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Pisi v Akoitai and Electoral Commission [1998] PGNC 83; N1763 (3 September 1998)

Unreported National Court Decisions

N1763

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

EP 57 OF 1997
BENEDICT PISI
PETITIONER
AND
SAM AKOITAI
FIRST RESPONDENT
AND
ELECTORAL COMMISSION
SECOND RESPONDENT

Buka

Jalina J
2-3 September 1998

PARLIAMENT - Election Petition - Directions to file affidavits by given date - unsworn and unsigned affidavits filed - leave sought to rely upon - filing of unsworn affidavit not constitute compliance - it is an abuse of process - leave should be refused.

PARLIAMENT - Election Petition - Nature of Election Petition- not ordinary cause of action- seriousness of - strict compliance necessary for expeditious disposal of petition - failure to comply with directions - leave should be refused.

PRACTICE AND PROCEDURE - Election Petition - Filing of Statements and affidavits on trial date - fairness - filing of statements and affidavits on trial date is unfair - leave should be refused.

Cases Cited

Karo -v- Kidu (Unreported Supreme Court decision dated 5 June 1998)

Peri -v- Agiwa (Unreported Supreme Court decision dated 3 April 1998)

Mendipo -v- Nali (Unreported Supreme Court decision dated 3 April 1998)

Yasona -v- Maibawa (Unreported National Court decision dated 16 June 1998)

Counsel

Mr C Narokobi for the Petitioner

Mr J Sirigoi for the first Respondent

Mr A Kongri for the Second Respondent

RULING ON APPLICATION FOR LEAVE TO RELY ON UNSWORN AFFIDAVITS AND OTHER EVIDENCE

3 September 1998

JALINA J: A petition disputing the result of the Central Bougainville Open Seat in the National Parliament was filed on 11th August 1997.

At the compulsory conference on 20th October 1997 Sawong, J dismissed the whole of the probation on the basis that it was filed after 40 days allowed for the filing of the Petition. The Petitioner then applied for review by the Supreme Court which reinstated the petition and referred the matter to Sawong, J. to hear objections to various allegations in the petition.

On 5th June 1998 Sawong, J. dismissed most of the grounds of the petition except grounds 8, 9, 10, 22 and 23 which were to proceed to trial. On 9th June 1998 counsel for the parties appeared before the Chief Justice who made orders in the following terms:

“Trial date will be 03/08/98 and end on 14/08/98. The Petitioner is to file and serve witness’ affidavits on respondents by Monday 06/07/98. The respondents have until Monday 27/07/98 to reply by filing and serving on each other and Petitioner all affidavits. Stipulations of primary and uncontested facts ought to be put to Court. Matter returns for further conference and/or directions on Wednesday 29/07/98 at 9.00 am.”

It appears that only one affidavit namely that of the Petitioner Benedict Pisi was filed on 23 June 1998.

On 29 July 1998 Messrs Narokobi, Sirigoi and Kongri appeared before me and the Chief Justice and from my recollection - it appeared that Mr Narokobi had not filed and served the affidavits. Again from my recollection Mr Narokobi explained his failure by saying that he thought the other side was to file and serve their affidavits first. He was told that they could not file and serve their affidavits unless he filed and served his affidavits first as their affidavits were to be affidavits in reply to his affidavits.

The Court then made the following Orders:

“Mr Narokobi shall serve all affidavits he claims to have filed albeit in default of court directions. The trial judge is now available so parties may attend upon His Honour for further direction on Friday 31/07/98 at 9.00 am”.

The trial judge was to be me.

On 31st July 1998 the parties represented by Mr Narokobi (for Petitioner), Mr Sirigoi (for First Respondent) and Dr Nonggor (for Second Respondent) appeared before me and advised that they were not in a position to go to trial in Buka on 5 August as the Respondents needed time to file affidavits in reply. I then directed the parties to appear before the Chief Justice at 9.30 am on Monday 3rd August for further directions.

The same lawyers who appeared before me on 31st July appeared before the Chief Justice on 3rd August. The Chief Justice then directed that the motions filed by the First Respondent on 30 July 1998 and the Petitioner as 31 July 1998 will be heard by a judge to be assigned. Sheehan,J was assigned and on 5th August the matter came up before him. The motions filed by the First Respondent on 30 July 1998 and the Petitioner on 31st July 1998 respectively will be heard on 5 August 1998 by a judge came up before him. The motions do not appear to have been heard and ruled upon. That is irrelevant for purpose of the issue now before me.

The following directions or orders were given however by Sheehan, J:

“(1) Trial to be heard at Buka commencing 31st August 1998. Petitioner to file and serve affidavits and statements by Wednesday 12/08/98 of all remaining witness to be replied by 4.00 pm 12/08/98.

(2) &##160;;&#16l affidavitsavitsavits and and statements in reply to be filed and served within 7 days thereafter.

(3) ټ Eral Commission to n to advise Court and First Respondent and Petitioner by Wednesday 1day 12/08/98 at 4.00 pm as to availabilityand Ring Ors Mathew Kusa and Mathias Pilei.

(4) A60; Applicpplocation furt further directions in respect of these witnesses may be made to Court on 24 hours notice.

(5) &##160;s tstbe i be in the the cause.&#8/p> <7th A 1998 Narokobi Labi Lawyerswyers file filed affidavits of the following witnesses which were apparently unsigned and unsworn by the respective ents:

1.; #160;&#160  &#Linus Dake

2

2.&#160 ټ&#J60; Dohn Dona

3. &ـ J60; Joseph seph Puki

Yesterday 2nd September in the course of trial it appeared that Mr Narokobi had obtained the signaturene ofdeponhere in Buka prior to trial and filed it. It was unforunfortunattunately done without my knowledge nor of r of the Respondents Lawyers. I admitted it into evidence and gave it Exhibit “C” without being made aware of the true position of such affidavit.

Mr Narokobi sought to rely also on the above unsworn and unsigned affidavits. He also sought to rely on affidavits which were sworn only yesterday 2nd September which he had not served on the Respondents. Counsel for the Respondents have objected to the use of such material. Mr Narokobi now seeks leave of court to use these affidavits. He submits that the security situation and communication were such that it prevented people from coming forward the giving their statements. Even now, he submits those people who gave their statements have not turned up. Upon enquiry by the court that at very least the original statements signed by the deponents of the unsigned and unsworn affidavits would suffice if they are made available to the Respondents and the Court, Mr Narokobi informed the Court that none were available as those affidavits were prepared from verbal information. Mr Narokobi further submitted that the unsigned statements be admitted in the interest of justice and fairness. The affidavits do not contain new material but were merely unsigned and that would be rectified by signature. He further submitted that the directions were not clear whether the affidavits and statements were to be signed.

The respondents in opposing leave submit that the practice of filing unsigned and unsworn affidavits and statements and using them in court as evidence has never been heard of. They say that to allow the Petitioner to rectify the error would be unfair to the Respondents. It would be tantamount to admitting new evidence which would take them by ambush. All materials and statements were to be filed as directed and the Petitioner had ample time to do that. He cannot do that at trial by which date the issues would have become clear from the affidavits and statements filed by the parties. They say that justice is not only justice to the Petitioner but justice to the Respondents as well. They submit that election petitions are serious and as such the Petitioner who seeks to invalidate an election must discharge the onus by conducting the petition properly and expeditiously. They rely on what the Supreme Court said in KARO -V- KIDU, (an unreported Supreme Court judgement dated 5 June 1998) and BENIAS PERI -V- HEROWA AGIWA & THE ELECTORAL COMMISSION (an unreported Supreme Court decision dated 3 April 1998).

In Karo -v- Kidu the Supreme Court said at p. 2:

“An election petition is a very serious matter because in effect the Petition challenges the express wishes of the majority of the voters. An election petition is not an ordinary cause. So if only one party turn up he must act on reasonable application of that party. He cannot just say we will wait around till another day; there is little scope for unauthorised adjournment to election petitions. Therefore a person who files an election petition bears a heavy responsibility to ensure that the petition is brought to hearing. This would include promptly appearing on any dates and times and places set down for the hearing of the petition”.

Similar views were expressed by the Supreme Court in Peri -v- Agiwa at p.2.

“It has been expressed countless times that election petitions are not ordinary legal processes. They are sacred. This is why the court has repeatedly stressed on the speedy disposition of election petition so that the wishes of the majority expressed in the election returns are respected. The same argument goes for review applications”.

In Mendepo -v- Nali Andrew, J. dismissed the petition because the Petitioner had not complied with orders of Injia, J for the Petitioner to file and serve affidavits and statements by a given date. The Petitioner had filed affidavits but - not served by the date stipulated in the orders. The Petitioner sough a review of that decision by the Supreme Court but the Supreme Court dismissed the application for review on 5th June 1998 thus confirming the decision of the National Court to dismiss for want of compliance with court orders or directions.

In Korak Yasona -v- Castan Maibawa & Electoral Commission (an unreported National Court judgement dated 16 June 1998) Sawong,J dismissed the petition also for non-compliance by the Petitioner with court orders to file affidavits and serve within a given time.

In the present case I am inclined to reject Mr Narokobi’s submission. I accept the submissions put by the Respondents. The Petitioner has not fully complied with court orders. He has only filed and served about two affidavits. In my view filing of unsworn and unsigned affidavits is not compliance with orders of the court. In making the direction the court did not envisage the parties filing unsigned affidavits and statements. That to my knowledge this has been the practice. The affidavits and statements must be something that can carry weight and at least they should be signed to ensure that its authenticity is protected by signature of its author. Otherwise anybody can file an unsigned affidavit and statement and claim it to be that of so and so. Signature would confirm that the deponent does exist and will enable the other party to verify it.

I also consider the course sought to be taken by the Petitioner is an abuse of process of the court. In my view, and if allowed, it would lead to injustice to the Respondents. I, with respect, adopt and repeat what the courts have said in the cases I have referred to above that an election petition is no ordinary cause of action. It is a serious matter and requires strict compliance and to overturn an election, a Petitioner has to show that his grounds in the petition are genuine by strictly complying with court orders. It is not good enough to say that there is communication break down and that there were problems with personal security. This is not as if the directions were given recently. Here, the directions were given at almost every direction hearing and there can be no excuse whatsoever. If it was difficult to have them prepared and sworn in Port Moresby then the Petitioner could have utilised the services of private lawyers based in Buka. Messrs Tamusio and Massat respectively run separate legal practices. The affidavits could easily have been sent by courier to the Petitioner to arrange to be sworn at the court house in Buka.

For the foregoing reasons I refuse to grant leave to the Petitioner to rely on the unsworn and unsigned affidavits or statements which were signed after the expiry of the date specified in the direction of Sheehan, J on 5th August which have not been filed and served on the Respondents. For the avoidance of doubt, let me say that the same would apply to the Respondents if they have not filed and served affidavits and statement son the Petitioner in accordance with the direction of this court.

Lawyer for the Petitioner: Narokobi Lawyers

Lawyer for the First Respondent: Thirwall, Aisi & Koiri

Lawyer for the Second Respondent: Nonggor & Associates