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Warisan v Arore [2013] PGNC 169; N5341 (23 August 2013)

N5341

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 44 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF DISPUTED RETURNS FOR THE IJIVITARI OPEN ELECTORATE

BETWEEN:

JOHN WARISAN
Petitioner

AND:

DAVID ARORE
First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Popondetta : Gabi, J
2013 : 26th July
23rd August

CIVIL LAW — Election Petition — Organic Law on National and Local-Level Government Elections Section 215 (1) — allegations of bribery — application to stop the case — allegations of bribery on an elector — essential element to prove person bribed was an elector — proof by production of common roll — common roll not produced — no evidence witnesses were electors — petition dismissed.

Facts

The election petition alleged 14 instances of bribery of which four were held to be competent to go to trial. The petitioner's case was that the successful candidate had by himself or his agents bribed electors. Some of the petitioner's witnesses, who were alleged to have been bribed, said that they were electors. At the close of the petitioner's evidence the respondents applied to stop the case on the basis that it had not been proven, that the persons allegedly bribed, were in fact electors.

Held

1. An election petition trial may be stopped if there is no evidence to prove a ground, at [8];

2. Where bribery is alleged to have been committed upon an elector, it is essential to prove the person bribed was an elector, at [11];

3. Unless the common role is produced there is no evidence that a witness or person who voted at the election was in fact an elector, at [16] following and applying Leonard Louma v Douglas Tomuriesa & Others (2012) N4920, not following Brian Kramer v Nixon Philip Duban and Andrew Trawen (2013) N5215 at [15 – 16];

4. The Common Role was not produced, there was no evidence before the court that the witnesses were electors and the petition was dismissed.

Cases Cited

Ben Micah vs. Ling Stuckey [1998] PNGLR 151
Benny Diau vs. Mathew Gubag (2004) SC775
Bryan Kramer vs. Nixon Philip Duban & Andrew Traven, Electoral Commissioner of Papua New Guinea (No. 3) (2013) N5215
Desmond Baira vs. Kilroy Genia (1998) SC579
Leonard Louma vs. Douglas Tomuriesa & Others (2012) N4920
Pawa Wai vs. Jamie Maxtone Graham (2005) N2768
Raymond Agonia vs. Albert Karo [1992] PNGLR 463

Counsel

P. Wariniki, for the Petitioner
J. Napu, for the First Respondent
M. Kuma, for the Second Respondent

23rd August, 2013

1. GABI, J: Introduction: This is my ruling on the application by the respondents to stop the trial at the close of the petitioner's case. The allegations in the petition were that the first respondent committed acts of bribery. There were fourteen cases or grounds of bribery and the respondents objected to the competency of the petition. After hearing arguments on the objection to competency, I ruled that cases or grounds 1, 2, 5 and 7 were competent and could proceed to trial while the balance of the cases were found to be incompetent and dismissed.

The grounds

2. At the trial, the petitioner could not pursue case 1 because the witness had switched sides. It is convenient to set out grounds 2, 5 and 7 hereunder:

Bribery Case Two (2)

"1. On 16 June 2012, during the Election period, the Respondent made second visit to Ganjiga village which is located within the Ijivitari Open Electorate (see plan attached). An elector Alfred Mokoru was in the village at the time the Respondent made the visit.

2. The Respondent was taken to a hut "haus win" which was newly built.

3. There was a good number of people in the village (approximately 40) who gathered in his presence. Other villagers had gone out to their gardens or attended other personnel matters.

4. At the Ganjiga village, the Respondent made a statement that "I'm not a new person, I am here to show my presence as a sitting member and a candidate for this 2012 election".

5. After his speech, the Respondent took out a bundle of K50 notes and put it on a mat in front of the "haus win". The cash totalled K2, 000.

6. The Respondent also placed foodstuff, in particular, 1kg rice x 6 pkts,

1 x carton Noodles, 1kg sugar x 6 packets, Tin fish x 8 loose

(Diana Tuna), 7 x salt packets (small), 6/7 issue of T/shirts (orange) and

2 x Genset E960L Honda.

Evidence will be adduced in trial to show these.

7. While handing out of the cash and foodstuff, the Respondent told those who gathered to share the cash and foodstuff amongst themselves.

8. The Respondent further said that "Mi raun tasol. Think of me during voting. Sapos yu no votim mi, mi no wari, bai yu kirap nogut bai mi win". When translated into the English language, it means "I am just roaming around. Think of me when you vote. If you do not vote me, I will not be worried because you will be shocked that I will win".

9. The Respondent further said that "If you Maisin people don't vote me, my office door will be closed or won't entertain Maisin people" (Maisin is an ethnic group of people from Tufi, Oro Province.

10. The people who witnessed the distribution of cash and foodstuff are: Stela Gombi, Aida Kania, John Gill Rarama, Elizabeth Rarama, Alfred Rerebin, Suckling Nonisa, Eunice Nonisa, Margret Nonisa, Henson Obegi, Aaron Kasai, Betty Obegi, Reubin Seri, Mona Lisa Kasai, Aileen Dunela Bobora, Wilfed Avaita, Wilma Rarama, Deith Sagiribo, Neville Kania, Veginia Kania, Nelly Terina, Geraldine Terina, Cedric Rarama, Pauline Asa, Davidson Nonisa, Bradly Keibe, Ailyn J. Dumu, Wilfred Awaita, Lloyd Bairan, Mollyna Bairan, Lelah Bairan J. Kasona, Karus Kasona, Delilah Kania.

11. After receiving the cash and foodstuff, all these people voted for the Respondent.

12. On that premise, the election of the Respondent be declared null and void under Section 215 (1) of the Organic Law on National and Local-level Government Elections (Amendment) Law 2006...

Bribery Case Five (5)

1. On 13 June 2012, the Respondent was to visit the communities of Hegata, Auga and Komburo of the Isuga tribal village (see plan attached). The meeting was to take place at one elector Mr Collin Amoko family block.

2. The Respondent did not attend the meeting but sent his election agent Richard Wai instead.

3. Richard Wai arrived to a rousing welcome and told the people that the Respondent could not attend and sends his apologies instead.

4. The communities sat and shared the food the mothers had prepared, and as Richard Wai rose to leave the gathering he advised Collin Amoko to see the Respondent the next day to collect cash contribution for their community.

5. On the morning of Thursday, 14 June 2012, Collin Amoko was in the company of the Respondent's electoral staff in a gold coloured Nissan Navara, Double Cab Registration Number UAA 936. Collin Amoko and the Respondent's staff drove around town to locate the Respondent and coincidently saw the Respondent driving a light brown 5 Door Toyota Landcruiser Registration Number BDI 477 towards the PNG Water Board Manager's house. Collin Amoko knew the manager's name to be Ross Sau.

6. Collin Amoko and the Respondent's staff saw the Respondent sitting on a platform under a tree in Ross Sau's yard.

7. Collin Amoko walked out and upon seeing Collin Amoko walking into Ross Sau's yard, the Respondent called out to Collin Amoko and said; "Collin makmak blon yu stap wantaim Tommy, go lukim em na kisim na tingim, em bikpela moni tumas, yu noken kisim na haitim. Yu kisim igo na skelim wantaim kominiti, na tingim mi". Interpreted in the English language, it means "Collin, your money is with Tommy. Go and see him and collect it and remember its big money. You must not get it and hide it. You take it away and distribute it to the community and think of me".

8. Collin Amoko walked over to Tommy Pukari who by this time walked towards the 5 Door Toyota Landcruiser and opened the rear door of the vehicle. Tommy Pukari pulled out his waist bag and took out K2000 cash, all in K20 note denomination/bundles and gave it to him. Collin Amoko took out K60 and gave it to the boys who drove him there for their fuel and had the balance of K1040.00 in cash in his possession.

9. Of all the cash Collin Amoko had in his possession, Collin Amoko gave K500 to Danston Kiman of Auga village community, K200 to Steven Wuri of Komburo/Musa community, K300.00 to his family, K100 to the Chief Stanton Paradeba principal landowner of Hegata village and distributed the remaining notes by giving electors in Hegata village either K20 or K40 each. This was as per the direction of the Respondent.

10. On Saturday 23 June 2012, the Respondent's associate Ben Larry also delivered to Collin Amoko's residence 2 x bags of Star Rice, Half bale sugar, 16 x assorted tinned fish, 2 x cartons of Noodles, 1 x dozen coffee and coffee mate packets and 6 x tea leaf packets.

11. It was the Respondent's idea that the community would gather at Collin Amoko's residence on the day of polling and prepare and cook the food to eat and voted the Respondent in appreciation of his contribution.

12. The food was dished out on the day of polling on 26 June 2012.

13. Indeed, the community was induced and bribed and Collin Amoko voted the Respondent as his first choice.

14. On that premise, the election of the Respondent be declared null and void under Section 215 (1) of the Organic Law on Nation and Local-level Government Election (Amendment) Law 2006...

Bribery Case Seven (7)

1. The Respondent was at Barisari village on 2 and 3 July 2012.

2. On the night of 2 July 2012, the Chief of the Barisari village one Mishael Okasi saw the Respondent handing "T" shirts, cash, drinks and food to his village people.

Evidence will be adduced in trial to show these.

3. On 8 July 2012, the Respondent was at Barisari village and handed out "T" shirts, cash, drinks and food to electors of Barisari village.

On the polling day 9 July 2012, The Respondent was again at Barisari village and continued to hand out cash moneys to the value of K1, 500.00 to elector Mrs Belo Dickson, a K1, 000.00 to elector Mr Harrison Ungija, "T" shirts depicting the Respondent's face (orange in colour) to electors in the village. The Respondent also handed out alcohol beverages and food stuff for consumption by all. During polling, Mishael Okari saw that the village men were drunk as never seen before.

4. Right after polling, Mishael Oksai saw that a pig was slaughtered, which was bought from the money the Respondent gave, for his village people to feast on.

5. Out of the moneys that the Respondent handed out, Mishael Okasi admits receiving K50 from one Allan Tindepa (Respondent's representative) as cash payment and as a result Mishael Okasi voted the Respondent as his number one choice.

6. On that premise, the election of the Respondent be declared null and void under Section 215 (1) of the Organic Law on National and Local-level Government Elections (Amendment) Law 2006."

3. The trial proceeded by way of affidavit evidence and oral testimonies. The petitioner brought evidence in relation to cases 2, 5 and 7. The petitioner called three (3) witnesses. They are Alfred Mokoru, Collin Amoko and Mishael Okasi. I set out their evidence below.

The evidence

4. Alfred Mokoru is a former Police Officer. He did not vote in the last elections because his name was not on the Common Roll. He said on 16th June 2012, the first respondent made his second visit to Ganijiga village where he distributed cash and goods to the villagers who were gathered there at the time and told them to share the cash and goods among themselves. The first respondent is alleged to have said "I am not a new person; I am here to show my presence as a sitting member and a candidate for 2012 elections." The first respondent is alleged to have continued and said "Mi raun tasol. Think of me during voting. Sapos yu no votim mi, mi no wari, bai yu kirap nogut bai mi win...If you Maisin people don't vote me, my office door will be closed or wont entertain Maisin people." The following persons were alleged to have received money and goods and voted for the first respondent: Stela Gombi; Aida Kania; John Gill Agama; Elizabeth Ramara; Alfred Rerebin; Suckling Nonisa; Eunice Nonisa; Margaret Nonisa; Henson Obedgi; Aaron Kasai; Betty Obegi; Reuben Seri; Mona Lisa Kasai; Aileen Dunela Bogota; Wilfred Avaita; Wilma Rarama; Keith Sagiribo; Neville Kania; Veginia Kania; Nelly Terina; Geraldine Terina; Cedric Rarama; Pauline Asa; Davidson Nonisa; Bradly Keibe; Ailyn J Dumu; Lloyd Sairan; Mollyna Bairan; Lelah Bairan; J Kasona; Karus Kasona and Delilah Kania.

5. Collin Amoko is an elector and chairman of a NGO group called the Outstar Development Foundation. On 13th June 2012, he was told by Richard Wai to see the first respondent to collect cash contribution for his community.

On the next day, 14th June 2012, he saw the first respondent in Ross Sau's yard and approached him. The first respondent saw him and called out to him saying word to the effect "Collin, your money is with Tommy. Go and see him and collect it and remember its big money. You must not get it and hide it. You take it away and distribute it to the community and think of me." Collin walked over to Tommy Pukari, who took out K2000 cash, all in K20 notes, and gave it to him. He gave K60 to the boys who drove him there and kept the balance of K1940, which was later distributed as directed by the first respondent. He distributed the cash thus: K500 to Danston Kimana; K200 to Steven Wuri; K300 to his (Collin) family; K100 to Chief Stanton Paradeba; and the balance to electors in Hegata village. On 23rd June 2012, the first respondent's Associate Ben Larry delivered goods to the witness who distributed the said goods on the day of polling on 26th June 2012.

6. Mishael Okasi, also known as Michael Okasi, said he is an elector and he voted for the first respondent at the General Elections. He said on the night of 8th July 2012 the first respondent was at Barisari village and handed out cash, drinks, goods and "T" shirts to the village people. On 9th July 2012, the first respondent went to Barisari village and handed out K1500 in cash to Mrs. Belo Dickson, K1000 to Mr. Harrison Engija and "T" shirts to electors in the village. In addition, the first respondent handed out food and alcohol to the men of the village. Mishael received K50 from the first respondent's representative, Allan Tindepa, and voted for the first respondent.

7. In cross-examination by Mr. Kuma as to whether the first respondent authorised Allan Tindepa to give him K50, Mishael Okasi said Allan Tindepa gave him the money on his own accord.

The Law

8. An election petition trial may be stopped if there is no evidence to prove a ground: Desmond Baira v. Kilroy Genia (1998) SC579. In that case, Kapi DCJ (as he then was) said:

"...whether, or not, a judge should stop a case at the close of the petitioner's case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the Court to have regard to the terms of s 217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. In my opinion it would be open to a judge having regard to the terms of s 217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election."

9. In Benny Diau v. Mathew Gubag (2004) SC775, the Supreme Court stated the general principle again. The Court said:

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

10. In Pawa Wai v. Jamie Maxtone Graham (2005) N2768, Salika J (as he then was) reviewed the authorities on the subject of stopping a trial at the close of the petitioner's case and said:

"These lines of authorities support the proportion that in an election petition an application may be made to stop the petitioner's case at the close of his evidence. It is then left to the presiding judge to consider the application and decide whether the application can succeed. In considering the application the judge would go through the evidence adduced by the petitioner and his witnesses. If the judge finds there is evidence on the material aspects of the petitioner's case then the application should be dismissed. If on the other hand the judge considers that there is no evidence on a material aspect of the petitioner's case then he has the discretion to stop the case there without proceeding further."

Elector

11. Where bribery is alleged to have been committed upon an elector, it is essential to prove the person bribed was an "elector": Raymond Agonia v. Albert Karo [1992] PNGLR 463; Ben Micah v. Ling Stuckey [1998] PNGLR 151.

12. Section 3 (1) of the Organic Law on National and Local Level Government Elections (Organic Law) defines "elector" as "means a person whose name appears on a Roll as an elector". A person allegedly bribed must be an "elector" and this is a material element that must be proved by the petitioner at the trial.

13. Counsel for the petitioner urged the Court not to stop the trial but require the first respondent to go into evidence on the basis that Collin Amoko and Mishael Okasi testified that they were "elector" and that they voted in the 2012 General Elections. Secondly, he argued that the Court should be guided by substantial merits and good conscience of each case without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence (s. 217 of the Organic Law).

14. There is support for the position taken by the petitioner in this jurisdiction. In Bryan Kramer v. Nixon Philip Duban & Andrew Traven (2013) N5215, Gavara- Nanu J was of the view that where there is evidence before the Court showing that the person allegedly bribed or unduly influence voted in the elections, that is sufficient proof that the person was an elector. He said:

"I should now comment on the contention by the first respondent that Common Roll should have been produced to prove that persons who were allegedly bribed or who the first respondent attempted to bribe and to unduly influence were registered voters. In regard to this issue I hold the view that where there is evidence before the Court showing that the person allegedly bribed or unduly influence had voted in the 2012, national elections as is the case here, that to me is sufficient proof that the person was registered voter. I hold this view based on s. 133 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE) which shows that a voter is allowed to vote only after he is verified by the electoral officials during polling that he is a person eligible to vote. Sections 133, 134 and 135 set out stringent screening processes or tests which a voter must go through and satisfy before he is allowed to vote. The fact that the person has voted in an election is to me the proof that he had been through the processes set out under ss. 131 to 135 thus providing his eligibility as a registered voter and voted. In such a case, there is no further need for him or for the petitioner to prove that he was registered voter by producing a Common Roll. Such an approach by the Court would in my opinion defeat the purpose of ss. 131 to 135 of OLNLGE. In any event in this case was no real challenge by the respondents in cross-examination that the persons allegedly bribed and or unduly influenced by the first respondent did vote in 2012, national elections. Therefore as I said earlier, the fact that there is evidence that they voted in 2012, national elections is proof to me that they were registered voters. In Ben Micah v. Ian Ling Stuckey (supra) and Benny Diau v. Mathew Gubag (supra) the Courts only said that there has to be evidence before the Court that the person bribed is a registered voter. This is in my respectful opinion in harmony with what I said here."

15. The respondents took the opposite view. Both counsel for the respondents argued that grounds 2, 5 and 7 should be dismissed on the basis that the petitioner has failed to prove that the witnesses allegedly bribed were "electors" and were enrolled as such on the Common Roll of electors of the electorate and referred me to Leonard Louma v. Douglas Tomuriesa & Others (2012) N4920. In that case, Hartshorn J said:

"...the fact that a person allegedly bribed was at the material time an elector, is a material element that must be proved in an allegation of bribery in an election petition. Here, as submitted by counsel for the first respondent, from a review of the evidence adduced, there is no evidence that the persons allegedly bribed in grounds 3 (d) 3 (i) and 4 (j) are persons whose names appeared on the Common Roll as electors. That a person may have voted in the General Election is not evidence that he was entitled to vote. The Common Roll in respect of the persons allegedly bribed could have been produced to prove that they were electors. It was not. Grounds 3 (d) 3 (i) and 4 (j) are dismissed." (Emphasis added)

16. With great respect, I am unable to agree with my brother Gavara-Nanu J. I agree with Hartshorn J that the petitioner must prove that the person allegedly bribed or unduly influenced is an elector and this can be done by producing the Common Roll. Unless the Common Roll is produced there is no evidence before the Court. Anyone can come to Court and say that he or she voted at the elections and as such is an elector. It would, however, be extremely difficult to prove subsequently that he or she was allowed to vote unless the Common Roll is produced. Just as an elector is required to satisfy the electoral officials during polling that he or she is eligible to vote, the elector must likewise satisfy the Court that he or she is an elector by showing that his or her name is on the Common Roll as an elector.

17. Allan Mokoru said he was not an elector and did not vote at the General Elections. Both Collin Amoko and Mishael Okasi said they were electors and voted at the General Elections. A number of persons were named by Alfred Mokoru in paragraph 10 of his affidavit (Exhibit "P1") as electors as well. However, there is no evidence to show that they in fact were electors. It is the responsibility of the petitioner not only to allege that a person is an elector but must also prove that a person is a registered elector. That can be easily accomplished by producing a copy of the Common Roll. Unless that is done I hold the view that there is no evidence before me to show that the witnesses were electors. Accordingly, the petition is dismissed.
______________________________________________________________

Waraniki Lawyers & Consultants: Lawyers for the Petitioner
Napu & Co. Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent