N7266
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No. 67 OF 2017

IN THE MATTER OF DISPUTED RETURN FOR THE
PORT MORESBY NORTH EAST OPEN ELECTORATE

BETWEEN
LABI AMAIU
Petitioner

AND:
JOHN KAUPA
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: LIOSI J
2018: 9th & 11 April

ELECTION PETITIONS – Application to dismiss petition for non-compliance with directions – Directions for parties to file and serve written submissions in relation to objection to competency – Non-compliance of – Trial judge’s exercise of discretion – Discretion to be properly exercised on proper principles – Constitution – s. 155 (2) (b) – National Court Election Petition Rules 2017. 
Cases cited: 
Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853
Jamie Maxtone Graham v. Electoral Commission of PNG (2013) N5211
Joseph Kopol v. William Powi (2013) N5106 
Jimson Sauk v. Don Pomb Polye (2004) SC 769 
Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (2014) SC1329 Peter Wararu Waranaka v. Andrew Trawen & others (2012) N4815 
Vari Vele v. Powes Pakop (2008) SC945

Counsels:

Mr. J Napu, for the Applicant/First Respondent
Mr. S Ranewa, for the Applicant/Second Respondent
Mr. S Liria, for the Respondent /Petitioner
RULING
11th April, 2018
1.	LIOSI J: By a Notice of Motion filed on the 7th March 2018, the First Responded moves the court that pursuant to Rule 18(a) of the Election Petition Rules 2017 EP No. 67 of 2017 between Labi Amaiu Petitioner and John Kaupa First Respondent and Electoral Commissioner Second Respondent be dismissed in its entirety for failing to comply with directions orders of 20th November 2017. The Second Respondent supports the motion. 

2.	By way of a cross-motion filed on 12th March 2018. The petitioner seeks leave to file and serve its submission on the objection to competency out of time. The motions were heard on Monday 9th April and were adjourned to this morning for ruling. This is the ruling. 

Facts 

3.	The applicant and the respondent were candidates for the Port Moresby North East Open Electorate in the 2017 General Elections. The first respondent finished first and was declared winner. Aggrieved by the results, the applicant filed a petition in the National Court seeking to void the first respondent’s election. He alledged amongst others, illegal practices, errors and omissions at the polling. On the 20th November 2017, the court issued certain directional orders. One of them was to file and serve written submissions on the objection to competency by or before Friday 2nd March 2018. (Order No. 6). On 13th February 2018, among other orders, the court confirmed the due date of filing and serving the submissions to the objections to competency by the parties on 2nd March 2018.  
  
4.	In compliance with the above 2 orders, the first and second respondents filed and served their respective submissions. The petitioner failed to comply with such orders of the court. On 7th March 2018, the first respondent filed its motion pursuant to Rule 18(a) of the Election Petition Rules 2017 to have the entire petition dismissed summarily for failing to comply with directions order of 20th November 2017. 

5.	On the 12th March 2018, the petitioner belatedly filed a motion seeking extension of time to file and serve his submission on the respondents. The motion was supported by an affidavit which annexed a draft copy of the petitioner’s written submission. These documents were served on 12th March 2018 on first respondent’s lawyer evidenced in the affidavit of service of Edwin Gesi. The second respondent basically supports the first respondent’s application and has filed a supporting affidavit to that effect. 

Applicants/Respondents submissions

6.	The respondent submits there was a clear default by the petitioner. Section18 of the Election Petition Rules 2017 states the law on default:

     "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.	It further submits that the position of law regarding summary dismissal of cases is well established and is set out in the case of Vari Vele v. Powes Parkop (2008) SC945. This was followed in various other subsequent decisions including Peter Wararu Waranaka v. Andrew Trawen & others (2012) N4815, Jamie Maxtone Graham v. Electoral Commission of PNG (2013) N5211. This case laws set out the criterias that need to be fulfilled. They are: 

(i)	    An explanation for allowing the time to expire, a rule not complied with or otherwise why dispensation is required; 
(ii)	     The application for extension must be made promptly;
(iii)	If there is a delay, reasonable explanation for the delay;
(iv)	The relief sought by applicant will not unduly prejudice the other parties case and; 
(v)	     The granted dispensation will enable all of the issues in contention to be promptly brought before the court without further delay. 

8.	The respondents submits the petition should be dismissed for the following reasons;

 (1)  The parties had almost 5 months to file and serve their submission on objection to competency. The default is inexcusable as between  December and January 2017 and 2018, the court also went into recess    enhancing the ample time. 

  (2)   The reasons given for the delay is inexcusable. One reason been that he  was involved in another election petition EP No. 39/17, however he failed to particularise the kind of engagement.

  (3)   That the petitioner did not pay his bills 

  (4)  The affidavit of Mr Liria did not address the prejudice aspect. He 
            states the trial was set down for 9th April 2018 and the late filing of the submission will entirely prejudice the respondents and also         inconvenience the court. 

   (5)    The petitioner is seeking extension of further 2 days to file and serve submissions on objections if the court so grants the application. Effectively the trial date will be delayed by 2 days. 

9.	It submits the court must at all times safeguard itself from abuse by reckless litigants and its lawyers. He cites the case of Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853, where the Supreme Court said; 

“It is settled law that the courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that lays open to the court at any stage of the proceedings. As such it does not matter whether a party appearing before the court is raising it because it goes into the competence of very proceedings brought before the court.”

10.	It says there is abuse and there is a clear default. The intent and spirit of S.18 of the Election Petition Rules 2017 is to make it easy for compliance to litigants so they don’t unnecessarily resort to lawyers. Where lawyers are involved the bar or standard is accordingly elevated. The court must therefore come hard on lawyer’s negligence to protect itself from abuse: Jimson Sauk v. Don Pomb Polye (2004) SC 769. 

11.	In summary the first respondent says Rule 18 of Election Petition Rules 2017 is violated, the explanation is unreasonable and the respondents will be prejudiced all because of the petitioner’s lawyer’s negligence and the petition must be dismissed with costs. The second respondent made verbal submissions basically endorsing the first respondent’s submissions. Further that the petitioner should have filed its motion before the 2nd March 2018, ie; before expiry of the time allotted. 

Petitioners Submission 

   Issues 

1.	  Whether it is fair to dismiss the petition for failing to file written submissions on objection to competency for non-compliance with the directional orders of the court of 20th November 2017. 

2.	  Whether in fairness the petitioner should be granted leave to file his written submissions outside of the time allowed by the directional orders of the court of 20th November 2017.   

12.	Under Election Petition Rules 18(a) the court is empowered to summarily determine an election petition. Rule 18 (c) says the court may make such other further orders as it deems just. It therefore submits the summary dismissal powers are not automatic upon default of compliance of directional orders or default by the petitioner but gives a discretion to the court to consider and make a decision that is fair and just considering all the circumstances of the case. 

13.	In the present case the petitioner failed to file its written submissions in compliance of directional orders. It submits the court should consider the following matters; 

(a)	The petition had been set for hearing on 9th April 2018.

(b)	There is no outstanding process before hearing of the petition which is inconvenienced by the delay or late filing of the petitioners written submissions for objection to competency. 
 
(c)	The petitioner has filed an application for leave to file written submissions outside of the required time.

(d)	The petitioner has already served his written submissions to the respondents by way of an annexure to the affidavit in support of the leave application.

(e)	The petitioner has substantial compliance of directional orders of 20th November 2017

(f)	The rights of the respondents in relation to the objection to competency and the trial on petition are still intact and unaffected by the petitioners default. There is no prejudice or injustice the respondents stand to suffer because of the late filing of the petitioners written submissions on objections to competency. 

14.	The petitioner submits based on the foregoing consideration, there is no injustice or prejudice suffered or will be suffered by the respondents. Furthermore, the late filing of the written submissions does not inconvenience any outstanding processes for expeditious hearing of the petition or the objections. On the other hand if the petition was dismissed that terminates the petition and the serious allegations challenging the election of the first respondent remains undetermined. This will be too harsh on the petitioner and not in the spirit of overall fairness and protection of law with respect to holding elected public officer under S.50(1)(d) and s.37(1) of the Constitution. The petitioner must therefore be accorded the right to be heard. In this kind of situation it submits the court to consider s.217 of the Organic Law on Local and National Government Elections which states that the National Court shall be guided by substantial merits and good conscience. 

15.	The petitioner’s counsel refers to the case of Kopol v. Powi (2013) N5106, 
 which he submits is a case on point. That case dealt with the issue of whether or not a petition can be dismissed for failure to file written submissions for objections to competency under directional orders 11. In that case although the explanation given by the petitioner’s lawyers was unsatisfactory, the court nonetheless allowed the late filing and service of the written submissions in the interest of justice.  
The Law 
16.	Election Petition Rules 2017 provides for the practice and procedure of the National Court relating to the conduct of election petition proceedings and related matters. It includes provisions for filing and service of petitions, pre-trial conference (R14) status conference (r18) and trial (r16). For purposes of the current application, it is important to note that the pre-trial conference was completed on 20th November 2017. Status conference under Rule 15 of Election Petition Rules 2017 was to be completed on 5th March 2017 and the petition has already been set down for hearing on 9th April 2017. 

17.	The National Courts power to deal with an election petition summarily is provided for under rule 18 of the Election Petition Rules 2017 and states; 

      “18. Summary Determination 
        
 Where a party has not done any act required to be done by or under this rules or otherwise has not complied with any direction, the court may on its own motion or the application of a party, at any stage of the proceedings;- 

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

(c)	make such other orders as it deems just.”
        
18.	Whilst the election petition rules gives power to the court to dismiss an election petition summarily, Rule 18 (c) and Rule 22 gives a discretion to the court to consider if dismissing the petition would do justice. This means that even if there is default on the part of the petitioner. The decision for dismissal may not be automatic and not the only option. Other options may be available to ensure justice and fairness are observed. 

Application of Law to Facts   

19.	The power to summarily dismiss a petition under Rule 18 of the National Court Election Petition Rules 2017 is discretionary and must be exercised on proper principles. The principles are; 

(a)	 A reasonable explanation for the default;
(b)	 Prejudice caused to the other party by the default; and 
(c)	 The overall interest of justice. 

20.	In respect of whether there was reasonable explanation for the delay, the petitioner gave 2 explanations. The first was that he was tied up with another election petition matter. The second ground related to non-payment of his legal bills. I do not need to discuss this explanations as they are unacceptable and I reject them as constituting a reasonable explanation for the default. Where a party fails to comply with a court direction, it is a serious matter as it is tantamount to disobedience of a lawful order of the court. This is clear from the wording of Rule 18 of the Election Petition Rules 2017. 

21.	In respect of whether there was any prejudice caused by the default the petitioner says the respondents have not shown any material evidence as to the kind of prejudice it has suffered or will suffer. In fact the petition urges the court to consider a number of factors. A significant one been that objection to competency has been filed. Further the rights of the respondents in relation to the objection to competency and the trial on petition are still intact and unaffected by the petitioners default. I agree with the petitioner that the respondents have failed to show what kind of prejudice they have suffered if any or will suffer. The only evidence came from the bar table asserting that the first respondent been a Government Minister is a busy man and therefore in that regard it will cause him a lot of inconvenience. Where the issue of prejudice arises the nature and extent of prejudice will vary from case to case. However, in this case the respondents have failed to show what prejudice they have suffered or will suffer if any. 

22.	This case is about a failure to comply with the court directions to file and serve written submissions in response to the respondent’s objection to competency. The cases cited by the respondent’s emphasise the importance of an election petition and the need to strictly comply with the Election Petition Rules and court directions. However, none of those cases strictly and specifically address the issue under consideration. That is where the default is non-compliance with directions to file and serve written submissions in response to an objection to competency. The case of Jospeh Kopol (supra) cited by counsel for the applicant is on point. The factual circumstances giving rise to the dismissal of the petition in that case are identical to this case. The first respondent applied to have the petition dismissed on the ground that the petitioner failed to comply with court directions to file and serve his written submissions to the first respondent’s objection to competency within the time fixed by the court. The National Court held that the petitioners explanation for the default that they inadvertently overlooked the matter and that counsel who had carriage of matter was on leave at that time was unsatisfactory. However, the court declined to dismiss the petition because it was not satisfied that the respondents were adversely prejudiced by the default. 

23.	The other case dealing with the issue on point is the Supreme Court case of Luke Alfred Manase v. Don Pomb Polye and Electoral Commission (2014) SC1329. The facts were that the applicant and the first respondent were candidates for the Kandep Open electorate in the 2012 General election. The first respondent finished first and was returned as Member. Aggrieved by the result, the applicant filed a petition in the National Court and sought to void the first respondent's election. He alleged among others, illegal practices, errors and omissions at polling and counting of votes against the respondents. On 04th March 2013, the National Court dismissed the petition on the ground that he failed to comply with Court direction to file and serve written submission to the respondents' objections to competency. It also ordered the applicant to pay costs and the sum of K5,000.00 as security for costs be paid to the respondents. He sought leave to seek a review of that decision pursuant to s. 155(2) (b) of the Constitution. Leave was granted. 

24.	The applicant argued that the trial judge erred when he dismissed the petition because there was no direction for him to file and serve written submission and his counsel only "volunteered" to file written submission. Secondly, he argued that the trial judge wrongly exercised his discretion when he, inter-alia, placed so much weight on strict compliance with Court directions and failed to find that since he had filed a belated written submission, the respondents were not adversely prejudiced by the default. Thirdly, the decision was unreasonable because the trial judge was influenced by irrelevant matters such as the tape recording of proceedings and did not give parties opportunity to address the Court on matters raised in it.

25.	The applicant sought a review of that decision in the Supreme Court pursuant to S.155 (2) (b) of the Constitution. The Supreme Court again held that the power to summarily dismiss a petition under Rule 18 of the National Court Election Petition Rules must be exercised on proper principles. They are;

(a)	A reasonable explanation for the default; 
(b)	Prejudice caused to the other party by the default; and 
(c)	The overall interest of justice. 

26.	It held the trial Judge wrongly exercised his discretion when he placed so much weight on strict compliance with the court directions and gave lessor or no consideration to the question of prejudice and interest of justice. The application for review was upheld. The decision of the National Court of 4th March 2013 was quashed and a retrial was ordered. 

27.	Following the above two decisions, I am of the view that if I was to dismiss the petition. I would be placing so much weight on strict compliance with the court directions. Consequently, taking into account all the arguments and considering the issues of prejudice and interest of justice I will refuse to dismiss the petition in its entirety. 

Conclusion 
28.	In the circumstances, in the interest of justice I grant leave to the petitioner to file his submission in response to objection to competency out of time in terms of the Notice of Motion. 

Costs 

29.	In respect of costs, I consider this dispute would not have arisen had the applicant and his lawyer filed and served the written submissions by 2nd March 2018. The conduct of the petitioner and his lawyer must be disapproved by the courts. The petitioner shall bear the costs of this application for the first and second respondents to be taxed if not agreed. 

30.      The orders of the court are as follows;
       
1.	The first respondent’s motion filed on 7th March 2018 seeking to dismiss the petition in its entirety is dismissed.
 
2.	The petitioner’s notice of motion filed on 12th March 2018 seeking leave to file its submission on the objection to competency out of time is granted. 
3.	The petitioner shall file and serve his submissions on objection to competency by Friday 16th April 2018. 
4.	The petitioner shall pay the costs of this application for the first and second respondents to be taxed if not agreed. 
Ruling accordingly. 

Liria Lawyers		: Lawyer for the Applicant/Petitioner
Napu and Co. Lawyers	: Lawyer for the First Respondent
Kawat Lawyer		: Lawyer for the Second Respondent