N10260

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 68 OF 2022

IN THE MATTER OF DISPUTED RETURN FOR THE
MUL BAIYER LUMUSA OPEN ELECTORATE

BETWEEN
KOI TRAPPE
Petitioner

AND:
JACOB MAKI, MP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri J
2023: 16th 17th May

ELECTION – Parliamentary – Petition – Notice of Motion – Application For Vacation of Trial – Public Servant Witnesses Teachers – Unavailability School Commitments – Other witnesses In Province Other than of Applicant  – Lawyer Preparation Wanting for Proper Defence – Election Petition Rules 12, 13, 14, 15 & 16 Election Petition Rules consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 – Application Not Promptly Made – Affidavit Supporting – Speculative – Measures in Law to Secure Witnesses – Interests of Other Side – Balance Not Discharged – Application to Vacate Trial Date refused – Costs in Cause.

ELECTION – Parliamentary – Petition – Notice of Motion – Application For Leave Amendment of Notice of Objection To Competency – No Rules Amendment of Notice of Objection to Competency Election Petition Rules consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 – Reliance of Sections 185 & 155 (4) Constitution – Section 217 Real Justice to Be Observed Organic Law on National and Local Level Government Elections (OLNLLGE) – Discretionary – Materials Relied Insufficient to Warrant Leave for Amendment – Leave Refused – Costs in Cause.
Facts
The first respondents applied for vacation of the trial date citing his witnesses Public Servants teachers who would not be available teaching in the trial dates allocated. Further were in another Province could not be easily located. Recently engaged as lawyer for, not adequate defence preparation.
He, together with second respondent sought amendment to the Notice of Objection.

Held

First Respondent’s Application for adjournment refused.
Materials relied insufficient to grant.
No Jurisdictional basis for application to amend Notice of Objection by First Respondent.
Second Respondents application for Leave to amend Notice of objection to Competency is Refused.
IECMS registered within Time.
Applications Dismissed.
Costs in the Cause.

Cases Cited:
PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126
Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366
Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545
Taru and Contempt Proceedings, Re [1982] PNGLR 292 
Re Contempt of Court, Re Assistant Registrar Philip Kaumba [2004] PGNC 21; N2763
Mirenbean Enterprises Ltd v Kaugla [2019] PGSC 64; SC1826
Waiakali (trading as Rammah Trading) v Bemobile (PNG) Ltd [2021] PGSC 64; SC2140 
Anis v Grand Columbia Ltd [2020] PGSC 111; SC2022 
State v Mataio [2004] PGNC 239; N2531

Counsel:

G. Shepperd, for the Petitioner
L. Okil, for the First Respondent
N. Tame, for the Second Respondent
		
DECISION
18th May, 2023
1.	MIVIRI, J: This is the Ruling of the Court on the two Notices of Motions filed by the Respondents.  

2.	The first Respondent has filed two notices of motion. The first notice of motion is dated the 1st May 2023, document number 174 filed by then Lawyers B. S. Lai Lawyers, which has been moved here by his new Lawyers, Okil Lawyers. The latter have been engaged officially as of the 08th May 2023. The notice ceasing to act by the former lawyer is dated the 05th May 2023. And of the present lawyers is dated the 08th May 2023. But the application for determination now for adjournment is as of the 1st May 2023. It is not clear as to why it was not moved there and then, possibly after allowance of the three clear days for service. So, it would have been moved either at the earliest, Friday 05th May 2023. Or better still on motions day, Tuesday 09th May 2023. 

3.	That has not happened until today the 17th May 2023. It may have been due to the fact that the present Lawyer took over the matter formally and on record on the 08th May 2023. So, from that day to today 17th May 2023, he has had 6 days excluding two days for weekend and counting today’s formal application. It was the prerogative of the incumbent, his client to take that course, exercised independently to defend the petition. It is his picking acknowledging that preliminaries by the Rules,  the petitioner who has filed his petition wants it to be heard expeditiously. In this regard he has complied with the requirements of the Election Petition Rules consolidated to Election Petition (Miscellaneous Amendment) Rules 2022, in all the preliminaries satisfied has landed him with trial dates by consent of all parties on 19th December 2022, to 16th to 27th May 2023. And five months after that consent the application for adjournment was filed 1st May 2023. If he had issues with the dates for trial then, he would not have consented. He has by the consent showed that he was content to go to trial on that date. It is really uphill for him given to convince that it was not avoidable, that it was beyond his comprehension that it would fall this way.

4.	His application is in the following terms:

(i)	Pursuant to section 212 (1) (a) of the Organic Law on National and Local Level Government Elections (OLNLLGE), the trial of the petition as set from 16th May 2023 to 27th May 2023 under Rule 14 (3) (a), (e) and (k) of the same Rules be dispensed with and the trial date be vacated forthwith.

(ii)	The trial dates be re-allocated to either September or October 2023 on a date and time convenient to the Court and the parties.

(iii)	Cost be in the Cause.

(iv)	Any further orders that the Court deems just in the circumstances of the case.

(v)	Time for entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.”

5.	Adjournments are at the discretion of the Court. The facts and circumstances must warrant that an adjournment must be given. And the relevant Law on point is the case of PNG Deep Sea Fishing Ltd v Critten [2010] PGSC 53; SC1126 (10 December 2010) which sets out the following as basis for consideration in the determination of whether or not an adjournment should be granted as applied. Firstly, it must be made at the earliest opportunity when the need for it is known. Secondly, that a refusal to adjourn will result in prejudice to his cause. Thirdly, that he has taken all steps necessary and reasonable to see out the hearing, but for circumstances that have arisen which are beyond his control and circumstances. And this is discretionary upon the Court to so grant or deny dictated by the facts and proper legal basis. And as rightly pointed out by counsel for the petitioner, Kalinoe v Paul Paraka Lawyers [2014] PGSC 38; SC1366 (10 July 2014) endorsed these principles in full and applying it to the detriment of the respondent. And in my view are relevant to the present set of facts and the circumstances posed. That is the law it is binding on this Court because that is by the Supreme Court of the land. The highest Court of the land. It is not likened to a decision of the National Court. Which in my view is not binding but maybe considered.  

6.	And the relevant particulars of his own affidavit of the 1st May 2023, deposes that he is the current and the incumbent Member of Parliament and the first respondent. He states that all relevant directions of the court have been complied with in preparation for the trial. Nothing is outstanding except the trial of the petition. But he seeks vacation of the trial date from the 16th to the 27th May 2023, because 35 out the 42 witnesses in his case are Public Servants, teachers in various schools. It would not be convenient for them to give evidence during this time set for the trial for his defence, because of their school commitments. And that the trial date is vacated to a time and date not falling when school holidays are. It would be prejudicial to his defence.

7.	Secondly the witnesses are not from his immediate area as they are from Mul adjourning the Baiyer Lumusa Electorate who speak the Enga Language, not Melpa of the Western Highlands. And he is not certain they will attend at the date of trial as they do not live in the immediate area. And he does not have control over them as they are different people to his own. And if they do not attend it would be prejudicial to my defence. Because they must be there to have their affidavits tendered into court in my defence. And a notice to cross examine all have been filed by the petitioner.

8.	Thirdly initially when the matter was listed for trial in December 2022, there were outstanding customary obligations, compensation for deaths within my district in my capacity as member of the Parliament for Mul Baiyer Lumusa. And these deaths also include destruction of property. Which arose as a result of the elections from April 2022 to September 2022. It was election related involving my supporters and that of the Petitioner. Customary obligations has been instituted by the “Stick blo pig”. It is important for me to play the role of leader there to resolve. I could not do and complete in January to April 2023, because of the commitments in Parliament. And my people have specifically set the month of May as the time to settle all. 

9.	That affidavit is further supported by that of the current lawyer Lance Okil dated the 16th May 2023. Who deposes that he formally commenced acting for the first Respondent on the 08th May 2023. That his first instructions was to consider the possibility of doing a supplementary Notice of objection. He reviewed the petition and opinion that a more detailed Supplementary Notice of Objection was in order. And that as of the date, he has done a draft of it. He has not been able to prepare the submissions relating to the notice of objection filed. And also, to meet with witnesses in the matter for the first respondent adequately to prepare his case for trial. And will not be properly assisting the court in the matter. He will need at least (2) two months to prepare for the trial. And deposes, “ I accepted instructions on the eve of trial because the First Respondent was greatly concerned about the Notice of Objection that was on file.”

10.	In my view the First Respondent has made a deliberate and calculated choice to cease instruction to the former Lawyers. His affidavit dated the 16th May 2023 sets out that he has not been consistent and serious in his defence of the petition filed. Because initially he engaged the services of a lawyer GFS Lawyers October 2022. Who filed his notice of objection on the 13th October 2022. Then the following month November 2022, he changed them and engaged B. S. Lai Lawyers. He has changed again to the present lawyers Okil. He has made that decision to appoint the present lawyer. And that decision was made when on the 24th April 2023 before this Court presided by Justice Yagi, it was confirmed that; (1)	Matter is confirmed for trial from the 16th to 27th May at Mt Hagen. (2) Matter is adjourned to 03rd May 2023 at 1.30pm for mention before trial Judge Justice Miviri in Waigani. (3) the First Respondent shall file and serve the application to vacate trial date by 1st May 2023 and file affidavit of service forthwith.” 

11.	With that confirmation of trial dates, he has made and filed this application for adjournment, and vacation of the trial date. It is overt that he is not serious in defending the petition. The engagement of and disengagement of is his prerogative. And it would not amount to a case that he is not adequately defended. In the sense that his materials are not properly before the Court in his defence. He has had every opportunity but has simply of his own volition disengaged. That would not be basis for an adjournment. It would be an abuse of process to come as he does with this facts behind him plainly in his hands. In law his facts do not find favour so as to grant the application he prays. Because it is within his discretion and prerogative to apply to get Summons for each witness named to appear at trial to give evidence. Should there be failure pursuant, he has the option to enforce the summons issued against. It is not beyond him so that an adjournment will cure. And it is no barrier that a witness is not coming in the Melpa language, but in Enga. That is the sole purpose of the Court interpreters in Court. Again, this is not a basis either by the facts intertwined with the law to give what he prays. Simply they do not give the legs to the law to come his way. 

12.	It is underlying that the Court does not operate at the dictate of a party. The convenience of a party is not of the Court. When dates are set to proceed as is the case here, they will proceed unless the reasons are substantial. That they are not of the parties doing, or in the hands of the parties or party to make good. It is beyond them. Here is in fact the doing of the First Respondent who has brought it about by his conduct. The duties that are bestowed upon him as a leader do not take precedence over what has been instituted in Court. When the preliminaries by the Rules have been complied with as is the case here, he has also admitted it is for the trial to proceed in the petition. 

13.	Any Customary obligation arising of a law-and-order situation, which he must stand by to settle is a matter that will not dictate how the Court operates in the matter before it. And in this regard the Courts have made it very clear they do not operate at the convenience of parties: Kwimberi of Paulus M Dowa Lawyers v Independent State of Papua New Guinea [1998] PGSC 9; SC545 (27 March 1998). Here date for trial in a criminal matter was fixed, the lawyer did not appear. He got charged and was convicted for contempt of Court. A policeman did not appear as a witness in a trial. He got charged with contempt of court and was convicted: Taru and Contempt Proceedings, Re [1982] PNGLR 292 (16 July 1982). The assistant Registrar did not provide a court attendant for the Court and was charged and convicted of contempt of Court, Re Contempt of Court, Re Assistant Registrar Philip Kaumba [2004] PGNC 21; N2763 (13 December 2004). So, for the witness in your case, they operate within the terms of the Court you included. And the reasons you have set to apply do not have the weight to justify the pray. It is refused and dismissed.

14.	The second Notice of motion is dated the 16th May 2023. It is in the following terms;	(1)	Pursuant to Rule 22 of the Election Petition Rules (as Amended)

(i)	Time for service of this Notice of Motion and affidavit in support be dispensed with;
(ii)	The requirements of Rule 12, EPR be dispensed with;
(iii)	The First Respondent be granted leave to file a Supplementary Notice of Objection forthwith or within such time as fixed by the Court.

15.	 Rule 22 is non-existent because Election Petition Rules (As amended) is not the current Rules operational. The current and sanctioned Rules operational are, Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022. And Rule 22 Relief from Rules there, is not in the terms as pleaded here. It is to do with dispensation of the Rules therein. It does not give the jurisdictional basis to sustain a plea for leave to file a supplementary Notice of objection as here by the first respondent. It means in law the notice of motion is without the Jurisdictional basis and does not advance to be determined. As there is no rule to be applied to the facts by the affidavits relied on. There is no determination to be made here. The Notice of objection remains as it is filed 06th October 2022 in the case of the First Respondent. 

16.	Again, is a similar notice of motion that is moved by the second respondent. Whose notice of motion is dated the 17th May 2023 prays this way:

(1)	Pursuant to Rule 22 of the Election Petition Rules 2017 consolidated to Election Petition ( Miscellaneous Amendments) Rules 2022 (the Rules) and the inherent jurisdiction of the Court, the requirements for service of this Notice of motion and supporting affidavits, be dispensed with.

(2)	Pursuant to section 185 and 155 (4) of the Constitution, this Court issue ad hoc direction that the second respondent’s Amended Notice of Objection to Competency annexed to the affidavit of Nicholas Tame, sworn 17 May 2023, be filed, and served on the other parties herein forthwith.

(3)	Costs be in the cause.

(4)	Such other orders as this Court deems fit.”

17.	This seeks an amendment to the Notice of Objection to Competency that has been filed now on file. And grant of leave to amendment is discretionary. It is depended on the facts that are relied on. And ultimately it is geared to promote the interest of Justice. And it is not made mala fide but bona fide, it would not prejudice the other side, here the petitioner. Which cannot be compensated by costs. It is ultimately driven to attain proper ventilation of the issues in dispute and causes no prejudice to the other side: Mirenbean Enterprises Ltd v Kaugla [2019] PGSC 64; SC1826 (1 August 2019). This was for leave to amend the notice of appeal to insert correction of description of the parties. Here is a notice of objection to competency against a disputed return in the National Elections. But in my view the principles are the same and applicable here also. 

18.	What is sought out by the amendment to the Notice of Objection to Competency is what was settled in Waiakali (trading as Rammah Trading) v Bemobile (PNG) Ltd [2021] PGSC 64; SC2140 (3 August 2021). As here that was a similar case as here, where a notice of objection to competency was filed challenging that the appeal was filed out of time. And there was inconsistency between registry stamp and IECMS registration date. The latter was upheld as the correct date it could not be tampered with because of the security within. And in so doing the Court approved and followed, a similar issue in Anis v Grand Columbia Ltd [2020] PGSC 111; SC2022 (2 November 2020), where there was a difference between a manual filing date shown on a Notice of Appeal, and the electronic filing date. The court accepted that the evidence of the IECMS filing date was sufficient proof of the filing date, which therefore required the appellant to produce evidence to refute it and explain the discrepancy in the dates. The appellant did not produce such evidence and as no error had been shown in the IECMS filing date, the IECMS date was accepted as showing that the appeal had been filed out of time. Appeal was dismissed as incompetent and filed out of time.

19.	That case on all fours applies here and it would be the basis upon which the amendment would not add anything to the cause of the respondents. It would be not in the interest of Justice to allow the amendment to the Notice of Objections to Competency. Having the path laid out in law. A National Court decision is not binding but a Supreme Court is binding. And the above are Supreme Court cases. They will set the law for this Court to follow. Given the contention to amend the Notice of Objection to competency in the terms proposed have been settled in the light of the cases above. There is really no need to go down that path as applied. The leave to amend the Notice of objection to competency is refused. The notice of motion is refused. Section 185 and 155 (4) of the Constitution are inapplicable because the road has been settled in the cases above to follow. Computation of time is by the IECMS and that is clear the petitioner was within time to file. He filed within time by the mathematics here. He was within the forty days having filed by IECMS on the 22.34pm (10.34pm) on the 13th September 2022. And that is the date by the current system that is now in operation and used. It is not the manual system as dated of the 21st September 2023.

20.	Why install a system worth millions of Kina to see efficiency in the Court administration of the Registry to befall it consequences derailing it? Why have parties integrated into this system all to say the date on filing is not by that system. It is not with human hands in how it comes out with the inscription of the filing. It is automated and comes because of the programming of the system. It is therefore without human hands to tamper. And what comes out is as the software is programmed by its developers. And therefore, that is the number time date of registration. It is not the same as being tampered with human hands and mind as in State v Mataio [2004] PGNC 239; N2531 (11 May 2004). In the aggregate there is really no basis either in law or evidence to amend as applied. It is clear that the security deposit here was paid on the 16th September 2022. I will not dwell into the payment of the security deposit as leave has been refused for the proposed amendment.

21.	The sum is that second respondent’s application is refused. The motion is dismissed.

22.	Costs will be in the cause.

Orders accordingly.

Young & Williams Lawyers:  Lawyers for the Petitioner	
Okil Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for Second Respondent