In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Southern Highlands Provincial Electorate; Joseph Kopol v William Titpe Powi and the Electoral Commission of Papua New Guinea (2013) N5106

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 25 March 2013
• Court: National Court
• Citation: (2013) N5106
• Docket Number: EP NO 80 OF 2012
• Year: 2013
• Judgement Number: N5106

Full Title: EP NO 80 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 Southern Highlands Provincial Electorate; Joseph Kopol v William Titpe Powi and the Electoral Commission of Papua New Guinea (2013) N5106

National Court: Makail, J

Judgment Delivered: 25 March 2013

N5106

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 80 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 SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN

JOSEPH KOPOL

Petitioner

AND

WILLIAM TITPE POWI

First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2013: 22nd & 25th March

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Failure to comply with Court direction – Direction to file and serve written submissions on objection to competency – Reasons for default – Whether satisfactory – Prejudice – Whether respondents prejudiced by default – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dispense with comply with Court direction – Application arising from election dispute – Direction to file and serve written submissions on objection to competency – Reasons of – Whether satisfactory - Prejudice – Whether respondents prejudiced by default – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 17.

Facts

There are two applications for ruling. They are the petitioner’s application to dispense with compliance with Court direction to file and serve written submissions in relation to the objection to competency and for the Court to allow one that was filed out of time to remain pursuant to Rule 17 of the National Court Election Petition Rules 2002 (as amended) and the first respondent’s application to dismiss the proceedings for want of compliance with Court directions to file and serve written submissions in relation to the objection to competency pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. The explanation for the default that the petitioner’s lawyers inadvertently overlooked the filing and serving of the written submission and that lawyer having conduct of the petition was on leave at that time are unsatisfactory. Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) 4877, Nemo Yalo -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4937 and Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093 referred to.

2. The petition has progressed to a stage where it is ready for trial, trial dates having been allocated and that the respondents have been served with a copy of the petitioner’s written submission, no serious prejudice has been established to justify dismissal of the petition.

3. Serious allegations of errors and omissions during polling and counting have been raised in the petition, that parties have progressed the petition to the stage where it is awaiting the dates for trial to arrive to commence trial and that the petitioner has belatedly filed and served the written submissions, in the interests of justice, the late filing and service of the written submission is allowed.

Cases cited:

Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349

Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852 Daniel Don Kapi -v- Sam Abal & Ors (2005) N2856

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

Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948 Walter Schnaubelt -v- Baron Chan & Electoral Commission (2012) N4791

Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission: EP No 14 of 2012 (Unnumbered & Unreported Judgment of 04th March 2013)

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

Michael Kandiu -v- Powes Parkop & Electoral Commission (2013) N5093

Counsel:

Ms C Copeland, for Petitioner

Mr A Baniyamai, for First Respondent

Mr K Kepo, for Second Respondent

RULING

25th March, 2013

1. MAKAIL, J: There are two applications for ruling. They are:

1.1. The petitioner’s application to dispense with compliance with Court direction to file and serve written submissions in relation to the objection to competency and for the Court to allow one that was filed out of time to remain pursuant to Rule 17 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”) and

1.2. The first respondent’s application to dismiss the proceedings for want of compliance with Court directions to file and serve written submissions in relation to the objection to competency pursuant to Rule 18 of the EP Rules.

Background Facts

2. These applications arise from an election petition disputing the election of the first respondent as Governor of Southern Highlands Province in the 2012 General Elections. Parties rely on the following affidavits in support of their respective applications:

2.1. Affidavit of Christine Copland sworn and filed on 06th March 2013,

2.2. Affidavit of Kylie Najike sworn and filed on 06th March 2013 and

2.3. Affidavit of Anna Wargem sworn on 07th March and filed on 08th March 2013.

3. From these affidavits, the undisputed facts are, on 29th November 2012, the Court directed parties to file and serve written submissions in relation to an objection to competency filed by the first respondent. The respondents were to comply with this direction by 25th January 2013 and the petitioner by 01st March 2013. The respondents filed and served their written submissions on 25th January 2013. The petitioner did not. He says it was his lawyers’ inadvertence that they did not file one by the due date and that the lawyer having conduct of this matter was on leave at that time.

Parties’ Submissions

4. Both applications call for the Court’s exercise of discretion. Counsel for the parties correctly canvassed the principles upon which the discretion is exercised in their respective submissions. These are the reasons for the default, whether they are satisfactory, the prejudice, whether the granting of the application will prejudice the other party and whether it is in the interests of justice that the application should be granted.

5. Ms Copland of counsel for the petitioner submits the petitioner has satisfactorily explained the default and should be allowed to file and serve the written submissions out of time. In any case, one has been filed and served on the respondents on 06th March 2013 and the respondents should be ready for arguments at trial. She further submits that no real prejudice will be suffered by the respondents if the application is granted. She adds that if the respondents claim that they are being prejudiced by the late filing of the submission, they have a right to apply to vacate the trial date and have the petition relisted for hearing on another date, by which time they should be ready to argue the objection to competency. She relies on the case of Edward Ekanda Alina -v- Francis Potape & Electoral Commission (2012) N4877.

6. Mr Baniyamai of counsel for the first respondent and joined by Mr Kepo of counsel for the second respondent submit that the petition be dismissed because the petitioner failed to file and serve written submissions within the time fixed by the Court. They emphasise that the petitioner is in default of a Court direction and such is not only a breach of the Court order but is disrespectful. As an election petition is a serious matter, the petitioner as the party prosecuting it bears a heavy burden to ensure that it is prosecuted expeditiously. A failure to comply with the Court’s direction should be visited with an order for dismissal. They rely on the cases of SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349, Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission (2012) N4852, Daniel Don Kapi -v- Sam Abal & Ors (2005) N2856 and Sani Rambi -v- Koi Trappe & Electoral Commission (2012) N4924, to support their submissions.

7. As to the reasons for the default, they rely on the cases of Edward Ekanda Alina (supra), Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948, Walter Schnaubelt -v- Baron Chan & Electoral Commission (2012) N4791 and Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission: EP No 14 of 2012 (Unnumbered & Unreported Judgment of 04th March 2013) and submit that the inadvertence of lawyers and the lawyer having conduct of this petition was on leave are unsatisfactory. They add that the petitioner had four months to prepare his submission. They calculate four months from the date the Court issued directions of 29th November 2012 to the date fixed by the Court for filing and serving submission of 01st March 2013. As to the question of prejudice, they submit that the delay in concluding the petition has undermined the first respondent’s leadership and denied the people of the...