Benedict Pisi v Sam Akoitai and Electoral Commission (1998) N1763

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 03 September 1998
• Court: National Court
• Citation: (1998) N1763
• Year: 1998
• Judgement Number: N1763

National Court: Jalina J

Judgment Delivered: 3 September 1998

N1763

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 57 OF 1997

BENEDICT PISI

Petitioner

AND:

SAM AKOITAI

First Respondent

AND:

ELECTORAL COMMISSION

Second Respondent

Buka: JALINA, J.

1998 : 2 & 3 September

Parliament - Election Petition - Directions to file affidavits by given date - unsworn and unsigned affidavits filed - leave sought to rely upon - filing of unsworn affidavit not constitute compliance - it is an abuse of process - leave should be refused.

Parliament - Election Petition - Nature of Election Petition- not ordinary cause of action- seriousness of - strict compliance necessary for expeditious disposal of petition - failure to comply with directions - leave should be refused.

Practice and Procedure - Election Petition - Filing of Statements and affidavits on trial date - fairness - filing of statements and affidavits on trial date is unfair - leave should be refused.

CASES CITED:

The following cases are cited in the judgment.

KARO -V- KIDU (Unreported Supreme Court decision dated 5 June 1998)

PERI -V- AGIWA (Unreported Supreme Court decision dated 3 April 1998)

MENDIPO -V- NALI (Unreported Supreme Court decision dated 3 April 1998)

YASONA -V- MAIBAWA (Unreported National Court decision dated 16 June 1998)

Mr C. Narokobi for the Petitioner

Mr. J Sirigoi for the first Respondent

Mr A. Kongri for the Second Respondent

RULING ON APPLICATION FOR LEAVE TO RELY ON

UNSWORN AFFIDAVITS AND OTHER EVIDENCE

3rd September 1998

JALINA, J.: A petition disputing the result of the Central Bougainville Open Seat in the National Parliament was filed on 11th August 1997.

At the compulsory conference on 20th October 1997 Sawong, J dismissed the whole of the probation on the basis that it was filed after 40 days allowed for the filing of the Petition. The Petitioner then applied for review by the Supreme Court which reinstated the petition and referred the matter to Sawong, J. to hear objections to various allegations in the petition.

On 5th June 1998 Sawong, J. dismissed most of the grounds of the petition except grounds 8, 9, 10, 22 and 23 which were to proceed to trial. On 9th June 1998 counsel for the parties appeared before the Chief Justice who made orders in the following terms:

“Trial date will be 03/08/98 and end on 14/08/98. The Petitioner is to file and serve witness’ affidavits on respondents by Monday 06/07/98. The respondents have until Monday 27/07/98 to reply by filing and serving on each other and Petitioner all affidavits. Stipulations of primary and uncontested facts ought to be put to Court. Matter returns for further conference and/or directions on Wednesday 29/07/98 at 9.00 am.”

It appears that only one affidavit namely that of the Petitioner Benedict Pisi was filed on 23 June 1998.

On 29 July 1998 Messrs Narokobi, Sirigoi and Kongri appeared before me and the Chief Justice and from my recollection - it appeared that Mr Narokobi had not filed and served the affidavits. Again from my recollection Mr Narokobi explained his failure by saying that he thought the other side was to file and serve their affidavits first. He was told that they could not file and serve their affidavits unless he filed and served his affidavits first as their affidavits were to be affidavits in reply to his affidavits.

The Court then made the following Orders:

“Mr Narokobi shall serve all affidavits he claims to have filed albeit in default of court directions. The trial judge is now available so parties may attend upon His Honour for further direction on Friday 31/07/98 at 9.00 am”.

The trial judge was to be me.

On 31st July 1998 the parties represented by Mr Narokobi (for Petitioner), Mr Sirigoi (for First Respondent) and Dr Nonggor (for Second Respondent) appeared before me and advised that they were not in a position to go to trial in Buka on 5 August as the Respondents needed time to file affidavits in reply. I then directed the parties to appear before the Chief Justice at 9.30 am on Monday 3rd August for further directions.

The same lawyers who appeared before me on 31st July appeared before the Chief Justice on 3rd August. The Chief Justice then directed that the motions filed by the First Respondent on 30 July 1998 and the Petitioner as 31 July 1998 will be heard by a judge to be assigned. Sheehan,J was assigned and on 5th August the matter came up before him. The motions filed by the First Respondent on 30 July 1998 and the Petitioner on 31st July 1998 respectively will be heard on 5 August 1998 by a judge came up before him. The motions do not appear to have been heard and ruled upon. That is irrelevant for purpose of the issue now before me.

The following directions or orders were given however by Sheehan, J:

“(1) Trial to be heard at Buka commencing 31st August 1998.

Petitioner to file and serve affidavits and...