N4924

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 87 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE MUL-BAIYER LUMUSA OPEN ELECTORATE

BETWEEN

SANI RAMBI
Petitioner
 
AND

KOI TRAPPE, MP
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 26th November & 05th December

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Discretionary – Application arising from election dispute – Directions hearing – Directions for parties to file and serve affidavits – Time fixed for parties to file and serve affidavits – Failure by petitioner to comply with directions – Application granted – Petition dismissed for want of compliance with Court directions – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

Cases cited:

Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012)
Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983 Daniel Don Kapi -v- Samuel Abal (2005) N2856
Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816 
Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948
Mikki Kaok -v- Rimbink Pato (2005) SC877
Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598
Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission: EP No 33 of 2012 (Unnumbered & Unreported Judgment of 09th November, 2012)

Counsel:

Mrs K Rema, for Petitioner 
Mr A Manase, for First Respondent
No appearance, for Second Respondent

RULING ON APPLICATION TO DISMISS ELECTION PETITION

05th December, 2012

1.	MAKAIL, J: The first respondent is the member-elect for Mul-Baiyer Lumusa Open Electorate and applies to dismiss the petition for want of compliance with Court directions pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2.	Relying on his affidavit sworn and filed on 09th November 2012 and affidavit of search of counsel sworn on 31st October 2012 and filed on 05th November 2012, he alleges that on 12th October 2012, the Court directed parties to file and serve affidavits on each other. The petitioner was required to file and serve his affidavits by 26th October 2012 and the respondents to file and serve affidavits in response by 16th November 2012. He further alleges that the petitioner failed to file and serve his affidavits by 26th October 2012. Notwithstanding this, he has filed and served his affidavits refuting the allegations against him. 

3.	He also relies on the affidavit of Tyson Boboro sworn and filed on 12th November 2012 and says that the petitioner's former lawyers were Kuman Lawyers and they ceased to act for the petitioner on 12th November 2012 apparently because of lack of instructions from the petitioner to progress the petition. It also appears that a Max Puli has been the person instructing the lawyers to pursue the petition and the petitioner's only point of contact was his wife.

4.	The petitioner neither disputes nor denies the directions of the Court and failure to file and serve the affidavits on the respondents by the due date. He further does not deny that the first respondent has served 26 affidavits on him. But relying on his affidavit filed on 26th November 2012 and a further affidavit sworn on 26th November and filed on 27th November 2012, he says that in September 2012, a young man from his neighbouring clan was killed due to election related violence. He was blamed for the killing and for fear of his life, he sought refuge in his village at Bukapena. He stayed there for almost 8 weeks and had no access to telephones to contact his lawyers and no way to get to Mt Hagen town. As a result, he was unable to give instructions to his lawyers and also locate his witnesses. 

5.	On 21st November 2012, he travelled to Mt Hagen and flew to Port Moresby after the tense situation cooled down as a result of compensation paid to the family of the deceased. The next day, he attended to his lawyers (Kuman Lawyers) where he was informed of the present application. He concludes by saying that he is well aware of the Court's directions and conscious of his duty to comply with them. His failure to comply was not intentional.

6.	Rule 18 gives the Court discretion to summarily dismiss a petition. It states:

"18. SUMMARY DETERMINATION 

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:- 

(i) order that the petition be dismissed where the defaulting party is the petitioner; or 

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or 

(iii) make such other orders as it deems just."

7.	The power of the Court to summarily dismiss a petition is discretionary. It must be exercised on proper principles or grounds. It must be established that a party has not done any act required to be done by or under the EP Rules or otherwise has not complied with any direction. Once the applicant establishes the default, the onus shifts to the respondent to explain why the petition should not be dismissed, the prejudice and the overall interests of justice: See Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012), a case where the first respondent applied to dismiss the petition for failure to comply with Court directions, namely failure to file and serve affidavits on the respondents.

8.	The cases of Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983, Daniel Don Kapi -v- Samuel Abal (2005) N2856, Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816, Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948 and Mikki Kaok -v- Rimbink Pato (2005) SC877 have placed so much emphasis on the special nature of election petitions and the heavy burden a petitioner bears in prosecuting them including complying with time limits fixed by the EP Rules and the Court. Where a petitioner defaults in complying with them, the Court has discretion to dismiss them. 

9.	This case concerns the failure by the petitioner to comply with Court directions and just to reiterate the Court's position on the need to comply with Court directions and the resultant effect of non-compliance, in Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598, the Supreme Court said:

"We re-emphasize the principles laid down in Karo v Kidu (supra) and Mendepo v Nali (supra), 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 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. 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."

10.	It is even suggested that non-compliance with Court orders or directions is a show of disrespect to the Court and contemptuous. Thus, it must not be taken as a simple or technical failure. Last month, I dismissed a petition for want of compliance with Court directions. That was in the case of Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877. That was a case where the petitioner served affidavits 2 weeks after the due date fixed by the Court for filing and service of affidavits. 

11.	I found that the petitioner filed them outside the due date and had back dated the date for filing in order to avoid the default. That case is one of the many examples of cases emphasising the tough stand taken by the Court when it comes to compliance with its directions by parties, especially the petitioners. Thus, I think it is fair to say sufficient warning has been given to petitioners and it is now time to penalise those who fail to comply with Court directions.

12.	In this case, it is settled that the petitioner failed to file and serve affidavits by the due date. He is therefore, in default. His reasons for default, first he sought refuge in his Bukapena village after a youth from a neighbouring clan was killed and he was blamed for his death and secondly, no access to telephone. I have difficulty accepting his explanation. 

13.	If it is true that a youth was killed and he sought refuge in his village, the least and reasonable thing he could have done was to contact his lawyers and inform them of his predicament and an appropriate application maybe made to extend time for compliance. He said he was in his village for almost 8 weeks and in my view, that was enough time for him to convey his predicament to his lawyers in Port Moresby. 

14.	I am privileged to be one of the resident Judges of Mt Hagen. That privilege has given me the opportunity to travel around Mt Hagen town, nearby villages and places. Bukapena village is just 5-10 minutes drive from Mt Hagen town in the northerly direction towards Baiyer River. The petitioner cannot argue much about having no road access because there is road access. He cannot even argue much about the proximity to Mt Hagen town. These matters would have placed him in an advantageous position to gain quick access to Mt Hagen town notwithstanding the tense situation. If he had done that, he would have contacted his lawyers in time to avert the situation he is in now.

15.	It is common knowledge that since the introduction of mobile telephone services in the country, communication service has drastically improved, especially where there is competition between the two major service providers, B Mobile and Digicel in their quest to provide bigger and better communication network in the country. They have expended their services to the rural areas in the country. Now, people in the villages can ring family members and friends in Port Moresby and vice versa. Personal or business calls can be made. Not only that, but everyone seem to own a mobile phone these days, even a 5 year old. Thus, it is hard to believe that the petitioner had no access to telephone in his village, let alone owing a mobile phone and a former member of Parliament. I find his explanation incredible.

16.	There is evidence before me and I accept that the petitioner had Max Puli in communication with his lawyers. see affidavit of Tyson Boboro and annexure "A" (Letter from Kuman Lawyers to petitioner dated 29th October 2012) (supra). The petitioner does not dispute or deny that Max Puli is his agent. Mr Puli did not file an affidavit to explain what steps he took to attend to the lawyers to progress the petition on behalf of the petitioner. Thus, this is not a case where the petitioner had no-one to pursue the petition on his behalf if he was absent. From the tone of the letter by Kuman Lawyers, it appears that they had difficulty getting instructions from the petitioner and Mr Puli. As a result, they ceased acting for the petitioner and on 12th November 2012 filed a notice of ceasing to act. 

17.	He had ample time to file and serve his affidavits if one is to compute time from the date the declaration was made to the due date fixed by the Court. From the date of declaration to the date of filing the petition is 40 days. Thereafter, there is a further 28 days to the date of directions hearing and a further 14 days thereafter to the due date fixed by the Court. In total, he had 72 days or 2 months and 12 days to attend to his witnesses' affidavits.

18.	Finally, his counsel submitted that Mul-Baiyer Lumusa Electorate is a big electorate in terms of its geographical size and I entirely agree. But the petitioner does not say in his affidavits what steps he took to secure his witnesses, eg, at least their names, noting that he has pleaded in the petition names of persons allegedly bribed and where they are located, say the names of their villages. Thus, quite apart from the incredible explanation for his default, the evidence is vague and insufficient to demonstrate some meaningful and genuine steps taken by the petitioner to comply with the directions before or after the due date. This leaves me to conclude that the petitioner has not taken serious steps to comply with the Court's directions.

19.	For these reasons, I am satisfied that the first respondent has made out the application and I dismiss the petition for want of compliance with Court directions. Costs shall be awarded to the respondents to be taxed if not agreed and the security deposit of K5,000.00 held by the Registrar be paid and divided equally between the respondents. Time is abridged.

Ruling accordingly.
____________________________________

PANG Legal Services:	Lawyers for Petitioner
Manase & Co Lawyers:	Lawyers for First Respondent
Niugini Legal Practice:	Lawyers for Second Respondent