Yagama v Uguro [2018] PGNC 67; N7135 (27 February 2018)

N7135

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 70 OF 2017 (No.3)

IN THE MATTER OF A DISPUTED RETURN FOR THE USINO/BUNDI OPEN ELECTORATE
BETWEEN
ANTON FRANCIS YAGAMA
Petitioner

AND
JIMMY UGURO
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Madang: Toliken J
2018: 23rd, 27^th February

ELECTION PETITIONS - Practice and procedure - Notice of objection to Competency - Pleading of material or relevant facts - Illegal Practices - Bribery and undue influence -Need to plead both statutory provision (and constituent elements) and material or relevant facts - Petition failed to plead statutory elements - Bribery by third persons - Need to plead specifically that alleged bribery done with knowledge or authority of winning candidate - Full knowledge and authority not requirement of Section 215 (1) Organic Law - Grounds of petition incompetent -Petition dismissed with costs -Organic Law on National and Local-level Government Elections, ss 208, 209,210,215; Criminal Code Ch. 262, ss 102, 103.
Cases Cited:

Wesley v Leonard.(2016) SC 1477
Nomane v Mori (2013) SC 1242
Kikala v Electoral Commission (2013) SC 1295
Amet v Yama (2010) SC 1064
Holloway v Ivarato [1988] PNGLR 99
Mond v Nape (2003) N2318)
Okeva v Atiyafa (2013) N4993
Miru v Basua (1977) N1628
Bourne v Voeto [1977] PNGLR
Puaria v Lera (2013) N5148
Isoaimo v Aihi (2012) N4921
Agiru v Mune (1998) SC 590
Agonia v Karo [1992] PNGLR 463
Delba Biri v Bill Ninkama [1982] PNGLR 342
Malakai Tabar v Hon. Jelta Wong; EPNO.11 OF 2017 (unreported and unnumbered judgment dated 19 January 2018)
Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea (No.1) (2018) N7133
Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea; EP 70 of 2017 (No.2) (2018) N7134

Counsel:

P Kuman, for the Petitioner
K Iduhu with H Masiria, for the First Respondent
R Kukari, for the Second Respondent

RULING

27^th February, 2018

1. TOLIKEN J: This is an objection by the First Respondent to the competency of the Petitioner's petition. The Petition was originally based on fours grounds - two grounds of bribery, one ground of undue influence and one ground of errors and omissions. In the course of certain preliminary applications the Petitioner, however, withdrew or abandoned the grounds of errors and omissions against the Second Respondent and the second ground of bribery against the First Respondent. (See Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea (No.1) (2018) N7133 and Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea (No.2) (2018) N7134). Only two grounds are left - Ground 1 (Bribery) and Ground 3 (Undue Influence).

THE PETITION

Allegation of Bribery

2. The ground of bribery pertinently alleged the following:

(a) That on Thursday, 22 June 2017, a few days from the scheduled polling date, at Bumbu Village, next to the village market and near the Bumbu Bridge, Ramu Sugar, a strong supporter and campaign co-ordinator for the First Respondent namely Bennedy Kukuty, who was an elector himself gave cash payments of K600.00 all in K50.00 notes to an elector namely Enoch Yorks to share among the following electors namely:

(i) Lukas Kuri

(ii) Jonathan Nabura

(iii) Jeremaiah Bujun

(iv) Nigel Manu; and

(v) Akope Saro.

(b) When making the payments to the above recipients Mr. Bennedy Kukuty allegedly said or uttered words to the following effect:

"Em blong ol scrutineers blong buai na simuk long taim blong vote. Dispela mani i kam long boss man Jimmy Uguru. Noken lustingting long votim em. (This is for scrutineers to buy bettlenut and smoke during voting time. The money is from the boss Jimmy Uguro. Don't forget to vote him.)

(c) The conduct and action of Bennedy Kukuty, a strong supporter and campaign coordinator of the First Respondent in bribing and inducing and committing an illegal practice towards the above named electors directly and indirectly towards those persons and any others who may have benefited from the said monies to vote for the First Respondent and this is contrary to and in breach of Section 215 of the Organic Law and Section 103(a)(i),(iii)(d) of the Criminal Code Act.

Objections

3. The First Respondent objects to this ground on the basis that the Petitioner failed to plead that the alleged act of bribery by Bennedy Kukuty was done with the "full knowledge and authority" of the First Respondent as required by Section 215(1) of the Organic Law.

Allegation of Undue Influence

4. On Saturday 10 June 2017 at around 9.00am at Walium Station Market, the First Respondent made a public campaign speech. It is alleged the First Respondent made the following statements to those gathered there:

• He funded the Bundi, Usino Yal and Begesin Roads
• The building of Ramu and Sausi High Schools were his contribution
• He funded Brahman, Bundi, Snowpass, Sausi and Yandera Primary Schools
• The Tertiary Education School fee sponsorship program is his idea.
• The Walium District Office fencing and District grass cutting and beautification were his doings during his term in the office as District Administrator between 2012 to 2015
• The Petitioner did not bring any services to the Electorate during his term as the Member for Usino Bundi. [Para.2.2 and 2.3 of petition]

5. It is alleged that the campaign speech was witnessed by one Cathy Dimo, an elector from Walium Station, Usino LLG in the Usino Bundi Electorate. [Para. 2.4]

6. It is further alleged that:

First Respondent made further disparaging, false and malicious statements about the Petitioner and the DSIP projects on many occasions throughout the Electorate during his campaign which the Petitioner will produce evidence from various witnesses at the trial."[para. 2.7]

7. The false and malicious statements made by the first Respondent to the electors present including one Cathy Dimo did influence the way the electors voted and did affect the outcome of the elections and thereby is contrary to and in breach of Sections 215 and 286 (1)(h) of the Organic Law and Section 102 (2) of the Criminal Code Act.

Objections

8. That the whole of the petition is incompetent and in breach of Section 209 (a) of the Organic Law in that:

(a) The Petitioner failed to plead in paragraphs 2.1 to 2.6 of the petition:

(i) whether the First respondent used threat or fraud to induce or refrain an electors from voting at the election

(iii) that the alleged false and malicious statements were used by the First Respondent to induce or restrain an elector from voting at the election

(iii) that the alleged false and malicious statements were made by the First Respondent to an elector [was] known to be false or without belief in its truth or careless as to whether it be true or false, with intent that the elector act on it

(iv) The number of votes secured by the First Respondent and the Petitioner

(v) how the act complained of impacted on the outcome of the election.

(b) Paragraphs 2.7 and 2.8 are insufficient and too general in that the petition:

(i) failed to plead that the alleged similar disparaging, false and malicious statements were used to induce or restrain an elector from voting at an election;

(ii) fails to plead whether the alleged false and malicious statements were made by the Fist Respondent to an elector/s known to be false or without belief in its truth or careless as to whether it be true or false, with the intention that the elector act on it;

(iii) The number of votes secured by the First Respondent and the Petitioner;

(iv) Fails to plead particulars of names of electors, dates, time and places these alleged similar disparaging, false and malicious statement were made;

(v) how the act complained of impacted on the outcome of the election
ISSUES

9. The issues for my determination are:

Whether the Petitioner has pleaded sufficient facts as required by Section 218(a) of the Organic Law on National and Local-level Government Elections (the "Organic Law") in support of the grounds of bribery and undue influence, in particular whether it is essential for the Petitioner to specifically plead that the alleged bribery was done with the knowledge or authority of the First Respondent?

THE LAW

10. Section 208 of the Organic Law provides for the following requisites of a Petitioner:

208. REQUISITES OF PETITION

A petition shall–

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

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

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

11. Section 210 of the Organic Law reinforces the necessity for a petition to meet the requisites or pre-conditions of Sections 208 and 209 (Security deposit for costs) by providing that no proceedings shall be heard unless the requirements of those provisions are complied with. The net effect of this is that a petition that does not comply with those requirements is incompetent and therefore cannot proceed to a full hearing. It must be dismissed for incompetency. That has been the law since the seminal case of Delba Biri v Bill Ninkama [1982] PNGLR 342.

12. As succinctly put by Davani J in Amet v Yama (2010) SC1064:

132. The requirement for compliance with s 208 are mandatory. Section 210 is also mandatory. These provisions are clear that unless the requirements of ss 208 and 209 are complied with, that there could be no proceedings in the National Court. This was held in the Supreme Court Reference Re: Delba Biri v Bill Ginbogl Ninkama, the Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342.[Sic]

13. Section 208(a), the subject of most competency challenges on the basis of illegal practices, requires the petitioner to "set out the facts relied upon to invalidate the election or return." It is settled that this means that the petitioner must set out or plead the material or relevant facts upon which he relies. These facts are, however, separate from the grounds themselves. As Kapi DCJ (with whom Los and Hinchliffe JJ. agreed) said in Holloway v Ivarato [1988] PNGLR 99 at 101 -

The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. 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. [Emphasis added]

14. His Honour, however, said that this does not mean that the petitioner has to plead the evidence that he will seeks to rely to prove the allegation, which, ordinarily will take a lot longer to collect, gather, or prepare for trial.

15. And on the question of what constitutes sufficient facts His Honour said:

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.

16. Bribery and undue influence under the Organic Law are a reference to the offences of bribery and undue influence under Section s103 and 102 of the Criminal Code. Hence, a petitioner who alleges one of these illegal practices as a ground to invalidate the result or return must therefore set out the material or relevant supporting facts as well as the elements thereto.

17. In Agonia v Karo [1992] PNGLR 463 Woods J said that –

... [B]ecause "an election petition is a very serious thing;" because of the serious charges and consequences that petitions engender it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.

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.

18. In Holloway v Ivarato (supra), Woods J said that it is not necessary for a petitioner to plead the law. In Agiru v Mune (1998) SC 590,the majority took the same view as Wood J. in Holloway v Ivarato. However, Injia J (as he then was), while generally agreeing with Woods J, intimated that it may be necessary to plead the relevant statutory provision in a situation where the ground alleged is premised on an alleged breach of a statutory provision. His Honour 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:

19. What is implicit from His Honours statement there is that for a ground based on a statutory breach, the petitioner must both plead the statutory provision and the material or relevant facts on which he relies. If he fails then the ground will be incompetent and will not be allowed to go to trial.

20. That is the position the Supreme Court took in Amet v Yama (2010) SC1064 (Salika DCJ, Batari and Davani JJ). What her Honour Davani J said in her separate judgment at pp. 113 and 114 is pertinent. Her Honour said:

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. See, Agonia v Karo [1992] PNGLR 463;Karo v Kidu (Unreported N1626 of 9/10/97); and Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).

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.

21. In their joint judgment, their Honours Salika.DCJ and Batari J, emphasised the need for proper pleadings in election petitions, when commenting on pleadings on illegal practices and undue influence which I should add apply with equal force to allegations of bribery. They said:

46. If a petitioner relies on, 'illegal practices' and 'undue influence', it is imperative that he pleads in clear, concise and in sufficient terms, the relevant facts on the essential requirements on the particular ground relied upon. The cases we have cited illustrate the need for relevant facts to be pleaded with precision and accuracy.

47. The underlying reason for asserting those facts with clarity, precision and sufficient details is so that the opposing party is properly and adequately informed to defend an alleged improper or illegal conduct. This will give him the opportunity to prepare his defence should he choose to contest the proceedings. Besides, it is necessary that the court is fully appraised to see with clarity, the issues to be tried: Holloway v. Ivarato (supra)

22. In Nomane v Mori (2013) SC 1242 it was again held that: "If a petition alleges that the successful candidate has committed the offence of bribery under Section 103 of the Criminal Code it is necessary to state which particular offence has been committed and its elements."

23. But then the contrary view has not been laid to rest because in what may be the most recent case holding that view the bench in Wesley v Leonard (2016) SC 1477 (Salika DCJ, Sakora and Hartshorne JJ) approved and applied the position in Agiru v Mune (supra) and held that a petitioner need not plead the law. It said:

6. The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return. In our view Agiru v Mune (1998) SC 590, sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review. Biri v Ninkama (1982) PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated. In this case the learned trial judge comprehensively considered the law and case authorities and in our view applied them correctly to the circumstances of this case. In our view, a petition should not plead the law breached. It should be left to the Court to conclude what law has been breached. All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges. This ground has no merit and is dismissed.

24. It is clear then that the Supreme Court has really not settled what the correct position is in respect of whether or not it is Section 208(a) requires a petitioner to plead the law, and in particular, the elements of an illegal practice which itself is a criminal offence. And as the Supreme Court oscillates between these two positions, judges of the National Court are pretty much left to choose whatever position they prefer. It is therefore left to a five-men bench of the Supreme Court to settle the issue once and for all.

25. Now, Section 215 of the Organic Law provides that an election may be voided on account of illegal practices by the winning candidate or by a third party with the knowledge of the winning candidate. The provision state:

S215 - 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.
26. Section 215(1) addresses illegal practices committed by the winning candidate which will result in automatic voiding of his return, while Subsection (3) on the other hand envisages two situations where the illegal practice is committed by a third party. These are (a) an illegal practice including bribery or undue influence committed with the knowledge or authority of the winning candidate (Subs (3)(a)) and (b) an illegal practice other than bribery or undue influence (Subs (3)(b).

27. For the purpose of pleadings, it is not necessary to plead "knowledge or authority" of the winning candidate under Subsection (3)(b) of Section 215.

ALLEGATION OF BRIBERY

28. The law is settled that "bribery" in Section 215 of the Organic Law means one of the several types of bribery under Section 103 of the Criminal Code. This fact prompted Cannings J to enjoin 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." (Isoaimo v Aihi (2012) N4921 at para 9). Section 103 relevantly provides:

103: BRIBERY

A person who–

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind–

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

29. The surviving ground of bribery in the instant case is grounded on Section 103(a)(i)(iii) and (d), which,for ease of reference I have underlined above.

30. Essentially the Petitioner will have to prove the following elements beyond reasonable doubt which I respectfully adopt from the judgment of Canning J in Isoaimo v Aihi (supra):

Section 103(a)(i)

That a person other than the winning candidate -

(a) gave, conferred or procured, or promised or offered to give or confer, or to procure or attempt to procure, to, on, or for, any person

(b) property of or benefit of any kind

(c) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector

Section 103(a)(iii) -

That a person other than the winning candidate:

(a) gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;

(b)any property or benefit of any kind;

(c)in order to induce any person to endeavour to procure the return of any person (the winning candidate) at an election or the vote of any elector at an election.

Section 103(d)

A person other than the First Respondent -

(a)advanced or paid any money to or to the use of any other person

(b)with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose (i.e. to procure the return of the any person (the winning candidate) at an election or the vote of an elector)

31. For our present purposes, the Petitioner must necessarily set out the relevant or material facts in support of his allegations of bribery under Section 103(a)(i)(iii)(d) of the Code. So the question is, has he done that?

Submissions

32. Mr. Iduhu submitted on behalf of the First Respondent that the Petitioner has failed to plead that the alleged bribery of named electors by Bennedy Kukuty was done with the knowledge or authority of the First Respondent. Counsel finds authority in the cases Amet v Yama (supra) and Puaria v Lera (2013) N5148 which cases both held that for alleged illegal practices under Section 215 (3)(a) of the Organic Law, it is necessary to plead that the illegal practice by a third party was done with the knowledge or authority of the winning candidate. Counsel submitted that the Petitioner in this case not only failed to do that, he also failed to plead material facts to further show that the First Respondent counselled or procured the acts committed by Mr. Kukuty and a nexus or connection with the First Respondent. Hence in the absence of sufficient facts to support the allegation that the offence of bribery was done with the knowledge and authority of the First Respondent, the Petitioner will not be in any position to lead evidence at trial.

33. Mr. Kuman, argued firstly that the Petitioner need not plead "full knowledge and authority" on the part of the First Respondent as stated by the First Respondent in his Notice of Objection for all that is required is simply that he had knowledge or authority of the alleged illegal practice by a third party in his behalf. But even then, pleading "knowledge or authority" would amount to pleading the law which on the authority of Wesley v Leonard (supra) is not permitted, and also would amount to pleading assumptions, evidence and conclusions of fact and law.

34. Counsel further submitted the alleged bribery is sufficiently pleaded. The petition had pleaded the material facts to support the ground. The person who allegedly offered the bribe is named. The electors allegedly bribed are named, the amount of money allegedly given to those named persons is pleaded and the date and place the alleged bribe was given are stated. Furthermore the words uttered by the alleged giver of the bribe to the persons named are sufficiently pleaded and there is a clear nexus or connection between the person involved (Bennedy Kukuty) who is alleged to be a strong supporter and campaign coordinator of the First Respondent) .

35. Mr. Kuman argued further that an inference can be drawn that the money must be from the First Respondent and that he gave the money to Bennedy Kukuty to give to the individuals named in the petition. From this, Counsel submitted, it is sufficient to impute knowledge and authority because Bennedy Kukuty was a strong supporter and campaign coordinator of the First Respondent.

Deliberation

36. At this juncture I must state quite categorically that I am cognizant of the stipulation in Section 217 of the Organic Law that in dealing with election petitions, whether it be an objection to competency or trial proper, the Court must be guided by the substantial merits and good conscience of each case without regard to legal forms, or technicalities or the rules of evidence.(Kikala v Electoral Commission (2013) SC 1295)

37. However, this is to be balanced with the strict requirements of Section 208 and in our case the requirement under Sub (a) for a petitioner to plead material or relevant facts as the ever increasing body of case authorities - both from the Supreme Court and the National Court - attest to.

38. So, has the Petitioner pleaded material or relevant facts to support his allegations of bribery, and more pertinently, is it necessary for him to plead specifically that the alleged bribe was given and the words spoken by Bennedy Kukuty were done with the knowledge or authority of the First Respondent?

39. On the point of objection by Mr. Kuman whether the Petitioner ought to plead full knowledge and authority of the alleged illegal practice by a third party, I agree that that is not what the Organic Law (Section 215) says. The language used there is simply "knowledge or authority" not "full knowledge and authority.

40. Now, the Petitioner alleges that the act of bribery was done in contravention of Section 103 (a)(i)(iii) and (d) of the Code. Merely pleading the statutory provision is not sufficient as we have seen. The Petitioner must state the relevant or material supporting facts. These facts will ultimately guide the evidence, but for the purpose of pleadings they must inform the Respondent(s), and the Court for that matter, what the allegations against him are so that he can prepare his defence.

41. In this case, I accept that the relevant material facts are pleaded in the petition. The alleged giver of the bribe , Bennedy Kukuty is named. The names of the persons whom he is alleged to have given the money to are named viz., Lukas Kuri, Jonathan Nabura, Jeremaiah Bazul, Nizel Manu and Akobe Saro. The words allegedly uttered by Bennedy Kukuty are quoted. These being:

"Em blong ol scrutineers blong buai na simuk long taim blong vote. Dispela mani i kam long boss man Jimmy Uguru. Noken lustingting long votim em. (This is for scrutineers to buy bettlenut and smoke during voting time. The money is from the boss Jimmy Uguro. Don't forget to vote him.)

42. It is also pleaded that these events took place on 22nd June 2017, near the market place at Bumbu village. Furthermore the amount of money (K600 in K50 notes) was given by Bennedy Kukuty to the persons named.

43. These appear to be sufficient to pass the strict requirements of Section 208(a). However, I agree with what Makail J said in Malakai Tabar v Hon. Jelta Wong; EPNO.11 OF 2017 (unreported and unnumbered judgment dated 19 January 2018) that Section 215 (3) of the Organic Law provides two additional elements which are:

1. The offence was committed by the candidate; or

2. If not, by a person other than the candidate with the candidate's knowledge or authority.

44. And since this is a case of alleged bribery by a person other than the First Respondent, it is necessary therefore that the Petitioner pleads that the alleged bribery was done with knowledge or authority of the First Respondent.

45. As His Honour Injia J (as he then was) stated in Agiru v Mune (supra), where a petitioner premises his ground to invalidate an election result on a statutory breach, he must plead both the statutory provision as well as the relevant supporting facts. Merely pleading the statutory provision is not sufficient and of course the opposite situation is equally true.

46. The Petitioner, pleaded material facts, but he failed to plead that the alleged bribery by Bennedy Kukuty, which he said was a breach of Section 215 of the Organic Law, ostensibly a breach of s 215(3)(a), was done with the knowledge or authority of the First Respondent.

47. The Supreme Court is not settled on the question of whether or not a petitioner ought to plead the law as well as material facts as we have seen, in respect of grounds based on breaches of statutory illegal practices. I am, however, inclined to agree with those authorities that hold that for bribery and undue influence a petitioner must plead the elements of the illegal practice as well as the supporting facts.

48. Since it is trite that allegations of undue influence and bribery must be tried as any criminal matter, and thus subject to the same standard of proof, it should follow naturally then that they also be subjected to the same preliminary scrutiny accorded to an indictment in a criminal prosecution to ensure that is not defective and that the supporting facts support each element of the charge (Apelis v Chan (supra); Amet vYama(supra); Nomane v Mori (supra) and Neville Bourne v Mannasseh Voeto (supra)).

49. I reject Mr. Kuman's argument that the facts as they stand should be sufficient to impute the requisite "knowledge or authority" for the purpose of pleadings in this case. Imputations and inferences have no place in pleadings for they lie in the domain of the trial proper where the court, having heard the evidence, can rightly draw inferences and conclusions (of fact or law) to arrive at a decision on the controversy or issues before it.

50. Where a petitioner relies on illegal practices or undue influence or bribery, it is imperative that he not only pleads in clear, concise and sufficient terms the relevant factual requirements of the particular ground (s) he relies upon, but also that he pleads, as in an indictment for a criminal prosecution, allegations of facts containing all the constituent elements of each offence. (Amet v Yama (supra.)

51. Hence, having failed to plead that the act of bribery allegedly committed by Bennedy Kukuty was done with the knowledge or authority of the First Respondent as envisaged by Section 215 (3)(a) of the Organic Law, I rule therefore that this ground is incompetent.

52. I now move to the next ground of the petition and the objection thereto.

ALLEGATION OF UNDUE INFLUENCE

53. As we have seen the Petitioner pertinently alleged that in his campaign speech at Walium Station which was witnessed by Cathy Dimo, the First Respondent claimed credit for the various projects around the Electorate which statement the Petitioner said was disparaging of him, false and malicious. The Petitioner also pleaded that the First Respondent made similar statements on various occasions and locations around the Electorate during his campaign.

54. And as a result of those false and malicious statements made by the first Respondent to the electors present including one Cathy Dimo did influence the way the electors voted and did affect the outcome of the elections and thereby is contrary to and in breach of Sections 215 and 286 (1)(h) of the Organic Law and Section 102 (2) of the Criminal Code Act.

55. The objection to this ground is essentially that the Petitioner has failed to plead in respect of the statement allegedly made at Walium Station:

(a) whether the First Respondent used threat or fraud to induce or refrain an electors from voting at the election,

(b) whether: the alleged false and malicious statements were made by the First Respondent to an elector was known to be false or without belief in its truth or careless as to whether it be true or false, with intent that the elector act on it

(c) The number of votes secured by the Firs Respondent and the Petitioner

(d) how the act complained of impacted on the outcome of the election.

56. In respect of Paragraphs 2.7 and 2.8 the First Respondent's contends that the petition:

(i) fails to plead that the alleged similar disparaging, false and malicious statements were used to induce or restrain an elector from voting at an election

(ii) fails to plead whether the alleged false and malicious statements were made by the Fist Respondent to an electors known to false or without belief in its truth or careless as to whether it be true or false, with the intention that the elector act on it.

(iii) The number of votes secured by the First Respondent and the Petitioner

(iv) Fails to plead particulars of names of electors, dates, time and places these alleged similar disparaging, false and malicious statement were made

(v) how the act complained of impacted on the outcome of the election

57. An election will be declared void on account of undue influence pursuant to Section 215(1) of the Organic Law and Section 102 of the Criminal Code. Section 102 of the Code provides:

102. UNDUE INFLUENCE.

A person who–

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector–

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

58. In Bourne v Voeto [1977] PNGLR 298 Frost CJ discussed the elements of undue influence under both paragraph (a) and (b) of the Code:

It seems that the elements of s. 102(a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was “in order to induce (an elector) to vote or refrain from voting at an election ...”

...

Turning to s. 102(b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.

59. However, before a petition goes to trial, it must meet the requisites of Section 208 and 209 of the Organic Law. Hence a petitioner must also necessarily plead the relevant statutory provision relied upon together with relevant or material facts to support the constituent elements of the offence of undue influence.

60. If he relies on paragraph (a), the petition must show that a person (a) has done, or threatened to do any injury or have caused or threatened to cause any detriment of any sort to an elector and (b) for the purpose of inducing an elector to vote or refrain from voting at an election.

61. For paragraph (b) it must be pleaded that a person (a) by force or fraud prevented or obstructed the free exercise of the franchise by an elector and (b) compels an elector to vote or refrain from voting at an election. Fraud includes a false statement made by that person to an elector, which he knows to be false or without belief in its truthfulness or careless whether it is true or false with the intention that the elector should act on it.

62. In Amet v Yama (supra) the Supreme Court heard the applicant's application for the review of the National Court's decision invalidating his election on the ground of undue influence attributed to statements made by himself and others including his political party leader which the respondent said directly resulted in electors voting against him. The respondent (Yama), among other grounds, premised his petition under Section 102(b) of the Code and Section 215(3)(b) of the Organic Law.

63. The Court there held that in order to prove the allegation the facts constituting those provisions must be pleaded in concise and clear terms as to whether the winning candidate used force or fraud to induce an elector to vote or cause an elector to refrain from voting at the election. If fraud is relied on, it must be further pleaded that "a false statement was made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it" as held in Bourne v Voeto (supra).

64. Because the pertinent allegations on which that case turned was in respect of undue influence committed by persons other than the applicant, the Court further held that the petition must further plead that the illegal practice affected the results which also necessitated that the petition pleaded the number of votes secured by the winner and the runner-up. And lastly that it is just that the winning candidate should be declared not duly elected.

65. The applicant was successful and the order of the trial court was quashed and the election petition was dismissed.

66. The current case can, however, be distinguished from Amet v Yama because the petition alleges undue influence by the winning candidate himself, quite like the facts in Bourne v Manasseh where the respondent has uttered certain statements to the effect that those not voting him will suffer a fine or go to jail if they defaulted, a statement that he knew was false but with which he intended to induce voters to vote for him. His election was therefore voided.

67. Section 215(1) of the Organic Law provides that "[i]f the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void."

68. Therefore there must be some force, or threat involved to induce a named elector for the purpose of securing votes. The perpetrator must be named, together with the specifics of particular allegation such as names, numbers, dates and places. As stated by Sawong J. in Miru v Basua (1977) N1628:

..., in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words the pleading must not only include the specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him.

(See also Ludger Mond v Jeffrey Nape (2003) N2318); Okeva v Atiyafa (2013) N4993

69. Coming back to the current case, the Petitioner pleaded under paragraph 2.8 that the alleged statements by the First Respondent were in breach of Sections 215 and 286 (1)(h) of the Organic Law and Section 102 (2)of the Criminal Code Act.

70. Section 286 of the Organic Law deals with the definition of illegal practices in the context of Local-Level Government elections. Illegal practices for the purpose of National Elections are provided by Section 178 of the Organic Law and offences under PART III - Div.3 -Corrupt and Improper Practices at Elections of the Code which include illegal practices under Sections 105 and 106 as well as undue influence and bribery under Section 102 and 103. This is obviously an error on the part of the Petitioner. There is no Section 102 (2) of the Code and this might also be a genuine, but mistaken reference to Subsection (b) of the provision. No serious issue was taken by the Respondents over these, therefore I can easily let these errors pass without further comment.

71. Be that as it may, the question is, has the Petitioner pleaded sufficient or relevant facts to support his allegation of undue influence?

Submissions

72. Mr. Iduhu basically advanced the same arguments he made in respect of the ground of bribery, but specifically that relevant or material facts were not pleaded as well as the relevant statutory provisions. Mr. Kuman basically left the issue to the Court to decide.

Deliberation

73. To start off with, the Petitioner has pleaded the statutory provisions, which he must of course plead as the authorities show. However, he pleaded the wrong statutory provisions. If that were not enough, he has completely failed to alleged whether force or fraud constituted the illegal practice he relies upon to invalidate the First Respondent's election return. As we have seen, the Petitioner must not only plead material or relevant fact, he must also plead the appropriate statutory provision that is said to be constituted by the facts, and the constituent elements of the illegal practice he relies on.

74. When he enumerated the "disparaging, false and malicious statements which he attributes to the First Respondent, and while he pleads these in general terms, he failed to specifically plead, as he should, that these were fraudulent false statements, which the First Respondent knew to be false or that he did not believe in their veracity, but made solely to induce, prevent or obstruct named electors in the free exercise of their will and right to vote.

75. The allegation in respect of Cathy Dimo, in particular, though she is said to have witnessed the supposedly false, disparaging and malicious statements, suffer from lack of the same particulars stated above. The statement in this respect is a bare statement that does nothing to show how Cathy Dimo was unduly influenced by the purported statements by the First Respondent.

76. Paragraph 2.7 of the Petition must suffer the same fate. This is a broad and sweeping statement to the effect that the First Respondent made similar statements at numerous times and places and occasions in the electorate during the campaign period. The Petitioner failed to plead the names of places, dates and occasions such statements were made. He failed to plead the names of electors who were present in those various places and times. He failed to plead how they were influenced not to vote or to vote for the First Respondent. This is an incompetent pleading and the Petitioner's statement that evidence will be led at trial to substantiate these general allegations is without foundation, because you cannot lead evidence at the trial on a matter that you did not properly or did not plead with material or relevant facts.

77. Furthermore, when the Petitioner refers to "people" in paragraphs 2.2, 2.3 and 2.5 and further refers to "ordinary villager" in paragraph 2.6, he failed to plead the names of such person(s) and that they are electors. That he must do as the authorities show. He has also failed to plead the number f votes he collected and those collected by the First Respondent. The net effect of the allegations or pleadings of this ground is that they are simply incompetent and this ground should also not be allowed to go to trial

78. In conclusion, it is my considered opinion, that all allegations from Paragraph 2.2 - 2.8 of the petition are insufficiently pleaded and are therefore incompetent in totality.

79. The petition therefore does not stand up to the requirement of Section 208(a) of the Organic Law and therefore must be dismissed with costs. I therefore order that:

1. The First Respondents Objection to Competency is upheld.

2. The election petition is dismissed in its entirety

3. The Petitioner shall pay the Respondents' costs which will be taxed if not agreed.

4. The Security deposit of K5000 will be equally shared by the Respondents.

Ordered accordingly.
_______________________________________________________________
Kuman Lawyers: Lawyers for the Petitioner
Fairfax Legal: Lawyers for the First Respondent
Kimbu Lawyers: Lawyers for the Second Respondent