N5217

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 44 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 IJIVITARI OPEN ELECTORATE

BETWEEN

JOHN WARISAN
Petitioner

AND

DAVID ARORE
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 01st November
2013: 15th May

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for summary judgment – Application arising from election dispute – Power to enter summary judgment – Jurisdiction of – Grounds of – Failure by first respondent to participate at directions hearing and status conference – Failure to comply with directions – Failure to file and serve responding affidavits – Grounds of petition – Bribery against first respondent – No evidence from first respondent refuting allegations of bribery – Summary judgment entered against defaulting respondent only in a clear case – Whether appropriate case for entry of summary judgment – Constitution – Section 166(1) – Organic Law on National and Local-level Government Elections – Section 212 – National Court Election Petition Rules, 2002 (as amended) – Rules 12(3)(j)&(k) and 18(ii) &(iii)).

Cases cited

William Nakin -v- Lauta Atoi & Electoral Commission: EP No 40 of 2012 (Unnumbered & Unreported Judgment of 09th May 2013)
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
Delba Biri -v- Bill Ninkama [1982] PNGLR 342
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 Kaiok -v- Rimbink Pato (2005) SC877
Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598
Peter Kuman -v- Camillus Dangima Bongoro & Electoral Commission: EP No 63 of 2012 (Unnumbered & Unreported Judgment of 02nd November, 2012)
Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112
Philomena Kassman -v- Electoral Commission & Kila Haoda (2012) SC1211

Counsel

Mr P Wariniki, for Petitioner 
Mr J Napu, for First Respondent
Mr M Kuma, for Second Respondent

RULING

15th May, 2013

1.	MAKAIL, J: This is an application for "summary judgment" pursuant to Rule 18(iii) of National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). It was heard before the case of William Nakin -v- Lauta Atoi & Electoral Commission: EP No 40 of 2012 (Unnumbered & Unreported Judgment of 09th May 2013) and the Court reserved its ruling to a date for parties to be advised. In William Nakin's case (supra), the petitioner applied for summary judgment on the ground that the Honourable Member for North Bougainville had failed to defend the petition. The Court delivered its ruling on 09th May 2013. It held that the National Court has power to enter summary judgment in election petition cases and refused it because of serious conflict on questions of fact and law in relation to the sufficiency of pleadings and competency of the petition. I propose not to consider William Nakin's case (supra) because I have not received parties' submissions on it and it would be unfair to them. The petitioner's alternative application is for the petition to be set down for expedited hearing pursuant to Rule 18(ii) of the EP Rules.

Background Facts

2.	The petitioner was the runner up to the first respondent for the Ijivitari Open seat in Northern Province in the 2012 General Elections. On 20th July 2012, the first respondent was declared the successful candidate and aggrieved by the result, on 28th August 2012, the petitioner filed this petition. He alleged bribery against the first respondent and sought orders to nullify the first respondent's election and declare him as member-elect.

3.	The application came about because the first respondent failed to participate at the directions hearing and status conference. According to Rule 12, a petition is required to be fixed for directions hearing 28 days from the date of its filing. In this case, it was fixed for directions hearing on 25th September 2012. On that date, the petitioner appeared through counsel. At that time, the first respondent was the only respondent and failed to appear. The Court was referred to the following affidavits as proof of service of the petition on the first respondent:

3.1.	Affidavit of Kelly Walter sworn and filed on 19th September 2012;
3.2.	Affidavit of John Orosambo sworn and filed on 19th September 2012; and
3.3.	Affidavit of Russell Iripa sworn and filed on 19th September 2012.

4.	After the Court heard submissions on the issue of service, it held that that the petition, notice to appear in Form 1 and notice of directions hearing in Form 2 were served on the first respondent on 12th September 2012 at 9:45 am when they were handed to him by Kelly Walter at Neil Rua's premises located near Gavana Bridge along Kokoda Highway in Northern Province and he refused to accept them. He struck Kelly Walter's hand and they fell to the ground. The Court also noted with concern that the first respondent told Kelly Walter in the presence of John Orosambo and Russell Iripa to take "the rubbish documents away". The Court then issued directions for the further conduct of the petition as follows:

4.1.	The petitioner shall file and serve affidavits he intends to rely on at trial on the respondent by or before Monday 01st October 2012.

4.2.	The respondent shall file and serve any affidavits in reply by or before Monday 08th October 2012.

4.3.	Parties shall file and serve notices to cross-examine witnesses under the Evidence Act on each other by or before Wednesday 10th October 2012.

4.4.	Parties shall prepared, settle and file a Statement of Agreed and Disputed Facts and Issues for Trial by or before Friday 12th October 2012.

4.5.	The matter is adjourned to Wednesday 17th October 2012 at 9:30 am for Pre-Trial Conference.

4.6.	The matter is fixed for Status Conference on Friday 12th October 2012 at 9:30 am.

5.	It came for Status Conference on Friday 12th October 2012 at 9:30 am. Still there was no appearance by the first respondent either in person or through counsel. The petitioner's lawyers submitted that the petitioner served the affidavits that he intended to rely on at trial on the first respondent. They relied on the affidavit of service of James Mobie Genaboro sworn on 08th October and filed on 10th October 2012. On this evidence, the Court was satisfied that the first respondent was served the petitioner's witnesses' affidavits and granted a further 14 days to the second respondent to file and serve affidavits in response. By this time, the second respondent was given leave to be heard in the petition and by virtue of s. 211 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"), was deemed a respondent in the proceeding. 

6.	Given the first respondent's non-attendance at the preliminary hearings, the Court also suggested to the petitioner to consider filing an application for summary judgment. On 29th October 2012, the petitioner filed this application and it was fixed for hearing on 01st November 2012 at 1:30 pm. At the hearing, the first respondent sought and was granted leave to appear through counsel. 

Parties' Submissions

7.	Counsel for the parties conceded that this Court has inherent powers under section 155(4) of the Constitution to enter summary judgment in election petition cases. In addition to that, counsel for the petitioner submitted that the Court has wide discretion under Rule 18(iii) to enter summary judgment. He submitted that the petitioner had progressed the petition to a stage where it is ready for trial and the first respondent has failed to defend it by not attending the preliminary hearings and complying with the Court directions. He further submitted that the first respondent's non attendance and non compliance with the Court directions shows that he is not interested in defending the petition. As the petitioner has been diligent and the first respondent has not, the Court should not allow the first respondent to comply with the Court directions and proceed to enter summary judgment against the respondents. 

8.	As for the second respondent, he submitted that it has no role to play because the allegations of bribery are purely against the first respondent and its appearance and defence of the petition is of no consequence. Further, it was submitted that the second respondent's intrusion into the dispute when there are no direct allegations of illegality or impropriety against it strongly suggested that it was assisting the first respondent to cover up his wrong.

9.	Counsel for the first respondent added that while the Court has power to enter summary judgment, the power should be sparingly exercised because this case is an election petition and the EP Rules do not expressly provide for summary judgment where the defaulting party is a respondent and secondly, where the allegations are one of bribery. To support his submission in respect to the second ground, he cited examples of cases in ordinary civil claims where summary judgment is not permitted such as fraud, malicious prosecution and personal injuries under O 12, rr 37 & 38 of the National Court Rules. As bribery involves fraud, summary judgment should be refused.

10.	In the alternative, counsel referred to the first respondent's amended notice of motion filed on 01st November 2012 and submitted that first the petitioner did not serve the petition on the first respondent. This is because the petitioner's witnesses have given false evidence in relation to service and should not be believed. Secondly, the petitioner served the petition on the first respondent out of time. He submitted that on 20th July 2012, the first respondent was declared successful candidate. On 28th August 2012, the petitioner filed the petition and served it on the first respondent on 12th September 2012. The fourteen days expired on 10th September 2012. He was late by two days and is in breach of Rule 6(1). For this reason, the petition is not properly before the Court. Thirdly, the attesting witness in the petition named Austin Sawae is self employed. He submitted that the word "self employed" is in breach of s. 208(d) of the Organic Law on Elections because this provision requires the attesting witness to state his or her occupation and "self employed" is not an occupation. 

11.	Counsel for the second respondent also added by submitting that while the first respondent has failed to file responding affidavits, the second respondent as the authorised body charged with the responsibility of conducting General Elections under the Constitution has filed three responding affidavits by electoral officials refuting the allegations. They are: 

11.1.	Affidavit of Patterson Pokowas sworn on 21st October and filed on 25th October 2012;

11.2.	Affidavit of Cyprian Warige sworn on 22nd October and filed on 25th October 2012; and

11.3.	Affidavit of Peter Sent sworn on 21st October and filed on 25th October 2012.

12.	It was submitted these witnesses will among others, give evidence that the persons allegedly bribed by the first respondent were not electors as their names were not on the common roll for the electorate. 

The Law

13.	The first issue is whether the National Court has power to enter summary judgment in election petition cases. Counsel correctly conceded that the Court has power to enter summary judgment. The powers of the Court in election petitions are derived from the Organic Law on Elections, ss. 206, 207 & 212 and the EP Rules. And while there is no expressed provision in the Organic Law on Elections and the EP Rules on the Court's power to enter summary judgment in election petition cases, I am of the view that Rule 18(iii) is wide enough to include power to enter summary judgment. Rule 18 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." (Emphasis added).

14.	In addition to that, the National Court is a Court of unlimited jurisdiction. s. 166(1) of the Constitution and s. 212 of the Organic Law on Elections gives the Court power to make other orders in addition to those set out in Sub-section (1)(a)-(k). These provisions give the Court wide discretion to make orders in relation to the presentation and conduct of election petition cases and in my view include the power to enter summary judgment. I have formed this view because an election petition is a serious matter and should not be taken lightly. The petitioner is challenging the majority wishes of the voters in the electorate in electing the first respondent as member for Ijivitari. In Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791, I observed that:

"I have had on a number of occasions called on parties in election petition cases, especially the petitioners to strictly comply with the requirements of the EP Rules when conducting their cases. A failure to comply may be fatal; the petition can be dismissed. 

13.	I made that call because in my view, election petitions are very serious. To a certain degree, it can reasonably be argued that election petitions undermine the fair representation of the people of the electorate in Parliament when their member's election is being challenged in Court. They may cause delay or even deny delivery of services to the people. Secondly, I think it is also fair to say that election petitions distract members' attention from service delivery to the people. The members spent more time defending the petitions than attending to their people. It is for these reasons that it is incumbent on petitioners to ensure that their cases are progressed expeditiously and with minimal delay.

14.	What I have just said is merely echoing the call made by the Supreme Court in 1982 in the case of SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349 where it said:

"An election petition is not an ordinary cause (In The Re 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."" 

15.	These are serious sentiments and any unsuccessful candidate embarking on an election petition must be cognisance of the heavy burden placed on him or her and must ensure that the petition is prosecuted with due dispatch. Strict compliance of the Organic Law on Elections and the EP Rules is not an option for the petition and failure may result in summary dismissal of the petition. I refer to a few of the cases which emphasise these principles: SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342, 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 Kaiok -v- Rimbink Pato (2005) SC877, Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598.

16.	If the law places an enormous responsibility on a petitioner to strictly comply with the law on the presentation and conduct of an election petition, that the petitioner has diligently met all the requirements of the law including directions of the Court to bring the petition to trial and the respondent has failed to defend it, it is illogical to suggest that the Court has no power to summarily determine the petition in his favour. For these reasons, I am satisfied that the Court may "make such other orders as it deems just" to summarily determine the petition in favour of the petitioner.

17.	The power to enter summary judgment remains discretionary. I propose to apply the principles on summary judgment in ordinary civil proceedings as set out in Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112 bearing in mind the caution by the learned Chief Justice in Philomena Kassman -v- Electoral Commission & Kila Haoda (2012) SC1211 that the Court should not import "rules and principles of practice and procedure governing ordinary civil claims into the conduct of election petitions and petition reviews in the National Court and Supreme Court respectively." The Bruce Tsang's case (supra) stands for the proposition that the plaintiff will not be entitled to summary judgment, if there is a serious conflict on questions of fact or law. It also held that summary jurisdiction should only be invoked in a clear case. The onus is on the applicant to establish a clear case for summary judgment. 

18.	I also consider that the power to enter summary judgment may be exercised any time during the preliminary hearings of the petition and before trial subject to any objections to competency under Rule 15. This is because summary judgment is an interlocutory judgment and is permitted by Rule 12(3)(j)&(k). In my view, this Rule complements Rule 18(iii) to ensure prompt disposition of the petition. 

Application of Law and Facts

19.	Turning to the case at hand, the second issue is whether summary judgment should be entered against the respondents. In my view, the first respondent's belated appearance and objection in relation to service of the petition is an attempt to dilute and evade the seriousness of his default. On 25th September 2012, the Court ruled that he was served with the petition on 12th September 2012. That decision stands and must be complied with unless set aside or quashed. Since the Court decision, he has not participated at the directions hearing and status conference. In other words, he has not attended one single Court hearing on the dates fixed by the Court. Not only that, he has not complied with one single direction of the Court. The end result, he has not filed any responding affidavits. His conduct can be best described as rebellious, disrespectful and contemptuous. This Court and the people of the electorate cannot sit here and wait for him if he thinks that the Court and the petition are not important. 

20.	His assertion that he was not served the petition is far-fetched. A General Election takes place every five years. It is a national event and the 2012 General Election is no exception. It was given huge media coverage in the country and overseas. People were better informed in relation to their participation, its progress from voting to counting and declaration of results. Similarly, people were well informed about election petitions filed in Court challenging the results. Thus, it is inconceivable that those who win, like the first respondent in this case claim that they were not aware of election petitions disputing their elections. In other words, given their huge publicity, one cannot be so naive about the election and election petitions because if one is, he or she must be living in another planet. 

21.	In addition, the Court relied on witnesses' affidavits to reach a decision that the first respondent was served the petition and proceeded to issue directions. Swearing an affidavit is no light matter because it is evidence of the person swearing it. Swearing a false affidavit is a criminal offence and the deponent can be charged for perjury. Criminal Code, s. 196. The Court must assume that the persons who filed affidavits to show that the first respondent was served must have been advised by the lawyers that swearing a false affidavit can result in perjury charges against them and unless proven to the contrary, the Court must accept the affidavits of Kelly Walter, John Orosambo and Russell Iripa as true and proof of service. 

22.	If the first respondent has an issue with their evidence, then it is not open to him to challenge them in this manner. There are established procedures that he ought to follow to raise the issue. He ought to have filed an application seeking dismissal of the petition for want of service, something he has belatedly done and subjected the witnesses to cross-examination to prove his assertion that they gave false evidence.

23.	The Court has been asked by the petitioner to invoke its summary powers to determine this petition. The summary judgment procedure should be restricted to cases where there is no show by the respondents. In addition, summary judgement will not be granted if there is a serious conflict on questions of fact or law. 

24.	There is show by the respondents although the first respondent has showed up very late. Any self respecting person or a leader for that matter would submit to the jurisdiction of the Court when required. Given the manner in which he has conducted himself, I have to agree with the petitioner that the first respondent is not interested in defending the petition. His conduct can be described as rebellious, disrespectful and contemptuous. I have no doubt that this application has prompted him to belatedly appear. It proves that the rule of law has prevailed in this case. Now that he has submitted, the Court will give him the opportunity to be heard.

25.	As to the second respondent's appearance, with respect, I reject the petitioner's submission that the second respondent has no role to play in this petition. As I said in Peter Kuman -v- Camillus Dangima Bongoro & Electoral Commission: EP No 63 of 2012 (Unnumbered & Unreported Judgment of 02nd November, 2012) when I was considering an application for interim restraining orders to protect witnesses in the election petition case for the Kerowagi open electorate:

"13.	Secondly, the Electoral Commission took no position on the application. I would have thought it would be proactive in such applications because it must not be overlooked that whilst the election is over, its ramification continues. The Electoral Commission is charged with the Constitutional duty to conduct election and it must be prepared to defend it to the very end for the common good of our people. The people must be assured that the person they elected to Parliament went there on merits not by default. The Court is the only place where the truth will be revealed; the truth as to whether the election was fair and free; the truth as to whether the member-elect was legally elected."

26.	The first respondent is the beneficiary of the election. After all the polling and counting of votes, he was declared the winner. He now enjoys the privilege of representing the people of Ijivitari in Parliament. In my view the second respondent must be prepared to defend the electoral process if the result is disputed in Court. I am also not satisfied that its intrusion into the dispute is purposely to assist the first respondent conceal his wrong. To accept this submission would run counter to the purpose for which the second respondent is established. It was not a party at the commencement of the proceeding but it was granted leave to be heard under s. 211 of the Organic Law on Elections, and is deemed to be a party (second respondent) because it has an interest directly connected to the conduct of the elections, in this case the Ijivitari Open electorate. 

27.	If the petitioner is aggrieved by the Court's decision to grant leave to the second respondent to be heard, it should have appealed to the Supreme Court. For now, the Court's decision stands. Based on that decision, the second respondent filed three affidavits, one by Patterson Pokowas, the other by Cyprian Warige and the final one by Peter Sent (supra). These witnesses are Assistant Returning Officers for Ijivitari Open electorate.

28.	Without going into the details of these affidavits, these witnesses said that no bribery took place during polling and scrutiny of votes and the persons allegedly bribed by the first respondent were not registered voters as their names were not on the common roll. They also produced copies of the common roll for Ijivitari Open electorate to support their claim. In my view, first whether the evidence will stand the test at trial remains to be seen. For now, there is evidence disputing the petitioner's claim of bribery. Bribery is a criminal offence. Criminal Code, s. 103. The petitioner must prove the allegations of bribery on a higher standard of proof. Secondly, the evidence brings into play a consideration of s. 131 of the Organic Law on Elections on entitlement of electors to vote. It states:

"131.	Elections at which Electors are entitled to vote.

(1)	Subject to this Section and Division 3, an elector shall only be admitted to vote for the election of a member for the electorate for which he is enrolled.

(2)	A candidate is entitled to vote in the electorate for which he is a candidate whether or not his name is on the Roll for that electorate.

(3)	For the purposes of this section, the Rolls in force at the time of the election are, subject to Subsection (2), evidence of the right of each person so enrolled to vote at an election, unless he shows by his answer to a question prescribed by Section 134 that he is not entitled to vote."

29.	Finally, the first respondent has belatedly filed an amended notice of motion on 01st November 2012. It was not moved at the time the petitioner moved the application for summary judgment. It is pending. In that application, he proposed to raise issues in relation to lack of and late service of the petition and witness attestation of the petition. He asserted that the petitioner did not serve the petition because the petitioner's witnesses have given false evidence in relation to service. Secondly, the petitioner served the petition out of time. 

30.	As to the issues of lack of service, I have expressed my views and there is nothing further to add. As to the second issue, I note on 20th July 2012, the first respondent was declared successful candidate. On 28th August 2012, the petitioner filed the petition and served it on the first respondent on 12th September 2012. The fourteen days expired on 10th September 2012. He is late by two days. Given this, I am satisfied there is a serious issue raised in relation to whether the petitioner is in breach of Rule 6(1) and ultimately whether the petition is properly before the Court. Finally, I note one of the attesting witnesses in the petition named Austin Sawae is self employed. S. 208(d) of the Organic Law on Elections requires attesting witnesses to state their occupation. I am satisfied it is arguable that self employed is not an occupation within the meaning of occupation under s. 208(d). I am satisfied that there are serious questions of fact and law raised by the first respondent in relation to the lack of and late service of the petition and the attestation of the petition.

31.	For these reasons, I am not satisfied that the application for summary judgment should be granted. As to the alternative application, given that the first respondent's amended notice of motion is pending and that it is an interlocutory application, I am of the view that it should be heard first before I fix the petition for trial. For this reason, I refuse the petitioner's alternative application to set down the petition for expedited hearing. Finally, given that serious issues have been raised by the first respondent, I order costs to be in the cause.

Order

32.	The ruling of the Court is:

32.1. The application for summary judgment is refused.
32.2. The alternative application for expedited hearing is refused.
32.3. The first respondent's amended notice of motion is fixed for hearing on a date to be agreed.
32.4. Costs shall be in the cause.
32.5. Time for entry of these orders shall be abridged.
____________________________________

Wariniki Lawyers & Consultants: Lawyers for Petitioner
Napu & Co Lawyers: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent