Jondi v Kuave [2012] PGNC 171; N4852 (29 October 2012)

N4852

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 76 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 LUFA OPEN ELECTORATE

BETWEEN

EDDIE MIKE JONDI
Petitioner

AND

JEFFREY KUAVE
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2012: 25th & 29th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Discretionary – Application arising from election dispute – Directions hearing – Directions for parties to file and serve affidavits – Time fixed for parties to file and serve affidavits – Failure by petitioner to comply with directions – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to extend time – Discretionary – Time to comply with directions – Time to file and serve affidavits – Failure by petitioner to comply with directions – Failure to file and serve affidavits – Explanation for default – Whether satisfactory – Prejudice – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 17.

Cases cited:

Daniel Don Kapi -v- Samuel Abal & Electoral Commission (2005) N2856
Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342

Counsel:

Mr S Daniels, for Petitioner
Mr P Mawa, for First Respondent
Ms C Lari, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS PETITION
AND APPLICATION FOR EXTENSION OF TIME

29th October, 2012

1. MAKAIL, J: There are two notices of motion before the Court; one by the petitioner filed on 15th October 2012 and the other by the first respondent on 16th October 2012. The petitioner's motion seeks extension of time by 14 days to file and serve affidavits on the respondents pursuant to Rules 17 of the National Court Election Petition Rules 2002, (as amended) ("EP Rules") and the first respondent seeks dismissal of the petition for failure to comply with Court directions to file and serve affidavits pursuant to Rule 18 of the EP Rules.

2. Based on the affidavit of the petitioner sworn and filed on 15th October 2012, his further affidavit sworn and filed on 23rd October 2012 and affidavit of Paul Mawa sworn and filed on 16th October 2012, the facts are undisputed. The petitioner and the first respondent contested the Lufa open seat in the 2012 General Elections. On 28th July 2012, the first respondent was declared the successful contestant. The petitioner was the runner up. On 04th September 2012, the petitioner filed this petition and it was fixed for directions hearing on 02nd October 2012.

3. On 02nd October 2012, the petitioner and the first respondent appeared through counsel and the Court issued a number of directions to parties to prepare their respective cases for trial, one of them being that the petitioner to file and serve affidavits on the respondents by or before 16th October 2012 and the respondents to reply by or before 30th October 2012. The petitioner did not file and serve his affidavits by the due date. His reason was that he had difficulty locating and interviewing his witnesses. This was mainly to do with them being villagers and located in rural areas of Lufa District where access by road or air is either bad or non-existent. By the time the application was filed, the petitioner has engaged an agent to meet all the witnesses who are making their way to Goroka for interview. About 13 statements have already been collected from eye witnesses and will be converted into affidavits shortly.

4. Counsel for the petitioner submitted that the Court has discretion under Rule 17 of the EP Rules and also inherent powers under section 155(4) of the Constitution to grant extension of time to the petitioner to file and serve affidavits on the respondents. He submitted that the petitioner has satisfactorily explained why he was unable to comply with the directions and the Court should grant his request. He added that this is the first time the petitioner has asked for extension of time and such extension will not prejudice the respondents. Statements have been collected and it is a matter of converting them into affidavits.

5. Both counsel for the respondents vigorously opposed the application for extension of time and submissions by counsel for the petitioner. In also moving the motion for dismissal, counsel for the first respondent supported by counsel for the second and third respondents submitted that the Court has issued directions and the petitioner has simply failed to comply with them. He has not filed and served affidavits on them. The consequence of the failure has resulted in the respondents not filing any responding affidavits and statement of agreed and dispute facts and issues for trial. On that basis alone, the petition should be dismissed.

6. If the Court were to accept the explanation given by the petitioner, the Court would be allowing a petitioner who has done nothing or has been casual in his approach to the seriousness of election petitions, an easy ride through this proceeding. In essence, the explanation is unsatisfactory. In addition to that, the application for extension of time was belated. The petitioner had ample time to file and serve his witnesses' affidavits because he had time prior to filing the petition to interview witnesses, that is, he had forty days from the declaration to the filing of the petition to interview witnesses, draft, settle and file affidavits. He also had a further 28 days from the filing of the petition to the date of directions hearing at his disposal. Then he had a further 14 days to file and serve affidavits. In total, he had 2 months to file and serve affidavits.

7. They further submitted that the statements are questionable. First, they do not have witnesses' mark or signatures on them to verify their authenticity. Secondly, if the witnesses are villagers, it is unusual for them to submit typed written statements as they would normally submit hand written ones. All these strongly suggested that the statements were fabricated and presented to Court to prevent the dismissal of the petition.

8. Under Rule 18, the Court has power to summarily dismiss a petition for non-compliance with its directions. It 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:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) make such other orders as it deems just."

9. The Court also has discretion to dispense with the requirements of the EP Rules under Rule 17 and extend time for compliance with the requirements of the Rules. It states:

"17. RELIEF FROM RULES

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-Level Government Elections."

10. In election petition cases, the emphasis is on expeditious disposition. This is because General Elections are held every five years following a term of Parliament and time is against petitioners. Time is of essence. In my view that is why the EP Rules give time lines for their conduct. For example, under Rule 6, the petitioner has 14 days to serve the petition on the respondents from the date of its filing. Another example is Rule 12. The petition is fixed for directions hearing within 28 days of its filing. At the directions hearing, the Court issues directions for parties to prepare their respective cases. The common directions that the Court issues are for parties to file and serve affidavits, various notices under the Evidence Act and preparation, settling and filing of statement of agreed and dispute facts and issues for trial. The time limits are fixed by the Court in consultation with parties for parties. The whole purpose of fixing time limits is to get parties to prepare their cases for trial so that the petition can be fixed for trial and heard quickly.

11. In Daniel Don Kapi -v- Samuel Abal & Electoral Commission (2005) N2856, Sevua, J dismissed the petition because the petitioner failed to comply with Court directions to file and serve affidavits on the respondents. It was held that the petitioner made no attempt to file and serve affidavits. He belatedly filed an application for extension of time to file and serve affidavits. The Court declined to hear it as it was filed outside the time limit for the filing and service of affidavits. In dismissing the petition, the Court stressed the importance of complying with Court directions because an election petition is a serious matter and is no ordinary cause of action as it challenges the wishes of the majority in electing a member. Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342.

12. I consider that affidavits are necessary documents that must be filed and served by each party before the petition can proceed beyond the directions hearing stage. I hold this view because unless leave is granted to dispense with them, or that oral evidence will be led at trial, a trial cannot be conducted without them. In other words, if there are no affidavits, there would be no evidence to prove or refute the allegations raised in the petition. As the petitioner is the party initiating the legal proceedings, he bears the onus to file and serve affidavits on the respondents. If the Court directs him or her to file the affidavits, he or she must do so within the time limits fixed by the Court. If he or she runs out of time, must apply for extension of time. Thus, it is very critical that the petitioner must do everything that is within his or her means to file and serve affidavits. It is an onerous task.

13. In some instances, there may be 100 witnesses and in others, they may be more or less witnesses. They may be located in villages in the electorate that is the subject of a petition. Access to them may be impossible or non-existent because of no road links or poor road conditions. Access by air may be either expensive or non-existent because of no airstrips. Similarly, for the coastal and island electorates, access by sea or rivers may be either expensive or non-existent. These are harsh realities of life in Papua New Guinea and we must accept them until one day they are eradicated.

14. I consider that in a case where a petitioner alleges that he or she has difficulty locating and interviewing witnesses because they are located in isolated locations or villages in the electorate, he or she must provide evidence of attempts made to secure their attendances. Such evidence may include time and place of attempts made to locate them including names of persons he or she spoke with to help locate the witnesses. These persons must also give evidence to support the petitioner's application for extension of time. In my view it is not sufficient to say that the witnesses could not be located because of their isolation.

15. Whether the petition should be dismissed or should remain and the petitioner be given more time to comply with the directions is discretionary. The Court must decide them according to proper principles of law. In my view the principles are first, it must be established that the petitioner defaulted in complying with the Court's direction, and if he has, secondly whether he has satisfactorily explained the default, thirdly whether the grant of the application will not prejudice the respondents and finally, the overall interests of justice. In the present case, the petitioner has clearly defaulted in complying with the Court's directions. He has not filed and served affidavits on the respondents by 16th October 2012. Because of this, he now asks for more time to comply with the directions while the respondents ask for dismissal of the petition.

16. I have considered his evidence and I am not satisfied with his explanation as to why he was unable to locate and interview his witnesses. In my view it is not sufficient to say that he had difficulty locating them because they are living in their villages where accessibility to them by road is difficult. In addition to that, he does not say when, where and who he spoke with in his attempt to locate his witnesses. I accept the respondents' submission that he had ample time to locate his witnesses and to interview them. In my view a serious petitioner would have prepared his ground work before embarking on an election petition. There must have been eye witnesses or informants who gave information to him to prepare the grounds of the petition before the petition was filed. In my view that should have placed the petitioner in a position to also start preparing affidavits for the witnesses. He need not wait until after the directions hearing to start preparing affidavits for his witnesses.

17. He also had 28 days from the date of filing the petition to the date of directions hearing to prepare the affidavits. He had a further 14 days to prepare them. In my view he had more than sufficient time to locate, interview, draft, settle, file and serve his witnesses' affidavits on the respondents by the due date. He has not shown that the grant of the application will not prejudice the respondents. In my view there will be some prejudice to the respondents, especially the first respondent who has to leave his Parliamentary duties to attend Court to ensure that his interest is fairly represented.

18. The only benefit I will give the petitioner is the fact that he has produced about 13 statements purportedly for his witnesses he proposes to call at trial. I have taken time to read them and while I appreciate the respondents' submission that there is doubt as to their authenticity, I will give the benefit of doubt to the petitioner. At least, he has started. He has statements ready to be converted into affidavits. Whether they will stand the test at trial is another matter but for now, I accept that he has done some work on the preparation of affidavits. He has asked for two weeks to get the affidavits prepared, filed and served on the respondents. This is also his first time to ask for extension of time and has also filed the application before the dead line for filing and service of affidavits.

19. The Supreme Court and National Court have warned petitioners of such conduct in the past, two of which are Delba Biri (supra) and Daniel Don Kapi (supra). This case should be a reminder to the petitioner and other petitioners that Court directions should not be taken lightly. If petitioners take a casual approach to them, then the consequences may be fatal; a failure to comply with Court directions may result in the dismissal of the petition.

20. With these observations, I will in the exercise of my discretion under Rule 17 of the EP Rules, and considering the overall interests of justice, refuse the application by the first respondent to dismiss the petition and extend time by a further 14 days for parties to comply with the directions. This will mean:

20.1. The petitioner shall have until 12th November 2012 to file and serve his affidavits on the respondents.

20.2. The respondents shall have until 26th November 2012 to file and serve their affidavits on the petitioner.

20.3. The parties shall have until 28th November 2012 to file and serve notices under the Evidence Act.

20.4. The parties shall have until 30th November 2012 to prepare, settle and file the statement of agreed and disputed facts and issues for trial.

20.5. Status conference is rescheduled to 03rd December 2012 at 9:30 am.

20.6. Pre-Trial Conference is also rescheduled to 07th December 2012 at 9:30 am.

20.7. The petitioner shall pay the costs of the applications.
____________________________________

Sirae & Co Lawyers: Lawyers for Petitioner
Mawa Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents