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Kenni v Trawen [2013] PGNC 357; N5135 (5 April 2013)

N5135

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 36 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND

IN THE MATTER OF THE 2012 NATIONAL GENERAL ELECTIONS FOR ANGORAM OPEN PARLIAMENTARY

Between

LAZARUS KENNI
Petitioner

And

ANDREW TRAWEN
Electoral Commissioner of Papua New Guinea-
First Respondent

And

VINCENT KAVI
Returning officer for Angoram Open Electorate
Second Respondent

And

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

And

LUDWICK SCHULTZ
Fourth Respondent

Waigani: Geita AJ
2013: 5th April

ELECTIONS – National Parliament – Election Petition- Elected Leader dies whilst holding office – Petition Active – Removal of Petition from Election Petition List – Process available to Parties – Section 17 National Court Election Petition Rules 2002- Organic Law on National and Local Level Government Elections.

ELECTIONS – Elected Leader dies whilst holding office – Parliamentary seat deemed vacant - Notice of Motion to Withdraw – No orders as to costs – Security Deposit shared evenly between The Respondents - Organic Law on National and Local Level Government Elections - Petition Withdrawn by consent.

Cases cited

None

Counsel:

Agu Klewaki, for the Petitioner
Diana Mawerimbe, for the Fourth Respondent
Justin Talopa, for the First, Second and Third Respondent

5 April, 2013

1. GEITA AJ: This is the petition of Lazarus Kenni of Angoram Town East Sepik Province, a losing candidate in the 2012 National General Elections for the Angoram Open Electorate.

2. The Petitioner was excluded after elimination 21 with total votes of 6,673, Mr. Arthur Somare was the runner-up with total of 10,624 and Mr. Ludwick Schultz collected a total of 11,800 with the absolute majority of 50 % plus 1 on 11,213 and was declared as member elect on 18th July 2012.

3. The Petitioner filed this petition on 24 October 2012, alleging incidences of errors and omissions and counting, illegal practices during polling, counting and disqualification by insolvency.

4 By Order of Election Petitions Administrator Justice Colin Makail dated 27th November 2012 pursuant to Pre-Trial Rule 13 (Election Petition Rules) the petition was fixed for trial from 1 – 12 April 2013 at Wewak National Court. All interested parties were notified upon pre trialling and receipt of the following documents with directions:

a. The Petitioner gave notice of calling 12 witnesses;

b. The First, Second and Third Respondents gave notice of calling 10 witnesses;

c. The Fourth Respondent's intention remain unknown,

d. The Agreed & Disputed Facts and Issues for trial filed on 30 November 2012.

e. The Grounds of Petition & Legal Issues include error and omissions during polling and counting, Illegal practices during polling and counting and disqualification by insolvency.

f. The Electoral results for Angoram Open Electorate, Electoral Returns by Electoral Officers including total ballot papers used for count 1-22, informal votes, unused ballot papers and specimen of signatures for all Returning Officers formed part of the Exhibits.

g. The Petitioner, First, Second and Third Respondents filed affidavits.

h. The Petitioner to summon 5 witnesses to attend and or produce documents

i. The Notice of Objection to Competency filed by the Respondents on 24 September and 19 October 2012 respectively.

j. Written Submissions on Objections to Competency- The Respondents to file and serve by 4th January 2013.

The Petitioner to file and serve by 8th February 2013.

k. Venue and Trial dates fixed for 1 -12 April 2013 at 9.30 am Wewak National Court.

5. On 26 March 2013 my associate Mr. Moses Hanua was directed to liaise with all parties and remind them of this petition which is scheduled for hearing on 9th April 9.30 am at this court. He followed the court's directions by phone, fax and letter communication, a copy of which is attached.

6. On the same day he established communication with a Mrs Shuman and Mr Mate Lora from the Election Petition Administrator's Office Waigani and was informed that no submissions were received by that office.

7. If indeed what was reported to Mr. Hanua was correct at that point in time than obvious non-compliance of Justice Makail's pre trail directions "j" above have occurred. More particularly specific directions for the Respondent to file and serve his written submissions on objections to competency by 4 January 2013 to be followed by the Petitioner to file and serve same by 8th February 2013.

8. Such non compliance would trigger the invocation of Section 18 National Court Election Rules 2002 (as amended). The Court may on its own motion or on the application of a party, at any stage of the proceedings order that the petition be dismissed.

9. However in light of the demise of the Fourth Respondent the Petition has taken a new twist but remains active since it has been properly filed and served on the Respondents. Hence the Petition can only be removed or withdrawn upon instructions from his surviving family members. Failing which the Court will on its own motion intervene and make such orders as it deems just.

10. The Courts intervention at this point is not necessary as the Petitioner's Lawyers have since filed Notice of Motion to withdraw pursuant to Section 17 of the National Court Election Petition Rules 2002 on 25th March 2013 seeking withdrawal of EP N0.36 of 2012 after hearing of the death of the 4th Respondent on 8th March 2013 after a prolonged illness. A supporting affidavit deposed by the Petitioner's lawyers including a medical certificate confirming his death was produced into court in support of the motion.

11. It follows that the Parliamentary seat for Angoram Open Electorate has become vacant hence the Petition before the court was no longer necessary. During my search on this subject I was unable to find related precedents or if there are any out there, same have not been brought to my attention by lawyers before me.

12. The place for trial was Wewak National Court however due to administrative convenience for the court and parties involved this motion was heard and determined in Waigani.

13. Having heard all counsels for the parties there appear to be a consensus of opinion in favour of the motion including waver of orders for costs associated with the competency application, save for the security deposit. Lawyer for the Petitioner moved that the deposit be returned to his client in full however Lawyer for the First, Second and Third Respondents argued that the deposit be shared evenly between all respondents as sizable expenses have already been incurred in getting the matter up for trial this week in Wewak.

14. In light of breaches detected in the direction orders against the Petitioner together with pre trial associated costs by the Respondents the Petitioner's security deposit will be shared evenly between the Respondents to defray some costs.

15. The Motion is hereby granted in the following terms:

1. The Petition is withdrawn by Consent;

2. All parties to pay its own costs;

3. Security deposit of K5, 000 to be shared evenly.

__________________________________________________________
Kumbari Lawyers: Lawyers for Petitioner
Harvey Nii Lawyers: Lawyers for First, Second & Third Respondent
Paul Mawa Lawyers: Lawyer for the Fourth Respondents