Sheldon Deilala v Richard Masere

• Jurisdiction: Papua New Guinea
• Judge: Geita J
• Judgment Date: 08 February 2018
• Citation: (2018) N7096
• Court: National Court
• Year: 2018
• Judgement Number: N7096

Full : EP No 46 of 2017; In the matter of the Organic Law on National and Local Level Government Elections (Amended) Law 2006 and in the matter of a disputed return of election result for the Ijivitari Open Electorate in the 2017 General Elections; Sheldon Deilala v Richard Masere and the Electoral Commission of Papua New Guinea (2018) N7096

National Court: Geita J

Judgment Delivered: 8 February 2018

N7096

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 46 OF 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (AMENDED) LAW 2006

AND

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE IJIVITARI OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS.

BETWEEN:

SHELDON DEILALA

Petitioner

AND:

RICHARD MASERE

First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Popondetta: Geita J.

2018: 5th & 8th February

PRACTICE & PROCEDURE – Election Petitions – National and Local Level Government Elections – Objection to Competency – Clear and unambiguous pleadings of material facts essential in Election Petitions – Requirements of s. 208 (a) of the Organic Law on National and Local-level Government Elections - The need for facts relied on to invalidate the election or return must be adequately set out.

PRACTICE & PROCEDURE – Election Petitions – National and Local Level Government Elections – Objection to Competency – Bribery allegations – Facts relied on to void an election or return must be clearly pleaded – Courts should not be left double guessing what the illegal intent, and or guilty mind of the primary Respondent - s. 103 Criminal Code Act.

Cases Cited.

Papua New Guinea Cases

Ben Micah v Ian Ling-Stuckey (1998) N179

Delba Biri v Bill Ninkama [1982] PNGLR 342

David Arore v John Warisan (2008) SC1030

Gabriel Kapris v John Simon and The Electoral Commission of PNG (2013) SC1247

Kikala v Electoral Commission [2013] PGSC 48; SC 1295

Ludger Mond v Jeffery Nape (2003) N2318

Michael Kandiu v Hon Powes Parkop (2015) SC1437

Michael Korry v Mogerema Sigo Wei (2013) N5416

Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523

Peter Isoaimo v. Paru Aihi & Electoral Commission (2012) N4921

Peter Waieng v. Tobias Kulang and Electoral Commission EP No. 75 of 2012 (March, 5 & 8, 2012)

Raymond Agonia v Albert Karo & Electoral Commission [1992] PNGLR 463

Robert Kopaol v. Philemon Embel (2003) SC727

Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99

Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Steven Pirika Kamma v John Itanu and Ors (2007) N3246

Yama-v-Yagama (2012) N4928

Overseas Cases

Re Berrill’s Petition v Boothby (SA) (1978) 19 ALR 254

Counsel

G Sheppard and C Copland, for the Petitioner

L Jurth and D Mel, for the First Respondent

J Simbala, for the Second Respondent

This is a ruling on objection to competency of an election petition.

8th February, 2018

1. GEITA J: The Petitioner Mr. Sheldon Deilala was a candidate in the 2017 General Elections for the Ijivitari Open Electorate Seat. On 25 July 2017 the First Respondent, the Honourable Richard Masere of Jonita Village, Ward 8 Local Level Government Popondetta was duly declared as a Member for Ijivitari Open Electorate, having polled a total of 15,245 votes.

2. The unsuccessful candidate Sheldon Deilala is disputing the election of the first respondent as member for Ijivitari Open Electorate. His petition consists of seven (7) grounds of challenge of bribery allegedly committed by or on behalf of the first respondent, Richard Masere.

3. The First Respondent and The Second Respondent rely on their respective grounds of objections pursuant to section 208 (a) of the Organic Law on National and Local Level Government Elections 2007 viz inadequacy of facts in pleadings to invalidate the election. Section 208 is in mandatory terms in that a petition shall set out facts relied on to invalidate the election or return.

4. Section 208. Requisites of petition.

A petition shall -

(a) set out the facts relied on to invalidate the election or return;

(b) specify the relief to which the petitioner claims to be entitled;

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election;

(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).

5. The objections will be determined by addressing each ground of the petition in turn, and setting out the alleged deficiencies in the facts set out in the grounds. A determination on the objection will then be arrived at.

6. Section 103. Bribery.

A person who—

(a) gives, 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 a procession during an election; or

(iii) in order to induce any person to endeavor 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 endeavor to procure the return of any person at an election, or the vote of any person at an election; or

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

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanor.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

7. The First Respondent was heard first, followed by the Second Respond and the Petitioner in that order the same day. During the course of his submissions proper Mr. Jurth for the First Respondent informed court that all reference to invalid attestation in Part C of their objection be withdrawn. (para. 31 – 37). Similarly Part A, para. 1 (a) also be withdrawn. This issue has since been withdrawn by way of an affidavit. This approach is proper in my view as numerous case laws in our jurisdiction have settled this quandary. ( Ref EP No. 75 of 2012, Peter Waieng v. Tobias Kulang and Electoral Commission (March, 5 & 8, 2013), Batari J and the majority view in Paru Aihi v. Sir Moi Avei (No.2)[2003] PGSC11; SC720)

8. At the outset Mr Jurth summarized the four primary objections made in response to the Petition. The first objection principally applies to each of the 7 allegations of bribery in that no facts are pleaded to support a finding of illegal intent or guilty mind. The illegal intent or the guilty mind of the person accused of bribery is an essential element and there is nothing pleaded in respect of any of the grounds that is capable to supporting a finding and for that reason each ground in the entire Petition must fail.

9. The second primary ground is that in respect of counts 2, 3 and 4, the property the subject of the alleged bribe is not particularized. The precise value, the description of the property the subject of the bribe be described and that counts 2, 3 and 4 merely describe it as food. A separate reason why counts 2, 3 and 4 ought to fail. It is a requirement of pleadings.

10. The third primary objection is that there is no pleading to support the requirements of Section 215 (3) (a) of the Organic Law which is required when the alleged bribery is committed by an agent. In the case where it is alleged that the First respondent committed the bribery directly, the requirements of Section 215 (3) of the Organic Law do not have to be complied with. But where what is alleged in that the bribery was committed with his authority and knowledge through someone else then such allegations must be pleaded and must be proved. As there is no pleading anywhere in the Petition to support the requirements in Section 215 (3)....