Francis Koimanrea v Alois Sumunda, The Electoral Commission of Papua New Guinea and Paul Tiensten (2003) N2421

• Jurisdiction: Papua New Guinea
• Judge: Sakora J
• Judgment Date: 13 March 2003
• Court: National Court
• Citation: [2003] PNGLR 264
• Docket Number: EP No 1 of 2002
• Year: 2003
• Judgement Number: N2421

Full Title: EP No 1 of 2002; Francis Koimanrea v Alois Sumunda, The Electoral Commission of Papua New Guinea and Paul Tiensten (2003) N2421

National Court: Sakora J

Judgment Delivered: 13 March 2003

N2421

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 1 of 2002

BETWEEN

FRANCIS KOIMANREA

Petitioner

AND:

ALOIS SUMUNDA

1st Respondent

AND:

THE ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

2nd Respondent

AND:

PAUL TIENSTEN

3rd Respondent

Kokopo: Sakora J

2003 : 10, 11 & 13th March

D. Lidgett & E. Suelip for the Petitioner.

Petitioner on his own behalf.

J. Nonggorr for the 1st & 2nd Respondents.

A. Baniyamai for the 3rd Respondent.

DECISION

13th March 2003

SAKORA J: By a Notice of Objection filed 11 October 2002, the third Respondent objected to the competency of the petition on the basis that all the allegations made and intended therein to invalidate the election and return in the 2002 Pomio Open general elections did not comply with the requirements of s 208 (a) Organic Law on National and Local-level Government Elections (the Organic Law). Thus, the third respondent sought and seeks the declaration that the petition is incompetent and should be struck out with costs.

Introduction

This objection is supported in all respects by the first and second Respondents. As the objection raised the crucial threshold issue of the jurisdiction of this Court pursuant to the combined effects of ss 206, 208, 209 and 210 Organic Law, the objection was heard on the first day of the proceedings. That is to say, I heard both Mr Baniyamai and Dr Nonggorr, counsel for and on behalf of the third and first and second Respondents respectively, whereupon Mr Lidgett (appearing with Ms Suelip) for the Petitioner rose to seek adjournment till the next morning to, as he put it, enable fresh instructions to be obtained in the light of the detailed submissions of the Respondents. There being no objections from the Respondents the Court granted the adjournment.

Upon resumption, Mr Lidgett of counsel rose to advise the Court that the Petitioner wished to present his submissions in response to those of the Respondents personally. Counsel further advised that the opportunity of the adjournment had enabled the Petitioner to be apprised fully of the legal position, following which it was Mr Koimanrea’s wish and instructions that leave be sought for him to present his arguments himself. It was intimated in this respect that the Petitioner himself would be better able to put before the Court his exact views on the matter.

It would appear that the intention was that, whilst Mr Lidgett and Ms Suelip would remain on record as counsel for the Petitioner, he would take over, as it were, temporarily and address from the Bar table on the objection to competency, at the end of which counsel and client would revert to their former positions and relationship.

Upon hearing both Mr Baniyamai and Dr Nonggorr on this somewhat unusual situation, both counsel greatly assisting with pertinent and helpful comments, the Court was able to properly rule on the Petitioner’s request.

It should be stated that what was being sought and intended was unusual only because of the provisions of s 222 Organic Law and the orders of the Court in the Directions Hearing of this matter on 7 November 2002. Section 222 reads, in its entirety, as follows:

222. Counsel or solicitor

(223) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(224) In no case shall more than one counsel appear on behalf of the party.

Subsection (1) of the provision having been complied with, the Court gave direction that the Petitioner would be represented by Michael Wilson of Warner Shand Lawyers.

Both counsel for the Respondents upon being confronted with two counsel appearing for the Petitioner on the commencement of the proceedings, in defiance of the Court’s directions (supra) were, nevertheless, gracious enough to not raise any objections that they would have been entitled to, and were at liberty to. Then on the second day of the proceedings, after their own submissions, were faced once again with another unusual and unexpected situation. I pause to note that the Court has also been subjected to similar situations. One cannot resist the temptation to ask as to what more and unexpected events await this proceedings.

The Court does not wish to be sounding censorious or any such thing, but there is the recurring thought from these unusual developments following the initial drafting and filing of the petition itself that there has not been a proper appreciation, and acknowledgement, of the law’s requirements for challenging the propriety and integrity of the particular election and its return.

As I comment and emphasise in due course in the judgment, the law on this subject is well settled. So much so that it can, and does, properly attract the epithet trite law, unless and until the Supreme Court is persuaded in an appropriate case to renege or go back on its previous authoritative interpretative pronouncements, or the Parliament in its collective wisdom changes this law, whichever comes first.

After a brief adjournment counsel for the Petitioner indicated that their position as stated earlier remained and that they should be granted leave to withdraw and the Petitioner assume the future conduct of the petition. Fully appreciating counsel’s position as untenable and that we could not have the untidy and uncertain situation of the two counsel and their client representing the client, at the same, in defiance of the terms of s 222 Organic Law, granted Mr Lidgett and Ms Suelip leave to withdraw from the case, notice of such withdrawal to be formally filed with the Court soon after.

I note that I did made certain comments in relation to this in my formal ruling. These are on the Court’s record and there is no need to restate those here, except only to note that in granting Mr Koimanrea (only because on record he had been represented by legal counsel) leave to represent himself, this Court acknowledged his original right.

Upon counsel’s withdrawal, Mr Koimanrea assumed his position at the Bar table and proceeded to respond to the objections. With the intention only to put on record what has transpired here, I must respectfully note that what was meant by “the Petitioner himself would be better able to put before the Court his exact views of the matter (petition)” became immediately and abundantly clear.

General Comments

As a very large portion of the Petitioner’s submissions in response to the respective submissions of the three Respondents on their objection to the competency of this petition was devoted to telling and admonishing this Court as to how it should go about discharging its duties and functions in this instance, it becomes necessary that a few home truths about the powers and functions, not to mention the duties, of our Courts of law should be told at this juncture. This entails, unfortunately, some introductory lessons on Constitutional concepts and principles.

The passionate submissions of Mr Koimanrea which, if I may respectfully suggest, are reflective of his well known skilled oratory, were directed basically at this Court ignoring or going behind and beyond the applicable law so as to enable the serious allegations he has leveled against the Respondents to be tried. It is his recurring call that only when this Court accedes to his wish for the petition to go to trial will justice, fairness and due process prevail.

But justice and fairness, and due process, important concepts that they are, and thus forming part and parcel of a civilised and democratic system, are not absolutes operating on their own and in complete isolation from all other democratic concepts and principles. Justice and fairness are not one-way streets, such that they would only apply to protect the rights and interests of losing candidates in elections, such as the Petitioner here....