In the matter of the Organic Law on National and Local-Level Government Elections and in the Matter of disputed returns for the Komo Magarima Open Electorate; Edward Ekanda Alina v Francis Mulunga Potape, Member-elect for Komo Magarima Open Electorate and Mr Raphael Yaki, Returning Officer for Komo Magarima Open Electorate and Andrew Trawen, Chief Electoral Commissioner of Papua New Guinea and The Electoral Commission of Papua New Guinea (2012) N4877

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 09 November 2012
• Court: National Court
• Citation: (2012) N4877
• Docket Number: EP NO 33 of 2012
• Year: 2012
• Judgement Number: N4877

Full Title: EP NO 33 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 Komo Magarima Open Electorate; Edward Ekanda Alina v Francis Mulunga Potape, Member-elect for Komo Magarima Open Electorate and Mr Raphael Yaki, Returning Officer for Komo Magarima Open Electorate and Andrew Trawen, Chief Electoral Commissioner of Papua New Guinea and The Electoral Commission of Papua New Guinea (2012) N4877

National Court: Makail, J

Judgment Delivered: 9 November 2012

N4877

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 33 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 KOMO MAGARIMA OPEN ELECTORATE

BETWEEN

EDWARD EKANDA ALINA

Petitioner

AND

FRANCIS MULUNGA POTAPE,

Member-elect for Komo Magarima Open Electorate

First Respondent

AND

MR RAPHAEL YAKI,

Returning Officer for Komo Magarima Open Electorate

Second Respondent

AND

ANDREW TRAWEN,

Chief Electoral Commissioner of Papua New Guinea

Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Waigani: Makail, J

2012: 08th & 09th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Discretionary – Application arising from election dispute – Directions hearing – Directions for parties to file and serve affidavits – Time fixed for parties to file and serve affidavits – Failure by petitioner to comply with directions – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to extend time – Discretionary – Time to comply with directions – Time to file and serve affidavits – Failure by petitioner to comply with directions – Failure to file and serve affidavits – Explanation for default – Whether satisfactory – Prejudice – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rule 17.

Cases cited:

Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012)

Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) N3983 Daniel Don Kapi -v- Samuel Abal (2005) N2856

Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816

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

Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)

Counsel:

Mr J Kolo, for Petitioner

Ms C Copland, for First Respondent

Ms S Tadabe, for Second Respondent

RULING

09th November, 2012

1. MAKAIL, J: There are two notices of motion for ruling. They are:

1.1. The first respondent’s notice of motion filed on 01st November 2012 seeking dismissal of the petition for failure to comply with Court directions pursuant to Rule 18 of the National Court Election Petition Rules 2002 (as amended) (“EP Rules”); and

1.2. The petitioner’s notice of motion filed on 07th November 2012 seeking Court’s approval on late service of affidavits on the respondents and extension of time to comply with other directions of the Court pursuant to Rule 17 of the EP Rules.

2. The applications arise from an election dispute in respect of Komo-Magarima open electorate in the new Hela Province where the first respondent was returned as member-elect for a second term following the 2012 General Elections. Rule 18 states:

“18. SUMMARY DETERMINATION

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) make such other orders as it deems just.”

3. The power of the Court to summarily dismiss a petition is discretionary. In Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012), a case where the first respondent applied to dismiss the petition for failure to comply with Court directions, namely failure to file and serve affidavits on the respondents, the Court said:

“15. Whether the petition should be dismissed or should remain and the petitioner be given more time to comply with the directions is discretionary. The Court must decide them according to proper principles of law. In my view the principles are first, it must be established that the petitioner defaulted in complying with the Court’s direction, and if he has, secondly whether he has satisfactorily explained the default, thirdly whether the grant of the application will not prejudice the respondents and finally, the overall interests of justice.”

4. Based on the affidavit of Ms Christine Copland sworn on 30th October and filed on 01st November 2012, affidavit of Mr Peter Mision Yaki sworn and filed on 07th November 2012, affidavit in support of Mr Jason Kolo sworn and filed on 07th November 2012 and affidavit of service of Mr Yaki Kale sworn and filed on 07th November 2012, the undisputed facts are:

4.1. On 26th August 2012, the petitioner filed the petition.

4.2. On 26th September 2012, the matter was fixed for directions hearing. Parties appeared and the Court issued the following directions:

4.2.1. Petitioner shall file and serve his affidavits of all the witnesses by or before 10th October 2012.

4.2.2. The Respondents shall file and serve their affidavits of all the witnesses by or before 24th October 2012.

4.2.3. Petitioner to forward a draft Statement of Agreed and Disputed Facts and Legal Issues to the Respondents for comments by 26th October 2012.

4.2.4. Respondents after comments forward draft Statement of Agreed and Disputed Facts and Legal Issues to the Petitioner for finalisation and parties executing same by 31st October 2012.

4.2.5. The Petitioner shall file and serve Statement of Agreed and Disputed Facts and Legal Issues to the Respondents by 02nd November 2012.

4.2.6. Both Petitioner and Respondents are at liberty to file and serve relevant notices under the Evidence Act by 26th October 2012.

4.2.7. The Petitioner shall request in writing to the Electoral Commission to provide the Common Rolls and the Electoral Returns for the Komo Magarima Electorate by or before 02nd November 2012.

4.2.8. The Electoral Commission shall provide the Petitioner or his lawyers with the Common Rolls, Electoral Returns and such other documents in its care and custody as requested by the Petitioner by or before 05th November 2012.

4.2.9. The matter returns to the Court for pre-trial conference on the 07th November 2012.

4.2.10.The matter is fixed for status conference on 02nd November 2012 at 9:30 am.

4.2.11. Time is abridged.

4.3. On 10th October 2012, the petitioner filed an application to extend time to file and serve affidavits and to extend dates for other compliance. The respondents consented to the application and the Court made the following orders:

4.3.1. Petitioner shall file and serve his affidavits of all the witnesses by or before 24th October 2012.

4.3.2. The Respondents shall file and serve their affidavits of all the witnesses by or before 07th November 2012.

4.3.3. Petitioner to forward a draft Statement of Agreed and Disputed Facts and Legal Issues to the Respondents for their comments by or before 09th November 2012.

4.3.4. Respondents shall forward draft Statement of Agreed and Disputed Facts and Legal Issues to the Petitioner for finalisation and parties shall settle upon same by or before 13th November 2012.

4.3.5. The Petitioner shall file and serve Statement of Agreed and Disputed Facts and Legal Issues to the Respondents by or before 15th November 2012.

4.3.6. Both Petitioner and Respondents are at liberty to file and serve relevant notices under the Evidence Act by or before 09th November 2012.

4.3.7. The Petitioner shall request in writing to the Electoral Commission to provide the Common Rolls and the Electoral Returns for the Komo Magarima Electorate by or before 02nd November 2012.

4.3.8. The Electoral Commission shall provide the Petitioner or his lawyers with the Common Rolls, Electoral Returns and such other documents in its care and custody as requested by the Petitioner by or before 05th November 2012.

4.3.9. The matter is fixed for status conference on the 14th November 2012 at 9:30 am.

4.3.10.The matter returns to Court for Pre-trial conference on 18th November 2012 at 9:30 am.

4.3.11. Time is abridged.

4.4. The petitioner failed to serve his witnesses’ affidavits by or before 24th October 2012. As a result, on 01st November 2012, the first respondent filed the application to dismiss the petition.

4.5. On 05th November 2012, the first respondent served the...