Review Pursuant to Constitution Section 155(2)(b); Ivarato v Lafanama and Electoral Commission of Papua New Guinea [1998] PGSC 27; SC563 (28 August 1998)

Unreported Supreme Court Decisions

SC563

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW NO 16 OF 1998
REVIEW PURSUANT TO CONSTITUTION SECTION 155 (2) (B)
BETWEEN
AITA IVARATO - APPLICANT
AND
PETI LAFANAMA - FIRST RESPONDENT
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA - SECOND RESPONDENT

Waigani

Amet CJ Sakora Sevua JJ
29 April 1998
28 August 1998

AMET CJ SAKORA SEVUA JJ: This is an application pursuant to Constitution s. 155 (2) (b) in respect of election petition, EP 39/97 in which, the trial Judge in the Court of Disputed Returns dismissed the remaining ground 7 of the petition on the basis that the applicant/petitioner had “not brought evidence to suggest any undue influence within the meaning and application of s. 215 (1) of the Organic Law.” This application is twofold.

APPLICATION FOR LEAVE

Firstly, there is an application for leave to review the decision of the National Court sitting as the Court of Disputed Returns. Mr Manda sought leave to review the decision alluded to and Dr Nonggorr made written and oral submissions on this issue.

However, it is not necessary to address the question of leave in detail as we indicated to Counsel, leave in relation to review of election petitions have been granted as a matter of course, because the Organic Law precludes any right of appeal.

We need only reiterate that the authorities starting with Avia Aihi v The State [1981] PNGLR 81, deal with situations where persons applying for leave have lost their statutory right of appeal and have come to Court seeking leave to review. In the present case, there is no statutory right of appeal or review, therefore, the jurisdiction for review emanates from a constitutional right and the application is based on s. 155 (2) (b). There is no statutory right and no statutory provisions requiring leave to be granted before the Supreme Court review decisions pertaining to election petitions. As adverted to, leave has been granted as a matter of course really, therefore, in our view, it is not necessary to seek leave for a review in an election petition. Accordingly, in an election petition, leave is not required to review a decision of the Court of Disputed Returns.

APPLICATION FOR REVIEW

On 18th October, 1997, the Court, on the application of the respondents struck out Clauses 3, 4, 5, 6, 8, 9, 10 and 11 of the petition on the basis that the petition did not comply with s. 208 of the Organic Law on the National and Local Level Government Elections (the Organic Law). The only ground that proceeded to trial was Clause 7, which deals with allegations of undue influence against the first respondent. We cite this clause in full from the amended petition.

Clause 7:

“On 7th May 1997, at Yoite village in the Daulo Open Electorate in the Eastern Highlands Province at a political rally held for Benny Wally, a candidate for the Daulo Open Electorate, the first the basis that the petition did not comply with s. 208 of the Organic Law on respondents, struck out Clauses 3, 4, 5, 6, 8, 9, 10 and 11 of the petition respondent was allowed to campaign for himself. The first respondent in his campaign speech issued and made false statements to electors. Either the first respondent:

· knew the statements to be false; or

· did not have any belief in the statements, or

· made the statements carelessly whether the statements were true or false with the intention that the electors should vote for him and not other candidates.

Particulars of the False Statements

The effect of the false statements were:

(a) Sir Julius Chan and his Cabinet had sold our customary land to the World Bank and the International Monetary Fund. The very land where we collect firewood and timber for our houses and fences, and the jungles and the rivers and the lake.

(b) The Government of Sir Julius Chan had hired a company who he referred to as Sandline International which was a private army to kill and destroy. The hiring of Sandline International was not only to solve the Bougainville crisis but also to destroy Papua New Guinea citizens to pave way for the Land Mobilization Policy to be effected.

(c) The Government of Sir Julius Chan was trying to get rid of land owners through the barrel of a gun to get the said land-owners’ land.”

At the end of all the submissions, Mr Manda, for purpose of clarity, said the statements uttered by the first respondent amounted to fraud pursuant to s. 102 (b) of the Criminal Code in that they were false and misleading to influence the voters.

We now discuss the evidence adduced before the trial Judge, starting with the evidence of the prosecuting petitioner, who did not actually hear these statements, however he relied on the evidence of those who were present at Yoite village and who heard the first respondent speak during the rally.

PETITIONER’S EVIDENCE

The evidence of Joshua Onio consisted of an affidavit sworn on 17 September, 1997, tendered in evidence and marked Exhibit ‘B’ and his oral sworn testimony. Paragraph 4 of his affidavit states:

“...Peti Lafanama falsely and intentionally said to electors, Ray Naso, Ricksen Ketonu, Steven Sekepi and Kepsy Karaki who were amongst a gathering of electors that Sir Julius Chan, the then Prime Minister sold our land to the World Bank. Mr Lafanama further added that he as the head of the Non Government Organisation stood up against the sale of land with the assistance of the army personnel. The speech referred to herein was calculated to influence electors like myself, and the four named herein and other electors gathering on that day.”

In cross examination, (page 61 appeal book), he said the following, in response to the first question asked by counsel for the first respondent:

“I can tell this Honourable Court that I was influenced by what he said to some degree, but because I was a candidate myself and it was a matter of number game, I had to give myself a vote, but otherwise from the observations I have seen and from the reactions of the people who were there at the mumu, I was totally convinced that every one of us were convinced.”

In answering the second question, he said:

“...but what was said at that time was enough to influence everybody who attended that mumu and it also influenced my supporters and I did not collect all the votes I expected. So after the mumu, the effect of that mumu has caused a lot of undue influence upon the voters who were there at that time.”

David Kasa stated in paragraph 3 of his affidavit sworn on 13 November, 1997 that:

“the first respondent made statements to electors, which he knew to be false or without due regard to the correctness and truthfulness of such statements that:

(a) Sir Julius Chan and his cabinet had sold our customary land to the World Bank and the International Monetary Fund. The very land where we make our gardens, our bushes where we collect firewood and timber for our houses and fences, and the jungles and the rivers and the like.

(b) The Government of Sir Julius Chan had hired a company, (who he referred to as Sandline International) which was a private army to kill and destroy. The hiring of Sandline International was not only to solve the Bougainville crisis but also contracted to come in, kill and to destroy Papua New Guinea citizens to pave way for the Land Mobilization Policy to be effected.

(c) The Government of Sir Julius Chan was trying to get rid of land owners through the barrel of a gun to get the said land-owners’ land.”

The witness then listed twelve persons, including his wife, who had voted for the first respondent for fear of being killed by the soldiers and also to fight with the government to get back their customary land which was said to have already been sold.

In his sworn oral testimony, Kasa attributed the following to the first respondent as having been said in pidgin:

“...The land which you are collecting firewood, the land you are growing coffee trees and the land you are doing your business has been sold by Sir Julius Government to the World Bank and IMF and I was there with those people and I talked to them and they told me that the land, Papua New Guinea has been sold to us.”

In describing the attitude of the people who were present at the rally at Yoite village, the witness said, “well the people were very angry for Sir Julius and also at that time people like Mr Ivarato and all the current members at that time”. At the end of his examination in chief, he said, “word has been spread to the villages so that my relative cast their votes to Peti Lafanama, except me...”

One very important aspect of this witness’ evidence which was obvious in Joshua Onio’s evidence as well, was that, the trial Judge had allowed counsel for the first respondent to cross examine witnesses on which candidate they voted for. This is in direct contravention of s. 218(2) of the Organic Law. Counsel for the first respondent was attempting to solicit an answer from this witness as to which candidate he voted for, when counsel for the petitioner correctly objected. The trial Judge erroneously said there was no law which says a person cannot answer that question in Court. The trial Judge fell into error here.

Steven Sekepi also swore an affidavit on 17 September 1997, in support of the petitioner. He said the following in paragraph 4 of his affidavit:

“In the course of his campaign speech, Peti Lafanam falsely and intentionally said to electors, Joshua Onio, Ricksen Ketonu, Ray Naso and Kepsy Karaki who were amongst a gathering of electors that Sir Julius Chan, the then Prime Minister sold our land to the World Bank. Mr Lafanama further added that he as the head of Non Government Organisation stood up against the sale of land with the assistance of the army personnel. The speech referred to was calculated to influence electors like myself, and the four named herein and other electors gathering there that day.”

Steven Sekepi also gave sworn evidence in the trial. When asked to say what he recollected, he said the first respondent made a speech at the mumu and this is his (witness’) recollection.

“I heard him say from his own mouth that the land on which you build your house now and the gardens you make on and the trees that you cut from the bushes has been sold by the previous government. It was Julius and Chris Haiveta’s government. I as NGO leader will go to fight for it to get it back and give it to you. He said the government has sold it to the World Bank and the IMF. About 2500 people who were there got very angry with the previous government and said now we will vote for you.”

FIRST RESPONDENT’S EVIDENCE

The first respondent gave sworn evidence and also called witnesses. He started off his evidence by saying on oath that he came from a NGO background and was an activist who wanted to present the truth so that the people could vote consciously.

He admitted that he said something about the structural program as it was something he had been campaigning for. He had information that the structural program was designed elsewhere and had documentary proof that the structural program came from outside the country, especially from the World Bank and one of the things he emphasized was land. He spoke of his extensive travel to other countries like Australia, United States and Canada where he looked at land issues and felt that land is a very sensitive issue that people needed to know so he just presented that to the people in his campaign. He said land was something that no one could come and develop and force it on to the people. The first respondent did admit that he referred to the World Bank and said there were cases everywhere in the world that whenever the World Bank went in, there had been problems with land. He admitted mentioning this issue as part of his campaign because he wanted to pursue this when he got into Parliament. He said other things, which he was unable to recall.

In respect of the Sandline issue, he admitted having campaigned on it. He admitted he was the chairman of the whole activity that happened. He was the leader of the march that took place in Port Moresby together with the help of the Defence Force to fight corruption, as he felt that this issue was one of the worst experienced in the country because a substantial amount of money was committed for a purpose that was not going to do any good to the country, especially Bougainville. As the leader of this protest march, he had to explain the reason for the march and how they demanded that then Prime Minister, Sir Julius Chan, then Deputy Prime Minister, and then Defence Minister step aside to allow inquiry proceedings to commence. He said he explained this issue, its effect on Bougainville and the country as a whole in the long run.

When asked, in examination in chief, if he had used figurative language to explain that customary land had been sold to IMF and World Bank, the first respondent said yes, then went on to qualify his answer by saying that the government had intended to allow land to be controlled by outside government. Towards the end of examination in chief, the first respondent denied that land had been sold, but explained the system that was coming to take away land from the people. He also denied saying that Sandline was here to kill the people, however, he admitted saying that, if the mercenary was used in Bougainville then there was a bigger chance they would be deployed to other bigger mining and other potential trouble areas in the country.

The first respondent’s second witness was Kalanafo Nahamo also called David Nahamo from Yoite village who identified his affidavit sworn on 5 January, 1998. He knew the first respondent as a Melsol founder. The witness said in paragraph three of his affidavit that he was a nominated Melsol representative in Daulo area and the first respondent’s speech on 7 May, 1997 did not influence him.

The next witness called by the first respondent was Lime Genori of Yoite village, who also swore an affidavit on 5 January, 1998. His affidavit does not really assist the first respondent, however his evidence on oath is quite significant, in our view. He gave evidence that the first respondent was at Yoite and made a speech. One important question in cross-examination in relation to the allegations against the first respondent was clearly consistent with the petitioner’s case and we refer to it and the answer hereunder:

Q. Did he say the Chan/Haiveta Government, the PNG Government sold your customary land to the World Bank and IMF?

A. It was time for campaign so other candidates went and said that and he also did say that.

The witness also said he was there when the first respondent gave his speech, however the speech was too long and he (witness) did not hear all of it. There were about 200 people present that time.

The fourth witness called by the first respondent was Giagove Mererepa. He swore an affidavit on 5 January, 1998, however, the evidence in it does not assist the first respondent in that it does not relate to the allegations of undue influence. Several questions in cross-examination that are relevant are:

“Q. When the present governor was giving the speech were you there at all times throughout his speech?

A. Yes, when Peti Lafanama gave speech I was present and heard.

Q. When he was speaking did he say anything about the PNG Government selling customary land to foreigners?

A. I heard him say that.

Q. Did you also hear him say anything about a private army from overseas coming to Papua New Guinea?

A. Yes I heard that. (my emphasis).

Q. What did he say the private army was going to do in PNG if you can recall?

A. He said if that country takes over Papua New Guinea we will lose our land so you people think of me.”

The fifth witness called by the first respondent was Topi Gitorove from Ohuka village in Yoite. He too swore an affidavit on 5 January, 1998. Again, there is nothing in the affidavit that supports the evidence of the first respondent in any material way. All that the witness deposed to was his anger over non-distribution of money the petitioner had given for the decoration of the dais. His complaint is the same as that of the previous three witnesses. The essence of his evidence is that he was there and he heard the first respondent’s speech, however he did not stay there long enough to hear everything as he left and wandered around.

In essence, that is all the evidence adduced in the trial. We will cover counsel’s submissions briefly then move on to the trial Judge’s analysis of all the evidence and his reasons for decision.

FIRST RESPONDENT’S SUBMISSIONS

Basically, Counsel for the first respondent submitted that there was no undue influence by the first respondent therefore the petition should be dismissed. He described the evidence of the petitioner’s witnesses as “generalised statements” which were not relevant to the allegations against his client. He further submitted that there is no evidence that the petitioner voted for the first respondent because of what the first respondent had said. Counsel then referred to the witnesses, Joshua Onio and David Kasa and said that Onio had voted for himself, while Kasa voted for the petitioner. Because they did not vote for the first respondent, they were not influenced by what was said, therefore there could be no undue influence. Counsel referred to In Re Menyamya Open Parliamentary Election Neville Bourne v Manesseh Voeto [1977] PNGLR 298.

We think the substance of the first respondent’s submissions was that because the petitioner’s witnesses who were present at Yoite village and heard the first respondent, voted for other candidates, they were not influenced by what the first respondent said, therefore there could not be undue influence. In other words, the submissions seemed to have measured the degree of undue influence by the manner in which the petitioner’s witnesses had voted, ie, who they had cast their votes for. This is not only an erroneous assumption, but a contravention of the secrecy of the ballot.

SECOND RESPONDENT’S SUBMISSIONS

The second respondent’s submission is basically that the petitioner’s evidence only established the allegation in paragraph (a) of Clause 7 of the petition. However, the submission went further and said that Sir Julius or a member of his cabinet should have been called or cabinet papers produced to show what in fact Sir Julius had said or intended to do. Another point raised was that the allegations referred to Sir Julius and not the petitioner. The second respondent submitted further that some witnesses said they were influenced whilst others said they were not, therefore the issue becomes one of the question of the quality of the influence. The final submission by the second respondent was that, under the Organic Law, untrue statements are to be in writing. If there is a written statement it is easy to see what was said and it can be proven it is false. If you do not have something in writing, it is difficult to prove what was said.

The result of that submission was that the second respondent described what was said by the first respondent as “electioneering puff” and not amounting to undue influence therefore the petition should be dismissed.

PETITIONER’S SUBMISSIONS

The petitioner, on the contrary, submitted that the allegations in paragraph 7 of his petition falls under s. 102 (2) (b) of the Criminal Code, and particularly emphasized that the false statement amounts to fraud. The petitioner’s submissions referred to two authorities; In re Menyamaya Open (supra) and In re Loroba Lake Kopiago Open Parliamentary Elections - Andrew Wabiria v Payale Elo [1977] PNGLR 328. The petitioner then referred to the evidence of his witnesses and in particular, the evidence of Steven Sekepi. Reference was also made to the first respondent’s evidence wherein he admitted talking about the Structural Adjustment Program, World Bank, IMF, his involvement as leader of the protest march to Parliament, Sandline issue and the use of the Defence Force troops. He submitted that the context in which these statements were made, that is, soon after the Sandline crisis, the lack of sophistication of the people who were addressed and the fact that land in PNG is almost sacred, must mean that people were unduly influenced by the first respondent.

Given the first respondent’s own admission that he set out to impress people in his election campaign on the issues referred to and the fact that he said he had made similar statements in several places as part of his campaign strategy, the Court should find that he had committed undue influence and accordingly declare his election void pursuant to s. 215 (1) of the Organic Law.

TRIAL JUDGE’S REASONS FOR DECISION

In analysing the evidence of the petitioner, the trial Judge found that the petitioner himself was not present at Yoite village on 7th May, 1997. He is correct in that finding.

The trial Judge found that Joshua Onio was a candidate himself and was present at Yoite on 7th May. He heard the first respondent addressed the people and said, “Sir Julius had sold our land to the World Bank and that he (first respondent) had stood up against the sale of land with the assistance of the army personnel”. The trial Judge said what the witness said was in general terms and he did not use the exact words used by the first respondent. The trial Judge said the witness suggested that what the first respondent said could have influenced voters and may have influenced some of his (witness’) voters, but did not influence himself. The witness did not refer to any Yoite villagers that may have been influenced, but only his supporters who came with him from another open electorate. His Honour concluded that Onio’s evidence was general criticism of the government and he thought voters may have been influenced.

The trial Judge found that David Kasa gave evidence in general terms of the statements made by the first respondent as outlined in the petition. The trial Judge found that the witness did say, “if they voted for the petitioner then he would sell their customary land”. The trial Judge found that this witness “suggested that some of his relatives were influenced to vote for the first respondent”, although none of them were called to say why.

The trial Judge found that the evidence of Steven Sekepi was similar to the evidence of Joshua Onio, ie, in general terms. The witness said after the first respondent spoke, the people appeared very angry at the then government and that they would vote for him. However, the trial Judge concluded that this witness did not vote for the first respondent so the witness was not influenced.

As to the first respondent’s evidence, the trial Judge found that the first respondent spoke in general terms to several hundred people at a rally at Yoite and was very critical of the then Government’s economic policies and its involvement with the Sandline company. The trial Judge said the first respondent said he was a leader of the NGO criticisms of the Government's economic policies and was a leader in a protest against the government in the Sandline issue. The trial Judge said the respondent said he had problem with translating into pidgin the economic problems and the Structural Adjustment Program and how the Government had to deal with IMF and World Bank.

The trial Judge said the first respondent denied that he said anything by way of threats. The trial Judge referred to the first respondent’s admission that a government that could employ mercenaries for one particular problem could then use the mercenaries for other problems which could affect more people.

The trial Judge said that other witnesses called by the first respondent were people from Yoite village and none of them said that what the first respondent had said to them was a threat to force them to vote for him, and they said they and their relatives voted for different candidates and not necessarily for the first respondent. The trial Judge mentioned the difference in evidence of the two opposing sides in relation to the estimate of people present at the rally - first respondent’s witness said 200 - 300 people whilst petitioner’s witnesses suggested more than 2,000 people.

The trial Judge then made reference to the two leading authorities on undue influence quoted above; In Re Menyamya Open Parliamentary Election and In Re Koroba-Lake Kopiago Parliamentary Election.

His Honour found that there was no exact rendering from the petitioner of what was said, only what the first respondent himself admitted. The trial Judge found no false statements or threats. He found that in the circumstances of Papua New Guinea then, the first respondent just being very critical of the government in power. He said, criticism of the financial and other implications of the Sandline affair was to be expected during campaign last year. The trial Judge also said that criticism of the Government’s economic policy, the manner in which the Government was involved with IMF and World Bank, the Structural Adjustment Program and the implications to the people wee also to be expected during the campaign. The trial Judge said every sitting Member of Parliament had to face this criticism whether they were part of the Government or not and he noted that the petitioner was the Regional Member in Parliament then.

The trial Judge found that “this was no more than tough political campaigning” in a country which had many economic and social problems. He also found that there were no witnesses from Yoite village who said they felt threatened in any way, similar to the 1977 cases referred to.

The trial Judge therefore concluded that the petitioner has not brought evidence to prove any undue influence within the meaning of Section 215 (1) of the Organic Law and Section 102 of the Criminal Code and therefore dismissed the petition.

THE LAW ON UNDUE INFLUENCE

Section 215 (1) provides that:

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.

The two cases referred to above referred to the Criminal Code to establish the definition of bribery and undue influence. Section 102 (b) of the Code provides that:

Any person who:

...by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election, is guilty of an misdemeanour.

We agree with and adopt the test of undue influence enunciated by Frost CJ in In re Menyamya Open Parliamentary Election Bourne v Voeto (supra) at p. 303 that:

“what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it. Any such instance of fraud which prevents or makes more difficult the elector’s exercise of his right to vote as he wishes clearly falls within the section.”

We also agree with and adopt the remarks by Frost CJ in relation to evidence by witnesses as to whom they voted for. His Honour said at p. 304:

“In most cases the point is not crucial because an attempt to intimidate is sufficient for the election to be declared void. If the evidence is that the elector voted against the candidate alleged to have committed undue influence, there still would be an attempt. But it is not necessary for a finding under the Code s. 102 (a) or the first part of (b) that the elector actually had been induced to vote for the candidate.”

Section 215 (1) the Organic Law gives full recognition to the underlying law principle that the parliamentary elections must be free. The people must be free to exercise their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, as bribery or undue influence, if committed by a successful candidate, requires the election to be declared void.

ANALYSIS OF THE TRIAL JUDGE’S FINDINGS AND REASONS FOR DECISION

We consider that the trial Judge erred in his analysis of the evidence and his reasons for judgment reveal identifiable errors which we consider influenced his mind in arriving at the conclusion he reached. We set these out.

1. The allegations in Clause 7 of the petition are deposed to in the affidavits of the witnesses called by the petitioner and these affidavits were tendered into evidence by consent of the first respondent. These became evidence before the trial Judge and they formed part of the overall evidence in this trial. For the purpose of the trial, it is our view that, the statements made by the first respondent, as deposed to, were evidence on oath.

2. We make two very significant observations in respect of the evidence adduced by the petitioner. Firstly, despite the fact that all the petitioner’s witnesses did not give evidence of what the first respondent said verbatim, it is our view that the substance of what each said were sufficient to establish the essence of the first respondent’s statements made at the political rally at Yoite village on 7 May, 1997. Secondly, what each witness said on oath, both in his affidavit and oral testimony, has never been discredited by the first respondent. The substance of each witness’ evidence has not been refuted, contradicted or disputed. There has never been any suggestion by the first respondent that the witnesses were lying or could have been mistaken in their recollection of what the first respondent had said at Yoite.

3. In our view therefore, the trial Judge had before him uncontested and undisputed evidence of these witnesses who, in basic terms, and in substance, referred to the allegations that Sir Julius Chan and his government had sold the people’s land to the World Bank and IMF and the involvement of Sandline International, not only in Bougainville, but in other parts of the country as well. One of the witnesses said the petitioner was named as a member of the Chan government who did all these.

4. The statements in these affidavits were never refuted by the first respondent. Whilst it is true that the Court of Disputed Returns is not bound by strict rules of evidence, the affidavits were evidence on oath before him and we emphasise that these statements were in affidavits that were sworn and admitted into evidence. These affidavits therefore supported the allegations set out in the petition.

5. It is true that, in the trial, the petitioner’s witnesses did not repeat verbatim the statements they deposed to in their affidavits, however the first respondent nevertheless, did not suggest that these witnesses were lying or their recollection of what was said by him at Yoite might have been incorrect. There was no suggestion at all that what was deposed to in their affidavits were never said by the first respondent at Yoite. The result of this is that, there is sworn evidence in affidavit form that the statements in the affidavits were uttered by the first respondent, and the truth or otherwise of the sworn affidavits have not been discredited in cross examination.

6. In respect of the affidavit evidence, the petitioner's witnesses were never shaken in cross-examination, therefore, their evidence were not destroyed in any manner. Their credibility were not destroyed in cross-examination.

7. In respect of Joshua Onio’s evidence, the trial Judge erred in his finding that the witness “suggested” that people were influenced. His evidence, in my view, is quite credible. He did not suggest anything. He gave evidence of his observation and said that what the first respondent had said was enough to influence everyone. He said he was influenced, but as he was a candidate himself, he had to vote for himself.

8. Trial Judge found that David Kasa’s evidence was in general terms however, he did not give any consideration to what the witness said, for instance, in his sworn testimony where he said the reaction of the people was that, they were angry at Sir Julius’ Government and also “people like the petitioner”. In any event, this witness actually repeated what the first respondent had said at Yoite, in relation to the sale of customary land.

9. Trial Judge found that witness, Steven Sekepi gave general evidence of what the first respondent said like Joshua Onio, but never voted for the first respondent.

10. Trial Judge found the first respondent was very critical of the then Government’s economic policies and it’s involvement with Sandline and his role in the protest against Sandline. However, he did not consider that the first respondent’s statements, deposed to in sworn affidavits, and partly referred to in oral testimonies, were expressed by the petitioner’s witnesses as influential.

11. Trial Judge’s finding that the first respondent’s witnesses from Yoite were not in any way, threatened or forced to vote for the first respondent was erroneous because threat and/or force are not the only elements of undue influence in the Criminal Code.

Fraud is one of the elements of undue influence as well, and the trial Judge erred in not considering whether or not the first respondent’s statements amounted to fraud, which prevented or obstructed the free exercise of the franchise by an elector. In fact the Trial Judge makes no reference at all to ss. (b) of s. 102 of the Code. He made only one finding that Yoite villagers who were the first respondent’s witnesses were not threatened or forced, but made no finding as to whether the petitioner's witnesses were threatened, forced or that there was fraud or no fraud.

12. There is sufficient evidence by the petitioner’s witnesses for the trial Judge to have found fraud on the part of the first respondent. The evidence, partly oral, and partly by affidavit, was sufficient for him to find that what the first respondent said, which we consider has not been really challenged and discredited by the respondents, was sufficient to prevent or obstruct the free exercise of the franchise by an elector.

13. A major identifiable error by the trial Judge was that he permitted evidence to be adduced by witnesses as to which candidate they voted for, in contravention of the secrecy of the ballot. His mind was influenced greatly by the fact that witnesses said they heard the first respondent make those statements, but they voted for other candidates.

This is the basis upon which he held that these witnesses were not influenced, and we consider this to be an error. As long as an elector is prevented or obstructed from the free exercise of his franchise, undue influence has been established. The Court does not need to inquire as to which candidate the witnesses voted for, in order to establish undue influence.

14. Trial Judge’s finding that the first respondent’s statements were no more than “tough political campaigning” is erroneous as well. It is true there is no evidence that what the first respondent said were not false, however, it is common knowledge that no customary land anywhere in the country had been sold to IMF or World Bank by the government of Sir Julius. The first respondent’s admission of travelling to other countries to look at land issues, his evidence that everywhere in the world where the World Bank had gone, there had been problems with land etc, are matters that are quite sensitive thus capable of influencing voters.

His self confessed statement that he is an NGO activist, a political science graduate, leader of the protest march involving armed soldiers against government corruption and his and his group’s demand that then Prime Minister, then Deputy Prime Minister and then Defence Minister resign, are issues that no simple villager could digest too easily, in particular, the events during the Sandline crisis. In our view any statements relating to those issues would undoubtedly have an effect on ordinary illiterate villagers.

15. In this context, any reference to the sale of customary land, the events during the Sandline crisis, especially the use of armed troops, were enough to cause fear and anxiety and therefore prevent or obstruct an elector’s free exercise of franchise.

16. The first respondent freely admitted that these issues were his campaign strategies and he even admitted he used them in other areas.

17. S. 102 (b) of the Criminal Code specifically refers to “an elector”, ie, one single elector. It is our view that, so long as one voter is prevented or obstructed to freely exercise his right to vote due to something a candidate has said, which amounts to fraud, that is sufficient to establish undue influence.

18. The evidence of Joshua Onio and the petitioner’s other witnesses was sufficient to establish undue influence.

19. These evidence were available before the trial Judge and to say that they were tough political campaigning, is parting with reality, in the light of the adverse political and constitutional ramifications the Sandline crisis brought. There was sufficient evidence that a finding of undue influence, based on all these factors, should have been made.

Based on these factors, we are satisfied that there were errors made by the trial Judge. We rule therefore that the trial Judge’s decision should be set aside. Undue influence has been made out and we make the mandatory statutory declaration under s. 215 (1) of the Organic Law that the election of the first respondent is void. In the circumstances we order that a new election be conducted for the electorate.

We order costs in favour of the applicant against both respondents equally, and refund of the Applicant’s deposit.