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National Court of Papua New Guinea |
IN THE NATIONAL COURT OF JUSTICE
PAPUA NEW GUINEA
EP No.7 of 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE MAPRIK OPEN ELECTORATE
BETWEEN:
GABRIEL LENNY KAPRIS
Petitioner
AND:
JOHN SIMON
First Respondent
AND:
GODREY SOKOMIA, THE RETURNING OFFICER
FOR MAPRIK OPEN ELECTORATE
Second Respondent
AND:
ANDREW TRAWEN, THE CHIEF ELECTORAL COMMISSIONER
Third Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent
Wewak: David, J
2013: 3, 4 & 8 January
ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing return – allegations of illegalities and irregularities at certain polling places and scrutiny, bribery and undue influence - objections to competency – failure to comply with section 208 (a) Organic Law on National and Local-level Government Elections – ground on allegations of illegalities and irregularities not pursued – requirements under section 208, Organic Law on National and Local-level Government Elections are conditions precedent – strict compliance required of every requirement – allegations of bribery and undue influence are serious criminal offences – allegations must therefore be pleaded with clarity, definition and in sufficient terms to establish the offences – petitioner failed to plead all material and relevant facts – objections upheld - grounds on bribery and undue influence struck out – petition incompetent therefore cannot go to trial – proceedings dismissed - 208 (a) Organic Law on National and Local-level Government Elections – sections 102 and 103 Criminal Code.
Cases cited:
Bourne v Voeto (1977) PNGLR 298
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Siaguru v Unagi (1987) PNGLR 372
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Agonia v Karo (1992) PNGLR 463
Charles Luta Miru v David Basua (1997) N1628
Korak Yasona v Castan Maibawa (1998) SC552
Dick Mune v Anderson Agiru & Ors (1998) SC 590
Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on 30 March 1998
Koimanrea v Sumunda (2003) N2421
Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice Hinchliffe delivered on 16 June 2003
Ginson Saonu v Bob Dadae (2004) SC763
Sauk v Polye (2004) SC769
Paru Aihi v Sir Moi Avei (2004) N2523
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Powes Parkop v Wari Vele (No 1) (2007) N3320
Powes Parkop v Wari Vele (No 3) (2007) N3322
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Legislation cited:
Organic Law on National and Local-level Government Elections
National Court Election Petition Rules 2002 (as amended)
Criminal Code
Criminal Practice Rules 1987
Counsel:
Gregory P. Manda, for the Petitioner
Francis Waleilia, for the First Respondent
Andrew Kongri, for the Second, Third & Fourth Respondents
RULING ON OBJECTIONS TO THE COMPETENCY OF PETITION
8th January, 2013
1. DAVID, J: The petitioner, Gabriel Lenny Kapris (hereinafter called "the petitioner") is an unsuccessful candidate for the Maprik Open Electorate in the East Sepik Province (hereinafter called "the Electorate) during the 2012 National General Election which was conducted between 18 May 2012 and 15 July 2012. Twelve other candidates also contested. Writs for the National General Election were issued by the Head of State on 18 May 2012. Polling in the Electorate was conducted between 23 and 29 June 2012. The scrutiny for the Electorate was conducted sometime after polling ended on 29 June 2012. The First Respondent, John Simon (hereinafter called "the First Respondent") was the successful candidate for the Electorate. He polled 13,637 votes while the petitioner who was the runner-up polled 10,730 votes. The First Respondent was declared the winner and duly elected as Member of Parliament for the Electorate on 15 July 2012 by the Returning Officer for the Electorate, Godfrey Sokomia, the Second Respondent. The First Respondent was subsequently sworn in as the Member for the Electorate in the National Parliament.
2. On 16 August 2012, pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (hereinafter called "the Organic Law"), the petitioner filed his petition addressed to the National Court at Waigani disputing the validity of the election or return of the First Respondent as the successful candidate for the Electorate on three basic grounds; first, there were polling illegalities and irregularities committed at a number of polling places in the Electorate and despite that being the case, the Second, Third and Fourth Respondents by their errors or omissions failed to exclude ballot boxes containing marked ballot-papers from those polling places from scrutiny; second, the First Respondent committed the offence of bribery within the meaning of Section 103 of the Criminal Code (hereinafter called "the Code"); and third, the First Respondent committed the offence of undue influence within the meaning of Section 102 of the Code. In respect of the first ground, the petitioner sought a number of declarations including that the First Respondent was not duly elected, but the petitioner was or alternatively that a recount be ordered and the winner declared from the results of the scrutiny of ballot boxes excluding those that are disputed. In respect of the second and third grounds, the petitioner seeks orders to declare the election and return of the First Respondent void and a by-election be conducted.
3. On 12 September 2012, the Fourth Respondent, the Electoral Commission of Papua New Guinea filed its Notice of Objection to Competency of the Petition. On 9 November 2012, the First Respondent filed his Notice of Objection to Competency of the Petition with leave of the National Court granted on 7 November 2012.
4. On 3 January 2013 when the Court convened, being the first day scheduled by the Judge Administrator for Election Petitions track, Justice Makail for the hearing of the petition including the two notices of objection to the competency of the petition, the petitioner through his counsel, Mr. Manda informed the Court that he was not pursuing the first ground of the petition and would only pursue the second and third grounds. Following discussions between the bench and counsel, counsel agreed that the petitioner's proposed terms of the concession be reduced to writing in the form of a consent order thereby necessitating the proceedings to be adjourned to 4 January 2013. At the resumption of the proceedings on 4 January 2013, a draft consent order endorsed by counsel for the parties was handed up for my endorsement which I did. The consent order basically confirms that the petitioner would not pursue the first ground constituted by the allegations contained in paragraphs 10, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of the petition and the reliefs sought in respect of that ground pleaded at paragraph 26 (i) to (v) of the petition and that the remaining grounds of bribery and undue influence constituted by the allegations pleaded at paragraphs 11, 12, 24 and 25 of the petition would remain in dispute.
5. The First and Fourth Respondents' found their objections on the two remaining grounds of the petition on Section 208 (a) of the Organic Law both asserting that the petitioner has failed to set out the material or relevant 'facts' constituting the grounds of bribery and undue influence to invalidate the election or return of the First Respondent as successful candidate and member for the Electorate as is required by that provision, therefore the petition was incompetent and should be dismissed. The petitioner states otherwise. He states that there has been compliance or substantial compliance with Section 208 (a) therefore the petition should be heard.
6. The parties have filed or handed up lengthy written submissions at the hearing and amplified them in their respective oral submissions. I have considered these submissions.
7. In determining this matter, I have considered the pleadings contained in the petition and the two notices of objection to competency of the petition and the Statement of Agreed & Disputed Facts and Legal Issues filed on 9 November 2012 pursuant to Rule 13 of the National Court Election Petition Rules 2002 (as amended). With respect to the Statement of Agreed & Disputed Facts and Legal Issues, I have only considered Part A of the document which relates to undisputed facts.
8 According to Rule 15 of the National Court Election Petition Rules 2002 (as amended), the Court can deal with any challenge to the competency of a petition at the hearing of the petition. However, it has been held as recently as in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that issues of competency of a petition can be dealt with at any stage of the proceedings even if they were not raised before the National Court sitting as a Court of Disputed Returns in the case of a review before the Supreme Court: see also Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; and Powes Parkop v Wari Vele (No 1) (2007) N3320.
9. In Chief Collector of Taxes v Bougainville Copper Limited, the Supreme Court said:
"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court."
10. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law and each and every requirement must be strictly complied with: see Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342; and Holloway v Ivarato [1988] PNGLR 99. In Delba Biri v Bill Ginbogl Ninkama, the Supreme Court said:
"The requisites in s.208 and s.209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s.208 and s.209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s.208 and s. 209 are complied with.....
Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s.210."
11. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
12. In Delba Biri v Bill Ginbogl Ninkama, the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:
"But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra) )".
13. Section 208 of the Organic Law states:
"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 a 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 house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (1) (a)."
14. Section 210 of the Organic Law states:
"Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."
15. In Holloway v Ivarato, the Supreme Court considered the meaning of the word "facts" under Section 208 (a). In approving and following the conclusion arrived at by Justice Bredmeyer in Siaguru v Unagi (1987) PNGLR 372, it held that what that word meant was the material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated should be pleaded, but not the evidence by which it or they might be proved. It is instructive and necessary to cite the relevant passages of the judgment of Kapi, DCJ with whom Justices Los and Hinchliffe concurred:
"The grounds at 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 grounds 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.
Two questions arise for consideration at this point:
1. Whether the facts set out should include the evidence by which those facts are to be proved and,
2. the sufficiency of facts which may be set out.
In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.
It would be an unreasonable rule to require the petitioner to set out all the evidence by which a petitioner may rely to prove the material facts. In actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.
It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s.208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s.212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s.208(a) of the Organic Law. I conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.
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 ground 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 so enable the court to be clear about the issues involved."
16. The case of Paru Aihi v Sir Moi Avei (2004) N2523 advocates a liberal approach in applying Section 208 (a). In that case, it was held that pleading of relevant facts did not, inter alia, mean pleading the elements of the offence in some meticulous manner in view of the fact that the intention of the Organic Law (as can be inferred from Section 222) was to allow petitioners being ordinary citizens aggrieved by the result of an election to come to court and prosecute their petitions without the assistance of lawyers if they chose not to engage any. The liberal approach was also advocated in Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Unreported & Unnumbered Judgment of Justice Hinchliffe delivered on 16 June 2003; Korak Yasona v Castan Maibawa (1998) SC552; Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, Unreported & Unnumbered Judgment delivered by the Supreme Court on 30 March 1998; and Sauk v Polye (2004) SC769.
17. In Electoral Commission v Henry Iyapo Smith and Biri Kimisopa, the Supreme Court said:
"...But the Organic Law also stipulates strict compliance with certain requirements in the petition. For purposes of expediency, the Court has allowed for a procedure of preliminary objections to ensure that such matters as to compliance with the requirements of the Organic Law are dealt with as expeditiously as possible. These preliminary objections are not designed to deliberately hinder or obstruct the petitioner going to trial, they are to ensure that the Court does not waste its time with matters that are not clearly pleaded. Petitioner must be allowed to proceed to trial and he has the onus to convince the Court that there have been serious errors in the election and that the relief he seeks must be granted. Similarly, we are also mindful of the need by the Court to protect the second respondent as the duly elected member for Goroka Open electorate.
...If more and more unrepresented petitioners come to the Court of Disputed Returns, Courts must be prepared to receive and entertain them without being seen to be too legalistic and rigid in their approach. Otherwise section 222 of the Organic Law becomes superfluous and illusory. Even now, observing from the perspective that the election laws have evolved through judicial pronouncements, the desirability of section 222 remaining as an enforceable law in the Organic Law becomes patently apparent. A judge has to be careful that he does not act too arbitrarily in depriving a petitioner of his right to a hearing before the Court of Disputed Returns.
...The issue really boiled down to evaluation and understanding of the facts. The way the courts have addressed this task had therefore let to a body of judicial determinations that appear to isolate and distance the election petition process further and further away from the ordinary citizen who is entitled to be heard on his petition in person. In other words, citizens are being forced to engage lawyers to represent them in their election petitions because the rules have become so rigid and so technical that the only way to get a hearing is to strictly comply with the requirements of the Organic Law in the way the lawyers understand the rules of the game.
We find that the relief sought by the petitioner is clearly stated. To strike out the petition of a self-represented petitioner for failure to use the terminology or phraseology in the Organic Law, although it is quite obvious as to what the petitioner, on plain and common usage and understanding of English language is seeking or wants in his petition, is really doing an injustice to the citizen."
18. In Masket Iangalio v Yangakun Kaeok and The Electoral Commission of Papua New Guinea, Justice Hinchliffe made these observations:
"...It would seem to me that developments in recent years have created a situation that I must say I do not totally agree with. Strict compliance with Section 208(a) appears to have developed into "very, very strict compliance" and I doubt that I would be incorrect in saying that because of the extremely strict compliance it is becoming more and more difficult to get an election petition off the ground. Many of them do not get past the competency stage and are thrown out, at times, on mere technicalities. Is that what the Legislature intended? I don't think so. We hear and read time and time again that an election petition, if one reads Section 222(1) and (2) of the organic Law, was really intended for a non-lawyer to draft and in fact a lawyer cannot appear for a party to a petition unless by consent of all parties or with leave from the National Court. If that is the case then it seems quite bizarre to me that if a non-lawyer was to draft his own petition then I have no doubt at all that it would be torn to pieces, so to speak, by lawyers for the sitting member and the Electoral Commission. In fact, I would be brave enough to say that under those circumstances, a non-lawyer's petition would never get past the first base because it would be certain to be found incompetent. To that extent, we seem to have gone the wrong way because again, it seems to me that most petitions which are found to be incompetent (and there are many of them) are in fact drafted by lawyers. One could only imagine what would happen to a petition that was drafted by a non-lawyer. Is he meant to understand what "material facts" and "relevant facts" are? Is he meant to understand what is the difference between "pleading the facts" and "evidence"? I wouldn't have thought so. This petition would not last long. Petition hearings attract a large crowd of observers and it must be very difficult for the non-lawyers amongst them to understand why a petition was thrown out of Court before it barely commenced. Would that person believe that the petitioner had had a fair hearing and that justice had been done? I don't think so. However, our case law has developed over the years in such a way that one wonders whether justice is really being done. I agree with those people who say that we should be careful when dealing with those cases where the majority of people have put the member in Parliament. On the other hand, we should also be concerned that the person was validly elected to Parliament and thereby being the true representative of his/her people. No matter what a Court case is all about everyone involved should get a fair hearing and never be denied natural justice. Most importantly also, justice must be seen to be done. May be it is time for the Election Petition Rules Committee to take a look at this and develop a system similar to the National Court Rules where, for example, a party can ask for further and better particulars and so on."
19. Section 217 of the Organic Law could be viewed as lending support to the liberal approach, but it was stated in Delba Biri v Bill Ginbogl Ninkama that that provision only applies when determining the merits of a case.
20. I have considered the cases advocating the liberal approach, but I must apply the law that prevails now. The principles enunciated in Delba Biri v Bill Ginbogl Ninkama and Holloway v Ivarato are binding on this Court because firstly, they are decisions of the Supreme Court and secondly, they have been applied in numerous election petition cases and considered good law.
21. In Dick Mune v Anderson Agiru & Ors (1998) SC 590, the Supreme Court held that there is no requirement to plead the law which defines a ground. It follows that pleading the law is no substitute for the requirement to plead material and relevant facts which constitute a ground or grounds.
22. The allegation founded on bribery is pleaded at paragraphs 11 and 24 of the petition.
23. Paragraph 11 is in these terms:
"The petitioner also relies on a ground of bribery committed by the First Respondent himself contrary to Section 103 of the Criminal Code Act, Ch.262 in accordance with Section 215 (1) of the Organic Law."
24. Paragraph 24 is in these terms:
"On 7th June 2012 at about 8 am at Malba village (polling area), the First Respondent being a candidate for the Maprik Open seat during the 2012 General National Election did give K100.00 each to,
(a) Tom Pali, an elector, and
(b) Anita Kanai, an elector
and instructed them (both election co-ordinators of the First Respondent) to give K10.00 each to the following electors, among others,
(i) Peter, Loretta Kunduapeh,
(ii) Saowan, Helen
(iii) Vinias, Philomina, and
(iv) Wanpis Aunan."
25. Do paragraphs 11 and 24 plead the material and relevant facts of the ground of bribery?
26. In Agonia v Karo (1992) PNGLR 463, Justice Sheehan observed that when a petitioner alleges bribery as a ground to void an election result, because it is a serious charge of a criminal offence, the allegation in the petition must be pleaded with clarity and definition. At pages 467 and 468 His Honour said:
"It is well recognised that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.
But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code suspending constitutional rights of taking part in the electoral process, as an elector or candidate for parliamentary elections. Such charges, therefore, must be pleaded with clarity and definition. Again because of the seriousness of such allegations."
27. His Honour went on to say at pages 469 and 470:
".......because "an election petition is a very serious thing," because of the serious charges and consequences that petitions engender, it is certainly necessary that any ground alleging a criminal offence must stipulate all the relevant material to establish such an offence. That includes the necessity to spell out in clear terms the elements of that offence.
In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, there must be allegations that this money, that property, or the gift was offered by the successful candidate, and that the reason that it was given or offered was to get a named person to vote, or not to vote, or to interfere unlawfully, as the case maybe, in the free voting of an election."
28. What then are the elements of the offence of bribery?
29. There is no definition of bribery in the Code except that Section 103 sets out various situations when the offence is committed: Agonia v Karo; Powes Parkop v Wari Vele (No 3) (2007) N3322. That therefore necessitates the need to plead the offence with clarity and definition as was stated or proposed by Justice Sheehan in Agonia v Karo and I with respect adopt them. It is therefore necessary to set out in full the provision and it reads:
"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 or property or benefit of any kind:
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector; and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."
30. As to the legislative intent behind this provision, Justice Sheehan in Agonia v Karo said:
"Without analysing this section exhaustively, it is clearly a section designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducement are made to an elector, defined as a person entitled to vote at any election - or sought with the intention of interfering with the lawful process of elections.
It is also clear that there is in s 103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on "account of", or "in order to induce", or "with the intent that", are all phrases that show that the purpose of offering the inducement is an element of the offence."
31. With respect, I would adopt these observations.
32. I find assistance from Form 60 of the Criminal Practice Rules 1987 in working out the elements of the offence of bribery. In this instance, the elements would be:
33. The petitioner invokes the liberal approach advocated by Paru Aihi v Sir Moi Avei and other cases I have mentioned already and urges the Court to accept that the ground of bribery is sufficiently pleaded. However, as I have mentioned already, I prefer the strict approach propounded by Delba Biri v Bill Ginbogl Ninkama and Holloway v Ivarato. For this reason, it is clear from elements 6 and 7 above that the petitioner has failed to plead all the material and relevant facts as is required by Section 208 (a). This is a serious flaw in the pleadings and is fatal. I will uphold the objections and strike out the ground of bribery.
34. The allegation founded on undue influence is pleaded at paragraphs 12 and 25 of the petition.
35. Paragraph 12 is in these terms:
"The petitioner further relies on a ground of undue influence committed by the First Respondent contrary to Section 102 of the Criminal Code, Ch 262 in accordance with Section 215 of the Organic Law."
36. Paragraph 25 is in these terms:
"From on or about 13th January 2012, the First Respondent as part of his election campaign strategy initiated a poultry project called "John Simon's Abelam Mama Moni" Chicken Project in the Maprik Open Electorate and continued to the polling period. Through the said poultry project the First Respondent being a candidate for the Maprik Open Electorate during the 2012 General National Elections, did require potential participants of the said project to deposit a security fee of K400.00 and he promised or undertook to provide chicks and stock feed in return. Later the grown chickens would be sold to the First Respondent at a good price.
One Jerry Wandawan, being an elector, among other electors, participated in the said poultry project and paid his deposit of K400.00 security deposit on or about 13th January,2012, thinking that he would soon collect the chicks and stock feed from the First Respondent. Days and weeks passed. The said Jerry Wandawan and other electors from the electorate who had paid the K400.00 were told by the First Respondent, (and his agents with his knowledge and authority), in the pidgin language, to cast vote 1 to the First Respondent at the polls and take the chicks and stock feed after voting the First Respondent. Eventually, the said Jerry Wandawan was misled into paying K400.00 to the First Respondent for nothing and was refrained from voting freely at the elections because the said elector had given his money to the First Respondent and he had not yet receive the chicks and stock feed promised." (sic)
37. It suffices to say that the principles applying to pleading facts on a ground founded on undue influence under Section 102 of the Code are the same as the offence of bribery: see for example, Agonia v Karo; Bourne v Voeto (1977) PNGLR 298; Charles Luta Miru v David Basua (1997) N1628; Koimanrea v Sumunda (2003) N2421; Sir Arnold Amet v Peter Charles Yama. In Sir Arnold Amet v Peter Charles Yama, Salika, DCJ and Justice Batari said at paragraphs 46 and 47 of the judgment:
"If a petitioner relies on, 'illegal practices' and 'undue influence', it is imperative that he pleads in clear, concise and in sufficient terms, the relevant facts on the essential requirements on the particular ground relied upon. The cases we have cited illustrate the need for relevant facts to be pleaded with precision and accuracy.
The underlying reason for asserting those facts with clarity, precision and sufficient details is so that the opposing party is properly and adequately informed to defend an alleged improper or illegal conduct. This will give him the opportunity to prepare his defence should he choose to contest the proceedings. Besides, it is necessary that the court is fully appraised to see with clarity, the issues to be tried: Holloway v. Ivarato (supra)"
38. Section 102 of the Code states:
"A person who—
(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—
(i) in order to induce him to vote or refrain from voting at an election; or
(ii) on account of his having voted or refrained from voting at an election; or
(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."
39. In Bourne v Voeto, Frost, CJ. held:
"To constitute undue influence under s.102 of the Criminal Code it will be sufficient to prove that a person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud for the purposes thereof including a false statement made by a person to an elector, known to be false or without belief in it's truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the electors exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate."
40. In Sir Arnold Amet v Peter Charles Yama, Salika, DCJ and Justice Batari made the following observations in relation to pleadings concerning an allegation of undue influence under Section 102 (b) of the Code:
"56. To prove the allegations of under influence under s. 102 (b) of the Code, (read together with an illegal practice under s. 215 (3)(b) of the Organic Law), the petitioner must plead in clear, concise and sufficient terms:
(i) The particular ground relied on and whether under s. 102 (b), the winning candidate (Sir Arnold Amet) used force or fraud to induce or refrain an elector from voting at the election.
(ii) If fraud is relied upon, it must be further pleaded that, "a false statement was made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on": Bourne v Voeto [1977] PNGLR 298 at 303.
(iii) The inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.
(iv) It is just that the candidate should be declared not duly elected or that the election should be declared void."
41. It is submitted by the First Respondent that paragraphs 12 and 25 of the petition fail to plead in clear, concise and sufficient terms that:
42. In supporting the First Respondent's objection to the competency of the petition as well as the Third Respondent's on the ground of undue influence, the Second, Third and Fourth Respondents state as the basis for the Third Respondent's objection and it is submitted that consistent with the principle enunciated in Charles Luta Miru v David Basua, the pleadings concerning the offence of undue influence do not:
43. In Charles Luta Miru v David Basua, Justice Sawong made these observations:
"....in the case of undue influence, as well as the specifics of the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector. In other words the pleading must not only include the specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector. The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him."
44. The Second, Third and Fourth Respondents further submit that the chicken project was purely a commercial initiative established well before the 2012 National General Election when the First Respondent was not a candidate. That is a matter to be considered at the substantive trial should this petition be allowed to go that far under this remaining ground and I would disregard the submission at this stage.
45. The petitioner submits that the pleading of facts for allegations of illegal practices should not be in precise terms of the offences, but that the approach taken by the Supreme Court in Korak Yasona v Castan Maibawa and Sauk v Polye which advocate the proposition that so long as substantial allegations are pleaded which in this case concerns the chicken project, the petition should be allowed to proceed to trial. I have considered the cases, but am not convinced that I should disregard the principles enunciated in the cases I have mentioned already which advocate that pleading in clear, concise and sufficient terms is necessary.
46. As the Supreme Court in Sir Arnold Amet v Peter Charles Yama spelt out elements of undue influence under Section 102 (b), I thought it necessary to consider Form 59 of the Criminal Practice Rules 1987 which draws out elements of the offence of undue influence under both Section 102 (a) and (b) and elements proposed by Justice Sawong in Charles Luta Miru v David Basua as well as those suggested by the Second, Third and Fourth Respondents. I would adopt the elements proposed in Charles Luta Miru which I think are incorporated in the elements proposed by the Second, Third and Fourth Defendants and which I think would generally cover the situation under Section 102 (a) of the Code.
47. A person can be charged either under sub-sections (1) or (2) of Section 102 of the Code. There must be an election. At paragraph 12 of the petition, the petitioner only pleads Section 102, but does not specifically plead which of the two sub-sections he relies on. That in my view just leaves the respondents guessing as to what the petitioner's allegations really are. That in itself is a flaw in the petitioner's pleadings. This uncertainty can be figured out from the different or slightly different submissions made by the respondents.
48. Does the petitioner plead all the material and relevant facts with respect to the ground of undue influence for purposes of complying with Section 208 (a) of the Organic Law? I conclude that he has not. I will uphold the objections and strike out the ground.
49. The petitioner having not complied with a condition precedent under Section 208 (a) of the Organic Law, there cannot be any proceedings for hearing on the petition because of Section 210 of the Organic Law.
50. The formal orders of the Court are:
Greg Manda Lawyers: Lawyers for the petitioner
Posman Kua Aisi Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second, Third & Fourth Respondents
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