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Kaiabe v Agiru [2013] PGNC 123; N5357 (20 September 2013)

N5357

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 37 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 HELA PROVINCIAL ELECTORATE

BETWEEN

ALUAGO ALFRED KAIABE
Petitioner

AND

ANDERSON AGIRU
First Respondent

AND

JOHN TIPA in his capacity as the Returning Officer for the Hela Provincial Electorate
Second Respondent

AND

ANDREW TRAWEN in his capacity as the Electoral Commissioner of Papua New Guinea
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Tari: Makail, J
2013: 19th & 20th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Vacation of trial – Application arising from election petition – Grounds of – Review of earlier decision of Court pending before Supreme Court – Earlier decision refusing application to dismiss petition – Issue of correct amended petition – Prejudice – Power of Court to vacate trial – Discretionary – Application misconceived – Appropriate application is for stay to Supreme Court – Application dismissed – Constitution – s. 185 – Organic Law on National and Local-level Government Elections – s. 212(1)&(3).

Cases cited:

Jerry Singirok -v- Ken Fairweather & Electoral Commission: EP No 08 of 2012 (Unnumbered & Unreported Judgement by Manuhu, J)
Regina -v- The Stipendiary Magistrate of the District Court at Port Moresby, Ex parte the Secretary for Law [1974] PNGLR 201
Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1219

Counsel:

Petitioner in person
Ms C Copland, for First Respondent
Mr R William, for Second, Third & Fourth Respondents

RULING ON APPLICATION TO VACATE TRIAL

20th September, 2013

1. MAKAIL, J: This is an application by the first respondent The Honourable Anderson Agiru and supported by the second, third and fourth respondents ("Electoral Commission") to vacate the trial pursuant to s. 185 of the Constitution and s. 212(1) & (3) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). The application arises from an election petition filed by the petitioner Mr Aluago Alfred Kaiabe disputing the election of Mr Agiru as Governor of Hela Province in the 2012 General Election. On 27th August 2012, Mr Kaiabe filed this election petition pursuant to ss. 206 & 208(e) of the Organic Law on Elections.

2. According to the affidavit of Mr Agiru sworn on 30th August and filed on 02nd September 2013 and affidavit of Ms Gloria Salika sworn on 19th September 2013, the main ground of the application is that on 30th August 2013, Mr Agiru obtained leave to review an earlier decision of this Court which refused his application to dismiss the petition on the ground that a wrong amended petition was served on him by Mr Kaiabe.

3. Summarising the submissions of parties, it was conceded that there is no provision in the Organic Law on Elections or the National Court Election Petition Rules 2002 as amended ("EP Rules") on vacation of trial of an election petition where a review is pending before the Supreme Court but it was submitted that the Court has a general discretionary power under s. 185 of the Constitution and s. 212(1)& (3) of the Organic Law on Elections to vacate and adjourn the trial of this petition.

4. First, it was submitted for Mr Agiru that as leave was granted by the Supreme Court to review that decision, it is proper that the trial of this petition be vacated and parties await the decision of the Supreme Court. The Court was informed that in the case of Jerry Singirok -v- Ken Fairweather & Electoral Commission: EP No 08 of 2012 (Unnumbered & Unreported Judgment by Manuhu, J), a same application was made to the Court and his Honour granted the application and vacated the trial because there was a pending application for review before the Supreme Court. The issue before the Supreme Court was service of the petition on the Member for Sumkar Open electorate. The Court was not provided with a copy of that decision.

5. Secondly, as leave was granted, the Supreme Court was seized of the petition and that according to Sch.2.9 of the Constitution, the Supreme Court is a higher authority than the National Court and the National Court should desist from proceeding with the petition and vacate the trial. The Court was referred to the case of Regina -v- The Stipendiary Magistrate of the District Court at Port Moresby, Ex parte the Secretary for Law [1974] PNGLR 201 for the proposition that where a party seeking to appeal a decision of a lower Court has complied with condition precedent of an appeal, the dispute is effectively within the jurisdiction of the higher Court and the lower court should refrain from exercising jurisdiction. Here, the condition precedent of leave has been met and the dispute is effectively before the Supreme Court for determination. This Court should stop the proceedings and wait for the decision of the Supreme Court.

6. Thirdly, if the trial were to proceed, Mr Agiru will be prejudiced because the Court might proceed on a wrong petition and this very issue is pending before the Supreme Court.

7. There is no issue that there is no order from the Supreme Court staying this proceeding. There is also no issue that Mr Agiru has filed an application for stay and it has been adjourned to Friday 20th September 2013 for hearing before Kassman, J at Waigani. On this issue, Mr Kaiabe submitted that if Mr Agiru seeks to preserve his right of review, he must and should have applied and obtained an order from the Supreme Court to stay this proceeding. Relying on Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1219, he submitted that only a three-man bench of the Supreme Court has jurisdiction to hear an application for stay. In the absence of a stay order, it is open to this Court to proceed with the trial. The essence of Mr Kaiabe's submission is that, Mr Agiru's application is misconceived.

8. In addition, he moved his counter application and seeks among other orders, dismissal of Mr Agiru's application. Relying on his affidavit sworn and filed on 09th September 2013 and an affidavit in reply sworn on 17th September 2013, he submitted that Mr Agiru has failed to establish how he will be prejudiced if the trial were to proceed. Indeed, Mr Agiru's right and interest in defending the petition are intact because if the trial were to proceed, he would have the opportunity to respond to the allegations although the allegations are against the Electoral Commission and logically, it would be the Electoral Commission to respond to them.

9. On the other hand, he submitted that a vacation of the trial will adversely prejudice him. As Mr Agiru has being mandated by the people of Hela Province to represent them in Parliament, he has equal rights to dispute the results of the election in Court as an aggrieved candidate as guaranteed by ss. 206 & 208(e) of the Organic Law on Elections and should be allowed to pursue it without unnecessary delay.

10. He also submitted that Mr Agiru has hijacked the issue of wrong amended petition by seeking to review it in the Supreme Court when it should be left to this Court to determine it. He makes this submission because he proposes to move an application to abandon the controversial pages of the amended petition at trial. In his response to the submission that in Jerry Singirok -v- Ken Fairweather's case (supra), the Court granted a same application and vacated the trial because there was a pending application for review before the Supreme Court, Mr Kaiabe submitted that this Court is not bound to follow that decision. This Court should find otherwise because he is ready for trial and any further adjournment would be adverse to his case.

11. Mr Kaiabe's submission on the jurisdiction of the Supreme Court to hear application for stay was met with a counter submission from Mr Agiru that the facts in Anton Yagama -v- Peter Charles Yama's case (supra) are different to this case in that, in that case, the Supreme Court refused to stay the proceedings in the National Court because the trial was well advanced, and into its third week of evidence as opposed to the present case where trial has yet to begin. Thus, Mr Kaiabe will not be adversely prejudiced if the trial were vacated.

12. As to Mr Kaiabe's proposal to remove the controversial pages from the amended petition, it was counter submitted that this submission should appropriately be raised in the review before the Supreme Court as it impinges on the issue of whether the amended petition is properly before the Court.

13. I accept the submission that there is no provision in the Organic Law on Elections or the EP Rules on vacation of trial of a petition where a review of a decision of the National Court (after leave is granted) is pending before the Supreme Court. This may explain why the application is grounded on s. 185 of the Constitution and s. 212(1)&(3) of the Organic Law on Elections. I also accept that the Court has a general discretionary power under s. 212(1)&(3) of the Organic Law on Elections to adjourn proceedings. The power to grant an adjournment is discretionary. The issue therefore is whether Mr Agiru has established a case for an adjournment which has the effect of vacating the trial of this petition.

14. I accept Mr Kaiabe's submission that in a case where a review of a decision of the National Court (after leave is granted) is pending before the Supreme Court, the appropriate application or correct procedure to invoke to preserve an applicant's right and interest pending a review is to obtain an order for stay in the Supreme Court. This submission is not only logical but also meritorious because an aggrieved party to a decision of the National Court has a right to seek further redress in the Supreme Court either by way of an appeal or review: s.4 of the Supreme Court Act and s. 155(2)(b) of the Constitution. Once the decision is taken to the Supreme Court, it remains there to be resolved by that Court. The National Court is ceased of exercising jurisdiction over it.

15. With respect to the present case, to a degree, Mr Agiru and the Electoral Commission have accepted this proposition because they submitted that as leave was granted to review an earlier decision of this Court, the Supreme Court was seized of the "petition". But it is not correct to say that the Supreme Court was seized of the "petition". It is the "decision" that the Supreme Court was seized of. While I also accept their submission that according to Sch.2.9 of the Constitution, the Supreme Court is a higher authority than the National Court, it is not correct to say that the National Court should desist from proceeding with the petition and vacate the trial. The Supreme Court may be seized of the petition or the proceedings of the National Court if an order for stay is obtained from the Supreme Court against the National Court proceedings. This is the only time the National Court will desist from exercising jurisdiction. As to whether a single judge or a three-man bench of the Supreme Court has jurisdiction to grant a stay is a matter for the Supreme Court to decide. At present, there is no stay of this proceeding and therefore, there is nothing stopping this Court from proceeding.

16. While I note the trial has yet to start in this case as opposed to Anton Yagama -v- Peter Charles Yama's case (supra), each case must be decided on its own merits. In that respect, there was the submission that the National Court had previously granted a same application in the election petition case for Sumkar Open electorate between Jerry Singirok and Ken Fairweather (supra). This Court has not been assisted with a copy of the judgment to assist it determine the reasoning behind the grant of the application so as to form a view on the issue of vacation of trial.

17. Nonetheless, as correctly pointed out by Mr Kaiabe, this Court is not bound to follow that decision. I have decided not to follow that decision for this reason. Time is critical in election petition cases. Given the seriousness of the electoral process and petitions challenge the integrity of the electoral process, a petition should be heard and determined expeditiously. If the trial were to be vacated, this Court has no control of the Supreme Court proceedings and will not be able to know when it will be completed so as to able this Court to bring an early resolution to the dispute. This is a relevant and critical factor and must be balanced with the applicant's right and interest.

18. The submission that Mr Agiru will be adversely prejudiced if the trial were to proceed is to my mind, irrelevant and misconceived. It is a relevant factor for an application for stay in the Supreme Court. Similarly, the grant of leave as a precondition to a review is a relevant factor for the Supreme Court to consider in an application for stay. In any case, while appreciating and acknowledging Mr Agiru's right to review an earlier decision of this Court in the Supreme Court, it should not cloud the issues that are before this Court. The issue before the Supreme Court is the correctness or otherwise of the amended petition and the issues before this Court are among others, allegations of illegal practices, errors and omissions by electoral officials and Mr Agiru's supporters during polling. These are distinct and separate issues from the one before the Supreme Court.

19. I am also not satisfied that Mr Agiru's right and interest will be adversely prejudiced if the trial were to proceed. He has gone to the Supreme Court and will be heard there and that opportunity will be accorded to him in this Court if the trial were to proceed. There is also no suggestion that he is not ready for trial so it must be the case that he is ready.

20. On the other hand, I accept Mr Kaiabe's submission that it will be Mr Kaiabe's right and interest that will be adversely prejudiced if the trial were to be vacated. He has legitimately brought the dispute to a legitimate authority to legitimately determine it. He filed this petition on 27th August 2012 and it is one year on and it is still pending trial. Trial is about to start and here we are still talking about further adjournment and vacation of trial. Surely, this must have a tremendous effect on not only Mr Kaiabe but also the opposing parties, the Court and its staff, cost wise, time wise and logistic wise.

21. Moreover, if the trial is further delayed, it would defeat the whole purpose of having an "expeditious determination" of election petition cases, a matter of significance which the National Court has strived to achieve this time around, given a very limited amount of time of five years to complete these cases before the next election. For these reasons, I am not satisfied that justice will be served or delivered to the parties and of course the people of Hela Province if the trial is further delayed by reason of vacation of trial by the Court.

22. In my view the application is misconceived because what Mr Agiru is seeking to do is to effectively stay the proceeding of the National Court under the guise of an application to vacate the trial. Unless this Court is presented with an order for stay from the Supreme Court, this Court must continue to discharge its function. Similarly, I am not satisfied that the discretion should be exercised in favour of Mr Agiru. The application to vacate the trial is dismissed with cost and trial must proceed forthwith.

Ruling and orders accordingly.
____________________________________

Young & Williams Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents