Isoaimo v Aihi [2024] PGSC 31; SC2562 (26 April 2024)

SC2562

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 50 OF 2023

BETWEEN:
PETER NAMEA ISOAIMO
Applicant

AND:
PARU AIHI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Murray, Dingake & Purdon-Sully JJ
2024: 29^th February and 26^th April

SUPREME COURT REVIEW – ELECTION PETITION – Application to review National Court decision – Decision upholding Petition – Declaration of applicant as not duly elected – Bribery – Constitution – Section 155(2)(b) - Organic Law on National and Local Level Government Elections (Organic Law) – Evidence failed to establish case pleaded and provide a foundation for grant of relief sought – whether section 217 of the Organic Law applies – Requirements of section 208 considered – Grounds of Review – Error of law found

Legislation:
Constitution: 155(2)(b)
Organic Law on National and Local Level Government Elections: ss 206, 208, 209, 212, 215(1), 215(3), 217, 226(d)
Supreme Court Rules: Order 5 Rule 9(c)
Criminal Code: ss 7(1)(b), (c), 103(a)(i), (iii), 103, 103(d)

Cases Cited:

Papua New Guinean Cases
Application by Ludwig Schulze: Review Pursuant to Constitution s 155(2)(b) (1998) SC572
Amet v Yama [2010] PGSC 46; SC1064
Avia Aihi v The State [1981] PNGLR 81
Application by Herman Leahy (2006) SC855
Jurvie v Oveyara [2008] PGSC 22; SC935
Waranaka v Dusava [2009] PGSC 11; SC980
Application by Ben Semri [2003] PGSC 21; SC723
Powes Parkop v Wari Vele (No 1) (2007) N3320
Luther Akisawa Wenge v Kelly Naru (No 2) (2013) N5123
Fairweather v Singirok [2013] PGSC 42; SC1293
Paru Aihi v Peter Isoaimo (2013) SC1276
Waranake v Manu (2018) N7346
Karo v Kidu [1997] PNGLR 28
John Warison v David Arore & Electoral Commission (2015) SC1418
Holloway v Invarto [1988] PNGLR 99
Powi v Kaku [2022] PGSC 101
Manase v Poyle [2009] PGNC 101; N3718
Tulapi v Luta [2000] PNGLR 120
Okuk v Nikare [1983] PNGLR 2
Philip Kikula v Electoral Commission [2013] SC1295
Karani v Silpua (2003) N2385; Kubak v Trawen (2012) N4992
Aihi v Isoaimo [2013] PGSC 56; SC1276
Graham v Electoral Commissioner of Papua New Guinea [2013] PGNC 356; N5216
Gore v Amuli [2023] PGNC 15; N10114
Amuli v Gore [2023] PGSC 53; SC2399
Mune v Poto [1997] PNGLR 356

Overseas Cases
Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041

Counsel
G. Kult, for the Applicant
D. Kipa for the First Respondent
M. Ninkama, for the Second Respondent

REASONS FOR JUDGEMENT

26^th April 2024

1. BY THE COURT: This is a review application under s 155(2)(b) of the Constitution emanating from a judgment dated 29 June 2023 of the National Court sitting as a Court of Disputed Returns (the Decision).
   
2. The Applicant seeks to review part of the Decision wherein the primary Judge upheld one ground (Allegation 2) of the First Respondent’s Petition filed on 7 September 2022 (Petition) and pronounced orders which declared the election of the Applicant void, ordered the Second Respondent to conduct a by-election for the Kairuku Open Electorate pursuant to s 212(3) of the Organic Law on National and Local Level Government Elections (Organic Law), ordered the Applicant to pay the First Respondent’s costs and ordered the refund of the First Respondent’s security deposit as Petitioner.
   
3. Pursuant to s 155(2)(b) of the Constitution a person aggrieved by a decision of the Court of Disputed Returns may with leave of the court apply to review such a decision (Application by Ludwig Schulze: Review Pursuant to Constitution s155(2)(b) (1998) SC572).
   
4. Pursuant to Order 5 Rule 9 of the Supreme Court Rules (SCR) leave to review the decision was granted on 23 October 2023 by a Judge sitting as a single Judge of the Supreme Court.
   
5. The Applicant challenges the decision on six (6) grounds as contained in paragraphs 5(a) to 5(f) of the Application for Review, detailed hereunder.
   
6. The Applicant seeks the following orders:
   1. The Application for Review filed 3 November 2023 be upheld;
   2. The Decision be quashed in its entirety;
   100. A Declaration that the Applicant is the duly member elect for Kairuku Open Electorate;
   4. Costs of the review be born by the First Respondent; and
   5. Such other orders as the court deems fit.
      
7. The Second Respondent supports the Application for Review and the orders sought by the Applicant.
   
8. The First Respondent seeks that this court not disturb the Decision on the basis that the primary Judge did not fall into any identifiable error of fact or law that warrants correction or review.
   
9. Before we turn to the grounds of review we outline the background facts, the relevant findings of the National Court and the legal principles to be applied on a review application.

BACKGROUND

10. On 12 May 2022, 118 Writs for the 2022 National General Elections were issued by the Governor-General including for the Kairuku Open Electorate in the Central Province. Polling began on 2 July and ended on 22 July 2022.
    
11. The Applicant and First Respondent nominated to contest the Elections for Kairuku Open Electorate seat which comprised three Local Level Governments (LLG) – Kuni, Mekep and Kairuku. The election was conducted under the Limited Preferential Voting system where electors voted for three (3) candidates in the order of 1^st, 2^nd and 3^rd preferential choice.
    
12. On the 30 July 2022 the Applicant was declared the winner by District Returning Officer Henry Oa at the Papua New Guinea Defence Force Gym in Murray Barracks, Port Moresby, National Capital District (NCD) having polled at the time of declaration 53.73% beyond the absolute majority of 9,860 votes.
13. On 7 September 2022 the First Respondent filed an election petition, referenced EP 35 of 2022 Paru Aihi v Peter Namea Isoaimo and Electoral Commission (the National Court proceedings) challenging the return of the Applicant as member. The petition contained four (4) grounds all alleging bribery pursuant to s 103(a)(i) and (iii) and s103(d) of the Criminal Code and s 215(1) of the Organic Law committed by the Applicant and his associates as follows:
    1. Allegation No 1 – Bribery at Inauaia Village, Ward 5 Mekeo LLG area, Kairuku District, Central Province
    2. Allegation No 2 – Bribery at Delena Village, Kairuku LLG area, Central Province
    100. Allegation No 3 – Attempted Bribery at Aipeana Village, Mekeo LLG area, Central Province
    4. Allegation No 4 – Bribery at Hisiu Village, Ward 6, Mekeo LLG area, Central Province.
       
14. On 13 March 2023 Objections to Competency to the Petition were made and upheld in part. On 14, 15, 16 and 24 March 2023 the Petition proceeded to trial on allegations 1, 2 and 4 with the decision handed down by the primary Judge on 29 June 2023. The First Respondent called nine (9) witnesses including himself and the Applicant, in response, called seven (7) witnesses, including himself. The Second Respondent did not call any witnesses nor tender evidence.
    
15. Of the three grounds asserting bribery, only one ground, Allegation No 2, was upheld. Allegation No 2 alleged that the First Respondent gave a dinghy and outboard motor to Marcel Makuri, a longstanding campaign manager of the First Respondent, with the intention of inducing Marcel and other electors in Delena Village to vote for him.
    
16. Allegation No 1 and No 4 failed as the evidence did not establish the respective allegations.
    
17. On 13 July 2023 the Applicant applied to the Supreme Court for leave to review the Decision. The leave application was heard on 18 August 2023 and on 23 October 2023 leave was granted to file a review application on all six (6) grounds of review.
18. On 3 November 2023 the Applicant filed this Application to Review together with a further application for an interim stay of the Decision. He also sought reinstatement as member of Parliament pending determination of the Application for Review.
    
19. On 28 November 2023 the stay application was dismissed.
    

FINDINGS OF THE NATIONAL COURT

20. The relevant findings of the National Court are set out below:
    147. The evidence therefore establishes to my entire satisfaction that on 13 June 2022, a person, namely Marcel Makuri, offered to give or confer, to any person, namely his clansmen, their families, and other villagers of Delena Village present, any property or benefit of any kind, namely the use and benefit of the boat, in order to induce any person, namely those amongst them who were electors, including Kila Ume and Ali Midian, to endeavour to procure the return of the First Respondent, or in order to procure their vote for the First Respondent, at the upcoming election, for the purposes of s 103(a)(iii) of the Criminal Code.
    148. Furthermore, I am entirely satisfied that this was done with both the knowledge and authority of the First Respondent for the purposes of s 215(1) and (3)(a) of the Organic Law. The evidence excludes any other rational inference.

154. In conclusion, I am entirely satisfied that the offence committed by Marcel Makuri contrary to s 103(a)(iii) was committed with both the knowledge and authority of the First Respondent pursuant to ss 215(1) and (3)(a) of the Organic Law. The First Respondent knew that Marcel intended to take the boat to Delena in the middle of the election campaign, with the intention of offering to give or confer to his clansmen, their families and any other villagers who witnessed his arrival, the use and benefit of the boat, in order to induce any person, namely those amongst them who were electors, to endeavour to procure his (the First Respondent’s) return at the election, or in order to procure their vote for him, at the upcoming election. Furthermore, the First Respondent authorised the conduct by giving Marcel money to purchase fuel for that purpose.

155. In my view, s 215(3)(a) extends the circumstances in which an election will be automatically voided from those where the candidate might strictly be found to “commit” an offence of bribery pursuant to the strict requirements of s 7 of the Criminal Code to those where the offence is committed with the candidate’s “knowledge or authority”: Simeon Kibeto v Saki Hacky Soloma (2023) N10173 at [30].

156. The evidence in this case, however, also establishes that the First Respondent committed bribery contrary to s 103(a)(iii) applying s 7 of the Criminal Code, in particular s 7(b) and (c).

...

161. To establish liability pursuant to s 7(1)(c) of the Criminal Code the petitioner must establish to the entire satisfaction of the court that: a) the offence was committed; b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the candidate intentionally aided (assisted or encouraged) that person to commit the offence: Banaso at [97].

162. To establish liability pursuant to s. 7(1)(b) of the Criminal Code the petitioner must establish beyond reasonable doubt that: (a) the offence was committed; (b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the candidate did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist: Banaso at [109].

163. As above, the evidence establishes that Marcel committed the offence of bribery contrary to s 103(a)(iii) of the Criminal Code. I am entirely satisfied that the First Respondent knew the essential facts constituting the offence, including Marcel’s intention, and that he intentionally aided Marcel to commit the offence, by giving him the money to bring the boat to Delena on or about 13 June 2022, for the purpose of s 7(1)(b) of the Criminal Code. For similar reasons the giving of the money was an act done with the intention of enabling or aiding Marcel to commit the offence for the purpose of s 7(1)(c) of the Criminal Code.”

(Underlining ours)

LEGAL PRINCIPLES

21. Pursuant to s 215 of the Organic Law “undue influence” and “bribery” are grounds on which a successful candidate’s election can be declared void.
    
22. Section 206 of the Organic Law is in the following terms:

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

23. Sections 208 and 209 of the Organic Law requires a petitioner to do the following:

208 Requisites of Petition

A petition shall –

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by the candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court hours in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with section 175(1)(a).

209. Deposit as security for costs

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

24. Section 210 reflects the special nature of election petitions and the strict and mandatory requirements of ss 208 and 209 as follows:

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

25. Section 217 of the Organic Law provides:
    

REAL JUSTICE TO BE OBSERVED

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

26. Section 220 of the Organic Law provides with respect to any decision of the National Court of an election petition that:

A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

27. However, pursuant to s 155(2)(b) of the Constitution the Supreme Court as the final court of appeal has an inherent power to review all judicial acts of the National Court. Election petitions that fall within this category (Amet v Yama [2010] PGSC 46; SC1064).
    
28. The inherent power of review of election petition matters is however available only where the applicant is able to demonstrate an important point of law that is not without merit to be determined (Avia Aihi v The State [1981] PNGLR 81; Application by Herman Leahy (2006) SC855).
    
29. Where issues of facts are raised, it has been held that gross error must be clearly apparent or manifested on the face of the records before the court should review (Jurvie v Oveyara [2008] PGSC 22; SC935).
    
30. The review process undertaken by the court is not an appeal procedure. It is concerned not with the decision itself, but with the decision-making process and the correctness of the procedure adopted to arrive at the decision the subject of review. It can intervene where there is an error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law and reason. Its role is not, however, to substitute its own findings or opinions for that of the National Court, the authority Parliament has appointed to determine election petition matters (Waranaka v Dusava [2009] PGSC 11; SC980).
    
31. Given that it is only the National Court that can determine the validity of an election or return, on review the applicant cannot raise new issues of law or fact not argued in the lower court (s 206 of Organic Law; Application by Ben Semri [2003] PGSC 21; SC723).
    
32. With respect to allegations of bribery, it is settled law that only one proven allegation of bribery or undue influence is sufficient to upset a whole election outcome (Powes Parkop v Wari Vele (No 1) (2007) N3320; Luther Akisawa Wenge v Kelly Naru (No 2) (2013) N5123; s 215 (1) and (3) of the Organic Law).
    
33. Section 215 of the Organic Law reads:

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”

(Underlining ours)

34. With respect to the application and interpretation of s 215 of the Organic Law this was considered in Fairweather v Singirok [2013] PGSC 42; SC1293 (Fairweather). The Court (Mogish, Cannings & Poole JJ) said at [21] – [24]:

21. The six scenarios, in decreasing order of seriousness, are:

1. bribery or undue influence committed or attempted by a candidate: if he is the successful candidate, s 215(1) applies: his election shall be declared void;
2. bribery or undue influence committed or attempted by someone other than the candidate with the knowledge or authority of the candidate: his election may be declared void without the necessity of pleading or proving the two matters set out at the end of Section 215(3);

C. bribery or undue influence committed or attempted by someone other than the candidate without the knowledge or authority of the candidate: this is the scenario expressly provided for by Section 215(3)(a): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;

4. illegal practice other than actual or attempted bribery or undue influence committed by a candidate: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;
5. illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate with the candidate's knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven;
6. illegal practice other than actual or attempted bribery or undue influence committed by a person other than the candidate without the candidate's knowledge or authority: this scenario is covered by s 215(3)(b): his election may be declared void provided that the two matters set out at the end of Section 215(3) are pleaded and proven.

22. Scenario B is the scenario that is being alleged by grounds 1(a), 2 and 7 of the petition. It is a scenario that is not expressly included in either Sections 215(3)(a) or (b) of the Organic Law. It follows, in our view, that the two matters set out at the end of Section 215(3) do not apply to it. Mr Sheppard suggested that this would be an absurd interpretation of Section 215(3) as it would amount to reading in to Section 215 matters that are not expressly provided for. We do not agree. Interpreting the requirements of scenario B in the above manner is entirely consistent with the scheme of Section 215, which encompasses six separate scenarios and treats as the most serious the actual or attempted commission of an offence of bribery or undue influence by a candidate. The next most serious scenario is where such an offence is actually or attempted to be committed by some other person with the candidate's knowledge or authority.
23. This way of interpreting Section 215 is not new. In Karo v Kidu [1997] PNGLR 28 Injia J, as he then was, held:

The effect of Section 215(1) & (3) is as follows. An election will be voided for illegal practices of bribery or undue influence (or attempted bribery or attempted undue influence) committed by the winning candidate. In such case, it is not necessary for the petitioner to show that the result of the election was likely to be affected. Likewise, under s 215(3)(a), an election may be voided for bribery or undue influence (or an attempt thereof) committed by a person other than a winning candidate with the knowledge or authority of the winning candidate, in which case, it is also not necessary for the petitioner to show the likelihood of the election being affected. An election may be declared void if the bribery or undue influence (or an attempt thereof) is committed by a person other than the winning candidate, but without the knowledge or other authority of the winning candidate provided the Court is satisfied that the result of the election was likely to be affected. [Emphasis added.]

24. We consider that that is the correct way of interpreting Section 215, subject to our noting that it is also not necessary, in the situation described by his Honour, which accords with what we have described as scenario B, for the petitioner to show that it is "just" that the candidate be declared not to be duly elected etc. We adopt the reasoning of Sir Salamo Injia in Karo v Kidu and decline to follow the different approach that appears to be been taken in Amet v Yama, which we respectfully consider is not consistent with the words or intention of Section 215.

(Underlining ours)

35. Section 103 of the Criminal Code defines the offence of bribery which must be read together with s 215(1) and (3) of the Organic Law. It reads:
    

`

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.

36. It is established law in this jurisdiction that a petition based on bribery must properly plead the essential elements of the offence of bribery alleged (Paru Aihi v Peter Isoaimo (2013) SC1276; Waranake v Manu (2018) N7346). This includes:
    1. Date when the offence was committed;
    2. Name of the offender;
    100. Name of the person bribed;
    4. The person bribed was an elector; and
    5. The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.
    6. The winning candidate must be a ‘candidate’ at the time when an act of bribery is alleged to be committed.
       
37. The First Respondent carries the burden of proving to the satisfaction of the National Court the elements of the offence of bribery (just short of the criminal standard of beyond reasonable doubt) (John Warison v David Arore & Electoral Commission (2015) SC1418).

GROUNDS OF REVIEW

38. The grounds of review can be summarized as follows:
    1. Grounds 5(a), (d) & (e): the Trial Judge erred in mixed fact and law in upholding Allegation 2 of the Petition and found that Marcel Makuri committed the offence of bribery contrary to section 103 (1)(iii) of the Criminal Code and that it was done with the knowledge and authority of the Applicant for the purpose of section 215(1) and 3(a) of the Organic Law; and that the First Respondent is deemed to have committed the offence, having done an act for the purpose of aiding Marcel Makuri to commit the offence pursuant to section 7(b) of the Criminal Code, and aided Marcel Makuri to commit the offence pursuant to section 7(c) of the Criminal Code.
    2. Ground 5(b): the Trial judge fell into an error of mixed fact and law in finding that on 8 May 2022 the Applicant announced at a public gathering of several villages at Delena that he would deliver a dinghy to the Marehau Fishing Groups and that on 20 June 2022, the Applicant conducted a rally at Delena Village at which Marcel’s wife said publicly to the First Respondent: “I thank you, Honourable Member, for giving us, me and my husband, the dinghy. On behalf of Delena people we would like to thank you for the purchase. You will have the numbers during the voting”;
    100. Ground 5(c): the Trial judge fell into an error of mixed fact and law in finding, against the weight of the evidence, that Marcel Makuri orchestrated the delivery of the boat to Delena Village on 13 June 2022 with the intention of inducing the electors among his clansmen, their families and other villagers present on that day, to vote for the First Respondent, whether by giving the First Respondent their first, second or third preference;
    4. Ground 5(f): the Trial Judge erred in law in ordering that the Second Respondent shall conduct a by-election pursuant to section 212(3) of the Organic Law.

CONSIDERATION OF GROUNDS OF REVIEW

Grounds 5(a), (d) and (e)

39. We agree with the Applicant’s submission that it is convenient and appropriate to consider Grounds 5(a), (d) and (e) together as argued before us given that they raise a common issue.
    
40. No objection was taken with that approach by Counsel for the First Respondent at the hearing of the appeal notwithstanding his separate consideration of each ground of the appeal in his written submissions filed 19 February 2024.

The submissions of the Applicant

41. It is submitted on behalf of the Applicant that the primary Judge erred in mixed fact and law in:
    1. upholding Allegation 2 of the Petition;
    2. finding that Marcel Makuri committed the offence of bribery, contrary to s103(a)(iii) of the Criminal Code; and
    100. that this was done with the knowledge and authority of the Applicant for the purpose of s 215(1) and 3(a) of the Organic Law; and
    4. finding that s 215(3)(a) of the Organic Law extends to circumstances in which an election will be automatically voided from those where the candidate might strictly be found to ‘commit’ an offence of bribery pursuant to the strict requirements of s 7 of the Criminal Code to those where the offence is committed with the candidate’s ‘knowledge or authority’; and
    5. that the evidence also establishes that the First Respondent committed bribery contrary to s 103(a)(iii) applying s 7 of the Criminal Code, in particular s 7(b) and (c)

in circumstances where:

• the National Court’s finding on the evidence was different to the allegation pleaded in Allegation 2 of the Petition, the primary Judge thereby making a finding on the evidence that was not supported by the pleadings;
• the National Court’s findings (based on the evidence, unsupported by the pleadings) were tantamount to the National Court amending the Petition as it was a departure from what was pleaded thereby introducing a new ground in the Petition;
• Section 217 of the Organic Law does not authorise the court to make findings on the evidence unsupported by the pleadings in the Petition, nor does it provide jurisdiction to the court to make findings outside what is pleaded;
• Sections 215(1) and (3(a) of the Organic Law provide to the court two distinct and separate jurisdictions to void an election which cannot be relied upon together as sources of jurisdiction to void an election, it being one or the other.
• Section 213(3)(a) of the Organic Law does not provide jurisdiction to the court to automatically void an election unless the matters set out at the end of s213(3) have been pleaded and proven which was not the case here.
• The National Court’s findings were tantamount to the court amending s 215 of the Organic Law, under the guise of statutory interpretation, to ‘fill in the gap’ and extend the circumstances in which an election will be automatically void nor otherwise provided for by the wording of s 215.
• The interpretation of s 215 by the court in Karo v Kidu [1997] PNGLR 28, specifically the interpretation of s 215(1) giving rise to Scenario B adopted and applied in Fairweather is wrong in law and cannot stand where:
  • the court did not interpret s 215(1) in view of its fair and liberal meaning;
  • erred in interpreting s 215(1) and 215(3) together; and
  • did not refer to the principes applicable in constitutional interpretation when interpreting the provision of s 215.
• It is submitted that in finding as the Court did in Fairweather that s 215(1) provides for voiding an election in instances where bribery or undue influence was committed or attempted by someone other than the candidate with the knowledge or authority of the candidate (that is Scenario B) is tantamount to the Court ‘legislating by judicial act under the guise of statutory interpretation’, the applicant relying upon the authority of In re Reference to Constitution section 19(1) by East Sepik Provincial Executive [201] PGSC 41; SC1154 per Injia CJ at [9].
• Section 7 of the Criminal Code is not applicable when:
  • Allegation 2 as pleaded in the Petition does not plead that the act of bribery by Marcel Makuri was done with the authority or knowledge of the Applicant.
  • there was no foundation in the Petition pleading for a finding that the Applicant was guilty of bribery and no foundation in the pleadings for the material facts/elements of s 7(1)(b) or (c) of the Criminal Code (as there are elements required to be satisfied for the First Respondent to establish the Applicant’s liability pursuant to s 7).
    

42. In our view the material issues that arise on the submissions on behalf of the Applicant can be conveniently summarised as follows:
    1. Was the finding of the primary Judge with respect to Allegation 2 different and contrary to Allegation 2 as pleaded in the petition?
    2. If so and as a consequence, were the findings of the primary Judge tantamount to the National Court amending the petition as it was a departure from what was pleaded and introduced a new ground in the petition?
    100. Did the primary Judge err in relying on s 215(1) and 3(a) of the Organic Law by applying them together?
    4. Was there a foundation in the petition pleading to establish the applicant’s liability under s 7 of the Criminal Code?

The submissions on behalf of the First Respondent

43. It is convenient at this juncture to outline and deal with preliminary competency matters raised by the First Respondent.
    
44. It is contended by the First Respondent that the Application to Review is incompetent as offending Order 5 Rule 19(c) of the SCR in that each ground has sub-paragraphs which further expand on the issues and seem to then raise other issues of law and fact.
    
45. We are not persuaded by this submission. We find that the requirements of Order 5 Rule 19(c) have been met by the Applicant, that rule in these terms:

.....

(c) state briefly but specifically the grounds relied upon in support of the review

.....

46. Whilst the grounds of review can be described as fulsome we are satisfied that the applicant has complied with this requirement (see [5] of the Application for Review). No authority was advanced to support the proposition that a ground of review should not have sub-paragraphs which further expand on the issues raised. Nor do the submissions made assist the court in understanding how combining several substantive issues under the one heading in Ground 5(a) either in itself or by reason of purported convolution offends the relevant rule such as to render the application incompetent where the requirement to specify the grounds relied upon does not define the word ‘briefly’ or the word ‘specifically’ or prohibit formatting by sub-paragraphs nor require thematic consistency.
    
47. Nor are we able to conclude as submitted that:
    1. Grounds (a), (b), (c) do not raise either an important point of law that is not without merit or that a substantive injustice is manifested from these grounds; and
    2. Grounds 5(a), (c), (d) and (e) further offend Order 5 Rule 19(c) in that the grounds are inter alia general, vague, convoluted and/or do not demonstrate why the judgment is wrong in law. We are satisfied that on a plain reading of the grounds they are logical and coherent, the careful submissions on behalf of both parties suggesting that the issues, including the points of law, raised on behalf of the Plaintiff are not only discernible and well understood but are important points of law that are not without merit.
       
48. The submissions on behalf of the First Respondent with respect to the substantive grounds of review can next be summarised as follows.
    
49. With respect to the submission that the primary Judge made findings different to the allegations/grounds pleaded in Allegation 2 of the Petition it is submitted on behalf of the First Respondent that:
    1. The facts pleaded in the Petition sufficiently connected the Applicant to the offence of bribery and put him on notice that the offence was one committed with his knowledge and authority. The primary Judge was not required to strictly find the evidence according to the facts pleaded as not all facts can be pleaded and s 208(a) of the Organic Law only requires the facts relied upon to invalidate an election, the primary Judge correctly finding at [62] of the judgment that

The purpose of pleadings is ‘to do justice between the parties according to law’ and to put the defendant on notice as to the claim to be met: see Sahele v Katogo (2021) SC2129 at [17] to [22]...

2. The essential elements of the defence of bribery were pleaded in Allegation 2 and the evidence demonstrated that bribery had been committed by Marcel Makuri with the consent and knowledge of the Applicant as:
   1. Marcel Makuri (offender) was the campaign manager of the Applicant and the Applicant was the candidate.
   2. The boat was taken by Marcel Makuri to the Delena Village (place of offence) on 12 June 2022 (date of offence) during the campaign period and was met by the clansmen to a rousing welcome.
   3. He was given the boat (bribe offered) by the Applicant and his agents.
   4. The Applicant induced and procured the votes of the electors of Delena village including that of Kila Ume and Ali Midian (persons bribed) by the donation of the boat.
   5. The Applicant gave Marcel Makuri K200 to purchase zoom to take the boat home (evidence of Applicant at trial).

100. The Applicant at all material times knew and was defending the allegation of bribery.

4. The trial Judge correctly found that the Petition did not expressly state that the bribery was done with the First Respondent’s knowledge or authority but it was sufficiently clear on the face of the allegations and the weight of the evidence entirely satisfied that it was. These findings give effect to s 217 of the Organic Law, the application of which provides that the National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, such that this Court should not lay down the strict rule that the evidence and the pleadings must be the same or almost identical. It is submitted that s 217 is a procedural provision that frees up the court to inform itself of the best way it can of the factual situation with which it is dealing, focus on the substantive and important issues of the case and determine the merits of those issued without pre-occupying itself with procedural issues as to whether the evidence conforms strictly to the pleadings. (Daniel Bali Tulapi v Aiya James Yapa (2013) N5323 (Tulapi).
   

50. With respect to the contention that in upholding Allegation 2 the primary Judge amended the pleading it is submitted that it was open to the trial Judge to make findings based on the evidence, the court’s findings consistent with and upholding the allegation of bribery made on the pleadings. It would have been an amendment of the pleadings if the primary Judge made a finding of an allegation of undue influence or illegal practice.
    
51. With respect to the application of s 215 (1) and 3(a) of the Organic Law and s103(1)(ii) of the Criminal Code it is submitted that:
    1. The Applicant’s submission is misconceived in that s 215(3) can only be relevant once a person is found to have committed bribery. It is in that context, both these provisions can be relevant. Section 215(1) can stand on its own, however for the former to prevail both provisions are relevant.
    2. The trial Judge’s conclusion at [148] of her decision that she was entirely satisfied that this was done both with the knowledge and authority of the First Respondent for the purposes of s 215(1) and (3)(a) of the Organic Law’ and that the ‘evidence excludes any other rational inference’, were taken out of context, the Judge making no specific finding on s 215(a) of the Code, her words clear, namely “... for the purposes of s 215(1) and (3(a)...”, both provisions making reference to bribery. Her words must be seen in the context of her entire judgment where she was clear in finding the Applicant guilty of committing bribery since he knew and authorised Marcel Makuri to take the dinghy home to the clan. A reading of the whole decision clearly shows the primary Judge found the Applicant liable under s 215(3)(a) of the Code.
    100. It was not necessary for the First Respondent to plead or establish that the result would likely not be affected unless the bribery was committed or attempted by someone other than candidate without the knowledge or authority of the candidate.
         
52. With respect to the finding that the trial Judge erred in finding the offence of bribery was committed with the knowledge and authority of the applicant, it is submitted the pleading under Allegation 2 sufficiently established or connected the applicant to the offence of bribery and put him on notice that he was the person who gave the dinghy and outboard motor to Marcel Makuri to deliver to the Delena Villagers including Kila Ume and Ali Midian who were electors and they felt obligated to vote for him or that he had knowledge or authorise Marcel Makuri to deliver the boat the villagers of Delena and induced them to vote for him.

The submissions of the Second Respondent

53. Counsel for the Second Respondent did not file written submissions, however supported the submissions on behalf of the Applicant.
    

Discussion

54. In our respectful view, the critical issue to be considered here is whether the Petition set out the material or relevant facts which would constitute a ground or grounds on which an election or return could be invalidated. Put another way, did the primary Judge err in upholding Allegation 2 based on the evidence where the pleadings in Allegation 2 did not support the evidence or the court’s findings, the pleadings failing to put the Applicant on notice as to the claim to be met? If we find in favour of the Applicant on this critical issue, it will not be necessary for us to consider the other issues arising from review grounds 5 (b), (c) & (f).
    
55. It is helpful at the outset to frame our discussion on that issue against the background of relevant legal principle.
    
56. It is settled law, and indeed fundamental to our adversarial system of justice, that the parties should clearly identify the issues in dispute at the outset of the case through their pleadings. This is to ensure that the scope of the dispute is defined, and each party has an understanding of the case they are required to meet and the opportunity to respond to the points made by the other. It is then the function of the Judge to adjudicate on those issues alone. While this may, in some cases, lead to the unattractive outcome of a Judge then rejecting a claim on the basis advanced, even if, in his or her opinion, the claim would have succeeded if it had been advanced differently, the starting point must always be the pleadings. Any other approach can result in uncertainty, inefficiency and, importantly, unfairness (Al-Medenni v Mars UK Limited [2005] EWCA Civ 1041 per Dyson LJ at [21]-[22]).
    
57. The requirement to plead the facts disclosing a ground for a nullification of an election outcome finds voice in the provisions of ss 208(a) and 210 of the Organic Law.
    
58. A respondent, on notice of the claim to be met, is then required to respond to what is pleaded by the petitioner.
    
59. The principles governing pleading of the facts under s 208(a) of the Organic Law were set out in the leading case of Holloway v Invarto [1988] PNGLR 99 where Kapi DCJ (Los & Hinchliffe JJ agreeing) said:

The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.

....

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.

60. The principle that it is the pleadings that drive the evidence and not vice versa was reiterated in Powi v Kaku [2022] PGSC 101; SC2290 (Powi) (Kandakasi DCJ, Yagi J, Makail J dissenting) where Kandakasi DCJ said at [30]:

..... it is settled law that the duty is always on the party to plead their respective cases. A plaintiff or a petitioner pleads the basis for his or her claim and a defendant or respondent responds to what is pleaded against him or her. A court or a judge as an independent umpire, cannot enter the field of play and go outside the cause or defence and or response pleaded by the parties unless the parties themselves mutually invite the court to do so. For the moment a judge steps into the position of party, that judge will lose his or her position as an independent and impartial umpire and his or her decision will be open for quashing or a set aside on appeal or review. This is most basic yet a fundamental component or feature in our system of justice. This court explained this important fundamental feature in its decision initially in the matter of The State v Transferees (2015) SC1451 (per Sakora, Gavara-Nanu and Ipang JJ) on appeal.....The subsequent 5-member decision in The State v Tomate & Ors (2021) SC2132 (per Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ).....reiterated the importance of the principle......the principle applies to all cases in which a judge is to preside and determine the issues presented.

61. Whilst His Honour went on to observe at [38] that it is not unusual in our jurisdiction for a ‘trial judge to venture outside what is pleaded in ordinary civil and criminal jurisdiction’, that should only happen in cases where there is no complete departure from that which is pleaded and which forms the basis for a petition or a case. Such departures are permissible and allowed through appropriate simple amendments. However, departures are not permissible where an amendment would bring in a new ground or a foundation for a claim or a petition.
    
62. The duty to properly plead and fully particularise the issues to be met, to enable the respondent to prepare an adequate response, is heightened when the allegation is of a serious nature, as is the case here. It is trite to observe that bribery is a most serious allegation.
    
63. In election cases it is the petitioner who bears the onus of proof, an onus that must be discharged to the entire satisfaction of the Court. This is necessitated by the seriousness of challenging the wishes of the majority (Powi at [33]; Peter Waranaka v Gabriel Dusava (2009) SC980 cited and approved in Powi at [15]).
    
64. Turning to the present case Allegation 2 in the Petition is pleaded in the following terms:

B: THE FACTS the Petitioner relies on to invalidate the return of the First Respondent are set out:

...

Allegation No. 2

13. On 13th June 2022 during the campaign period Marcel Makuri returned to Delena village with Ume Luke (skipper), Josiah Ume, Andrew Marcel, Gima Luke and Morea Gima with a dinghy and a 40 hp Yamaha outboard motor engine the First Respondent purchased.
14. At about 8:30pm that night, the named persons arrived at the village with the items to a rousing welcome from the villagers who gathered in the night to witness it. Kila Ume and Ali Midian who were both electors from the village were present that night with a group of less than 100 villagers to witness the event.
15. Marcel Makuri and his travelling group informed the villagers that the new dinghy and the motor was given by the First Respondent.
16. Marcel Makuri was First Respondent’s campaign chairman in Delena village. He was an elector of the village. Because of him receiving the boat, he voted for the First Respondent.
17. The release of the dinghies and 40 hp Yamaha outboard motor engine were to induce and procure votes from the electors in the village to vote for the First Respondent and to return him as the winning candidate for the electorate at the election...

...

C: THE GROUNDS upon which the Petitioner relies are:

Allegation No. 2 – Bribery at Delena Village, Kairuku LLG Area, Central Province.

34. During the campaign period on 13th June 2022 Marcel Makuri of Delena village took a dinghy with a 40 hp outboard motor engine to the village which was purchased by the First Respondent.
35. Marcel Makuri was First Respondent’s campaign chairman in Delena village. He was an elector of the village. He was an elector for the village. Because of him receiving the boat, he voted for the First Respondent.
36. It is alleged that the release of the dinghies and 40 hp Yamaha outboard motor engine were to induce and procure votes from the electors in the village to vote for the First Respondent and to return him as the winning candidate for the electorate at the election. As a consequence the village electors voted for the First Respondent and returned him at the election.
37. These actions by the First Respondent were contrary to Section 103 (a)(i) and (iii) and section 103 (d) of the Criminal Code and Section 215 (1) of the (Organic Law). ...
65. We set out again at this juncture for convenience the relevant findings of the primary Judge which are found at [154]-[156] of the judgment:
    154. In conclusion, I am entirely satisfied that the offence committed by Marcel Makuri contrary to s 103(a)(iii) was committed with both the knowledge and authority of the First Respondent pursuant to ss 215(1) and (3)(a) of the Organic Law. The First Respondent knew that Marcel intended to take the boat to Delena in the middle of the election campaign, with the intention of offering to give or confer to his clansmen, their families and any other villagers who witnessed his arrival, the use and benefit of the boat, in order to induce any person, namely those amongst them who were electors, to endeavour to procure his (the First Respondent’s) return at the election, or in order to procure their vote for him, at the upcoming election. Furthermore, the First Respondent authorised the conduct by giving Marcel money to purchase fuel for that purpose.
    155. In my view, s 215(3)(a) extends the circumstances in which an election will be automatically voided from those where the candidate might strictly be found to “commit” an offence of bribery pursuant to the strict requirements of s 7 of the Criminal Code to those where the offence is committed with the candidate’s “knowledge or authority”: Simeon Kibeto v Saki Hacky Soloma (2023) N10173 at [30].

156. The evidence in this case, however, also establishes that the First Respondent committed bribery contrary to s 103(a)(iii) applying s 7 of the Criminal Code, in particular s 7(b) and (c).

...

161. To establish liability pursuant to s 7(1)(c) of the Criminal Code the petitioner must establish to the entire satisfaction of the court that: a) the offence was committed; b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and c) the candidate intentionally aided (assisted or encouraged) that person to commit the offence: Banaso at [97].

162. To establish liability pursuant to s. 7(1)(b) of the Criminal Code the petitioner must establish beyond reasonable doubt that: (a) the offence was committed; (b) the candidate knew the essential facts constituting the offence, including where relevant the state of mind of the person who committed the offence; and (c) the candidate did or omitted to do any act for the purpose of, or with the intention of, enabling or aiding that person to commit the offence, even if those acts or omissions did not in fact assist: Banaso at [109].

163. As above, the evidence establishes that Marcel committed the offence of bribery contrary to s 103(a)(iii) of the Criminal Code. I am entirely satisfied that the First Respondent knew the essential facts constituting the offence, including Marcel’s intention, and that he intentionally aided Marcel to commit the offence, by giving him the money to bring the boat to Delena on or about 13 June 2022, for the purpose of s 7(1)(b) of the Criminal Code. For similar reasons the giving of the money was an act done with the intention of enabling or aiding Marcel to commit the offence for the purpose of s 7(1)(c) of the Criminal Code.”

66. From the pleadings it is clear the First Respondent is alleging that the Applicant committed the (direct) bribery of an elector (Marcel Makuri) contrary to s.103(a) (i) and (iii) of the Criminal Code, such that his election should be nullified pursuant to s 215(1) of the Organic Law.
    
67. It is a conclusion supported by the evidence he led at trial in the form of the witness affidavits, the examination-in-chief of his witnesses, the cross-examination of the Applicant’s witnesses and written submissions before the primary Judge which concluded as follows:^[1]
    
    176. The First Respondent is guilty of committing bribery under s 103(i) and (iii) of the Code.
    177. The First Respondent’s return as a member elect following the election of the Kairuku Open electorate seat in the 2022 NGE must be declared void pursuant to s 215(1) of the Organic Law.
         
68. It was that allegation, as framed in Allegation 2 of the Petition, to which the Applicant responded by his evidence consisting of his own witness affidavits, the examination-in-chief of his witness, the cross-examination of the First Respondent’s witness and written submissions all of which sought to make the case disproving the elements that constituted the offence as alleged in Allegation 2, namely that the Applicant committed (direct) bribery of an elector (Marcel Makuri) contrary to s 103(a) (i)) and (iii) of the Criminal Code.
    
69. We are unable to conclude that the facts pleaded in the Petition sufficiently connected the Applicant to the offence of bribery and put him on notice that the offence of bribery was committed with his knowledge and authority. We find that the omission to plead “with the knowledge and authority of the Applicant’’ fell short of meeting the requirement to plead all the material and relevant ‘facts’ under s 208(a) of the Organic Law (Manse v Poyle [2009] PGNC101; N371). It was an omission that cannot be viewed as importing into s 208(a) “words or phrases’’ that do not belong (incorrectly cited as Semri v Duangha without reference at [94] of the First Respondent’s written submissions), rather an essential part of the requirement of s 208(a) to “set out the facts relied on to invalidate the election....” .
70. In finding that Marcel Makuri committed the offence of bribery and that it was done with the knowledge and authority of the Applicant for the purpose of s 215(1) and 3(a) of the Organic Law and that the Applicant was deemed to have committed the offence for the purpose of aiding Marcel Makuri to commit the offence pursuant to s 7(b) of the Criminal Code and having aided Marcel Makuri, the primary Judge erred because:
    1. It was a finding different and contrary to Allegation 2 as pleaded in the Petition.
    2. It was a finding unsupported on the evidence, the evidence adduced in the National Court not establishing that the new dinghy and the motor was given by the Applicant with the intention of procuring the votes of Marcel Makuri and the other electors in Delena Village, including Kila Ume and Ali Midian as pleaded.
    100. It was a finding tantamount to the National Court amending the Petition by introducing a new ground in the Petition, a circumstance not open to the First Respondent where there is no right to amend a petition after the 40 day time-limit has lapsed, the National Court having no power to make such an amendment under the Organic Law (Tulapi v Luta [2000] PNGLR 120 at [7] & [8]; Powi at [38]-[40]).
    4. It did not present as a minor correction or change by the primary Judge to a ground in the Petition such as could be viewed as permissible (Delba Biri v John Ninkama [1992] PNGLR 342; Powi (supra) at [38]-[40]).
       
71. We are unable to conclude that s 217 of the Organic Law as applied afforded the learned primary Judge assistance given the nature of the pleading deficiency. Whilst the court in Tulapi noted at [10] that s 217 provides a level of procedural freedom to the court to make up its mind according to its own conceptions of equity and good conscience and as to what is reasonable, right and fair in the circumstances of the case before it, it does not allow the court to act other than within the bounds of the allegations presented and the evidentiary foundation to support it.
    
72. In Powi at [58] Kandakasi DCJ said:

....The call for the National Court to be ‘guided by the substantial merits and good conscious of each case without regard to legal forms or technicalities or whether the evidence is before it in accordance with the law of evidence or not’ is a call to do just within the allegations presented by a petitioner in a petition given the equally important provisions of s 208 and 210 of the Organic Law. The call by s 217 is not in my humble view a call for a judge to venture out and decide to upset an election on a ground that was not alleged or pleaded by a petitioner, responded to by the respondents and the court has decided to assume jurisdiction and hear and determine after the completion of preliminaries such as any objections to competency as was the case here. The moment a court does that, it would be stepping into the role of petitioner outside the 40 days limit under s 208(e) of the Organic Law, take the respondents by surprise, deny them natural justice from the beginning of the petition process sup to the point of the court’s final decision. Such an act would be unjust, unfair, unacceptable and cannot be permitted within our system of justice.

73. We acknowledge the wide discretion under s 217 to correct an injustice that may have occurred in an election petition and we respectfully agree with the Supreme Court in William Hagahuno v Johnson Tuke & Electoral Commission [2020] PGSC 105; SC2018 (Hagahuno), referred to us on the submissions of the First Defendant, where that court implored judges to be less legalistic in their approach when dealing with election petitions by adopting ‘a more liberal approach to the raising of technical objection to petition’ (Hagahuno at [34]). However, the matter before us does not suggest inconsequential or technical error, nor one that suggests ‘a matter of style rather than substance’ which, in our respectful view, was the point Makail J was making in Hagahuno at [186]. Further the issue of authority and knowledge cannot be viewed as one with no material connection or significance to the substantive issue of bribery or one with no impact on the outcome of the case (Tulapi at [14]).
    
74. We are unable to conclude that the pleading under Allegation 2 sufficiently established or connected the applicant to the offence of bribery and put him on notice that he had knowledge or had authorised Marcel Makuri to deliver the boat to the villages of Delena and induced them to vote for him. In failing to do so, as earlier noted, the Petition as pleaded fell short of meeting the requirement to plead ‘facts relied on to invalidate the election or return’ under s 208(a) of the Organic Law.
    
75. It was a pleading deficiency not remedied, for example, by the evidence of the Applicant and his witness Marcel Makuri that the Applicant gave him K200 to purchase zoom to take the dinghy to his village or the Applicant’s admission that he selected Marcel Makuri, his campaign manager, to receive the boat donated to his electorate by the National Fisheries Authority.
    
76. With respect to the application and interpretation of s 215 of the Organic Law, given the findings we have made on the pleadings, it is not necessary to engage with the submissions made on behalf of the Applicant and First Respondent.
    
77. Whether or not the primary Judge fell into error in the interpretation and application of s 215 for the reasons submitted on behalf of the Applicant or whether she did not for the reasons submitted on behalf of the First Respondent, matters not, as there was no evidentiary foundation for a relief to be granted under s 215(3) in the pleading in the Petition to base a finding that the election could be voided. This is because the Petition did not plead:
    1. the act of bribery by Marcel Makuri was done with the knowledge and authority of the applicant (Amet v Yama (2010) SC1064 at [49]), such that it was then open to the learned primary Judge to find that the requirements of s 215(3) were met;
    2. the result of the election was likely to be affected by the illegal practice allegedly committed by Marcel Makuri and it was just that the Applicant should be declared not to be duly elected or that the election should be declared void (Amet v Yama (supra) at [49]; Okuk v Nikare [1983] PNGLR 2 quoted with approval in Amet v Yama (supra) at [51]; Philip Kikula v Electoral Commission [2013] SC1295; Karani v Silpua (2003) N2385; Kubak v Trawen (2012) N4992).
78. With respect to the findings of the primary Judge under s 7 of the Criminal Code it is further submitted on behalf of the Applicant that the findings of the primary Judge were not supported where:
    1. Allegation 2 as pleaded in the Petition does not plead that the act of bribery by Marcel Makuri was done with the authority and knowledge of the applicant; and
    2. The elements of s 7(1)(b) or (c) of the Criminal Code required to satisfy the Applicant’s liability were not grounded in the Petition pleading.
79. For the reasons earlier discussed we accept this submission.
    
80. The learned primary Judge erred in finding the Applicant guilty of bribery pursuant to s 7 of the Criminal Code as there was no foundation in the pleadings of the material facts and elements referred to by the primary Judge to ground liability under s 7 of the Criminal Code, namely that the Applicant knew Marcel’s intention and intentionally aided Marcel to commit the offence.
    
81. For the above reasons Grounds 5(a), (d) and (e) are upheld as we are convinced, they are clear legal grounds to disturb or overturn the decision of the primary Judge.
    

CONCLUSION AND ORDERS

82. Having so found it is not necessary to consider the remaining grounds of review.
    
83. We make the following orders:
    1. The Applicant’s application for review filed 3 November 2023 is granted.
    2. The National Court decision in Aihi v Isoaimo [2023] PGNC 282; N10368 (29 June 2023) is quashed in its entirety.
    100. The declaration of Peter Namea Isoaimo as the winning candidate for Kairiku Open Electorate seat on 30^th July 2022 by the returning officer, Henry Oa is affirmed.
    4. Costs of this review to be borne by the First Respondent on a party and party basis as agreed or as taxed.
    5. Time for entry of these orders shall be abridged to the date of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
G. Kult: Lawyers for the Applicant
Wang Dee Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent

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^[1] Review Book 1 Tab 38 page 400