Daniel Don Kapi v Samuel Abal and Andrew Trawen Electoral Commissioner of PNG (2005) N2856

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 31 May 2005
• Court: National Court
• Docket Number: EP 1 of 2005
• Citation: (2005) N2856
• Year: 2005
• Judgement Number: N2856

Full Title: EP 01 of 2005; Daniel Don Kapi v Samuel Abal and Andrew Trawen Electoral Commissioner of PNG (2005) N2856

National Court: Sevua, J

Judgment Delivered: 31 May 2005

PAPUA NEW GUINEA

[In the National Court of Justice]

EP 01 of 2005

BETWEEN

DANIEL DON KAPI

Petitioner

AND

SAMUEL ABAL

First Respondent

AND

ANDREW TRAWEN

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

Second Respondent

Waigani : Sevua, J

2005 : 23rd & 31st May

ELECTIONS - Parliament – Election Petitions – Direction Hearings – Directions to file and serve affidavits – Failure to comply – Whether or not petition should be dismissed.

Election Petitions – Directions Hearing – Petitioner directed to file and serve affidavits within certain time – Petitioner failed to comply - Petitioner’s failure to seek extension of time to file and serve affidavits – No application for extension within the time directed – Whether petition should be dismissed.

Held: 1. Because election petitions are serious matters and not ordinary civil causes of

action, parties, especially a petitioner, bears a heavy responsibility in ensuring that the further conduct of his petition through compliance with orders or directions issued by the Court is vital to his challenge.

2 Where a petitioner fails to comply with the orders or directions issued by the Court, his petition will be dismissed.

3 Where a petitioner is directed to comply with any order or direction of the Court in the further conduct of his petition, and the time given him expires, he must promptly come to court to either seek an extension of time or ask for further directions in regard to compliance. Such an application must be filed and made within the time given him to file and serve his affidavits or take any other action.

Cases cited:

Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342.

Korak Yasona v. Castan Maibawa & Electoral Commissioner of Papua New Guinea (1988) unreported, SC 589, 9th October 1998 (Hinchliffe, Injia & Akuram, JJ).

In the Application of Albert Karo (1998) unreported and unnumbered, 5th June 1998 (SCR 48 of 1998) (Los, Woods & Sawong, JJ).

Steven Naik Mendepo v. Michael Buku Nali (1998) unreported and unnumbered, (SCR 46 of 1998) 5th June 1998 (Amet, CJ, Sakora & Sevua, JJ).

Korak Yasona v. Castan Maibawa & Electoral Commission (1998) unreported and unnumbered, (EP 21 of 1997) 16th June 1998 (Sawong, J).

Steven Naik Mendepo v. Michael Buku Nali (1998) unnumbered and unreported (EP 8 of 1997) 9th April 1998 (Andrew, J).

Benedict Pisi v. Sam Akoitai & Electoral Commission, (1998) unreported, (EP 57 of 1997) N.1763, 3rd September 1998, (Jalina, J).

Opis Papo v. Electoral Commission & Kappa Yarka & Anton Pakena v. Electoral Commission & Kappa Yarka (2003) unreported, N.2350, (EP 31 of 2002 & EP 41 of 2002) 24th January 2003 (Sevua, J).

Benias Peri v. Herowa Agiwa & Electoral Commission (1998) unreported and unnumbered, (SCR 13 of 1998) 3rd April 1988 (Amet, CJ, Jalina & Sevua, JJ).

Mr. P. Parkop for Petititioner

Mr. P. Korowi for First Respondent

Mr. R. William for Second Respondent

31st May 2005

SEVUA, J : By way of a notice of motion filed on 12th May 2005, the second respondent, the Electoral Commissioner of Papua New Guinea, supported by the first respondent, sought an order that this election petition be dismissed for want of prosecution or failure to comply with orders or directions issued by the Court. The applicant also sought an order for costs. The application is supported by the affidavit of counsel, Mr. Ray William sworn on 11th May 2005 and filed on 12th May 2005.

The facts are not in dispute. The petitioner, Daniel Don Kapi has challenged the return of the first respondent, Samuel Abal, as the Member of Parliament for the Wabag Open Electorate in Enga Province for the second time since the National General Elections in 2002. The first time the first respondent was returned as elected was following his declaration on 1st August 2002. The petitioner challenged that result in EP 57 of 2002 resulting in the National Court voiding the election of the first respondent and the Court consequently ordered a by election. The current Election Petition EP 01 of 2005 stems from the return of the first respondent as the elected Member of Parliament for Wabag Open Electorate again following the by elections in which the first respondent was declared elected on 29th November 2004.

The petitioner filed his petition on 7th January 2005, although there is an issue involving the filing of two petitions. On 21st March 2005 the parties attended Directions Hearing before Kandakasi, J at Waigani, as I was in Madang on circuit. The Court issued several orders or directions in respect of the further conduct of this matter. Order No. 4 directed the petitioner to file and serve his witnesses’ affidavits by 18th April 2005. The respondents would reply on 25th April 2005. Parties were further directed to meet in conference on 2nd May 2005 to discuss witnesses’ affidavits; settle agreed and disputed facts, and the legal and factual issues to be tried. The matter was returnable on 16th May 2005 for Pre-Trial Conference.

However, on 16th May 2005 when this matter returned to my Court, neither the petitioner nor his counsel were present in Court. At that time, the Court was informed by Mr. William, counsel for the second respondent, that this application was pending. Counsel for the first respondent, Mr. Korowi informed the Court that the first respondent also has another application on foot. The Court then adjourned the motions to 1.30pm on Monday, 23rd May 2005 for hearing. When we resumed on that date for the hearing of the second respondent’s motion, the Court became aware that the petitioner has also filed a motion seeking extension of time to file and serve further affidavits, which is similar to the first respondent’s motion. However, the Court declined to hear the petitioner’s application as it was filed outside the time limit stipulated for the filing and service of his witnesses’ affidavits.

The evidence in support of the second respondent’s application came from the affidavit of counsel, Mr. William. The evidence is essentially undisputed. The affidavit confirmed the directions issued by the Court on 21st March 2005, that the petitioner was to file and serve his witnesses’ affidavits by 18th April 2005. Three affidavits were filed in accordance with that order, however, they were not served until 19th April 2005. Other matters alluded to from the directions orders are confirmed in that affidavit. That is, a conference was ordered to be held on 2nd May 2005 to discuss and settle witnesses’ affidavits; statement of agreed and disputed facts, and the legal issues for trial. The Court further ordered that the statements of agreed and disputed facts and legal issues, to be settled and endorsed by the parties, were to be filed on 9th May 2005. The petitioner has breached or failed to comply with those orders. It is therefore the submission of the second respondent that the petition be dismissed for failure to comply with Court orders.

Counsel for the first respondent, Mr. Korowi, supported the second respondent’s application and submissions. He referred to two affidavits sworn by the first respondent on 7th February and 4th May 2005 respectively. It is not necessary to canvass those affidavits. I think the main submission by the first respondent is that the petition should be dismissed. As the Court alluded to, the first respondent is supporting the second respondent’s motion, because the petitioner’s failure directly affected compliance by the first respondent and prejudiced his position.

The petitioner’s counsel, Mr. Parkop relied on the petitioner’s affidavit sworn on 13th May 2005 and filed on 16th May 2005 in support of his notice of motion filed on 20th May 2005. In essence, counsel said that the petitioner admits that he failed to comply with the directions, the subject of this application, but submitted that the petitioner had filed three affidavits and required further time to file more affidavits. In fact, in his client’s notice of motion, counsel said the petitioner will be seeking an order to extend the time to file and serve further affidavits. He therefore submitted that the Court should allow the petition to go to substantive trial, in spite of the failure by the petitioner.

I think the law on the issue of non-compliance with orders or directions of the Court has already been settled in a number of cases decided by the Supreme Court. The National Court has also determined a few cases. Counsel for the applicant has referred the Court to a few of those cases which I propose to discuss.

First and foremost, the Court refers to the authoratative decision of the Supreme Court in Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342 and the oft cited phrase that an election petition is a serious matter and is no ordinary cause of action. I cite the full excerpt from that decision at p.345: -

An election petition is not an ordinary cause (In Re The Norwich Election Petitions; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict...