Yalo v Lagea [2012] PGNC 216; N4937 (18 December 2012)

N4937

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 35 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 KAGUA-ERAVE OPEN ELECTORATE

BETWEEN

NEMO YALO
Petitioner

AND

AIYA JAMES YAPA LAGEA
First Respondent

AND

ALBERT WENS,
RETURNING OFFICER FOR KAGUA-ERAVE
Second Respondent

AND

ANDREW TRAWEN,
THE ELECTORAL COMMISSIONER
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2012: 13th & 18th December

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for variation of order – Extension of time – Time to comply with Court directions – Court directions for parties to file and serve affidavits – Failure of – Affidavits filed within time by first respondent but served out of time – Reasons for default – Whether petition should be set down for expedited hearing without the first respondent's affidavits – Whether reasons for default satisfactory – Prejudice – Whether petitioner prejudiced by default – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

Cases cited:

Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983 Daniel Don Kapi -v- Samuel Abal (2005) N2856
Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816
Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948
Mikki Kaok -v- Rimbink Pato (2005) SC877
Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598
Sani Rambi -v- Koi Trappe & Electoral Commission: EP No 87 of 2012 (Unnumbered & Unreported Judgment of 05th December, 2012)

Counsel:

Petitioner in person
Mr S Bonner, for First Respondent
Mr H Viogo, for Second, Third & Fourth Respondents

RULING ON APPLICATION FOR EXTENSION OF TIME

18th December, 2012

1. MAKAIL, J: This is an application by the first respondent, the member-elect for Kagua- Erave Open Electorate in the Southern Highlands Province to vary the Court order of 31st October 2012 and allow him more time by extending it for him to serve his witnesses' affidavits on the petitioner. He moves his application pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2. According to the affidavit of Mr Benjamin Nahupa sworn and filed on 10th December 2012 and affidavit of the first respondent sworn on 16th November and filed on 10th December 2012, there is no dispute that on 05th October 2012, the Court directed among other things, parties to file and serve affidavits on each other. The petitioner was to file and serve affidavits by or before 26th October 2012 and the respondents by or before 16th November 2012.

3. On 31st October 2012, by consent of the parties, the Court extended time for parties to comply with the directions of 05th October 2012. The petitioner was given a further 14 days (until 09th November 2012) to file and serve his affidavits on the respondents and the respondents was given until 30th November 2012 to file and serve their affidavits. The petitioner was also given until 07th December 2012 to file any affidavits in reply and the matter was adjourned to 10th December 2012 at 9:30 am for status conference.

4. There is also no dispute that the petitioner filed and served his affidavits within time. There is also no dispute that the first respondent filed his affidavits within time, (that is by 30th November 2012), but he did not serve them on the petitioner on the same date. He served them on 06th December 2012 but the petitioner refused to accept them. That was 6 days after they were filed. He served a total of 45 affidavits.

5. The contentious issue between the parties is whether the first respondent is required to serve the affidavits by 30th November 2012. In other words, the petitioner argues that there is no default because the Court order of 31st October 2012 did not state so. In addition to that, the EP Rules does not state how and when service of an affidavit is effected on the other party. Thus, in the absence of any clear provision on service of affidavit, it was open to him to serve the affidavits on the first respondent any time after the date of filing.

6. The petitioner contends otherwise. He argues that term 2 of the Court order of 31st October 2012 is very clear. It requires the first respondent to perform the act of filing and the act of serving by 30th November 2012. It is necessary that both acts must occur by 30th November 2012 because term 3 of the Court order of 31st October 2012 requires him to file any affidavits in reply by 07th December 2012. Since the first respondent attempted to serve the affidavits on 06th December 2012, he had only one day (07th December 2012) to file affidavits in reply.

7. As term 2 of the Court order of 31st October 2012 has become a contentious issue, I set it out below:

"That the time for the Respondents to file and serve their affidavits on the Petitioner is extended from 16 November to 30 November 2012." (Underlining is mine).

8. Whilst I agree with the first respondent's submission that the EP Rules is silent on how and when an affidavit is to be served on another party to the petition, I must also agree with the petitioner's submission that the filing and service of the affidavits by the first respondent must be done by 30th November 2012. In my view, term 2 is very clear. It prescribes the time limit by which the affidavits must be served on the petitioner. That is, the affidavits must be served on the same day they are filed. To contend otherwise would render the compliance with the other directions practically impossible, especially term 3 which requires the petitioner to file affidavits in reply by 07th December 2012 and the first respondent attempted to serve the affidavits on the petitioner on 06th December 2012, thus giving the petitioner only one day to file responding affidavits. I am satisfied the first respondent has failed to comply with term 2 of the Court order of 31st October 2012. He is therefore, in default of the Court's direction.

9. Rule 18 gives the Court discretion to summarily dismiss a petition if the defaulting party is a petitioner or set the petition down for expedited hearing if the defaulting party is a respondent. 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."

10. The National Court and the Supreme Court have stressed the importance of complying with the EP Rules and Court directions. Failure to comply may result in the dismissal of the petition if the defaulting party is a petitioner. Some of these cases are Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983, Daniel Don Kapi -v- Samuel Abal (2005) N2856, Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816, Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948, Mikki Kaiok -v- Rimbink Pato (2005) SC877 and Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598.

11. Recently in Sani Rambi -v- Koi Trappe & Electoral Commission (2012 N4924, I commented that "[i]t is even suggested that non-compliance with Court orders or directions is a show of disrespect to the Court and contemptuous. Thus, it must not be taken as a simple or technical failure."

12. In this case, the defaulting party is one of the respondents - the first respondent. The next issue is whether the petition should be set down for expedited hearing without the first respondent's affidavits. In other words, should the Court reject the first respondent's affidavits because they were not served in time? The first respondent submits that they be accepted. He explained that although his lawyers filed them in time, they could not be served in time because the lawyer having conduct of the petition, Mr Nahupa was attending to his ill father who had travelled into Port Moresby from Goroka for medical treatment.

13. The petitioner submits that the explanation by the first respondent is unsatisfactory because the absence of Mr Nahupa at work at the relevant time is an administrative and internal matter for his lawyers to deal with and has no consequence to the petition. In any case, another lawyer should have attended to the petition if Mr Nahupa was not at work. In addition, each side had equal time to prepare, file and serve affidavits and the first respondent as member-elect and member of the ruling coalition party in government had the extra finance and resources to get the affidavits filed and served within time.

14. I accept the petitioner's first leg of his submissions. Mr Nahupa is a lawyer in the firm of Sam Bonner Lawyers. Mr Bonner is its principal. If Mr Nahupa was attending to his ill father at the time the first respondent's affidavits were due for service, there was Mr Bonner who could have arranged for them to be delivered to the petitioner either in person or through a legal clerk. I find the reasons given by the first respondent unsatisfactory.

15. But I am not satisfied that the petitioner will be prejudiced if the affidavits are accepted and allowed to be relied upon by the first respondent at trial. I hold this view because the petition is yet to go through pre-trialling and setting down for trial. In other words, the Court has not allocated trial dates for this petition and if I direct now that the first respondent serve the affidavits on the petitioner, the petitioner will still have time to respond to them before the trial. For this reason, I will grant the first respondent's application.

16. The orders are:

16.1. Leave is granted and the first respondent shall have until Thursday 20th December 2012 to serve 45 affidavits on the petitioner.

16.2. Thereafter, the petitioner shall have until Thursday 27th December 2012 to file and serve any affidavits in reply.

16.3. The petitioner shall request in writing to and the fourth respondent shall supply to the petitioner, election manuals for Returning Officers, Assistant Returning Officers and Presiding Officers by Thursday 27th December 2012.

16.4. Thereafter, parties shall have until Wednesday 02nd January 2013 to file and serve notices under the Evidence Act.

16.5. Thereafter, parties shall have until Monday 07th January 2013 to prepare, settle and file a statement of agreed and disputed facts and issues for trial.

16.6. Parties shall return to Court for pre-trial conference on Tuesday 08th January 2013 at 9:30 am.

16.7. Cost shall be in the cause.

_____________________________________________________________

Sam Bonner Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents