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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 64 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE
RIGO OPEN ELECTORATE
TURAI ELEMI
Petitioner
V
SIR ANO PALA
First Respondent
ELECTORAL COMMISSION
Second Respondent
Waigani: Cannings J
2023: 7th & 8th February
ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether facts relied on to invalidate the election adequately set out – s 208(d): whether an attesting witness stated a valid address.
The respondents to an election petition objected to competency of the petition, which consisted of seven grounds of challenge, all relating to alleged bribery or undue influence committed by coordinators of the first respondent (the successful candidate) or the first respondent himself, based on s 215 of the Organic Law on National and Local-level Government Elections. The grounds of objection to competency fell into two categories: (1) general objections to parts of the petition, based on arguments that: (a) the petition includes general statements and opinions by the petitioner, which fail to plead facts and must be struck out; (b) the petition includes ambiguous, convoluted and confusing pleadings; (c) each ground of the petition fails to plead that the first respondent was a candidate; (d) the petition relies incorrectly on s 215(1) of the Organic Law; and (e) the first attesting witness failed to provide a lawful address that meets the requirements of s 208(d) of the Organic Law; and (2) specific objections to each of the seven grounds of the petition, which meant that the petition was in breach of s 208(a) of the Organic Law. The petitioner raised a preliminary point regarding the notices of objection to competency, arguing that each notice was incompetent and ought to be summarily dismissed for being filed or served outside the time set by the Election Petition Rules 2017.
Held:
(1) The first respondent’s notice of objection to competency was filed and served within the 21-day period after the date of service of the petition, in accordance with the Election Petition Rules. The second respondent’s notice of objection was served outside the 21-day period, contrary to the Rules, but that did not render it incompetent as an objection to competency can be made at any time. The fact that it was served late was relevant to costs.
(2) All the general objections were refused as: (a) the general statements and opinions of the petitioner that the first respondent took issue with were inconsequential and did not purport to form the basis of any ground of challenge in the petition; (b) though some parts of the petition contained ambiguous and confusing statements, those statements did not have the effect of rendering the petition incompetent; (c) it was not necessary for each ground of the petition to plead that the first respondent was a candidate; (d) though the petition appears to rely incorrectly on s 215(1) of the Organic Law, when the correct provision appears to be s 215(3), this did not affect the gist of the alleged facts and did not render any of the petition incompetent; and (e) the first attesting witness, by stating his address as “care of” a village, sufficiently stated his address.
(3) The specific objections to grounds 3, 4 and 7 of the petition were sustained, as: ground 3 (alleged bribery of a registered voter with K50.00) vaguely alleged “implicit consent or knowledge” of the first respondent; ground 4 (alleged bribery of three registered voters with K20.00 each) does not allege any knowledge or authority on the part of the first respondent and it was unlikely to be proven that the alleged bribe of such small amounts of only three electors would affect the result of the election; and ground 7 (alleged bribery of 17 members of a fruit picking group with K10,000.00 for fruit picking costs) is too vague as it alleges only that the money was paid to a company and does not allege that any members of the group were registered voters.
(4) The specific objections to grounds 1, 2, 5 and 6 of the petition were refused as those grounds gave sufficient details of the date and place of the alleged bribery and the persons involved and sufficiently alleged that the alleged bribery was committed with knowledge and authority of the first respondent.
(5) Ordered: that the petition proceed to trial on grounds 1, 2, 5 and 6 of the petition.
Cases Cited:
The following cases are cited in the judgment:
Amet v Yama [2010] 2 PNGLR 87
Diau v Gubag (2004) SC775
Fairweather v Singirok [2013] 2 PNGLR 95
Hagahuno v Tuke (2020) SC2018
Isoaimo v Aihi (2012) N4921
Kopaol v Embel (2003) SC727
Counsel:
T Elemi, the petitioner, in person
I M Molloy, for the First Respondent
N Tame, for the Second Respondent
8th February, 2023
GROUNDS OF THE PETITION
2. The seven grounds of the petition are, in summary:
PETITIONER’S PRELIMINARY POINT
3. Each respondent filed a notice of objection to competency in October 2022. The petitioner argues as a preliminary point that each notice of objection is itself incompetent and should be summarily dismissed. He argues that the first respondent’s notice of objection was filed late, outside the 21-day period after service of the petition set by rule 12 of the Election Petition Rules 2017. He argues that the second respondent’s notice of objection, though filed in time, was served outside that 21-day period.
4. I reject the argument regarding the first respondent’s notice of objection. The date of service of the petition was 23 September 2022 when the notice of petition was published in The National newspaper in accordance with rule 8(2) of the Election Petition Rules. The notice of objection was served on 12 October 2022, within the 21-day period.
5. The second respondent’s notice of objection was not served until 14 November 2022, well outside the 21-day period. However, that does not render the objection incompetent as a respondent is able to raise an objection to competency at any time, notwithstanding the time limit set by the Rules, on the authority of the Supreme Court decision in Amet v Yama [2010] 2 PNGLR 87. The fact that the notice was served contrary to the Rules does not prevent the second respondent from relying on it; however, it is a fact that can be considered when the court decides on the costs of the objection.
GROUNDS OF OBJECTION TO COMPETENCY OF PETITION
6. The notices of objection to competency are expressed in different ways and the grounds of objection overlap to a large extent.
7. Mr Molloy for the first respondent focussed his oral submissions on the grounds of objection in the first respondent’s notice of objection, while adding support to some of the other grounds of objection in the second respondent’s notice of objection.
8. Mr Tame for the second respondent added some grounds of objection not expressly included in the notice of objection. However, on the authority of the Supreme Court decision in Amet v Yama [2010] 2 PNGLR 87, I deal with all grounds of objection on their merits.
9. The overarching objection is that the petition does not meet the requirements of s 208 (requisites of petition) of the Organic Law, which 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).
10. I consider that the grounds of objection to competency, comprising the grounds pleaded expressly in the two notices of objection to competency and the grounds relied on in oral argument and written submissions of the second respondent, fall into two categories:
(1) General objections to parts of the petition, based on arguments that:
(a) the petition includes general statements and opinions by the petitioner, which fail to plead facts and must be struck out;
(b) the petition includes ambiguous, convoluted and confusing pleadings;
(c) each ground of the petition fails to plead that the first respondent was a candidate;
(d) the petition relies incorrectly on s 215(1) of the Organic Law; and
(e) the first attesting witness has failed to provide a lawful address that meets the requirements of s 208(d) of the Organic Law.
(2) Specific objections to each of the seven grounds of the petition, which means that the petition is in breach of s 208(a) of the Organic Law.
11. I will deal with each category of objection in turn.
(1) GENERAL OBJECTIONS TO PARTS OF THE PETITION
(a) The petition includes general statements and opinions by the petitioner, which fail to plead facts and must be struck out
12. The second respondent objects to paragraphs 6, 7 and 8 of the petition, which state:
“...A system to move forward...thank you the counting people...as you heard, the system has failed, many of the people who are declared have no right to be declared because the system failed, but because they controlled the system, they were able to get elected. Now I am going to go in and sit next to those people and we will work together knowing that many of those people did not come through the right way...” ... So the secret to Government and governance is to have a very effective system.”
13. I agree with Mr Tame’s submission that the above are general statements and opinions, which do not by themselves constitute grounds of the petition. But I do not agree that they need to be struck out. They are included in part B of the petition, under THE FACTS, which is separate to part C, GROUNDS. This method of setting out the petition is compliant with form 1 of the Election Petition Rules.
14. The general statements and opinions of the petitioner that the first respondent takes issue with are general and inconsequential and do not purport to form the basis of any ground of challenge in the petition. It would serve no purpose to strike out paragraphs 6, 7 and 8; and they do not need to be struck out. I dismiss this ground of objection, 1(a).
(b) The petition includes ambiguous, convoluted and confusing pleadings
15. The second respondent takes issue with paragraph 2 of part C, GROUNDS, of the petition, which states:
The allegations and the particulars of the acts of bribery and undue influence committed by the First Respondent directly or indirectly through his authorized servants or agents are set out below:
16. I agree that this is at first glance confusing as it alleges that the first respondent committed acts of bribery and undue influence directly or indirectly, however when the last clause “through his authorised servants or agents” is read as qualifying the word indirectly, the import of paragraph 2 is clear: it is an introductory allegation that the first respondent has committed acts of bribery or undue influence either directly (by himself) or indirectly (through his authorised servants and agents). Paragraph 2 could have been drafted more clearly, but the looseness of expression is inconsequential given that there are specific allegations pleaded in the following paragraphs described as:
Bribery case 1
Bribery case 2
Bribery case 3
Bribery case 4
Bribery case 5
Bribery and undue influence case 6
Bribery and undue influence case 7.
17. The ambiguity and confusion arising from paragraph C2 do not have the effect of rendering the petition incompetent. It would serve no purpose to strike out paragraph 2 of part C; and it does not need to be struck out. I dismiss this ground of objection, 1(b).
(c) Each ground of the petition fails to plead that the first respondent was a candidate
18. The second respondent argues that all grounds of the petition omit the allegation that the first respondent was a candidate. Mr Tame relies on a passage from the judgment of Kandakasi DCJ in Hagahuno v Tuke (2020) SC2018, at paragraph 81, where his Honour highlighted that it must be alleged and proven that the successful candidate was at the time of the offending, a candidate.
19. It is correct that none of the grounds 1 to 7, each of which alleges the dates on which alleged offences were committed, expressly pleads that the first respondent was a candidate on those dates. However, it is adequately stated in other parts of the petition that the first respondent was a candidate at those times. It is alleged that he nominated at Kwikila on the same day as the petitioner, 28 April 2022. He was declared as the successful candidate on 5 August 2022. It was not necessary for each ground of the petition to plead that the first respondent was a candidate.
20. This is a trivial argument. I dismiss this ground of objection, 1(c).
(d) The petition relies incorrectly on s 215(1) of the Organic Law
21. The second respondent argues that the petition incorrectly relies on s 215(1) of the Organic Law to provide the basis of six of the seven grounds of the petition. Section 215 (voiding petition for illegal practices) states:
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
22. Mr Tame pointed out that grounds 1 to 6 of the petition allege acts of bribery or undue influence were committed by other persons with the authority or knowledge of the first respondent, so the petition should be, at least for those grounds of the petition, based on s 215(3) of the Organic Law. However, the petition only pleads s 215(1). Paragraph 9 of part B and paragraphs 1 and 3 of part C state:
B9 It is alleged that during the campaign and polling period, the First Respondent committed certain acts of bribery and undue influence upon the eligible voters at various locations in Rigo, Central Province to lure, procure, attempt to procure and influence the voters to vote for him to be returned as the member for Rigo Open Electorate.
C1 The Petitioner challenges the return of the First Respondent as the duly elected member for the Rigo Open Electorate on the ground of Bribery and Undue Influence under Section 215(1) of the Organic Law on National and Local-level Government Elections (“Organic Law”), which provides:
“If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void”.
C3 It is alleged that on the basis of the foregoing grounds of bribery and undue influence, the First Respondent had committed illegal practices contrary to Section 215(1) of the Organic Law thus the results of the elections was affected or likely to be affected and that it is just that the First Respondent should be declared not to be duly elected or that the election be declared void.
23. I agree with the criticism of the drafting of the petition and the failure to plead s 215(3) in support of grounds 1 to 6 of the petition. But is this a good reason to dismiss the petition as incompetent? No. The five-Judge decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018 has put paid to entertaining and upholding these sorts of objections. As explained by Kandakasi DCJ and Makail J and supported by Kirriwom J, Mogish J and Manuhu J, such objections only have the effect of summarily dismissing petitions based on serious allegations of electoral misbehaviour including allegations of bribery and other criminal offences, due to technical objections in defiance of s 217 (real justice to be observed) of the Organic Law, which states:
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
24. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies to the hearing of objections to competency, and not only to the trial of the petition.
25. I acknowledge the validity of the criticism that the petition unduly focusses on s 215(1) of the Organic Law, instead of s 215(3). However, this not affect the gist of the alleged facts and does not render any of the petition incompetent. Any confusion created by this looseness of drafting can be remedied at the trial of the petition, in the event that it goes ahead. I dismiss this ground of objection, 1(d).
(e) The first attesting witness has failed to provide a lawful address that meets the requirements of s 208(d) of the Organic Law
26. The second respondent, supported by the first respondent, argues that the first attesting witness, Tau Koro, has given an invalid address, which fails to meet the requirements of s 208(d) of the Organic Law.
27. There are two attesting witnesses, who make the following statements:
I, TAU KORO, a Villager of care of Tauruba Village, Kwikila Township, Rigo District, Central Province, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
[signed]
(Signature of first attesting witness)
SECOND ATTESTING WITNESS:
I, KOMUNA VALA, a villager of Gunugau Village, Kwikila Township, Rigo District, Central Province, WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.
[signed]
(Signature of second attesting witness)
28. The respondents have pointed out that whereas the second attesting witness, Komuna Vala, states that they are a villager “of” Gunugau village, Tau Koro states that they are a villager “of care of” Tauruba village. The introduction of the extra words “care of” has created ambiguity. Mr Tame points out that the ordinary and natural meaning of the words “care of” in relation to an address is that the address provided is not the addressee’s actual address, it is someone else’s address. Tauruba village is therefore not Tau Koro’s real address. The petition must state the real address of the attesting witness. This is a requirement of the Organic Law. It has been breached. Therefore the petition is incompetent and should be dismissed, the respondents argue.
29. In my view the introduction of the extra words “care of” to describe Tau Koro’s address is curious and intriguing. Why would these words be used, when they are not used to describe the other attesting witness’s address? The extra words have certainly provided scope for an argument that Tauruba village is not Tau Koro’s real address. But all things considered, no other address is provided. As the purpose of having attesting witnesses state their occupation and address is to allow them to be easily located if the need arises, where else but Tauruba village would Tau Koro be located?
30. Though the “care of” descriptor remains curious and intriguing, it cannot be regarded as an improper or invalid address. Nor can it be regarded as confusing or misleading. The address provided by Tau Koro meets the requirements of the Organic Law, s 208(d).
31. What would be more curious and intriguing and indeed bizarre would be if I were to dismiss this petition for the reason that one of two attesting witnesses gave their address as “care of” a village. To do so would breach s 217 of the Organic Law and disregard the decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018. I intend to do neither. I dismiss this ground of objection, 1(e).
32. In summary all the general objections to various parts of the petition are dismissed.
(2) SPECIFIC OBJECTIONS TO EACH OF THE SEVEN GROUNDS OF THE PETITION
33. The respondents argue that each ground of the petition is general, vague and ambiguous and in breach of s 208(a) of the Organic Law. The petitioner disagrees, of course, and has responded vigorously in both oral and written submissions. I have carefully considered the competing submissions and concluded that three of the seven grounds of the petition are defective in that they fail to provide sufficient facts, or more correctly allegations of fact, to amount to compliance with s 208(a): grounds 3, 4 and 7.
34. Ground 3 states:
Bribery Case Three
(a) On 13th June 2022, between the hours of 1 pm and 3 pm, during the First Respondent’s campaign speeches break at Tolagele (in Tauruba village), a Goli Tau and a group of young girls and boys performed a dance for the First Respondent at which time, the First Respondent’s coordinator or authorized agent namely a Mr. Mark Vali, walked over to Ms. Goli Tau and another girl and placed a K50 note in their singlets whilst they were dancing.
(b) After the dance, whilst the First Respondent was still seated on the stage watching, Mr Malaga Junior who is the known campaign coordinator of the First Respondent and Master of Ceremony in the presence and knowledge of the First Respondent informed Ms Goli Tau and others that the money given by Mr. Mark Vali was for them to vote for the First Respondent.
(c) Thus, it is alleged that Ms. Goli Tau, age 33 years, a registered voter at Tauruba village was given K50.00 by a Mark Vali, an authorized coordinator or agent of the First Respondent and with his implicit consent or knowledge to procure her vote for the First Respondent to be returned as the member for Rigo Open Electorate.
35. The gist of this ground is the alleged bribery of Goli Tau, a registered voter, with K50.00, given to her by the first respondent’s campaign coordinator. This is alleged to have been done with the “implicit consent or knowledge” of the first respondent. Use of the term “implicit” begs too many questions and I uphold the submissions of the respondents that it is vague and confusing. Given the small amount of cash involved, K50.00, and the nature of the allegation – that the offence of bribery was not committed by the first respondent – the alleged facts are insufficient and do not comply with s 208(a). Ground 3 must be struck out.
36. Ground 4 states:
Bribery Case Four
(a) On the 10th of July 2022, on the polling day at Deugolo village, Rigo, Central Province, a Dori Inara who was the First Respondent’s authorized campaign coordinator for the villages from Senunu to Deugolo, approached certain young men and voters namely, Ismael Sele age 21 years, Junior Kila age 31 years and Collin Gamu age 34 years and nine others including Ani Kilagi who is a known supporter of the First Respondent at Deugolo village, and offered each one K20 and told to vote for the First Respondent.
(b) On 11th July 2022, Sele, Kila and Gamu plus others were each given K20 by Ani Kilagi who received the money from Dori Inara.
(c) Thus, it is alleged that Sele, Kila and Gamu who are registered voters at Deugolo villages were promised and later given K20 each by a Ani Kilagi, a known supporter of the First Respondent in order to induce them to vote for the First Respondent to be returned as the member for Rigo Open Electorate.
37. The gist of this ground is the alleged bribery of three registered voters with K20.00 each on polling day, by a campaign coordinator of the first respondent who told them, through another person, Ani Kilagi, to vote for the first respondent. This ground does not allege any knowledge or authority on the part of the first respondent as to what happened, so it would be necessary to prove that the act of bribery, if proven, would affect the result of the election (Fairweather v Singirok [2013] 2 PNGLR 95). Given the small amount of money involved (K20.00 x 3 = K60.00), it is a very remote possibility that the acts of bribery, if proven, affected the result of the election. Ground 4 of the petition must be struck out.
38. Ground 7 states:
Bribery and Undue Influence Case Seven
(a) On the 2nd June 2022, a Kota Ani age 38 years and 16 other young men were members of the Fruit Picking Group from KAK villages met with the First Respondent at his campaign residence at Korobosea and the First Respondent offered to pay a sum of K10,000.00 to meet all of their costs associated with fruit picking. Such costs related to Police Clearance, Medical Check-ups, NID cards, Passports, etc.
(b) On 17th June 2022, it is alleged that a sum of K10,000.00 was paid to a company Manpower Group which was responsible for organizing the fruit pickers from KAK villages.
(c) Thus, it is alleged that the First Respondent’s offer to give or pay the sum of K10,000.00 to meet the costs of the fruit pickers of which group a Kota Ani is a member was indirectly intended to induce Kota Ani to endeavour to procure the return of the First Respondent as the member for Rigo Open Electorate or to secure the vote of Kota Ani for the First Respondent.
39. The gist of this ground is the alleged bribery of 17 members of a fruit picking group with K10,000.00 for fruit picking costs. The allegation is vague as it alleges only that the money was paid to a company, Manpower Group, but does not say who paid the money or who received the money. It also does not allege that any members of the fruit picking group were registered voters. The allegations of fact in this ground, if proven, are not capable of constituting an offence of bribery or undue influence under ss 103 (bribery) or 102 (undue influence) of the Criminal Code. That is the standard of proof that must be met when a petition is grounded on allegations of bribery and/or undue influence (Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Isoaimo v Aihi (2012) N4921).
40. The alleged facts are insufficient and do not comply with s 208(a). Ground 7 must be struck out.
41. As for the other grounds, 1, 2, 5 and 6, they can be summarised as follows:
1 – alleged bribery of three registered voters from Gamago village with K50.00 each by the first respondent’s campaign manager;
2 – alleged bribery of registered voters at Mamalo village with K9,000.00 cash provided by a campaign coordinator on behalf of the first respondent;
5 – alleged bribery of registered voters of three villages, Keapara, Alukuni and Karawa, with K105,000.00 cash by campaign coordinators of the first respondent;
6 – alleged bribery and undue influence of registered voters at Libunakomano village with K4,000.00 cash by a coordinator of the first respondent.
42. The specific objections to grounds 1, 2, 5 and 6 of the petition are refused. These grounds give sufficient details of the date and place of the alleged bribery and the persons involved and sufficiently allege that the alleged bribery or undue influence was committed with knowledge and authority of the first respondent. I am satisfied that the alleged facts pleaded in these grounds, if proven, are capable of constituting an offence of bribery or undue influence under ss 103 or 102 of the Criminal Code.
CONCLUSION
43. Three grounds of the petition are struck out: grounds 3, 4 and 7. Four remain: grounds 1, 2, 5 and 6. The petition will proceed to trial on those grounds.
44. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the second respondent pay the petitioner’s costs of the objections to competency as it served its notice of objection late, contrary to the Rules, and it argued grounds of objection other than those set out in its notice of objection, and most of its grounds of objection failed. By contrast the first respondent filed and served his notice of objection in accordance with the Rules and almost half of the grounds of objection succeeded.
ORDER
(1) The respondents’ objections to the competency of the petition in so far as the objections relate to grounds 3, 4 and 7 of the petition are sustained, and those grounds of the petition are struck out.
(2) The respondents’ objections to the competency of the petition in so far as the objections relate to grounds 1, 2, 5 and 6 of the petition and other grounds of objection are refused, and those grounds of the petition remain.
(3) The second respondent shall pay the petitioner’s costs of the objections to competency, on a party-party basis, which shall, if not agreed, be taxed.
(4) The first respondent will bear his own costs of the objections to competency.
(5) The petition shall proceed to trial on grounds 1, 2, 5 and 6 of the petition in accordance with directions of the Court.
____________________________________________________________
Elemi Lawyers: Lawyers for the Petitioner
Henaos Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent
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