N4991

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

EP NO. 45 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN FOR THE KABWUM OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN

PATRICK BASA
Petitioner

AND

BOB DADAE
First Respondent

AND

ANDREW TRAWEN – ELECTORAL COMMISSIONER
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu, J
2013: 16 & 17 January

PRACTICE AND PROCEDURE – Organic Law on National and Local Level Government Elections – Power of the Court of Disputed Returns to summarily dismiss a petition – Election Petition Rules 13, 14, 15 and 18 – Failure by a party or parties to comply with directions issued by the Court under rr. 12 and 13 of the Election Petition Rules, 2002 – Obligations of a petitioner to progress a petition to trial discussed. 

Facts

On 25th September, 2012, the Court of Disputed Returns ("the Court") in a directions hearing issued a number of directions, one of which was for "the parties" to prepare, settle and file a Statement of Agreed and Disputed Facts ("the Statement") by 31st October, 2012. The parties failed to comply with the direction. On 2nd November, 2012, the Court issued a similar direction, this time extending the time for filing and service of the Statement to 8th November, 2012. The parties again failed to comply with this direction. On 9th November, 2012, the Court issued a similar direction for the third time, this time extending the time of filing and service of the Statement to 14th November, 2012. The parties again failed to comply with the direction. On 16th January, 2013, when the matter returned to Court for hearing of the interlocutory applications, the parties still had not filed the Statement. 

The respondents each filed a Notice of Objection to Competency challenging the competency of the petition. The second respondent also filed a Notice of Motion seeking Orders to summarily dismiss the petition under Rule 18 (i) of the Election Petition Rules 2002, claiming that the onus was on the petitioner to draft the Statement and that the petitioner had therefore defaulted in not drafting the Statement. 

The Court heard the respondents' Objections to Competency and the second respondent's Notice of Motion on 16th January, 2013. The Court decided to rule on the second respondent's Motion first, given that the ruling on the Motion could fully determine the petition.

Held:

1.	The Election Petition Rules 2002, are unique and different from other Rules of Court because they regulate the practice and procedure relating to election petition proceedings that are instituted under an Organic Law viz, Organic Law on National and Local Level Government Elections (ss. 206, 207, 208, 209 and 210). Thus the Election Petition Rules are not ordinary Rules that can be regarded lightly. For the reason given, the parties to election petitions have an onerous responsibility to comply strictly with the requirements of the Rules. 

2.	In this case, although the directions were prima facie issued to the parties, under the accepted rule of practice the petitioner as the party having the primary carriage of the proceeding has the onus to draft the Statement. The persistent and continuing failure by the petitioner to draft the Statement was extraordinarily serious and constituted a default as envisaged by Rule 18 (i) of the Election Petition Rules 2002. 

3.	The failure by the petitioner to draft the Statement was also tantamount to disobeying the Orders of the Court and, as such, was contemptuous thus warranting the invocation of Rule 18 (i). 

Cases cited:

Application of Albert Karo v. Lady Carol Kidu (Unnumbered SCR 48 of 1998 – 5th June, 1998)
Burns Philip (New Guinea) Limited v. Maxine George [1983] PNGLR 55
Daniel Don Kapi v. Samuel Abal (2005) N2856
David Arore v. John Warisan (2008) SC947 
Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342
Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948
Korak Yasona v. Castan Maibawa & Electoral Commission of Papua New Guinea SC 589
Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110
PNGBC v. Jeff Tole (2002) SC694

Legislations and other authorities cited:
Constitution of the Independent State of Papua New Guinea
Organic Law on National and Local Level Government Elections
Election Petition Rules, 2002

Counsel: 
 
K. Kawat, for the petitioner
A. Manase, for the first respondent
J. Umbuk, for the second respondent

17th January, 2013 

1. GAVARA-NANU J: The respondents have each filed an objection to competency challenging the competency of the petition ("objection"). The first objection to competency is by the first respondent. The principal ground of this objection is that the petitioner has failed to plead the relevant and material facts constituting and establishing the necessary elements of the grounds for the petition, viz; bribery and undue influence allegedly committed by the first respondent's supporters in the 2012, general elections with the knowledge and authority of the first respondent. This objection is filed pursuant to s. 208 (a) of the Organic Law on National and Local Level Government Elections ("OLNLE") and rr. 15 and 18 of the Election Petition Rules ("the Rules"). It was filed on 26th September, 2012. 

2. The second objection to competency is by the second respondent, it was filed pursuant to s. 208 (d) of the OLNLE. It was filed on 7th January, 2013. The ground of the objection is that the purported attestation of the petition by two witnesses does not meet the requirements of s. 208 (d). 

3. In their respective objections to competency the respondents claim that the petition is incompetent and should be summarily dismissed. 

4. Section 208 (a) and (d) are in these terms:

 208. Requisites of petition
 A petitioner shall –

(a)	set out the facts relied on to invalidate the election or return; and
(b)	------
(c)	------
(d)	be attested by two witnesses whose occupations and addresses are stated; and
(e)	------ 

5. On 8th January, 2013, the second respondent also filed a Notice of Motion seeking orders to summarily dismiss the petition pursuant to rr. 13, 14, 15 and 18 (i). It is submitted that the petitioner failed to comply with the directions issued respectively by the Court on 25th September, 2012, and 9th November, 2012, in which the parties were first directed to file and serve a Statement of Agreed and Disputed Facts ("the Statement") by 31st October, 2012, and then later by 14th November, 2012. The second respondent argues that the failure by the petitioner to comply with the directions of the Court amounted to a default as envisaged by r. 18 (i), and that the petition should therefore be summarily dismissed. 

6. The second respondent argues that under the accepted rule of practice, after the Court issued the first direction on 25th September, 2012, the onus was on the petitioner to draft the Statement, serve it on the respondents for their comments and then after receiving the respondents' comments the petitioner should have filed and served the settled Statement (which would have also included the issues for trial) by 31st October, 2012. 

7. The second respondent's Motion, raises issues of law relating to procedure which can be quite easily and conveniently addressed, whereas the two objections to competency by the respondents raise complex issues of substantive law. It is therefore convenient to address the second respondent's Motion first, considering also that if the application is successful the ruling should effectively bring the proceeding to an end. 

8. Before considering the merits of the Motion, it should be noted at the outset that the facts relating to certain issues raised in the Motion are not in dispute. For instance, there is no dispute that the parties have not complied with the respective directions issued by the Court on 25th September, 2012 and 9th November, 2012, regarding filing and service of the Statement. There is also no dispute that the directions were binding on the parties. In this regard, the Court also notes that the petitioner on his part concedes that he failed to draft the Statement. In making this concession, the petitioner asked the Court to give him more time to comply with the Court's directions. 

9. The relevant part of the directions issued by the Court on 25th September, 2012, is in paragraph 6, which reads: 

6. Parties shall prepare, settle and file a Statement of Agreed & Disputed Facts and Issues for trial by or before Wednesday 31st October, 2012. 

10. And the relevant part of the directions given on 9th November, 2012, is in paragraph 1, which reads:

1. The parties (sic.) settle the Statement of Agreed & Disputed Facts & Legal Issues for trial and file it by 14th November, 2012. 

11. In both directions, the Court ordered that the petition be heard in Lae from 14th January, 2013, at 9.30am, to 25th January, 2013. This was the timeline given by the Court for the parties to work towards when preparing and settling the Statement. 

12. Because the directions were issued to "the parties" generally and not specifically to any one party, the second respondent's Motion seeks orders that it was the responsibility of the petitioner to draft the Statement, and that the failure by the petitioner to draft the Statement amounted to a default under r. 18 (i). 

13. At this juncture, I should with respect state that this application highlights the importance of the need for the Court to give clear and specific directions to the parties, so that they have no difficulty in understanding those directions and complying with them.

14. Given the nature of the directions given, the Motion raises a pivotal issue because whether the petition can be summarily dismissed at this stage turns on the question of whether it was the responsibility of the petitioner to draft the Statement. If it was, then the petitioner has clearly defaulted and the petition will be subject to summary dismissal under r. 18 (i).
 
15. The Motion is supported by two affidavits sworn by Mr. Alfred Manase of counsel for the first respondent on 8th January, 2013, and Mr. Joppo Umbu of counsel for the second respondent on 7th January, 2013. 
 
16. The two affidavits affirm that the Court issued directions to the parties on 25th September, 2012, as I alluded to earlier. The Minute of these directions is annexed to Mr. Manase's affidavit as ANNEXURE "A". The Minute was taken out by Manase & Co. Lawyers and a sealed copy of the Minute together with a covering letter dated 4th October, 2012, was served on Mawa Lawyers, who at that time were acting for the petitioner. Then, in a letter dated 9th October, 2012, to Mawa Lawyers, Manase & Co. Lawyers requested a copy of the draft Statement. In the letter, Manase & Co. Lawyers wrote:

"We refer to the Court Direction No. 6 and request you forward to us a draft Statement of Agreed and Disputed Facts and Agreed (sic.) Legal Issues by return.

We should work towards 31st October, 2012 to file it."

17. On 9th November, 2012, the Court sat for a pre-trial conference. By then the petitioner's lawyers had still not forwarded a draft Statement to the respondents. In the pre-trial conference on 9th November, 2012, the Court issued another direction extending the deadline for filing and service of the Statement to 14th November, 2012. The Minute of this direction was also taken out by Manase & Co. Lawyers and is annexed to Mr Manase's affidavit as ANNEXURE "D". A sealed copy of the Minute was served on Mawa Lawyers on 20th December, 2012. The reason a copy of the Minute was not served on the petitioner until 20th December, 2012, was because the Court file was in my custody. 

18. The endorsements in the Court file however throw a different light in regard to the number of directions the Court issued for the preparation, filing and service of the Statement. The endorsements show that the Court issued directions on three separate occasions, none of which were complied with. On 25th September, 2012, when the Court issued the first directions, all the parties appeared in Court with their lawyers. The evidence affirms that Mr Mawa appeared for the petitioner at that hearing as well as in the subsequent directions hearings and the pre-trial conference. At that hearing, the matter was ordered to return to Court on 6th November, 2012, however, the matter returned to Court on 2nd November, 2012. At that hearing, the Court issued two directions, the first was for the parties to file and serve the Statement by 8th November, 2012, and the second direction was for the matter to return to Court on 9th November, 2012, for a pre-trial conference. When the matter returned to Court on 9th November, 2012, the parties had still not filed and served the Statement as directed on 2nd November, 2012. The Court therefore further extended the time required for the parties to file and serve the Statement to 14th November, 2012. This was the second time the Court had extended time for the parties to comply with the direction, the first extension having been granted on 2nd November, 2012. 

19. Rules 12 and 13 provide for the Court to conduct directions hearings and pre-trial conferences. It is important to note that these Rules are couched in strict mandatory terms. This is plain from the use of the word "shall" in these Rules. The directions issued by the Court on 25th September, 2012, 2nd and 9th November, 2012, were issued pursuant to rr. 12 (3) (e) (iii) and 13 (3) (c). These Rules make it obligatory on the Court to conduct directions hearings and pre-trial conferences before trial, and to issue such directions as the Court deems necessary. This makes every direction issued by the Court binding on the parties and in the event of a default by a party, r.18 empowers the Court to make any one of the three summary determinations regarding a petition. Under r. 18 (i) where a party has not done any act required to be done by or under the Rules or has otherwise not complied with any directions issued by the Court, the Court can summarily dismiss a petition if the defaulting party is the petitioner. Under r. 18 (ii) the Court can expedite the hearing of the petition if the defaulting party is a respondent. Under r.18 (iii) the Court can make such orders as it deems just. The Court can make any of these determinations either on its own motion or on an application of a party at any stage of the proceeding. The Court's power in this regard is wide and discretionary, and in exercising such power the Court should give proper regard to all the circumstances. Any actions taken by the Court should be as the justice of the case and the conduct of the parties warrant: Burns Philp (New Guinea) Limited v. Maxine George [1983] PNGLR 55 and PNGBC v. Jeff Tole SC694.

20. Given the strict mandatory nature of the Rules, in my view, where a petitioner has clearly failed to comply with a direction of the Court without any reasonable explanation or has failed to comply with a mandatory requirement of the Rules, the Court should be readily inclined to exercise its power under r.18 (i) to summarily dismiss the petition. 

21. That said, it is also important to note the provisions of Rule 17 which provide that the Court may dispense with compliance with any of the requirements of the Rules either before or after the occasion for compliance arises, unless it is a requirement of the OLNLE. In this regard, it is noted that s. 212 (2) of the OLNLE empowers Judges to make Rules of court with respect to pre-trial conferences and procedures for Disputed Elections and Returns under Part XVIII of the OLNLE. Section 212 (3) of OLNLE empowers the Court to exercise all or any of its powers under that section, on such grounds as the Court considers just and sufficient. Section 212 notably deals with "Powers of Court". In this context the power to dismiss a petition under r. 18 (i) is in my view ancillary and complimentary to the powers conferred by ss. 212 and 213 of the OLNLE. As such, for purposes of r. 17, compliance with the requirements of r.18 is not one which the Court can dispense with. 

22. Rule 18 is a fundamental enforcement provision which operates to ensure that the requirements of the Rules are strictly adhered to by the parties. As an enforcement provision the rule provides a clear sanction for dismissal of a petition under Sub-rule (i) in the event of a default by the petitioner. 

23. The pertinent question then is whether the Court should dismiss the petition under r. 18 (i) as sought by the second respondent in his Motion, or set it down for an expeditious hearing under r. 18 (ii), or make some other order under r. 18 (iii). As I alluded to earlier, the parties have not complied at all with any of the three directions issued by the Court, but that factor alone does not render the petition subject to summary dismissal under r. 18 (i) because under that Sub-rule the petition can only be dismissed if the petitioner has defaulted. Thus, the next pertinent question is whether the petitioner should be held responsible for the purported failure by the parties to comply with the directions of the Court? In other words should the failure by the parties to prepare, settle and file the Statement be deemed a default by the petitioner? Each of the directions were prima facie issued to all the parties, the respondents argue that notwithstanding the purported nature of the directions, under the accepted rule of practice it was always the responsibility of the petitioner to draft the Statement, serve it on the respondents for their comments, and after receiving the respondents' comments the petitioner should have then filed and served the final Statement in accordance with the terms agreed to by all parties, which would have also incorporated the legal issues for trial. Mr Manase submitted that it was in accordance with this rule of practice that his firm requested the petitioner's lawyers in the letter dated 9th October, 2012, to draft the Statement and forward copies of the draft Statement to the respondents for their comments before filing and serving the settled Statement on 31st October, 2012.

24. Section 212 (2) of OLNLE empowers Judges to make Rules for regulating the practice and procedure in the Courts of Disputed Returns and is ancillary and complimentary to s. 184 of the Constitution, which is the primary source of power exercised by the Judges in this jurisdiction. These Rules are not ordinary Rules which can be regarded lightly. The fact that they regulate the conduct of election petition proceedings which are instituted under an Organic Law, make these Rules different and unique. The parties to an election petition therefore have a serious and onerous obligation to strictly comply with their requirements. 

25. Similarly, an election petition is in itself unique. Unlike an ordinary civil suit, the petitioner in an election petition carries a more onerous responsibility of ensuring strict compliance with the requirements of the Rules. The petitioner as the party having carriage of the proceeding also has the ultimate responsibility to see that the petition is duly dispatched: Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342; Application of Albert Karo v. Lady Carol Kidu (Unnumbered – SCR 48 of 1998 – 5th June, 1998) and David Arore v. John Warisan (2008) SC947. The scheme of the Rules in my view also provides for a speedy and fair disposal of an election petition with minimum delay. This is in my view, implicit from the absence of provisions in the Rules for a respondent to file a defence, or for the parties to file discoveries, interrogatories and other forms of pleadings as would be the case in ordinary civil suits. In my view, one of the principal reasons, if not, the principal reason behind this is the fact that the winning candidate already holds a public office as a Member of Parliament pursuant to s. 50 of the Constitution after having been voted to that office by the majority of voters in his constituency in an open and assumingly fair election. A winning candidate also has the right under s. 50 of the Constitution to not only hold such public office but also to enjoy the privileges of the office. Therefore, whether the allegations made in a petition are against the winning candidate or the Electoral Commission, it is incumbent on the petitioner to ensure that the petition is duly dispatched. A vital part of this task is for the petitioner to comply strictly with the requirements of the Rules, including any directions issued by the Court: Daniel Don Kapi –v- Samuel Abal (2005) N2856. In this regard it must to be borne in mind that the allegations made in a petition remain mere allegations until they are proven in Court, and until such time the allegations are proven in Court, the respondent or respondents remain innocent of such allegations and are entitled to be given the benefit of doubt. Thus, where there is clear evidence that the petitioner has deliberately failed to comply with the requirements of the Rules or has abused the processes of the Court, or that the petition has not met the requirements of the relevant provisions of the OLNLE and so on, that should in my view help tip the scales in favour of a dismissal of the petition under r. 18 (i). In such a situation, the Court would also have grounds to protect the result of the election and preserve the status quo, bearing in mind also that the winning candidate and the State have stood for and conducted the election at considerable personal expense, and in the case of the State it is at the expense of tax-payers.

26. In the instant case, notwithstanding the general nature of the directions issued by the Court for the parties to prepare, settle, file and serve the Statement by 31st October, 2012, the onus was on the petitioner to draft the Statement and serve it on the respondents for their comments before filing it. I hold this view because the generally accepted rule of practice is that the party having the carriage of the proceeding has the primary responsibility to draft such Statement and to take all necessary steps to ensure that the petition is speedily and diligently progressed to trial. 

27. The petitioner was therefore correctly requested by Manase & Co. Lawyers in its letter dated 9th October, 2012, to forward a draft Statement to the respondents for their comments soon after the first direction was issued by the Court on 25th September, 2012. The petitioner of course has hitherto not responded at all to that letter, let alone forwarded a draft Statement to the respondents. More significantly, the petitioner has also not provided any reasonable explanation for his failure to comply with the Court's directions. Such a seemingly blatant and deliberate failure by the petitioner to comply with the directions of this Court is fatal to the petitioner. It is the type of conduct and attitude which the Court will not tolerate. The default by the petitioner was persistent, continuing and deliberate. 

28. The petitioner's conduct is also tantamount to disobeying the Court orders, and is thus contemptuous. This aggravates the default by the petitioner and provides an added ground for the Court to summarily dismiss the petition under r. 18 (i): Korak Yasona v. Castan Maibawa and Electoral Commission of Papua New Guinea SC589. 

29. Also, the request by the petitioner to be given more time to comply with the directions of the Court is in my view an abuse of process, especially when the petitioner had no reasonable explanation for his default. The request is clearly not one which the Court should entertain, as doing so would be tantamount to the Court condoning the abuse of its processes by the petitioner. The abuse of process by the petitioner is serious because the Court on three separate occasions issued the same direction, each of which were ignored by the petitioner. 

30. The petitioner has told the Court that he is ready and willing to draft the Statement if he is given more time, however to grant such request would seriously prejudice the respondents who have come to Court prepared for the hearing of the petition as previously ordered. Granting an extension would therefore not be in the interest of justice. The default by the petitioner was of a deliberate and continuing nature which makes it extraordinarily serious. All these matters dictate that the Court should exercise its discretionary power against the grant of an extension to the petitioner. Given the circumstances of the case, I also consider that the request for an extension of time by the petitioner is not genuine. It is in my view a ploy to try and avoid the inevitable viz, the summary dismissal of the petition. In these circumstances, I consider that the proper exercise of my discretion is to refuse the request for an extension of time and grant the relief sought by the second respondent in his Notice of Motion. Such an order should send a clear message to the public that those who fail to comply with the mandatory requirements of the Rules, without any reasonable explanation, do so at their own peril. 

31. I have also noted from the affidavits sworn respectively by the petitioner and his lawyer Mr Kembo'nga Robin Kawat of counsel on 7th and 8th January, 2013, that they concede that the petitioner has failed to comply with the directions of the Court. They however ask the Court to give more time to the petitioner to comply with the directions. This and other requests by the petitioner to be given more time to comply with the directions, are in essence a request for the Court to exercise its power under r. 18 (ii). I have already considered this issue and for reasons already given I remain resolute that the petition should be dealt with under r. 18 (i). Furthermore, it is now four months since the first direction was issued by the Court on 25th September, 2012, without any attempt at all being made by the petitioner to remedy his default. There is also no formal application by the petitioner for extension of time viz, there is no Notice of Motion by the petitioner seeking such relief: Korak Yasona v. Castan Maibawa & Ors (supra). This is also fatal to the petitioner. 

32. It should also be noted that under the provisions of the Rules, the petitioner cannot lay the blame on his previous lawyers for his own failure to comply with the Court's directions. Under rr 12 and 13 the parties were required to personally attend the directions hearings and pre-trial conferences with their lawyers. Thus, the petitioner is by law deemed to have personally received the Court's directions and had personal knowledge of them. In any event, in the normal course of things, Mr. Mawa would have explained the directions to him. Had the petitioner not understood them he should have sought advice from Mr Mawa. It is therefore futile for the petitioner to claim, as he does in his affidavit, that (not being a lawyer) he did not understand the directions. 

33. Furthermore, even if the default by the petitioner was attributed solely to the petitioner's previous lawyers, that still would not provide a reasonable explanation for the default, let alone relieve him of its consequences: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110 and Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948. 

34. It is also to be noted that the Notice of Motion filed by the petitioner, in which he had sought an extension of time to comply with the directions of the Court, was withdrawn during the hearing by the petitioner. The petitioner therefore, as I said, has no formal application before the Court to seek an extension of time. In any event, for the reasons given, the Motion was an abuse of process and was rightly withdrawn. 

35. For the foregoing reasons I am of the firm view that the proper exercise of my discretion is to summarily dismiss the petition under r. 18 (i). 

36. The petition is therefore dismissed in its entirety with costs.

37. I order that the deposit paid by the petitioner be paid to the two respondents in equal amounts of K2, 500.00.

38. Given the ruling I have made, it is not necessary for me to rule on the two objections filed by the respondents against the competency of the petition.

39. Orders accordingly. 

_______________________________________
Kawat Lawyers: Lawyer for the Petitioner 
Manase Lawyers: Lawyer for the 1st Respondent 
Harvey Nii Lawyers: Lawyer for the 2nd Respondent