In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for The National Capital District Regional Electorate; Michael Kandiu v Powes Parkop and Cyril Retaw, Returning Officer for the National Capital District Provincial Electorate and Election Manager and Ricky Fugunto, Acing Returning Officer for the National Capital District Provincial Electorate and The Electoral Commission of Papua New Guinea (2013) N5093

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 06 March 2013
• Court: National Court
• Citation: (2013) N5093
• Docket Number: EP No 104 of 2012
• Year: 2013
• Judgement Number: N5093

Full Title: EP No 104 of 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for The National Capital District Regional Electorate; Michael Kandiu v Powes Parkop and Cyril Retaw, Returning Officer for the National Capital District Provincial Electorate and Election Manager and Ricky Fugunto, Acing Returning Officer for the National Capital District Provincial Electorate and The Electoral Commission of Papua New Guinea (2013) N5093

National Court: Makail, J

Judgment Delivered: 6 March 2013

N5093

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 104 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NATIONAL CAPITAL DISTRICT REGIONAL ELECTORATE

BETWEEN

MICHAEL KANDIU

Petitioner

AND

POWES PARKOP

First Respondent

AND

CYRIL RETAW, Returning Officer for the National Capital District Provincial Electorate and Election Manager

Second Respondent

AND

RICKY FUGUNTO, Acing Returning Officer for the National Capital District Provincial Electorate

Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Makail, J

2013: 25th February & 06th March

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for extension of time – Time to file and serve affidavits – Time fixed by Court – Default by respondents – Reasons for default – Unsatisfactory – Whether extension will prejudice petitioner – No prejudice established – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 18(ii)&(iii).

ELECTION PETITIONS – PRACTICE & PROCEDURE – Costs – Costs arising from interlocutory application – Discretionary – Directions to file and serve affidavits – Breach of – Non-compliance sign of disrespect of Court orders and directions – Costs ordered against respondents – Deterrence and punitive measure – National Court Election Petition Rules, 2002 (as amended) – Rule 19.

Facts

This is an application for extension of time to file and serve affidavits pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). It was submitted among other reasons, counsel for the second, third and fourth respondents travelled to the village to attend to a death in the family and was sick around the time the affidavits were due for filing and service.

Held:

1. The explanation for the default was unsatisfactory.

2. No prejudice has been established if the application is granted.

3. In order to send a strong warning to the respondents to comply with Court orders and directions, a cost order was made against the second, third and fourth respondents, the costs back-dated to 21st December 2012, the amount calculated in accordance with the rates set out in Schedule 2 of the National Court Election Petition Rules, 2002 (as amended and paid within 7 days of the service of the bill of cost.

4. Leave was granted, time was extended by a further 7 days and the affidavits filed by the second, third and fourth respondents were accepted as being filed within the extended time upon payment of costs.

Cases cited:

Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924

Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937

Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342

Edward Ekanda Alina -v- Francis Potape & Electoral Commission: EP No 33 of 2012 (Unnumbered & Unreported Judgment of 09th November 2012)

Counsel:

Mr P W Korowi, for Petitioner

Ms D Kiene, for First Respondent

Ms A Kimbu, for Second, Third & Fourth Respondents

RULING ON APPLICATION FOR EXTENSION OF TIME

06th March, 2013

1. MAKAIL, J: Pursuant to a notice of motion filed on 14th January 2013, the second, third and fourth respondents move the Court to vary the Court order of 10th December 2012 to file and serve their affidavits out of time. The application is made pursuant to Rule 18(iii) of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”). The application arises from an election petition disputing the election of the first respondent as Governor-elect for National Capital District.

Evidence

2. Parties rely on the following affidavits:

2.1. Affidavit of Alice Kimbu sworn and filed on 14th January 2013;

2.2. Affidavit of Ibert Abe sworn and filed on 08th January 2013;

2.3. Affidavit of Michael Kandiu sworn and filed on 08th January 2013; and

2.4. Affidavit in Response of Michael Kandiu sworn and filed on 13th February 2013.

3. From these affidavits it is not disputed on 10th December 2012, the Court granted extension of time by 14 days to the second, third and fourth respondents to file and serve affidavits by 21st December 2012. This was the first time the Court granted extension of time to them to file and serve affidavits. They failed to file and serve their affidavits by 21st December 2012. The present application is the second application for extension of time. On the date they filed this application, they also filed and served 4 affidavits and later, filed and served 3 on 20th February 2013. In total, they filed and served 7 affidavits and are late by 2 months.

Parties’ Submissions

4. The reasons for the default are, first witnesses were unwilling or unavailable to come forward to give evidence and secondly the fourth respondent’s officers were busy attending to settling unpaid bills rendered by service providers during the election. Thirdly counsel travelled to the village to attend to a death in the family and finally was sick around the time the affidavits were due for filing and service. The petitioner submits the reasons are unsatisfactory and asks the Court to exercise its discretion under Rule 18(ii) to struck out the affidavits and set down the petition for an expedited hearing. He gives the following reasons:

4.1. The application is a reactionary one. It was the petitioner who discovered the default through a search conducted on the Court file on 21st December 2012 which revealed that the second, third and fourth respondents failed to file their affidavits by that date and threatened to move an application for judgment that prompted them to file this application.

4.2. This application is the second request for extension of time.

4.3. The petition concerns the National Capital District Regional seat and the witnesses are expected to be located in Port Moresby and easily located to obtain instructions to prepare affidavits for the trial.

4.4. The illness of counsel is an internal matter for the law firm to sort out. Another lawyer from the firm should have stepped in on behalf of counsel and attended to the filing and service of the affidavits.

4.5. The default amounts to a breach of the Court order of 10th December 2012. Moreover, it is disrespectful of the second, third and fourth respondents.

4.6 He has even sacrificed his holiday in Sydney, Australia to attend the pre-trial conference on 10th January 2013 which unfortunately did not take place.

4.7. It is totally unfair that he has complied with the Court’s directions and the respondents have not. Further, it is unfair that petitioners have their petitions dismissed for failure to comply with Court directions while the respondents are permitted to file and serve affidavits notwithstanding the default.

5. He further submits that the Courts seem to apply double standard in applications of this nature because where the defaulting party is the petitioner, the Court is quick to dismiss the petition for non-compliance with the directions like in the case of Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924 and slow to penalise the defaulting party if it is the respondent like in the case of Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937. For these reasons, the application should be refused and the proceedings be set down for an expedited hearing.

Consideration

6. I address the petitioner’s last point first. There is some merit in it. There is no doubt that the National Court and also the Supreme Court have stressed the importance of parties complying with the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”), the EP Rules and Court directions, especially the petitioners and the onerous burden placed on the petitioners to prosecute them with due despatch. This is because an election petition is no ordinary cause. It challenges the people’s choice of representative in Parliament. A long line of cases starting with Delba Biri -v- Bill Gembogl Ninkama & Ors [1982] PNGLR 342, Daniel Don Kapi -v- Samuel Abal (2005) N2856 to name a few and a few of my own judgments in Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852, Edward Ekanda Alina -v- Francis Potape & Electoral Commission: EP No 33 of 2012 (Unnumbered & Unreported Judgment of 09th November 2012), Sani Rambi (supra) and Nemo Yalo (supra) bear testament to...