Tulapi v Lagea [2013] PGSC 66; SC1337 (12 May 2013)

SC1337

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 47 OF 2013

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:

DANIEL BALI TULAPI
Applicant

AND:

AIYA JAMES YAPA LAGEA
First Respondent

AND:

ALBERT WENS,
RETURNING OFFICER FOR KAGUA-ERAVE OPEN ELECTORATE
Second Respondent

AND:

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2013: 08th October & 2014: 12th May

SUPREME COURT REVIEW – ELECTION PETITION – Application for leave to review – Review of National Court decision – Dismissal of petition – Failure to prove bribery – Lack of criminal intent – Error of law and findings of fact – Trial judge's assessment of evidence – Credibility and reliability of witnesses' evidence – Whether gross error of facts established – Constitution – s. 155(2)(b) – Organic Law on National and Local-level Government Election – s. 215 – Criminal Code – s. 103.

Facts

This is an application for leave to review the decision of the National Court constituted by the Chief Justice to dismiss a petition disputing the result of the election for the Kagua-Erave Open electorate in the 2012 General Election. The applicant alleged, among others, that the first respondent bribed electoral officials and security personnel at the counting centre to procure his return as Member by giving them cash of K20,000.00. The Court dismissed the petition because the applicant failed to prove bribery.

Held:

1. The ground and submission seeking to dismiss the application for want of service on the first respondent was vague, unclear, unsupported by evidence and was dismissed.

2. The petition to void the election of the first respondent was based on two instances of bribery. While there is no dispute that the first respondent gave cash of K20,000.00 to electoral officials and security personnel, the applicant failed to show any gross error in the trial judge's assessment of evidence and finding that he failed to prove that the money was given to procure or reward them for procuring the return of the first respondent as Member.

3. The application for leave to review was refused with costs.

Cases cited:

Papua New Guinea cases

Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N5323
Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935
Application by Herman Joseph Leahy (2008) SC855
Application of Ludwig Patrick Schulze (1998) SC572
Kasap v.Yama [1998-1999] PNGLR 81
Application by Ben Semri (2003) SC723
Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211
Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244
Tom Olga v. Paias Wingti & Electoral Commission (2008) SC939
Peter Wararu Waranaka v. Gabriel Dusava & Electoral Commission (2008) SC845
Paru Aihi v. Moi Avea (2004) N2523

Overseas cases

Vanua Lop v. Issac [2009] VUCS 23
Ah Hian v. Amosa [2001] WSSC 16

Counsel:

Applicant in person
Mr S Bonner, for First Respondent
Mr R William, for Second, Third & Fourth Respondents

RULING

12th May, 2014

1. MAKAIL, J: This is an application for leave to review the decision of the National Court constituted by the Chief Justice to dismiss a petition disputing the result of the election for the Kagua-Erave Open electorate in the 2012 General Election. The decision was made on 03rd August 2013: see Daniel Bali Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N5323.
   

National Court Decision

2. In the petition in the National Court, the applicant alleged, among others, that the first respondent bribed electoral officials and security personnel by giving them cash of K20,000.00 in order to induce them to procure his return as Member. The cash was handed to them at the counting centre at Momei Oval in Mendi on 18th July 2012. The first respondent, electoral officials and security personnel admitted to receiving the money but said that it was given to them as a token of appreciation for conducting and completing a successful election.

3. His Honour dismissed the petition and held that the applicant failed to prove bribery to the required standard of proof because there was no criminal intent. He reached that conclusion because the applicant's evidence was not sufficiently strong and convincing to find that the first respondent gave the cash to induce the electoral officials and security personnel to procure his return as Member.

Proposed Grounds of Review

4. The application sets out 25 proposed grounds of review. I have considered them with the detailed written submissions of the parties. Mr Bonner of counsel for the first respondent and Mr William of counsel for the other respondents jointly submitted that these proposed grounds are repetitious and can be summarised into three main grounds and issues of contention. I accept their submission. The proposed grounds can be summarised as follows:

4.1 His Honour's assessment of the evidence on a higher standard of proof and finding that the applicant failed to prove bribery despite the first respondent admitting to giving cash of K20,000.00 to electoral officials and security personnel at the counting centre at Momei Oval in Mendi on 18th July 2012.

4.2 His Honour's consideration and misapplication of two foreign cases Vanua Lop v. Issac [2009] VUCS 23 and Ah Hian v. Amosa [2001] WSSC 16 in relation to the law on time when bribery is committed in election process.

4.3 His Honour's finding that the Court had wide discretion to grant a relief if pleaded and sought in the petition and upon proof of bribery under s. 212 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and yet refused to declare the applicant as duly elected or returned as Member once bribery is proved.

Principles of Leave

5. The power to grant leave under s. 155(2)(b) of the Constitution is discretionary and the applicant bears the onus to satisfy the Court that the application raises an important point of law and that is not without merit: Erie Ovako Jurvie v. Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935, Application by Herman Joseph Leahy (2008) SC855 and Application of Ludwig Patrick Schulze (1998) SC572; and/ or there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v.Yama [1998-1999] PNGLR 81, Application of Ludwig Patrick Schulze (supra) or where on the face of finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723.

6. From the detailed written submissions presented by the respective parties, there is no dispute on these principles and I adopt them. In this kind of application, the discretion is not to be exercised too readily or loosely but after a careful perusal of each proposed ground of review and any relevant material relied upon by the parties. It requires a higher standard of scrutiny of the materials supporting the application before the Court and from such scrutiny, it is established that there is a clear error which has a very high chance of success: see Philomena Kassman v. Kila Igaba & Electoral Commission (2012) SC1211 (Injia, CJ) and Anton Yagama v. Peter Charles Yama & Electoral Commission (2013) SC1244 (Batari, J).

Service of Application for Leave

7. In opposing leave, Mr Bonner submitted that the application should be dismissed because the applicant failed to properly serve the application and supporting affidavit on the first respondent within 14 days under O 5, rr. 14 and 15 of the Supreme Court Rules, 2012. The rest of the respondents and the applicant made no submissions on this ground.

8. This ground is vague and also contradictory because Mr Bonner seems to say that the applicant was served the application but it was not done in accordance with the Supreme Court Rules. He made no submissions as to why service is defective or not in accordance with the Supreme Court Rules. On the other hand, he conceded that he appeared on behalf of the first respondent on 11th September 2013. This was when the application for leave was listed for hearing for the second time. Mr Bonner also made no submission as to whether he raised the issue of service at that time and if it was the reason for the adjournment. The application was further adjourned to 08th October for hearing.

9. There is not even an affidavit from the first respondent to support Mr Bonner's submission that he (first respondent) was not properly served or basis for seeking a dismissal for want of service. It is not for the Court to work out the ground for the dismissal or speculate the reason(s). If the first respondent is objecting to the application, he must state precisely and clearly the ground of the objection. He has not and for these reasons, I am not satisfied that the petition should be dismissed on this ground. This ground is dismissed.

Allegation of Bribery

10. As to the merits of the application, this is a case about bribery. Under s.215 of the Organic Law on Elections, bribery is a ground to void an election. The onus of proof is on the applicant to prove bribery. He must prove that the cash of K20,000.00 is a bribe and in order to do that, he must prove the elements of bribery in s. 103 of the Criminal Code. It states:

"103. Bribery.

A person who —

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

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

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

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

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

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

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

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

(f) is privy to the transfer or payment referred to in Paragraph

(e) that is made for his benefit; or

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

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year." (Emphasis added).

11. The applicant is not at liberty to contest the elements of bribery because I note at para. 54 of the judgment, his counsel had submitted and his Honour accepted his submission that the elements are:

(1) Identity of the person by name, the successful candidate, that made the payment or promise;

(2) Identity of the person by name who is bribed;

(3) Form and value of the money (property) or benefit; and

(4) the purpose of the payment – to induce the person to endeavor to procure the return of a person, the successful candidate, at an election.

Applicant's Submissions

12. The applicant submitted that the central issue in this application is whether he has proven bribery against the respondents. He submitted that his Honour made a number of errors in his assessment of evidence and finding that he failed to prove bribery but the critical ones are that firstly, as there is no dispute that the first respondent gave cash of K20,000.00 to electoral officials and security personnel at the counting centre at Momei Oval in Mendi on 18th July 2012, it is an admission of bribery. To use the actual words used by the applicant in his written submission, "[t]he second respondent being the returning officer admitted to accepting bribery payment or receiving of bribery money." For this reason, he submitted that there is nothing further for him to prove. (Underlining is mine).

13. He further submitted that the first respondent's claim that he (first respondent) gave the money as a token of appreciation is not a defence recognised by law either in s. 103 of the Criminal Code or any other law. The fact remains that the first respondent gave the money and no amount of explanation can exonerate him from the offence. On this basis alone, his Honour should have upheld the ground on bribery and when he did not, he fell into error. He further submitted that the electoral officials and security personnel's admission to receiving the K20,000.00 and their explanation or reason for accepting it are important points of law and meritorious and the Court should allow him to raise them at the substantive hearing.

14. The receipt of K20,000.00 and its admission by the electoral officials and security personnel as proof of bribery, he submitted, are further supported by the fact that it was not right for the first respondent to give a large sum of money to electoral officials and security personnel because they were paid by the Electoral Commission and should not be accepting money from anyone, let alone a candidate and especially a successful candidate.

15. As further proof of bribery and most importantly, the finding that there was no bribery is contradictory to his Honour's further finding and recommendation that the first respondent be referred to the Ombudsman Commission for investigation for misconduct in office for making payments to counting officials and security personnel and disciplinary charges be laid against the security personnel for accepting payments outside their lawful entitlements.

16. He submitted that if it is not bribery, then what else can it be? And why did his Honour report them for investigation and prosecution/disciplinary action under s. 216 of the Organic Law on Elections? The exercise of power under s. 216 of the Organic Law on Elections, he submitted, can only be exercised where the Court finds a person guilty of an offence, such as bribery under s. 215 (supra) and s. 103 (supra). No such finding was made by his Honour. Finally, he submitted that it was wrong for his Honour to assess the evidence on a higher standard of proof. If his Honour assessed the evidence on the ordinary standard of proof, there is sufficient evidence to prove bribery.

17. For these reasons, his Honour should have upheld the ground on bribery and in terms of relief, his Honour had wide discretion to make an order to void the election of the first respondent and declare him (applicant) as duly elected even though he was not the runner-up. He made this submission because he has claimed these orders as relief in the petition and his Honour had that wide discretion under 208(b), s. 212 and 215(1) of the Organic Law on Elections to grant them if bribery is proved against the respondents. His Honour's refusal to grant these orders raised serious issues in relation to his exercise of discretion in terms of the relief sought by him.

Respondents' Submissions

18. Mr Bonner submitted that his Honour correctly assessed the evidence according to the rules of evidence and found that the applicant failed to establish that the money given was a bribe. As to the standard of proof in bribery cases, he submitted that a high standard of proof is required and that his Honour correctly assessed the evidence on the high standard of proof as was done in earlier cases and in so doing, found that the applicant's witnesses' evidence fell short of establishing the criminal intent. Applying the principles on grant of leave established in decided cases such as Erie Ovako Jurvie (supra) and others, he submitted that the proposed grounds do not raise important points of law or gross errors in his Honour's assessment of evidence which would warrant further consideration by the Court.

19. Mr Bonner and Mr William conceded that the Court has wide discretion under s. 212 of the Organic Law on Elections to grant a relief pleaded and sought by a petitioner, in this case, a declaration that the applicant be declared duly elected candidate for Kagua-Erave Open electorate. But they submitted that a grant of such relief is dependent on the applicant proving the allegation of bribery and remained a matter of discretion for the Court and there is nothing to suggest that his Honour's views expressed at paras. 23 and 24 of the judgment were wrong.

20. Mr William also submitted that as the allegation is one of bribery, the onus is on the applicant to lead evidence to prove it. While the electoral officials and security personnel admitted to receiving the money, they denied that it was a bribe and explained that it was given as a token of appreciation for their effort in successfully conducting and completing the election. Since the respondents denied the allegation, the onus of proof was on the applicant to prove bribery and his Honour was required to assess and decide which party's evidence was credible and reliable to accept. In so doing, his Honour accepted the evidence of the respondents and found that the evidence of the applicant and his witnesses was not sufficient to find that the money was given to procure or reward the electoral officials and security personnel for procuring the return of the first respondent as Member.

21. This finding was based on his Honour's assessment of the witnesses' evidence and he further submitted that, a review Court should be slow to interfere with his Honour's assessment of the evidence. Counsel relied on the case of Tom Olga v. Paias Wingti & Electoral Commission (2008) SC939 and Peter Wararu Waranaka v. Gabriel Dusava & Electoral Commission (2008) SC845 by Injia, DCJ (as he then was) and submitted that the applicant has failed to show any gross error in his Honour's assessment of the evidence and acceptance of the respondents' witnesses' evidence.

Consideration of Grounds and Submissions

22. The trial was confined to allegations of bribery of Presiding Officers at Muniputi village on 22nd June 2012 and electoral officials and security personnel at counting centre at Momei oval in Mendi on 18th July 2012. The applicant led evidence to prove bribery under s. 103(a)(iii) of the Criminal Code (supra) by giving evidence himself and calling three witnesses, namely Martin Yomo, Felix Dulupia and Berry Yomo. There is no dispute that the electoral officials and security personnel received cash of K20,000.00 from the first respondent at the counting centre at Momei oval in Mendi on 18th July 2012. So the first three elements were proven. The main issue at trial was the fourth element, that is whether the cash of K20,000.00 was given to induce the electoral officials and security personnel to procure or reward them for procuring the return of the first respondent as Member. His Honour found that it was not.

23. Firstly, with regard to the standard of proof in bribery cases in electoral process, it has been held that a high standard of proof is required. Paru Aihi v. Moi Avea (2004) N2523. Indeed, I note at paras. 27 and 89 of the judgment that applicant's counsel accepted that a high standard of proof is required. Therefore, the applicant is not at liberty to take issue with his Honour's consideration and assessment of evidence on a higher standard of proof. It follows that it will be necessary to determine whether the applicant has proven the allegation on that standard of proof.

24. Turning to the case at hand, if the money was given in secret, it would have strongly supported the inference that it was given as a bribe that is, to induce the electoral officials and security personnel to procure or reward them for procuring the return of the first respondent. But it was given in public. This made it difficult for his Honour to conclude that it was a bribe. Where money is given in public, it is necessary to consider the entire circumstances of the case before the Court can conclude that the money was a bribe. For example, there must be a purpose or reason for giving the money and there must be evidence from someone to prove the purpose or reason for giving it. The purpose or reason must be clear and explicit; the money is given to procure the return of a candidate.

25. Though time is not an element, it is also relevant. Was the money given before or at the start, during or after the counting of votes? Was it given before or after the declaration of winner? The person receiving the money is an element and a relevant consideration. Was it the Returning Officer, Assistant Returning Officer, Counting Officials, policemen or defence force soldiers? Another consideration is their role in the conduct of the election. If there were other instances of bribery prior to the one in question, they are also relevant.

26. In this case, as noted, there were two instances of bribery. The first was on 22nd June 2012 at Muniputi village where it was alleged that the first respondent gave K500.00 each to Martin Yomo, Presiding Officer for Usa and Felix Dulupia, Presiding Officer for Sumi with instruction to vote for him and fill in ballot-papers making first preference to him. They were also instructed to assist illiterate voters by filling in ballot-papers giving first preference to him. They were further instructed to secure the ballot-boxes and ensure their safe arrival in Mendi. If he won, he promised them he would pay K5,000.00 to them. They complied with the instructions.

27. It was the applicant's case that the Presiding Officers were responsible for manipulating the votes as instructed by the first respondent, that they concealed the illegal act and ensured the ballot-papers were secured and transferred to the counting centre in Mendi for counting and when put together with the payment of K20,000.00 by the first respondent at the counting centre in Mendi, the logical inference to be drawn here is that, the money was a bribe; it was to induce the electoral officials and security personnel to procure or reward them for procuring the return of the first respondent.

28. His Honour said that the evidence from both sides in relation to the events of 22nd June 2012 matched. Thus, it came down to the question of whom to believe and accept as witness of truth. I accept the respondents' counsel submission that where the Court is asked to review the trial judge's assessment of evidence to determine whether any error has occurred, the Court must be slow in interfering with the trial judge's assessment unless a gross error is apparent. This is because a trial judge is better placed to assess and weigh up the evidence including the demeanour of witnesses than the review Court: Tom Olga v. Paias Wingti & Electoral Commission (supra) and Peter Wararu Waranaka v. Gabriel Dusava (supra).

29. A judge applies rules of evidence in assessing evidence and making findings of fact. The credibility and reliability of evidence are essential for a successful prosecution or defence. Inconsistencies, conflicting accounts and admissions can destroy or diminish the credibility and reliability of evidence. Lack of corroboration from an independent source may also destroy or diminish the credibility and reliability of the evidence.

30. In this case, one reason his Honour did not accept the evidence of the applicant's witnesses is that there was no independent witness, someone who was not paid any money by the first respondent giving evidence of the meeting at the first respondent's house. In the absence of such independent evidence, his Honour held that the applicant's evidence lacked supporting evidence and lacked reliability. (see para. 71 of judgement).

31. To further satisfy himself as to the credibility and reliability of the applicant's witnesses' evidence or put it the other way, in case there is some truth in what the applicant's witnesses were saying, his Honour considered other independent evidence which would strengthen and corroborate their evidence. The other independent and reliable evidence which his Honour relied on were the Tally Sheets (Forms 66A & 66B) produced by the counting officials at the counting centre. His Honour stated that as these forms were completed during the time of counting and signed by a number of polling officers including scrutineers, they dispelled any suggestion of manipulation to suit a particular candidate.

32. They also seem to contradict the applicant's witnesses' evidence because when the figures in the forms were compared with their evidence, they did not match. For instance, according to Form 66A, Sumi registered only 3 informal votes. If Mr Dulupia followed the first respondent's instruction, the first respondent would have scored heavily. But the score board showed that the first respondent scored 1 vote and the applicant scored 572 votes. This was a further reason why his Honour did not accept the evidence of the applicant's witnesses. In my view, his Honour's assessment of the evidence is not only reasonable but also logical and fair given that the figures in Form 66A did not match the evidence of the applicant's witnesses.

33. For these reasons, I am unable to find any gross error in his Honour's assessment of the evidence of the events of 22nd June 2012.

34. The second instance of bribery was on 18th July 2012 at the counting centre at Momei Oval in Mendi. As noted, there is no dispute that the first respondent gave cash of K20,000.00 to the electoral officials and security personnel on that date. The dispute is whether he gave the money to procure or reward them for procuring his return as Member. A further aspect of the applicant's case was and is that, the events and payment of K500.00 each to the Presiding Officers at Muniputi village on 22nd June 2012 when put together with the payment of K20,000.00 to the electoral officials and security personnel at the counting centre at Momei Oval in Mendi on 18th July 2012, draws a strong inference that the money was given to the electoral officials and security personnel to induce them to procure or reward them for procuring the return of the first respondent as Member.

35. Given the lack of credibility and reliability in the evidence of the applicant's witnesses for the reasons given, his Honour was not satisfied with the applicant's witnesses' evidence of the events of 18th July 2012.

36. In addition and turning to the events of 18th July 2012, rules of evidence and techniques of trial are essential in achieving a successful outcome for a party's case, whether it is the prosecution or defence. One of them is the success in destroying a party's case in cross-examination. No matter how strong and impeccable a witness can be in his or her evidence in chief, the credibility and reliability of the evidence can be destroyed or diminished if cross-examination of the witness reveals inconsistencies, conflicting accounts and admissions. It is also a tool used by counsel to test the temperament of the witness. A lack of credibility may not be easily attributed to a cool and calm witness as opposed to an aggressive and hot headed witness in cross-examination.

37. An effective and successful cross-examination of an opponent's witness that destroys or discredits the credibility and reliability of the witness' evidence is essential to the party's case if both side's evidence are on equal footing, strong and impeccable. In this case, as noted, both sides evidence matched and it was difficult for his Honour to quickly reach a decision on which party's evidence was credible and reliable. From my reading of his Honour's reasons at para. 85 of the judgment, it is clear that the applicant had the opportunity to sway his Honour to his side. This was during cross-examination of the first respondent.

38. His Honour observed that the purpose or reason for the first respondent to give the money to the electoral officials and security personnel was the weak part of the defence case. This was the opportunity for the applicant's lawyers to explore in detail and adduce evidence through cross-examination on the purpose or reason for the money; that the real purpose or reason was to reward them for procuring the return of the first respondent in the polling and counting. The applicant and his lawyers did not and his Honour was left to conclude that the applicant did not do enough to discredit the evidence of the respondents.

39. His Honour reached the same conclusion for the same reasons in the case of cross-examination of the second respondent and one Mr Bernard Kambe where it was alleged that they had prior association with the first respondent. These were further reasons why his Honour found the evidence of the respondents more credible and reliable than the applicant and accepted their evidence and I am unable to see how his Honour may have erred in applying these principles in his assessment of the evidence.

40. The other grounds which the applicant relied on to show that his Honour's assessment of the evidence was wrong are incorrect and misconceived. For instance, the respondents did not admit to receiving bribe money or bribery and it is incorrect for the applicant to submit that the respondents admitted this or "[t]he second respondent being the returning officer admitted to accepting bribery payment or receiving of bribery money." They only admitted to receiving the money. As the onus of proof is on the applicant to prove the fourth element of bribery, the evidence fell short of establishing it.

41. Another instance is where the applicant submitted that the reason given by the respondents that the money was given by the first respondent as a token of appreciation for conducting and completing a successful election is not a defence in law is also, incorrect and misconceived. While it is true s. 215 (supra) and s. 103 (supra) do not provide a defence to the offence of bribery, the onus of proof is on the applicant as the person alleging bribery to prove it. The onus of proof does not and never shifts to the defence. It was on him to dispel the claim that the money was given as a token of appreciation and he failed.

42. As I mentioned earlier, time is also a relevant factor when assessing the credibility and reliability of the evidence proving bribery. The second proposed ground raises the issue of time and is premised on the applicant's claim that his Honour misapplied the law in relation to the time when bribery is committed in election process as stated in the Vanuatu and Western Samoa Supreme Court cases of Vaua Lop and Ah Hian (supra) respectively. I deduced this from the applicant's submission that while he accepted that his Honour correctly held that bribery for election purposes is prohibited at all times, because in law, there is not particular time when bribery is ever allowed, he submitted that his Honour "erred in law when he deviated and drifted away from his decision and did not apply the principles of Law and reasons......" in those cases.

43. This submission is made to counter the respondents' claim that the first respondent did not give the money to the electoral officials and security personnel during counting or before declaration of the first respondent but after the declaration. How did his Honour address this issue? At para. 82.1 of the judgment, his Honour said that according to the pleadings in the petition at para. 11.3, the payments were made to electoral officials and security personnel "when the First Respondent was declared duly elected. The petitioners' witnesses departed from the pleading when they gave their evidence. Mr Dulupia and Mr Martin Yomo and Mr Berry said he was brought in by security officials whilst the elimination process was still in progress and started distributing so much cash money in K100 notes to counting officials and Mr Dulupia and Mr Martin Yomo." (Underlining is mine).

44. There is not much one can argue about his Honour's finding on this issue. The law is that, parties are bound by the pleadings and evidence must be led according to the pleadings. If the pleadings were that the first respondent gave money at the time when he was declared duly elected, parties were bound by it and evidence must be led accordingly. Any deviation from the pleadings or evidence going outside the pleadings weakens the case that the money was given as a bribe.

45. In saying this, I do not think for one moment that his Honour was suggesting that there is a time limit for bribery cases in election process. For instance, bribery must be committed within the election period; from the date of issue of writs to date of declaration of successful candidate or return of writs. What his Honour said is that if the petitioner pleads that bribery occurred at a certain time, then he or she is bound to prove by evidence that it occurred at that time. Going outside the boundary of the pleadings reduces the credibility of the evidence as it amounts to a recent invention.

46. When his Honour took all these matters into account, they rendered the inference that it was not right for the first respondent to give a large sum of money to electoral officials and security personnel because they were paid by the Electoral Commission and should not be accepting money from anyone, let alone a candidate and especially a successful candidate less credible and of no weight. For all these reasons, I am unable to see how his Honour's assessment of this evidence was wrong.

47. The last proposed ground is premised on the assumption that if the Court were to find that the money was a bribe and given that the applicant has pleaded and sought orders that the election of the first respondent be declared void and he be declared as duly elected or returned under s. 212 of the Organic Law on Elections, it was open to his Honour to grant those orders. By refusing those orders, his Honour wrongly exercised his discretion and it raises an important point of law in relation to the Court's power to grant relief.

48. That may be so but I accept the submissions by counsel for the respondents. A grant of such relief depends on the applicant proving the allegation of bribery and it remains a matter of discretion for the Court to decide. I have read his Honour's statements expressed at paras. 23 and 24 of the judgment and I am unable to agree with the applicant that his Honour's refusal to grant the orders was manifestly wrong or unreasonable such that it raises an important point of law and has merits. On the contrary, it is misconceived because the applicant failed to prove bribery and it is not open to the Court to even consider what sort of relief to grant.

49. Finally and as an extension to the preceding discussion in the question of relief, it is arguable that his Honour having found that the evidence fell short of proving bribery, concluded that the applicant failed to prove it and in the exercise of his discretion under s. 216 of the Organic Law on Elections went on to report the first respondent, electoral officials and security personnel for investigation and possible prosecution and disciplinary action for accepting payments outside their lawful duties may have erred.

50. This is because according to s. 216 of the Organic Law on Elections, the Court's power to make such an order is exercised in cases where it finds that a person has committed an offence under the Organic Law on Elections or any other law. As his Honour found that the applicant failed to prove bribery, it meant that the first respondent, the electoral officials and security personnel were not guilty of bribery and that there was no basis for his Honour to refer them for investigation and prosecution or disciplinary action.

51. That said, I am nonetheless of the view that it is a peripheral issue because it does not determine whether bribery has been proven and the election of the first respondent should be declared void. In any case, for the reasons I have given earlier, his Honour's finding on these matters does not significantly support the inference of criminal intent on the part of the respondents. For these reasons, this ground is either misconceived or does not raise an important point of law and meritorious and is dismissed.

Conclusion

52. Having considered the proposed grounds, reasons of the trial judge and materials before me and for the reasons given, I am not satisfied that the applicant has made out a case for grant of leave and it is refused.

Order

53. The orders of the Court are:

1. The application for leave to review the decision of the National Court of 03rd August 2013 is refused.

2. The whole proceedings are dismissed.

3. The applicant shall pay the respondents' costs of the proceedings, to be taxed, if not agreed.

4. The security deposit of K5,000.00 held by the Registrar shall be released and apportioned equally among the respondents as part payment of their costs.

Ruling and orders accordingly.
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Sam Bonner Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents