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Phannaphen v Pundari [2024] PGNC 92; N10749 (28 March 2024)

N10749

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 14 OF 2022 [IECMS]


IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE


BETWEEN:
SAMSON PHANNAPHEN
Petitioner


AND:
SIR JOHN THOMAS PUNDARI
First Respondent


AND:
ELECTORAL COMMISSION
Second Respondent


Waigani: Dingake J
2024: 8th & 28th March


ELECTIONS – application by first respondent seeking orders for trial to be moved from Wabag to Waigani and for trial date to be vacated for security reasons – security threats are a real issue – application successful – order to move trial to Waigani is granted


Counsel:


Mr. Caspart Yoanes, for the Petitioner
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent


RULING


28th March 2024


  1. DINGAKE J. This is my brief ruling with respect to the First Respondent’s application that the trial of this election petition be moved from Wabag to Waigani on account of security concerns in Wabag and the broader Enga Province. The application also seeks the trial date to be vacated.
  2. For completeness Term 2 and 3 of the First Respondent’s Notice of Motion states that:

(2) Pursuant to Section 155(4) of the Constitution and Section 212(1), (2) and (3) of the Organic Law on National and Local Level Government Elections (“Organic Law”), and Rule 14(3)(a) of the Election Petition (Miscellaneous Amendments) Rule 2022 (herein referred to as the “EP Rules”) the Court Directions of 25th October 2022, be varied and the Venue for trial of the Petition be changed from Wabag, Enga Province to Waigani, National Capital District.


(3) Pursuant to Section 155(4) of the Constitution and Section 212 (1), (2) and (3) of the Organic Law, and Rule 14 (3)(a) of the EP Rules the Court Order of 13th December 2023 be varied and the dates of trial from 4th March to 29th March, 2024 be vacated and changed.


  1. The application is supported by the Second Respondent and opposed by the Petitioner.
  2. The Petitioner opposes the application on the basis that there are no security concerns sufficient enough to warrant the trial of the election petition being moved to Waigani.
  3. The First Respondent invokes, inter alia, the inherent powers of the Court under Section 155(4) of the Constitution in praying that the trial be moved to Waigani.
  4. The First Respondent’s reasons to move the trial to Waigani is based on allegations that center on security concerns. This is clear from the Affidavit of George Lau, who attaches a letter from the Provincial Police Commander, that says that:

(a) Tribal fights are everywhere in Enga Province, including Kompiam Ambum District. He avers that killings have occurred in Wabag that are related to tribal fights from other Districts.


(b) The situation at Wapenamanda had worsened with recent killing of twenty (20) people. According to the letter the travelling public who are travelling from Mt. Hagen to Wabag are at high risk.


(c) There is tribal fight everywhere in Enga Province and police and soldiers are outnumbered and stretched out.


(d) Tribal fight in Kompiam Ambum is currently the biggest tribal fight; and tribal fight had taken the form of guerilla warfare and people are killing by ambush.


(e) The situation in Kompiam Ambum is still tense and recommends that the Election Petition be conducted somewhere else and not Wabag Town where killings related to Kompiam Ambum fight had occurred.


(f) He does not guarantee the safety during the trial in Wabag.


  1. On the contrary the Petitioner contends that it would be costly for him if the trial takes place in Waigani. He estimates that costs for holding the trial in Waigani may come to K1,197,900.00.
  2. It is the Petitioner’s case that the First and Second Respondents will not be prejudiced if the trial is held in Wabag National Court because almost all witnesses are from the province, especially Kopiam Ambum Electorate.
  3. The Petitioner avers that a number of activities have taken place in Enga Province since the General Elections in 2022, that show that “it is not always doom and gloom” as others may claim.
  4. The Petitioner further avers that the Enga Cultural show which is a prominent annual event which attracts people from inside and outside the province was successfully held. He also says the 29th Enga Cultural show was successfully hosted in Wabag town from 11th to 13th August 2023.
  5. According to the Petitioner the newly created Lagaip Open electorate has had its supplementary elections successfully from October 31st, 2023 (polling) to 29th November 2023 (declaration). He says that even though there were some tense confrontations between supporters of leading candidates, the election was successfully conducted, and counting was done successfully in Wabag town followed by the declaration of the winner.
  6. The Petitioner also says that the trial for the Election Petition, EP No. 15 of 2022, against the Minister for Health and Member for Wabag Open Electorate, Hon. Dr. Lino Tom, is still ongoing at Wabag National Court. He says further that it was because of election related violence and killings between supporters of candidates that the counting was transferred to Singirok Army Barracks, Jiwaka Province.
  7. According to the Petitioner things have gotten back to normal in Wabag town and so the trial should be held in Wabag.
  8. The Petitioner also points out that the annual Ipatas Cup Rugby League tournament was hosted successfully in Kompiam station from 18 to 20 January 2024. He says that people from all over the electorate as well as other parts of the province converged in Kompiam station to participate and witness the games.
  9. Petitioner also testified that the established Innovative University of Enga which is located in Wabag town is beginning its enrolment this year, (2024). Student registrations began on Monday 3rd March (2024) and ends on Friday 8th March 2024.
  10. I have gone through the evidence with extreme care. Before analyzing the evidence further, I mention for completeness that the dates of trial as indicated earlier have been overtaken by events.
  11. On the evidence, I notice that a number of election disputes from Enga Province were recently transferred to Waigani for security reasons. These includes Wapenamanda Open Electorate (EP 39 & 40), Kandep Open Electorate (EP No. 22 of 2022) and Wabag Open Electorate (EP No. 15 & 19 of 2022).
  12. On the main the evidence of the parties implicates two (2) considerations: (a) prejudice occasioned by escalation in costs if the trial is moved to Waigani. (b) Security.
  13. On the evidence, I find that the situation in Wabag still carries security risks that this Court cannot ignore. Balancing the above two (2) considerations, I find that security concerns must trump the concerns about escalation in costs and the attendant prejudice. It is in any event prudent for this Court to err on the side of caution so as not to sacrifice lives unnecessarily.
  14. It follows from the above that I find that they are compelling security reasons for the trial to be held in Waigani.
  15. In the result the First Respondent’s Notice of Motion filed on the 30th of January, 2024 (Court Doc. No. 326) succeeds.
  16. Accordingly, it is Ordered that:

_______________________________________________________________
Lhyrn Lawyers: Lawyers for the Plaintiff/Applicant
Paul Othas Lawyers: Lawyers for the First Respondents
Pacific Legal Practice: Lawyers for the Second Respondents

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