. For this reason, it is not sufficient to refute the specific allegation that he was the person who gave pig and money to these persons. Importantly, demeanour wise, I have observed each witness from the witness box and I must say I was not impressed with each of them. I can tell from each witness’s demeanour and the answers he gave in response to the questions that not all the answers accurately represented what had happened or that the witness was evasive.


10. For example, Robert Erick responded with “no” to almost every question asked by defence counsel. When asked if he was invited by the first respondent to the meeting at Tombil village, he said no. But when further asked why he went to Tombil village, he said that it was because the supporters of the first respondent went and the supporters of the petitioner also went. While there, the first respondent gave pig and money to them. When asked the same sorts of questions, Paul Kondi also said that he went to Tombil to get cash and pig. When asked why he went to Tombil village, he said that the first respondent is a relative of Paul Kondi and he went with Paul Kondi to get pig and money.


11. Jimbin Kondi and Peter Negints were also not truthful about who gave the items to them. They attempted to distance themselves from the group of men who went to Tombil village. For example, they did not state in their affidavits that they went with Paul Kondi, Robert Erick and Kalister Geruye to Tombil village. When asked to name the other young men who went with him to Tombil, Peter Negints said that they were John Bai, Junior Mek, Kapak Kundop, David Kuni, Mark Kundop, Titus Maki and Andrew Kondup. Jimbin Kondi contradicted Peter Negints. He said that Paul Kondi, Robert Erick and Kalister Geruye were part of the group who went to Tombil. But he said they did not go further than the junction road.


12. I accept Paul Kondi, Robert Erick and Kalister Geruye’s evidence that they were given K2,000.00 to help them campaign for the first respondent. However, I also accept the evidence of Jimbin Kondi and Peter Negints that the pig was sold to a Frank Pikip and fetched a further K1,200.00. This would be a reasonable sum paid for a pig in the circumstances. To claim a sum of K5,000.00 is too high and unrealistic.


13. I am satisfied on the evidence that it was the first respondent who gave the pig and money to them. The amount of money was K2,000.00 and a pig which fetched a further K1,200.00. I am satisfied that the elements of the offence of bribery as to identity of the perpetrator and the type of gift or property offered under Section 103 of the Criminal Code have been established.


If so, was the giving of the pig and cash of K2,000.00 intended to induce Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi and Peter Negints to vote for the first respondent or procure the return of the first respondent as Governor of Jiwaka Province?


14. But that is not all. As to the next question, I am not satisfied that Paul Kondi, Robert Erick and Kalister Geruye were truthful about the purpose of the first respondent giving these items. It is doubtful if their account were to be accepted that they went to the meeting even though they were supporters for another candidate. If there is any truth in their story that the first respondent gave his posters and told them to go and campaign for him, then it further supported the proposition that it would be illogical for a supporter or supporters of another candidate to work against the very person who gave them those items. The claim that they were betrayers or conspirators to cause the down fall of the first respondent by using the items to attack him in this petition cannot be ruled out.


15. It is even much stronger when it is not disputed by the petitioner that Paul Kondi was a relative of the first respondent through his mother Kapil Kondi. Kapil Kondi is the sister of the first respondent’s father. For these young men, they followed Mrs. Kapil Kondi to the first respondent’s premises to collect their share of the items and go and campaign for him. I am not satisfied that the petitioner has been able to establish that this possibility was not open to this Court to draw.


16. In the end, I am not satisfied that the giving of money and pig by the first respondent was to induce these persons to vote for the first respondent. The element of inducement has not been established.


If so, were Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi and Peter Negints electors?


17. In the light of the above finding, it is not necessary to consider this question.


Order


18. The orders are:


1. The petition is dismissed.


  1. Except for specific orders for costs in favour of the petitioner in the course of the proceeding, the petitioner shall pay the costs of the petition, to be taxed, if not agreed.
  2. The security deposit in the sum of K5,000.00 shall be paid to the respondents in equal shares forthwith.

________________________________________________________________
Tumun Kuma Lawyers: Lawyers for Petitioner
Kuma Lawyers: Lawyers for First Respondent
Kimbu & Associates: Lawyers for Second Respondent

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