N5218

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 40 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 NORTH BOUGAINVILLE OPEN ELECTORATE

BETWEEN

WILLIAM NAKIN
Petitioner

AND

LAUTA ATOI
First Respondent

AND

THE ELECTORAL COMMISSIONER OF PNG
Second Respondent

Waigani: Makail, J
2012: 03rd December
2013: 09th May

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for summary judgment – Application arising from election dispute – Failure by first respondent to appear at directions hearing and status conference – Failure by first respondent to comply with court directions – Failure to file responding affidavits – No issue as to service of petition – Power to enter summary judgment – Whether summary judgment available in election petitions – Summary judgment granted only in a clear case – Relevant principles discussed – Circumstances where summary judgment may lie discussed – Competency of petition raised – Insufficient or inadequate pleadings – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rules 17 & 18.

Facts

This is an application for "summary judgment" arising from an election petition in relation to the North Bougainville Open Electorate where the first respondent was returned as member-elect following the General Election in 2012. The application for summary judgment is made pursuant Rules 17 & 18 of the National Court Election Petition Rules, 2002 (as amended) based on what the petitioner alleged was firstly, failure by the respondents, more so the first respondent to appear at directions hearing and status conference and secondly, failure to comply with Court directions. He alleged that the first respondent among other things, failed to file and serve his affidavits in response. The alternative application is for the petition to be set down for expedited hearing.

Held

1.	Pursuant to Rule 18(iii) of the National Court Election Petition Rules, 2002 (as amended), the National Court has power to enter summary judgment in election petition cases.

2.	The power to grant summary judgment is discretionary and must be exercised based on proper principles of law. It is granted only in a clear case. Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112 applied.

3.	There is serious conflict on questions of fact and law in relation to the sufficiency of pleadings. They go to the competency of the petition such that entry of summary judgment would not be appropriate in the circumstances and is refused. The alternative application is granted and the petition is set down for trial without the first respondent's consent.

Cases cited

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342
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 
Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598
Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924 
Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937
Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877 
Philomena Kassman -v- Electoral Commission & Kila Haoda (2012) SC1211 Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
Lucas Neah -v- John Thomas Pundari & Electoral Commission (2012) N4792 
Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5097

Counsel

Mr A Minei, for Petitioner 
Mr K Frank, for First Respondent
Mr J Kolkia, for Second Respondent

RULING
09th May, 2013

1.	MAKAIL, J: This is an application for "summary judgment" arising from an election petition in relation to the North Bougainville Open Electorate where the first respondent was returned as member-elect following the General Election in 2012. The application for summary judgment is made pursuant Rules 17 & 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") on what the petitioner alleged was firstly, failure by the respondents, more so the first respondent to appear at directions hearing and status conference and secondly, failure to comply with Court directions. He alleged that the first respondent among other things, failed to file and serve his affidavits in response. The alternative application is for the petition to be set down for expedited hearing.

Background Facts

2.	The background facts giving rise to the application are as follows, the petitioner served the petition and notice in Form 1 and notice of directions hearing in Form 2 on the first respondent at his office/residence on Buka Island on an adult persons by the name of Tom at about 10 o'clock in the morning of 07th September 2012. As for the second respondent, he served the same documents at its office on Buka Island at around 1:30 pm of the same day: see two affidavits of Elias Ommey sworn on 18th September 2012 and filed on 26th September 2012. The petition was fixed for directions hearing on 27th September 2012 at 9:30 am. The first respondent failed to appear on that date. Only the second respondent appeared. The Court raised the issue of service of the petition with the petitioner and after hearing submissions from the petitioner and noting the affidavits of Mr Ommey, the Court was satisfied that the first respondent was served. It then issued directions for the conduct of the petition and adjourned the petition to 05th November 2012 at 9:30 am for status conference. 

3.	On 05th November 2012, again, only the second respondent appeared. The Court further extended the directions and the petitioner and second respondent were given until 19th November 2012 to file and serve affidavits, secondly, parties were given until 21st November 2012 to file and serve notices under the Evidence Act and finally, parties were given until 23rd November 2012 to file and serve a statement of agreed and disputed facts and issues for trial. The Court then adjourned the matter to 23rd November 2012 at 9:30 am for pre-trial conference. On 23rd November 2012, for the third time, the first respondent did not attend. Only the second respondent attended. The Court further extended time for the petitioner to serve five additional affidavits on the first respondent, adjourned the matter to 03rd December 2012 at 9:30 am and in light of the first respondent's continuous non-attendance before the Court, the Court also suggested to the petitioner to consider filing an application for summary judgment. He did and this is how the application is before the Court for ruling.

Parties' Submissions

4.	At the hearing of the application on 03rd December 2012, Mr Kenneth Frank sought and was granted leave to appear for the first respondent. The main submission of the petitioner was that following service of the petition, he has not only faithfully attended the Court hearings on the dates fixed by the Court but also diligently complied with the directions of the Court. The respondents, in particular the first respondent neither attended Court nor complied with the Court's direction. His conduct, it was submitted is rebellious, disrespectful and a sign of unwillingness to submit to the jurisdiction of the Court. It was further submitted that if the petitioner is burden with the responsibility of prosecuting the petition in a timely manner and had done everything required of him to bring the petition to trial, it is unfair for the first respondent to belatedly appear and be granted leave to defend the petition. The first respondent's dilatory conduct has adversely prejudiced the petitioner's case as he has spent time and money in prosecuting the petition.

5.	Finally, it was submitted that as the petitioner has raised allegations of bribery and undue influence against the first respondent, that the petitioner has filed and served affidavits in support of the allegations and that the first respondent has not responded to them in terms of filing responding affidavits as directed by the Court, the petitioner is entitled to summary judgment. The Court has power to enter summary judgment under Rule 18 of the EP Rules, such power is discretionary and is exercised only in very clear cases. 

6.	Mr Frank strongly opposed the application. Firstly, he submitted that the Court has no power to enter summary judgment in an election petition. Secondly, he raised issues of competency and submitted that the application should be refused because the petitioner did not sufficiently plead the material facts or the pleadings in relation to the allegations of bribery and undue influence are insufficient or inadequate. As bribery and undue influence are criminal offences under ss.102 and 103 of the Criminal Code, the burden of proof is higher than the civil standard of proof. Therefore, it is incumbent on the petitioner to sufficiently plead the material facts of these allegations. The petition is in breach of the mandatory requirement of s 208(a) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and must be dismissed. 

7.	He was supported by Mr Kolkia for the second respondent who abandoned his submission on the application of the National Court Rules, O 12, r 38 (Summary Judgment) but added that the Court's only power to grant relief in a case where the defaulting party is a respondent is to set down the petition for expedited hearing under Rule 18(ii) of the EP Rules. When pressed further by the Court, he conceded that the Court has power to enter summary judgment in election petition cases. 

Power to enter Summary Judgment

8.	The application raises the fundamental question of jurisdiction. Does the Court have power to enter summary judgement in an election petition? From my research and my brief association with election petitions, I have neither found nor heard of an election petition case where summary judgment was entered against a member-elect and Electoral Commission. Neither have counsel cited any either within or outside the jurisdiction. This case appears to be the first and can be said to be a test case. Under the Constitution, the Court has a duty to develop the Underlying Law. Constitution, Sch 2.3. Judges should not be afraid or feel constrained by the lack of judicial precedents from exploring and developing the Underlying Law through judicial pronouncements that is applicable and appropriate to the circumstances of the country. I consider this case one where a judicial pronouncement is necessary for the benefit of all those involved in the presentation and conduct of election petitions in this jurisdiction.

9.	One of the special jurisdictions of the National Court is the election petition Court or what is commonly known as the "Court of Disputed Returns." It is special because it is exclusively for election petitions. The powers of the Court in election petitions are derived from the Organic Law on Elections, ss. 206, 207 & 212 and the EP Rules. Unlike the National Court Rules which provides a comprehensive code of practice and procedure on institution and conduct of civil proceedings before the National Court, the EP Rules provide brief but succinct rules on the presentation and conduct of election petitions with the sole objective of disposing them in an efficient and timely manner. For example, the National Court Rules require a defendant to file a defence to a claim where as the EP Rules do not. Another example is that, the National Court Rules provide for summary judgment, O 12, r 38 whereas the EP Rules do not. The reason behind the absence of the requirement to file a defence in election petitions is obvious. It would delay the petition from being set down for trial. 

10.	The striking feature of the EP Rules is its strictness because its provisions are mostly mandatory and have time limits. The emphasis is on its strict compliance. The cases of SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342, 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, Korak Yasona -v- Casten Maibawa & Electoral Commission (1998) SC598, Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924, Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937 and Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877 all emphasise the importance and reason for complying with the Organic Law on Elections and the EP Rules and the onerous burden placed on the petitioner in prosecuting the petition with due dispatch. Failure to comply may result in the summary dismissal of the petition.

11.	That said, the proposition here is this, if the petitioner is placed with the onerous burden of prosecuting the petition with due dispatch and has done everything required of him to bring the petition to trial and the respondent has failed to defend the petition, why should the Court not summarily determine the petition? In my view, the answer lies in Rule 18. 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." (Emphasis added).

12.	There is one course open to the Court and the petitioner. Under Rule 18(ii), the Court may set down the petition for expedited hearing. This is the principal relief for the petitioner. As correctly submitted by Mr Kolkia, this relief is available in a case where the defaulting party is a respondent. But in my view, the Court is not restricted in its discretion from granting other reliefs. In my view, the other reliefs available include summary judgment under Rule 18(iii). I hold this view because in my view, Rule 18(iii) is wide enough to include summary judgment. 

13.	In forming this view, I am mindful of what the learned Chief Justice said in Philomena Kassman -v- Electoral Commission & Kila Haoda (2012) SC1211 where his Honour said: "The provisions of PRR (Supreme Court Election Petition Review Rules) provide a complete code of procedure for the conduct of election petitions. The jurisprudential development on the practice and procedures for the conduct of election petitions at a preliminary hearing and the Court's summary jurisdiction under PRR r18 is different to that of rules of the court governing direction hearings and summary procedure in ordinary civil procedure found in NCR. The Court should avoid importing of rules and principles of practice and procedure governing ordinary civil claims into the conduct of election petitions and petition reviews in the National Court and Supreme Court respectively." 

14.	With respect, while his Honour drew the distinction between the National Court Rules and the EP Rules on practice and procedure and tried to discourage parties from importing rules and principles in the National Court Rules in the EP Rules, this case is not about importation of rules and principles of practice and procedure in the former in the latter. It is about the jurisdiction of the Court. This is the distinction and in my view, to suggest that the National Court has no power to grant summary judgment in election petition cases is quite mischievous and wrong because its jurisdiction is unlimited. Constitution, s.166(1). My view is fortified by s.212 of the Organic Law on Elections which states that:

"212.	Powers of court.

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things–
(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect to pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election." (Emphasis added).

15.	In my view, the use of the words, "amongst other things" means that the matters listed in (a)-(k) are not exhaustive and the National Court may make other orders apart from them. In my view, one of them is the power to enter summary judgment. My view is further fortified by the fact that if the Court is vested with summary dismissal powers under Rule 18(i), logically, it must also have power to summarily determine the petition without a trial. The Court's power can be invoked in a case such as the one under consideration. 

16.	For these reasons, I am satisfied that the National Court has power to enter summary judgment in election petition cases. 

Relevant Principles for Summary Judgment

17.	Of course, that does not mean that the Court can exercise this power unilaterally. It remains discretionary and must be exercised based on proper principles of law. I will use the case of Bruce Tsang -v- Credit Corporation (PNG) Limited [1993] PNGLR 112 as a guide. It concerned the application of summary judgment under O 12, r 38 of the National Court Rules in civil proceedings instituted in the National Court. It stands for the proposition that the plaintiff will not be entitled to summary judgment, if there is a serious conflict on questions of fact or law. It also held that summary jurisdiction should only be invoked in a clear case. I propose to apply these principles in this case. The onus is on the applicant to establish a clear case for summary judgment. 

Application of Law and Facts

18.	In this case, the unchallenged evidence is that on 27th August 2012, the petitioner filed the petition and on 07th September 2012, served it on the first respondent. Despite being served, the first respondent did not attend one single Court hearing on the dates fixed by the Court. If he had issues with service, he had the right and the opportunity to exercise that right was available to him on 27th September 2012 at the directions hearing. He could have appeared and raised objection. Other members of Parliament did that in other petitions that came before this Court. Two that immediately come to mind are Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791 and Lucas Neah -v- John Thomas Pundari & Electoral Commission (2012) N4792. If those two Honourable Members can come to Court and properly raise the issue of service and the Court ruled on it, it is inexcusable for the first respondent in this case not to do the same. 

19. In addition to that, he has not complied with one single direction of the Court. The practical effect of that is, there are no responding affidavits from the first respondent before the Court. With respect, given the manner in which the first respondent has conducted himself, I have to agree with the petitioner that he is rebellious, disrespectful and unwilling to submit to the jurisdiction of the Court. I also accept that if the petitioner is burden with the responsibility of prosecuting the petition in a timely manner and had done everything required of him to bring the petition to trial, it is unfair for the first respondent to belatedly appear and be granted leave to defend the petition. Finally, I accept that the first respondent's dilatory conduct has adversely prejudiced the petitioner's case as he has spent time and money in prosecuting the petition.

20.	To emphasise the Court's concern on defaulting respondents, in Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5097, I made these observations in the context of Electoral Commission's failure to file and serve responding affidavits in time: 

"So much emphasis has been put on the petitioners to get their affidavits filed and served on time while the respondents are allowed to tag along innocently waiting to seize an opportunity to dismiss the petition for non-compliance. The reason that the witnesses were unwilling or unavailable to come forward to give evidence is far-fetched. If the petitioners are burdened with the task of collating information from informants and witnesses to get affidavits drafted, settled and filed within the time limits fixed by the Court, it is inexcusable for the respondents not to do the same." 

21.	That said, summary judgment will not be granted if there is a serious conflict on questions of fact or law. It will only be invoked in a clear case. So the next issue is, is this case ready for summary judgment? The allegations of bribery and undue influence are purely against the first respondent. In reality, there is nothing for the Electoral Commission to defend. It can be considered a nominal defendant/respondent. The principal defendant is the first respondent and should be the one taking the lead to respond to the petition. He has not filed affidavits in response. In the absence of responding affidavits, the Court is left with the affidavits of the petitioner and could proceed to consider them and make a ruling. In that way, the petition is dealt with in an efficient and timely manner. In other words, the invoking of the summary judgment procedure should be restricted to cases where there is no show by the respondents.

22.	Conversely, I consider that firstly, in a case where a respondent has filed responding affidavits, it would not be appropriate to summarily determine the petition and it is immaterial whether admissions are made in the affidavits. Secondly, I consider it not appropriate to summarily determine a petition if a respondent fails to file responding affidavits but has filed an objection to competency. Rule 15 of the EP Rules is clear. An objection to competency shall be heard at trial. That is the time the objection will be heard and so the Court should refrain from considering an application for summary judgment if there is an objection. Finally, I consider it not appropriate to summarily determine a petition where the defaulting respondent is the Electoral Commission, has filed responding affidavits but failed to provide electoral records or documents to the petitioner. I consider that the Electoral Commission's failure to provide records or documents should be best left to the trial judge to determine. 

23.	I cite these examples because firstly, unlike the National Court Rules which require parties to file and serve on each other a statement of claim and defence which would identify the issues for trial, the EP Rules do not. Thus, it would not be reasonable to expect the parties to be in a position at the interlocutory stage to identify the issues for trial unless they have agreed on a statement of agreed and disputed facts and issues for trial. The second reason is this, in each case, there are attendances by the respondents and they should be allowed to defend the petition. In my view, an appropriate order the Court may make, in each of these cases is to set down the petition for expedited hearing under Rule 18(ii).

24.	While the first respondent has not filed an objection to competency, Mr Frank has raised some issues in his submissions which are worthy of consideration. And while it is accepted that it is unfair to allow the first respondent to be heard now, his belated attendance through counsel proves that the rule of law must and has prevailed in this case. It is this application that has prompted a rebellious, disrespectful and unwilling party to submit to the jurisdiction of the Court. So, let him be heard. His first line of submissions was directed to the insufficiency or inadequacy of pleadings and the second was directed to the belated filing of the petition.

25.	As to the first issue, it goes to the question of jurisdiction. Before the Court embarks on an inquiry into the allegations, it must be satisfied that the petitioner has properly invoked the jurisdiction of the Court. The Court must be satisfied that the requisites of a petition under s. 208 have been complied with. Pleading the material facts is mandatory and at this stage, it is not for me to decide the merits of the objection. I need only to satisfy myself that there are serious issues raised by the first respondent meriting further consideration at trial. 

26.	I have considered the pleadings in the petition and I am satisfied that the first respondent has raised some valid points in relation to the sufficiency of pleadings. For example, the names of the persons allegedly bribed by the first respondent have not been stated. Another example is, in a number of instances, it is not pleaded if the persons allegedly bribed were electors. A further example is, in a number of instances, it is not pleaded if the cash given to the people was intended to procure the return of the first respondent in the election. Bribery and undue influence are criminal offences. Criminal Code, ss.102 and 103. The petitioner has to prove them on a higher standard of proof. Thus, the material facts must be clear and sufficient. 
27.	In relation to the second issue, the first respondent was declared winner on 20th July 2012. According to s.208(e) of the Organic Law on Elections, the 40 days time limit to file the petition expired on 30th August 2012. The petition was filed on 27th August 2012. It was filed within time. This submission has no merit and does not require further consideration.

28.	I am satisfied there is serious conflict on questions of fact and law in relation to the sufficiency of pleadings. They go to the competency of the petition such that entry of summary judgment would not be appropriate in the circumstances and is refused.

Application for Expedited Hearing

29.	As for the alternative application, in my view, it is the same thing as seeking leave of the Court to set down the petition for trial without the first respondent's consent. Given the first respondent's dilatory conduct, I am satisfied that allowing him time to comply with the directions of the Court will further delay the hearing of the petition and the resolution of the dispute. I am further satisfied that the petitioner has been and is ready to go to trial and should not be further denied that opportunity. I grant leave to him to set down the petition for trial without the first respondent's consent.

Order

30.	The orders are:

30.1.	The application for summary judgment is refused.
30.2.	Leave is granted to the petitioner to set down the petition for trial without the first respondent's consent.
30.3.	Costs shall be in the cause.
____________________________________

Kaipu & Associates : Lawyers for Petitioner
Young & Williams Lawyers : Lawyers for First Respondent
Kimbu & Associates : Lawyers for Second Respondent