Kila v Electoral Commission of Papua New Guinea [2012] PGNC 168; N4849 (25 October 2012)

N4849

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 71 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NIPA-LAKE KUTUBU OPEN ELECTORATE

BETWEEN

TONY MANA KILA
Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

PESAB JEFFREY KOMAL
Second Respondent

Waigani: Makail, J
2012: 17th & 25th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to disqualify lawyers – Lawyers representing Electoral Commission – Application arising from election dispute – Grounds of –Conflict of interest – Principal of law firm conveying direction of Electoral Commissioner to Returning Officer – Apprehension of bias – Application misconceived – Application dismissed – Organic Law on National and Local-level Government Elections – Section 222(1) – Professional Conduct Rules, 1989 – Rule 10(1)&(4).

Cases cited:

EP No 58 of 2012 - Riddler Kimave -v- Poevare Tore & Electoral Commission

Counsel:

No appearance, for Petitioner
Ms S Tatabe, for First Respondent
Mr A Ninkama, for Second Respondent

RULING ON APPLICATION TO DISQUALIFY LAWYERS

25th October, 2012

1. MAKAIL, J: The second respondent applies to have the law firm of Niugini Legal Practice disqualified from representing the first respondent in this petition pursuant to Rule 10(1)&(4) of the Lawyers Professional Conduct Rules, 1989. He also relies on section 222(1) of the Organic Law on National and Local-level Governments Elections ("Organic Law on Elections"). Rule 10(1)&(4) talks about conflict of interest. It states among other things that if a lawyer has any interest in a matter which may conflict with or is adverse to the interests of his client, he shall decline to represent or shall withdraw from representing that client. It also states that a lawyer or a firm of lawyers shall not represent or continue to represent conflicting interests in litigation.

2. The ground for disqualification is that the principal of the law firm has a conflict of interest in representing the first respondent because he "opposed the Returning Officer's decision to count seven ballot boxes". This followed a decision made by the Returning Officer to count the ballot boxes. Given this, he submitted that there is an apprehension of bias against the lawyers when they prepare the case for the first respondent. The lawyers for the first respondent contend that they have no conflict of interest because they were merely conveying a direction from the Chief Electoral Commissioner to the Returning Officer. The direction was to exclude the ballot boxes from counting.

3. A reference was made to a decision of this Court in EP No 58 of 2012: Riddler Kimave -v- Poevare Tore & Electoral Commission where it was held that Ms Alice Kimbu and Parua Lawyers be disqualified from representing the Electoral Commission because of conflict of interest. But that case is distinguishable on its facts. In that case, as one of the grounds of the petition, the petitioner alleged that Ms Kimbu influenced the outcome of the elections when she "declared" the winner of the seat. She was a potential witness for the Electoral Commission.

4. In this case, I am of the view that the application is misconceived. It is misconceived because there is no suggestion that the principal of the law firm will be a witness or a potential witness in this petition. There is also no conflict of interest against the lawyers. The conflict is between the Chief Electoral Commissioner and the Returning Officer. The Chief Electoral Commissioner has taken a position on the disputed ballot boxes; he said "Do not count them". The Returning Officer has taken a different position; he said "I will count them". Thus, the conflict is between the two of them; it has nothing to do with the lawyers. The lawyers were merely conveying the directions from the Chief Electoral Commissioner to the Returning Officer. How the two conflicting positions will be resolved will perhaps be known before trial if these two gentlemen agree on one position, or at trial, when evidence is led on which position the Court should accept. But the point is, the lawyers have no conflict of interest. I had granted leave to them to represent the first respondent when they first appeared at the directions hearing pursuant to section 222(1) of the Organic Law on Elections. They should be allowed to continue. I refuse the application with costs.

Ruling accordingly.
____________________________________

Manase & Co Lawyers: Lawyers for Petitioner
Niugini Legal Practice: Lawyers for First Respondent
Paul Paraka Lawyers: Lawyers for Second Respondent