Luther Akisawa Wenge v Kelly Naru (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, J
• Judgment Date: 26 March 2013
• Citation: (2013) N5123
• Court: National Court
• Year: 2013
• Judgement Number: N5123

Full : EP.NO. 73 OF 2012; In the matter of the Organic Law on National and Local level Government Elections and in the matter of a disputed return of election results for the Morobe Provincial Electorate in the 2012 general elections; Luther Akisawa Wenge v Kelly Naru and Electoral Commission of Papua New Guinea (2013) N5123

National Court: Kirriwom, J

Judgment Delivered: 26 March 2013

N5123

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP.NO. 73 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE MOROBE PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

LUTHER AKISAWA WENGE

Petitioner

AND:

KELLY NARU

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Lae: Kirriwom, J.

2013: 11, 14, 18, 19, 20, 21, 25 February & 26 March

[NO.2]

PARLIAMENT – National Elections – Trial - Petition challenging disputed returns – Bribery alleged against winning candidate personally and by actions and conduct of others – With his knowledge and authority – Need to plead facts with purpose and clarity – Proof beyond reasonable doubt – Allegations unsubstantiated – Petition dismissed – Organic Law on National and Local Level Government Elections (OLNLLGE), ss. 206, 208(a) and 215(1).

EVIDENCE – Fabrication – Lying witnesses and liars

Facts

The Petitioner filed this petition against the First Respondent and grounded it on bribery both by the First Respondent in person and by members of his campaign team on blanket allegations bordering on bribery and undue influence. Ironically, most, if not all, of the Petitioner’s key witnesses are the same very persons who supported the First Respondent during the elections and who are said to be the agents or servants of the First Respondent who committed bribery on behalf of the First Respondent but changed sides to give evidence for the Petitioner.

AW self designated senior committee man for the First Respondent, whose assertion is denied by the First Respondent and his witnesses, claimed he received K25,000 in the company of SP, Aseki District Coordinator for First Respondent’s campaign in Aseki sub district, which claim was strenuously denied by SP and the First Respondent. SP stated that AW was always committee man and staunch supporter of the Petitioner and not once joined the First Respondent’s camp.

The issue was which version of the facts presented was probable of belief? Rejecting the sworn both oral and written testimonies of the petitioner’s witnesses as recent fabrication, Court accepted the version given by the First Respondent and his witnesses and held:

1. In respect of allegation 1, the payment of K25,000 by First Respondent to AW and SP:

a. The story is a recent fabrication by the witness AW concocted after the election, no such money transaction took place and it was a deliberate and malicious lie and therefore bribery claim founded on this allegation is dismissed.

b. In retrospect, this ground and all related grounds are still deficient in meeting the requirements of section 208(a) of the OLNLLGE in the terms of section 103 and section 215(1) and (3(a) of the OLNLLGE.

2. In respect of allegation 2, the payment of K400 by First Respondent to AA:

a. The payment of K400 to AA is not a fabrication, it is true, but it was a lie when AA named First Respondent as the person making payment to him, which is a deliberate lie, when the truth is he received that money from SP, who gave it to him to help in the preparation of food to share on the day of the arrival of First Respondent and his team, not as asserted by AA ie for feeding those who attended the rally after First Respondent and team had left. AA lied to this court and the alleged bribery founded on this allegation is dismissed.

3. As to the third allegation, bribery by servants and agents, namely, payment of money to committee men and scrutineers by AW:

a. This allegation fails as it is dependent on the first.

b. It also fails for not meeting the requirements of section 208(a) OLNLLGE.

c. It also fails because it is not unlawful for a candidate in an election to give money to his committee men and scrutineers to help them in their campaign for him or her.

4. Similarly, the fourth allegation, bribery of Andrew Nengo or both AA and AN by Setra Panao with the knowledge and authority of First Respondent fails for the following reasons:

a. Deficiently pleaded and does not meet the requirements of section 208(a) OLNLLGE in the terms of section 103 of the Criminal Code and section 215(3)(a) of the OLNLLGE;

b. The transaction could not be linked to the First Respondent, it was between Setra Panao and his committee men on behalf of the First Respondent but without his knowledge or authority;

c. Not a valid ground of bribery, if not disqualified by the principle in Palme v Mel (supra) that a candidate cannot bribe his own supporter.

Cases cited:

The State v Tu’uo Ibru [1999] PNGLR N1940

Roger Palme v Michael Mel [1989] N808 (20/12/89)

re Menyamya Open Parliamentary Elections - Neville Bourne v Manasseh Voeto [1977] PNGLR 298

Raymond Agonia v Albert Karo [1992] PNGLR 492

The State v Mole Manipe, Jina Molo, Sam Molo, Yakim Saponga and Wame Lucas [1979] N196

Peter Wararu Waranaka v Gabriel Dusava [2009] SC980

Counsel:

E. Mambei, for the Petitioner

C. Mende, for the First Respondent

J. Talopa, for the Second Respondent

REASONS FOR DECISION

26th March, 2013

1. KIRRIWOM, J.: This is the election petition of Luther Akisawa Wenge, the former Governor of Morobe Province and the losing candidate for Morobe Regional Seat that he successfully defended in the past three or four elections since he won it from its last occupant. However, in 2012 General Elections, he was the runner-up to Kelly Naru, the First Respondent in the petition when he could only muster 83,967 votes to Kelly Naru winning the election with 100,389 votes, a difference of 16, 422 votes, which figure was reached during the elimination count when the tally count reached 50%+1 in favour of the First Respondent.

2. The petition is pursued by virtue of section 215 of the Organic Law on National and Local Level Government Elections (OLNLLGE) on the grounds of bribery by the First Respondent and his servants or agents.

Preliminary matters

3. The petitioner sought by way of notice of motion at the start of his trial, an order for the productions of the common roll for the whole of Menyamya Electorate on the basis that direction issued by the directions judge was for the Electoral Commission to make available all election records by certain date. But these directions were partly complied with when the Electoral Commission only made available common roll for Aseki and not the whole of Menyamya. Both respondents opposed the application.

4. From the responses by counsel for the Respondents, it was revealed that:

a) The directions relied on by the Petitioner to move this application was quite specific in its terms. It read:

“4. The Petitioner and 1st Respondent shall request in writing to the 2nd Respondent copies of Electoral Records by or before close of business on Friday 5th October, 2012”.

b) Only the First Respondent requested such record from the Electoral Commission, no such request was made by the Petitioner.

c) In response to that request, the Electoral Commission forwarded the common roll for Aseki only to the First Respondent.

In the course of the evidence of the witnesses it became clear that the common roll for Aseki was really for Aseki Station which was Ward 10, Aseki being a sub-district of Menyamya District. There were other Council Wards within Aseki sub-district.

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d) The First Respondent was satisfied with that record and did not ask for anything more.

5. The court dismissed the application on the basis of relevance because the only relevant common roll, given the pleadings in the ground of appeal, would be that of Aseki area and this was already provided on request of the First Respondent and annexed to Kelly Naru’s affidavit. It was an irrelevant material to bring before this court and open up new grounds not pleaded in the petition. Bribery allegations which took no issue with voter eligibility of those electors named in the petition does not require the entire Menyamya common roll without falling into the trap of witch-hunt or looking for excuses or reasons to challenge the return of this election.

6. Petitioner sought an order for rejection of two affidavits filed by the First Respondent on the basis that they were filed outside the time specified in the Directions issued by the Directions judge and the other ground was that it deposed to new matters taking the Petitioner...