N2856

PAPUA NEW GUINEA
[In the National Court of Justice]

EP 01 of 2005

BETWEEN

DANIEL DON KAPI
Petitioner

AND

SAMUEL ABAL
First Respondent

AND

ANDREW TRAWEN
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani	:	Sevua, J
2005		:	23rd & 31st May

ELECTIONS - Parliament – Election Petitions – Direction Hearings – Directions to file and serve affidavits – Failure to comply – Whether or not petition should be dismissed.

Election Petitions – Directions Hearing – Petitioner directed to file and serve affidavits within certain time – Petitioner failed to comply - Petitioner’s failure to seek extension of time to file and serve affidavits – No application for extension within the time directed – Whether petition should be dismissed.

Held:

1.	Because election petitions are serious matters and not ordinary civil causes of 
action, parties, especially a petitioner, bears a heavy responsibility in ensuring that the further conduct of his petition through compliance with orders or directions issued by the Court is vital to his challenge.

2.	Where a petitioner fails to comply with the orders or directions issued by the Court, his petition will be dismissed.

3.	Where a petitioner is directed to comply with any order or direction of the Court in the further conduct of his petition, and the time given him expires, he must promptly come to court to either seek an extension of time or ask for further directions in regard to compliance. Such an application must be filed and made within the time given him to file and serve his affidavits or take any other action.

Cases cited::

Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342.
Korak Yasona v. Castan Maibawa & Electoral Commissioner of Papua New Guinea (1988) unreported, SC 589, 9th October 1998 (Hinchliffe, Injia & Akuram, JJ).
In the Application of Albert Karo (1998) unreported and unnumbered, 5th June 1998 (SCR 48 of 1998) (Los, Woods & Sawong, JJ).
Steven Naik Mendepo v. Michael Buku Nali (1998) unreported and unnumbered, (SCR 46 of 1998) 5th June 1998 (Amet, CJ, Sakora & Sevua, JJ).
Korak Yasona v. Castan Maibawa & Electoral Commission (1998) unreported and unnumbered, (EP 21 of 1997) 16th June 1998 (Sawong, J).
Steven Naik Mendepo v. Michael Buku Nali (1998) unnumbered and unreported (EP 8 of 1997) 9th April 1998 (Andrew, J).
Benedict Pisi v. Sam Akoitai & Electoral Commission, (1998) unreported, (EP 57 of 1997) N.1763, 3rd September 1998, (Jalina, J).
Opis Papo v. Electoral Commission & Kappa Yarka & Anton Pakena v. Electoral Commission & Kappa Yarka (2003) unreported, N.2350, (EP 31 of 2002 & EP 41 of 2002) 24th January 2003 (Sevua, J).
Benias Peri v. Herowa Agiwa & Electoral Commission (1998) unreported and unnumbered, (SCR 13 of 1998) 3rd April 1988 (Amet, CJ, Jalina & Sevua, JJ).

Counsel:
Mr. P. Parkop for Petititioner
Mr. P. Korowi for First Respondent
Mr. R. William for Second Respondent

31st May 2005

SEVUA, J:	By way of a notice of motion filed on 12th May 2005, the second respondent, the Electoral Commissioner of Papua New Guinea, supported by the first respondent, sought an order that this election petition be dismissed for want of prosecution or failure to comply with orders or directions issued by the Court. The applicant also sought an order for costs. The application is supported by the affidavit of counsel, Mr. Ray William sworn on 11th May 2005 and filed on 12th May 2005.

The facts are not in dispute. The petitioner, Daniel Don Kapi has challenged the return of the first respondent, Samuel Abal, as the Member of Parliament for the Wabag Open Electorate in Enga Province for the second time since the National General Elections in 2002. The first time the first respondent was returned as elected was following his declaration on 1st August 2002. The petitioner challenged that result in EP 57 of 2002 resulting in the National Court voiding the election of the first respondent and the Court consequently ordered a by election. The current Election Petition EP 01 of 2005 stems from the return of the first respondent as the elected Member of Parliament for Wabag Open Electorate again following the by elections in which the first respondent was declared elected on 29th November 2004.

The petitioner filed his petition on 7th January 2005, although there is an issue involving the filing of two petitions. On 21st March 2005 the parties attended Directions Hearing before Kandakasi, J at Waigani, as I was in Madang on circuit. The Court issued several orders or directions in respect of the further conduct of this matter. Order No. 4 directed the petitioner to file and serve his witnesses’ affidavits by 18th April 2005. The respondents would reply on 25th April 2005. Parties were further directed to meet in conference on 2nd May 2005 to discuss witnesses’ affidavits; settle agreed and disputed facts, and the legal and factual issues to be tried. The matter was returnable on 16th May 2005 for Pre-Trial Conference.

However, on 16th May 2005 when this matter returned to my Court, neither the petitioner nor his counsel were present in Court. At that time, the Court was informed by Mr. William, counsel for the second respondent, that this application was pending. Counsel for the first respondent, Mr. Korowi informed the Court that the first respondent also has another application on foot. The Court then adjourned the motions to 1.30pm on Monday, 23rd May 2005 for hearing. When we resumed on that date for the hearing of the second respondent’s motion, the Court became aware that the petitioner has also filed a motion seeking extension of time to file and serve further affidavits, which is similar to the first respondent’s motion. However, the Court declined to hear the petitioner’s application as it was filed outside the time limit stipulated for the filing and service of his witnesses’ affidavits.

The evidence in support of the second respondent’s application came from the affidavit of counsel, Mr. William. The evidence is essentially undisputed. The affidavit confirmed the directions issued by the Court on 21st March 2005, that the petitioner was to file and serve his witnesses’ affidavits by 18th April 2005. Three affidavits were filed in accordance with that order, however, they were not served until 19th April 2005. Other matters alluded to from the directions orders are confirmed in that affidavit. That is, a conference was ordered to be held on 2nd May 2005 to discuss and settle witnesses’ affidavits; statement of agreed and disputed facts, and the legal issues for trial. The Court further ordered that the statements of agreed and disputed facts and legal issues, to be settled and endorsed by the parties, were to be filed on 9th May 2005. The petitioner has breached or failed to comply with those orders. It is therefore the submission of the second respondent that the petition be dismissed for failure to comply with Court orders.

Counsel for the first respondent, Mr. Korowi, supported the second respondent’s application and submissions. He referred to two affidavits sworn by the first respondent on 7th February and 4th May 2005 respectively. It is not necessary to canvass those affidavits. I think the main submission by the first respondent is that the petition should be dismissed. As the Court alluded to, the first respondent is supporting the second respondent’s motion, because the petitioner’s failure directly affected compliance by the first respondent and prejudiced his position.

The petitioner’s counsel, Mr. Parkop relied on the petitioner’s affidavit sworn on 13th May 2005 and filed on 16th May 2005 in support of his notice of motion filed on 20th May 2005. In essence, counsel said that the petitioner admits that he failed to comply with the directions, the subject of this application, but submitted that the petitioner had filed three affidavits and required further time to file more affidavits. In fact, in his client’s notice of motion, counsel said the petitioner will be seeking an order to extend the time to file and serve further affidavits. He therefore submitted that the Court should allow the petition to go to substantive trial, in spite of the failure by the petitioner.

I think the law on the issue of non-compliance with orders or directions of the Court has already been settled in a number of cases decided by the Supreme Court. The National Court has also determined a few cases. Counsel for the applicant has referred the Court to a few of those cases which I propose to discuss.

First and foremost, the Court refers to the authoritative decision of the Supreme Court in Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342 and the oft cited phrase that an election petition is a serious matter and is no ordinary cause of action. I cite the full excerpt from that decision at p.345: -

An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In Korak Yasona v. Castan Maibawa & Electoral Commissioner of Papua New Guinea (1998) unreported, SC 589, 9th October 1998; the Supreme Court confirmed the principles established in The Application of Albert Karo v. Lady Carol Kidu (1998) unreported and unnumbered, 5th June 1998 (SCR 48 of 1998); and Steven Naik Mendepo v. Michael Buku Nali (1998) unreported and unnumbered, (SCR 46 of 1998); 5th June 1998. The Court said in Korak Yasona at pages 5 and 6:-

We re-emphasise the principles laid down in Karo v. Kidu (supra) and Mendepo v. Nali (supra), which recognise 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 set 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 pre-trial conference or for filing and service of affidavits or witnesses’ statements prior to the hearing date, the court expects total compliance with that order (my underlining). 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.

In Korak Yasona (supra) the Supreme Court was dealing with a review of the National Court decision and the facts are similar except that in that case the petition had been fixed for trial and the application to dismiss the petition was made on the date of trial. Nevertheless, it is my opinion that the principles cited here are sound principles of law governing the situation that parties in the present election petition have found themselves in today. This Court has applied those principles previously and I will refer to the other cases that have adopted and applied the same principles which the Supreme Court established.

In Steven Mendepo (supra) the Supreme Court dealt with a similar set of facts as in Korak Yasona (supra). The applicant sought a review of the National Court decision in not striking out all the grounds of the petition. The orders or directions of the National Court are stated on page 2 of the unnumbered judgment. Again, this Court notes that in that case, the applicant had not complied with directions issued by the National Court in the further conduct of the petition. In fact, like Korak Yasona (supra) the petition had been fixed for trial on 6th April 1998 however, on the trial date, the applicant had failed to comply with directions issued on 9th and 29th September 1997 respectively.

The Supreme Court, which I was a member of, said at page 3:

The petitioner had had seven months and one week to comply with the National Court orders. If he felt that he was unable to comply, he should have gone to Court to apply for an extension. By the same token, if he thought this matter required a further pre-trial, as is the reason he has advanced before this Court, he made no attempt at all to inform the respondents or the Court, let alone requesting the Court for a pre-trial.

The Supreme Court in that case dismissed the application for review on the ground that the applicant had not established any cogent and convincing reasons or exceptional circumstances to invoke the inherent jurisdiction of the Court to grant a review of the National Court decision in dismissing the petition.

In my view, what the Supreme Court said are basic guidelines that petitioners and their lawyers must follow in so far as Court directions or orders in the conduct of election petitions are concerned. It is also my view that the petitioner in the present case should have taken the steps alluded to by the Supreme Court in both cases. Had he done that, we would not find ourselves in this situation and in this Court today.

The Court must reiterate that we have come a long way in attempting to stream line the conduct of election petitions in the National Court. The Election Petition Rules 2002 which were promulgated on 11th July 2002, in accordance with s.184 of Constitution and s.212 (2) of the Organic Law on National & Local-Level Government Elections were intended to effectively manage all election petitions so that there is no unnecessary delay, and petitions are heard within the time frame stipulated by the Rules. Most importantly, the voter’s interest in Parliamentary representation is not left in limbo. It is therefore imperative and wise for petitioners and their lawyers to read and study important decisions of the Supreme Court and National Court on election petitions so that they proceed promptly, conveniently and without unreasonable delay in their endeavour to challenge the wishes of the majority which have been expressed through the ballot.

This case in particular, is very important to the people of Wabag Open Electorate. It is the second time since the 2002 General Elections that the choice of the majority has been challenged. As alluded to, the first respondent was elected in the 2002 General Elections as the Member of Parliament for Wabag Open Electorate. His return was challenged and the Court of Disputed Returns ordered a by election. He was returned elected again. His election is now being challenged again by the same petitioner for the second time. Whilst the Court should not be seen as curtailing the constitutional rights of people desiring public offices, it must be of some concerns to the first respondent and more so to the people of Wabag Open Electorate that they may be denied representation in the National Parliament if the election is voided again. There is approximately two years remaining in the life of the current Parliament, yet we are still dealing with election petitions, especially for this electorate. Of course, the remaining period of the life of the current Parliament should not be used as the basis for granting this application, however, the welfare and interest of the voters are of considerable importance.

This is where the principles pronounced by the Supreme Court in several of the cases referred to come into play and we start with the Supreme Court decision in Delba Biri (supra). The Court must reiterate that because the election of a candidate is a serious matter, a petitioner challenging the return must make sure that he takes all the appropriate steps in the prompt and effective disposal of his petition. Compliance with Court orders and directions is one way in which he must live by. He bears the onus of ensuring that his petition is ready for trial without undue delay. In the present case, I consider that the petitioner has not taken things seriously. I do not think that he appreciates what the Supreme Court and National Court have said in relation to the conduct of election petitions and the need and requirements to bring them to speedy trials. The judgments of both the Supreme Court and the National Court are there for the guidance of litigants and their legal advisers, they do not exist for window shopping. If litigants and their lawyers do not do what the Courts have said in these judgments they must suffer any adverse consequence.

In the Application of Albert Karo v. Lady Carol Kidu (1998) unreported and unnumbered, 5th June 1998, (SCR 48 of 1998); the Supreme Court alluded to the seriousness of an election petition first pronounced by the Supreme Court in Delba Biri (supra). At p.2 of the judgment, the Court said:

An election petition is a very serious matter because in effect the petition challenges the express wishes of the majority of the voters. An election petition is not an ordinary cause. Therefore a person who files an election petition bears a heavy responsibility to ensure that the petition is brought expeditiously to hearing.

These cases were reviews that went to the Supreme Court and the Supreme Court dismissed them and stated the principles that the Courts have adopted in other cases. However, if we look at the National Court cases where the original election petitions were dismissed thus resulting in the reviews cited, we will definitely find that the National Court had taken the same approach in dismissing election petitions because the petitioners had not complied with directions or orders made by the Court.

In EP 21 of 1997, Korak Yasona v. Castan Maibawa & Electoral Commission (1998) unreported and unnumbered, 16th June 1998; Sawong, J dismissed the petition because the petitioner did not comply with the orders of the Court to file and serve his affidavits within a given time. In EP 8 of 1997, Steven Naik Mendepo v. Michael Buku Nali & Electoral Commission, (1988) unreported and unnumbered, 9th April 1998; Andrew, J. dismissed the petition for the same reason, ie. petitioner’s failure to comply with Court directions. In EP 57 of 1997: Benedict Pisi v. Sam Akoitai & Electoral Commission, unreported, N.1763, 3rd September 1998; Jalina, J dismissed the petitioner’s petition on the same basis as the other two cases. I followed the same principles in EP 31 of 2002, Opis Papo v. Electoral Commissioner & Kappa Yarka, and EP 41 of 2002, Anton Pakena v. Electoral Commissioner and Kappa Yarka, (2003) unreported, N.2350, 24th January 2003.

All these cases stand for the principle that where parties, especially a petitioner, does not comply with directions or orders issued by the National Court in the further conduct of an election petition, his petition will be dismissed. This Court therefore needs to emphasise once again the significance of what both the Supreme Court and National Court have held in those election petition cases dealing with non-compliance of orders. Because election petitions are serious matters and are not ordinary causes of action in a civil litigation, a petitioner must ensure that he complies with orders or directions issued by the Court to bring his election petition to trial expeditiously.

The Court must also reiterate that where parties to an election petitions are unable to comply with directions because of the time limit, they must come back to Court to seek further directions or make an application for the further conduct of the petition so that the petitions are ready for hearing without unnecessary delay. That must be done within the time limit given to the petitioner. The interest of the voters is paramount here and a petitioner in particular, bears a heavy responsibility in ensuring that his petition, which is in fact, a challenge to the expressed wishes of the majority is brought on expeditiously to hearing. As the Supreme Court said in Benias Peri v. Herowa Agiwa & Electoral Commission (1998) unreported and unnumbered (SCR 13 of 1998) at p.2:

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 the speedy disposition of election petitions so that the wishes of the majority expressed in the election returns are respected.

The principles in all these cases must send a message to the petitioner in the present case and other petitioners. The people or voters in the Wabag Open Electorate are entitled to, that is, they have the constitutional rights to Parliamentary representation therefore in the petitioner’s challenge to the return of the first respondent in this petition, he bears the "heavy responsibility", as the Supreme Court has said, in ensuing that he brings his petition to hearing expeditiously. That means, it is his obligation to comply with all directions or orders issued by the Court for the further conduct of his petition and if he fails to do so, he does so at his own peril. I do not consider it fair to other parties if a litigant who fails to comply with Court orders, come and requests the indulgence of the Court to have an audience with him.

Whilst is may be true that in the process of complying with such orders the petitioner may encounter difficulties, perhaps in obtaining witnesses’ statements or their signatures or affidavits, the petitioner must nevertheless balance his own interest and constitutional right to the interest and constitutional rights of the majority of voters in the Wabag Open Electorate who have expressed their will in the free election franchise resulting in the election of the first respondent. I emphasise and reiterate what has been said numerous times, that election petitions are serious matters which come under a special jurisdiction and a special law - the Organic Law on National & Local-Level Government Elections. They are not ordinary civil cases that can be managed or regulated by the rules of Court under the National Court Rules. As such, the petitioner’s responsibility, as heavy as it were, must require that he acts diligently, expeditiously and without undue delay.

The Court is aware, as I have alluded to, that the petitioner has a motion on foot and pending this present application. The petitioner’s application is to seek further extension of time to comply with the orders of Kandakasi, J of 21st March 2005. As I adverted to earlier, I declined to hear that motion on 23rd May because it was filed outside the time limit which he was to file and serve his affidavits. Why didn’t the petitioner file that application before 18th April 2005? In my view, part of the heavy responsibility that the Supreme Court places on the petitioner, is to ensure he acts in accordance with the orders or directions within the time stipulated. However, if he was unable to do the things he was directed to do within the period of time directed, he should return to Court promptly to seek further directions. Unfortunately, the petitioner in this case failed in that responsibility. He has come to Court at the 11th hour, after the expiration of the time granted to him, to ask for the indulgence of the Court to grant him a favour. Of course, this is a discretionary matter, however, I cannot ignore the principles that have been established by the Supreme Court and the National Court in the cases I have cited.

As the Court has already alluded to, this petition is the second petition in which the petitioner is challenging the return of the first respondent as the elected representative of the voters in the Wabag Open Electorate. In my capacity as Judge Administrator – Election Petitions, and from the records of all election petitions in my custody, I am aware that the voters in the Wabag Open Electorate were without representation in the National Parliament for 1 year 9 months and 8 days from 21st February 2003, when the National Court ordered a by election, to 29th November 2004, when the first respondent was declared elected. Surely, the voters would like to see that their interest in Parliament is maintained through their representative, but that is not the reason for this decision. It is rather in the context of concerns for the constitutional rights of the majority of electors that this is being said.

Here, the petitioner has not complied with the orders of the Court. On the basis of the principles established by the Supreme Court in the cases cited, and also the other National Court decisions, this Court is of the opinion that granting the order sought by the second respondent, and supported by the first respondent is justified. Accordingly, the Court orders that the petitioner’s petition, EP 01 of 2005, is dismissed and the petitioner pays the second and first respondents’ costs of the proceedings to be taxed if not agreed. It is further ordered that the deposit of K2,500.00 be paid to the respondents on a 50% ratio as part of the order for costs.

Orders accordingly.

Lawyer for Petitioner			:	Powes Parkop Lawyers
Counsel				:	P. Parkop
Lawyer for First Respondent		:	Korowi Lawyers
Counsel				:	P. Korowi
Lawyer for Second Respondent	:	Nonggorr & Associates
Counsel				:	R. William