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Hagahuno v Tuke [2021] PGNC 130; N8862 (21 April 2021)

N8862

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 52 OF 2017

BETWEEN
WILLIAM HAGAHUNO
Petitioner

AND:
JOHNSON TUKE
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Dowa J
2021: 23, 24, 25 February and 11^th, 22^nd, 23^rd March & 21^st April

ELECTIONS – petition filed pursuant to 206 of the Organic Law on National and Local Level Government Elections – petitioner alleges statutory breach, incidents of bribery and undue influence - issue for consideration is whether the Petitioner has by credible evidence proved the allegations of bribery to the entire satisfaction of the Court - Petitioner has failed to prove two allegations of bribery - onus of proof on the Petitioner – petitioner has failed to discharge the burden to the entire satisfaction of the court or beyond reasonable doubt – petition is dismissed with costs to the respondents

Cases Cited:

Amet v Yama (2010) SC1064
Agonia v Karo (1992) PNGLR 463
Aide Ganasi v Sali Subam (2013) SC1277
Biri v Nilkama (1982) PNGLR 342
Fairweather v Singirok (2013) SC1293
Hagahuno v Tuke & Electoral Commissioner (2020) SC 2018
Kaiabe v Mulungu (2008) N3329

Karo v Kidu (1997) N1626

Lambu v Ipatas (1997) N1701

Robert Kopaol v. Philemon Embel

Tomokita v Tomuriesa (2018) N7206

Waranaka v Dusava (2008) SC940
Counsel:

W. Hagahuno, in person
P. Mawa, for the First Respondent
J. Simbala, for the Second Defendant

DECISION

------21^st April, 2021

1. DOWA J: This is a decision on an Election Petition brought by the Petitioner against the First Respondent. The petition is brought under section 206 of the Organic Law on National and Local Level Government Elections (“The Organic Law”) seeking to declare the election of the First Respondent as Member for Kainantu Open Electorate null and void.

Both the Petitioner and the First Respondent were candidates for Kainantu Open Electorate for the 2017 National Elections.
The First Respondent polled 12,921 votes to be declared winner ahead of the Petitioner who came second with 7,615 votes.
The Petitioner filed the Election Petition on 4^th September 2017 challenging the election of the First Respondent on grounds of statutory breach, incidents of bribery and undue influence.
Some grounds of the petition were struck out by the Court during competency hearing while others were abandoned by the Petitioner. Only three grounds of bribery proceeded to trial in respect of the following:
1. Bribery case one (1) – 45^th (Kebe street), Kainantu Town
2. Bribery Case Two (2) – Hogu villagers
1. Bribery Case Three (3) – Kainantu Rugby League Oval.

6. During the trial, the Petitioner abandoned Bribery Case Two (2). Only Bribery Case One (1) and Three (3) were pursued and now remain for determination.

Facts Constituting Grounds of Petition

The facts or allegations for the two grounds of petition are reproduced and set out below for easy reference.
Bribery Case One at 45 Street (Debe Street), Kainantu Town.

“1. On or about the 16^th of June 2017 between the hours of 2.00 pm and 3.00 pm a few weeks before polling and during the campaign period, the First Respondent who was the sitting member for Kainantu Open Electorate drove along the Kebe street in Kainantu town (now commonly known and referred to as ’45 Street’) in Kainantu town.

Along the same street was the Petitioner’s operational centre for his campaign, located at property Section 35 Allotment 08, where he was operating and running his campaign from.
On that particular day, there were close to a hundred people at the vicinity of the operational centre who were all waiting for the Petitioner. The First Respondent who was also a candidate for the Kainantu Open seat and was defending his seat as the member for Kainantu electorate drove along in his white open back Toyota Land Cruiser utility.
He was followed closely by his escort in another of his vehicles, a white Toyota Land Cruiser 10 seater troop carrier vehicle.
As he was about to pass through the Petitioner’s section of the street, he noticed a large number of people gathered both within the premises and outside on both sides of the street in front of the Petitioner’s operational office at Section 35 Allotment 8, all waiting to see the Petitioner.
The First Respondent stopped in front of the crowd who were waiting for the Petitioner. He got out of his vehicle and called the waiting crowd across to him. Seeing the sitting member stopping by and calling the crowd to him, most of those waiting were curious and moved quickly to form a circle around him on the street in front of the petitioner’s operations centre to hear what he had to say.
After the crowd had gathered around him, the First Respondent uttered the following words or words to that effect: “I know that all of your here are my brother (petitioner) supporters. I can tell you all that, of the 57candidate contesting the Kainantu Open seat in this election, there are no better quality leaders than my brother (petitioner) and myself. Therefore, you shall all vote for either myself or my brother (petitioner) only. Give me your “1” vote and my brother “2” vote or give my brother your “1” and give me your “2” vote”.

8. He then proceeded to his open back Land Cruiser vehicle and took out K1,200.00 and told the group to divide into two groups. He called across one of the Petitioner’s co-ordinators and supporter from Hagunamura village, Mr Karu Wesley and gave him K600.00 on behalf of one group, to divided amongst his group.

He called across another of the Petitioner’s co-ordinators and supporter from Aga-anantu village, Mr BaroPomu and give him the other K600.00 on behalf of the other group to be divided amongst his group.
As per the First Respondent’s directions, both groups divided the money amongst themselves, some receiving K10.00 each while other received K20.00 each. After receiving the money, most supporters had left by the time the Petitioner arrived.
More than 40 people received and or benefitted from the K1,200.00 he gave them that day. Most of those who heard him and received the payment were influenced and induced by the payment in to voting for him and as they had received payment from him in broad day light, they felt obligated to vote for him. As a result, they changed their minds and instead of voting for the Petitioner, they voted for the First Respondent wherein, they gave him either1vote of 2 as he had requested.
Some of those persons who were present on that day and were part of the group who witnessed and heard the First Respondent and received the payment and voted for him are set out in the table below.

*No.*		*Name of Voter*		*Village*		*LLG area*	*Polling location*	*Voter ID No.*	*Amount Received.*	*Vote* *Given*
1.		BaroPomu (2013)		Aga-anantu Village		Ward 1 Agarabi	Aga’anantu market	79013 3263	K20.00
2.	BuloIrufi			IfeiBarola Village	Kamano No. 1		Barola P/School	1776963771	K20.00	2
3.	BivaBaro			Aga-nantu Village	Ward 1 Agarabi		Aga’ana market	24912 56946	K20.00	1
4.	Timothy Hagahuno			Jamuza Village	Ward 4, Kamano No. 1		Kainantu P/school	76513 76431	K20.00	2
5.	OnriHava			Onki Village	Ward 4 Kamno		Yomposa P/School	61909 19259	K20.00	1
6.	Petrus Ohuma			Jamusa Village	Ward 4, Kamano 1		Yomposa P/School	43539 55261	K20.00	2
7.	Bobby Keraso			Jamuza Village	Ward 4. Kamano 1		Yomposa P/School	69608 12997	K20.00	1
8.	Duncan Hagahuno			Jamuza Village	Ward 4 Kamno 1		Yomposa P/School	61487 25410	K20.00	2
9.	Ezikiel Simon			Onki Village	Ward 4 Kamano 1		Yomposa P/School	36656 61090	K20.00	1
10.	Jasper Ifi			Tanaranofi Village	Ward, Kamano 1		Namura	42240 16124	K20.00	1
11.	Asime Peter			Orege Village	Ward 4 Kamano 1		Orege	4572142090	K20.00	1
12.	Lukaza Simon			Jamuza Village	Ward 4 Kamano 1		Yomposa P/School	30465 35077	K20.00	2
13.	Michael Unjisi			45 Street	Ward 4 Urban		Kainantu Primary	83141 17441	K20.00	1
14.	MainoKeraso			Jamusa Village	Ward 4 Kumano 1		Yomposa C/School	47091 32536	K20.00	2
15.	Bari Anke			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	10336288	K20.00	1
16.	Kari Edna			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	82408 87975	K20.00	1
17.	Doro Kerai			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	75303 16311	K20.00	1
18.	Kaio Gee			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	03624614	K20.00	1
19.	Sevin Taro			Uminif Intenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	74577 36084	K20.00	1
20.	MerianSevin			Uminifinatenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	75298 94822	K20.00	1
21.	Simon Patrick			Uminifinatenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	76211 37813	K20.00	1
22.	Jason Samson		Tanaranofi Village				Numara	2246772144	K10.00	1
23.	Sagi Nareka		Kainantu Hospital		Ward 2 Kainantu Urban		Kainantu Soccer field.	60864 99093	K10.00	1

13. The First Respondent did receive first preference and second preference votes from the various polling locations the recipients of the payments come from and voted.

14. The consequential act by the electors Baro Pomu, Karu Wesley and those other electors names therein the table above and rest of the other elector in actual casting their preference votes for the First Respondent on the very day of voting after receiving moneys from the First Respondent actually and did indeed complete the performance of bribery pursuant to Section 103 of the Criminal Code Act Ch No. 262 and Section 215 (1) of the Organic Law on National and Local-Level Government Elections.

15. In that respect, the election of the First Respondent be declared void under section 215 (1) of the Organic Law on National & Local-Level Government Elections”.

Bribery Case Three (3) – Kainantu Rugby League Oval.

“30. On Friday the 16^th June 2017 between the hours of 5.00pm and 6.00pm, exactly one week before the polling, the First Respondent drove into Kainantu town and invited the public at large to move quickly to at Kainantu Rugby League grounds.

After the crowd had gathered at the Rugby field and as it was getting late, he directed the crowd to quickly divide themselves into four groups under the respective Local Governments they come from, namely Kamano No. 1, Kamano No. 2, Agarabi and Kainantu Urban LLGs.
The crowd divided themselves quickly into four groups under the respective LLGs to where they belong. He then took out K12,000.00 in cash and gave K3,000.00 each to each of the four groups.
He called upon a representative each from each of the four groups to come forward and receive the money on behalf of those from the respective LLGs who had gathered and share it amongst themselves.
Mr John Sagi of Kainantu town who was a elector went to the First Respondent and received the K3, 000.00 cash on behalf of the group comprising persons from Kainantu Urban LLG whilst Mr Kati Tesasi from Tapo community who also was an elector went and received the K3,000.00 cash for the group comprising persons from Kamano No. 1 LLG.
Somebody else received the K3, 000.00 on behalf of those who has gathered from Kamano. No. 2 LLG and while another person received the K3,000.00 on behalf of those who gathered from Agarabi LLG.
As the representatives approached the money and received it from the First Respondent, he whispered to each of the recipients to share the money amongst their groups and tell those who receive money to vote for him.
Upon receiving the money, the representatives of the four LLGs returned to share the money amongst the persons who were present at the rugby field their group and shared money. After each one received their share of the money, they all left, being convinced that as long as the First Respondent remains in office, he will continue to dish out cash benefits to them.
As the First Respondent handed the money to John Sagi on behalf of the group from Kainantu Urban, he told him (John Sagi) to distribute the money amongst his group and tell those who receive the money to vote for him.
Mr John Sagi who received K3,000.00 on behalf of those present from Urban LLG divided the money equally amongst the group that was present who are residents of Kainantu two and told them what the First Respondent said.
Particulars of some of those persons who attended and received a share of the money and were induced into voting for the first respondent are set out in the table below;

*No.*	*Name of Voter*	*Village*	*LLG area*	*Polling location*	*Voter ID No.*	*Amount Received.*	*Vote* *Given*
1.	John Sagi	Blue Kona	Kainantu Urban LLG	Kainantu Soccer filed	67295 53332	K100.00	1
2.	Michael Unjisi	45 street	Kainantu Urbarn LLG	Kainantu P/School	83141 17441	K 20.00	1
3.	Pastor Kati David	Avive (Kurina)	Kamano No. 1 LLG	Urayopa	71230 90584	K 50.00	2
4.	AtusBogae	Orege	Kamano No.1 LLG	Orege field	50282 1725	K100.00	1
5.	Samuel David	Avive	Kamano No. 1 LLG	Urayaopa	13514 20813	K 20.00	2
6.	Owen James	Hagunu Mura	Kamano No.1 LLG	Bobonave Gravel pit	1925475669	K 20.00	2
7.	Kingsley Ike	Nonampa	Agarabi LLG	Yayabompa market		K 20.00	3
8.	Arike Bari	Nonampa	Agarabi LLG	Yayabompa market	41919 46338	K 20.00	1
9.	AvakAikisa	Nonampa	Agarabi LLG	Yayabompa market	28084 81887	K 20.00	1

The First Respondent received votes from all of the ballot boxes for Kainantu town urban, as well as from polling location specified in the table above.
The consequential act by the electors John Sagi, Pastor Kati Davidi and the other electors named therein the table above and other electors in actually casting their first preference votes for the First Respondent on the very day of voting after, receiving moneys from the First Respondent actually and did indeed complete the performance of bribery pursuant to Section 103 of the Criminal Code Act Ch. No. 262 and Section 115 (1) of the Organic Law on National and Local-level Government Elections.
In that respect, the election of the First Respondent be declared void under Section 215(1) of the Organic Law on National and Local-level Government Elections”.

Trial

The trial was conducted in Goroka, Eastern Highlands Province in February 2021, submissions were done in Lae and I reserved my decision which I now deliver.

Issues

The issue for consideration is whether the Petitioner has by credible evidence proved the allegations of bribery to the entire satisfaction of the Court.

Law

The relevant law relating to bribery allegations are set out in section 215(1) on the Organic Law National and Local Level Government Elections (OLNLLG) and Section 103 of the Criminal Code Act and principles of law as settled by the National and Supreme Courts in this jurisdiction.
The relevant statutory provision is section 215 of the Organic Law which reads:

“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.”

Section 215 (2) of the Organic Law provides that a finding under subsection (1) for bribery as an illegal practice does not bar a prosecution for an illegal practice under any other law. Bribery finds its definition in section 103 of the Criminal Code Act which reads:

“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.”

15. The necessary elements of the offence of bribery are discussed by Cannings J in Isoamo v Aihi (2012) N4921 at paragraphs 8 -11:

“It is settled law that "bribery" in Section 215 means one of the offences of bribery created by Section 103 (bribery) of the Criminal Code. The petitioner has the burden of proving according to the criminal standard of proof of beyond reasonable doubt that one of those offences was committed by the successful candidate (Robert Kopaol v Philemon Embel (2003) SC727, Benny Diau v Mathew Gubag (2004) SC775, Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, Sir Arnold Amet v Peter Charles Yama (2010) SC1064). Section 103 is a very complex provision, which states:....( after reciting section 103, His Honour continues..)

...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. In the present case the petitioner argues that the first respondent committed bribery under Sections 103(a)(iii) and 103(d) of the Criminal Code.

Section 103(a)(iii)

To prove an offence under Section 103(a)(iii) the petitioner must prove that the first respondent:

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;
any property or benefit of any kind;
in order to induce any person to endeavour to procure the return of any person (the first respondent) at an election or the vote of any elector at an election.

Section 103(d)

To prove an offence under Section 103(d) the petitioner must prove that the first respondent:

advanced or paid 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 (ie the money must be applied for the purpose of endeavouring to procure the return of any person (the first respondent) at an election or the vote of any elector at an election (paras (a) and (c)) or doing or omitting to do something at an election in the capacity of an elector (para (b)).”

16. Bribery is both an electoral and a criminal offence, and being a criminal offence, the party alleging it has the onus of proving the necessary elements on a higher standard of proof akin to the criminal standard or at least to the entire satisfaction of the Court. Refer: Kaiabe v Mulungu (2008) N3329, Amet v Yama (2010) SC1064, Agonia v Karo (1992) PNGLR 463, Karo v Kidu (1997) N1626, Lambu v Ipatas (1997) N1701, Waranaka v Dusava (2009) SC980, Fairweather v Singirok (2013) SC1293 and Tomokita v Tomuriesa (2018) N7206.

17. In Kaiabe v Mulungu (supra), His Honour, Salika J (as he then was) in discussing the onus and burden of proof said this at paragraphs 11 and 12 of his judgement:

“11. What is the standard of proof in election petition cases? Is it "to the entire satisfaction of the Judge" or is it the court "ought to be sure to have reasonable assurance that the ground was really made out" or is it that the court must be satisfied "beyond all doubt?" The court in the Bourne v Voeto case appears to have used the "beyond all reasonable doubt" test. That was because the complaints raised in that case alleged undue influence which is a criminal offence and therefore the criminal burden of proof was applied by the Court. In this case the complaint is founded on irregularities committed by electoral officials such as polling officials marking the ballot papers rather than the voters, or criminal or supporters of candidates hijacking the polling teams and marking the ballot papers. Those actions may amount to either criminal acts or be considered electoral offences.

In the case of Kopaol v Embel SC 727, the Supreme Court said that if the Petitioner relies on the grounds of illegal practices other than bribery and undue influence, he must satisfy the Court to its entire satisfaction. What that means in my view is that the Court must be satisfied to its entire satisfaction by the evidence adduced and there is no shadow of a doubt in the mind of the Court of the veracity of that evidence. I am prepared to apply and use that test, i.e. the entire satisfaction of the Court test in this case. In other words the Court must be satisfied to its entire satisfaction that polling officials, supporters of various candidates, certain people as pleaded in the Petition and criminals marked the ballot papers in the various named polling places and that there was indeed no act of free choice by the registered electors or eligible voters in the pleaded polling places.”

18. In Waranaka v Dusava (supra) the Supreme Court in discussing the principles governing burden of proof said this at paragraphs 11 to 16 of the judgement:

“11. Carefully noting the above guiding principles, we now turn to a statement of the relevant principles governing election petitions based on an allegation of bribery as in this case.

Going by the many decisions of both this and the National Courts, the law in relation to the burden of proof in election petitions based on an allegation of bribery is well settled. The standard of proof in such cases is the higher criminal standard of proof, namely proof beyond any reasonable doubt, which a petitioner must discharge in order to succeed in his petition.
This Court in its decision in Robert Kopaol v. Philemon Embel restated the law and elaborated on it as follows:

"It is well recognized that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.

But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code ...

It is not surprising that the standard of proof required in an election petition is, to all intents and purposes, the same as in a criminal court."

Towards the end of its decision this Court in the above case went on to endorse the following views of Frost CJ (as he then was) in Neville Bourne v. Manasseh Voeto:

"If the petition is based upon an independent act of bribery or intimidation as opposed to general bribery or intimidation, before such an election is set aside it should be proved to the entire satisfaction of the Judge ... [and] the Judge before defeating an election should be very sure. He ought not to say very sure, but ought to be sure; he ought to have reasonable assurance that the ground was really made out."

We agree with the soundness and correctness of this statement of the law. We add that, a final decision on whether an allegation of bribery has been made out depends very much on the consideration and application of the principles concerning the burden of proof and its discharge by the party who bears it. There is not much argument that in nearly all cases, it is well accepted that "he who alleges must prove it." Similarly, in criminal cases, it is well accepted that, the prosecution has the legal burden throughout to establish the allegations or charges against an accused person beyond any reasonable doubt, something which s.37 (4) of the Constitution protects.
The difficulty however arises on the question of whether the burden of proof shifts? One of the leading authorities in the law of evidence, Cross On Evidence carefully considers the arguments for and against the question of whether or not a legal burden placed in a proponent shifts. The learned authors then conclude in these terms:

"Perhaps those who contend that the legal burden on a particular issue never shifts have the better of this battle of words. They can say that, even in cases most favourable to the view that it may shift, ... the sounder analysis suggest that there is no shifting".”

One of the elements of the offence of bribery is that the person alleged to have been bribed must be an elector. The headnote of the Supreme Court judgement in Aide Ganasi v Sali Subam (2013) SC1277 at page two states that:
1. “An elector is defined by section 3 (1) of the Organic Law as "a person whose name appears on a roll as an elector". The Criminal Code Section 98, defines an elector as "includes any person entitled to vote at an election". Therefore, the person who is entitled to vote at an election is the person whose name appears on the common roll as an elector. He is the person, when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.
2. Evidence of the common roll is necessary and is a material element that must be proved in an allegation of bribery in an election petition. The Common roll in respect of the persons allegedly bribed must be produced to prove that they were electors.
3. Even if the common roll is tendered, the person must still identify his name on the common roll. If his name is not on the roll or another name is used, then obviously, he is not an elector. And this is because only electors can be bribed to vote in a certain way.”
At pages 14 to 18 of the judgment, the Supreme Court said:

“14. An elector is also defined by section 3 (1) of the Organic Law as "a person whose name appears on a roll as an elector". The Criminal Code Section 98, defines an elector as "includes any person entitled to vote at an election". Therefore, the person who is entitled to vote at an election is the person whose names appears on the common roll as an elector. He is the person, when bribed or induced, is deemed to be an elector if evidence is called to show that his name is on the common roll.

As was held in Ben Micah v. Ian Ling Stuckey (supra) and later, in Leonard Louma v. Tomuriesa (2012) N4920, the Court held that evidence of the common roll is necessary and is a material element that must be proved in an allegation of bribery in an election petition. The Court in those cases held further that the Common roll in respect of the persons allegedly bribed must be produced to prove that they were electors. In Leonard Louma because the common roll was not produced, the trial Judge dismissed several grounds in the Petition and eventually, the Petition itself.
The law is that even if the common roll is tendered, the person must identify his name on the common roll as was done in Ben Micah. If his name is not on the roll or another name is used, then obviously, he is not an elector. And this is because only electors can be bribed to vote in a certain way.
In this matter before us, the trial Judge in the Court below did not make any findings as demonstrated above, rather, said that "...the petitioner's witnesses' affidavits tendered as evidence they (Ian Dabu, Gudu Sub and Anna Bazu Buia) stated that they are eligible voters and voted in the 2012 National Elections. The first respondent and the second respondent took no issue with that aspect of evidence. It was not a disputed fact..." (pg. 99 of Review Book and pg. 22 of trial Judges' reasons for decision). The trial Judge effectively accepted at face value, the statements made by the above-named witnesses without verifying against the common roll, that their statements under oath, were correct, which was what occurred in Ben Micah v. Ian Ling Stuckey (supra).
Because the electoral roll of the Electorate or the roll of the Council Ward in which the petitioners/ witnesses were enrolled, was not tendered into evidence and verified by the Court, we find this was a fatal error not only by the Petitioner's lawyers, but by the trial Judge as well because the important element of an 'elector', was not proven.”
On the issue of the applicability of the rule in Browne v Dunn, where a witness is not cross examined as to whether he is an elector, the Supreme Court said this at pages 30 to 32 of its judgment:

“30. In Peter Wararu Waranaka, (supra) the Supreme Court reasserted that principle and held that in an election petition alleging bribery, the standard of proof is similar to the criminal standard which is proof beyond reasonable doubt and that the Petitioner has the burden of proof throughout to establish each and every element of the offence of bribery to succeed and that failure would result in the dismissal of the Petition.

Therefore, in answering the issue posed above, we find that the trial Judge's interpretation of the rule in Browne v. Dunn (supra) is misconceived in that the trial Judge failed to take into account the fact that in an EP matter, where bribery is raised, all the elements of the offence must be proven by credible evidence and proven beyond reasonable doubt, before it can be held to have been proven. Although the Applicant's counsel in the Court below did not cross-examine on the contents of the affidavits, more particularly the statement made by the deponents, the trial Judge erred when he considered that issue in isolation and not together with the related issue of who an "elector" is, which would have meant the production of the common roll.
We find that the trial judge erred in that respect because it is not for the Applicant to inform or assist the First Respondent prosecute his case by putting his case to the First Respondent's witnesses.”

Real Justice to Be Observed

In election petitions, the National Court is required to observe and do real justice when determining a case before it. Section 217 of the Organic Law provides that “The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. “
I will apply the above principles of law in my decision.

Evidence

The Petitioner called eight (8) witnesses. The First Respondent called two witnesses in response. The following is a table containing the summary of the evidence of the witnesses called in the trial.

SUMMARY OF PETITIONER’S WITNESSES

(1) BRIBERY ALLEGATION AT KAINANTU RUGBY OVAL

#	Witness Name	Evidence
1	KATI DAVID Affidavit of Kati David, *Sworn: 27^th October 2017, and Filed: 06^th November 2017 Exhibit Annexure: P 1*	He originates from Avive village, Ward 6 of Kamano No.1 LLG, Kainantu District, Eastern Highlands. He said he is an elector. On the 16^th June 2017 between 4pm to 6pm he was at Kainantu rugby oval as part of huge crowd of people from all areas of Kainantu gathered there at the invitation of the 1^st Respondent. He saw the 1^st Respondent who arrived in the company of others and asked the crowd to group themselves into the respective 4 Local Level Government council areas namely Kamano No. 1, Kamano No. 2, Agarabi and Kainantu Urban. The 1^st Respondent then took out K12,000.00 in cash and gave K3,000.00 equally to each of the 4 LLGs groups, all in K100 notes. He took leadership of Kamano No. 1 LLG group and personally received the K3,000.00 from 1^st Respondent and shared the money amongst his group members. He said he is an active supporter of the Petitioner and cared less of the monies given by the 1^st Respondent because it is the election campaign period and counted himself fortunate being there to receive such free money for his personal use. He retained K50 from the K3,000.00 and left for his home. During cross examination, he said he was there with John Sagi of same village, Jacob Pinnie and Kingsley of same area/neighboring village. He said at the polls, he casted his LPV vote 1 to Petitioner, vote 2 to the 1^st Respondent and vote 3 to a Rainka Oshen. He said he happily received the money at first as its “chance money” and did not feel bad but afterwards, he felt guilty and took a “bold stand” to come forward as witness for the Petitioner. In answer to further questioning, he said, he did not report to anyone of receiving money from the 1^st Respondent until on the 27^thOctober 2017.That was the first time he reported this matter to the Petitioner.
2	JOHN SAGI Affidavit of John Sagi, *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 2	He comes from Orege village and lives at Blue Corner in Ward 1, Kainantu Urban LLG, Kainantu District, Eastern Highlands. He said he is an elector for the Kainantu Open Electorate for the 2017 National Elections. On 17^th June 2017, he was in Kainantu town. On his way home, he said he saw a huge crowd (mistaken it for brawl) at Kainantu Rugby field between 4pm to 6pm, so he went over to them. On arrival he saw a brown 10th seater, a white 10 seater and a 6 ton dump truck stopped at the field with the 1^st Respondent coming out in one of the vehicles. He saw the 1^st Respondent telling the crowd to group themselves into the respective 4 Local Level Government council areas namely Kamano No. 1, Kamano No. 2, Agarabi and Kainantu Urban. The First Respondent took out K 12,000.00 and distributed the money. He represented the Kainantu Urban LLG and so he went forward and received K3,000.00 cash from the 1^st Respondent. When handing over the money the First Respondent whispered to him that he is a “giver” and he must share the money with his group members and think of him at the time of voting. He took the money and gave it to a Unku Ata of Ward 2 and a Barry Tiwaha of Ward 4 to distribute. He took K200 and spent K100 at a coffee shop and gave the balance of K100 to some youths. Despite getting the money, he did not vote for the 1^st Respondent. He did not report to anyone of his receipt of the money from the 1^st Respondent since then until he gave his statement on 27^th October 2017 which is now in his affidavit. He said the 1^st Respondent doesn’t know him, but he knows who the 1^st Respondent is.
3	KINGSLEY IKE Affidavit of Kingsley Ike, *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 3	He is from Nomampe hamlet, resides at 5 Mile village, Agarabi LLG, Kainantu District, Eastern Highlands. He said he is an elector for the Kainantu Open Electorate fot the 2017 National Elections. He came to Court as Petitioner’s witness for the bribery committed by the 1^st Respondent on the 16^th June 2017 between 4pm to 6pm at the Kainantu rugby oval. Initially he was at Agarabi bus stop when he saw a huge crowd moving to the Kainantu rugby oval and he joined them upon hearing that the 1^st Respondent has called up a public meeting there. He was there amongst a big crowd when the 1^st Respondent arrived in a white 10 open back land cruiser along with a blue 10 seater and a dump truck. The First Respondent told the people to group themselves into the four LLGs. He then took out K 12,000.00 and gave K 3,000.00 cash to each group. Mr Ike said his group was represented by one Sapot Witnis, who received the money on their behalf. He was given K300 by Sapot Witnis to distribute amongst his ward 7 members. He retained K 20.00 for his personal use. At the polling, Mr Ike said, he gave his second preference vote to the First Respondent because of the money he received. He said he did not hear the 1^st Respondent say anything when he gave the money He did not report the incident of receiving money from 1^st Respondent until the 27^th October 20217 when he made this statement to the Petitioner the contents of which are in his affidavit.
4	JACOB PINNIE Affidavit of Jacob Pinnie, *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 4	He is a resident of Blue Corner settlement, Kainantu Urban LLG, Kainantu District, Eastern Highlands. He said he is an elector. He was the supporter of the Petitioner in the 2017 National Elections. He said he was part of the huge crowd that gathered at the Kainantu rugby oval between 4pm-6pm on 16^th June 2017. He saw the 1^st Respondent arrived and asked the crowd to group themselves into the respective 4 LLGs of Kainantu District. The first Respondent took out K 12,000.00 and gave K 3,000.00 each to the representatives of the four LLGs. He was in the Kainantu Urban LLG group and their leader John Sagi took the money in K100 notes and passed on K500 to Unku Ata who changed them into K10/K20 notes and distributed them. Mr Pinie said, he was given K20 and left for home thereafter. At the polling, he cast his second preference vote for the First Respondent. He did not report the matter until the 27^th October 2017 when he presented his own statement in Pidgin version to the Petitioner’s people and someone translated it into English and read it back to him before he signed it.

(2) BRIBERY ALLEGATION AT KEBE/45 STREET, KAINANTU TOWN

#	Witness Name	Evidence
5	BARO POMU Affidavit of Baro Pomu *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 5	Mr Pomu says he hails from Adanantu village in Ward 1 of Agarabi LLG, Kainantu District, Eastern Highlands.He said he is an elector for the Kainantu Open Electorate in the 2017 National Elections. He is the campaign coordinator for the Petitioner during the 2017 National Elections. He said on 09^th June 2027 he went to the Petitioner’s campaign center located at Kebe Street also known as 45 Street, Kainantu town, to arrange rallies for Agaravi LLG. On arrival he discovered the Petitioner was not available, so he went outside to the nearby bettle nut vendor’s stall at about 2pm-3pm when he saw 2 vehicles, a 10 seater and a white open back land cruiser driven up and stopped near them. In the vehicle was the 1^st Respondent who called them over and uttered the following words or words to the effect: “I know that all of you are here are my brother’s (Petitioner) supporters. I can tell you all that, of the 57 candidates contesting the Kainantu Open Seat in this election, there are no better quality leaders than my brother (Petitioner) and myself. Therefore, you should all vote for either me or my brother (Petitioner) only. Give me your ‘1’ vote and my brother ‘2’ vote or give my brother your ‘1’ vote and give me your ‘2’ vote”. He said the 1^st Respondent also stated that they know very well of his character of being a giver hence he cannot leave them without giving them anything, so he took out K600 cash money and called him out and handed him this money instructing him to share the money with others there before he drove off. He said the 1^st Respondent also gave another K600 to a Karo Wesley to share it with the other people within his group. He stated that he does not know the 1^st Respondent personally. He said some people within the crowd were attempting to take pictures of the incident using their mobile phones but were stopped. He then gave a K10.00 and/or K20.00 to each person in his group whilst he kept K20.00 for himself but never voted for the 1^st Respondent during the election polling. He estimated that the total number of people gathered there is about 100 to 150 and roughly 60 to 70 people were in his group. At first, he did not report this incident to Police or to anyone because it’s a widespread practice during election campaigns and he thought there was nothing wrong but later he learnt that this action is wrong. He reported the matter to the Petitioner on 27^th October 2017 when he gave his statement. He mentioned that his statement was read back to him before signing it and there was no lawyer with them at that time. He did not write the statements of other witnesses like Karu Wesley or show his statement to them during those times.
6	WESLEY KARU Affidavit of Wesley Karu *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 6	He is 32 years old and comes from Aganomura village of Kamano No.1 LLG, Kainantu District, Eastern Highlands. He said, he was a supporter and campaign coordinator for the Petitioner in the 2017 National Elections. He said he was not on the Roll of electors in the 2017 National Elections. His evidence identical to Baro Pomu word for word. He said he was present at 45^th or Kebe Street on 9^th June 2017when the 1^st Respondent drove up to where they were and said the following words or words to the effect in the pidgin language: “I know that all of you are here are my brother’s (Petitioner) supporters. I can tell you all that, of the 57 candidates contesting the Kainantu Open Seat in this election, there are no better quality leaders than my brother (Petitioner) and myself. Therefore, you should all vote for either me or my brother (Petitioner) only. Give me your ‘1’ vote and my brother ‘2’ vote or give my brother your ‘1’ vote and give me your ‘2’ vote”. The 1^st Respondent also told them to form 2 groups from either side of the road where the 1^st Respondent gave him K600 cash money to share with his group and another K6oo was given to Baro Pomu and his group. The total amount was K1,200.00. He said his group had about 400 people and after the distribution he retained only K10 out of this K600 cash which were all in K10 notes. He said he didn’t vote during the 2017 when he discovered at the polling station that his name was missing from the Common Roll, but he did vote in the previous 2012 election. He was thereafter cross examined by the Respondents’ lawyers.
7	TECKSY MAVINO Affidavit of Tecksy Mavina *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 7	He is from Ward 4, Kainantu Urban LLG Kainaintu District, Eastern Highlands Province. He said he was a registered elector for the Kainantu Open Electorate in the 2017 National Elections. He said he is a supporter and campaign coordinator for the Petitioner. He said on the afternoon of 9^th June 2017 he was at 45^th Street also known as Kebe Street, Kainantu town. He was at the Petitioner’s Campaign area waiting for the Petitioner. While there He saw the First Respondent drove by and stopped where they were. The First Respondent then made a campaign speech in the pidgin language the following or words to that effect: “I know that all of you are here are my brother’s (Petitioner) supporters. I can tell you all that, of the 57 candidates contesting the Kainantu Open Seat in this election, there are no better quality leaders than my brother (Petitioner) and myself. Therefore, you should all vote for either me or my brother (Petitioner) only. Give me your ‘1’ vote and my brother ‘2’ vote or give my brother your ‘1’ vote and give me your ‘2’ vote.” Then the First Respondent took out K 1,200.00 and gave the money to Baro Pomu and Wesley Karu K600 each to distribute amongst the people that were there. Mr Mavino said he was given K 20.00 by Baro Pomu. Because of the good speech supporting his candidate, the Petitioner, and the money he received, he gave his second preference vote to the First Respondent. He was cross examined by the lawyers for the Respondents’ lawyers
8	EZEKIEL SIMON Affidavit of Ezekiel Simon *Sworn: 27^th October 2017, and Filed:* 06^th November 2017 Exhibit Annexure: P 8	He comes from Unki village, Ward 34, Kamano 1 LLG, Kainantu, Eastern Highlands Province. He said he is an elector for the Kainantu Open Electorate in the 2017 National Elections. Mr Simon said, he is a “diehard” supporter for the Petitionerand campaigner. The rest of his evidence is identical to that of Baro Pomu, Wesley Karu and Tecksy Mavino almost word for word. He said on the afternoon of 9^th June 2017 he was at 45^th Street also known as Kebe Street, Kainantu town. He was at the Petitioner’s Campaign area waiting for the Petitioner. While there He saw the First Respondent drove by and stopped where they were. The First Respondent then made a campaign speech in the pidgin language the following or words to that effect: “I know that all of you are here are my brother’s (Petitioner) supporters. I can tell you all that, of the 57 candidates contesting the Kainantu Open Seat in this election, there are no better quality leaders than my brother (Petitioner) and myself. Therefore, you should all vote for either me or my brother (Petitioner) only. Give me your ‘1’ vote and my brother ‘2’ vote or give my brother your ‘1’ vote and give me your ‘2’ vote.” After the speech, the First Respondent said something further to the effect that He is a” giver” and he will not leave them without giving anything. Immediately thereafter the First Respondent took out K 1,200.00 and gave K 600.00 each to Baro Pomu and Wesly Karu to distribute amongst the people that were there. Mr Simon said, from the money given to Wesley Karu, Mr Simon was given K 10.00. Mr Simon said because of the First Respondent’s good and supporting speech and the money he received he gave his second preference vote to the First Respondent. He was cross examined by the Respondents’ lawyers.

SUMMARY OF RESPONDENTS’ WITNESSES

(3) EVIDENCE AT 45^TH (KEBE) STREET & KAINANTU RUGBY OVAL

#	Witness Name	Evidence at 45^th (Kebe) street
1	JOHNSON TUKE Affidavit of Johnson Tuke Sworn: 13^th December 2017 Filed: 14^th December 2017 Exhibit Annexure: 1 R 1	He originated from Karufi village, Ward 3 of Kamano No. 2 LLG, Kainantu District, Eastern Highlands. He is the 1^st Respondent in this matter and currently the Parliamentary Member for Kainantu Electorate after contesting the 2017 NGE as a candidate and declared elected winner. He stated that on the 9^th June 2017 he was organizing a gathering for his campaign coordinators to be held at his Yonki premises. While waiting his brother called him from Kainantu town to visit his mother who was sick. He drove to Kainantu town, then to 45^th (Kebe) street that afternoon. He was accompanied by one Jacob Tiko. After visiting his sick mother and as he was driving out onto the main 45^th (Kebe) street, he noticed a crowd of people lining up on both sides of the road. He stopped briefly to talk to them. At once a crowd had gathered around him. He said he learnt from some people in the crowd that most of them were supporters of the Petitioner. He told them that amongst the 57 candidates contesting the Kainantu Open Seat, the Petitioner is a good leader like himself. And if they intend to cast their first preference votes for the Petitioner then they may consider him for their second and third preferences votes. Having said that, he drove off at about 4:30pm heading towards his residence at Yonki to meet up with his campaign coordinators. He categorically denied giving any money to Baro Pomu, Wetley Karu or any members of the crowd at 45^th (Kebe) street as alleged. He was cross examined by the Petitioner.
Evidence at Kainantu Rugby Oval
1	Affidavit of Johnson Tuke	The First Respondent gave evidence that on the 16^th June 2017 he was not at Kainantu rugby league oval but was at his residence at Yonki attending to his campaign coordinators. He was cross examined by the Petitioner. He maintained all through out that on the relevant date and time he was at his Yonki home meeting with his coordinators, who were planning further campaign strategies. His evidence was corroborated by McKenzie Togonave
2	MACKENZIE TOGONAVE Affidavit of Mackenzie Togonave Sworn: 07^th December 2017 Filed: 07^th December 2017 Exhibit Annexure: 1 R 2	He deposed in his affidavit that he comes from Fomu village, Avivinonta inside Ward 4 of Kamano No. 2 LLG, Kainantu, Eastern Highlands Province, and married with 5 children. He holds a Diploma in Management. He is a supporter and campaign coordinator of the 1^st Respondent throughout the 2017 National Elections. On the 16^th June 2017 at about 10:00am the 1^st Respondent called him from Yonki instructing him to gather his campaign coordinators and to bring them to the 1^st Respondent’s residence at Yonki to plan his election campaign strategies. Thereafter he walked from Blue Corner into Kainantu main town area looking and gathered some of the coordinators at the main market area to take them over to the First Respondent’s house at Yonki. By 4.30pm he collected all the campaign coordinators for the First Respondents. Whilst he was at Kainantu town market, he saw candidates vying for Kainantu Open s held their campaign rallies with crowds of people moving around. There were candidates in vehicle conveys with speakers, playing loud music, while others were addressing the public. He stated that the rugby league oval is not an isolated place but within the Kainantu town boundary situated alongside the main road and roughly a kilometer from the town’s main center. He then transported the coordinators on his vehicle registration number MAE 912, leaving Kainantu at about 5:50pm and headed for Yonki and arrived at the 1^st Respondent’s residence well past 6:00pm where the 1^stRespondent was already there waiting with other coordinators. Shortly upon arrival, the 1^st Respondent requested one of them to pray then the meeting commenced. He said the First Respondent was not in Kainantu town or Kainantu Rugby Oval that day.

SUBMISSIONS OF COUNSELS

Petitioner

This is a summary of the Petitioner’s submission. In respect of Bribery Case No. 1, Kebe, 45^th Street; the Petitioner submitted that:

The Court accept the evidence of Wesley Karu, Tecksy Mavino, Ezikiel Simon and Baro Pomu.
That the evidence of the four (4) witnesses were in detail, consistent, and corroborative.

That the evidence of the witnesses was not destroyed or discredited during cross-examination.

That all the elements of bribery were proved in that on 9^th June 2017, at Kebe street, Kainantu town, the first Respondent being a candidate, gave K 1,200.00 to a crowd of people to vote for him during the polling. That the electors namely Baro Pomu,Wesly Karu, Tecksy Mavino and Ezekiel Simon were part of the group who received money from the first Respondent and voted for him.
The Petitioner submitted that, in contrast, the evidence of the First Respondent was brief, discredited during cross-examination, and was not corroborated. That the First Respondent’s evidence be rejected.
In response to the Respondents submissions that the Petitioner failed to produce the common roll or Roll of Electors to prove that the persons alleged to have been bribed were electors, the Petitioner submitted that the Common Roll was annexed to the Affidavit of Moses Ninkama, and the Court shall take judicial notice by operation of section 217 of the Organic Law on National and Local Level Government Elections. Secondly, the Petitioner submitted that, the pleadings in the Petition clearly stated that the persons bribed were electors, and the Respondents did not raise any objections and it is not fair to raise the issue now. Thirdly, the Petitioner submitted that, pursuant to section 217 of the Organic Law the Court be guided by the substantial merits and good conscience of the case without being too legalistic or conforming to the strict rules of evidence.

In respect of the allegations at Kainantu Rugby League oval, the Petitioner made similar submissions that:
1. the Court accept the evidence of Kati David, John Sagi, Kingsley lke and Jacob Pinie.
2. That the evidence of the witnesses was in detail, corroborative, credible, and consistent.
1. That the evidence of the witnesses was not destroyed or discredited during cross-examination.
1. That the elements of the offence of bribery were established in that on the afternoon of 16^th June 2017, at the Kainantu Rugby League Oval, the first Respondent, gave K12,000.00 to the representatives of the four (4) LLG and with the intention that the recipients who were electors vote for him during the 2017 National Elections. That the recipients namely, Kati David, John Sagi, Kingsley Ike and Jacob Pinie, who were electors were amongst the people who received the money and voted for the First Respondent.
2. In contrast, the Petitioner submits, the rebuttal evidence of Johnson Tuke, the first Respondent and his witness, Mckenzie Togonave, were destroyed during cross-examination, lacking credibility, inconsistent, uncorroborated, and therefore be rejected.
3. In response to the Respondents submissions that the production of the Common Roll or Roll of Electors for Kainantu Open Electorate is necessary to prove that the witnesses were electors, the Petitioner, again, responded as follows:
  - (i) It is the role of the Second Respondent, to produce the Common roll in Court, and the Second Respondent failed to do that.
  - (ii) That the relevant Role of Electors was all annexed to the Affidavit of Moses Ninkama and the Court can refer to that by operation of section 217 of the Organic Law.
  - (iii) The petition contains pleadings that the witnesses who gave evidence were electors, and the Respondents did not raise any objections then, and therefore should not be allowed to raise the issue now.
  - (iv) That the court should not be bound by technical rules of evidence but be guided by the substantial merits and good conscience by virtue of section 217 of the Organic Law. The Petitioner relied on the recent decision of the Supreme Court in Hagahuno v Tuke & Electoral Commissioner (2020) SC 2018, in support of his submissions.
First Respondent

Mr Mawa, counsel for the First Respondent submits that the petition be dismissed for two main reasons:

Firstly, Mr Mawa submits that the Petitioner did not discharge the burden of proof or call evidence to establish that the persons allegedly bribed were electors within the meaning of Section 103 of the Criminal Code Act and Section 215 (1) of the Organic Law. Mr Mawa submitted that the Petitioner failed to tender the Common Roll or the Roll of Electors and failed to get the persons allegedly bribed to confirm or identify their names as electors on the Roll of Electors. Mr Mawa referred to and relied on the decisions of Aide Ganasi v Sali Subam & Electoral Commissioner (2013) SC 1277, and Ben Micah v Ian Ling Stuckey (1998) PNGLR 151 in support of his submissions.
Secondly, Mr Mawa submits that the First Respondent denied the allegations and gave evidence in rebuttal. Mr Mawa, after referring to various contradictions and inconsistences in respect of the evidence of each of the Petitioner’s witnesses submitted the following which I quote:

“10.20 In the present case, the Petitioner’s evidence adduced thus far fails to prove the two allegations of bribery as pleaded in the Petition because of the following reasons:

8.5.1.1.1 As the analysis of the evidence shows there is significant contradiction, conflict and inconsistencies between the evidence adduced through oral testimonies and affidavit evidence and the allegations pleaded in the Petition.
8.5.1.1.2 The evidence falls short of proving the allegations pleaded in the Petition. In fact, the evidence and allegations pleaded run parallel to each other and contradict or conflict with each other as discussed in the analysis of the evidence.
8.5.1.1.3 Some of the witnesses who came and gave evidence that they were bribed are not named and pleaded in the allegations set out in the Petition. Their evidence has no foundation in the pleadings and has no relevance in probative and no evidentiary value at all.
8.5.1.1.4 The witnesses signed their affidavits not before Commissioner for Oaths and Affirmations as required under the Oaths and Affirmations Act and not properly administered. Therefore, their affidavits lack credibility and weight on its reliability as the evidence of truth.
8.5.1.1.5 The statements made in the affidavits of the Petitioner’s witnesses on both allegations of bribery are identical, verbatim and or strikingly similar. It is plainly clear that someone has written the affidavits for the witnesses and they all signed the affidavits. It raises serious issues of collision and fabrication of evidence and facts doubts on credibility and reliability of the affidavit evidence.
8.5.1.1.6 One of the witnesses testified in his oral testimony and deposed in his affidavit evidence that his name was not registered on the Electoral Roll and he did not vote on the polling day.
8.5.1.1.7 Most of the witnesses were evasive and took a lot of time to answer simple question put to them.
8.5.1.1.8 The majority of the witnesses in the witness box were not good and they presented themselves as not the witness of truth.”

The Second Respondent:

Mr Simbala, counsel for the Second Respondent submitted that the petition be dismissed for similar or same reasons as submitted by the First Respondent: Mr Simba submits that:

The Petitioner failed to discharge the onus of proving his case to the entire satisfaction of the court.
The Petitioner failed to prove that the persons alleged to have been bribed were electors.

The way to prove that a person is an elector is by the production of the Common Roll into evidence.

The Petitioner’s failure to produce the Common Roll or Roll of Electors in support of his evidence is fatal to his case, in that the persons alleged to have been bribed were not identified or confirmed as electors in the Roll of Electors for the Kainantu Open Electorate for the 2017 National Elections.

The Second leg of Mr Simbala’s submission is that, after critically analysing the evidence, the evidence presented by the persons alleged to have been bribed or have been called as witnesses is tainted with contradictions, inconsistencies, conjecture, speculation, distorted, unconvincing and is unreliable. That there is no evidence of mens rea on the part of the First Respondent and the evidence given therefore is not logical. He relied on the case: Waranaka v Dusava (2009) SC 980.

ANALYSIS OF EVIDENCE

The allegations and evidence of the Petitioner is denied by the Respondents. The First Respondent has given rebuttal evidence. There are two competing versions. The Supreme Court in Waranaka v Dusava (2009) SC940 held that where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. Accordingly, I intend to assess and analyse each of the witness evidence to determine which version is credible.

PETITIONER’S WITNESSES

Kati David

Kati David gave evidence to prove bribery case 3, at Kainantu Rugby League Oval. His evidence is similar or identical to that of John Sagi, Jacob Pinie and Kingsley Ike, almost word for word. I find there are major contradictions and inconsistencies in his evidence, some of which are:

Firstly, he was asked in cross-examination, if he knew John Sagi, Jacob Pinie and Kingsley Ike. In answer, he said, he knew the three gentlemen, saying John Saki is from his village, that Kingsley Ike is from a neighbouring village and Jacob Pinie is from another village. The evidence given by John Sagi is that John Sagi is from Blue corner, Kainantu town, a different LLG. The evidence given by Jacob Pinie is that he comes from Nomanpa Hamlet, 5mile village, Agarabe LLG. The evidence given by Jacob Pinie is that he (Jacob Pinie) comes from Blue Kona, Kainantu town, Kainantu Urban LLG. This is a major contradiction which impeaches on the credibility of not just Kati David but also on the evidence of the other three witnesses.

The second contradiction is this. In paragraph 11 of his affidavit, he stated, the First Respondent took out K12,000.00 cash, and gave them K3,000.00 each to the representatives of the four Local Level Government areas. During cross-examination, the witness repeatedly stated, he did not know whether the representatives of the three (3) LLGs got any money.

Thirdly, in paragraph 34 of the petition, it is pleaded that one “Kati Tesasi” from Tapo community received K3,000 for the group of persons from Kamano No. 1 LLG. In his evidence, Kati David said, he went and collected the K3,000.00 from the First Respondent. Is Kati David of Avive Village, is one and the same person as “Kati Tesasi of Tapo Community”? If Kati David was the one who represented the Kamano No. 1 LLG, why was his name not correctly pleaded in the petition. He did not clarify the disparity. In my view this is a major inconsistency that reduces the credibility of the evidence in proving the allegation.
Mr Kati David’s evidence is also inconsistent with the pleading in paragraph 40 of the petition. In the paragraph 40 of the petition it is alleged, a Pastor Kati David gave 2^nd Preference vote to the First Respondent. Is Kati David the same person as Pastor Kati David and if so in the oral evidence he said he gave his third preference to the First Respondent. He did not explain the inconsistency.
There is another aspect of his evidence that is not convincing. In paragraphs 6,7 & 8 of his affidavit, and in his oral evidence, Mr Kati stated he was very excited to receive money from the First Respondent, and in his own words “chance money” from the sitting member of Parliament. In paragraphs 23, 24 and 26 of his Affidavit, Mr Kati says, he felt guilty after the polling, and so he volunteered to take “a bold stand” to give evidence for the Petitioner whom he supported. Mr Kati said, he is the supporter of the Petitioner, and gave his first preference vote to the Petitioner. I note from one of the Petitioner’s witness, Jacob Pinie, that David Kati and Baro Pomu were “workers” or “workmen” for the Petitioner during the 2017 National Elections. I am not convinced he is a truthful witness. He has a motive to lie as he is the supporter of the Petitioner.
There are still other aspects of his evidence that is not convincing. For instance, he said he did not report the incident to anyone, except to the Petitioner on 27^th October 2017, being the first time. I note that 27^th October 2017 is the date of swearing his affidavit, and the Petition was filed on 4^th September 2017, a month earlier. This gives the appearance that the petition was prepared and filed before the witness gave his statement and that is questionable as to how a petition could have been drafted and filed before the witness’s instructions.
Generally, Mr Kati’s demeanour in the witness box was not good. He was evasive, hesitant, and preferred to stick to his evidence in the affidavit and not to venture out during cross-examination, giving the impression that he feared making a mistake.
Finally, and most importantly, Mr Kati said he was an elector, from Ward 6 Kamano No.1 LLG, Kainantu District. However, the Common Roll or Roll of Electors for Kainantu Open Electorate for 2017 National Elections was not produced, or tendered into evidence, to confirm that he is an elector. I am doubtful that he is an elector.
The evidence is also unbelievable and illogical. Mr Kati was in Kainantu attending to his own business when he was suddenly called to assemble at Kainantu Rugby League Oval. Within few minutes, he ended up receiving K3,000.00 from the first Respondent in a public place on a broad day light where there were hundreds of people. There was no prior arrangement. There is no evidence that the first Respondent knew Mr Kati prior to giving the money. How was Mr Kati identified to be the spokesman for his Kamano No. 1 LLG? This act of bribery is more of a stunt act by the First Respondent. On the face of denial by the First Respondent, I reject the evidence as being illogical and lacking common sense.
For these reasons, the allegations of bribery incident at Kainantu Rugby league oval remains unproven by this witness, Kati David.

John Sagi

John Sagi gave identical evidence to that of Kati David, Kingsley Ike, and Jacob Pinie, almost word for word. I have assessed the evidence of John Sagi, and find some aspects containing major contradictions and inconsistencies and lacking credibility which are set out below:

Firstly, he said, from monies received from the First Respondent, he retained K200 which was further redistributed; and that he did not vote for the First Respondent. This is inconsistent with and contradicts paragraphs 40 of the petition where it is pleaded that John Sagi received K100.00 and he gave his First Preference vote to the First Respondent. This is a major inconsistency. When the petition was first drafted, they would have had the information on whether John Sagi voted for the First Respondent unless the petition was drafted without Mr. Sagi’s statement.
In paragraph 15 of his affidavit, Mr Sagi deposed that the first Respondent called him out to receive the K3,000.00, on behalf of the Kainantu Urban LLG. When questioned, whether the First Respondent knows him personally, he said the First Respondent does not know him. It does not make sense, how the First Respondent would have entrusted a huge sum of K3,000 to someone he did not know and relate to.

Mr Sagi gave evidence that the incident took place for 2 hours, between 4:00pm and 6:00 pm. This is inconsistent with paragraph 30 of the petition which stated the incident took place at 5pm for one hour only. Whilst this appears to be a minor inconsistency, what is not clear is why did it take two hours when the evidence by all the witnesses say the First Respondent just drove in, instructed the people to gather into four groups, gave the money and took off without any campaign speeches by him or by anyone else. If that were the scenario, it would have taken just a short period of time, not two hours.

Mr Sagi said, he did not report the incident of bribery to anyone until 27^th October 2017 being the date when he signed his affidavit. This is unbelievable. The Petition was filed on 4^th September 2017. If he did not give his statement before filing of the petition, how did the Petitioner have the necessary information and details to draft the petition unless it was fabricated.
The witness was also evasive and at times hesitant when answering simple questions during cross-examination. He gave the impression that he was not telling the truth.
Finally, and most importantly, even though Mr John Sagi said that he is an elector from Blue Kona, Ward 2, Kainantu Urban LLG, his name as an elector was not confirmed. The Electoral Roll or Roll of Electors for Blue Kona, Ward 2, Kainantu Urban LLG was not produced to confirm if his name is registered. I therefore have doubts whether he is an elector.

Kingsley Ike

The evidence of Kingsley Ike is very identical to that of Kati David, John Sagi and Jacob Pinie, who all gave evidence almost word for word in their affidavits, all sworn on 27^th October 2017, before the same Commissioner for Oath and translated by the same translator. I have assessed his evidence and find his evidence tainted with contradictions and inconsistencies and lacking credibility.

Firstly, Mr Ike said, one Sapot Witnis got the K3,000.00 from the First Respondent on behalf of the people from Agarabi LLG. Mr Sapot Witnis then gave him K300.00 for his council ward. The petition did not contain the name or pleading that Sapot Witnis was the representative who received the K3,000 on behalf of the Agarabi LLG. It did not state that Sapot Witnis gave Kingsley Ike K300.00 for distribution. If the information was available, why was it not included at the time of drafting the petition.
Secondly, when Sapot Witnis gave K300.00 to Kinsley Ike, there was no instruction or purpose for the money except to use the money to buy bettel nut and bus fare. There was no instruction for the recipients of the money to vote for the First Respondent. During cross-examination, Mr Ike was asked whether the First Respondent said anything when he gave the money, Mr Ike said “NO”, the first Respondent said nothing at all.

Mr Ike said, the First Defendant, came into the oval, told people to gather into their four LLG groups, took out the money. He then gave K 3,000.00 each to the group leaders to distribute and took off without saying anything. This is unusual. If that is the real scenario, it would have taken only a short time. What about the two hours, the first Respondent is alleged to spent at the oval between 4:00 pm and 6:00pm. It does not make sense at all.

Again, Mr Ike said, he did not report the incident to anyone until 27^th October 2017. This date is the date of swearing of his affidavit. The evidence is identical to David Kati, John Sagi and Jacob Pinie who all gave their complaint or statement after the filing of the petition. How is this possible for the petition to be drafted without the witness’s statement? The witnesses are either not telling the truth or the petition is a fabrication.
There is also a notable inconsistency in the evidence. Paragraph 40 of the Petition states, Mr Kingsley Ike gave his third (3) Preference vote to the first Respondent whereas in paragraph 15 of his affidavit and in his oral evidence, Mr Kingsley Ike said he gave his Second (2^nd) Preference vote to the First Respondent. This inconsistency in the evidence reduces the credibility of Mr Ike’s evidence.
Finally, Mr Ike said he is an elector for Kainantu Open Electorate for 2017 National Elections. However, the Roll of Electors was not produced or tendered into evidence to prove that he is indeed an elector for the electorate. I therefore have doubts whether he is an elector for the Kainantu Open Electorate for the 2017 National Elections.

Jacob Pinie

Jacob Pinie’s evidence is identical to that of David Kati, John Sagi and Kingsley Ike, almost word for word. I have assessed the evidence of Jacob Pinie and find various aspects his evidence contradicting, inconsistent and lacking credibility which I set out below.

Firstly, the petition does not contain his name as a person alleged to have been bribed. Pleadings drive the evidence, and the evidence of Mr Pinie has no foundation in the pleading to prove this allegation. This is a major inconsistency, in my view, because it takes just one incident of bribery to nullify an election of the winning candidate.
Secondly, in paragraph 11 of his affidavit, he deposed that the First Respondent “called upon a leader or representative of each group to approach him (first Respondent) and receive the cash for their respective groups...” but during cross-examination, Mr Pinie repeatedly said the First Respondent walked over to where the groups were and gave the money. This also contradicts the Affidavit evidence of John Sagi (paragraphs 14 & 15), Kingsley Ike (paragraph 11) and David Kati (paragraph 12) who all said, they were all called up to get the money. This is a major contradiction.

Mr Pinie said he signed his affidavit before the Petitioner and not before any other lawyer. Mr Pinie’s affidavit is marked Exhibit P4. It was sworn on 27^th October 2017 before one N.Tenige. There is no stamp for the Commissioner of Oaths being affixed. When I compare this Affidavit with the other seven witnessess’ affidavits tendered into evidence in this case, I find Mr. Pinie’s Affidavit different. In each of the seven affidavits the Commissioner of Oaths affixed his stamp which contained his name. In Mr Pinie’s affidavit, which was signed on the same day, does not have the commissioner of Oaths stamp. The name of the Commissioner was only hand-written with the word “N. Tenige” This can mean he may not have signed his affidavit before a Commissioner of Oaths or pre-signed or someone else could have signed the affidavit. Whist this is a minor matter, it does render his affidavit evidence losing evidentiary weight.

The witness was vague and confused about the dates of giving his statement to the Petitioner and the dates of signing his affidavit. Like all the other witnesses, he kept maintaining that he gave his statement only after the filing of the Petition. This could mean, the Petition may have been filed without his instructions. It gives an appearance or impression that the petition was all a fabrication, and all the witnesses were coached and counselled to be witnesses.
Mr Pinie’s evidence lacks credibility in many aspects. Here are some instances. He said the First Respondent gave an invitation to the crowd to gather at Kainantu Rugby League Oval. When asked how the First Respondent gave the invitation, he could not answer. Mr Pinie was asked during cross-examination whether he saw the First Respondent campaigning in Kainantu town on that day to which he said “NO”, yet he insisted on seeing him at the Kainantu Rugby League oval on that afternoon. If the First Respondent was not seen in Kainantu that day, it affirms the evidence of the first Respondent’s evidence that he was not in town on that day.
Mr Pinie and the other witnesses’ evidence lack logic and common sense. How did the First Respondent within a short time, announce to the entire crowd to assemble at the Kainantu Rugby League Oval so he could give out K12,000.00 to such a big crowd representing the four (4) districts in broad day light with the intention of bribing them. Did he know who would be there. How did he pick out the leaders? How could he trust them and entrust K12,000.00, in return for votes? There were no campaign speeches made. The evidence defies logic and common sense.
Finally, Jacob Pinie says he is an elector, from ward 2 of Kainantu urban LLG. However, the Common Roll or Roll of Electors was not produced or tendered as evidence. I have doubts about his assertion that he is an elector, for the Kainantu Open Electorate for the 2017 National Elections.

ANALYSIS OF EVIDENCE – Bribery Case No.1 At 45^th (Kebe) Street
1. Baro Pomu, Karu Wesley, Tecksy Mavino and Ezekiel Simon were called to prove the Bribery Case No.1, at 45^th (Kebe) street Kainantu town.
2. The four witnesses gave evidence by Affidavit as well as oral examination. Their affidavit evidence is identical and verbatim in all aspects. It appears the statements in the affidavits were prepared by one person. I will now deal with the evidence of each witness.
1. There is an obvious inconsistency in the evidence by all the witnesses. Paragraph B1(1)(1) of the petition alleges that Bribery Case No.1, at 45^th (Kebe) street took place on Friday 16^th June 2017. The evidence given by all the witnesses is that the alleged bribery occurred on 9^th June 2017.
Baro Pomu
1. The witness Baro Pomu deposed that he is an elector for the Kainantu Open Electorate for the 2017 National Elections, in ward one (1) Agarabi LLG, Kainantu District. However, the Common Roll or Roll of Electors was not produced or tendered into evidence. I have doubts whether he is an elector for Kainantu Open Electorate for the 2017 National Elections.
2. Baro Pomu, is a supporter and campaign coordinator for the Petitioner. One of the Petitioner’s witness, Jacob Pinie said Baro was a worker for the Petitioner. Baro Pomu’s evidence is unreliable, and self-serving. For instance, he said “the First Respondent and other candidates were playing money to lure voters’ but his candidate, the Petitioner did not. He has a motive to be biased or even lie.
3. He also gave contradictory evidence. He said he knew it was bad practice for candidates to dish out money. When the First Respondent gave him the money, he was not impressed, and decided not to vote for him. However, during cross-examination, he said, he did not know that it was bad to receive a bribe. He came to know about this later when he became a witness in these proceedings. His later oral evidence is a direct contradiction of his affidavit evidence in paragraphs 20,21 and 22 of his Affidavit where he heavily criticised the First Respondent. Whilst this is a minor contradiction, it does affect the credibility of the witness.
4. Mr Baro Pomu’s demeanour was not good. He was evasive and hesitant when answering simple questions.
5. Generally, the evidence lacks common sense. The alleged bribery took place on a public street, in front of about 800-900 people during broad day light between the hours 2:00pm and 3:00pm. How is it logical for the First Respondent to make a sudden call on Mr Pomu and Mr Karu whom the First Defendant did not know, to act for him in distributing money for the bribe. Why would the first Respondent take a risk in bribing the people whom he came to learn were supporters of a rival candidate in a public place. Was it a calculated risk or a foolish, emotional, and careless act on the part of the First Respondent in entrusting money to two main campaign coordinators for the Petitioner to bribe and secure votes for him (First Respondent)? It makes no sense. I reject this evidence as it lacks credibility.
Wesley Karu
1. Wesley Karu gave similar evidence to that of Baru Pomu, Teksy Mavino and Ezekiel Simon. He is a supporter and campaign coordinator for the Petitioner. He did not vote during the 2017 National Elections because his name was not on the Common Roll or Roll Electors. Since he is not an elector, this ground of Petition cannot be proved by reason of him being bribed. His evidence can be allowed only to provide proof for other electors being bribed.
2. Mr Karu’s evidence is not reliable. It is inconsistent with the grounds of petition. Firstly, he says, the incident of bribery took place on 9^th June 2017, which is contrary to the allegation in the petition. The petition alleges, that the alleged bribery took place on 16^th June 2017. The disparity in the date is a major inconsistency that affects the credibility of the evidence and the petition.

Secondly, the number of people who appear to have received the money was between 800-900 people, whereas the petition stated the number to be between 40 and 100 people.

Mr Karu’s evidence is illogical and lacks credibility. In his evidence he said the First Respondent called out to him to give him the K600 to distribute. During cross-examination, it was clear the First Respondent does not know Wesley Karu, who happens to be the campaign coordinator for the Petitioner. The alleged bribery took place during broad day light where there were about 900 or so people who appear to be the supporters of the Petitioner. It is illogical, lacking common sense.

The evidence of Wesley Karu is also self-serving. He said the First Respondent and other candidates were using money and pigs to bribe people for votes, except for his candidate, the Petitioner, who did not.
Finally, Karu’s evidence also lacks credibility. He was asked whether he discussed his evidence with other witnesses before he came to court, to which he answered “Yes”. In the circumstances, the evidence of Wesley Karu is unreliable.

Tecksy Mavino
1. Mr Tecksy Mavino gave similar evidence to that of Baro Pomu, Wesley Karu and Ezekiel Simon. He gave evidence that he is an elector for the Kainantu Open Electorate for the 2017 National Elections. He is also in his own words “a diehard supporter and coordinator for the Petitioner” during the 2017 National Elections. He said, the First Respondent gave a good speech for the Petitioner, therefore, he gave his second vote to the First Respondent.
2. I have assessed his evidence and note there are some material inconsistences: He says, he is an elector alleged to have been bribed. However, his name is not pleaded in the column or table under paragraph 12 or elsewhere in the petition as one of the recipients of the monies allegedly given by the First Respondent. This is a major inconsistency that goes to the foundation of the petition. It only requires one incident of bribery of just one person to nullify the election of the winning candidate. It is therefore necessary for the name of the person allegedly bribed be pleaded in the petition. The law is settled. Pleadings drive the evidence. I therefore reject the evidence of Mr Mavino insofar as it seeks to establish the allegation by reason of him being bribed.
1. Secondly, he says the incident of bribery took place on 9^th June 2017. The date of incident given in evidence is inconsistent with the date in pleaded in paragraph one (1) of the Petition which states that the allegation of bribery at 45^th (Kebe) street took place on 16^th June 2017. These inconsistencies are fatal as they fail to prove the allegation of bribery at 45^th (Kebe) street.
1. Thirdly, I have doubts whether Teksy Mavino was an elector. The Roll of Electors for the Kainantu Open Electorate for the 2017 National Elections was not produced or tendered into evidence to have the witness identify and confirm his name as an elector.
2. Mr Mavino’s evidence also lacks credibility as the witness was not sure as to the number of people being present and the amount each person is alleged to have received.
3. Further,part of his evidence directly contradicts with the evidence given by Wesley Karu. Wesley Karu in his oral evidence said, all witnesses met and gave their statements to the Petitioner together, whereas Mr Mavino denies meeting with Wesley Karu and Baro Pomu at the time of giving the statement.
4. Finally, again the evidence of bribery against the First Respondent defies logic and common sense. It was broad day light. The people alleged to have been bribed were apparently supporters of the Petitioner. There was a crowd of at least up to 800 people. It is incomprehensible for the First Respondent to give out K1,200.00 to people on the spur of the moment, especially to an unknown group without prior arrangement. In my view the evidence defies logic and common sense and therefore is unreliable.
Ezekiel Simon

Mr Simon gave identical or similar evidence to that of Baro Pomu, Wesley Karu and Tecksy Mavino. The Affidavit evidence of these four (4) witnesses were strikingly similar, almost word by word. It gives the appearance that it was discussed and drafted by one person. It can be explained that the incident of bribery happened at the time, place and date which is common to all. Or on the other hand, it could be that it was fabricated.
I have assessed his evidence and note major inconsistencies. Firstly, in his evidence, Mr Simon said the bribery took place on 9^th June 2017. The date is inconsistent with the pleading in paragraph 1 of the petition which states that the date for alleged bribery was on 16^th June 2017. The difference in the date is a major inconsistency which goes to the very foundation of the petition. Did it take place on 9^th June 2017 or 16^th June 2017? There was no amendment to the pleading in the petition. In the face of denial by the First Respondent, the onus is on the Petitioner to prove the petition with credible evidence to the entire satisfaction of the Court. I am not satisfied with the evidence given thus far.

Secondly, in his evidence, Mr Simon said he received K10.00 and gave second (2) preference vote to the First Respondent whereas in paragraph 12 of the petition, it is pleaded that Mr Simon received K20.00 and gave first (1) preference vote to the First Respondent. Again, which version of the facts are correct, those in the petition or in the evidence. The inconsistency may not be major, but then there is no explanation by the Petitioner or his witness. The evidence must prove the facts pleaded. Where the evidence is inconsistent with the pleadings, the allegations remain unproven, unless amendments are made to the pleadings to accord with the evidence.

Thirdly, Mr Simon says he liked the speech given by the First Respondent so gave his vote to him, and not influenced by the K10.00 he received. Later he changed his mind during re-examination that he gave his 2^nd Preference vote to the First Respondent because of the money and not just for the good speech by the First Respondent.
Mr Simon said he is an elector, having his name at Ward 4 of the Kamano No.1 LLG. However, the Common Roll or Roll of Electors was not produced to have his name identified and confirmed. I therefore have doubts whether he is an elector for the 2017 National Elections for Kainantu Open Electorate.
Finally, Mr Simon’s evidence is unreliable. He was hesitant and evasive in answering some of the questions. The whole evidence again defies logic and common sense. He is a supporter and campaigner for the Petitioner. He has a motive to give false evidence.

First Respondent’s Evidence

The First Respondent gave evidence himself, supported by one McKenzie Togonave.
1. Firstly, the First Respondent denied the allegations at the Kainantu Rugby League Oval, on 16^th June 2017. The First Respondent says he was at his village, organising a meeting with the campaign coordinators. He was not at Kainantu Rugby League Oval on the day and time alleged. His evidence was corroborated by Mr Togonave, who travelled to the First Respondents home that afternoon.
2. In respect of the allegation at the 45^th (Kebe) street, the First Respondent said, he did go to that place on the date and time alleged. His trip was to visit his sick mother at the request of his brother living along the same 45^th (Kebe) street. After returning from the visit, he met a crowd of people along the street whom he was told were supporters of the Petitioner. He stopped briefly and made a brief campaign speech asking the people who gathered there to vote for him and the Petitioner after learning that they were supporters of the Petitioner. He then drove away. He said he did not give any money to Baro Pomu and Wesley Karu to distribute as alleged. He was extensively cross examined by the petitioner.
1. I find the First Respondent’s evidence in relation to allegations at Kainantu Rugby League very brief, a mere denial of being there. His evidence of alibi is confirmed by McKenzie Togonave.
1. In respect of the allegations at 45^th (Kebe) street, the First Respondent was questioned at length in cross-examination. He maintained his evidence. There was nothing inconsistent, illogical, or contradictory in his evidence.
McKenzie Togonave

Mr McKenzie Togonave gave evidence for the First Respondent. He said he was in Kainantu town on 16^th June 2017. He was called by the First Respondent to arrange for the campaign coordinators and bring them over to his home in Yonki. Between 10:00 am to 4.00 pm, he arranged for the coordinators and brought them over around 4.30pm. He said whilst other candidates were in town campaigning, the First Respondent was not in Kainantu town on 16^th June 2017. Mr Togonave denied the allegations of the First Respondent giving out monies at the Kainantu Rugby League Oval on 16^th June 2017. He said, he saw the First Respondent at his home at Yonki on the afternoon of that day.

Mr Togonave was questioned at length, during cross-examination. I did not find any contradictions or inconsistencies in his evidence, except for one minor inconsistency in relation to the existence of a campaign stage at the centre of the Kainantu town. However, that is a minor inconsistency which does not affect his evidence.

Reasons for Decision

After studying the pleadings, and assessing evidence and submissions of Counsel, following are my reasons for decision.
In determining the issues before me, I have reminded myself of the provision and the application of section 217 of the Organic Law.
The Petitioner submitted that the recent decision in Hagahuno vs Tuke, the Supreme Court has given a more flexible and liberal approach in dealing with Election Petitions. He submitted that the recent decision has settled the law that when dealing with this petition, the court should allow itself to be guided by substantial merits and good conscience of its case, without being strict and rigid and without regard to legal forms or technicalities, whether the evidence before it is in accordance with the law of evidence or not, whether it is inconsistent or hearsay or whether it is inconsistent with the pleadings in the petition.
The Petitioner particularly urged the Court to accept the evidence of his witnesses that they are electors without the production of Common Roll or Roll of Electors, by virtue of section 217 of the Organic Law. The Petitioner said, he could not tender into evidence or produce the Roll of Electors, as they were not his documents. He submitted that it was the role of the Second Respondent. Secondly, the Petitioner submitted that copies of the relevant Roll of Electors was annexed to the Affidavit of Moses Ninkama, a lawyer acting for the Second Respondent and filed in Court. The Petitioner asked the court to refer to them or take judicial notice of them. The lawyers for the Respondents opposed on the basis that the Affidavit was not tendered into evidence and was not properly before the Court. The Petitioner submitted further that it was clearly pleaded in the petition that the witnesses who gave evidence in court were persons named as electors who were allegedly bribed. The Respondents did not raise any objections then and it was unfair to raise the issue now after the trial. Again, the Petitioner submitted that the Supreme Court decision in Hagahuno v Tuke has provided some flexibility in dealing with the evidentiary issues to do justice in the case. The relevant passage in the judgement cited by the Petitioner is at paragraphs 32 to 33 which reads:

“ 32. Unlike the National Court Rules, there is no specific requirement for instance, how for the purposes of s. 208 (a), a fact should be stated and whether that should be with particulars as is known in ordinary litigation. There can be no doubt therefore, as to why Parliament decide to then go onto provide for s. 217 and 222. Obviously, Parliament made a deliberate decision to empower the Court “to be guided by the substantial merits and good conscience of each case” and mandated the Court to discharge that duty or responsibility “without regard to legal forms or technicalities...” This was necessary because, it made provision for ordinary persons without any legal training and or experience to file petitions which in turn, is necessary for maintenance of respect and integrity in the electoral process and election outcomes by making the process of challenging election outcomes flexible and easier. That in itself, sends a strong message. The message is in two ways. The first is at the preliminary stage. The message is, a person who secures an election victory through bribery or such other illegal means or outside the due process provided for in the Organic Law will not be allowed to gain from it by a technical knockout through an objection to competency of a petition against such a person’ victory. The second is at the trial stage. The message there is, once a petition progresses to trial, the technical rules of evidence will not be applied against any evidence called in support of the petition.

It should follow therefore that, an objection to competency which raises technical issues is doing nothing more than inviting the Court to breach its obligation and or duty under s. 217. Sadly, our history of election petitions demonstrates more petitions being dismissed in total disregard of Parliaments intention and purpose behind including the provisions of s. 217. This has resulted in a shutting out of many petitions and petitioner at the very door steps of justice and denied them their right and opportunity to be heard on the substantive merits of the case “without regard to technical arguments” around the form of the petition, proper pleadings and or a failure to meet “the technical rules of evidence”. The foundation for that sad outcome was laid by the decision in Biri v. Ninkama which held that s. 217 does not apply until at the trial of an election petition.”
I have read the decision in Hagahuno v Tuke, and note, that the five men bench of the Supreme Court has now settled the law that the Court apply a more liberal and flexible approach when dealing with competency applications in election petitions. That section 217 of the Organic Law is equally applicable at both the pleading and competency stage as well as the trial. This was clearly a departure from the earlier decision of the Supreme Court in Biri v Nilkama (1982) PNGLR 342 which imposed strict compliance of pleading the facts at pleading stages.

47. However, the Supreme Court did not take away the primary responsibility of a Petitioner pleading his petition no matter how flexible it may be. Neither did it shift the onus of proving the facts with credible evidence by the Petitioner or lessen the high standard of proof required for proving a bribery allegation in a trial. In the present case, the Petitioner still has the onus of bringing credible evidence to establish the elements of bribery to the entire satisfaction of the Court, let alone proof beyond reasonable doubt. (Kopaol v Embel (Supra) and Ganisi v Subam (Supra)).

The history of the Court file shows, the Court gave specific directions for the Electoral Commission to make available the Common Roll for Kainantu Open Electorate for the 2017 National Elections. The electronic copy was made available to the Petitioner. At the beginning of the trial in December 2020, the Petitioner said it was far too much for him to go through the electronic copy and requested for specific and relevant copies. Some days later, again in December 2020 prior to the trial, copies of the relevant Roll of Electors were then printed and made available to the Petitioner. Further copies were filed in Court through an affidavit by Moses Ninkama, a lawyer acting for the Second Respondent.
The relevant Roll of Electors were made available to the Petitioner more than two months before trial. The Petitioner could have tendered into evidence relevant copies through his witnesses when they were in the witness box or could have tendered them at the beginning of the trial with the consent of parties. The Petitioner did not do this. In my view, it is far too late for the Petitioner to seek concessions after the trial.
In respect of the submissions that no objection was raised by the Respondents regarding the pleading, I am of the view that this submission is misconceived. The pleadings remain just allegations until they are proved by credible evidence. This is an Election Petition having its own process unlike the civil procedures under the National Court Rules.
Finally, and on the same vein, I note the Petitioner’s witnesses were not cross examined by counsel for the Respondents. However, this was not raised by the Petitioner, and even then, it should not be taken as acceptance of the witness evidence, nor bar the Respondents from raising the issue. The rule in Browne v Dunn does not apply. Again, the onus is still on the Petitioner to prove the allegations with credible evidence. Refer: Ganasi v Subam (supra).
The two incidents of bribery are both electoral and criminal offences. The onus is on the Petitioner to prove the allegations on a higher standard of proof to the entire satisfaction of the Court.
In the present case, the Petitioner failed to prove that all persons alleged to have been bribed are electors within the definition of section 215(1) of the Organic Law, and section 103 of the Criminal Code Act. The only way to prove that a person is an elector was through the production of the Roll of Electors for the Kainantu Open Electorate into evidence which the Petitioner failed to do. The failure to produce or tender into evidence the Roll of Electors is a critical and fatal failure. I follow the views and law as settled in the case Ganasi v Subam (supra). I therefore find the two grounds of bribery have not been proven.
The witness, Wesley Karu, has conceded that his name was not on the Common Roll of Electors. Thus, he is not an Elector, and the allegations of 45^th(Kebe) Street, remain unproven through this witness.
The evidence given by all the witnesses in respect of the date for the alleged bribery at 45^th(Kebe) Street is inconsistent with the pleadings. The witnesses stated the date was 9^th June 2017 whereas the date pleaded in the petition was 16^th June 2017. I find the difference in the date is a major inconsistency. The only way for correction is by way of amendment of the petition, which has not been sought. This inconsistency raises doubt on the evidence and allegation. I would dismiss the ground of petition for this reason as well.
Overall, the evidence given by all the eight (8) witnesses is tainted with major inconsistencies and contradictions. The demeanour of most of the witnesses were found wanting, as I have alluded to in the analysis of evidence in my judgment.
I find the entire evidence of the witnesses lacking common sense and logic. How is it possible, for instance, that, the First Respondent, would make a sudden open invitation to the public covering the entire four (4) LLG’s of Kainantu Open, to assemble within a short period of time, and in broad daylight, and give out K12, 000 to people he has no association with, with no prior arrangements, with instructions to vote for him. It defies logic and common sense. I therefore reject the evidence of the witnesses for being unreliable and lacking credibility.
Finally, I find the Petitioner failed to prove the two allegations of bribery. The onus of proof was on the Petitioner and he failed to discharge the burden to my entire satisfaction, let alone beyond reasonable doubt.

Conclusion

For the reasons given in my findings, the entire petition be dismissed.

Cost

60. On the issue of cost, I am of the view that the successful party should have the cost as it has been a strenuously contested matter. It follows therefore that cost of the Respondents be paid by the Petitioner.

Orders

The Court orders that:
1. The entire Petition is dismissed.
2. The Security deposit paid by the Petitioner be paid by the Registrar to the Respondents in equal portions.
3. The Petitioner pay the Respondent’s Cost to be taxed, if not agreed.
4. Time be abridged.

________________________________________________________________
William Hagahuno : In Person
Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

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