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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 09 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE MAPRIK OPEN ELECTORATE
BETWEEN:
JOHN SIMON
Petitioner
AND:
GABRIEL LENNY KAPRIS
First Respondent
AND:
ELECTORAL COMMISSION
Second Respondent
Waigani: Yagi J
2022: 25th October & 07th November
ELECTION PETITION – PRACTICE & PROCEDURE – application to dismiss the petition, Election Petition (Miscellaneous Amendments) Rules, Rule 18 – non-compliance with court order – failure to serve affidavits within time – whether the Court should strictly apply the requirement of the Rule - law in William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018 considered and applied – requirement for real justice under s. 217 of the Organic Law to be observed – reasonable explanation provided – no serious prejudice suffered – overall interest of justice does not favour dismissal of petition – application refused.
Cases Cited:
Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816
Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Daniel Don Kapi v Samuel Abal (2003) N2327
Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877
Ginson Saonu v Bob Dadae (2004) SC763
Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983
Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948
Jimson Sauk v Don Pomb Polye (2004) SC769
Jamie Maxton Graham v Electoral Commissioner of PNG (2013) N5385
Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589
Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589
Luke Alfred Manase v Don Pomb Poyle (2013) SC1329
Mikki Kaiok v Rimbink Pato (2005) SC877
Niap v Papua New Guinea Harbours Ltd (2010) N4278
Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110
Philomena Kassman v Kila Igaba (2012) SC1211
Sani Rambi v Koi Trappe (2012) N4924
Sandy Talita v Peter Ipatas & The Electoral Commission (2016) SC1603
Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295
William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018
Counsel:
Mr T. Waisi, for the Petitioner
Mr S. Renewa, for the First Respondent
Mr R. William, for the Second Respondent
RULING
07th November, 2022
1. YAGI J: This is an application by the first respondent seeking to dismiss the petition under Rule 18(a) of the Election Petition (Miscellaneous Amendment) Rules 2022 (EPR).
2. The application is made pursuant to notice of motion filed on 18 October 2022 and is supported by two affidavits; one filed by the first respondent on 18 October 2022, and the other filed on 24 October by Ivan Nawatz.
3. The following reliefs are sought in the notice of motion:
“1. Pursuant to Rule 18(a) of the Election Petition (Miscellaneous Amendment) Rules 2022, the petition be summarily determined as a result of the Petitioner’s failure to comply with the consented directional orders endorsed by the Court on 26th September 2022.”
2. Any others Orders the Court deems fit.
3. Costs be in the cause.”
4. The first respondent’s application is contested by the petitioner whilst the second respondent neither support nor oppose the application.
5. The petitioner relies on the affidavits of Charlie Arua and Kini Mamis both filed on 20 October 2022.
6. The relevant facts are; on 26 September 2022 the Court endorsed a draft consent order by the parties in the proceeding. Among the orders, was an order for the petitioner to file and serve the affidavits that he intends to rely upon at trial. The order directed that the affidavits are to be filed by or before 14 October 2022 and it is in these terms:
“3. Pursuant to Rule 13(3)(c) of the Rules, the Petitioner shall file and serve any affidavits to be relied upon on trial by or before 14 October 2022.”
7. The petitioner did not serve the affidavits that he intended to rely upon at trial on the first respondent by Friday, 14 October 2022. The first respondent’s lawyer then carried out a search on the court file on 14 October 2022 and discovered that no affidavits were filed by the petitioner pursuant to order # 3. Consequently, the first respondent’s lawyer wrote on Monday, 17 October 2022 to the petitioner’s lawyer advising of the breach.
8. In late afternoon of 17 October 2022, the petitioner’s lawyer attempted to serve the affidavits on the office of the first respondent’s lawyer. The first respondent’s lawyer declined to accept belated service on the basis of prima facie breach of the order and hence this application was filed.
9. The petitioner opposes the application and relies on affidavits of Charlie Arua and Kini Mamis filed on 20 October 2022. From these two affidavits the following facts can be ascertained. Mr Arua is a legal clerk in the employ of the legal firm - Waisi Lawyers. The firm represents the petitioner in this proceeding. Mr Arua went to the National Court registry with a flash drive containing about 20 affidavits at about 1.00pm. With the assistance of the officer in charge of election petition track, Ms Kini Mamis, all the affidavits were uploaded onto the IECMS system. However, the IECMS system encountered a technical issue and was inoperable or not functional. For that reason, the hard copies of the affidavits were manually processed as from about 3.30pm. Mr Arua then left the registry with the sealed affidavits at about 4.00pm. The sealed copies of the affidavits were to be uploaded to the IECMS later.
10. The first respondent submits that the direction of the Court requires the petitioner to “file and serve” his affidavits by 14 October 2022. Although the petitioner may have technically filed on 14 October he had not served by that date and therefore the Court should exercise its power under Rule 18(a) of the EPR to dismiss the petition. It is submitted the EPR must be strictly complied with and enforced. Counsel for the first respondent, however, concedes the Court’s power is discretionary.
11. The petitioner submits the affidavits were filed on 14 October and served on 17 October and in that regard, there was substantial compliance with the court order. In any event it is submitted, among others, there is explanation for non-compliance within time, there is no delay in service, no prejudice was suffered by the first respondent and the interest of justice warrant a refusal of the application. Counsel for the petitioner cited and relied on Niap v Papua New Guinea Harbours Ltd (2010) N4278 which sets out the relevant principles for dismissing a proceeding for want of prosecution.
12. The second respondent neither supported nor opposed the application, however, assisted the Court with case law authorities. Counsel for the second respondent cited the Supreme Court decisions in Luke Alfred Manase v Don Pomb Poyle (2013) SC1329 and Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589 for the Court’s assistance.
13. I accept the first respondent’s submission that the Court has a discretionary power to dismiss a petition where the petitioner has failed to comply with a court issued order or direction under Rule 18(a) of the EPR. This Rule states:
“18. Summary determination
Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:
(a) order that the petition be dismissed where the defaulting party is the petitioner; or
(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(c) make such other orders as it deems just.” [Underlining added]
14. The Supreme Court in Luke Alfred Manase v Don Pomb Polye (supra) said that the principles relevant to exercise of power under Rule 18 of the EPR are:
1. there must be reasonable explanation for default or breach
2. whether there is prejudice caused by the default
3. where the overall interest of justice lie
15. This power has been exercised by the Court on numerous occasions in the past. For example, in Sani Rambi v Koi Trappe (2012) N4924 the petitioner failed to comply with the court direction or order to file his witnesses’ affidavits within time. The petitioner conceded to failing to comply with the court order, however, provided an explanation that he fled to his village in fear of his life, as a result of an election-related death where he had no access to communication links and no means to travel into Mt Hagen city to communicate with his lawyers. He was away and out of communication for 8 weeks. The petitioner also had an agent who attended on the lawyer on behalf of the petitioner. The Court found the reasons and explanation provided by the petitioner was incredible and concluded that the petitioner had not taken serious step to comply with the court direction and consequently dismissed the petition.
16. In Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877 the Court deliberated on two competing applications; one was by the first respondent to dismiss the petition for the failure by the petitioner to comply with the order to file and serve his affidavits with time specified; and the other was by the petitioner to extend time to comply with the court order. The basic facts are that the Court issued orders, among others, for the parties to take steps to file and serve witnesses affidavit they intend to rely upon at trial on each other. The petitioner was unable to comply with the order and applied for extension of time. The respondents consented to the extension and Court accordingly made an order extending time. The petitioner filed his affidavits, however, he failed to serve the affidavits within time. The affidavits were served on the respondents 5 days late and after the first respondent had filed the application to dismiss the petition. The first respondent’s application caused the petitioner to file his application seeking confirmation of late service and further extension of time. The petitioner’s reason for effecting late service of the affidavits were due to his lawyer’s inadvertence as the lawyer was inundated with other election petition cases at the time. The Court dismissed the petition because there was clear failure to comply with court order in serving the affidavits within time. As regards the lawyer’s inadvertence as an explanation, the Court stated, such conduct tantamount to negligence which does not constitute a reasonable explanation, nor a good excuse based on the principle espoused by the Supreme Court in Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110 and adopted and applied in Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983.
17. The rule-based power of the National Court in election petition proceedings is derived from the Organic Law on National & Local-level Government Elections (Organic Law). Section 212(2) of the Organic Law confers on the Judges of the National Court the rule making power where rules can be promulgated to regulate its proceedings during the interlocutory and substantive hearings. This provision states:
“(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.”
18. The current EPR is the product of the Organic Law, s. 212(2) and of course the general overriding power given under s. 184 of the Constitution.
19. It is apparent, in my view, the scheme and design of the EPR is to ensure that the election petition cases are given expeditious hearing both at the pre-trial hearing stages right through to the substantive hearing. This is evident by the strict timelines imposed by the Rules. For instance, the petitioner is required to serve the petition within 14 days after its filing (Rule 8(1)). The respondents are to file a notice to appear within 14 days of being served with the petition (Rule 11(1)). The petition is listed for directions hearing 28 days after filing (Rule 13(1)). A pre-trial conference is to take place 28 days after directions hearing (Rule 14(1)).
20. The Supreme Court in several instances have voiced clear statements in terms of the special nature of election petitions and the need to apply strict approach in dealing with election petition cases. The strict approach was first propagated in Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342 and adopted and applied in many subsequent cases including Philomena Kassman v Kila Igaba (2012) SC1211; Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983; Daniel Don Kapi v Samuel Abal (2003) N2327; Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816; Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948; Mikki Kaiok v Rimbink Pato (2005) SC877; Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589 and Sandy Talita v Peter Ipatas & The Electoral Commission (2016) SC1603. The essence of the decision in Delba Biri (supra) is that the requirement of s. 217 of the Organic Law is only applicable when the Court is deciding on the merits of the petition in a substantive trial.
21. In Delba Biri v Bill Ninkama (supra) the Supreme Court expressed this statement as follows:
"An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.” [underlining added]
22. In Jamie Maxton Graham v Electoral Commissioner of PNG (2013) N5385 David J in acknowledging the trend by the Courts in terms of strict application of the Election Petition Rules emphasised that the Rules “are comprehensive, exhaustive and generally expressed in mandatory terms. Hence, the courts have time and again emphasised the need for timely disposition of petitions through strict compliance with the requirements of the rules including compliance with Court directions.”
23. The strict approach placed little or no regard to the requirement of s. 217 of the Organic Law which provides that the Court in making a decision must be guided by substantial merits without regard to legal forms and technicalities. Section 217 states:
“217. Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”
24. However, recently the Full Court comprising 5-member Bench of the Supreme Court (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J) in William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018 in a unanimous decision overruled Delba Biri v Bill Ninkama (supra) and changed the legal position in terms of the strictness or rigidness in the application of the law and rules or the procedural law in dealing with election petitions. The Supreme Court held that s. 217 of the Organic Law must be applied in every stage of the hearing process, that of course includes directions hearing, pre-trial conference, and status conference. It is instructive to quote from the headnotes to the judgment of the Court which states:
“(2) Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the county.”
25. Deputy Chief Justice Kandakasi in that case (William Hagahuno v Johnson Tuke) undertook, in my view, a comprehensive and diligent review of the previous decisions of the Courts and dissected the differing schools of thought, including his Honour’s own decisions, surrounding the strict interpretation and application of the law dealing with election petitions particularly ss. 208, 209 and 210 of the Organic Law. His Honour noted the earlier cases led by the decision in Delba Biri v Bill Ninkama (supra) including few more recent cases that subscribe to the strict approach and the later decisions such as Jimson Sauk v Don Pomb Polye (2004) SC769, Ginson Saonu v Bob Dadae (2004) SC763 and Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295 which questioned the correctness and appropriateness of the strict approach. His Honour’s meticulous analysis reached a conclusion that those cases that followed the strict approach did not give due and proper regard to the imperative of s. 217 of the Organic Law resulting in many election petition cases being dismissed due to “nit-picking” and “far too many technical objections”. His Honour went on to express support and agreement for a “fresh approach” with the following statement [at 20] of the Supreme Court in Philip Kikala v Nixon Koeka Mangape (supra):
“With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.
26. It should be noted that in the same case Justice Kirriwom expressed very similar views and conclusion with the Deputy Chief Justice Kandakasi. His Honour stated [at 138] the following:
“In conclusion I want to state that in Section 217 where the Organic Law speaks about “Real Justice To Be Observed”, it is the Constitution speaking and calling for real justice to be observed, which starts from the word go, when the Court is seized of an election petition. There should be no distinction between procedural and substantive issues as was determined in Biri v Ninkama (supra) which, with respect, was a misconception.”
27. The other 3-members of the Court (Mogish J, Manuhu J and Makail J) all agreed with the statements of the Deputy Chief Justice Kandakasi and Justice Kirriwom.
28. Given this there can be no doubt William Hagahuno v Johnson Tuke (supra) has now changed the landscape in the law from strict interpretation and application to the need to observe the real justice of the case and be guided by substantial merits and good conscience without regard to legal forms or technicalities envisaged by s.217 of the Organic Law.
29. In this case from the evidence provided by the petitioner showed that the affidavits were filed on time as per the court order or direction. However, due to the technology glitch associated with the functionality of the IECMS filing system encountered by the court registry the sealed copies of the affidavits were uplifted late on the last day, being Friday 14 October 2022. The technology issue is not attributable to the petitioner and in any case, in my view, the affidavits were to be served reasonably promptly by 17 October 2022. The delay is certainly neither inordinate nor intentional. The default is not a case of a repeated breach. In my view the petitioner has substantially complied with the order. In that regard the seriousness of the default has been mitigated, reduced, or minimised.
30. I accept that non-compliance with a court order is a very serious matter. By the same token I am bound to apply the law as directed by the Supreme Court. In other words, Schedule 2.9(1) of the Constitution directs that the decision of the Supreme Court is binding on the National Court.
31. The petition raises serious allegations as to the validity of the return of the first respondent as the duly elected member of Parliament. The allegations include illegal practices at the polling, bribery of electors and undue influence. To accede to the first respondent’s application and summarily determine the petition would in my view be contrary to the spirit and purpose of s. 217 of the Organic Law and hence result in injustice. It is my view that having regard to substantial merit and good conscience in the circumstances of the case without regard to strict legal technicality would ensure that real justice is achieved.
32. The first respondent will not be prejudiced in any serious way in terms of filing and serving his affidavits in response. Any prejudice would be in terms of cost and time.
33. For the foregoing reasons the first respondent’s application is refused.
ORDERS
34. The orders will be as follows:
__________________________________________________________________
Waisi Lawyers: Lawyer for the Petitioner
Kawat Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2022/568.html