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Heginto v Tisa [2008] PGDC 127; DC847 (15 December 2008)

DC847

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]
COURT OF DISPUTED RETURNS – LOCAL-LEVEL GOVERNMENT ELECTIONS

LLGEP NO. 24 of 2008

BETWEEN

JAPHET HEGINTO
Petitioner

AND

EIO. J. TISA
First Respondent

AND

R. NAIOVA
Second Respondent

AND

ELECTORAL COMMISSION OF PNG
Third Respondent

Goroka: M. Ipang
2008: September 03, 22
October 03, 27
November 11, 19, 20, 21, 28
December 08, 10, 11

ELECTION PETITION – No Case Submission – based on request for transport assistance – First Respondent gave K600.00 and a lamp Flaps carton to Highway Panthers Rugby team - in front of village crowd – whether this amounted to an offence of bribery.

ELECTION PETITION: Practice and Procedure – No Case Submission adopted on the basis that each case is determine on its facts – Desmond Baira –v- Kilroy Gena followed and adopted in Labi Amaiu –v- Andrew Mald

Cases Cited:

1. Agonia –v- Karo [1992] PNGLR 465
2. Komane Asano Wasege –v- Mathias Karani EP No. 23 of 1997
3. Bourne –v- Veto [1977] PNGLR 298
4. Desmond Baira –v- Kilroy Genia & Electoral Commission (Unreported Judgment of the Supreme Court dated 26th October, 1998 SC579)
5. Labi Amaiu –v- Andrew Mald EP No. 19 of 2007 N3335

Legislations Cited:

1. Organic Law on National and Local-level Government Elections
2. Criminal Code Act 1974, Chapter No. 262

Counsels:

Petitioner: In Person
First Respondent: In Person
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers

15th December 2008

JUDGMENT

M IPANG Magistrate: Petitioner Japhet Heginto filed his petition on the 27th July 2008 alleging the following grounds;

1. On the 10th May 2008 at Komperi, Henganofi District, the First Respondent bribed one HOXI MANAMPA and others K600.00 cash and one carton of lamp flaps to induce them to vote for him;

2. On the 11th May 2008 at West Goroka, the First Respondent gave K100.00 cash money to one KAVIN TOM to bribe him to vote for him; and

3. On the 24th May 2008 First Respondent at Siafa Polling place gave K30.00 as bribed money to Auka Joka to vote for him.

2. This was a contested trial. Petitioner gave evidence and also called Hoxie Manampa and Anis Harry as his witnesses. Petitioner relied on his affidavit sworn on the 21st October and filed on the 23rd October 2008. he deposed in his affidavit that he was a candidate for President of Kafetina LLG. He said he was declared runner-up (second) to the First Respondent on the 19th of June 2008 at Henganofi Station.

3. In paragraph 11 he stated that on the 10th May 2008, E. J. Tisa (physically) gave K600.00 to Hoxie Manampa and others at Komperi Village. On 11th May he said First Respondent gave Kavin Tom K100.00 at West Goroka. He said this was clear bribery.

4. Hoxi Manampa deposed in his affidavit sworn on the 21st October and filed on the 23rd October 2008, especially paragraph 1 that on the 10th May 2008, the First Respondent went to Komperi Village and gave K600.00 in cash and a Carton of Lamp Flaps to me and my boys. He continued in paragraph 4, the entire Highway Panthers Rugby team and the village supporters agreed that we all will cast all our first preference votes for the First Respondent. This witness said the First Respondent bribed them to vote for him. Anis Harry another of Petitioner’s witness filed an affidavit dated 23rd October 2008. he basically deposed of same facts such as these presented by Hoxi Manampa.

No Case Submission:

5. The Petitioner and his witnesses completed their case on the 10th December and the Respondents made a No Case Submission. The counsel for Second and Third Respondents submitted that I should stop the trial at this point because there is no evidence against allegations of bribery.

6. The Respondents submitted that the third (3rd) ground of the petition has been withdrawn by the petitioner already. They also submitted that the second ground that First Respondent bribed Kavin Tom with cash money of K100.00 has not been proven as Kavin Tom did not appear in Court to give evidence. The only ground of the petition left is the allegation that First Respondent gave K600.00 and a Carton of Lamp Flaps to members and supporters of Highway Panthers Rugby team.

7. The First Respondent during Cross-examination and the questions put to the Petitioner and his witnesses did not deny giving K600.00 plus a Carton of Lamp Flaps to the Highway Panthers Rugby team but maintained that the Rugby team seek his assistance for transport to go and play at Okapa. He said based on their request he wen to Komperi village and gave K600.00 in front of the village people to members of Panthers Club.

8. I do agree with the Respondents submission that since Kavin Tom did not give evidence, the second ground of the petition naturally fails. Third ground has been withdrawn by the petitioner. I have only one ground which bribery of K600.00 and a carton of lamp flaps to determine.

9. Whether First Respondent giving K600.00 to Highway Panthers Rugby team upon their own request for transport in front of village crowd amounted to bribery and so First Respondent will have a case to answer?

10. Bribery is a Criminal Offence. Accordingly each of the elements of the Offence must be proved strictly. Obviously, the petitioner bears the onus of proof. (Komane Asano Wasege –v- Mathias Karani EP 23 of 1997 N 1696). It is well established that a petitioner challenging an election return of a successful candidate on the grounds of bribery is in effect, a charge that the election should be overturned because a Criminal Offence has been committed. It is also a trite that the petitioner need only rove on e such offence to invalidate a return. (see Agonia –v- Karo [1992] PNGLR 465).

11. The Authority on No Case Submission in Election Petition cases is the case of Desmond Baira –v- Kilroy Genia and Electoral Commission ( Unreported Judgment of the Supreme Court dated 26th October 1998, SC 579) and followed by Kapi, CJ (as he then was) in Labi Amaiu –v- Andrew Mald and Electoral Commission of PNG EP No. 19 of 2007 (N 3335). Thus, the Supreme Court in Baira Case provided this guidance;

“The intention of the Legislature is clear that the proceedings under the Organic Law are different and therefore it is fundamentally wrong to adopt procedures from any other type of proceedings...

What procedure is adopted for proceedings under the Organic Law is a matter for judges in their law making power to prescribe under s. 212 (2) of the Organic Law. As I pointed out in the Iangalio Case, Judges have not yet made such rules of procedure. In the circumstances, whether or not, a judge should stop a case is a matter entirely up to the discretion of the Court...”

12. The members and supporters of the Highway Panthers Rugby team specifically requested the First Respondent for transport assistance to travel from Komperi to Okapa to play rugby. Based upon their request the First Respondent presented K600.00 and a lamp flaps carton. The Section 103 of the Criminal Code Act, Chapter No. 262 specifically deals with the offence of bribery. Section 103 states and I quote;

“103 Bribery

A person who-

(a) give, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for any person any property or benefit of any kind –

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 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 to an election; or

(d) advances or pays any money to or to the use of any other person with 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.”

13. If what the petitioner alleged the First Respondent had done was contrary to the laws then the section 103 (d) of the PNG Criminal Code Act would be the appropriate but the petitioner’s case would still fall short of satisfying Section 103 (d). Paragraphs (a), (b) and (c) mentioned the person to be implicated should be the person who has the “capacity of an elector.” The definition of the term “elector” is defined by Section 3 of the Organic Law on National and Local – Level Government Elections No. 3 of 1997 which states “Elector” – means a person whose name appears on a roll as an elector;.”

14. The standard of proof required in an election petition to establish a ground of bribery is the same as in a criminal court and must be proved as it is constituted in the Criminal Code, Act. See Bourne –v- Voeto [1977] PNGLR 298 at p. 302 as reported in Raymond Agonia –v- Albert Karo & Electoral Commission [1992] PNGLR 465.

15. I therefore, upheld the No Case Submission and dismiss the petition with costs.

___________________________________

Petitioner: In Person
First Respondent: In Person
Second &Third Respondents: Ms. J. Nidue from Nonggorr & Associates Lawyers