Yasona v Maibawa and The Electoral Commissioner of Papua New Guinea [1998] PGSC 42; SC589 (9 October 1998)

Unreported Supreme Court Decisions

SC589

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO. 81 Of 1998
BETWEEN: KORAK YASONA
APPLICANT
AND: CASTEN MAIBAWA
FIRST RESPONDENT
AND: THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
SECOND RESPONDENT

Waigani

Hinchliffe Injia Akuram JJ
28 August 1998
9 October 1998

JUDICIAL REVIEW - Constitution s 155(2)(b) - Decision of National Court dismissing election petition for petitioner’s failure to fully comply with Court order requiring filing and service of witnesse’s affidavits - No gross error apparent on face of record - Application dismissed.

Cases Cited

Biri v Ninkama [1982] PNGLR 342,

Application by Electoral Commission [1991] PNGLR 372,

Balakau v Torato [1983] PNGLR 242,

SC Rev No 5 of 1998: Re Kasap v Yama [1988-89] PNGLR 97,

Re Kasap -v- Yama [1988-89] PNGLR 197,

SC Rev No 13 of 1998: Peri v Agiru [1998],

SC Rev No 46 of 1998: Mandepo v Nali [1998],

SC Rev No 48 of 1998: Karo v Kidu [1998].

Counsel

M. Karu for the Applicant.

A. Manase for the First Respondent.

A. Kongri for the Second Respondent.

9th October, 1998

HINCHLIFFE INJIA AKURAM JJ: This is an application pursuant to s 155(2)(b) of the Constitution seeking review of the decision of the National Court made on 16 June 1998 dismissing election petition No. 21 of 1997.

The application relates to the trial judge’s decision to dismiss the petition for the reason of the applicant’s failure to prosecute the petition on the date and time the petition was fixed for trial. The petition was fixed for trial on 15 June 1998 at Goroka after a pre-trial conference held at Waigani on 26 May 1998 on which the following orders were made:

“1. The Petitioner (now applicant) is to file and serve affidavits of witnesses by Tuesday 9th June 1998.

2. The Respondents will have one week from 9th June 1998 to reply.

3. By the 17th June 1998, Respondents be at liberty to file although he may do so earlier than 15 June.”

On 15 June 1998, at the commencement of the trial, the respondents’ lawyers applied to dismiss the petition on the basis that the petitioner had failed to fully comply with the Court order of 26 May 1998 in that:

1. Although the petitioner filed some affidavits on 9 June 1998, they were served on the respondents on 11 June 1997 at 3.30 pm.

2. The petitioner filed one affidavit on 9th June 1998 but served it on the respondents on the day of the trial, that is on 15 June 1998.

3. The petitioner filed and served one affidavit on the day of the trial, that is, on 15 June 1998.

4. The petitioner could not get other witnesses to make affidavits so he wanted to call them to give oral evidence on the day of the trial.

The respondents relied on the principles laid down by the Supreme Court in SCR No 48 of 1998: Karo v Kidu dated 5 June 1998; SCR No. 46 of 1998: Mendepo v Nali dated 9 April 1998 and SCR 13 of 1998: Peri v Agiru dated 3 April 1998.

Counsel for the petitioner admitted the above facts but requested for an extension of a further 2 or 3 days to comply with the order, given the fact that he had partially complied with the Court order. He submitted that the petitioner’s late filing and/or service of the affidavits were a minor irregularity or mere technicality which could be easily rectified. Counsel for the petitioner whilst accepting the general principles laid down by the Supreme Court in the cases referred to by the respondents sought to distinguish these cases on the facts.

The trial judge after setting out the principles in the above cases applied them to the facts of the case before him in this way:

“The evidence is quite clear. The petitioner has simply not complied with the orders and directions of the court. The petitioner had more than ample opportunity to comply with the directions, but instead he chose to wait until the last day, that is 9 June 1998 to file the various affidavits. The orders of the court were to file and serve those affidavits by 9 June 1998. The affidavits were served by a circuitous means on the respondents some two days later. Clearly on the fact of the evidence the petitioner has not complied with the orders and directions of this court. In my view this is a serious matter. It is not a simple technical matter as submitted by Mr Karu. In my view disobeying a court order is not a simple technical matter, because in not obeying and complying wit the order a party is in effect expressing or displaying a contemptuous attitude or behaviour to the court. Such a behaviour cannot and will not be tolerated, particularly where litigants are represented by lawyers. This is much more so where the litigation is an election petition, because whilst a petition is on foot there is an air of uncertainty. An election petition is a serious matter and is no ordinary cause of action. It is therefore imperative that when the court gives orders or directions as to the procedures and conduct of having the petition heard expeditiously, the parties must comply with those orders or directions.

I do not accept the explanations given by Mr Karu. The court’s orders must mean something and if a party fails to comply with the court’s orders then he or she does so on his or her own peril.

In the circumstances of this case, I am bound to follow and apply the decisions of the Supreme Court, which I have referred to earlier.”

In this application, grounds 3.3. and 3.4, of the application for review relate to the trial judge’s decision based on the petitioner’s breach of the Court order of 26 May 1998. These grounds deal with the trial judge’s failure to distinguish the facts of this case with those in Karo v Kidu, (supra) and Mendepo v Nali (supra) and arrived at a decision which favoured the respondents.

Both parties in this review have made an improved version of the submissions made before the trial judge to advance their respective positions.

The issue before us is whether the trial judge erred in the exercise of his discretion in dismissing the petition, in the circumstances outlined above, in accordance with the principles laid down by the Supreme Court in Mandepo v Nali (supra) and Karo v Kidu (supra). The discretionary power of this Court to review a decision of the National Court in an election petition matter is limited to a point of law which has merit or in matters of fact where there is some gross error which is clearly demonstrated on the face of the record: Re Kasap v Yama, [1988-89] PNGLR 197.

In our view, although the facts of Mendepo v Nali (supra) and Karo v Kidu (supra) are slightly different to those of the present case, the common factor in all these cases is that the petitioner was not ready to prosecute the petition on the date fixed for trial, either because the petitioner and his lawyer were not present in court, or the petitioner and his lawyer were present but had not complied with the court orders requiring filing and serving of witnesses’ affidavits or statements, at all; or the petitioner and his lawyer are present but have not fully complied with such Court orders. We re-emphasize the principles laid down in Karo v Kidu (supra) and Mendepo v Nali (supra), which recognize the importance of the need for parties, in particular the petitioner who bears the burden of proof, to promptly and meaningfully attend to and participate in pre-trial conferences in order to assist the Court set the course of conduct for the speedy hearing of election petitions. And when the court makes an order requiring the attendance of parties at a pre-trial conference or for filing and service of affidavits or witnesses’ statements prior to the hearing date, the court expects total compliance with that order. If a party is facing difficulties in fully complying with the order, he should request a further pre-trial conference and seek an extension or variation of that order; not simply turn up on the trial date and expect the Court to be engaged in another series of pre-trial conferences.

For those reasons, we find no error of law which has merit or no gross error apparent on the face of the record to justify a review of his decision. We therefore dismiss grounds 3.3 and 3.4 of the application for review.

Ground 3.1. raises the issue of whether the National Court Rules apply to election petitions. This issue was answered in the negative by the Supreme Court in Biri v Ninkama [1982] PNGLR 342 and Application by Electoral Commission [1991] PNGLR 372. We also dismiss this ground of review.

Ground 3.2 raises the issue of whether the trial judge was obliged to ask counsel for the petitioner if he wished to object to the First Respondent’s application to dismiss the proceedings. We do not think this issue is of any consequence as the petitioner was heard in the application itself. We dismiss this ground also.

The last remaining ground, ground 4, was withdrawn by consent of the parties.

The end result is that the application is dismissed with costs.

Lawyer for the Applicant: Patterson Lawyer.

Lawyer for the First Respondent: Pato Lawyers.

Lawyer for the Second Respondent: Nonggor & Associates.