Genia v Temu [2023] PGNC 260; N10370 (29 June 2023)

N10370

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 69 OF 2022 (IECMS)

IN THE MATTER OF DISPUTED RETURN OF THE ABAU OPEN ELECTORATE

BETWEEN
KILROY KOIROBETE GENIA
Petitioner

AND:
PUKA TEMU
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dowa J
2023: 14^th, 15^th, 22^nd & 29^th June

ELECTION PETITION -petition filed pursuant to 206 of the Organic Law on National and Local Level Government Elections – petitioner alleges statutory breach and incidents of bribery - No case to Answer submissions at the close of the Petitioners evidence - whether the trial should be stopped due to lack of evidence- onus of proof on the Petitioner – petitioner has failed to discharge the burden of proof – Elements of bribery-No evidence of the material element of an elector – petition is dismissed.

Cases Cited:
Desmond Baira v Kilroy Genia & Electoral Commissioner (1998) SC598
David Arore v John Warisan & others (2008) SC1030
Amet v Yama (2010) SC1064
Agonia v Karo [1992] PNGLR 463
Aide Ganasi v Sali Subam (2013) SC1277
Fairweather v Singirok (2013) SC1293
Hagahuno v Tuke & Electoral Commissioner (2020) SC2018
Kaiabe v Mulungu (2008) N3329
Karo v Kidu (1997) N1626
Robert Kopaol v. Philemon Embel
Tomokita v Tomuriesa (2018) N7206
Waranaka v Dusava (2008) SC940
Ben Micah v. Ian Ling Stuckey [1998] PNGLR 151

Counsel:
D Kaima, for the Petitioner
W Bigi, for the First Respondent
J Palma, for the Second Respondent

RULING ON NO CASE TO ANSWER

29^th June 2023

1. DOWA J: This is a ruling on the two Respondents’ application for no case to answer on the Election Petition filed by the Petitioner.

Facts

2. The Petitioner is a candidate for Abau Open Electorate in the 2022 National Elections. He came third with 5,219 votes while the First Respondent was declared winner who scored 10,970 votes. The Petitioner filed the Petition on 14^th September 2022, challenging the election of the First Respondent.
   
3. After dealing with the competency issues, the trial proceeded on the seven grounds that survived the objections to competency. At the commencement of hearing, Ground 7 was abandoned and the six remaining grounds of bribery allegations proceeded. At the end of the Petitioner’s evidence, the Respondents urged the Court to stop the case, submitting there was no evidence for the trial to continue.
   

Submissions of Counsel

4. Both Counsel for the Respondents submit that there is no case for the Respondents to answer. They submit the Court has the power to stop the case at the close of the Petitioner’s case if there is no evidence for the Respondents to answer. They advance the following arguments in their submissions:
   
   1. No evidence to prove the allegations in Grounds 1 and 5 as no witnesses were called.
   2. In respect of Grounds 3 and 6, there is no evidence of inducement and secondly for lack of proof that the persons alleged to have been bribed are electors.
   3. In respect of Grounds 2 and 4, the Respondents submit that no evidence that the persons allegedly bribed were electors.
      
5. Counsel for the Petitioner submits that the trial should continue and not stop prematurely. While conceding that the Common Roll was not produced in evidence, there were other evidence which is sufficient and if the Court considers otherwise, it can invoke its powers under section 212 of the Organic Law to call witnesses and seek documents in order that the allegations of bribery can be conclusively dealt with. He urges the Court be guided by section 217 of the Organic Law as applied in the Hagahuno v Tuke (2020) SC2018 to do real justice especially in the light of the fact that the second Respondent failed to make available the Common Roll in Court as directed by the Court on 20^th October 2022.
   

Issues

6. The issues before the Court are:
   
   1. Whether the Court has the discretion to the case stop the trial at the close of the Petitioner’s case.
   2. Whether there is evidence for the trial to continue.
      

Whether the Court has the discretion to the case stop the trial at the close of the Petitioner’s case.

7. The law on no case to answer submissions in election petitions is settled in this jurisdiction. It is open to the Court having regard to the terms of section 217 of the Organic Law to stop a trial at the end of the Petitioner’s evidence if there is no evidence to prove any ground for invalidating an election. Refer: Desmond Baira v Kilroy Genia & Electoral Commissioner (1998) SC598 and David Arore v John Warisan & others (2008) SC1030.
   
8. In Baira v Genia (supra) the Supreme Court per Kapi (as he then was) states:
   

“In considering this issue, counsel for the second respondent submits that this Court should give some guidance as to the practice of adopting the equivalent of a no case submission in an election petition. As far as I am aware, the Supreme Court has not addressed this issue before. In my opinion, it would be a mistake to readily adopt a procedure which is applicable to criminal proceedings. The intention of the legislature is clear that proceedings under the Organic Law are different and therefore it is fundamentally wrong to adopt procedures from any other type of proceedings. I adopt the same approach I took in the recent case of Iangalio & Electoral Commission v. Wani Wasi Ranyeta & Miki Kasol (Unreported judgment of the Supreme Court dated 5^th October 1998, SC568) in respect of adopting procedures of consolidation in other civil proceedings. What procedure is adopted for proceedings under the Organic Law is a matter for judges in their law making power to prescribe under s 212 (2) of the Organic Law. As I pointed out in the Iangalio case, Judges have not yet made such rules of procedure. In the circumstances, whether, or not, a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election.” (Underlining mine)

9. In Arore v Warisan (supra) the Supreme Court per Injia DCJ (as he then was) said this at paragraph 8 of the judgment:

“8. In relation to the second preliminary ruling, the Election Petition Rules 2002 as amended, is silent on the procedure for "no case submission". However case law establishes that a no case submission is open in a trial in an election petition. The cases say that it is entirely a matter of discretion and "it would be open to a judge having regard to the terms of s.217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election": Desmond Baira v Kilroy Genia and Electoral Commission (1998) SC 579, Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered judgment, Robert Lak v Paias Wingti (2003) N2358, Pawa Wai v Jamie Maxtone Graham (2005) N2768.”

10. I will adopt and apply the above principles to the present case to determine whether the trial should be stopped for lack of evidence.
    

The Law on Bribery allegations.

11. 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.
    
12. Section 215 of the Organic Law 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.”

13. 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

....”

14. 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, Isoamo v Aihi (2012) N4921 , Fairweather v Singirok (2013) SC1293 and Tomokita v Tomuriesa (2018) N7206.
    

15. The necessary elements of the offence of bribery are set out in Isoamo v Aihi (2012) N4921 and William Hagahuno -v- Johnson Tuke (2020) SC 2018. In Isoamo v Aihi, Cannings J discusses the alternative elements of bribery at paragraphs 9 -11:

9. 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)

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

1. 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;
   
2. any property or benefit of any kind;
   
   3. 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)

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

1. advanced or paid any money to or to the use of any other person;
   
2. 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. Simply put; to prove bribery in an election petition, the Petitioner must establish the following elements:

(a) Name of the offender, either the candidate in person or other persons with his knowledge and authority.

(b) Name of the person bribed

(c) The bribe, gift or favor offered or received.

(d) The person bribed was an elector; and

(e) The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.

17. To prove the element of an elector, the person alleged to have been bribed must be an elector as defined by section 3 (1) of the Organic Law and section 98 of the Criminal Code Act. This position in law is settled in this jurisdiction in the cases Ben Micah v. Ian Ling Stuckey(1998) PNGLR 151, Louma v. Tomuriesa (2012) N4920, Aide Ganasi v Sali Subam (2013) SC1277,William Hagahuno -v- Johnson Tuke (2020) SC 2018 and Hagahuno v Tuke & Electoral Commissioner (2021) N 8862.

18. In Ganasi v Subam (supra), the Supreme Court stated the law in no uncertain terms at pages 14 to 18 of the judgment that:

“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.

15. 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.
    
16. 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.”
    

Consideration

19. I will now turn to consider the evidence presented for each of the grounds to determine whether there is evidence for the trial to continue. I have reproduced the grounds and examined briefly the evidence presented to determine its sufficiency.
    

“Ground 1 – Ward 5, Kupiano, Aroma Local-Level Government

21. On Friday 10^th June 2022, at around 4.00pm at Kupiano Market in Kupiano Town in the Electorate, the First Respondent gave cash to the value of K15,000.00 to Lenke Mamata, Gabriel Vilaila, Saini Memeta, Vitalis Mares and Desmond Memeta, an elector, with the intent to induce and/or cause the elector to cast his preference vote for the First Respondent. Desmond Memeta did cast his vote on 04^th July 2022.”

20. Desmond Memeta was not called to give evidence. None of the persons named under this ground was called to give evidence. There was secondary evidence given by witnesses Sabila Haono and Garea Boi and Wari Aura. of being informed that the first Respondent gave the persons named in the ground of petition K 15,000.00 on 10^th June 2022 for repairing the rails to Imila Bridge. Other than that, there is no direct evidence. I find no evidence to prove this ground.
    

Ground 2 – Ward 5, Kupiano, Aroma Local-Level Government

22. On Friday 10^th June 2022 at around 4.00pm at Kupiano Market, Lenke Mamata, with the knowledge and/or authority of the First Respondent, gave cash to the value or K30.00 and a twelve pack of South Pacific Green Lager cans of beer to the value of approximately K150.00 to Gare Boi, an elector, with the intent to induce the elector to cast his votes for the First Respondent at the Elections. Gare Boi did cast his vote on 4^th July 2022.

21. Gare Boi gave evidence in support of this ground. That he is an Auxiliary Policeman from Imila village in the Upulima Ward of the Aroma Coast Local-Level Government. He voted during the 2022 National General Elections although he gave no evidence of whether he was an elector. He said on Friday 10 June 2022 at Kupiano Market, the first Respondent gave K15,000.00 in cash to his campaign co-ordinators Lenke Mamata, Desmond Memeta, Gabriel Vilaila, Saini Memeta, and Vitalis Mares. He said these persons are his relatives. On the same day, the said persons offered him K30.00 and a twelve pack of south pacific green lager cans.

22. The evidence is not clear whether he personally witnessed the first Respondent giving the said monies to the five youths, although he was adamant that the five youths who received the money were his relatives, and they can’t be lying about that. Further there is no statement by the witness the money and beer cans were given to induce him to vote for the first Respondent.Whilst there is some evidence to establish some of the elements of bribery, there is no evidence that he was an elector for the Abau Open for the 2022 National Elections. The Common Roll for the Electorate was not produced to confirm that he was an elector. The critical evidence to prove the element of an elector is missing and this ground should fail.
    

Ground 3 – Ward 9, Upulima, Aroma Local-Level Government

23.On Saturday 11^th June 2022 at 9.00am at the SPV Limited yard along Magi Highway between Imila Village and Upulima Station, Desmond Memeta and Gabriel Vilaila, with the knowledge and/or authority of the First Respondent, purchased seven (7) packets of biscuits, seven (7) soft drinks, and cigarettes and betelnuts to the value of 50.00 for Sabila Haono, an elector, and uttered the words to him that the cash to buy the goods came from the K15,000.00 cash the First Respondent gave them on Friday 10^th June 2022 at Kupiano Market, words to cause the elector to cast his votes for the First Respondent at the Elections. Sabila Haono did cast his vote on 4^th July 2022.

23. Sabila Haono, was called to prove this allegation. He gave evidence that he is a policeman, at the Upulima Police Station at Upulima in the Aroma Coast Local-Level Government area. He was assigned to Upulima Police Station since 2019 and has his name on the Common Roll for the Abau Open Electorate. During the 2022 National General Elections, he was part of the polling Team which was responsible for Bukuku and Kalapa villages.

24. He said early June 2022, rain had caused the destruction of rails holding the Imila Bridge. Youths from Imila village took it upon themselves to fix the rails to allow for vehicles to use the bridge. He was told by one Gabriel Vilaila that immediately prior to the start of the campaign period, the current member Sir Puka Temu was on his way to Kapari and saw what the youths were doing, acknowledged their efforts and subsequently asked the youths to seek financial assistance in writing from his office to construct permanent rails to support the bridge.

25. He said on Saturday 11 June 2022 at 9:00am, he was on his way to Waiori with other policemen when he met Desmond Memeta, Gabriel Vilaila and another individual by the name Afox Afori, who appear to be in drunken state. Mr. Haono then called out to them saying, he is aware that they got some financial help from Member the previous day as payment for work done on the Imila bridge and asked them if they could buy them (policemen) buai and smoke. Immediately after making the request, Desmond Memeta and Gabriel Vilaila and Afox Afori bought them seven soft drinks, biscuits, and cigarettes to the value of K 50.00.

26. The evidence is insufficient to prove the offence of bribery. Mr Haono asked for the buai, drinks and cigarettes from Desmond Memeta and his friends. There is no evidence of an intention on the part of the first Respondent or his authorised agents buying the soft drinks and the cigarettes to induce Mr. Haono to vote for the first Respondent. Secondly, although Mr. Haono testified of his name being on the Common Roll, the Roll of Electors was not produced to verify his name as elector. In these circumstances there is no evidence to sustain this ground.

Ground 4 – Ward 9, Upulima, Aroma Local-Level Government

On 10^th June 2022 at around 12pm at Upulima Station, Saku Andrew, with the knowledge and/or authority of the First Respondent, gave cash to the value of K50.00 to Wari Aura, an elector, with the intent to induce the elector to cast his votes for the First Respondent.

On 12 June 2022 at around 7.00pm at Imila Village, Lenke Mamata, with the knowledge and/or authority of the First Respondent, gave cash to the value of K200.00 to Wari Aura, an elector, with the intent to induce the elector to cast his votes for the First Respondent. Wari Aura did cast his vote on 5^th July 2022.

27. Wari Aura gave evidence that he comes from Imila village in the Upulima Ward of the Aroma Coast Local- Level Government. He said he voted during the 2022 National Elections. He testified on Friday 10 June 2022 at Upulima Station around 12:00 pm, he was riding his bike to the Upulima Market when Sako Andrew, a known agent and committee member of the first Respondent offered him K50.00 and told him to vote for Puka Temu. On Sunday 12 June 2022 at around 7:00 pm at Imila village, Lenge Mamata offered gave him K200. During cross examination the witness does not recall the work at Imila Bridge, nor does he know anything about the K 15,000,00 allegedly given to the youths of Imila on 10^th June 2022 by the first Respondent.

28. The evidence is brief. He did not state that he is an elector. Although he said he voted, the Common Roll was not produced to verify that he was on the Common Roll as elector. In respect of the payment of the K200.00 on 12^th June 2022, there is no additional evidence of the reason, nor any instructions given for the money. Without assessing the quality of the evidence, it is clear there is no evidence confirming that Wari Aura is an elector as defined by section 3 of the Organic Law.

Ground 5 – Ward 9, Upulima, Aroma Local-Level Government

On Monday 27^th June 2022 at around 10.00am at Waiori Rubber Plantation Block near Upulima, Billy Yakusa, an elector, with the knowledge and/or authority of the First Respondent, offered cash to the value of K200.00 to Simeon Raga, an elector, with the intent to induce the elector to cast his preference vote for the First Respondent at the Elections. Simeon Raga did cast his vote on 4^th July 2022.

29. Simon Raga was not called. Counsel for the Petitioner sought to reply to the Affidavit of Simon Raga. The application for the tender of the affidavit was objected to. The Court upheld the objection as no reasons were offered for the absence of the witness as he was required for cross-examination. That being the case, no evidence is presented to prove this ground.

Ground 6 – Ward 10, Domara Coudy Bay Local-Level Government

On 7^th June 2022 at Domara Village between 2.00pm and 3.00pm, the First Respondent gave a mobile phone to the value of about K100.00 to Frank Taima, an elector, with the intent to induce the elector to cast his preference vote for the First Respondent at the Elections. Frank Taima did cast his vote on 5^th July 2022.’’

30. Frank Taima was called to prove this ground. He is from Domara village, Cloudy Bay LLG, Abau Electorate. He gave evidence that on 7^th June 2022, he was at a campaign rally of Puka Temu at Domara. During the rally Mr, Taima reminded the first Respondent of previous promises made by him to buy roofing iron for him which were not fulfilled. In response the first Respondent suggested he contact him if he wins the elections. Mr Taima then expressed practical difficulties of contacting him as he had no mobile phones. The first Respondent then instructed one of his man, Hudson Kove to record his number on a mobile phone and give the said phone to Mr. Taima. In answer to a question during cross examination that the phone was intended for him to call the first Respondent.

31. Frank Taima’s evidence is brief just like the other witnesses. It fails to establish all the elements of bribery. Firstly, Mr. Taima did not state that he is an elector or that he voted in the 2022 National elections. Neither was the Common Roll produced to prove that he is an elector. Furthermore, the phone was given by one Hudson Kove for the purposes calling the first Respondent and there is no clear evidence of inducement. In the circumstances, there is no evidence establishing all the elements of bribery to prove this ground.

Summary of Findings

32. This is the summary of my findings on the six grounds of bribery:

1. Ground 1. There is virtually no evidence to support the allegation and is liable for dismissal.
   
2. Ground 2. Whilst there is some general evidence, there is no evidence to prove that Gare Boi, the person alleged to be bribed is an elector.
   

100. Ground 3. There is no evidence of inducement and secondly there is no evidence that Sibala Haono, the person alleged to be bribed is an elector.
     

4. Ground 4. Whilst there is some general evidence, there is no evidence to prove that Wari Arua, the person alleged to be bribed is an elector.
   
5. Ground 5. There is virtually no evidence to support the allegation and is liable for dismissal.
   
6. Ground 6. There is no evidence of inducement and secondly there is no evidence that Frank Taima, the person alleged to be bribed is an elector.
   

33. It is clear there is no evidence establishing all the elements of bribery as defined by section 103 of the Criminal Code Act for the purposes of section 215 of the Organic Law on each of the six grounds of petition. I find there is no case to answer. The Respondents do not have to call evidence in rebuttal.

34. In arriving at this conclusion, I am mindful of section 217 of the Organic Law. Section 217 provides that the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities to give a fair, large, and liberal approach in its application as promulgated by the recent Supreme Court decision in Hagahuno v Tuke (supra).

35. I am also mindful of submissions of counsel for the Petitioner that the Court be guided by section 217 of the Organic Law as applied in the Hagahuno case by invoking its powers under section 212 of the Organic Law to call witnesses and seek documents to do real justice. Counsel for the Petitioner seems to be saying that the difficulty in producing the Common Roll into evidence is due to the second Respondents failure to make the Roll available as per the directional orders given on 20^th October 2022 and that it is open for the Court to make such orders including an order for production of documents.

36. The submission of counsel for the Petitioner on the use of the Court’s powers under section 212 of the Organic Law at this stage of the proceedings is inappropriate. The trial has commenced, and the Petitioner’s case is closed. The Respondents have called for the trial to be stopped due to lack of evidence. It does not augur well for the Court to go down the arena of prosecution to start things afresh. The Petitioner has had the opportunity to seek assistance from the Court during the directional hearings and pretrial periods to compel the production of documents. The Petitioner could have made other applications even up to the time of trial before closing his case to consider his options.

37. In respect of the submissions on the application of section 217 of the Organic Law and the Hagahuno case, it must be made clear that the Supreme Court did not remove 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 or lessen the high standard of proof required for proving a bribery allegation in a trial. 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)).

38. In the present case, there is no evidence that all persons alleged to be bribed are electors as defined by section 3 of the Organic Law. The Common Roll was not produced to confirm or verify them as electors. There is no other way of proving that they are electors without confirming their identities as electors through the Roll of Electors or the Common Roll which has not been done. The Supreme Court in Ganasi v Subam (supra) has pronounced the law on this issue and this Court is bound to follow the decision of the Supreme Court.

39. For the reasons given above, I uphold the submissions of the Respondents that there is no evidence on each of the grounds of bribery for the trial to continue, and the petition should therefore be dismissed.

Nomination

40. There is another issue the Court will deal with in concluding this matter. The Petitioner has raised the issue of the nomination of the first Respondent in its submission. Although the Court has dealt with the issue during the trial, I will address this matter now for completeness. The facts containing the allegation on the nomination are set out in paragraph 5 of the petition which reads:

“5. The first Respondent attempted to nominate for the Elections on 19^th May 2022 and his nomination was accepted at 4.30pm by Collin Geno Lama, the Returning Officer for the Elections for the Electorate, at the Abau District Administration Building in Kupiano Town.”

41. During the trial, the Petitioner gave brief evidence that the Returning Officer was accepting nominations of candidates after 4.00pm including that of the first Respondent. Counsel for the Petitioner sought to tender the affidavit of the Petitioner to prove the allegation but was refused based on objections from the Respondents. The Court ruled then that the evidence seeking to prove the above allegation was irrelevant as it was not a ground of petition. The Court maintains the position that the issue of nomination was not properly before the Court and the evidence was correctly refused. The only grounds that were allowed to proceed to trial were Grounds 1 to 7. The statement in paragraph 5 of the petition was not supported by any further pleading of facts setting out any grounds of petition, whether there were errors or omissions or illegal practices and how any such errors or omissions affected the results of the Elections as envisaged by sections 215 (3) and 218 (1) of the Organic Law. To treat it as a ground of petition would be offending section 208 (a) of the Organic Law and the law on pleadings. It is no longer any issue for the Court to deal with nor for the Respondents to answer.

Costs

42. Generally, cost follows the event. Section 212 of the Organic Law gives power to the Court to award cost and may exercise this power on such grounds in its discretion thinks just and sufficient. In the present case, except for the security for cost paid by the Petitioner, I propose not to award cost to the successful party, the Respondents. On 20^th October 2022 the Court issued a number Directions by consent. I note from the Court file that the Respondents have not complied with some of the pertinent Directional Orders which amongst others, the filing of their notices of Objection to Competency, the settlement of the Statement of Agreed and Disputed Facts and the production of Electoral Documents including the relevant Roll of Electors for Abau Electorate. It is arguable that the failure to make available the Common Roll may have contributed to the final the outcome of this petition although the Petitioners Lawyers can take some of the blame for not taking enforcement proceedings to secure those documents. The Respondents failed to demonstrate their willingness to comply with orders of Court and therefore do not deserve to be awarded costs in their favour. In the circumstances, it is not just to make an award of costs against the Petitioner apart from the K 5,000.00 being paid as security for costs which shall be paid to the Respondents in equal portions.

Orders

44. The Court orders that:

1. The Respondents application for no case to answer is upheld.
   
2. The grounds for the petition are dismissed for lack of evidence.
   
3. Consequently, the entire petition is dismissed.
   
4. Except for the Security for Cost which shall be paid to the Respondents in equal portions, all parties shall bear their own costs of the proceedings.
   
   5. Time be abridged.

_______________________________________________________________
Stratserv Legal: Lawyers for the Petitioner
Henaos Lawyers: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent