Manase v Polye [2008] PGNC 48; N3328 (27 April 2008)

N3328

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No. 3 of 2007

BETWEEN

LUKE ALFRED MANASE
Petitioner

AND

DON POMB POLYE
First Respondent

ANDREW TRAWEN,
Chief Commissioner,
Electoral Commission of Papua New Guinea,
Second Respondent

Mount Hagen: Lay J.
2008: 6 and 7 May

NATIONAL ELECTIONS-Petition-Summons to give evidence - Organic law on National and Local Level Government Elections s212(1)(b).

Facts

The Judge Administrator for Election Petitions ordered that summonses to give evidence be filed by fixed date. After that date the Registrar issued 11 summonses to give evidence at the request of the Petitioner without the order of a judge. The Petitioner sought to call a particular summonsed witness. The Respondents claimed prejudice.

Held

1. The only authority to issue a summons to give evidence in an election petition matter derives from s.212(1) (b) of the Organic Law;

2. The issue of a summons must be authorised by a judge;

3. A summons issued without the order of a judge is issued without authority;

4. A summons should be issued to compel an unwilling witness's attendance if it is likely that person can give relevant evidence. Where another party is truly prejudiced by the evidence of a witness without notice of their evidence an order can be made to adjourn the evidence of the witness or leave can be granted to recall the witness at a later date, in order that the prejudiced party can properly prepare for cross-examination.

Cases Cited

SCR No.4 of 1982; re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342;
Martin Thompson v James Pokasui and the Electoral Commission [1988] PNGLR 210

References

Organic Law on National and Local Level Government Elections
Electoral Law (National and Local Level Government Elections) Regulation 2007
National Court Election Petition Rules for Presentation and Conduct of Election Petitions 2002 (As Amended)

RULING ON SUMMONSES ISSUED BY THE REGISTRAR AT THE REQUEST OF THE PETITIONER

Counsel:

P. Mawa, for the Petitioner
P. Dowa, for the First Respondent
R. William, for the Second and Third Respondents

7 May, 2008

1. LAY J.: The Petitioner seeks to call a witness who has been summonsed to attend court. The summons was issued on the 27 February 2008 by the Registrar at the request of the Petitioner. The witness was an electoral official in the 2007 election for the Kandep open seat who is not willing to give a statement or swear an affidavit, but who has come to court in compliance with the summons served on him. The Petitioner says by his counsel, he does not know what the witness will say but believes that he will have relevant evidence because he was officiating at a polling place affected by the grounds of the petition.

2. The name of the witness is Johannes Menjokan. His name is mentioned in paragraph B (c) (5) of the Petition. The first two sentences of that paragraph were struck out on the 14 April 2008. Paragraph B (c) pleads that there was no proper polling at polling places Kambia 1 and 2.

3. This witness is one of 11 witnesses for whom summonses were issued on the 28 February 2008 by the Petitioner. By oral application made by the Petitioner which was not fully argued I ordered that those compelled to attend court by reason of a summons issued in these proceedings, attend court until excused by the court.

4. Prior to trial a number of directions were given by the judge administrator of election petitions for the efficient hearing of the petition. On the 12 September 2007 an order was given that any summons or subpoena must be filed prior to the pre-trial conference to take place on Tuesday 9 October 2007. By order of the 26 September 2007 the date of the pre-trial conference was to be rescheduled by the judge administrator. Counsel have not drawn my attention to any revised date of the pre-trial conference and any orders which may have been made at that conference. My attention has been drawn to directions and orders made 5 November 2007 which give no further orders in respect of summons to witnesses but do mention that parties shall file their lists of witnesses by 15 March 2008. It does not appear that the Petitioner did so.

5. The Respondents object to the calling of this witness on the basis that:

1. 1. they do not know what the witness is going to say;
   
2. 2. they will be hampered in their cross-examination because they have not been able to take instructions on what the witness will say;
   
3. 3. directions were given 12th September 2007 that all summonses to give evidence were to be issued before the directions hearing;
   
4. 4. the Petitioner should have applied for relief from the rules pursuant to Rule 17 to issue a summons after the dates stipulated by the directions of 12 September 2007.
   

6. The Petitioner submits that Section 212 and 217 of the Organic Law on National and Local Level Government Elections ("the organic law") and Rule 17 of the Election Petition Rules gives ample discretion to the court to allow the calling of the witness in the circumstances outlined above.

7. Section 212(1)(b) of the organic law gives power to the Court to "compel the attendance of witnesses and the production of documents". Section 217 directs the court to be "guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities..."

8. In an ordinary civil matter a witness is summonsed to give evidence pursuant to the authority given by Order 11 of the National Court Rules which specifically authorises the Registrar (O 11 r5(1) to issue the summons. An election petition is not an ordinary civil matter and the National Court Rules have no application: SCR No.4 of 1982; re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342, 348; Martin Thompson v James Pokasui and the Electoral Commission [1988] PNGLR 210, 211, both decisions of the Supreme Court.

9. Therefore a party to an election petition proceeding must find authority in the organic law, the Electoral Law (National and Local Level Government Elections) Regulation 2007 or the National Court Election Petition Rules for the issue of a summons to give evidence. The Regulations and the Rules make no provision for the issue of a summons to compel a witness to attend. The only authority is in Section 212 (1) (b) of the organic law. Under Part XVIII of the organic law dealing with the presentation and hearing of petitions, all references are to the National Court. Section 207 provides that "the jurisdiction of the National Court in relation to any matter under this Part may be exercised by a single judge."

10. I therefore conclude that the issue of a summons must be authorised by a judge. Whether or not a summons ought to issue is a matter which the judge administrator may consider at a directions hearing under Rule 12 (e) (ii) and again at the pre-trial conference under Rule 13(3) (h). A Status Conference is to be held pursuant to Rule 14 five days before trial to check if Rule 13 has been complied with. So that there are at least three specific occasions on which parties are able to seek an order from the judge if a summons is required.

11. The order of the 12 September 2007 authorised the issue of summonses before the pre-trial conference. That was originally to be on the 9 October 2007 and was extended to a date to be fixed by order of 26 September 2007. I infer from the fact that the last directions were given on 5 November 2007 that no directions hearing has been held or scheduled to be held since. Therefore from the terms of the order of 12 September 2007, the summonses issued on 28 February 2008, which I note were issued under the hand of the Registrar, were issued after the directions hearing and not by judge or pursuant to an order of a judge and therefore without authority.

12. There is no doubt that the witness must attend Court, because on its face the summons is regular, being signed by the Registrar, and bearing the seal of the National Court. However, notwithstanding my order extending the summonses, they may be set aside on application made by an interested party, including the witnesses, on the basis that they have been issued without authority.

13. Now returning to the particular summons in question, I do not think that there is much merit in the arguments that the Respondents will be placed at a disadvantage because they have not been able to obtain instructions on what the witness may say. The Petition clearly sets out the allegations surrounding the matter in which the witness was alleged to be involved, even though the sentence which specifically mentioned the name of the witness has now been struck out. The case for the Petitioner is that no proper polling took place and the case for the Respondents is the opposite. I cannot think that the Respondents will be taken by surprise only because they do not have knowledge of the precise words which the witness will use in the witness box.

14. There will always be those cases which occur, where a potential witness clearly ought to have knowledge of the matter before the court, but is not a willing witness. Such a witness can be compelled to give evidence by order of the court and in my view ought to be compelled to do so where his evidence appears to be likely to assist the court. When I say "appears to be likely", I do not mean that it has to be known what the witness will say, but if from evidence of the role which that witness played in the circumstances before the court it would be common sense that the witness would have some knowledge likely to assist the court, then he ought to be compelled to attend.

15. If a party is truly placed at a disadvantage by evidence given by a witness summonsed to give evidence, then application can be made at the appropriate time, either for an adjournment in order to obtain instructions to cross-examine, or for leave to recall the witness at a later date. I would be very surprised if in the case of this particular witness such an application proved to be necessary.

16. I order that Johannes Menjokan attend to give evidence before the court.

17. Now in respect of the other 10 summonses which the Petitioner has issued, if the Petitioner still wishes to call the summonsed witnesses, I direct that the Petitioner shall make application by motion for an order to authorise the summonses issued, setting out in a supporting affidavit the ground of the petition in respect of which the person is to be summonsed to give evidence and the role that it is believed that person played in respect of that ground, why the evidence may be relevant and why the Petitioner has not been able to obtain an affidavit from the person.
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Steeles Lawyers: Lawyers for the Petitioner
Paulus M. Dowa Lawyers: Lawyers for the First Respondent
Nonggorr and Associates: Lawyers for the Second and Third Respondent's