Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Niningi v Electoral Commission of Papua New Guinea [2013] PGNC 122; N5322 (9 August 2013)

N5322

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

E.P NO 55 OF 2012

BETWEEN:

PILA NINIGI
Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

FRANCIS AWESA
Second Respondent

Mt Hagen: Injia CJ
2013: 5, 6, 8 & 9 August

ELECTION PETITION – Objection to competency – Pleading essential facts- Errors and Omissions – Bribery of electoral officials committed by successful candidate – Failure to comply with mandatory requirements of Organic Law on National and Local-Level Government Elections - s 208 (a) in conjunction with s 215 (1) & s218; and s 103(a)(iii) of the Criminal Code – Petition dismissed.

Cases cited:

Papua New Guinea Cases

Abal v Ganim, Unpublished National Court Judgment in EP 61 of 2012 dated 16 July 2013
Amet v Yama (2010) SC1064
Kopaol v Embel (2003) SC 727
Kopaol v Embel (2008) N3319
Wingti v Olga, Unpublished National Court Judgment in EP 55 of 2007 per Cannings J (March 2008)
Kikala v Electoral Commission (2013) N4960
Manase v Polye (2008) N3534
Mune v Agiru (1998) SC590
Nomane v Mori (2013) SC1242
Parkop v Vele (No 3) (2007) N3322
Phillip Kikala v Mangape & Electoral Commission, Unpublished Supreme Court judgment in SC Rev (EP) No 11 of 2013 dated 15 March 2013
Tulapi v Lagea & Ors (2013) N 4934
Wingti v Olga, Unpublished National Court judgment in EP 55 of 2007, per Cannings J (March 2008)

Overseas Cases

Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665

Counsel:

F Kennedy, for the Petitioner
H Viogo, for the First Respondent
I Molloy, for the Second Respondent

RULING
9 August, 2013

1. INJIA CJ: The election petition in this matter concerns the election of the Second Respondent (Mr Awesa) as the duly elected member for Imbongu Open in the 2012 General Elections. The first respondent (EC) challenges the petition's competency by way of a Notice of Objection to Competency of the Petition (competency objection). I received submissions of counsel, oral and written, on 5th, 6th & 8th August 2013 and reserved my ruling to today which I now deliver.

2. The hearing on the preliminary objection was conducted in two stages. Full arguments were made on 5th and 6th August 2013 after which I reserved my ruling to the 7th. In the course of my deliberations, I identified two matters which were not raised and argued before me that I considered relevant and raised them with counsel on the 7th when the Court reconvened. Those relate to the relevance of OLNE, s 153A and factual pleadings to support the application of that provision; and the grounds in the petition regarding breach of s 50 (1)(d) of the Constitution. Those matters were raised as competency matters which goes to procedural jurisdiction, that can be raised at any stage of the proceedings, by the Court of its own motion under the principles enunciated by the Supreme Court in Amet v Yama (2010) SC1064. Counsel made submissions on them and those are considered in the course of my reasoning.

3. The approach adopted in judicial scrutiny of petitions under s 210 of OLNE, which I apply in this petition, is the one that I enunciated in Tulapi v Lagea & Ors (2013) N 4934, at paragraphs 16 -18. Under that approach the focus is on a holistic way in reading of the petition and focussing on fairness, essence, purpose and substance in the factual pleadings rather than form and technicalities. In developing what I termed as the third approach, the main cases that advocated two seemingly competing approaches (strict scrutiny approach and liberal approach), many of which are cited by counsel in this case, were considered.

4. The grounds of objection fall into two categories. The first category relates to two threshold issues. One with regard to whether the pleadings demonstrate the election result was affected or likely to be affected, in terms of the allowable votes assigned to candidates at the scrutiny during the primary and elimination processes that produced a winner; the winner determined by the candidate who scores 50% of the total allowable votes plus 1 vote. The other threshold issue relates to the adequacy of one of the witnesses' attestation concerning his occupation . The second category is with regard to specific issues concerning three matters – declaration of the successful candidate as the duly elected member by a Returning Officer (RO) that is duly appointed for that purpose; two disputed Ballot Boxes, one each for Lumbi and Yaria polling places; and, Bribery.

5. Counsel made extensive submissions on many issues but I direct my mind to the main and important issues that are critical to the determination of those issues. Submissions of counsel and my consideration of them are embodied in my reasoning.

Pleading the election result – winning margin

6. The essence of the facts pleaded concerning the scrutiny of votes that produced a winner must be understood as a whole. There is no question in the petition regarding scrutiny of votes from other polling places in the electorate. The central focus is two ballot boxes, one each from Lumbi and Yaria polling places (Lumbi and Yaria ballot box(es)) that contained the decisive number of votes required to determine the winner or runner-up between Mr Awesa and Mr Niningi (the petitioner), depending on the admission or exclusion of those ballot boxes from the scrutiny. The allowable first preference votes from Lumbi and Yaria ballot boxes is the catalyst that produced the difference in votes scored by Mr Awesa and Mr Niningi at the end of the primary count and the winning margin between the same candidates at the end of the elimination process; with the winner and runner-up decided on whether or not whether the Lumbi and Yaria ballot boxes containing completed ballot papers were admitted or excluded from the scrutiny.

7. After hearing counsel on two separate hearings on the state of the factual pleadings supporting the grounds in the petition relied upon to invalidate the election, I am able to capture the essence of the facts pleaded that concern those matters.

8. Scrutiny commenced at the counting center at Momei Oval, Mendi on 29 June 2012. Mr Jeffrey Paue was the duly appointed and gazetted RO. Scrutiny commenced and continued under his superintendence until 3 July 2012 when he took leave of absence on medical grounds. In his place, EC appointed Mr Steven Tipora to continue with the scrutiny.

9. On 13 July 2012, the Lumbi and Yaria ballot boxes were produced in the counting room for scrutiny. It is pleaded that those boxes were high-jacked at the respective polling places by unidentified voters during a fight that broke out between voters, the ballot boxes taken away and they mysteriously re-appeared at the counting center. The boxes were damaged showing interference with the ballot boxes.

10. A ballot box may be disputed by a scrutineer or a polling official. There is no pleading with regard to whether any scrutineer or polling official disputed the two ballot boxes before RO Tipora. There is no pleadings as to the grounds on which they were disputed and the steps taken by the Returning Officer to seek an explanation from the Presiding (President) Officer or polling officials for Lumbi and Yaria or any scrutineer from those polling places to respond to those grounds of objection. All that is pleaded is that Mr Tipora "did make a decision not to admit the ballot boxes for scrutiny" (paragraph 23 of the Petition). It is pleaded that Mr Tipora set out his decision in a letter he wrote to EC and copied to all candidates, but it is not pleaded the reasons for his decision, if any, contained in that letter. After Mr Tipora's decision to exclude Lumbi and Yaria boxes, he instructed the boxes be returned to the container, suspended the counting and he together with ARO Kelma Pora and some counting officials and the majority of scrutineers, left the counting room.

11. It is alleged that on the 14 July 2012, contrary to Mr Tipora's decision, ARO Francis Akol with the assistance of Assistant Police Commissioner Jim Andrews "intentionally and in defiance of and contrary to the decision of Mr Tipora of 13 July, did admit for scrutiny the ballot boxes from Lumbi and Yaria". Mr Kevin Paka, scrutineer for Mr Niningi, raised strong objections, but despite that, the ballot boxes were admitted for scrutiny. It is not pleaded what the grounds of objection were and how the boxes were cleared for counting. It is not pleaded why Mr Akol made that decision. It is pleaded that Mr Akol's decision was contrary to s OLNE, s 153A, in that he had no authority to change Mr Tipora's decision; the decision could only be challenged by way of a petition filed in the National Court.

12. The Lumbi and Yaria boxes, it is clear from the pleading, were the last ballot boxes counted in the primary count. The result was that Mr Awesa scored 1,584 votes from Lumbi (count No 77) and 1,696 votes from Yaria (count No 78) which placed him on first place with 13,854 votes; and, the petitioner who scored 3 votes from Lumbi and 3 votes from Yaria running in second place with 12,423 votes.

13. On 17 July 2012, during the elimination process, Mr Tipora announced that he would remove the Lumbi and Yaria votes from the vote tally. The pleadings do not show why he made that intention known.

14. On 18 July Mr Tipora was arrested and detained by police for several hours and as a result, the votes from Lumbi and Yaria boxes were not removed. It is alleged Mr Tipora's detention was purposefully done to prevent him from removing the Lumbi and Yaria votes from the votes tally. The incident became the subject of a National Court proceeding which attracted interim restraining orders against the policemen involved.

15. By letter dated 18 July 2012, EC Commissioner Andrew Trawen wrote to Mr Richard Kundapen and advised him to take over the counting. Mr Kundapen continued with the counting.

16. On 20 July 2012, Mr Paue "advised" EC that he was resuming duties as RO.

17. On 23 July 2012, Mr Kundapen completed the elimination and declared Mr Awesa as the duly elected member with 19,919 votes. Those votes included the Lumbi and Yaria votes. However as he was not the gazetted RO, he suspended the declaration to allow Mr Paue to come in to make the declaration and sign the declaration. The Provincial Returning Officer (PRO) Joseph Timothy refused to recognize Mr Kundapen's declaration and insisted on Mr Kaue to make the declaration.

18. On 24 July, at Kimininga Motel in Mt Hagen in the presence of ARO Steven Tipora, ARO Mr Kelma Pora, ARO Mr John Pera, security personnel, a pastor, a women representative and scrutineers removed from the votes tally the Lumbi and Yaria votes. There is no pleading as to why the votes were removed. Mr Paue then declared the petitioner as the duly elected member. The result was that Mr Niningi scored 23,745 votes to win the election with 23,745 votes whilst Mr Awesa came in second place with 22, 639 votes. At the time of the declaration, the EC did not advise against the declaration. The declaration was made in public and telecasted through national radio. Mr Paue wrote to the EC advising that he had not endorsed the Writ for the election of Mr Awesa.

19. On 31 July 2012, EC recognized and affirmed Mr Kundapen's declaration of Mr Awesa as the duly elected member for Imbongu. It is alleged the EC decision breached OLNE, s 175 and s 206.

20. There is no question that the allegations concerning the actions of ARO Francis Akol and Commissioner Jim Andrews and other counting officials that assisted Mr Akol amounts to irregularities, errors and omissions under s 218. I accept submissions of Mr Molloy of counsel for Mr Awesa, that under s 218, the petition must plead the material facts demonstrating the result of the election was actually affected by the errors or omissions.

21. The result of the election is determined solely by reference to the number of votes affected. That is particularly so in the circumstances of this case when the votes from Lumbi and Yaria boxes are critical to producing a winner in the election as between Mr Niningi and Mr Awesa.

22. The pleadings in the petition clearly show the significance of the Lumbi and Yaria votes. Those were first preference votes scored by Mr Awesa; they were not affected by the elimination process because Mr Awesa and Mr Niningi, the petitioner led the count from the end of the primary count to the end of the elimination process, depending on whether or not the votes from Lumbi and Yaria were included in the count. The winning margin in terms of vote numbers between them is apparent from the votes from these two boxes and those winning margins are pleaded in the petition. The minimum percentage of votes required to win under OLNE is 50% of the total allowable votes plus 1. That is a requirement of law and judicial notice is taken of it; it need not be pleaded specifically. In those circumstances, in my view, assignment of preference votes amongst different candidates in the primary count and the elimination process is unnecessary to be pleaded. The cases decided in support of the submissions made by Mr Molloy and Mr Viogo of counsel for the EC ( Manase v Polye (2008) N3534, Kikala v Electoral Commission (2013) N496, Abal v Ganim (EP 61 of 2012, 16 July 2013) can be distinguished from this case on those facts. For these reasons, I reject submissions of counsel for the respondents that the petition fails to plead the winning margin derived from the primary and elimination counts. I accept Mr Kennedy's submission on this point.

23. Following on from the above, two importance points emerge from the factual pleadings in the petition - whether the decisions made by the persons named as holding the position of RO or ARO in the form of Mr Paue, Kundapen, Mr Tipora and Mr Akol to admit or reject the Lumbi and Yaria ballot boxes or votes from them, were properly or lawfully made; and, whether the two competing declarations made by Mr Kundapen and Mr Paue were duly or lawfully made by officials possessed of lawful authority to do so. In my view, the two issues are interwoven and inseparable.

Duly Appointed Returning Officer

24. The facts pertaining to the appointment of a RO is adequately pleaded in the petition. It is alleged that Mr Paue was duly appointed by EC as the RO, by notice in the National Gazette (OLNE, s 19 (1)) and remained so up to the time he made the declaration on 23 July 2012; and that Mr Kundapen was not duly appointed.

25. That said, the provisions in OLNE that govern the appointment process for ROs and the performance of their duties under the direction and control of EC supports the respondent's arguments. Whilst s19(1) requires the appointment of RO to be done by publication of a notice in the National Gazette, that provision also gives the EC power to give any directions with regard to the performance of duties of the RO. The EC has general supervisory role over the RO including his powers under OLNE, s 153A (powers to resolve dispute over ballot box): Kopaol v Embel (2008) N3319. Such directions would be particularly relevant and appropriate in situations where the RO makes himself unavailable to perform his duties in supervising the scrutiny to its logical conclusion in the event of an emergency. The EC itself, through a person appointed for that purpose, can complete the scrutiny and declare the result of the election in his capacity as acting RO or on behalf of the EC as permitted by OLNE s175.

26. Indeed OLNE, ss 19 to 22 (inclusive) and s175 give the EC wide powers to make decisions and issue directions to ensuring that the election process and in particular the scrutiny of votes is run efficiently according to a set timetable from beginning to its logical conclusion in declaring a winner. They also provide that failure to gazette the appointment of a RO or ARO in the case of an emergency is not a ground for voiding an election. For purposes of clarity, I reproduce OLNE, ss 19 - 22 (inclusive) and s 175 in the Appendix to this judgment.

27. The pleadings in this case that the gazetted RO Mr Paue took medical leave whilst the scrutiny was in progress created an emergency to permit the EC to exercise the powers referred to. In Mr Paue' absence, EC appointed Mr Paue to take over the counting, as acting RO. He would have been no doubt instructed to continue with the counting and in the process make a decision to resolve conflicting decisions by AROs Tipora and ARO Akol on the Lumbi and Yaria ballot boxes. He completed the scrutiny and declared a winner publicly at the Imbongu counting center. Mr Paue re-appeared after the conclusion of the scrutiny and after a winner had been declared by Mr Kundapen and made a decision to remove votes from Lumbi and Yaria boxes and made a declaration based on information that he was not privy to, a declaration made not at the counting center in the province where scrutiny was conducted but in a private hotel in another province. The situation provided the ideal recipe for the EC to recognize the first declaration made by Mr Kundapen as acting RO. It can also be said that Mr Kundapen made the declaration as ARO or alternatively, on behalf of EC, a situation that falls under both situations provided for under s175 (1).

28. It is for these reasons that I do not consider the issue of whether the declaration was made by the duly appointed RO to be a critical point that warrants a trial on that issue. The only critical and determinative point is whether the decision to admit or reject the Lumbi and Yaria ballot boxes or the votes contained therein were properly or lawfully made, and whether the essential and material facts pertaining to that point have been pleaded and pleaded sufficiently.

Disputed Boxes from Lumbi and Yaria

29. Central to the decisions made to declare the two candidates is the decision to reject or admit the Lumbi and Yaria votes. The votes contained in the Lumbi and Yaria boxes respectively were the subject of dispute at the scrutiny conducted under the superintendence of Acting RO Tipora and Acting RO Francis Akol.

30. Resolution of questions concerning admission or exclusion of disputed ballot box is addressed in OLNE, s 153A and OLNE Regulations, s 90.

31. OLNE, s153A is in the following terms:

"153A. Excluding ballot-box from scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:—

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way

of petition."

31. Regulations, s 90 sets out the procedure for a scrutineer to follow in lodging a formal objection in writing and for receiving comments from the Presiding officers (PO) or other polling officers concerned before RO makes his decision.

32. OLNE, 153A and OLNE Regulations, s 90 set out, in mandatory terms, an elaborate and almost exhaustive formal process to be followed before a RO makes his decision: Kopaol v Embel (2008) N3319. When a scrutineer or polling officer objects to a ballot box being admitted for scrutiny, the RO is duty-bound to document the objection and grounds for objection, record the decision-making process that involve giving the scrutineers and polling officials affected by the objection an opportunity to comment or give an explanation on the grounds of the objection; and, not only the decision but also the reasons for decision: EP 55 of 2007, Wingti v Olga, per Cannings J (March 2008).

33. If those procedural requirements are not followed by a RO, it constitutes a breach of statutory duty that clearly comes under errors or omissions within the terms of OLNE, s 218. A breach of s153A and Regulations, s 90 constitutes an error or omission which in turn constitutes a ground upon which an election or return may be voided, a situation that comes within the terms of s 208 (a). Section 208 (a) read in conjunction with s 153A and Regulations, s 90 requires a petition to plead the requirements of essential and material facts alongside the requirements of s 153A and Regulations. Mr Kennedy's argument that such breaches fall outside of the scope of s 218 is without merit. Mr Kennedy's argument that such breaches fall outside of the scope of s 218 is without merit.

34. The pleadings should contain a concise statement of the procedural requirements of s 153A, and s90 of the Regulations and how the procedure was applied and reasons why the petitioner is aggrieved by the decision. Whilst it is true that s 208 (a) requires facts to be pleaded to support a ground for voiding an election or return, that ground derives its source from the provisions of the Organic Law or the Constitution; and, it would be a critical omission under s208 (a) for a petition if it fails to make reference to the applicable provisions that establish that ground and relate the facts to it. There must be a connection or correlation between the facts and the legal ground relied upon to void the election, by way of pleading, to meet the mandatory requirements of s 208 (a): Holloway -v- Ivarato [1988] PNGLR 99; Mune v Agiru (1998) SC590.

35. In order for this Court to review the RO's decision to reject or admit a Ballot box from the scrutiny, the Petitioner must, in the Petition, plead the matters set out in s 153A (1),(2) & (3); coupled with a clear and concise statement as to what is wrong with the RO's decision. Those are relevant and material facts required to be pleaded in a Petition by OLNE, s 208 (a) read in conjunction with s 153A. The conduct of polling and conduct of scrutiny of votes are two distinct and separate processes and activities that takes place at different times, different places and with different electoral officials assigned to those tasks. Polling officials are not counting officials and they are not required and do not get to participate at the counting except when they are required to attend at the counting to clear their respective ballot boxes under their control and in the event of a disputed box, to supply to the RO his report or comments as required under s 153A and Regulation, s 90 (6). It is wrong and a grave mistake for a petitioner or for anyone to assume, or for this Court to be expected to assume that counting officials are or ought to be aware of what transpired at the polling place and events leading up to the time the ballot box is produced for scrutiny at the counting center, by not pleading the essential and material facts concerning those matters.

36. In the petition, the petitioner pleads what happened at the time of polling with respect to the Lumbi and Yaria boxes and how those ballot boxes were mysteriously produced for scrutiny at the counting center. The pleading in paragraph 41 of the Petition that the actions of Mr Francis Akol in admitting to scrutiny the Lumbi and Yaria ballot boxes earlier rejected by Mr Tipora breached s 153A does not cure the deficiency in the pleadings with regard to the failure to adhere to the procedure under s 153A (1) - (3) and s 90 of the Regulations by either Mr Tipora and Mr Akol and to some extent by Mr Kundapen and the EC. The pleadings in paragraph 42 (a)(iv) and (b)(4) that the ballot boxes were admitted to scrutiny despite strong objections from Mr Niningi's scrutineer Mr Kevin Paka also do not satisfy the requirements of s153A and s 90 of the Regulations. The pleading that Mr Tipora wrote to EC and candidates stating the decision that he had made also does not satisfy those requirements because the content of the letter is not pleaded to show how the decision-making process that he followed and his reasons for decision. It is clear to me from the pleadings that because the events which transpired at Lumbi and Yaria polling places and the controversy surrounding those two ballot boxes at the scrutiny attracted so much publicity, it has been assumed that the counting officials, scrutineers and candidates are well aware of or ought to be aware of those matters such that there is no need to plead those facts for purposes of s153 and s 90 of the Regulations. It has also been left to this Court to assume or infer those matters and read those matters into the petition. As Mr Kennedy argued, such matters should be inferred from reading the pleadings in the petition as a whole; or that they go to the details and those can be addressed at the trial through evidence or submissions. In my view, these omissions are critical and fatal omissions in the pleadings. They are material and essential facts that without their express pleadings in the petition, the grounds in the petition that Mr Francis Akol wrongfully and in breach of s 153A admitted the Lumbi and Yaria ballot boxes for scrutiny; and, Mr Kundapen wrongfully included them in the vote tally when he made the declaration, are not supported by factual pleadings. The Court has no authority to fill in missing essential facts and their inter- dependence on each other, to make out a case pleading-wise, for the petitioner. I am satisfied that there is no pleading or insufficient pleadings of essential and material facts as required to be pleaded under s 208 ( a) to support a ground for voiding the election under s 153A and s 90 of the Regulations and s 218.

37. For the foregoing reasons, I find Petition grounds 40 – 44 inclusive that relate to the disputed ballot boxes and votes contained therein, fail to comply with s 208 (a) in conjunction with OLNE, s 153 A, Regulations, s 90 and OLNE s 218. They are struck out for that reason.

Attestation

38. Mr Awesa takes issue with the inadequacy of the pleading of one of the witness' occupation in terms of stating his employer's address. The main purpose of stating the address and occupation of the witness is so that the witness can be easily identified and located to verify the Petition. For that reason, the information concerning address and occupation of the witness should be read as a whole to see if those matters pleaded serve that purpose. Requiring the witness to specify his employer's address is superfluous and unnecessary if the witness has provided his residential and postal address where he can be contacted and stated his occupation without reference to the name and or address of his employer. I accept Mr. Kennedy's submission that the information contained in this petition with regard to the witness in question are adequate for that purpose. I dismiss grounds 3.2 of the competency objection. I also dismiss grounds 3.1 and 3.2 of the Competency Objection as baseless and inconsistent with the law under s.208 (d). The point raised by Mr. Molloy concerning the use of the word "penal" appearing in the expression "Motor Vehicle Penal Beater" in my view is a typographical error of no material consequence.

Bribery

39. The allegations regarding bribery are found in Petition, paragraphs 35 and 44. Paragraph 35 is in the following terms:

"35. The Second Respondent came into the counting room for the Imbonggu Open Electorate at the Momei Oval Counting Centre on 23 July 2012 at around 2.00pm and publicly directed his son, Mr.Richard Awesa,who was there with him at the time, to give and he did give K20,000.00 in cash to Mr.Kundapen, Election Manager David Wakias, Assistant Police Commissioner Mr.Jim Andrews and Assistant Returning Officer Mr.Francis Akol in front of the Counting Officer, security personnel and scrutineers. Further on that day the Second Respondent asked that he be declared member elect,however, the Second Respondent was advised by Richard Kundapen and Francis Akol that he,the Second Respondent, will be declared at the central tally room within the Momei Oval Counting Center"

40. Paragraph 44 is in the following terms:

(a) The Second Respondent came into the Imbonggu Counting Center at Momei Oval on 23 July 2012 at around 2.00pm and made a commitment to give K20,000 .00 cash to Mr. Richard Kundapen, Election Manager David Wakias, Assistant Police Commissioner Jim Andrews in the presence of all the security personnel and counting officials there at the Imbonggu Counting Center at Momei Oval before he was announced as member elect. The Second Respondent further stated that his son, Mr. Richard Awesa, who was there with him at the time has the cash money of K20,000.00 and he will give the K20,000.00 cash to Mr.Kundapen, Election Manager David Wakias, Assistant Police Commissioner Jim Andrews and Assistant Returning Officer Mr. Francis Akol.

(b) On that same day in front of the Counting Officials, security personnels and scrutineers, Mr.Richard Awesa did give Mr. Kundapen cash money of K20,000.00. The said K20,000.00 was paid to the said person with the intention of inducing them to declare the Second Respondent as Member elect for the Electorate and this intention was manifested or evidenced by the fact that the Second Respondent did immediately after the said K20,000.00 was paid that day asked that he be declared member elect. The Second Respondent was not declared member elect that day but was, however, advised by Richard Kundapen and Francis Akol that he, the Second Respondent, will be declared at the central tally room within the Momei Oval Counting Center whereat no declaration was made. The action of the Second Respondent as such was contrary to Section 103 (a) of the Criminal Code."

41. The allegations concerns bribery of electoral officials and election security personnel engaged by the EC. OLNE, s 208 (a) read in conjunction with s 215(1) and (3) and s 103 (a) (iii) of the Criminal Code (Code), it covers that situation: see Tulapi v Lagea (supra). In the petition, whilst it pleads s 103 (a) of the Criminal Code and omits (iii), I accept Mr Kennedy's argument that paragraph (iii) can be read into s 103 (a) by way of supplying necessary (but missing) particulars: Nomane v Mori (2013) SC1242.

42. Criminal Code, s 103 (a)(iii) is in the following terms:

" 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—

....

(iii) in order to induce any person to endeavour to procure the return of any person at an election...; ... is guilty of a misdemeanour.

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

43. The Petition must plead the material and essential facts pertaining to each element of bribery under Code, s 103 (a)(iii). Those elements are as follows:

(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 he person to endeavor to procure the return of the person, the successful candidate, at an election.

44. Mr Awesa takes issue with what he says is lack of pleading of material facts supporting the essential elements of bribery. Those include failure to plead Mr. Kundapen's role in the election process in terms of his authority to make a declaration on the election results, no mention by name of RO or electoral official who were actually paid the money, no mention of RO corruptly receiving the payment, no mention of the expressed purpose of the payment whether to induce a named RO or election official to make the declaration of the second respondent as the winner; no names of the other persons whom Mr Awesa instructed to declare him as the winner; and in the case of the role played by Mr Richard Awesa, there is no pleading as to the requirements that the result of the election was likely to be affected (s 215 (3)).

45. Mr Molly referred to my recent decision in Tulapi v Lagea to identify the four elements for which material facts have to be pleaded. He submitted the pleadings fail to satisfy all those elements. He emphasized the failure to state the purpose of the commitment made and the payment that followed in terms of the criminal intent required to accompany such payment. The fact that the commitment to pay and the payments were made in public removes any suggestion of criminal intent or purpose.

46. Mr Kennedy submits all material facts have been pleaded; requiring the petitioner to plead anything more than what had been pleaded is to plead evidence and submissions on the law and facts. The Court should consider the whole of the factual pleadings on those matters in the petition and appreciating the context and timing of the commitment and the payment, the intention to induce the named electoral officials is expressly stated, if not, the intention can be inferred from those circumstances. The person who made the commitment and paid the money, the recipient of the money, the form and value of property used as a benefit; and, the expressed or implied purpose of the payment; all have been pleaded and pleaded sufficiently: Phillip Kikala v Mangape & Electoral Commission, per Manuhu J, Unpublished Supreme Court judgment in SC Rev (EP) No 11 of 2013 dated 15 March 2013; paragraph 25.

47. During my exchange with counsel, I raised an additional point with regard to the "credibility'' or "believability'' of such allegation where commitments, promises and distribution of payments in cash or in kind are made publicly. If it were a corrupt payment, ordinarily, it would be concealed from the public and made in secret. If it is done in public, criminal intent may be lacking. If the pleadings in a petition were that public distribution is accompanied by an express statement of intention to bribe the person and the person receiving the payment accepts the payment on that condition, such a pleading is incredible and the Court may reject the pleading for that reason unless the pleading is supported by other relevant facts that clearly demonstrate criminal intent.

48. Mr Molly submitted the pleading should be rejected for that reason. Mr Kennedy submitted that although the payment in such manner is extraordinary, such payments in that manner can be made and it was made in the present cases. For that reason, the Court should look at the whole of the factual circumstances pleaded in the petition concerning the payment and allow the allegation to proceed to trial.

49. In determining whether the elements of bribery have been supported by material facts on each element of bribery, I apply the third approach in Tulapi v Lagea. I am satisfied that the material facts relating to the first, second and third elements of bribery under Criminal Code, s.103 (a) (iii) have been sufficiently pleaded. Mr Awesa made the commitment to pay K20,000.00 to Election Manager David Wakias, Assistant Police Commissioner Jim Andrews; the money was distributed by his son Richard Awesa "who was there with him at the time" at the Imbonggu Counting Center at Momei Oval. Mr Awesa merely used his son as an instrument to distribute the payments. The bribery act therefore was that of Mr Awesa. The allegation comes squarely within the terms of s 215(1).

50. I am however troubled by the pleadings on fourth element of bribery - the intention or purpose for which the money was committed (promise) and given. Criminal intent or purpose in the commitment or promise and /or the payment holds key to a finding that the purpose of the promise and payment to the Election Manager satisfies the fourth element of bribery under s 103(a)(iii) of the Criminal Code.

51. My search for a case on point produced one case, Parkop v Vele (No 3) (2007) N3322. That was a case involving bribery of electors, but the Judge's remarks with regard to the criminal intent or purpose or the mens rea in the promise or payment are relevant to the case at hand. Justice Kirriwom makes reference to the decision of the High Court of Kiribati in Tatireta v Tong [2003] KIHC 1; [2003] 5 LRC 665 and observes that public distribution of gifts, commitments and property by candidates and their supporters have their own varying reasons, some of them having to do with meeting traditional and customary obligations, and if mens rea were to be imputed, there must be clear evidence to support such conclusion. I agree with those remarks. Whether mens rea may be inferred from such actions depends on the facts of each case but ordinarily, I would think, generally speaking, the very fact of a public commitment or promise and distribution of payments in money and in kind would dissipate or remove any suggestion or innuendo of mens rea. I use the expression "may be inferred" advisedly because it is inconceivable that someone in his right mind would publicly and expressly state the criminal purpose of the commitment, promise or distribution and no one would be prepared openly to accept the payment for the expressed purpose in full view of the public.

52. The seriousness of a bribery allegation granted, clear pleading of primary material facts on the purpose of the promise or payment is imperative. Leaving primary essential facts to inference is not a good practice that accords with the mandatory requirements of OLNE, s 208 (a) in conjunction with OLNE, s 215 and s 103 (a)(iii) of the Criminal Code. The pleadings in Tulapi's case can be contrasted with the facts pleaded in the present case. In Tulapi, there were clear pleadings as to the purpose because the allegation of public distribution of cash money to counting officials done at the counting center "when the declaration was made" on 8 July 2012 was linked to a promise made on 22 June 2012 to polling officials at Muniputi village on 22 June 2012 where he paid them K500 each; that they would be paid K5,000 each if he won the election. The means rea in that case was obvious. In the present case, the purpose of the payment is left to be deduced from the pleadings from passive expressions such as "with the intention of inducing them to declare the Second Respondent as Member elect"; "manifested or evidenced". No words are attributed to Mr Awesa at the time he made the commitment (Pet paragraph 44 (a) as to what the money was for but left to inference and interpretations (Pet, Ground 44 (b)). What time of "that day" Mr Awesa asked to be declared is not pleaded. As to what time in the day his son paid the money is not pleaded, What time of "that day" Mr Awesa's son distributed the money is not pleaded. In paragraph 44 (b), the allegation that the whole of the K20,000 was "given" only to Mr Kundapen by Richard Awesa does not sit in well with the earlier pleading that Mr Awesa made the commitment to "Mr Richard Kundapen, Election Manger David Wakias, Assistant Police Commissioner Jim Andrews" as pleaded in paragraph (a). Further, in Pet. Paragraph 44 (b), it is pleaded "The said K20,000) was paid to the said persons with the intention of inducing them to declare the second respondent as member elect". There is no pleading to say if payment was accepted for or on behalf of those other persons. These and other deficiencies pointed out by Mr Molloy leads me to conclude that the mens rea in this pleadings is lacking in these pleadings, or if expressly or inferentially stated, they lack credibility.

53. Further, the story in the pleadings of a leading candidate walking straight into the counting room in full view of the public and counting officials and expressly and openly making the commitment and his son distributing the money in public removes any suggestion of mens rea. I do agree with Mr Kennedy that one cannot completely rule out those types of situations; there are those type of people in the community with bad character who are bent on doing strange and extra-ordinary things to achieve what they want to, but such people are a rarity; and, it would be an extremely rare occasion for a public figure such as a respectable person in leadership position such as candidate, to engage in such conduct in full view of the public with complete impunity. For this reason, clear and concise factual pleadings in a petition is required imputing bad character on the part of such person to remove the person from the ordinary and place them into that category of persons that engage in conduct that defy logic, common sense and reason to get what they want.

54. In the present case, as much as the pleadings tell of an extraordinary story, the story is incapable of belief. No pleadings accompany the factual allegations in paragraphs 35 and 44 and even in the whole of the petition as to Mr Awesa's character and those of the counting officials and security personnel that place them in the category of persons I have alluded to. Public promises and distribution of money does not go along with the grain of mainstream thinking that illegal practices that involve an element of corruption and fraud are rarely committed in full view of the public, and this is particularly so in this country where such traditions and customs play a big part in every day election time that sees leaders distributing property in money and in kind for good or noble reasons. If the commitment, promise or payment is not for such purpose, not only is it imperative to plead the essential and material facts in clear, concise and direct terms and facts to demonstrate the criminal intent, purpose or mens rea in the commitment/promise and payment. Even if such were the pleading, the pleadings on their face, must be credible. In the present case, such pleadings are wanting in this petition.

55. For those reasons, I find the pleadings in paragraphs 35 and 44 do not comply with the mandatory requirements of s 208 (a) read in conjunction with s215 (1) or (3); and the fourth element of s 103 (a)(iii) of the Criminal Code and strike out those paragraphs.

OTHER RELATED MATTERS

56. There still remains the factual allegations in the petition that support a breach of s 50(1)(d) and s 126 of the Constitution as pleaded under paragraphs 14, 18, 42 (a)(ii) and (b)(ii) and all those other related facts set out in the introductory paragraphs of the Petition. That is, those allegations in respect of 1,916 eligible voters from Lumbi and 1,905 eligible voters from Yaria whose right to vote were denied. Mr Kennedy submits they are not objected to and the Court should allow this ground and facts pleaded in support thereof to be tried, even if the main grounds are struck out for want of competency.

57. In my view, those matters squarely fall under "errors and omissions" under s 218. It is not pleaded how the result of the election was affected by those omissions. Those grounds are also struck out.

CONCLUSIONS

58. I agree with Mr Kennedy that the facts of this case, in particular with regard to the allegation of bribery and more particularly with regard to the scrutiny process resulting in two competing declarations made by persons assuming the role of a RO and the EC accepting one of the declarations, is unique situation and perhaps unprecedented in this country's election history. This calls for careful consideration of the grounds pleaded in the petition in order to decide if the points of fact and law raised at this preliminary stage of the trial proceedings should be allowed to proceed to a substantive hearing to determine the merits of those matters. I have given that careful consideration. At the same time and more importantly so, I am cognizant of the mandatory wording of OLNE, s 208 (a) and the seriousness of an allegation of bribery as that offence is defined in the Criminal Code which has to be read in conjunction with s 208 (a); that those provisions do not permit petitions which are not grounded on essential and material facts that support bribery to advance to trial. In my analysis I have demonstrated that the grounds relied upon lack those facts, much of which are primary facts, that even when the test in Tulapi v Lagea, a test that favours petitioners more than respondents is applied, the factual pleadings do not improve to meet the requirements of s 208 (a). The same goes for pleadings of primary facts which are pleaded but they lack credibility. This Court is not empowered to fill in those missing primary and essential/material facts or give credence to such incredible factual allegations to save a petition.

59. I consider all other submissions made by counsel which I have not specifically dealt with in my ruling to be of little or no importance in determining the real issues in the case which I have addressed in my judgment.

60. The cumulative effect of this ruling is that all grounds in the petition are struck and consequently, the whole petition must be dismissed.

ORDERS

61. For the foregoing reasons, I make the following orders:

(1) The Second Respondent's Notice of Objection to Competency of the Petition filed on 17 January 2013 and supported by the First Respondent, is upheld.

(2) The Petition is dismissed for want of compliance with s 208 (a) in conjunction with OLNE, s 153A, s 215 & s 218; OLNE Regulations, s 90; and, s103(a)(iii) of the Criminal Code.

(3) The petitioner shall pay each respondent's costs of the proceedings.

(4) The security for costs deposit held by the Registrar shall be expended towards meeting such costs

__________________________________________________

Jema Lawyers: Lawyer for the Petitioner
Manase & Co: Lawyer for the First Respondent
Paraka Lawyers: Lawyer for the Second Respondent

APPENDIX

OLNE, SS 19 -22, & s 17519.

19. Returning Officers.

(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission.

(2) A person may be appointed Returning Officer for more than one electorate and may perform the functions and duties of a Returning Officer for more than one electorate at the same time.

(3) A Returning Officer may, following consultations with the Electoral Commission, seek the assistance of such persons, both individuals and group of individuals including a committee, to plan for the preparation or updating of Rolls and the conduct of elections provided that the functions performed, or the powers exercised, by a Returning Officer under or in accordance with this Law remain the functions and powers of the Electoral Commission.

(4) Regulations may make provisions for Committees to be established by a Returning Officer to assist him in the exercise of his powers and functions under Subsection (3).

(5) The Electoral Commission may, on the nomination of a Returning Officer, appoint authorized enrolment agents in a Ward under the responsibility of that Returning Officer to undertake enrolment in that Ward and perform such other duties and responsibilities as are prescribed.

(6) Regulations may make further provisions for the duties and responsibilities of authorized enrolment agents appointed under Subsection (5).

(7) A direction from the Electoral Commission to a Returning Officer not to make a declaration of result shall bind the Returning Officer and if the Returning Officer or any other Electoral Officer makes a declaration despite the direction, that declaration is invalid.

20. Assistant Returning Officer.

(1) Subject to this section, the Electoral Commission may, by notice published in the National Gazette, appoint a person to be an Assistant Returning Officer for a portion of an electorate.

(2) A person appointed to be an Assistant Returning Officer for a portion of an electorate may, subject to this Law and to the Regulations and to the control of the Returning Officer, perform the functions and exercise the powers of the returning Officer, in, or in relation to, that portion of the electorate.

(3) An Assistant Returning Officer shall not be appointed for a portion of an electorate for which less than 100 electors are enrolled.

(4) Where the services of an Assistant Returning Officer are required for the purposes of one election only, the appointment may be made by the Returning Officer by instrument in writing, and in that case the appointment terminates upon the completion of the election.

(5) The failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election.

21. Appointment in cases of emergency.

(1) Subject to Subsection (2), in the event of a vacancy occurring in an office of Returning Officer or Assistant Returning Officer, or in the absence from duty of any such officer, the Electoral Commission may, by notice in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.

(2) The Electoral Commission shall publish each notice under Subsection (1) in the National Gazette.

(3) In the event of a vacancy occurring in an office of Assistant Returning Officer appointed under Section 20(4), or in the absence from duty of any such officer, the Returning Officer may, by instrument in writing, appoint a person to perform the duties of the office during the period of the vacancy or absence.

(4) An appointment under Subsection (1) is temporary only, and does not confer on the appointee any right or claim to be permanently appointed to the position.

(5) The Failure to publish a notice in the National Gazette under this section shall not be a ground for invalidating an election.

22. Date from which appointments are to take effect.

A person appointed to be a Returning Officer or an Assistant Returning Officer under Section 21 shall be deemed to have been appointed as from the date specified in his appointment, or, if no such date is specified, as from the date of his appointment.

175. Return of writs.

(1) Subject to this section, the Returning Officer or the Electoral Commission shall, as soon as conveniently may be after the result of an election has been ascertained—

(a) at the place of nomination or any other place appointed by the Returning Officer, publicly declare the result of the election and the name of the candidate elected; and

(b) by endorsement under his hand certify on the writ the name of the candidate elected, and return the writ through the Electoral Commission to the Head of State who shall then forward all the writs to the Speaker of the Parliament.

(1A) Where the Electoral Commission has directed the Returning Officer not to declare a result:—

(a) unless the direction is withdrawn, the Returning Officer shall not declare a result and any result declared in contravention of a direction is invalid; and

(b) in special circumstances, the Electoral Commission may declare the result based on information concerning scrutiny and other information provided by the Returning Officer or an Assistant Returning Officer.

(2) Where the Returning Officer cannot complete his inquiries into the facts set out in the declarations received by him under Section 141 or 142, without unduly delaying the declaration of the poll, and he is satisfied that the votes recorded on the ballot-papers could not possibly affect the result of the election, he may, subject to the concurrence of the Electoral Commission, declare the result of the election and return the writ without awaiting the receipt of the ballot-papers or the completion of inquiries, as the case may be. (Underlining is my emphasis)