|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
N7208
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP. NO. 72 OF 2017
IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE JIWAKA REGIONAL SEAT
BETWEEN
SIMON TAKEP KAIWI
Petitioner
AND
DR. WILLIAM TONGAMP
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail, J
2018: 19th & 29th March
ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts pleaded in the petition – Allegation of errors or omissions – Nomination held at undesignated and unauthorised location – Allegations of bribery – Whether sufficient facts pleaded – No and vague facts pleaded to show persons allegedly bribed as a registered voter, or voter, or elector – Bribing of a clansman and strong supporter – Whether a clansman and strong supporter capable of being bribed – Registered voter and elector – Meaning of – Organic Law on National and Local-level Government Elections – Sections 3, 208 (a) & 218 – Criminal Code – Section 103
Cases cited:
Bede Tomokita v. Douglas Tomuriesa & Electoral Commission [2018] N7120
David Wama Sokoreka v. Robert Naguri & Electoral Commission (Unnumbered & Unreported Judgment of 22nd March 2018 per Makail J)
Malakai Tabar v. Hon. Jelta Wong & Electoral Commission [2018] N7121
Counsel:
Mr. T. Kuma, for Petitioner
Mr. M. Kuma, for First Respondent
Ms. R. Kukari, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
29th March, 2018
1. MAKAIL, J: The respondents filed separate notices of objection to competency on 10th October and 2nd November 2017 respectively. They are grounded on the non-compliance with Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”), in that, the petitioner failed to plead facts establishing the grounds of the petition.
Grounds of Petition
2. The petition is divided into four parts. Part A sets out the Introduction, Part B sets out the Background Facts, Part C sets out the Grounds and Part D sets out the Relief. It is grounded on various allegations of bribery, attempted bribery, undue influence and illegal practices at polling.
3. But it will not be necessary to consider all the allegations because at the hearing, the petitioner withdrew the following allegations:
3.1. At paragraph 2.1 of the petition – Illegal return of writ.
3.2. At paragraphs 4.1 to 4.4 of the petition – Illegal practices and hijacking of ballot-papers at Tombil 1 and Tombil 2 Polling Venues.
3.3. At paragraphs 5.1 to 6.1 of the petition – Errors or omissions at counting.
Failure to Plead Facts
4. The remaining allegations are; 1 allegation of nomination at undesignated and un-gazetted locations and 4 bribery allegations. In relation to the first allegation, the first respondent submits that there are no facts pleaded to demonstrate in terms of figures how the alleged illegal act was likely to affect the result of the election under Section 215 of the Organic Law.
5. Mere pleading of facts that constitute breach of provisions defining illegal practices or errors or omissions without pleading essential facts to show how the result of the election is affected or likely to be affected does not satisfy the requirements of Section 208(a).
6. The second respondent submits that the allegation is based on Section 91 of the Organic Law. Section 91 provides for place of nomination. However, the facts pleaded do not clearly indicate if it is an error or omission and whether it is in relation to the place nominations were accepted at or the Returning Officer’s alleged non-compliance with the Electoral Commissioner’s directions to return from Kurumul to Banz.
7. Indeed, it is confusing. It is also not pleaded that the acceptance of the first respondent’s nomination outside the designated or authorised place of nomination was in breach of Section 91 of the Organic Law and how it may be a ground to challenge the first respondent’s return. In any case, the facts do not show that the error affected the result of the election.
8. The petitioner counters this submission and ground of objection by submitting that the facts pleaded are sufficient and demonstrate that designated or authorised place of nomination of candidates at Jiwaka Provincial Electoral office at Banz was abandoned and place of nomination was moved to Kurumul where the Jiwaka Provincial Headquarters is located and nomination took place.
9. The petitioner objected in writing to the Electoral Commissioner to the change of venue of nomination. The Electoral Commissioner responded to the petitioner’s objection by directing the Returning Officer to return to Banz. Despite the petitioner’s objection and direction from the Electoral Commissioner, the Returning Officer received nominations of candidates and conducted other electoral duties at Kurumul.
10. These allegations of fact demonstrate that the Returning Officer made an error and is sufficient to invalidate the election of the first respondent without the need for pleading of further facts to demonstrate how the result of the election was likely to be affected. Further, the Court has an inherent discretion to declare an election void if the error is so grave and blatant.
Nomination at undesignated and un-gazetted location
11. I accept the second respondent’s submission that the facts constituting the alleged error or omission are confusing. This is because it is unclear if the alleged error or omission is the failure by the Returning Officer to conduct nomination at the designated or authorised place of nomination at Banz or failure to comply with the Electoral Commissioner’s directive to return from Kurumul to Banz to conduct nomination.
12. Notwithstanding this, if the alleged error or omission is either of them, I would agree with the respondents that there are no facts to show, in figure terms, how the act complained of was likely to affect the result of the election. For example, there are no figures pleaded to show the total number of votes scored by the petitioner and first respondent at the final count respectively, the difference and the winning margin. Pleading these figures will help the parties and the Court to work out if there is any merit at all (result was likely to be affected) to refer the matter to full trial.
13. In other words, it is not sufficient to declare an election void if the nomination of candidates occurred outside the designated or authorised place of nomination or the Returning Officer failed to comply with the Electoral Commissioner’s directive to return to Banz to conduct nomination. It must be further alleged that the error or omission in the place of nomination was likely or did affect the result of the election. I would strike out this ground for this reason alone.
14. Even the petitioner’s submission that the Court has inherent power to declare an election void without the need to plead facts to demonstrate how the result of the election was likely to be affected, must fail. This is because except where constitutional question(s) is raised which may have the effect of voiding an election (which is not the case here), by virtue of Section 206 of the Organic Law, the National Court is conferred exclusive jurisdiction to determine an election dispute by way of an election petition. The exercise of jurisdiction is subject to the Organic Law and subsidiary regulations.
15. Where an error or omission is alleged, for instance, nomination taking place outside the designated or authorised place of nomination or a failure to comply with the Electoral Commissioner’s directive to return to a designated or authorised place of nomination, the exercise of power by the Court is subject to Section 208(a) and 215 of the Organic Law where there must be facts pleaded to demonstrate how the result of the election was likely to be affected.
16. For this further reason, this ground is struck out.
17. As to the bribery allegations, the respondents submit that the first respondent’s knowledge or authority in each case is a material fact where the first respondent’s return is sought to be invalidated under Section 215(1) of the Organic Law. For this reason, it is insufficient to rely on acts of other persons who are strong supporters and campaign committee members of the first respondent to connect or show the nexus between him and the act complained of to constitute the offence of bribery. Further, a supporter cannot be bribed.
18. Secondly, the facts do not disclose each alleged recipient of the purported gift as an elector and its omission will result in no foundation in the pleadings to support and prove a charge of bribery of an elector under Section 215 of the Organic Law and Section 103 of the Criminal Code.
19. The petitioner opposes the objections and submits that what the respondents are asking him to do is to give “particulars” of each allegation which is not a requirement of Section 208(a). On the other hand, the facts as pleaded are sufficient and the petition satisfies the requirement of Section 208(a) of the Organic Law.
20. In each instance of bribery, the facts identify the person allegedly bribed and as a registered voter. The term “registered voter” should be given a liberal meaning and would also mean an “elector”. The date and place of the alleged bribery are also pleaded.
21. According to Section 103 of the Criminal Code and various cases, the facts that are considered material to establish the essential elements of the offence of bribery are:
21.1. Identity or the person by name who is bribed.
21.2. Identity or the person by name who bribed another.
21.3. The form and value of the property or amount of money given or offered.
21.4. The purpose of the giving or offering.
21.5. The person bribed is an elector.
21.6. Date of the bribery incident.
21.7. Place of the bribery incident.
Bribery at Kola village, Minj, Jiwaka Province on 16th June 2017
22. The facts pleaded at paragraph 3.1 constituting the first ground of bribery at Kola village, Minj, Jiwaka Province on 16th June 2017 are as follows:
3.1.1. On Friday 16th June 2017, whilst on the official campaign trail (sic) as a nominated candidate for Jiwaka Regional Seat, the First Respondent travelled with his delegation to Kola Village in Minj, Jiwaka Province, upon invitation from some of his supporters, led by Noah Enzin who is a registered voter at Angenmol Rest-house in Anglimp South Waghi Electorate in Jiwaka Province. Whilst at Kola Village, the First Respondent gave K46,000.00 cash, all in K100 notes and three pigs to the voters who were gathered there, as particularised below.
3.1.2. The cash amount of K46,000.00 was distributed in the following manner, in accordance with the different clans of the Konombuka Tribe;
3.1.3. There was a very big crowd of several thousand people, voters who had gathered to get money from the First Respondent. There was a lot of excitement there and some of the young boys were drinking. Sometime towards the afternoon the First Respondent and his delegation, including his Executive Officer Benny Keu, arrived. He was also accompanied by Robert Ope, one of the candidates contesting the Anglimp South Waghi Open Seat in Jiwaka Province.
3.1.4. During the ceremony Robert Ope made public statement to the people/ voters gathered there to vote for First Respondent as their first choice as they would surely receive basic services when he got elected as the governor.
3.1.5. During the presentation of the cash amount of K46,000.00, all in K100 notes and three pigs, that were already slaughtered and cooked, the First Respondent said “money blo rot bai mi kam givim bihain taim yumi go bek lon gavaman displa mani na pig em blo yupela lo kaikai na givim vote 1 lo mi”, meaning “The money for the road will be given when we get back into power. This money (referring to the K46,000.00 and pigs are for your consumption. Spend it and give me your first votes”.
3.1.6. The entire event was witnessed by Kanzip Kaipek, Roka Kaime, Jim Pundi, Jimbin Nangen and many other registered voters who were present there.
3.1.7. The First Respondent made a further commitment of K500,000.00 for the new proposed Puamil SDA High School. He said this project will kick-start (sic) as soon as he goes into office.
3.1.8. During polling at Angenmol village, most of the voters at Angenmol Resthouse voted for First Respondent.
23. The pleading at para. 3.1.1, identifies the date and place of the alleged bribery as being Friday 16th June 2017 at Kola village in Minj, Jiwaka Province. It also identifies Noah Enzin as the person who led some of the supporters of the first respondent who invited the first respondent to Kola village. It further identifies the form and value of the property as being cash of K46,000.00 and three pigs.
24. Then the pleading at para. 3.1.2, identifies the distribution of K46,000.00 out of which Noah Enzin received K10,000.00. But if by these pleadings, it is alleged that Noah Enzin is a supporter of the first respondent, then I would agree with the respondents’ submission that it is incapable of supporting a charge of bribery because a supporter is incapable of being bribed.
25. The pleadings at paras. 3.1.1 and 3.1.3, identify the first respondent as being present at Kola village on the given date after having arrived with his Executive Officer, Benny Keu. He was also accompanied by Robert Ope, one of the candidates contesting the Anglimp South Waghi Open seat in Jiwaka Province.
26. The pleading at para. 3.1.4, identifies Robert Ope as uttering to the people/ voters who had gathered, to vote for the first respondent as they would receive basic services if the first respondent got re-elected as Governor. By this pleading, it shows that by being present and in the company of Robert Ope, the first respondent was aware or had knowledge of what Robert Ope uttered to the people to connect the first respondent to what Robert Ope uttered within the meaning of Section 215(3)(a) of the Organic Law.
27. Notwithstanding this, the pleading at para. 3.1.5, identifies the first respondent as uttering words to the effect that the K46,000.00 and pigs were for the people to use and consume. Further, that money for the road will be given later if he is re-elected. Para. 3.1.7, further identifies the first respondent as promising K500.000.00 for a new proposed Puamil SDA High School which would start as soon as he is returned to office.
28. But the critical one is para. 3.1.6. It identifies the persons as Kanzip Kaipek, Roka Kaime, Jim Pundi and Jim Nangen as being witnesses to the “entire event” but it is not alleged that they are registered voters, or voters, or electors. In my view, the facts as pleaded assume that these named persons were registered voters, or voters, or electors and this is vague and insufficient. To not express it clearly but vaguely is as bad as not pleading it at all as in Bede Tomokita v. Douglas Tomuriesa & Electoral Commission (2018) N7120 and David Wama Sokoreka v. Robert Naguri & Electoral Commission (2018) N7207 cf: Malakai Tabar v. Hon. Jelta Wong & Electoral Commission (2018) N7121.
29. On the other hand, I would accept as being sufficient if it is expressed in this paragraph that Kanzip Kaipek, Roka Kaime, Jim Pundi and Jim Nangen are registered voters, or voters or electors. It is my respectful view, that the failure to clearly and expressly plead that these named persons were registered voters, or voters or electors renders the entire ground untenable and must be struck out. It is accordingly, struck out.
30. Even the pleading at para. 3.1.8, is not useful or worthy of any consideration because it does not identify the persons or names of those voters at Angenmol village who voted for the first respondent. And a generalisation is insufficient. It is also struck out.
Bribery at Kondigaime Market, Minj, Jiwaka Province on 24th June 2017
31. The facts pleaded at paragraph 3.2 constituting the second ground of bribery at Kondigaime Market, Minj, Jiwaka Province on 24th June 2017 are as follows:
3.2.1. On Saturday 24th June 2017, Komiken Kome, a registered voter at Kondigaime market in Minj with some of his clansmen when the First Respondent and his wife Berth Tongamp came in a brown Toyota Landcruiser, 5 door, Registration # HAT 035 at around 9:30-10:00 am. The First Respondent wore brown sandals, blue faded jean and a green T-shirt.
3.2.2.The First Respondent came out and shook hands with them. He uttered the following words in Tok Pisin “mi givim pig na moni lo ol narapela Konombuka lain pinis tasol yupela Gaime Anspa Kanem ino yet so yupela kam lon Tombil village after lotu tomorrow na kisim ol samting blo yupela” which when translated means;
“I gave pigs and money to the other Konombuka clansmen already but not the Gaime Anspa Kanem clan. You people can come to Tombil Village tomorrow after church service and get your pigs and money.”
3.2.3. After uttering the above words, he gave K1,000.00, all in K100 notes to Boma Takur Mond, one of the clansmen and a registered voter at Ngunba Tsents Rest-house, and said “Dispela moni blo yupla lo baim buai, smoke na cola na campaingn lo mi”. “This money is for you all to buy betel-nut, smoke and Cola and campaign for me.”
3.2.4. Boma Takur Mond, on behalf of all the other voters who were present, took the money, thanked him and he left with his wife. Boma Takur Mond took the money and went down to Numkua Village, changed the money and shared it amongst whoever was there. Komeken Erwin got K5.00 as there were many people.
32. The pleading at para. 3.2.1, identifies the date and place of the alleged bribery as being Saturday 24th June 2017 at Kondigaime market in Minj, Jiwaka Province. It also identifies Komiken Kome as being a registered voter.
33. Then the pleading at para. 3.2.2, identifies the first respondent as being present at the given time and place and uttered words to the effect that he was inviting Komiken Kome and others to visit him at his village and collect their pigs and money. If by this pleading, it is intended to show that the first respondent promised or offered a gift (pigs and money) to Komiken Kome to in order to procure his return, the facts fall short of establishing it. This is because it is not alleged the first respondent promised or offered the pigs and money to procure his return or that Komiken Kome will vote for him.
34. The pleading at paras. 3.2.3, identifies the form and value of the property as being cash of K1,000.00 (K100 notes) and giving of the money to Bona Takur Mond, one of the clansmen and a registered voter at Ngunba Tsents Rest-house. It further, identifies the first respondent as uttering words to the effect that the money was for them to buy betel-nut, smoke and Cola (soft-drink) and campaign for him.
35. However, there are no facts pleaded to demonstrate that the first respondent gave the money to procure his return or for Bona Takur Mond to vote for him. What has been pleaded is that the purpose of the first respondent giving the money was for Bona Takur Mond to buy betel-nut, smoke and soft drinks and campaign for him. Given this, the facts do not support the purpose or the element of inducement or procurement of voters to vote for the first respondent.
36. At para. 3.2.4, the pleading only fortifies this view because it identifies Bona Takur Mond receiving the money, thanked the first respondent and went to Numkua village and “shared it amongst whoever was there.” Again, there is nothing to show that the money was given to induce or procure the return of the first respondent. Even the reason for the person identified as Komeken Ervin receiving K5.00 is not pleaded.
37. It is my respectful view that the failure to clearly and expressly plead that the purpose of giving the money to the named persons claimed to be registered voters renders the entire ground untenable and must be struck out. It is accordingly, struck out.
Bribery at Tombil Village, Minj, Jiwaka Province on 28th June 2017
38. The facts pleaded at paragraph 3.3 constituting the third ground of bribery at Tombil Village on 28th June 2017 are as follows:
3.3.1. On Wednesday 28th June 2017, the First Respondent invited members of the Gaimekanem, Anspakanem, Kambkanem and Pongkup clans of the Konombuka Tribe, all of whom were registered as voters at the Ngumba Tsents Resthouse, to his Tombil village.
3.3.1 (sic). They were called into his yard by his coordinators, including his wife Bertha Tongamp.
3.3.2. The First Respondent gave members of the above-mentioned clans eight (8) pigs, one of which was valued at K5,000.00, two for K4,000.00 and the remaining five at K2,000.00 each.
3.3.3. In his presence, with the knowledge, consent and authority, his wife Bertha Tonganp handed over the pigs to the clansmen, whilst the First Respondent advised them to slaughter the pigs and wait for him. He would give them the money later.
3.3.4. Between 1:00 am and 2:00 am on Thursday morning, the First Respondent came into his yard and met them. He pulled some bundles of hard cash, all in K100 notes and game (sic) them to Sam Taime, one of his tribesmen and strong supporters.
3.3.5. The First Respondent gave a total of K24,000.00 cash to the people, through Sam Tamie, in the following manner.
3.3.6. Sam Taime took the money and handed cash of K3,000.00 meant for Anspa Kanem clan to Joe Ger, and Anspa Kanem clansman and a strong supporter of the First Respondent. K3,000.00 each was given to the four (4) clans named above.
3.3.7. Some of the eligible and registered voters from Ngumba Tsents ward/resthouse who were there are Simon Mek, Moses Ger, Sakarias Ger, Jeffrey Kuringa, Pok Dau, Aku Ger, Wus Ger, Wari Bule, Maria Pare, Oike Ger, Joe Ger Ngnants, Moni Ape, Nol Kumbukgal, Ape Gele, Ape Gele, Wai Umbe, Tumun Kumbukgal, Roselyn Samson, Pare Umbe, Muk Paknge, Moses Tei, Kennedy Moases, Robert Miam, Bart Wak, Tumal Benny, Boma Mond, Mek Peu, Jessica Mek, Kuma Ngants and so many others.
3.3.8. The money was held by leaders from the four different clans and shared amongst those who were present so as the pork. K12,000 in cash of was given to the four (4) different sub-clans whilst another K12,000.00 was put in envelopes and given to our leaders like Tumal Benny, Kaman Alake, Boma Mond, Kuma Ngants, Muk Paknge, Kaman Topi, Andrew Tas ALAKE, Kuru Alake, Issac Muk and Paul Tumun. The names of all these people were called out and they stepped forward to get their envelopes, containing money. After they got their money, they said thank you to William Tongamp, shook hands with him and came back.
39. The pleading at para. 3.3.1, identifies the date and place of the alleged bribery as being Wednesday 28th June 2017 at Tombil village in Minj, Jiwaka Province. But it does not identify the members of the named clans of Konombuka Tribe who were registered voters and invited by the first respondent. This pleading is vague and insufficient.
40. While facts pleaded at para. 3.3.2, identify the form and value of the property as being eight (8) pigs, one of which was valued at K5,000.00, two for K4,000.00 and the remaining five at K2,000.00 each, they were given to the first respondent’s clansmen and not to induce them or procure the first respondent’s return or for them to vote for him. This pleading is insufficient to support the element of inducement or procurement of the first respondent’s return.
41. Even the facts pleaded at para. 3.3.3, that the first respondent’s wife with his knowledge, consent and authority handed over the pigs to the clansmen does not identify who these clansmen are. Again, this pleading is vague and insufficient in terms of identifying the person(s) who were allegedly bribed.
42. Similarly, the facts pleaded at paras. 3.3.4, 3.3.5 and 3.3.6 identify the first respondent as giving a total of K24,000.00 to a Sam Tamie, one of his tribesmen and strong supporter. But first, what was the money for? What is the reason for giving the money? The pleadings do not disclose the purpose or reason for the giving of the money. Secondly, I accept the respondents’ submission that as a tribesman and strong supporter of the first respondent, the giving of K24,000.00 to Sam Tamie is incapable of supporting a charge of bribery because a supporter of an candidate is incapable of being bribed.
43. The same reasoning goes for the pleading at para. 3.3.6 which identifies Joe Ger, an Anspa Kanem clansman and a strong supporter of the first respondent. Such a pleading is incapable of supporting a charge of bribery because a supporter is incapable of being bribed.
44. The facts pleaded at para. 3.3.7 identify some of the eligible and registered voters from Tsents Ward/ Rest-house who were present as being Simon Mek, Moses Ger, Sakarias Ger, Jeffrey Kuringa, Pok Dau, Aku Ger, Wus Ger, Wari Bule, Maria Pare, Oike Ger, Joe Ger Ngnants, Moni Ape, Nol Kumbukgal, Ape Gele, Ape Gele, Wai Umbe, Tumun Kumbukgal, Roselyn Samson, Pare Umbe, Muk Paknge, Moses Tei, Kennedy Moases, Robert Miam, Bart Wak, Tumal Benny, Boma Mond, Mek Peu, Jessica Mek, Kuma Ngants.
45. But there are no facts pleaded to show first, that these named persons received the money and the amount each received, secondly the purpose or reason for the first respondent giving the money. As to the second point, there is nothing to show that the money was given to induce or procure the first respondent’s return or for these named persons to vote for him.
46. Similarly, while the facts pleaded at para. 3.3.8, identify Tumal Benny, Kaman Alake, Boma Mond, Kuma Ngants, Muk Paknge, Kaman Topi, Andrew Tas Alake, Kuru Alake, Issac Muk and Paul Tumun as being leaders of the different sub-clans who received K12,000.00 out of the K24,000.00 given by the first respondent, it suffers from the same defects as pointed at [45] above. All that is apparent from this pleading is that these named persons were individually called to receive an envelope (amount of money not disclosed) and each stepped forward, received the envelope from the first respondent, thanked him, shook his hands and returned to his seat. Such a pleading fails to disclose the intention or motive of the first respondent to give the money to these people.
47. In addition, by the pleading in this paragraph, it is not alleged that these named persons were registered voters, voters or electors. Thus, it is not for the respondents and the Court to guess or assume that these persons were entitled to vote and did vote.
48. For these reasons, this ground is struck out.
Bribery at Tombil Village, Minj, Jiwaka Province on 24th June 2017
49. The facts pleaded at paragraph 3.3 constituting the fourth ground of bribery at Tombil Village on 24th June 2017 are as follows:
3.4.1. On 24th day of June 2017, Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi, Peter Negints, Kapil Kondi and several other persons from Kosge and Golnamne villages in the Angenmol Rest-house in Jiwaka Province, all adult registered voters, went to Tombil village upon a personal invitation from the First Respondent.
3.4.2 All the above named persons had gone with Kapil Kondi, a woman who is originally from the Berepka Tribe (First Respondent’s tribe) but married to the Konombuka Tribe. She is the mother of voter Paul Kondi, a registered voter who was part of the delegation.
3.4.3. At around 2.00pm, on that day, they were called into the yard by the First Respondent, who personally thanked them for coming and expressing their support for him to regain the governorship of Jiwaka Province. He gave them K2,000.00 cash, all in K50 notes and one huge pig, which would be valued at about K5,000.00. The First Respondent told them to go and campaign for him and vote for him. With the cash, they were also given 100 posters of William Tongamp. They shared the money amongst themselves and sold the pig on the way home and got another K1,000.00 which was also shared.
3.4.4. During polling on the 4th July 2017 at Angenmol Rest-house, most of the voters, including some of them that got bribed by the First Respondent and who were given the money and pig voted for the First Respondent as their first choice for the Jiwaka Regional Seat.
50. The pleadings at para. 3.4.1, identifies the date and place of the alleged bribery as being 24th June at Tombil village in Minj, Jiwaka Province. It also identifies Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi, Peter Negints and Kapil Kondi as being registered voters and at Tombil village at the invitation of the first respondent. I would accept the petitioner’s submission that a registered voter and elector can be used interchangeably as they convey the same meaning; that a person is entitled to vote: see Bede Tomokita (supra) and Section 3 of the Organic Law.
51. According to the pleading at para. 3.4.2, these named persons went with Kapil Kondi, a woman who is originally from Berepka Tribe where the first respondent comes from. Kapil Kondi is the mother of Paul Kondi, a registered voter and a member of the visiting delegation to the first respondent.
52. At para. 3.4.3, the pleading identifies the first respondent as uttering words of appreciation for their attendance and support to regain the governorship of Jiwaka Province. But unlike the previous grounds where it was expressly pleaded that the persons identified as receiving money and/or pigs from the first respondent were his clansmen or supporters, it is not alleged here that the persons identified are clansmen and supporters of the first respondent.
53. It also identifies the first respondent as giving these named persons K2,000.00 cash, all in K50 notes and one huge pig valued at K5,000.00. It further identifies the first respondent as uttering to them to go and campaign and vote for him. They were also given 100 posters of the first respondent. They shared the money, sold the pig for K1,000.00 and shared the proceeds.
54. Finally, according to the facts pleaded at para. 3.4.4, during polling on 4th July 2017 at Angenmol Rest-house, most of the voters including some of them that received money and pig from the first respondent, voted for the first respondent as their first choice for the Jiwaka Regional seat.
55. Reading the facts as a whole from paras. 3.4.1 to 3.4.4, I am satisfied that there are sufficient facts identifying the persons who received money (K2,000.00) and pig from the first respondent at Tombil village on 24th June 2017 as Paul Kondi, Robert Erick, Kalister Geruye, Jimbin Kondi, Peter Negints, Kapil Kondi. They are also identified as registered voters. On the presentation of the gifts, the first respondent is alleged to have uttered to them amongst other things, to vote for him. Given the receipt of the gifts and what they heard from the first respondent, on 4th July 2017, they cast their votes for the first respondent.
56. This ground is competent and is allowed to proceed to trial.
Conclusion
57. In conclusion, out of the five allegations, 1 allegation of nomination at undesignated and un-gazetted location and 4 bribery allegations, only 1 bribery allegation is competent. The rest are incompetent and struck out.
Order
58. The orders are:
________________________________________________________________
Tumun Kuma Lawyers: Lawyers for Petitioner
Kuma Lawyers: Lawyers for First Respondent
Kimbu & Associates: Lawyers for Second Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2018/125.html