Powi v Kaku [2018] PGSC 76; SC1743 (22 November 2018)

SC1743

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 10 OF 2018

WILLIAM POWI
Applicant

-V-

PASTOR BERNARD KAKU
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Yagi, Kariko & Polume-Kiele, JJ
2018: 29^th August & 22^nd November

ELECTION PETITION – Application for review of National Court decision – Dismissal of application for dismissal of petition for non-compliance with court directions – Directions for parties to file and serve affidavits for the hearing of the petition – Default by the petitioner – Primary Judge’s exercise of discretion – Whether discretion properly exercised – Constitution, s.155(2)(b) – National Court Election Petition Rules 2017, Rule 18

Cases Cited:

Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816
Basa v Dadae (2013) N4991
Benias Peri v Herowa Agiwa & Electoral Commission (1998) Unreported and unnumbered Supreme Court decision dated 3^rd April, 1998
Daniel Don Kapi v Samuel Abal (2005) N2856
Delba Biri v Bill Ninkama [1982] PNGLR 342
Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (2012) N4877
Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983
Hami Yawari v Angerson Agiru & Electoral Commission (2008) SC948
Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385
Karo v Kidu (1998) Unreported and unnumbered National Court decision dated 5^th June 1998
Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC589
Luke Alfred Manase v Don Pomb Poyle (2013) SC1329
Mendipo v Nali (1998) Unreported and unnumbered National Court decision dated 9^th April 1998
Mikki Kaeok v Rimbink Pato (2005) SC877
Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157
Papo v Electoral Commission (2003) N2350
Rambi v Trappe (2012) N4924

Legislation:

Constitution
Election Petition Rules 2017
Organic Law on National and Local-level Government Elections

Counsel:

Mr A Baniyamai, for the applicant
Mr R Diweni, for the first respondent
Mr A Ninkama, for the second respondent

JUDGEMENT

22^nd November, 2018

1. BY THE COURT: Pursuant to s. 155(2)(b) of the Constitution, the Governor of Southern Highlands Province, William Powi, applies for a review of the decision of the National Court at Waigani given on 21^st February, 2018 in election petition proceedings EP No. 79 of 2017: Pastor Bernard Peter Kaku v William Powi & Electoral Commission of Papua New Guinea, whereby the primary Judge declined the applicant’s motion filed 20^th February 2018 seeking summary dismissal of the election petition.

2. Leave to apply for the review was granted on 22^nd March 2018 and the application for review was filed on 26^th March 2018.

Background

3. The main background facts giving rise to this review are not in controversy.

4. The applicant is the Member of the Southern Highlands Provincial Electorate in the National Parliament and is the Governor for that province, having been declared the winner for that electorate in the 2017 National Elections.

5. Following the declaration, two election petitions were filed separately each by an unsuccessful candidate disputing the Governor’s win. The petitions are EP No. 78 of 2017 filed by Joseph Kobol and EP No. 79 of 2017 filed by Pastor Bernard Peter Kaku (Pastor Kaku) both filed against the Governor and the Electoral Commission of Papua New Guinea.

6. The principal issue in both petitions is whether the Electoral Commission lawfully declared the Governor as duly elected even though counting of the votes had not properly progressed to the stage where, although the applicant was leading on votes counted, he had not reached the requisite absolute majority of the votes. The Electoral Commission considered “special circumstances” as contemplated by Section 175(1A)(b) of the Organic Law on National and Local-level Government Elections existed for the declaration to be made in favour of the applicant.

7. On 30^th January, 2018, the primary judge issued the following directions in respect of the petition EP No. 79 of 2017:

The Petitioner shall file and serve his affidavits by or before Tuesday 6^th February, 2018.

The respondents shall have 14 days thereafter to file and serve affidavits in response by or before Tuesday 20^th February, 2018.

The Second Respondent shall provide copies of Form 66A and Form 66B by or before Friday 9^th February, 2018.

The application for production of the original writ for the Southern Highlands Provincial Electorate is adjourned until the pre-trial conference.

The petition is adjourned to Wednesday 21^st February, 2018, at 9.30am for pre-trial conference.

(our underlining)

8. Each of the parties were directed to take certain steps before the return date:

Pastor Kaku to file affidavits for trial by 6^th February, 2018.

The Governor to file affidavits in reply by 20^th February, 2018.

The Electoral Commission to provide Forms 66A and Form 66B by 9^th February, 2018.

Pastor Kaku failed to comply with the first direction prompting this application being filed by the Governor pursuant to Rule 18(a) of the Election Petition Rules 2017 for the dismissal of the petition for non-compliance with the court direction.

9. The Governor moved his application when the petition returned to court for pre-trial conference on 21^st February, 2018.

10. Pastor Kaku did not deny the default and through counsel from the bar table offered his explanation for the non-compliance. He also sought to rely on his affidavit in support of filed together with his motion for an extension of time to comply with the directions to file his affidavits for trial.

11. After hearing arguments, the primary Judge refused the Governor’s application and instead extended time for Pastor Kaku to file and serve his affidavits for trial (the Decision).

12. Aggrieved by the Decision, the applicant filed for leave for this review.

Grounds of review

13. Summarized, the grounds for the review are that the primary Judge erred in law:

by not providing adequate and proper reasons for the Decision;

in exercising his discretion to dismiss Mr Powi’s application for dismissal; and

in exercising his discretion to extend time for Pastor Kaku to file his affidavits for trial.

Submissions

14. Counsel for the applicant agreed to focus on the second and third grounds after accepting that the arguments for the first ground could be conveniently covered in discussing the core issue of this review and that is whether the primary Judge properly exercised his discretion when he refused the Governor’s application and then allowed the petitioner further time to file his affidavits.

15. Mr Baniyamai argued that in dismissing his client’s application, the primary Judge acted contrary to the following established legal principles, citing a number of case authorities in support of the arguments:

That election petitions are to be treated as a special category of court cases that require expeditious hearing and determination: Benias Peri v Herowa Agiwa & Electoral Commission (1998) Unreported and unnumbered Supreme Court decision dated 3^rd April, 1998 ; Karo v Kidu (1998) Unreported and unnumbered National Court decision dated 5^th June 1998; Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC589; 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 Angerson Agiru & Electoral Commission (2008) SC948; and Mikki Kaeok v Rimbink Pato (2005) SC877.

That Court orders and directions must be complied with and non-compliance shows disrespect to the court and is at the peril of the defaulting party: Korak Yasona v Casten Maibawa & Electoral Commission (supra); Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983; Daniel Don Kapi v Samuel Abal (supra); Andrew Sallel v James Gelak Gau & Electoral Commission (supra); Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948; Mikki Kaeok v Rimbink Pato (supra); Rambi v Trappe (2012) N4924; Delba Biri v Bill Ninkama [1982] PNGLR 342; Basa v Dadae (2013) N4991; Papo v Electoral Commission (2003) N2350; Benias Peri v Herowa Agiwa & Electoral Commission (supra); and Mendipo v Nali (1998) Unreported and unnumbered National Court decision dated 9^th April 1998; and

That the defaulting party must provide a reasonable explanation for the default and any application for extension of time to comply must be made within the time period for compliance: see Kapi v Abal (supra) and Steven Mendepo v Michael Nali (supra).

16. In the National Court, counsel cited the cases of Korak Yasona v Casten Maibawa & Electoral Commission (supra), Karo v Kidu (supra), Rambi v Trappe (supra) and Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (2012) N4877 in support of the motion to dismiss the petition.

17. Mr Baniyamai stressed to this Court that Pastor Kaku did not provide a reasonable explanation for his default and the primary Judge wrongly accorded prominence to the legal issue raised by the petition which is properly a matter for trial and not a relevant consideration in deciding the Governor’s motion.

18. Counsel for the Electoral Commission essentially supported Mr Baniyamai’s submissions.

19. On the other hand, Mr Diweni for Pastor Kaku urged the Court to find that the primary Judge properly took into account all the relevant considerations and did not err in the exercise of his discretion.

Summary dismissal

20. The Court's power to summarily dismiss a petition for non-compliance with Court directions is set out in Rule 18 of the Election Petition Rules which states:

“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:

(a) order that the petition be dismissed where the defaulting party is the petitioner; or

(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(c) make such other orders as it deems just.”

(our underlining)

21. We note the following principles that emerge from the cited case authorities are not in controversy as between the parties:

Election petitions

That election petitions are special cases to be afforded expedited hearing;

That the onus is on the petitioner to progress the case expeditiously.

Orders and directions

That court directions or orders must be complied with;

That a party unable to comply with a court order or direction within a prescribed time period must formally apply for extension of time to comply.

Summary dismissal for non-compliance

That the court’s power to summarily dismiss an election petition is discretionary;

That the defaulting party must give reasonable explanation for non-compliance;

That the court may consider whether any prejudice has been or will be caused to the other parties as a result of the default;

That the court should also consider the overall interest of justice;

That where a petitioner is the defaulting party, the court may dismiss the petition.

Review

22. This is a review as opposed to an appeal so we re-iterate what the Supreme Court has affirmed regarding the distinction between the two processes. An instructive statement regarding the distinction was expressed by the Supreme Court in the case of Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 as follows:

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.” (our emphasis)

23. The Supreme Court went on to state that it may intervene by judicial review where a Court or authority acts outside its jurisdiction, or where there is error of law on the face of the record, a procedural irregularity or when it is plain that the decision reached is unsustainable in law or reason.

Consideration

24. In deciding the motion by the Governor the primary Judge firstly acknowledged and accepted the applicable legal principles relevant to summary dismissal of an election petition for non-compliance with court orders and the Rules; Transcript, page 39:1-20.

25. His Honour stressed that it is a discretionary exercise whether or not to dismiss a petition for non-compliance. The discretion is to be exercised “on a case by case basis”; Transcript, page 40:24-27.

26. While counsel for the Governor attacked the late filing of the application by the petitioner seeking extension of time, His Honour observed that both the petitioner and the Governor were guilty of belated filing of their respective motions, filed on 20^th February and 21^st February, 2018 respectively.

27. Further, his Honour noted that the Electoral Commission had also filed a motion seeking an extension of time to file its objection to competency of the petition, meaning it was also a defaulting party. His Honour considered there would be no prejudice to the other parties if the applications for extension of time were allowed; Transcript, page 40:31-39.

28. The primary Judge further noted that the affidavits intended to be filed by Pastor Kaku had in fact been filed in the other election petition (EP No. 78 of 2017: Joseph Kobol v Hon. William Powi) which petition raised the same principal legal issue. The petitioner was of the mistaken understanding that both petitions would be consolidated; Transcript, page 39:21-26. On applying for extension of time, the petitioner undertook to have the affidavits redone and filed in the present petition.

29. Ultimately, his Honour decided that the non-compliance was far outweighed by the necessity for the main legal question raised by the petition to be argued properly; Transcript, pages 39:37-41 and 40:1-29. In our view, the primary Judge seems to have had in mind the overall interest of justice as the paramount consideration. It is apparent that in his Honour’s opinion, the main legal issue requires a proper trial and judicial opinion in the interest of the public, and in particular the constituents of Southern Highlands Province.

30. We restate that in deciding whether or not to summarily determine an election petition for non-compliance, the Court shall consider:

if there is a reasonable explanation for the default;

whether the default has or will prejudice the other parties; and

the overall interests of justice.

(Sani Rambi v Koi Trappe & The Electoral Commission (supra); Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (supra); Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385; Korak Yasona v Casten Maibawa and The Electoral Commissioner of Papua New Guinea (supra); Luke Alfred Manase v Don Pomb Poyle (2013) SC1329)

Conclusion

31. From the foregoing, we find no error in the approach taken by the primary Judge in reaching his decision of 21^st February, 2018. We are unable to find that his Honour acted beyond his powers, or that there was an error of law, or that a procedural irregularity was committed or that the decision is clearly unsustainable in law or reason. His Honour was entitled to make the findings he did and arrive at his decision.

32. Accordingly, we refuse the Governor’s application for review with costs in favour of Pastor Kaku only, as the Electoral Commission supported the application for review.

Order

33. The Court orders that:

(a) This application for review is dismissed.
(b) The Registrar shall list the proceedings EP No. 79 of 2017: Pastor Bernard Peter Kaku v William Powi & Electoral Commission of Papua New Guinea for further directions before the Judge Administrator for Election Petitions and the parties advised accordingly.
(c) The applicant shall pay the first respondent’s cost of the application, to be taxed if not otherwise agreed.
(d) Time for entry of these orders is abridged to the time for settlement by the Registrar which shall take place forthwith.

___________________________________________________________
Baniyamai Lawyers: Lawyer for the Applicant
Diweni Lawyers: Lawyer for the First Respondent
Ninkama Lawyers: Lawyer for the Second Respondent