In the matter of the Organic Law on National and Local Level Government Elections and in the matter of a disputed return for the Kabwum Open Electorate in the 2012 General Elections; Patrick Basa v Bob Dadae and Andrew Trawen—Electoral Commissioner of Papua New Guinea (2013) N4991

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu, J
• Judgment Date: 17 January 2013
• Court: National Court
• Citation: (2013) N4991
• Docket Number: EP NO. 45 OF 2012
• Year: 2013
• Judgement Number: N4991

Full Title: EP NO. 45 OF 2012; In the matter of the Organic Law on National and Local Level Government Elections and in the matter of a disputed return for the Kabwum Open Electorate in the 2012 General Elections; Patrick Basa v Bob Dadae and Andrew Trawen—Electoral Commissioner of Papua New Guinea (2013) N4991

National Court: Gavara-Nanu, J

Judgment Delivered: 17 January 2013

N4991

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 45 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF A DISPUTED RETURN FOR THE KABWUM OPEN ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN

PATRICK BASA

Petitioner

AND

BOB DADAE

First Respondent

AND

ANDREW TRAWEN – ELECTORAL COMMISSIONER

OF PAPUA NEW GUINEA

Second Respondent

Waigani: Gavara-Nanu, J

2013: 16 & 17 January

PRACTICE AND PROCEDURE – Organic Law on National and Local Level Government Elections – Power of the Court of Disputed Returns to summarily dismiss a petition – Election Petition Rules 13, 14, 15 and 18 – Failure by a party or parties to comply with directions issued by the Court under rr. 12 and 13 of the Election Petition Rules, 2002 – Obligations of a petitioner to progress a petition to trial discussed.

Facts

On 25th September, 2012, the Court of Disputed Returns (“the Court”) in a directions hearing issued a number of directions, one of which was for “the parties” to prepare, settle and file a Statement of Agreed and Disputed Facts (“the Statement”) by 31st October, 2012. The parties failed to comply with the direction. On 2nd November, 2012, the Court issued a similar direction, this time extending the time for filing and service of the Statement to 8th November, 2012. The parties again failed to comply with this direction. On 9th November, 2012, the Court issued a similar direction for the third time, this time extending the time of filing and service of the Statement to 14th November, 2012. The parties again failed to comply with the direction. On 16th January, 2013, when the matter returned to Court for hearing of the interlocutory applications, the parties still had not filed the Statement.

The respondents each filed a Notice of Objection to Competency challenging the competency of the petition. The second respondent also filed a Notice of Motion seeking Orders to summarily dismiss the petition under Rule 18 (i) of the Election Petition Rules 2002, claiming that the onus was on the petitioner to draft the Statement and that the petitioner had therefore defaulted in not drafting the Statement.

The Court heard the respondents’ Objections to Competency and the second respondent’s Notice of Motion on 16th January, 2013. The Court decided to rule on the second respondent’s Motion first, given that the ruling on the Motion could fully determine the petition.

Held:

1. The Election Petition Rules 2002, are unique and different from other Rules of Court because they regulate the practice and procedure relating to election petition proceedings that are instituted under an Organic Law viz, Organic Law on National and Local Level Government Elections (ss. 206, 207, 208, 209 and 210). Thus the Election Petition Rules are not ordinary Rules that can be regarded lightly. For the reason given, the parties to election petitions have an onerous responsibility to comply strictly with the requirements of the Rules.

2. In this case, although the directions were prima facie issued to the parties, under the accepted rule of practice the petitioner as the party having the primary carriage of the proceeding has the onus to draft the Statement. The persistent and continuing failure by the petitioner to draft the Statement was extraordinarily serious and constituted a default as envisaged by Rule 18 (i) of the Election Petition Rules 2002.

3. The failure by the petitioner to draft the Statement was also tantamount to disobeying the Orders of the Court and, as such, was contemptuous thus warranting the invocation of Rule 18 (i).

Cases cited:

Application of Albert Karo v. Lady Carol Kidu (Unnumbered SCR 48 of 1998 – 5th June, 1998)

Burns Philip (New Guinea) Limited v. Maxine George [1983] PNGLR 55

Daniel Don Kapi v. Samuel Abal (2005) N2856

David Arore v. John Warisan (2008) SC947

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

Hami Yawari v. Anderson Agiru & Electoral Commission (2008) SC948

Korak Yasona v. Castan Maibawa & Electoral Commission of Papua New Guinea SC 589

Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110

PNGBC v. Jeff Tole (2002) SC694

Legislations and other authorities cited:

Constitution of the Independent State of Papua New Guinea

Organic Law on National and Local Level Government Elections

Election Petition Rules, 2002

Counsel:

K. Kawat, for the petitioner

A. Manase, for the first respondent

J. Umbuk, for the second respondent

17th January, 2013

1. GAVARA-NANU J: The respondents have each filed an objection to competency challenging the competency of the petition (“objection”). The first objection to competency is by the first respondent. The principal ground of this objection is that the petitioner has failed to plead the relevant and material facts constituting and establishing the necessary elements of the grounds for the petition, viz; bribery and undue influence allegedly committed by the first respondent’s supporters in the 2012, general elections with the knowledge and authority of the first respondent. This objection is filed pursuant to s. 208 (a) of the Organic Law on National and Local Level Government Elections (“OLNLE”) and rr. 15 and 18 of the Election Petition Rules (“the Rules”). It was filed on 26th September, 2012.

2. The second objection to competency is by the second respondent, it was filed pursuant to s. 208 (d) of the OLNLE. It was filed on 7th January, 2013. The ground of the objection is that the purported attestation of the petition by two witnesses does not meet the requirements of s. 208 (d).

3. In their respective objections to competency the respondents claim that the petition is incompetent and should be summarily dismissed.

4. Section 208 (a) and (d) are in these terms:

208. Requisites of petition

A petitioner shall –

(a) set out the facts relied on to invalidate the election or return; and

(b) ------

(c) ------

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) ------

5. On 8th January, 2013, the second respondent also filed a Notice of Motion seeking orders to summarily dismiss the petition pursuant to rr. 13, 14, 15 and 18 (i). It is submitted that the petitioner failed to comply with the directions issued respectively by the Court on 25th September, 2012, and 9th November, 2012, in which the parties were first directed to file and serve a Statement of Agreed and Disputed Facts (“the Statement”) by 31st October, 2012, and then later by 14th November, 2012. The second respondent argues that the failure by the petitioner to comply with the directions of the Court amounted to a default as envisaged by r. 18 (i), and that the petition should therefore be summarily dismissed.

6. The second respondent argues that under the accepted rule of practice, after the Court issued the first direction on 25th September, 2012, the onus was on the petitioner to draft the Statement, serve it on the respondents for their comments and then after receiving the respondents’ comments the petitioner should have filed and served the settled Statement (which would have also included the issues for trial) by 31st October, 2012.

7. The second respondent’s Motion, raises issues of law relating to procedure which can be quite easily and conveniently addressed, whereas the two objections to competency by the respondents raise complex issues of substantive law. It is therefore convenient to address the second respondent’s Motion first, considering also that if the application is successful the ruling should effectively bring the proceeding to an end.

8. Before considering the merits of the Motion, it should be noted at the outset that the facts relating to certain issues raised in the Motion are not in dispute. For instance, there is no dispute that the parties have not complied with the respective directions issued by the Court on 25th September, 2012 and 9th November, 2012, regarding filing and service of the Statement. There is also no dispute that the directions were binding on the parties. In this regard, the Court also notes that the petitioner on his part concedes that he failed to draft the Statement. In making this concession, the petitioner asked the Court to give him more time to comply with the Court’s directions.

9. The relevant part of the directions issued by the Court on 25th September, 2012, is in paragraph 6, which reads:

6. Parties shall prepare, settle and file a Statement of Agreed & Disputed Facts and Issues for trial by or before Wednesday 31st October, 2012.

10. And the relevant part of the directions given on 9th November, 2012, is in paragraph 1, which reads:

1. The parties (sic.) settle the...