N5106
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 80 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 SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN

JOSEPH KOPOL
Petitioner
 
AND

WILLIAM TITPE POWI
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2013: 22nd & 25th March

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Failure to comply with Court direction – Direction to file and serve written submissions on objection to competency – Reasons for default – Whether satisfactory – Prejudice – Whether respondents prejudiced by default – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dispense with comply with Court direction – Application arising from election dispute – Direction to file and serve written submissions on objection to competency – Reasons of – Whether satisfactory - Prejudice – Whether respondents prejudiced by default – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 17.

Facts

There are two applications for ruling. They are the petitioner's application to dispense with compliance with Court direction to file and serve written submissions in relation to the objection to competency and for the Court to allow one that was filed out of time to remain pursuant to Rule 17 of the National Court Election Petition Rules 2002 (as amended) and the first respondent's application to dismiss the proceedings for want of compliance with Court directions to file and serve written submissions in relation to the objection to competency pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended).

Held:

1.	The explanation for the default that the petitioner's lawyers inadvertently overlooked the filing and serving of the written submission and that lawyer having conduct of the petition was on leave at that time are unsatisfactory. Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) 4877, Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937 and Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093 referred to.

2.	The petition has progressed to a stage where it is ready for trial, trial dates having been allocated and that the respondents have been served with a copy of the petitioner's written submission, no serious prejudice has been established to justify dismissal of the petition.

3.	Serious allegations of errors and omissions during polling and counting have been raised in the petition, that parties have progressed the petition to the stage where it is awaiting the dates for trial to arrive to commence trial and that the petitioner has belatedly filed and served the written submissions, in the interests of justice, the late filing and service of the written submission is allowed.

Cases cited:

Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877 
SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349
Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852 Daniel Don Kapi -v- Sam Abal & Ors (2005) N2856
Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924
Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948 Walter Schnaubelt -v- Baron Chan & Electoral Commission (2012) N4791
Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission: EP No 14 of 2012 (Unnumbered & Unreported Judgment of 04th March 2013)
Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937
Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093

Counsel:

 Ms C Copeland, for Petitioner 
Mr A Baniyamai, for First Respondent
Mr K Kepo, for Second Respondent

RULING
25th March, 2013

1.	MAKAIL, J: There are two applications for ruling. They are:

1.1.	The petitioner's application to dispense with compliance with Court direction to file and serve written submissions in relation to the objection to competency and for the Court to allow one that was filed out of time to remain pursuant to Rule 17 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") and

1.2.	The first respondent's application to dismiss the proceedings for want of compliance with Court directions to file and serve written submissions in relation to the objection to competency pursuant to Rule 18 of the EP Rules. 

Background Facts

2.	These applications arise from an election petition disputing the election of the first respondent as Governor of Southern Highlands Province in the 2012 General Elections. Parties rely on the following affidavits in support of their respective applications:

2.1.	Affidavit of Christine Copland sworn and filed on 06th March 2013,
2.2.	Affidavit of Kylie Najike sworn and filed on 06th March 2013 and
2.3.	Affidavit of Anna Wargem sworn on 07th March and filed on 08th March 2013.

3.	From these affidavits, the undisputed facts are, on 29th November 2012, the Court directed parties to file and serve written submissions in relation to an objection to competency filed by the first respondent. The respondents were to comply with this direction by 25th January 2013 and the petitioner by 01st March 2013. The respondents filed and served their written submissions on 25th January 2013. The petitioner did not. He says it was his lawyers' inadvertence that they did not file one by the due date and that the lawyer having conduct of this matter was on leave at that time.

Parties' Submissions

4.	Both applications call for the Court's exercise of discretion. Counsel for the parties correctly canvassed the principles upon which the discretion is exercised in their respective submissions. These are the reasons for the default, whether they are satisfactory, the prejudice, whether the granting of the application will prejudice the other party and whether it is in the interests of justice that the application should be granted. 

5.	Ms Copland of counsel for the petitioner submits the petitioner has satisfactorily explained the default and should be allowed to file and serve the written submissions out of time. In any case, one has been filed and served on the respondents on 06th March 2013 and the respondents should be ready for arguments at trial. She further submits that no real prejudice will be suffered by the respondents if the application is granted. She adds that if the respondents claim that they are being prejudiced by the late filing of the submission, they have a right to apply to vacate the trial date and have the petition relisted for hearing on another date, by which time they should be ready to argue the objection to competency. She relies on the case of Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877. 

6.	Mr Baniyamai of counsel for the first respondent and joined by Mr Kepo of counsel for the second respondent submit that the petition be dismissed because the petitioner failed to file and serve written submissions within the time fixed by the Court. They emphasise that the petitioner is in default of a Court direction and such is not only a breach of the Court order but is disrespectful. As an election petition is a serious matter, the petitioner as the party prosecuting it bears a heavy burden to ensure that it is prosecuted expeditiously. A failure to comply with the Court's direction should be visited with an order for dismissal. They rely on the cases of SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349, Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852, Daniel Don Kapi -v- Sam Abal & Ors (2005) N2856 and Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924, to support their submissions.

7.	As to the reasons for the default, they rely on the cases of Edward Ekanda Alina (supra), Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948, Walter Schnaubelt -v- Baron Chan & Electoral Commission (2012) N4791 and Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission: EP No 14 of 2012 (Unnumbered & Unreported Judgment of 04th March 2013) and submit that the inadvertence of lawyers and the lawyer having conduct of this petition was on leave are unsatisfactory. They add that the petitioner had four months to prepare his submission. They calculate four months from the date the Court issued directions of 29th November 2012 to the date fixed by the Court for filing and serving submission of 01st March 2013. As to the question of prejudice, they submit that the delay in concluding the petition has undermined the first respondent's leadership and denied the people of the electorate a right to fair representation in Parliament. For these reasons, the petition should be dismissed.

The Law

8.	The power to summarily dismiss a petition under Rule 18 is discretionary. 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."

Consideration of Law and Facts

9.	I accept the submissions of the respondents that as an election petition is a serious matter as it is considered a challenge to the majority wishes of the people's representative in Parliament, the emphasis is on its expeditious disposition. Where a petitioner is in default of a Court direction, such default is not only a breach of the Court order but is also disrespectful. The cases cited by counsel in their respective submissions emphasise the importance of election petitions and the need to prosecute them with due despatch. The consequence of failing to comply with the EP Rules may be fatal. It could be visited with an order for dismissal. 

10.	I also accept their submissions that the explanation for the default that the petitioner's lawyers inadvertently overlooked the filing and serving of the written submission and that the lawyer having conduct of the petition was on leave at that time are unsatisfactory: Edward Ekanda Alina (supra) and see also Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937 and Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093.

11.	While I appreciate the respondents' submission that the petitioner had four months to prepare his submission, I am of the view that the delay should be calculated from the date the respondents filed and served their written submissions on the petitioner because the Court's direction is very specific, in that the petitioner is to file and serve submissions in reply by 01st March 2013. That means, he will respond to the respondents' submissions after he receives them. He received them on 25th January 2013 and time would start running from there. He had roughly a month from that date to 01st March 2013 to respond. The one month expired on 01st March 2013. He filed and served his submission on 06th March 2013. He was late by six days. This is the period of delay. In my view, the delay is not long.

12.	I have considered Luke Alfred Manase's case (supra). While the facts giving rise to the dismissal of the petition are similar to this case, in that the Court directed parties to file and serve written submissions on each other on the objection to competency, that the petitioner failed to file and serve his written submission by the date fixed by the Court, that the reasons offered for the default were lawyers' inadvertence and that the lawyer having conduct of the petition was on leave at that time, the issue of prejudice was not considered. In my view, this is the distinction. 

13.	In this case, the petition has progressed to a stage where it is ready for trial, trial dates having been allocated. The trial is fixed for 02nd to 12th April 2013 at Mendi National Court. The respondents were served with a copy of the petitioner's written submission on 06th March 2013. From that date to 02nd April 2013 is almost a month. In my view, the respondents have sufficient time to consider it and prepare for the hearing of the objection to competency on 02nd April 2013. In my view also, the respondents' concern that the delay in concluding the petition has undermined the first respondent's leadership and denied the people of the electorate a right to fair representation in Parliament is a fair submissions but as I have found, the petition is ready for trial. It is only a matter of waiting for the days for trial to arrive and then for parties to present their respective cases to the Court. For these reasons, I am of the view that no serious prejudice has been established to justify dismissal of the petition.

14.	Finally, serious allegations of errors and omissions during polling and counting have been raised in the petition, that parties have progressed the petition to the stage that it is awaiting the dates for trial to arrive to then commence trial and that the petitioner has belatedly filed and served the written submissions, in the interests of justice, the late filing and service of the written submission should be allowed.

15.	Under Rule 18, the Court has discretion to dismiss the petition for non compliance with its directions. The Court also has discretion under Rule 17 to dispense with the directions "before or after the occasion for compliance arises." The Court directions arose from the directions issued under Rule 12 of the EP Rules. I am satisfied that the direction should be dispensed with and written submissions filed on 06th March 2013 be allowed.

Costs

16.	Finally, the petitioner's lawyers' inaction or rather a casual attitude towards the seriousness of complying with Court's directions should not be tolerated. Their conduct is reprehensible and must receive some rebuke from the Court. Their conduct prompted both applications. In Michael Kandiu's case (supra), speaking in the context of a respondent's default in filing and serving of affidavits by the date fixed by the Court, I said that it is high time the Court come down hard on defaulting parties and I allowed the late affidavits to go to trial on condition that the respondent pay the petitioner's costs within seven days of receipt of the bill of costs. I will not make the same order here because this is not a case where the default is the failure to file and serve affidavits. It is the failure to file and serve written submissions on the objection to competency and the failure is less serious to that of failure to file and serve affidavits. For this reason, I will order the petitioner to pay costs of both applications and if parties are unable to agree as to the amount, they shall have it taxed.

Order

17.	The orders are:

17.1.	The application to dismiss the petition is refused.
17.2.	The petitioner's written submission filed on 06th March 2013 is allowed.
17.3.	The petitioner shall pay costs of both applications to be taxed of not agreed.
______________________________________________________________

Young & Williams Lawyers: Lawyers for Petitioner
Baniyamai Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent