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Yakos v Pundari [2024] PGNC 94; N10751 (28 March 2024)

N10751

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 16 OF 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE

BETWEEN:
PETER YAKOS
Petitioner

AND:
SIR JOHN PUNDARI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2024: 8^th & 28^th March

ELECTIONS – application by first respondent to move location of trial from Wabag to Waigani based on security concerns – applicant also seeks trial date to be vacated - Petitioner opposes application on the basis that there are no security concerns sufficient enough to warrant the trial of the election petition being moved to Waigani - totality of the evidence of the parties suggest that there is still significant security threats in Wabag and the broader Enga Province that Court cannot ignore – application for orders to move trial to Waigani granted

Counsel:

Mr. Solomon Wanis, for the Petitioner
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING

28^th March 2024

1. DINGAKE J. This is my brief ruling with respect to the First Respondent’s application that the trial of this election petition be moved from Wabag to Waigani on account of security concerns in Wabag and the broader Enga Province. The application also seeks the trial date to be vacated.
   
2. For completeness Term 2 and 3 of the First Respondent’s Notice of Motion states that:
   

(2) Pursuant to Section 155(4) of the Constitution and Section 212(1), (2) and (3) of the Organic Law on National and Local Level Government Elections (“Organic Law”), and Rule 14(3)(a) of the Election Petition (Miscellaneous Amendments) Rule 2022 (herein referred to as the “EP Rules”) the Court Directions of 25^th October 2022, be varied and the Venue for trial of the Petition be changed from Wabag, Enga Province to Waigani, National Capital District.

(3) Pursuant to Section 155(4) of the Constitution and Section 212 (1), (2) and (3) of the Organic Law, and Rule 14 (3)(a) of the EP Rules the Court Order of 13^th December 2023 be varied and the dates of trial from 4^th March to 29^th March, 2024 be vacated and changed.

3. The application is supported by the Second Respondent and opposed by the Petitioner.
   
4. The Petitioner opposes the application on the basis that there are no security concerns sufficient enough to warrant the trial of the election petition being moved to Waigani.
   
5. The First Respondent invokes, inter alia, the inherent powers of the Court under Section 155(4) of the Constitution in praying that the trial be moved to Waigani.
   
6. The Respondents in arguing that it is not safe to hold the trial in Wabag rely on several Affidavits filed of record. The Respondents place heavy reliance on the letter appearing as Annexure “GL2” in the Affidavits of George Lau filed on the 6^th of February 2024, and 31^st of January 2024, respectively (Annexure “GL3”) which states that the security situation in Wabag is not conducive for the election petition trial to be held there.
   
7. The First Respondent has also filed Affidavit evidence showing that as a result of the unsatisfactory situation in Wabag, many election petitions have been moved to Waigani. These include two (2) petitions for Wapenamanda Open Electorate (EP No. 39 and EP No. 40); Kandep Electorate Election Petition (EP No. 22 of 2022) and Wabag Open Electorate two (2) petitions (EP No. 15 and EP No. 19 of 2022).
   
8. Annexure “GL3”to the Affidavit of George Lau filed on the 31^st of January 2024, avers that:
   
   • (a) The tribal fight is almost in every district in Enga Province including Kompiam Ambum District. Killings have occurred in Wabag recently related to tribal fights from other Districts.
     
   • (b) The situation at Wapenamanda had worsened with recent killing of twenty (20) people. The above Annexure states that the travelling public who are travelling from Mt. Hagen to Wabag are at high risk.
     
   • (c) The tribal fight is everywhere in Enga Province and police and soldiers are outnumbered and stretched out.
     
   • (d) That the tribal fight in Kompiam Ambum is currently the biggest tribal fight, and that the tribal fight had taken the form of guerilla warfare and people are killing by ambush.
     
   • (e) The situation in Kompiam Ambum is still tense.
     
   • (f) That Provincial Police Commander (PPC) says he is stretched out by tribal fights everywhere in the district and he does not guarantee the safety during the trial in Wabag.
     
9. The Petitioner on the other hand argues that there is no security concern such as to prevent the trial being held in Wabag. The Petitioner relies for this assertion on the Affidavits of Peter Yakos (Doc No. 226), Moses Pupu (Doc No. 227), Ben Nema (Doc No. 228) and that of Nelson Leia (Doc No. 229).
   
10. Crisply summarized the above affidavits suggest that things have returned to normal in Wabag and there are no significant security concerns that can militate against holding the trial in Wabag.
    
11. The evidence of the Petitioner (Doc No. 226) attaches as Annexure B, the PNG Defence Force Security Brief dated 5^th of March 2024, which suggests that the security situation is improving. The Brief also says that the government security personnel on the ground are working tirelessly to address the current tribal fight in Wapenamanda District.
    
12. The Petitioner also says that the trial for the Election Petition, EP No. 15 of 2022, against the Minister for Health and Member for Wabag Open Electorate, Hon. Dr. Lino Tom, is still ongoing at Wabag National Court. He says further that it was because of election related violence and killings between supporters of candidates, that the counting was transferred to Singirok Army Barracks, Jiwaka Province. According to the Petitioner things have gotten back to normal now in Wabag town and so the trial should take place in Wabag.
    
13. The Petitioner also points out that the annual Ipatas Cup Rugby League tournament was hosted successfully in Kompiam station from 18 to 20 January 2024. He says that people from all over the electorate as well as other parts of the province converged in Kompiam station to participate and witness the games.
    
14. The newly established Innovative University of Enga which is located in Wabag town is beginning its enrolment this year, (2024). Student registrations began on Monday the 3^rd March 2024, and ends on Friday 8^th March 2024.
    
15. I turn now to assess the evidence.
    
16. Before turning to the assessment of the evidence, I point out for completeness that the dates of the trial in this matter have now been overtaken by events.
    
17. I have considered the evidence of the parties. It is clear from the evidence of the Petitioner discussed above that even though the situation has improved, in terms of the PNG Defence Force Brief the tribal fighting in Wapenamanda remains.
    
18. Overall, the totality of the evidence of the parties suggest that there is still significant security threats in Wabag and the broader Enga Province that this Court cannot ignore. It will also not be prudent to ignore the evidence of George Lau and the letter(s) from the Provincial Police Commander.
    
19. It seems to me that the recent high-profile incidences of violence highlighted in the Affidavits of the First Respondent in support of this application including the PNG Defence Force Brief, commend to this Court a cautious approach.
    
20. This Court takes the safety of every person most seriously and would not take unnecessary risks in order to safeguard lives. Whilst this Court acknowledges that moving the trial to Waigani would occasion prejudice to the parties in terms of costs, the issue of such prejudice is trumped by the security concerns.
    
21. It follows from the above that I am satisfied that there are compelling security concerns that warrant that the trial be held in Waigani.
    
22. In the result, it is ordered that:
    
    1. Pursuant to Section 155(4) of the Constitution, and Section 212 (1), (2) and (3) of the Organic Law on National and Local Level Government Elections (“Organic Law”), and or Rule 14(3)(a) of the Election Petition (Miscellaneous Amendments) Rule 2022 (herein referred to as the “EP Rules”) the Court Directions of 25^th October, 2022 (Court Doc No. 42), term 15 and Court Order of 13^th December, 2023 be varied and the Venue for trial of the Petition be changed from Wabag, Enga Province to Waigani, National Capital District.
       
    2. Pursuant to Section 155(4) of the Constitution and Section 212 (1), (2) and (3) of the Organic Law, and Rule 14 (3)(a) of the EP Rules the Court Order of 13^th December, 2023 be varied and the dates of trial from 4^th March to 29^th March, 2024 be vacated and changed.
       
    3. Costs be in the cause.
       
    4. Time be abridged to the date of settlement by the Registrar, which shall take place forthwith.
       
    5. The trial in this matter shall proceed on the 1^st July to the 19^th July, 2024 at 9:30am.

_______________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff/Applicant
Paul Othas Lawyers: Lawyers for the First Respondent
Pacific Legal Group: Lawyers for the Second Respondent