Diau v Gubag [2004] PGSC 1; SC775 (17 December 2004)

SC775

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCR NO 19 OF 2003

APPLICATION FOR REVIEW BY

BENNY DIAU
Applicant

AND

MATHEW GUBAG
First Respondent

AND

ELECTORAL COMMISSION OF PNG
Second Respondent

Waigani : Kapi, CJ
Los, J
Gavara Nanu, J
2003 : 15th July
2004 : 29 August, 17th December

JUDICIAL REVIEW – Section 155 (2) (b) of the Constitution – Incompetency of grounds of Petition under s 208 (a) of the Organic Law on National and Local Level Government Elections considered.

ELECTION PETITION TRIAL – Jurisdiction to stop a trial – Where evidence does not disclose an essential ground for invalidating the election result considered.

Cases cited:

Peter Yama-v-Mathew Gubag (1998) SC547,
Re Central Banking (Foreign Exchange & Gold) [1987] PNGLR 433.
Holloway v. Ivarato [1988-89] PNGLR 99.
Re Berrill’s petition and Boothby (1978) 19 ALR 254.
Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463 at 469.
Ben Micah v Ian Ling-Stucky (Unreported Judgment of the National Court, N1790).
Desmond Baira v Kilroy Genia (Unreported Judgment of the Supreme court, SC579).

Counsel:
B Meten, for Applicant
D Stevens, for First Respondent
A Kongri, for Second Respondent

17th December 2004

BY THE COURT: The application is to review two decisions by Salika J made on 4th March 2003 and 7th March 2003 respectively. These decisions relate to an election petition challenging the election of Mathew Gubag, First Respondent, as member for the Sumkar Open Electorate in the year 2002 National Elections.

The decision of the 4th March relate to the challenge to the competency of the petition made by the two Respondents and the decision of the 7th March 2003 relate to the substantive decision by the judge following a no case to answer submission. That is, the petition was dismissed on the ground that there was no case to answer.

The review powers of the Supreme Court under section 155(2)b of the Constitution have been well accepted by the parties except as to when it should be exercised is addressed in the light of the facts and circumstances of each case. That is, the discretionary power to review under s.155(2)b of the Constitution must be exercised only where a) there are clear legal grounds meriting a review of the decision; b) there are cogent and convincing reasons on exceptional circumstances, and c) it is in the interest of justice that the review be granted.

Some cases cited for example to assist the court in invoking the jurisdiction were Peter Yama-v-Mathew Gubag (1998) SC547, Re Central Banking (Foreign Exchange & Gold) [1987] PNGLR 433.

To challenge a decision on an election petition there is no provision for an appeal and so an aggrieved person may only go up to the Supreme Court through review process under section 155 (2) of the Constitution. This may suffice. But to further convince the Court that the applicant is not a busy body, it must be shown that there is an issue (or are issues) to be tried or reviewed.

The following grounds of review were agreed to by the parties at direction hearing on 22nd may 2003 –

(1) That the learned trial judge erred in law in holding the grounds 2, 4,5, 6, 7, 8, 9, 10, 12, 13, 14, 15 and 16 of the Applicant’s Election Petition failed to comply with section 208(a) of the OLNE in that the petition did not set out sufficient facts in compliance with section 208(a) of the OLNE;

(2) That the learned trial Judge erred in law and facts in holding that the First Respondent had no case to answer in relation to Grounds 1, 3 and 11 of the Applicant’s Election Petition after the Applicant and his witnesses gave evidence in that the evidence of the Applicant and his witnesses together with the Agreed Statements of Facts that was before the learned trial Judge clearly established a prima facie case against the First Respondent for which the First Respondent had to call evidence to answer.

(3) That the learned trial Judge erred in law in holding that the First Respondent had no case to answer on grounds 1, 3 and 11 of the Applicant’s Election Petition after the learned trial Judge ruled on the objection to Competency of the Petition on the 4th March 2003 that the said grounds 1, 3 and 11 of the Applicant’s Election Petition were competent to proceed to trial.

(4) That the learned trial Judge erred in law in holding that Rule 15 of the Election Petition Rules gives the learned Trial Judge the power to hold that a Respondent has no case to answer after a Petitioner has called his witnesses who gave evidence before the Court.

(5) That the learned trial Judge erred in law and in fact in holding that a person bribed had to be an elector in that pursuant to section 103(a)(iii) of the Criminal Code any person can be bribed including an elector.

(6) That the Learned Trial Judge erred in law and in fact in holding that the First Respondent had no case to answer in relation to grounds 1, 3 and 11 of the Petition in that the applicant’s evidence together with the Agreed Statement of Facts that were before the Trial Judge established that the First Respondent had committed the offence of bribery and that the Trial Judge should have ordered any one of the relief sought by the Applicant in the Applicant’s Election Petition.

The orders sought were-

(a) orders of 4th March 2003 dismissing grounds 2, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 16 and 15 be quashed;

(b) likewise the orders of 7th March dismissing grounds 1, 3 and 11 be quashed; and

(c) the dismissed grounds be reinstated and proceed to trial

We address the review on competency issues first.

Ground 2. That on or about the 17th June 2002, at Dorokatum Village, the First Respondent did give a bribe of K1,000.00 to Sam Gawar with the intention that the cheque will be applied to induce members of the Kaviak Sports Club to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local level Government Elections and Section 103(d) of the Criminal Code.

This ground was objected to by the Electoral Commission (the Commission) on the ground that sufficient facts have not been pleaded as required. The trial judge accepted the objection. In so far as ground 2 is concerned we are of the view that the learned review judge did not make any mistake in having this ground struck out. On this ground, despite an attempt was made under ‘facts’ to state some detail, it clearly failed. The trial judge said this was intended to claim bribery under section 103(d) of the Criminal Code. But it was not pleaded who it was intended to be bribed. From the drafting, Sam Gawa was to be a vehicle only. But no recipients were named. Whether they were registered voters was not pleaded. The relevant early case law beginning with Holloway v. Ivarato [1988-89] PNGLR 99 and others that is very strict on this point. This early case made some comparative analysis on the Courts views in different countries. The case referred to was Re Berrill’s petition and Boothby (1978 19 ALR 254 and the provision of Commonwealth Electoral Act. This was to help in thinking process as to what is meant by "Facts". At the end, the Court came to the view as summarized in the headnotes which is:

"The Facts which must be set out under s 208(a) of the Organic Law on National Elections are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issue involved".

On these principles we find therefore, the trial judge did not err in holding this pleading to be incompetent and striking it out.

Ground 4. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to Bill Biol with the intention that the cheque will be applied to induce members of the Dorokatum Sports Club to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

This paragraph was dismissed on the same basis as in ground 2. The K1,000 was given to Bill Biol to give or use in a way to induce members of the sports club to vote for the candidate. While it would not take too much to know that this was a bribe and was commission of a criminal offence, a petitioner is required to be more precise in so far as election or voting was concerned. The pleading did not name any members of the club and whether they were registered voters. Bribery is a serious offence but here the persons who received the money might not be an elector. Hence it would be an irrelevant act for the purpose of the specific election at the place and time. We do not consider therefore that the learned trial judge made any error in striking this paragraph out.

Ground 5. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give bribe of K500.00 to a Chris Marsil for and on behalf of the Kinim Sports Club with the intention to induce and the other members of the Kinim Sports Club who were electors for a Member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to section 215 of the Organic Law on National and Local Level Government Elections and section 103(a) of the Criminal Code.

Whether we accept the trial judges reasons to strike off this paragraph, we must consider what was intended. Other members of the club were not named. That is fatal. But for Chris Marsil, who was named, and he was said to be an elector. If we were to give mark on English language, grammar or language structure, the drafter would definitely fail. However, it is perfectly clear what was intended. Chris Marsil was also a member of the club. He received the money for himself and "other members" of the club. That is he received the money not for club members only but himself and "other members". This paragraph must be competent and we so rule.

Ground 6. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to Chris Marsil with the intention that the cheque will be applied to induce members of the Kinim Sports Club to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

The trial Judge struck down this paragraph because giving of money to bribe others may constitute an offence. But as far as the election law was concerned, he failed to name anybody who was qualified by age and was registered as a voter who could be induced by the money given out. We do not see therefore any error in striking this paragraph out.

Ground 7. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to Bangme Sports Club with the intention to induce the Chairman and the other members of the Bangme Sport Club who were electors for a Member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to section 215 of the Organic Law on National and Local Level Government Elections and Section 103(a) of the Criminal Code.

This ground should be treated in the same way as paragraph 6. This ground has named no person at all, though all the elements of electoral offences have been pleaded. We therefore do not see any error at all made by the judge in striking this paragraph off.

Ground 8. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K1,000.00 in cheque to Bangme Sports Club with the intention that the cheque will be applied to induce members of the Bangme Sports Club to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

This ground was struck out for the same reasons as paragraphs 6 and 7. The fact that a candidate has given money to influence a registered voter or voters to vote for him may constitute criminal offence. But he did not name anybody who was qualified (registered) to vote in that election. We therefore do not see any error in the trial judge striking out this paragraph. We confirm the decision to strike out.

Ground 9. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K500.00 to the Chairman of the Kinim Sports Association with the intention to induce the Chairman and the members of the Kinim Sport Club who were electors in the election for a Member for Sumlar Open Electoral to vote for the First Respondent in their capacity as electors contrary to section 215 of the Organic Law on national and Local Level Government Elections and section 103(a) of the Criminal Code.

The trial Judge said this paragraph was too general as others. He therefore struck out this paragraph. The name of the chairman, and the members have not been pleaded. Like in previous pleadings names have been given which could and should constitute criminal offence but the pleading here is bad. In our view the trial judge did not make any error in striking this ground out.

Ground 10. That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bribe of K500.00 to Kinim Sports Association with the intention that the cheque will be applied to induce members of the Kinim Sports Association to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

This paragraph was struck down for similar reasons as in the previous paragraphs. While the Court may be clear that the handing out money at election time is for inducement, encouragement, or ‘fishing’ for more votes whether a person or persons are individually named or as a member of an organization is a different issue. No doubt what is pleaded or alleged might not be supported by any evidence. But in interpreting and applying the provisions of legislation affecting election, the Court must ensure that elections and voting must be clean and respected. There is at least a National Court decision that has ventured along these lines. That case is Raymond Agonia v. Albert Karo & Electoral Commission [1992] PNGLR 463 at 469. Referring to section 105 of Criminal Code on Bribery Justice Sheehan said –

"without analyzing this section exhaustively, it is clearly a section designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducement are made to an elector, defined as a person entitled to vote at any election - or sought with the intention of interfering with the lawful process of elections".

There is an improvement under the heading "Facts". The ‘facts" did include one specific name that is Sam Gawar as an elector. But the name should have been in the pleading, and not under ‘facts’. Hence we do not see any error made by the trial judge in striking out this paragraph.

Ground 12. That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to Ms Nei Uleti with the intention that the cheque will be applied to induce members of the Bagabag Women Group to vote for the First Respondent contrary to Section 215 of the Organic Law on National and Local Level Government Elections and Section 103(d) of the Criminal Code.

This ground was struck down because the pleading was too general. Ms Nei Uleti was said to receive money but she was used just as a means to distribute the money to unnamed women. The money distributed was obviously to vote for him but it was not known, because it was not pleaded that any of those unnamed women were eligible voters. That is, the names of the members of the Bagabag women’s group had not been pleaded. Persons must be bribed not an institution like Bagabag Sports Club. We therefore see nothing wrong with the trial judge striking out/dismissing this ground.

The remaining grounds that is grounds 13, 14, 15 and 16 alleged improper practices by the Electoral Commission.

Ground 13. That on or about 3rd July 2002 at the Counting Centre for Sumkar Open Electorate Election the Second Respondent its agent and/or servants or third parties whose actions were within or ought to have been within the knowledge of the Second Respondent illegally interfered and influenced the conduct of the elections and that such interference unduly affected the outcome of the election of the election results, in that unauthorized scrutineers were allowed into the counting centre, contrary to Section 150 of the Organic Law on the National and Local Level Government Elections.

This ground was said to be too general. That is it was pleaded that the Second Respondent’s agents allowed 2 unauthorized persons to enter the counting centre and as a result they interfered with the conduct of the election. The error was said to be that the unauthorized persons have not been named and that nature of interference had not been pleaded. We accept the grounds on which pleading was said to be too general. Who were those persons and who in particular allowed these persons. How the interference affected the outcome was not pleaded. We consider that there was no error in striking out this paragraph.

Ground 14. The Second Respondent its agent and/or third parties whose action were within or ought to have been within the knowledge of the Second Respondent illegally interfered and influenced the conduct of the elections and that such interference unduly effected the outcome of the election results being that Mr Alung Wang the Sumkar District Administrator had assisted in the opening of Ballot boxes and assisted in placing ballot papers into candidates trays contrary to Section 108 of the Criminal Code.

This ground was also struck down for same reasons. That is, it had not been pleaded how Mr. A. Wang’s conduct affected the outcome of the election. The complaint was that the District Administrator assisted in opening the Ballot Boxes in that he interfered to the extent with the outcome of the election. In the explanatory parts attempts were made to explain the pleading but that could not and still cannot explain how the result was affected at all. We do not see any error at all.

Ground 15. On the 3rd July 2002 and on the 4th July 2002, the Second Respondent and/ors its agents unlawfully and illegally placed unrejected votes of a candidate, Mr Steven Nambon in the tray of another candidate contrary to Section 151 of the Organic Law on National and Local Level Government Elections.

This ground was struck down because it was not clear how it would affect the outcome. The pleading was that votes belonging to another candidate, Mr Steven Nambon was put in another candidate’s tray (mentioned in ‘facts’ to be Mr Mark). It has not been explained or pleaded how, if true, it would affect the result between the applicant and the First Respondent. We therefore see nothing wrong with the trial judge striking out this paragraph.

Ground 16. That during the counting the Second Respondent, its agents and or servants unlawfully and illegally conducted the counting of votes without proper scrutineering which interfered and influenced the election result of the Sumkar Open Electorate Election in that the scrutiny proceeding were not open to the inspection of the scrutineers contrary to Section 151 of the Organic Law.

This ground was struck down because the pleading did not specify how and what was done that was wrong. It was alleged a scrutineer was 3 metres away where he could not see the voting. But there was no objection raised by the scrutineer. Three metres could be far away depending on the time of the day and the setting of a voting place. This Court recognizes the importance of the roles played by the scrutineers in the elections. But exactly how far they would be allowed to observe from, the court has not made any decision. See Appelis v. Chan SC573. But the pleading in this petition, did not show any complaints. We do not therefore see any error made by the petition Court.

In conclusion, except for one paragraph, we have not seen any error at all made by the Petition Court in striking out twelve paragraphs. The paragraph that we have not struck out is paragraph 5, which must go on for hearing.

We now address grounds 1, 3 and 11 of the Petition. We set them out as follows:

Ground 1 states –

"That on or about the 17th June 2002, at Dorokatum village, the First Respondent did give a bride of K1,000.00 to a Sam Gawar for and on behalf of the Kaviak Sports Club with the intention to induce Sam Gawar and the members of the Kaviak Sport Club who were electors in the election for a Member of Parliament for Sumkar Open Electorate to vote for the respondent in their capacity as electors contrary to section 215 of the Organic Law on National and Local Level Government Elections and section 103(a) of the Criminal Code."

Ground 3 states –

"That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Bill Biol for and on behalf of the Dorokatum Sports Club with the intention to induce Bill Biol and the members of Dorokatum Sports Club who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to section 215 of the Organic Law on National and Local Level Government Election and section 103(a) of the Criminal Code."

Ground 11 states –

"That on or about the 17th June 2002 at Dorokatum village, the First Respondent did give a bribe of K1,000.00 to a Ms Nei Uleti for and on behalf of the Bagabag Women Group with the intention to induce Ms Nei Uleti who were electors in the election for a Member for Sumkar Open Electorate to vote for the First Respondent in their capacity as electors contrary to section 215 of the Organic Law on National and Local Level Government Elections and section 103(a) of the Criminal Code."

On the remaining Grounds 1, 3 and 11, the Applicant argued against the decision by the trial judge in dismissing those grounds. Especially against the reasons that the trial judge used in dismissing them. The basis of the argument firstly in whether the trial judge had any jurisdiction under Rule 15 of the Election Petition Rules to do that. Secondly, whether the trial judge was correct in stopping the hearing when the Petitioner had called evidence. Thirdly the combined effect of the first ground and second ground especially where bribery has been pleaded whether the Court should have the First Respondent allowed to call or give evidence.

The Petitioner/Applicant challenged this process by stating that the learned trial judge made an error in this respect. Firstly, that the "evidence of the applicant and his witnesses together with the agreed statement of facts" had clearly established a prima facie case against the First Respondent and the First Respondent had to call evidence to answer. Secondly, that the learned trial judge in response to an objection to competency of the petition said on the 4th March 2003 that these three grounds i.e. grounds 1, 3 and 11 were competent to proceed to trial.

We accept the proposition that the National Court has jurisdiction to stop an election petition trial in an appropriate case, after the petitioner has closed its case, if the petitioner fails to prove an essential ground for invalidating the election result (Ben Micah v Ian Ling-Stucky (Unreported Judgment of the National Court, N1790) and Desmond Baira v Kilroy Genia (Unreported Judgment of the Supreme court, SC579).

The question before us is whether the trial judge erred in stopping the trial in the present case.

Ground 1.

In relation to the evidence of bribery on this ground, the trial judge made two points. First, the key witness, Sam Gawar who allegedly was offered the bribery was not called to give any evidence of bribery. Second, no evidence was called to prove that Sam Gawar was an elector as alleged. We consider that the lack of evidence on the second point is fatal. Whether or not there was bribery of Sam Gawar, the fact that he was not proven as an elector would have no impact on the result of the election. We do not find any error in stopping the case on this ground.

Ground 3

This ground was dismissed by the trial judge on the same basis, namely, that Bill Bial who is alleged to have been bribed was not called to give evidence. There was no other evidence to prove this allegation. Further still no evidence was called to prove that Bill Bial was an elector for the Sumkar Open Electorate seat. Lack of evidence on both matters is fatal and it is pointless going on with the trial. We do not find any error in stopping the case on this ground.

Ground 11

The trial judge struck down this ground on the basis that there was variance with the pleading that the act of bribery was offered on 17th June 2003, whereas Miss Uleti in her affidavit stated that bribery was offered on 16th June 2002. This ground is to be distinguished from grounds 1 and 3. There is no issue about whether or not Miss Uleti is an elector. So far as the date on which the bribe was offered, it is a question of weight to be given to the evidence given by Miss Uleti. In this regard, there was evidence of bribery offered on 16th June. Whether this should be believed is a matter that can be decided at the end of the trial. In this regard, the trial should have allowed the trial to continue and ask the First Respondent if he wishes to call any evidence. In this regard, the trial judge erred in stopping the trial on ground 11. He should have allowed the trial to continue. We would allow this ground of review and direct that the trial should proceed on this ground.

It has come to our attention that the question of whether or not the Applicant was enrolled in the Common Roll to qualify to stand for election as member of the National Parliament was raised at the trial. However, the trial judge did not address the issue in his decision. There is no ground of review raised in this regard before us. As the matter is not the subject of review and was not argued before us, we cannot deal with the issue. We can only indicate that when the matter is sent back for a new trial, the parties should consider raising the matter again. This point could be determinative of the retrial of this election petition.

In the result we would allow the review in respect of grounds 5 and 11 of the Election Petition and direct that these two grounds be remitted back to the National Court for retrial before another judge. We reserve the question of costs.
______________________________________________________________________
Lawyers for the Petitioner: Narokobi Lawyers
Lawyers for the First Respondent: Stevens Lawyers
Lawyers for the Second Respondent: Nonggor & Associates Lawyers