Re Disputed Returns for the North Bougainville Open Electorate [1994] PNGLR 396

• Jurisdiction: Papua New Guinea
• Date: 01 July 1994
• Citation: [1994] PNGLR 396
• Docket Number: James Togel v Michael Ogio and Electoral Commission
• Court: National Court
• Year: 1994

Full Title: James Togel v Michael Ogio and Electoral Commission; Re Disputed Returns for the North Bougainville Open Electorate [1994] PNGLR 396

National Court: Doherty J

Judgment Delivered: 1 July 1994

1 Elections—Parliament—bribery—grants from National Development Fund (slush fund) to organisations just prior to election—whether bribery depends on the facts of each case—2 recipients said their votes influenced by reminder at hand–over of cheques that MP was running for re–election—committee screened grant applications—no evidence that statements re election made with the candidate's knowledge or authority

2 Practice and procedure—motion to strike—issue previously ruled on by another National Court judge—decision of National Court is final and conclusive—subject only to review by Supreme Court under Constitution s155

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Doherty J: The Petitioner filed a petition in the National Court sitting as a Court of Disputed Returns seeking a declaration that the election held for the North Bougainville Electorate was void. The original petition contained five grounds. At a preliminary hearing before Judge Salika on 18th September 1992 four of these grounds were struck out. Two of these four grounds related to the 2nd Respondent. As a result there are no allegations against the 2nd Respondent in this Court.

The remaining ground alleges illegal practices by the 1st Respondent and states 21 incidents of bribery by the 1st Respondent at dates in May and June 1992, prior to the election. Before this Court evidence was adduced of 2 only of the incidents alleged. There being no evidence, adduced relating to the others I say nothing further concerning them.

Before dealing with the evidence and the law relating to that evidence, I will deal first with an application Mr Niningi tried, unsuccessfully to raise and subsequently raised again in his submission. This was seeking an Order to strike out the remaining one ground in its entirety on the grounds that it does not comply with s208 of the Organic Law on National Elections. A ruling was given by Salika J in response to the same application by the 1st Respondent to strike out the entire petition in September 1992. In asking this Court to strike out Counsel is effectively asking that it reviews or changes the decision and order of a Court of equal competent jurisdiction. The law is clear, a person is bound by the decision of a Court whether they think it is incorrect or not, until that order is changed by a Court of competent jurisdiction, by way of appeal or review or amendments (Yap v TS Tan [1987] PNGLR 227). S220 Organic Law on National Elections provides that a decision of the National Court is final and conclusive and without appeal. That, of course, does not override the Supreme Court's inherent jurisdiction to review under s155 of Constitution but the fact remains an Order was made by Salika J on application by the 1st Respondent, he cannot come back and ask me to review that decision.

The evidence adduced related to 2 incidents which the Petitioner says were bribery. The Organic Law on National Elections provides at s215(1):

"VOIDING ELECTION FOR ILLEGAL PRACTICES

(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"

S215(3)(a) provides that—

(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;"

"Bribery" is not defined by the Organic Law on National Elections, but it has been held, as Mr Yagi points out, the National Court has held "undue influence" and "bribery" have the meaning in the Criminal Code (Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto [1977] PNGLR 298 and Re Koroba–Lake Kopiago Open Parliamentary Election: Andrew Wabiria v Payale Elo [1977] PNGLR 328.

EVIDENCE

The dates of the election were as follows the Writ was issued on 20th April 1992 and nominations opened on 3rd and closed on 9th April 1992. Polling commenced on 2nd June 1992 and closed on 30th...