Kekeno v Undialu [2013] PGNC 270; N5364 (3 October 2013)

N5364

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 26 OF 2012

BETWEEN

JOHN KELEWA KEKENO
Petitioner

AND

PHILIP UNDIALU
First Respondent

AND

WAMU WALI in his capacity as the Returning Officer for the Koroba-Lake Kopiago Electorate
Second Respondent

AND

ANDREW TRAWEN in his capacity as the Electoral Commissioner of Papua New Guinea
Third Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2013: 12th September & 03rd October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to disqualify judge – Grounds of – Apprehension of bias – Judge expressing a view on an issue in earlier election petition – Issue of attesting witnesses – Conduct of associate – Meeting with a party to a legal proceeding before judge – Inherent powers of the Court – Constitution – Section 155(4).

Cases cited:

James Yoka Ekip & Anor -v- Gordon Wimb, Electoral Commission and William Duma (2012) N4899
Philip Kikala -v- Electoral Commission & Nixon Koeka Mangape (2013) N4960
Soroe Marepo Eoe -v- Mark Ipi Maipakai & Electoral Commission: EP No 78 of 2012 (Unnumbered & Unreported Judgment by Cannings, J)
Luther Wenge -v- Kelly Naru & Electoral Commission (2013) N5033
Philemon Embel -v- Jeffery Komal & Electoral Commission: EP No 99 of 2012 (Unnumbered & Unreported Judgment by Kawi, J)
PNG Pipes Pty Ltd & Venigopal -v- Mujo Sefa, Globes Pty Ltd & Ors (1998) SC592
Tom Olga -v- Gordon Wimb, Electoral Commission & Paias Wingti (2013) N5321
Jim Nomane -v- Wera Mori & Electoral Commission (2013) SC1242
Counsel:

Mr M Nandi, for Petitioner
Mr J Haiara, for First Respondent
Ms S Kapi, for Second, Third and Fourth Respondents

RULING ON APPLICATION TO DISQUALIFY JUDGE

03rd October, 2013

1. MAKAIL, J: This is an application to disqualify Kandakasi, J from hearing this election petition for the Koroba-Lake Kopiago Open electorate on the ground of apprehension of bias. It is made pursuant to the inherent powers of the Court under s. 155(4) of the Constitution. The allegation of apprehension of bias arises from firstly his Honour's view in an earlier election petition case on attesting witnesses to a petition under s. 208(d) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") where he said that they must be persons who witnessed the election in the electorate and secondly, the conduct of his Honour's associate.

Background Facts

2. The facts giving rise to the application are found in the affidavits of the petitioner, David Ericho, Marley Nandi, his Honour's associate Daniel Goma and Peter Wagia. On 21st November 2012, in the election petition case of James Yoka Ekip & Anor -v- Gordon Wimb, Electoral Commission and William Duma (2012) N4899, his Honour expressed a view that witnesses who attest a petition must be persons who witnessed the election in the electorate, the subject of the petition. That view was followed by some judges of the National Court, one of them being myself in Philip Kikala -v- Electoral Commission & Nixon Koeka Mangape (2013) N4960. As a result, I dismissed that petition. Mr Kikala has filed a review against my decision and it is pending before the Supreme Court.

3. There are some judges who have formed a contrary view. Some of them are Cannings, J in Soroe Marepo Eoe -v- Mark Ipi Maipakai & Electoral Commission: EP No 78 of 2012 (Unnumbered & Unreported Judgment), Kirriwom, J in Luther Wenge -v- Kelly Naru & Electoral Commission (2013) N5033 and Kawi, J in Philemon Embel -v- Jeffery Komal & Electoral Commission: EP No 99 of 2012 (Unnumbered & Unreported Judgment).

4. On 26th February 2013, his Honour instructed his associate Mr Daniel Goma to inform parties that there would be a status conference before his Honour at Tari on 08th March 2013 and to also organise his Honour's travel to Tari. Prior to that, I conducted directions hearing and adjourned the matter to 06th March 2013 for pre-trial conference. On 28th February 2013, Mr Goma sent a facsimile to the parties' lawyers informing them of the date of the status conference. The lawyers for the respondents received the facsimile except the lawyers for the petitioner as their facsimile machine was not in operation. After several unsuccessful attempts, Mr Goma called the lawyers on the telephone and apparently, the petitioner took the call. Mr Goma informed him that he had a letter for his lawyers and wanted to know how it could be delivered to his lawyers.

5. The petitioner advised Mr Goma to deliver the letter to his lawyers' office located at the bottom level of the petitioner's house at Ensisi Valley in the National Capital District. As Mr Goma had no motor vehicle, Mr Peter Wagia a library staff of the Court house library assisted him by driving him in his motor vehicle to the office of the petitioner's lawyers. There, the petitioner met the two of them and told Mr Goma to give the letter to his lawyers. Mr Marley Nandi met them and took the letter. He read it and refused to accept it. He told Mr Goma that the Election Petition Judge Manager was still seized of the petition and no trial judge was assigned to hear it.

6. The petitioner also told him that he had set up a net work of people where they had informed him that if Kandakasi, J hears the petition, it would be dismissed. His informants have informed him that it was the work of THE Party to ensure that election petitions against its candidate are dismissed and his election petition will be dismissed. If the Court goes to Tari, he will ask people to disturb the court circuit.

7. On the evening of the same day, Mr Goma was playing a game of snooker at Waigani Banana club and received a telephone call on his mobile phone from the petitioner. The petitioner asked him to meet him at a restaurant at Vision City Shopping Complex. The petitioner denies this assertion. He says that it was Mr Goma who called him and asked him to meet him at Banana club to discuss the case. The petitioner sent Mr David Ericho to pick him. Mr Ericho arrived and picked him and drove him to Vision City Shopping Complex where the petitioner met them at the car-park. He invited Mr Goma to have dinner at the restaurant but Mr Goma declined. Mr Goma denies this assertion. The petitioner got into the motor vehicle and they drove to Aero club at Jacksons airport, which Mr Goma denies and says that they drove to his house at Gerehu Stage 2.

8. On the way, the petitioner apologised to him as to what occurred during the day and wanted to know how the petition was assigned to Kandakasi, J. Mr Goma told him that the allocation of election petitions to judges was the responsibility of the Election Petition Judge Manager. He also told the petitioner that given the short time before the status conference in Tari on 08th March 2013, he was making sure that Kandakasi, J's instructions were conveyed to the parties' lawyers without delay so that they could organise their travel in advance.

9. Mr Goma also denies the petitioner's assertion that he told the petitioner not to worry or to be too concern about his case because he would ensure that Kandakasi, J delivers a decision that will be favourable to him. They stopped at a tucker-shop and Mr Ericho bought 12 white cans of beer for him and the petitioner gave K150.00 to him. Mr Goma says that he did not ask them to buy beer and give him money. On 09th July 2013, he received further instructions from Kandakasi, J to inform lawyers for the parties of a status conference on 12th July 2013. He conveyed this instruction to the respective law firms.

Parties' Submissions

10. As to the first ground, relying on PNG Pipes Pty Ltd & Venigopal -v- Mujo Sefa, Globes Pty Ltd & Ors (1998) SC592, the petitioner submits that given that Kandakasi, J had formed a view in relation to the attesting witnesses to a petition, in that, they must be persons who witnessed the election in the electorate and that the witnesses in the current petition are not persons who witnessed the election in the electorate, and that his Honour would be influenced by his view in the James Yoka Ekip's case (supra, it is likely that he would dismiss the petition if he is the trial judge.

11. The respondents submit that judges make decisions. The process of judicial decision making involves reasoning and formulation of opinions or views based on interpretation and application of relevant laws to the facts of a given case. In this case, after a comprehensive discussion of the law which involved interpretation of the provisions of the Organic Law on Elections on witness attestation, his Honour came to the conclusion that attesting witnesses must be persons who witnessed the election in the electorate. His Honour's view cannot form a basis to ask his Honour to disqualify as it would be contrary to the principles of judicial decision making and precedents. They submit this ground is misconceived and should be dismissed.
12. As to the second ground, the petitioner submits by distinguishing this case from Tom Olga -v- Gordon Wimb, Electoral Commission & Paias Wingti (2013) N5321, in that, in this case, Mr Goma as the judge's associate met with him and they discussed the likely outcome of the petition while in the latter case, the associate allegedly uttered words to a third party to the effect that the judge had predetermined the petition in favour of the petitioner. He submits that the latter case has no application to the present case and this Court should not apply it.

13. He further submits that the conduct of his Honour's associate has caused in his mind and that of others that his Honour will be influenced by his views expressed in James Yoka Ekip's case (supra) and will dismiss the petition. Finally, he submits that since his Honour has referred the application to any judge to hear it, it is an admission that his Honour will dismiss the petition.

14. The respondents submit that this case is unique and extraordinary because the petitioner has got himself involved in the case. While he denies initiating contact with the associate, he does not deny that he met with the associate on 28th February 2013. It was during this meeting that the associate allegedly told him that his petition will be dismissed by Kandakasi, J. He cannot turn around now and use that information to disqualify his Honour.

Consideration of Parties' Submissions

15. S. 208(d) states that a petition must be signed by two witnesses whose occupations and addresses must be stated. First, I note that his Honour's view that attesting witnesses under this provision must be persons who witnessed the election in the electorate was made in passing because it was not the reason for dismissing that case. As the petitioner correctly pointed out, some judges of National Court including myself have adopted his Honour's view while some have differed as seen from the cases cited by him (supra).

16. The opposing view has some support from the Supreme Court as seen from the judgment in Jim Nomane -v- Wera Mori & Electoral Commission (2013) SC1242. In that case, one of the grounds for the National Court to dismiss the petition was that the witnesses who signed the petition were not persons who witnessed the election in the electorate. The petitioner appealed among other grounds, this finding to the Supreme Court. Apparently, the Supreme Court comprising of Kandakasi, J Cannings, J and Collier, J was more cautious and upheld this ground of appeal because the Court was of the view that there was uncertainty in this area of the law. Perhaps, this issue will be settled soon when the Supreme Court rules on it in Philip Kikala's review (supra).

17. Nonetheless, whatever views his Honour may hold, it is a matter for the petitioner to make out a case as to why his Honour should not adopt the view expressed in that earlier case (supra). Thus, the petitioner's contention that his Honour might be influenced by his view expressed in James Yoka Ekip's case (supra) concerning attesting witnesses is, in my view, not a valid reason to disqualify his Honour. For these reasons, I accept the respondents' submission that this ground is misconceived and dismiss it.

18. The second ground is a follow on from the first as it is clear that given his Honour's view on attesting witnesses under s. 208(d), the petitioner is apprehensive that if the trial judge were his Honour, he would dismiss the petition for that reason. His fear or suspicion is compounded by his assertion that while the petition was pending pre-trial conference before me as the Election Petition Judge Manager and that a trial judge was yet to be assigned to hear it, without notice to the parties, Kandakasi, J came into the scene and took charge of it when he got his associate to inform the lawyers for the parties of the date of the status conference of 08th March 2013 at Tari, two days after the date I had fixed for pre-trial conference.

19. It may well be that parties were not notified of his Honour's appointment as the trial judge for this petition, but it must be emphasised here and clearly understood by the petitioner and others that parties do not choose judges to hear their cases. That is not their responsibility and this business of the petitioner setting up a network of people to monitor cases including this case is just not on. It shows a lack of respect for the Court and undermines the independence of judges. In election petition cases, it is the Election Petition Judge Manager who, in consultation with individual judges as to among others, their availability and issues of conflict of interests, allocates cases to them to hear. Given the limited amount of time to complete election petition cases, expeditious disposition is critical and Kandakasi, J was available and ready to hear the petition in March of this year. For these reasons, it was allocated to his Honour. In my view, the petitioner's concern or suspicion is misconceived.

20. The other matter I raise is the conduct of judge's associate in visiting parties' lawyers at their offices. Under no circumstances should a judge's associate visit parties' lawyers at their offices or be in their company at any time when legal proceedings involving a party are before the judge. This proposition extends to parties as well. Any communication, correspondence or message relating to legal proceedings before a judge and intended for the parties' lawyers should be relayed by telephone or facsimile by the associate or if it is impossible, by physical delivery by a court staff such as a driver or mail delivery officer. If lawyers or law firms have mail boxes at the Court Registry, the correspondence or message should be placed in them for them to collect. This is to avoid a situation such as the one under consideration from arising.

21. With respect to the present case, the respondents opposed the application and I accept their submission that this case is unique and quite extraordinary because the petitioner has got himself involved in the case. While he denies initiating contact with the associate, he does not deny that he met with the associate on 28th February 2013. It was during this meeting that the associate allegedly told him that his petition will be dismissed by Kandakasi, J. I do not accept people who solicit information from associates as to the outcome of cases before judges. Why should justice be done to people like the petitioner who go around soliciting information as to the outcome of their cases? When it became apparent to the petitioner that the outcome would not be in his favour, he used that information to remove the judge. In my view, this is a gross abuse of the Court's process. He has come to Court with unclean hands and does not deserve the Court's indulgence.

22. However, as noted it is undisputed that Mr Goma visited the petitioner's lawyers at their office on 28th February 2013 and apparently, met the petitioner there. Then, in the evening of the same day, he met the petitioner at Vision City Shopping Complex car-park and they were driven by Mr Ericho to Mr Goma's house at Gerehu Stage 2 where he was dropped off. Mr Goma may well have justifiable reasons to visit the petitioner's lawyers and also justify his meeting with the petitioner that evening, but that is not the issue here. The issue is his presence with the petitioner who is a party to this petition before Kandakasi, J. What kind of impression does it give to an ordinary lay observer having some knowledge of the facts of this case? This is the issue and the obvious answer to that is, it creates that impression that he may be relaying information about the case to the petitioner and his lawyers.

23. I accept the petitioner's submission that this case is distinguishable on its facts from Tom Olga's case (supra). While I had expressed a view in Tom Olga's case (supra) that "no matter what the Associate say or do and may say or do, a Judge should not disqualify himself or herself because of what his or her Associate say and do", I am of the view that this case is more serious than that case because of the number of meetings the petitioner and the associate had. First, the associate visited the petitioner's lawyers at their office and in the process met the petitioner. Secondly, there was a separate meeting between the petitioner and the associate only. In my view, by hanging around with the petitioner who is a party to this petition, it gives an impression that they were discussing the case.

24. Finally, I reject the petitioner's submission that since his Honour has referred the application to another judge to hear, it is an admission that he is biased and will dismiss the petition. This is not a valid ground and similarly, while the respondents have opposed the application and maintained that Kandakasi, J should remain the trial judge in this petition, in my view, their opposition is not relevant here. In my view, it does not matter which way his Honour will decide the petition. What is relevant is the impression his associate has given to people from his meetings with the petitioner and his lawyers. I am satisfied that the presence of the associate with the petitioner and his lawyers would give an impression that his Honour will be biased in his decision. I uphold this ground.

Cost

25. As to cost, given that the petitioner has solicited information as to the outcome of the petition from the associate and then filed this application, I consider that he should pay the cost.

Order

26. The orders are:

26.1. The application is granted.

26.2. Kandakasi, J is disqualified from hearing this petition.

26.3 The petition will be listed before another judge to hear on a date(s) to be fixed.

26.4. The petitioner shall pay the cost of the application to be taxed if not agreed.

26.5. Time shall be abridged.
___________________________________________________________

Marley Nandi Lawyers: Lawyers for Petitioner
Steeles Lawyers: Lawyers for First Respondent
Niugini Legal Practice Lawyers: Lawyers for Second, Third and Fourth Respondents