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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 54 OF 2022
IN THE MATTER OF DISPUTED RETURNS OF ELECTION RESULTS FOR THE OBURA-WONENARA OPEN ELECTORATE
BETWEEN:
MEHRRA MINNE KIPEFA
-Petitioner-
AND:
JOHN BOITO
-First Respondent-
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Second Respondent-
Waigani: Numapo J
2023: 18th October
ELECTION PETITIONS – PRACTICE & PROCEDURES – Application to dispense with the requirement for service of Notice of Motion and Supporting Affidavit be dispensed with – Rule 22 of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 – Sections 185 and 155(4) of the Constitution.
Election petition to be summarily determined and dismissed for want of prosecution pursuant to Rule 18(1) of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 and Section 212(1)(i) of the Organic Law on National and Local Level Government Elections.
Cases Cited:
Manase v Polye (2013) SC1329
Powi v Kaku (2018) SC1743
Rambi v. Trappe (2012) N4924
Edward Alina v. Francis Potape & Electoral Commission (2012) N4877
Agiru v. Makiba (2023) SC2366
Kwimberi of Paulus Dowa Lawyers v. Independent State of Papua New Guinea [1998] PGSC 9; SC545
Markscal Ltd v Mineral Resource Development Company Ltd [1999] PGNC 117; N1807
Dogoliv v. Laho [2005] PGNC 47; N2885
Daiva v. Pukali (2002) N2289
Waink v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 98; N16300
John Niale v Sepik Coffee Producers Ltd (2004) N2637
Counsel:
S. Tadabe, as ‘friend of the Court’ to assist the Petitioner
P. Othas, for the First Respondent
N. Tame, for the Second Respondent
18th October 2023
1. NUMAPO J: The first and the second respondents filed two separate notices of motion respectively on the 09th October 2023, seeking to dispense with the requirements for service of their notices of motion and supporting affidavits pursuant to Rule 22 (1) of the Election Petition (Miscellaneous Amendments) Rules 2022 (Petition Rules) and summarily determined and dismissed the petition for non-compliance of the Court’s orders and directions of 3 October 2023, and petitioner’s failure to appear and prosecute the petition (want of prosecution) pursuant to Rule 18(a) of the Petition Rules, and section 212(1)(i) of the Organic Law on National and Local Level Government Elections (Organic Law) and, costs of the proceedings to be borne by the petitioner.
2. The trial of the petition was fixed to commence on 2 October 2023 to 27 October 2023 in Goroka. The trial date was fixed by the Judge Administrator of Election Petition on 23 June 2023 which was later confirmed at the status conference hearing on 21 July 2023. However, due to flight cancellations, the trial didn’t start until the 3 October 2023.
4. On 3 October 2023, the petitioner and the first respondent made an application each to vacate the trial date citing ill-health as the main reason. Petitioner in his affidavit stated that he was medically unfit to attend and prosecute the petition, whilst the first respondent sought to vacate the trial date on two grounds. Firstly, that it clashed with his Parliamentary meeting dates, and secondly, because his lawyer was sick and unwell to attend.
5. Both applications to vacate the trial date were heard and refused. I then directed parties to file their respective submissions on objection to competency by 6 October 2023. I further directed that the trial commences on 9 October 2023.
6. On 9 October 2023, the petitioner and his lawyer were not present in Court. Manase & Co. Lawyers who previously appeared for the petitioner had filed a notice of ceasing to act on 6 October 2023. There was no notice of change of lawyers filed.
7. Mr Paul Othas appeared for the first respondent whilst Mr Nicholas Tame appeared for the second respondent. Both respondents were present.
8. Ms Sally Tadabe, a consultant lawyer, with Mel & Henry Lawyers sought leave of Court to appear “as a friend of the Court” and filed an affidavit explaining the circumstances of her appearance and informed the Court of the predicament the petitioner is in, and the reason for his non-appearance. Ms Tadabe stated that the petitioner was ill and medically unfit to travel to Goroka to attend Court. However, there was no recent medical report produced of the petitioner’s condition and especially, his doctor’s advice of his inability to travel due to ill-health.
9. Furthermore, the petitioner has not provided any affidavit explaining why he could not appear in person or be represented by another lawyer or law firm after learning that his lawyer had ceased to act for him. Petitioner had not asked for any adjournment. He didn’t even have the courtesy to inform the National Court Registry of his unavailability. Petitioner just decided not to show up on the day.
10. Ms Tadabe wanted to seek further adjournment on behalf of the petitioner but in what capacity, it is not known. She is not the lawyer on record and does not hold instructions to appear for the petitioner.
11. In her affidavit, Ms Tadabe stated that she was “engaged” by Manase & Co. Lawyers to “assist” the petitioner in drafting his submission. She then filed what appears to be an incomplete submission in respect to the notice of objection to competency on behalf of the petitioner.
12. I intimated to Counsel that as friend of the Court her role is somewhat limited to only explaining to the Court why the petitioner is not present. She is not the lawyer for the petitioner and therefore, is not entitled to address the Court on the substantive merits of the petition. On that basis, the submission she filed in response to the notice of objection on behalf of the petitioner is not properly before the Court, and accordingly, must be rejected. Secondly, if she was indeed engaged by Manase & Co. Lawyers that engagement effectively ceased on 6 October 2023 when the law firm filed its notice of ceasing to act for the petitioner. Petitioner is no longer represented in any capacity, either directly or indirectly, by Manase & Co. Lawyers.
13. I also note that Ms Tadabe was not granted leave by the Judge Administrator of Election Petition pursuant to Rule 13 (3) (a) of the Election Petition Rules 2022 to appear hence, she has no right of appearance.
14. I gave Counsel the benefit of doubt nonetheless and allowed her to file further affidavit explaining the petitioner’s situation and why he was not present in Court. Ms Tadabe submitted that the facts set out in her affidavit gives rise to exceptional circumstances which warrant the exercise of discretion and inherent powers under s.155(4) of the Constitution and do justice to the case by vacating the trial date and allowing the petitioner to find a lawyer to represent him and to be given more time to respond to the notice of objection to competency in relation to the allegations of filing outside of 40 days and give him time to fully recover and medically fit to travel and attend his court case.
15. The exceptional circumstances according to Ms Tadabe is that the petitioner is sick and unwell to attend Court. However, the ground in respect to the petitioner’s medical condition has already been dealt with on 3 October 2023 when the petitioner sought to vacate the trial date for the same reason but was refused. There is no new evidence relating to the petitioner’s recent medical condition. I do not consider medical grounds as an exceptional circumstances.
16. For the purposes of this proceedings, it is recorded that the petitioner made no appearance nor was he represented by Counsel to prosecute his petition as directed by the Court.
17. I informed the first and second respondents that both are at liberty to make any applications they considered proper and appropriate under the Petition Rules and the Organic Law for consideration by the Court.
18. The first and second respondents sought through their respective notices of motion supported by their affidavits applied to have the petition summarily determined and dismissed for non-compliance and for want of prosecution, pursuant to Rule 18(a) of the Election Petition Rules (Miscellaneous Amendments) Rules 2022, and Section 212(1) (i) of the Organic Law on National and Local Level Government Elections.
19. Rule 18. (Petition Rules): Summary Determination
Rule 18(a) reads:
“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;”
(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.”
20. Section 212. Powers of Court (Organic Law):
(1) “In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things-
- (i) dismiss or uphold a petition in whole or in part;
(j) award costs; and
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.”
21. The application to have the petition summarily determined and dismissed were not served on Ms Tadabe as she is not the lawyer on record and had no right of reply and cannot be heard on application.
22. A matter can be summarily determined and dismissed for non-compliance of Court orders and directions, and secondly, for want of prosecution, i.e. failure by the petitioner to appear and prosecute it or a failure in prosecuting it expeditiously and without delay. Although, the relief is the same, the applications are distinct and are determined separately on merits. For instance, a petition can be dismissed for non-compliance even if the petitioner is present to prosecute the petition but that he failed to comply with the orders and directions issued by the Court. As regards to want of prosecution, the petitioner either fails to appear and prosecute the matter or is present but fails to prosecute his case expeditiously and without delay. The principles of law on summary determinations and dismissal is well developed in this jurisdiction and adopted in many case laws.
23. In the present case, respondents submitted that the failure by the petitioner is two-fold. Firstly, failure by the petitioner to file his submission in respect to the notice of objection to competency by 6 October 2023 as directed by the Court, and further for failure by the petitioner and his lawyer to appear for trial on 9 October 2023. Secondly, the petitioner’s failure to prosecute the petition expeditiously and without delay. On that basis, respondents submitted that the petition should be summarily determined and dismissed pursuant to Rule 18(a) of the Election Petition Rules 2022 and s. 212(1) (i) of the Organic Law.
24. In support of their applications, Counsels referred to a number of case laws on point where the Court was asked to exercise its powers in summarily determining the petition and dismissing it for non-compliance with the orders and directions of the Court.
25. The case laws developed three principles by which, the Court may, in the exercise of its discretion, dismiss a petition. In Manase v Polye (2013) SC1329 the Supreme Court held that:
“....the power to summarily dismiss a petition under Rule 18 of the National Court Petition Rules, 2002 (as amended) is discretionary and must be exercised on proper principles. The principles are:
(a) Reasonable explanation for the default;
(b) Prejudice caused to the other party by the default; and
(c) The overall interests of justice.”
26. The Supreme Court in Powi v Kaku (2018) SC1743 summarized well the three applicable principles on summary dismissal of a petition, and held that the National Court has the power and can dismiss a petition summarily for non-compliance with orders or directions of the Court, pursuant to Rule 18 of the Election Petition Rules in these terms:
“Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any directions, the Court may on its own motion or on the application of a party, at any stage of the proceedings:
(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 orders as it deems just.”
27. Further observations made by the Supreme Court were that:
(i) Election petitions are special cases to be afforded expedited hearing,
(ii) The onus is on the petitioner to progress the case expeditiously
(iii) That Court directions or orders must be complied with, and
(iv) That a party unable to comply with a court order or direction within a prescribed time period must formally apply for extension of time to comply,
28. Rule 18 (a) of the Petition Rules made it clear that where the defaulting party is the petitioner, the petition must be dismissed. It is incumbent upon the petitioner and the onus is on him to prosecute the case expeditiously and with due diligence. Failure to do so may result in dismissal.
29. In Rambi v. Trappe (2012) N4924, the Court dismissed the petition when the petitioner failed to comply with the Court direction or order to file his witnesses’ affidavits within time. The petitioner failed to provide a reasonable explanation and conceded to failing to comply with the court order. Consequently, the petition was dismissed for failing to comply with court direction.
30. In Edward Alina v. Francis Potape & Electoral Commission (2012) N4877, the Court in deliberating on two competing applications; one by the first respondent to dismiss the petition for the failure by the petitioner to comply with the court order to file and serve the affidavits within a specified time; and the other by the petitioner to extend time to comply with the court order. 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.
31. In an application for leave to review a decision of the National Court dismissing the petition for failure to comply with Court orders / directions, the Supreme Court in Agiru v. Makiba (2023) SC2366 refused leave and held that:
(i) The petitioner failed to comply with a consent order issued by the Court,
(ii) There was no reasonable explanation given by the petitioner or on his behalf for his non-compliance with the Consent Order
32. The decisions in these case laws referred to, stressed the importance of compliance with the Court orders and directions. Failure to comply would result in the defaulting party being penalized.
33. The applicable principles developed through these case laws provides the basis upon which the Court in the exercise of its discretion may summarily determine and dismissed a petition. I refer to these principles and apply them accordingly to the facts of this case.
(a) Reasonable Explanation for the Default
34. On 9 October 2023 when the matter returned for trial the petitioner was not present nor was his lawyer. There was no reasonable explanation provided on why the petitioner or his lawyer were not present. Ms Tadabe appeared as the friend of the Court and informed the Court that the Petitioner’s lawyer Manase & Co. Lawyers has withdrawn legal representation and is no longer acting for the petitioner. She further advised the Court that the petitioner was sick but this claim is not backed by any credible medical evidence. She relied on a medical report previously filed for an earlier application which has been refused. There were no other explanation provided on why the petitioner could not comply with the Court directions and orders issued on 3 October 2023 that directed parties to file submissions on the objections to competency by 6 October 2023 and appear on 9 October 2023 for trial. The petitioner effectively had no representation in Court and is unable to prosecute the petition.
35. I note that the petitioner is a well-educated man. He was a former Member of Parliament and a Minister of State. He is not an illiterate person with little or no knowledge of the court processes, neither is he an impecunious litigant. He should have known better that orders and directions of the Court are meant to be complied with. Failure to comply, without a reasonable explanation, may disadvantaged him.
36. The petitioner has not provided any reasonable explanation on why he has defaulted in complying with the orders and directions of the Court. He had not filed any affidavit explaining his failure. He had not filed any formal application seeking adjournment. There is no explanation why he has not engaged or instructed a lawyer or a law firm to appear on his behalf. Petitioner didn’t even have the courtesy to inform the National Court Registry via email, telephone or facsimile that he was not able to attend Court on the day. Not only is this a total disregard of the Court’s orders but it is also very disrespectful to the Court. There is no reasonable explanation provided by the petitioner for defaulting, and on that basis, this petition cannot proceed any further under this consideration.
(b) Prejudice Caused to the Other Party by the Default
37. Under this consideration, the petitioner is required by the Petition Rules to prosecute the petition expeditiously and without delay and put to rest any doubts over the election process itself including the win by the winning candidate as the choice of the majority. The failure of the petitioner to appear for trial on 9 October 2023 and give the respondents the opportunity to be heard has greatly inconvenienced and prejudiced both the first and second respondents. Respondents have incurred additional costs and expenses as well as committing time to defending the petition and are no doubt, inconvenienced by the petitioner defaulting.
38. For the first respondent, he had incurred costs in assembling his witnesses and legal team to defend the petition. Most of his witnesses are from Obura-Wonenara which is quite remote and the costs involved in bringing them into Goroka town and accommodate them is huge.
39. The first respondent missed Parliament meetings so he could to be present in Court to defend the petition only to find that the petitioner decided not to turn up to prosecute it. Precious time was wasted and the first respondent was no doubt, inconvenienced by the failure of the petitioner. The people of Obura-Wonenra Electorate were not represented on the floor of Parliament during the October Sitting of Parliament because of this petition. Consequently, the first respondent was not able to discharge his duties, functions, roles and responsibilities as the Member for Obura –Wonenara.
40. The second respondent had also incurred costs in defending this petition. There are so many petitions challenging the results of the 2022 General Elections and the second respondent is required to attend to all of them and defend the integrity of the election process. An allegation of illegal practices, errors and omissions in the voting and counting processes is a serious allegation and the Electoral Commission of Papua New Guinea is required to defend the electoral system and processes to give to the citizens of this country confidence and assurances that those voted into Parliament to represent them came with a clear mandate of the majority of the people through a proper election process. It is a very costly exercise indeed for the second defendant to defend the petitions and those challenging the results of the elections are required to do so promptly and expeditiously with less costs.
41. A term of Parliament is only five years and time is of essence. Elections results that are disputed for varying reasons must be resolved quickly and in a timely manner before the next National Elections.
42. Petitioner’s non-compliance of the Court orders/directions and non-appearance has greatly inconvenienced the second respondent in mobilizing its legal team and witnesses to defending the election process. I do not think the security deposit would be sufficient to defray the costs incurred by the second respondent in defending this petition.
43. In addition, the Court is also inconvenienced by the petitioner’s non-compliance of the Court orders and directions. It requires a great deal of planning and involves a lot of expenses to mount a National Court Circuit to deal with an Election Petition (EP) matter. EP is not a permanent fixture on the National Court Annual Calendar and only comes around once in every five years. It is not easy to take judges away from their normal crimes and civil lists to attend to EP matters. Very few judges have made themselves available to take on EP cases in addition to their other caseloads. A judge had to re-schedule his case lists and other work commitments to attend to an EP trial. Parties must seize the opportunity and have their EP matter dealt with quickly and within a reasonable period of time once a trial judge is available and appointed. Precious judicial time is wasted when a petition, for one reason or another, could not proceed. Non-compliance that is likely to inconvenienced the Court and/or interfere with the smooth administration of justice can expect to be dismissed.
44. The Supreme Court in Kwimberi of Paulus Dowa Lawyers v. Independent State of Papua New Guinea [1998] PGSC 9; SC545) refused an application for an adjournment and held that, “any adjournment sought must not inconvenienced the Court. The Court will not operate to the convenience of a party or parties.”
45. In this instance, the failure by the petitioner has not only inconvenienced and prejudiced the other parties but has also inconvenienced the Court. I therefore, find against the petitioner under this consideration.
(c) Overall Interest of Justice
46. The final consideration is the overall interest of justice that the petition is tried expeditiously and without delay.
47. I agree with Mr Tame on the importance of the timelines stipulated under the Election Petition Rules which is designed to ensure that election petition cases are dealt with expeditiously at all stages up to the substantive hearing. The EP Rules stated that:
(i) The petitioner is required to serve the petition within 14 days after its filing (Rule 8(1));
(ii) The respondents are to file a notice to appear within 14 days of being served with the petition (Rule 11(1));
(iii) The petition is listed for directions hearing 28 days after filing (Rule 13(1)); and
(iv) A pre-trial conference is to take place in 28 days after directions hearing (Rule 14(1)).
48. Whilst all the preliminary hearings have been completed, the substantive hearing of the petition was fixed for 2 October 2023. Both parties confirmed at the status conference hearing on 21 July 2023 that they were ready and would proceed with the trial.
49. I note that the petition has taken almost a year since its filing. There was no indication forthcoming from the petitioner as to when he might prosecute this petition either in person or through a lawyer. The lack of interest shown by the petitioner suggests to me he might never get to prosecute the petition, if ever, at all. The Court is inundated with lots of petitions in this election period and is working extremely hard to clear the list well in time before the next election. Petitioners who filed petitions must make it their business to prosecute these petitions quickly and without delay. Interest of justice demands prompt disposition of cases in a timely manner. Petitions that are prolonged unnecessarily without a good cause can be expected to be thrown out. This petition unfortunately, has fallen into this category.
50. The power of Court to summarily determine and dismiss matters for non-compliance applies in all cases. It is discretional on Court’s own motion or, on an application by a party to dismiss for non-compliance.
51. The principles of law developed in case laws on non-compliance have found their way into Court Rules making compliance mandatory by law. Election petitions under the Petition Rules are no exception. Rule 18 (1) of the Petition Rules provides for that. Non-compliance without reasonable explanation will result in dismissal.
52. There are a good body of case laws on point that emphasized the importance of compliance, failing which the Court may summarily determine and dismissed the matter in the exercise of its powers, be it an election petition case or an ordinary civil suit, the same rules apply, regardless.
53. The National Court Rules (NCR) provides for that under Order 10 Rule 5 for want of prosecution; and Rule 15 for summary disposal. A plaintiff who commenced a law suit has an obligation to prosecute it without delay. He has a duty to comply with any court order relative to the law suit: he has a duty to comply with the rule of the court to ensure that prosecution of the suit reaches its finality without inordinate delay, and without causing prejudice to the defendant. A party cannot just ignore court process, if he does, he does so at his own peril (see: Markscal Ltd v Mineral Resource Development Company Ltd (1999) PGNC 117; N1807. Also: (Dogoliv v. Laho [2005] PGNC 47; N2885).
54. In Daiva v. Pukali (2002) N2289; Kandakasi J (as he then was) held that:
“Where a person is directed, ordered or adjudged by a Court to do some something or abstain from doing something, he or she is obliged to comply....He or she is required to comply unless there is a set aside or variation of it rendering compliance unnecessary....”
55. The considerations upon which a case can be summarily determined and dismissed are similar to those of the petitions. Where there is a lengthy delay in setting the matter down for trial, Order 10 rule 5 of the NCR should be construed in favour of an application to dismiss for want of prosecution only where circumstances are such that there has been a long delay and where there is no reasonable explanation given by the plaintiff (Waink v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 98; N16300.
56. Cannings J, in John Niale v Sepik Coffee Producers Ltd (2004) N2637 succinctly sets the principles as follows:
(i) The plaintiff default is intentional or is allowing for an inordinate and inexcusable delay in prosecution of his or her claim;
(ii) There is no reasonable explanation given by the plaintiff for the delay;
(iii) The delay has caused injustice or prejudice the defendant;
(iv) The conduct of the parties and their lawyers warrants; and
(v) It is in the interest of justice.
57. Having heard the first and second respondents on their respective applications, I am satisfied that the petitioner has failed to comply with the orders and directions of the Court issued on 3 October 2023 directing parties to appear for trial on 9 October 2023. This is in breach of Rule 18 (a) of the Petition Rules.
58. I am further satisfied that the petitioner failed to appear and prosecute his petition expeditiously and without delay. He had not provided any reasonable explanation for his non-appearance. He had not taken steps to prosecute his petition promptly resulting in an inordinate and inexcusable delay. The petition must fail for want of prosecution.
59. I am satisfied that the delay occasioned by the petitioner has inconvenienced and prejudiced the respondents. It has also caused unnecessary stress and anxiety on the first respondent in having to defend this petition. In the circumstances and in the interest of justice, this petition should not proceed any further.
60. All in all. I am satisfied that the defaulting party in this case is the petitioner. Accordingly, the petition must be dismissed pursuant to Rule 18(a)(i) of the Petition Rules.
Orders Accordingly
_________________________________________________________________
Lawyers for the Petitioner: No Legal Representation (Manase & Co. Lawyers ceased to act for Petitioner on 6/10/23)
Paul Othas Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent
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