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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP31 of 2002 NCD
BETWEEN
OPIS PAPO
Petitioner
AND
ELECTORAL COMMISSIONER
First Respondent
AND
KAPPA YARKA
Second Respondent
EP 41 of 2002NCD
BETWEEN
ANTON PAKENA
Petitioner
AND
ELECTORAL COMMISSIONER
First Respondent
AND
KAPPA YARKA
Second Respondent
2003 : 24th January
Waigani : Sevua, J
Counsel:
Mr T. Rei for Petitioner in EP31/02
Mr R. Pato for Petitioner in EP41/02
Mr R. Williams for First Respondents in both EP’s
Mr L. Vava for Second Respondents in both EP’s
SEVUA, J: There are four Motions in both Petitions for hearing on 21st January 2003. In both petitions, the First Respondent had filed two motions essentially seeking extension of time to file and serve affidavits since Directions No. 1 on 10th December 2002 was not complied with.
The Petitioner in EP31/2002NCD has also filed a motion on 20th January 2003 seeking that the Second Respondent’s affidavits filed on 18th December 2002 and served on 3rd January 2003 be struck out.
The Second Respondent in EP41/2002NCD had filed a motion on the morning of 21st January 2003, the day the other motions were fixed for hearing. The Court declined to hear that motion because it was not filed prior to the 18th December 2002, which is the date the respondent’s were to file and serve their affidavits.
At the hearing of the First Respondents motions on 21st January, the reasons for non-compliance with the Court’s direction to file and serve affidavits by 18th December 2002 were advanced. It should be noted at this junction that the First Respondent’s notices of notion were said to have been filed on the 18th December 2002. The Court notes that the Notice of Motion in EP31 of 2002 was dated 17th December 2002 and filed on 20th January 2003, while the motion on EP41 of 2002 was dated 18th December 2002 and filed on 20th January 2003.
On 21st January 2003, I instructed that the reason the motions were formally filed on 20th January 2003 was that they were not brought to my attention at the time they were lodged for filing in December last year, that was why I had allocated 21st January 2003 as the hearing date. The Court also instructed that since these two motions were lodged earlier in time, they would be moved first before the Petitioner’s motion in EP31 of 2002, which motion, as alluded to, was filed on 20th January 2003.
It was during that time the Court was attempted to determine exactly how many motions were on foot that Mr. Vava, counsel for the Second Respondent in EP41 of 2002, informed the Court he had filed a motion that morning, re. 21st January 2003, which motion the Court had refused to hear because it wasn’t filed before or on the 18th December 2002.
In both petitions, Mr. Pato, counsel for the Petitioner in EP41 of 2002 submitted that all affidavits filed and served after the 18th December 2002 ought to be struck out as the respondents were merely validating the Court’s directions to file and serve after the date fixed for filing and serving had expired. Mr. William for the Second Respondent in both petitions then informed the Court that some of his clients’ affidavit were filed "yesterday", being, 25th January 2003.
Mr. Pato relied on the National Court’s decision in Benedict Pisi v. Sam Akoitai and Electoral Commission, N1763, 3rd September 1998, an unreported judgment of Jalina, J who cited three unreported decisions of the Supreme Court, and one unreported decision of the National Court. It must be noted that these applications were adjourned to this morning for decision because I had indicated to all parties, I needed to peruse these judgments. And now that I have had the liberty to do that, I need to stress some important aspects of those cases that have been referred to.
In Benedict Pisi v. Sam Akoitai and Electoral Commission, the petitioner had failed to comply with several directions to file and serve his affidavits. At the trial, he sought to rely on unsworn and unsigned affidavits. Counsel for the Petitioner also sought leave to rely on affidavits filed on the day prior to trial and not served on the respondents. The respondents objected to leave.
In refusing to grant leave to the petitioner to rely on the unsworn and unsigned affidavits and statements signed after the expiry of the date specified in the Court’s directions on 5th August 1998, ie., the petitioner’s failure to comply with the direction to file and serve his affidavit with seven (7) days, the trial Judge relied on the Supreme Court’s decision in Albert Karo v. Lady Carol Kidu and Electoral Commission, unreported, 5th June 1998, and Benias Peni v. Herowa Agiwa and Electoral Commission, unreported, 3rd April 1998.
The trial Judge also relied on two National Court decisions, Stephen Naik Mendepo v. Michael Buku Nali, unreported, [date??] and Korak Yasona v. Castan Maibawa and Electoral Commissioner, unreported, 16th June 1998.
The most and sole striking feature of all these cases is that the petition in each case had failed to comply with the Court’s directions to file and serve his affidavits. This is not the same as in the present applications.
I have already adverted to the petitioner’s failure to comply with directions to file and serve his affidavits in Benedict Pisi. In Albert Karo v. Lady Carol Kidu and Electoral Commission, the statement by the Supreme Court at Page two (2) of its judgment cited in Benedict Pisi at Page six (6) was attributed to the petitioners – "therefore a person who files an election petition bears a hearing responsibility to ensure that the petition is bought for hearing.............".
In Benias Peni v. Herowa Agiwa and Electoral Commission, the applicant’s petition had been dismissed and he sought a review pursuant to s.155 (2) (h) of the Constitution. However, the applicant failed to comply with the Supreme Court direction to file a review book by 27th March 1998, which directions was issued on 19th March 1998. The review book was served on the First Respondent on 30th March 1998, three (3) days outside the date fixed for filing and serving. The Court was provided with copies on the date of hearing when there were supposed to have been filed well before the hearing on 2nd September 1998. The review books were even not certified as .................. by all parties.
I was a member of the Supreme Court which dismissed that application and said amongst other things, "it has been expressed countless times that Election Petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on their speedy dispositions of Election Petitions so that the wishes of the majority expressed in the Election returns and respected. The same argument goes for review applications". Again, that statement is attributed to petitioners. (my emphasis)
In Korak Yasona v. Castan Maibawa and Electoral Commissioner, the petitioner failed to file and serve his affidavits by the date directed by the Court. He had filed the affidavits, but failed to serve them in pursuance of the order. His petition was dismissed by the National Court. He subsequently filed an application for review in Supreme Court, which was dismissed by the Supreme Court on 5th June 1998.
The Supreme Court decision in effect confirmed the National Courts decision to dismiss the petition for non compliance with Court Orders or directions.
I am not sure if the date alluded to, ie. 5th June 1998 is correct as I have not located a copy of that judgment. However, I suspect the date is incorrect because I have perused a copy of the Supreme Court judgment, SC589 of 9th October 1998 in Korak Yasona, which relates to the decision by the National Court in dismissing the petition because of the petitioner’s failure to fully comply with the Court order requiring filing and serving of witnesses' affidavits. I wish to refer to that decision.
The Supreme Court (Hinchliffe, Injia and Akuram, JJ) said at page three (3) of its judgment:
"..........although the facts of Mendepo v. Nali and Karo v. Kidu are slightly different........the common factor in all these cases is that the petitioner was not ready to prosecute the petition on the date fixed for trial either because the petitioner and his lawyer were not present in Court, or the petitioner and his lawyer were present but had not complied with the Court orders requiring filing and serving of witnesses’ affidavits or statements, or the petitioner and his lawyer are present but have not fully complied with such Court orders." (my emphasis)
The Supreme Court was really highlighting the principles in the other cases – Mendepo v. Nali and Karo v. Kidu. The Court said at page three (3):
"we re-emphasized the principles in Karo v. Kidu and Mendepo v. Nali, which recognize the importance of the need for parties in particular the petitioner who bears the burden of proof, to promptly and meaningfully attend to and participate in Pre-trial Conferences in order to assist the Court act the course of conduct for the speedy hearing of Election Petitions. And when the Court makes an order requiring the attendance of parties at a preference conference or for filing and serving of affidavits or witnesses statements prior to the hearing date, the Court expects total compliance with that order. If a party is facing difficulties in fully complying with the order, he should request a further Pre-trial conference and seek an extension or variation of that order; not simply turn up on the trial date and expect the Court to be engaged in another series of Pre-trial conferences". (my emphasis)
I reiterate once again that all the cases cited specifically relate to the petitioner in each petition not complying with Court’s orders or directions. In my view, the principle in those cases highlighted one important aspect of Election Petitions. That is the petitioner must do all he can to prosecute his case so that it reaches a finality without too much delay.
I consider that the wishes of the voters expressed through the ballot in the Election returns are paramount and therefore if a person challenges such a return, he has the onus of proof in proving his allegations, but also he must ensure that he complies with Court directions and orders requiring filing and serving of documents.
The applications before me are from the first respondents except the one filed by the petitioner in EP41 of 2002. Because the cases I have referred to relate to petitioners, it does not mean respondents in petitions are excluded from compliance with Court directions. But I think the petitioners have a more onerous responsibilities than the respondents because it is them who are challenging the votes of the majority if the elections were conducted according to law.
I consider that respondents have the same obligation as petitioners. The (respondents) must ensure that proceedings in election petitions are not unnecessarily delayed, so respondents are obliged to comply with directions issued by the Court unless leave is granted to extend the time for filing and serving of documents or an order is varied on proper application.
After the 1997 National Elections, the Courts were operating through Practice Directions issued to regulate Election Petition procedures. I am not sure if those Practice Directions including a provision for seeking leave to vary an order or direction or application for extension of time to file and serve affidavits.
The current Election Petition Rules came into effect on 11th July 2002 and they were promulgated especially to regulate the conduct of proceedings in Election Petitions following the 2002 National Elections. The rules do not provide specifically for a party to seek leave to extend tome for filing and serving affidavits. However, Rule 17 provides a relief from complying with the rules, and it provides a description to the Court to disperse with compliance.
Since the commencement of the management of Election Petitions in July 2002, I am aware that Judges dealing with the variance stages of the procedures under the Rules have granted leave, upon proper applications, to parties to file and serve affidavits and statements of witnesses where parties have had difficulties in complying with such directions. In some cases, we have refused to grant leave for very good reasons.
It is imperative to appreciate that there are strict time limits in the Rules. It is therefore necessary that these time limits be considered unless giving directions or orders to parties in Election Petitions. We have insisted that parties must comply with directions to file and serve affidavits or statements of witnesses for the sole reason that the various stages of directions must be within the time frame stipulated by the Rules.
We have also insisted that where a party is unable to comply with a direction by the date stipulated, he must file a notice of motion with supporting affidavits prior to or on the date of the expiry of that directions. That is the basis for, refusing the second respondent’s motion filed on the morning of 21st January 2003, the date of hearing of these other motions.
As I alluded to earlier one here, in some cases, granted leave, while in others, refused leave. I must warn all parties to all Election Petitions and their lawyers that this is the sixth month from the date most of the writs were returned to the Head of State. And six (6) months down the track, we cannot continue to talk about filing and serving affidavits and witnesses statements. The Court does not have the luxury of time to continue to bend backwards to a defaulting party because in the Court’s view, all petitioners and respondents have had more than sufficient time.
I am of the view that five (5) to six (6) months is more than sufficient time for the Electoral Commission, and other respondents for that matter, to secure affidavits and statements from their witnesses. The time has come for the Court to be tough on defaulting parties. In this case, the first respondent in both EP31 and EP41 was seeking an extension of two (2) weeks. However, I understand from Mr. William on 21st January 2003 that all the affidavits are now ready to be filed and served.
I should reiterate that the respondents are directed to file and serve its affidavits by 18th December 2002. That direction was issued on 4th December 2002. As the second respondent was unable to comply, it filed its motion on 17th and 18th December 2002, respectively, although the documents could not be sealed and returned on those dates.
By this decision, I am adverting and forewarning parties and those lawyers that as of today, the Court will adopt a very stringent approach to policing its orders and directions. An order or direction to file witnesses’ affidavits or statements by a particular date means exactly that. It does not mean that only filing can be done by that date. It means both the filing and service of such documents must be done by that date. From now one, if a party fails to comply with a direction to file and serve affidavits or statements by a specific date, he will find that the generosity and leniency of the Courts will no longer be extended to him. Depending on the number of times a petition has been before the Courts and was adjourned, a defaulting party will not find much leniency in future.
Therefore, I am now warning everyone that if orders or directions to file and serve affidavits or statements by a specified date has not been complied with, leave will be refused. As I said, we are on the sixth month after most of the writs were returned, and we cannot continue to talk about filing and serving of affidavits and statements. We should be talking about fixing petitions for trials now.
I will insist on total compliance with Court orders or directions from now on so if a party defaults, he will not be grated leave without very exceptional circumstances. I trust that all interested parties in all Election Petitions will take heed of the warning issued in this judgment.
For these reasons stated herein, I will grant leave to the second respondent to file and serve all his affidavits by Monday, 27th January 2003.
The orders I make are as follows:-
Lawyer for Petitioner : T.M. Rei Lawyers
Lawyer for First Respondent : Pato Lawyers
Lawyer for Second Respondent : Nonggorr & Associates
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URL: http://www.paclii.org/pg/cases/PGNC/2003/139.html