Sir Pita Lus v Gabriel Kapris and The Electoral Commissioner of Papua New Guinea (2003) N2326

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 06 February 2003
• Court: National Court
• Citation: (2003) N2326
• Year: 2003
• Judgement Number: N2326

Full Title: Sir Pita Lus v Gabriel Kapris and The Electoral Commissioner of Papua New Guinea (2003) N2326

National Court: Kapi DCJ

Judgment Delivered: 6 February 2003

1 Parliament—Elections—Disputed election petition—Requirement for pleading—"Facts" relied upon to invalidate petition—Manner of pleading—Ground for invalidating petition—Need to plead—Organic Law on National and Local–level Government Elections. S208(a).

2 Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298, Holloway v Ivarato [1988] PNGLR 99, Raymond Agonia v Albert Karo [1992] PNGLR 463, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342,

___________________________

N2326

PAPUA NEW GINEA

[In the National Court of Justice at Waigani]

EP 21 OF 2002

BETWEEN

SIR PITA LUS

Petitioner

AND

GABRIEL KAPRIS

First Respondent

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Waigani: Kapi DCJ

5th & 6th February 2003

Parliament – Elections – Disputed election petition – Requirement for pleading – “Facts” relied upon to invalidate petition – Manner of pleading – Ground for invalidating petition – Need to plead – Organic Law on National and Local-level Government Elections. S 208 (a).

P. Parkop for the Petitioner

A. Jerewai for the First Respondent

R. William for the Second Respondent.

6th February 2003

The Hon. Gabriel Lani Kapris (First Respondent) was elected as the Member for Marpik Open Electorate, East Sepik Province in the recent National Elections conducted in 2002.

Sir Peter Lus (Petitioner), an unsuccessful candidate filed an election petition on 16th August 2002 contesting the results of the election. It is convenient to set out the grounds of the petition as well as pleading of facts to support the grounds:

4. Facts Relied upon to Invalidate the Election.

Acts of Bridery and Threatening by the First Respondent

It is alleged that prior to scheduled polling on 27th June 2002 for the Electorate, the First Respondent together with his servants and/or agents have committed or engaged in several acts of bribery and threatening with the knowledge and authority of the First Respondent to procure votes of the registered or eligible electors for the first Respondent, and with the intention to interfere unlawfully in the free voting in elections by voters, thereby contravening, inter alia, Sections 191 of the Organic Law on National and Local-Level Government elections.

The specific instances of the allegations of bribery in the circumstances are as follow:-

Particulars

“(a) On or about 13th June 2002 at Mui Village in the Electorate, a certain witness saw Mr Tobias Bruno, the campaign manager for the First Respondent, giving rice, tinned fish and sugar to the First Respondent’s supporters; and”.

(b) Mr Bruno then announced to about one hundred (100) voters “Yupela kaikai dispela kaikai na votim Gabried Kapris olsem open memba na mi olsem ward memba” and subsequently said “Yumi mas pulim ol lain biling Sir Pita long kam na votim Gabriel na mi”.

(b) At this gathering Mr Bruno stood up with a book in his hand and called out names of villagers who cam forward and received the food. Mr Waimba asked each villager in turn “Who are you going to vote?” If the villagers mentioned the First Respondent’ s name for Maprik and Mr Bruno’s name for ward councillor, then they would receive the food.

(b) A certain witness stepped up to Mr Bruno and said that it was not right to give out food to buy support.

(b) The campaign manager then walked up to the certain witness and said “Noken koros tumas. Mipela I laik pulim sampela voters biling Sir Pita I kam long said biling mipela”. The campaign manager then handed the certain witness a K20 note.

(b) After eating and whilst having tea. Mr Bruno addressed the gathering and said “Yupela kaikai pinis. Nau yupela mas voting Gabriel Kapris na mi long taim bilong vote.

(b) The Campaign Manager also gave out money as a bribe for a certain witness to be silent about the handling out of food to buy votes.

Acts of undue influence by the First Respondent

In breach of Section 102 of the Criminal Code Act (Chapter 262) it has been further alleged that the First Respondent together with his agents and/or servants did engage in the following acts of undue influence committed with the knowledge and authority of the First Respondent in order to induce the registered or eligible voters in vote for the First Respondent (and by their conduct cased the eligible or registered voters to vote against their free will) with the intention to interfere unlawfully in the free voting in elections by electors.

Specific instances of the allegations of undue influence are that the First Respondent directly threatened physical harm if the electors voted for another candidate:-

Particulars

(a) That on or about 1st May 2002, the First Respondent threatened a certain witness by saying to the witness that he will be hurt with the rest of the Petitioner’s supporters. The family members of the certain witness gave their support to the First respondent because of this direct threat.

(b) That on or about 24th May 2002 the First Respondent and/or his servants and agents physically struck a certain witness on the face because he had revealed that he would be voting for the Petitioner and the First Respondent had continually threatened the certain witness.

Unlawful and irregular practices at polling and inadequate security of ballot boxes.

In breach of Section 110 of the Criminal Code Act (Chapter 262) and Section 286(j) (k) (l) (m) (n) (o) (p) and (q) of the Organic Law on National and Local-Level Government elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the second respondent together with his servants and/or agents have committed or engaged in the counting of invalid ballot papers and boxes and interfered with scrutineers with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of the allegations of unlawful and irregular practices at polling booths and inadquate security are as follows:

Particulars.

(a) That a certain witness saw a polling team go to Albiges Mambleb and conducted polling there without the knowledge of any scrutineers and without any scrutineers being present.

(b) That a certain witness saw ballot papers being taken outside of the polling area and given to people to cast their votes and then returned to the polling area.

(c) That a witness saw ballot boxes being kept overnight and not returned by 6.00 p.m. as required.

(d) That a certain witness saw that ballot boxes were transported without any scrutineers present.

A. Irregularities and unlawful acts at counting

In breach of Section 152 and section 153 of the Organic Law on National and Local-Level Government Elections it has been further alleged that prior to the scheduled polling on 27th June 2002, the First Respondent together with his servants and/or agents have committed or engaged in the counting of invalid ballot papers and boxes and interfered with scrutineers with the intention to interfere unlawfully in the free voting in elections by voters.

Specific instances of the allegations of unlawful acts of counting are as follows:-

(a) That certain witnesses saw that there were only twenty-four (24) ballot boxes allocated for the Electorate however twenty-six (26) ballot boxes were counted and that two extra unallocated ballot boxes with numbers ESP 1604 and Serial No. 181693 and ESP 1605 Serial No. 181694 were unlawfully included in the count respectively.

(b) That on 5th July 2002 a certain witness saw marks apart from the required “x” on a ballot paper. The witness reported this to the Presiding Officer, Mr Konrak Manikut, but he ignored this and included this vote in the count for the First Respondent. The same president officer declared the ballot papers that indicated a vote for the Petitioner but which contained...