Neil v Kaile [2007] PGSC 8; SC873 (5 July 2007)

SC873

PAPUA NEW GUINEA
[IN THE NATIONAL & SUPREME COURT OF JUSTICE]

SCA NO. 54 OF 2007 – EP

BETWEEN

JOE DAURA NEIL
Appellant

AND

ANTON KAILE, AS RETURNING OFFICER FOR
KUNDIAWA/GEMBOGL ELECTORATE
First Respondent

AND

JOHN ELLIE AS ELECTION MANAGER
Second Respondent

AND

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

AND

ELECTORAL COMMISION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani & Mt Hagen: Hinchliffe, J
2007: 5 July

Case Cited:

The Independent State of PNG and The Commission of Corrective Institution Service v. Daniel Mollen, SCA No. 72 1995

Counsels:

S. Olewale, for the Plaintiff
M. Opur, for the Defendant

5 July, 2007

BRIEF REASONS FOR DECISION

1. HINCHLIFFE J.: This is an election 2007 related matter. The facts arise out of a situation whereby the appellant attempted to nominate. He turned up on 10 May 2007 at 3.55 pm to nominate as a candidate in the Kundiawa/Gembogl Electorate. For those who are unaware of the importance of that date and time, well he had arrived on the last day of nominations with, according to him five minutes to spare.

2. The Appellant had travelled all the way from Port Moresby on that day. An early flight out of Jackson’s airport (Port Moresby) to Lae. From Lae he was expecting to get on a plane to Goroka and then to Kundiawa where the nomination was to take place for the said seat.

On arrival at Nadzap he found that the plane going to Goroka had already left. He subsequently travelled to Goroka and Kundiawa by ground transport and that’s when the trouble started. He and some supporters asked if he could nominate and he was told to wait. That, according to the appellant it was 3.55 pm. Also, again, accordingly to the appellant 4.00 pm passed by and subsequently he was told by the officials that he was too late and that he could not nominate.

3. On the other hand there is affidavit material on file which tells a different story. Those various affidavits clearly indicate that the appellant was late and it would appear that he arrived at 4.05 pm. There is a ten minute difference which on the face of it is hardly worth worrying about, but in reality they are a very important ten (10) minutes. It soon became clear that the appellant was not going to be allowed to nominate and subsequently at a later date he filed an Originating Summons.

4. Before I go any further I believe it is most import to mention that the appellant had a week to nominate but he left it until the last day. I find it hard to believe that someone who is really keen to become a Member of Parliament would leave it so late. As it so often happens, when things are left to the eleventh hour something wrong will happen. It appears to me that when the appellant reached Lae, it was down hill from then on. It was a huge gamble that he took and the gamble certainly did not pay off.

5. It would seem to me that a more sensible way of doing things would be, to have arrived at least two days before the nominations closed. Added to all of that everyone is fully aware of the unreliability of Air Niugini and it would not have surprised me if the Court had been told that the Port Moresby – Lae flight had been cancelled. Recent events have seen Air Niugini regularly cancelling flights after people have been waiting for anywhere up to ten (10) hours. The airline seems to have very little concern for the travelling public. I wonder if the appellant had been thinking along these lines or was just hoping that all would be well.

6. The said Originating Summons (OS 290 of 2007) (EP) dated and filed on the 25 May 2007 reads as follows:

ORIGINATING SUMMONS

The Plaintiff/Applicant Claim:-

1. A declaration that the plaintiff be allowed to sign his name to contest the Kundiawa/Gembogl Open seat because he was at the electoral office in Kundiawa two (2) minutes before the nomination closed.

2. A further declaration for the court injunction to suspend the nominations for Kundiawa/Gembogl Electorate and reconsider the draw for all the Kundiawa/Gembogl candidates.

3. Also a declaration for the Second and Third Defendants to reconsider and review their draws for all the Kundiawa/Gembogl Open candidates.

4. A further declaration that the nomination fee of K 1, 000.00 deposited on 10 May 2007 that cancelled by the Returning Officer be accepted now and can be considered as the money paid in on time.

5. An order that the plaintiff waited for two minutes after instruction from the Returning Officer can be considered as the plaintiff being on time to sign up his signature.

6. Any other further orders that the court deems appropriate.

7. The defendants pay the costs.

The matter then, came by way of Notice of Motion before Justice Sevua on 1 June 2007 who gave various Directions and to then go back before the Motions Judge. That happened to be Justice Davani. Justice Sevua had directed that his Directions had to be complied with by the 6 June 2007. That had not occurred and it followed that when the matter went before Justice Davani on the 8 June 2007, she proceeded to dismiss the whole proceedings because the Orders of Justice Sevua had only been partially complied with. Her Honour made that dismissal order on the oral application of counsel on the same day, ie. 8 June 2007. Clearly one glance from the documentation on file that the appellant was not pleased with Her Honour’s dismissal order and because of that the appellant lodged an Application for Leave to Appeal. The proposed Appeal was to do with Her Honour’s dismissal order and various other things.

7. The appellant also wanted to Stay Order from the Court pending the application for Leave to Appeal and the Appeal itself. Several applications were filed by the appellant and the last "Amended Application to Stay Kundiawa/Gembogl Elections" was filed on the 25 June 2007. Most of the said applications were to allow the appellant to stand as a candidate but not to let the election proceed before the Leave to Appeal and the Appeal had been dealt with; hence the stay orders.

In brief I am not over impressed with the actions of the appellant on the 10 May 2007. At the end of the day it was quite clear that the reason why he did not nominate because he arrived late. Even though the appellant said he was five minutes early, there is convincing affidavit material from the defendants that the appellant was at least five minutes late. At this stage I would have to accept the defendants’ eye witness accounts of events over and above that of the appellants. It is quite simple, the appellant arrived late and to my mind to get any sympathy from the court he would have to provide more than he has so far done. The appellant in his written submission said as follows:

"The Issue " –

the main issue before the court is "whether or not the appellant/applicant has sufficiently demonstrated ‘ a reasonable ground’ or ‘an appropriate case’ to warrant the exercise of this courts’ discretion in his favour."

I have read and considered the written and oral submissions of both Counsel and after due deliberation, I learn towards the defendants accounts of events. I see no reason to make an Order for a Stay in that I am of the view that the appellant has not sufficiently demonstrated a "reasonable ground" on an "appropriate case." I also remind myself of the case of The Independent State of Papua New Guine and the Commission of Corrective Institution Service v. Daniel Mollen, SCA No. 72 of 1995 where it was held that the power to grant or stay pending appeal is an unfettered discretion but should only be exercised where "special" and "exceptional circumstances" are shown.

The application for a stay order in this matter is therefore refused.

Mambei Lawyers & Consultants -Lawyer for the Appellant
Nonggorr and Associates Lawyers -Lawyer for the Respondents