Korak Yasona v Casten Maibawa and The Electoral Commissioner of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Injia J, Akuram J
• Judgment Date: 09 October 1998
• Court: Supreme Court
• Citation: (1998) SC589
• Year: 1998
• Judgement Number: SC589

Supreme Court: Hinchliffe J, Injia J, Akuram J

Judgment Delivered: 9 October 1998

SC589

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO. 81 Of 1998

BETWEEN:

KORAK YASONA

-Applicant-

AND:

CASTEN MAIBAWA

-First Respondent-

AND

THE ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

-Second Respondent-

Waigani : Hinchliffe, Injia & Akuram JJ.

1998: August 28th, October 9th

Judicial review — Constitution s 155(2)(b) — Decision of National Court dismissing election petition for petitioner's failure to fully comply with Court order requiring filing and service of witnesse's affidavits — No gross error apparent on face of record — Application dismissed.

Cases cited in the judgment:

Biri v Ninkama [1982] PNGLR 342,

Application by Electoral Commission [1991] PNGLR 372,

Balakau v Torato [1983] PNGLR 242,

SC Rev No 5 of 1998: Re Kasap v Yama [1988-89] PNGLR 97,

Re Kasap -v- Yama [1988-89] PNGLR 197,

SC Rev No 13 of 1998: Peri v Agiru [1998],

SC Rev No 46 of 1998: Mandepo v Nali [1998],

SC Rev No 48 of 1998: Karo v Kidu [1998].

M. Karu for the Applicant.

A. Manase for the First Respondent.

A. Kongri for the Second Respondent.

9th October, 1998

BY THE COURT: This is an application pursuant to s 155(2)(b) of the Constitution seeking review of the decision of the National Court made on 16 June 1998 dismissing election petition No. 21 of 1997.

The application relates to the trial judge's decision to dismiss the petition for the reason of the applicant's failure to prosecute the petition on the date and time the petition was fixed for trial. The petition was fixed for trial on 15 June 1998 at Goroka after a pre-trial conference held at Waigani on 26 May 1998 on which the following orders were made:

"1. The Petitioner (now applicant) is to file and serve affidavits of witnesses by Tuesday 9th June 1998.

2. The Respondents will have one week from 9th June 1998 to reply.

3. By the 17th June 1998, Respondents be at liberty to file although he may do so earlier than 15 June."

On 15 June 1998, at the commencement of the trial, the respondents' lawyers applied to dismiss the petition on the basis that the petitioner had failed to fully comply with the Court order of 26 May 1998 in that:

1. Although the petitioner filed some affidavits on 9 June 1998, they were served on the respondents on 11 June 1997 at 3.30 pm.

2. The petitioner filed one affidavit on 9th June 1998 but served it on the respondents on the day of the trial, that is on 15 June 1998.

3. The petitioner filed and served one affidavit on the day of the trial, that is, on 15 June 1998.

4. The petitioner could not get other witnesses to make affidavits so he wanted to call them to give oral evidence on the day of the trial.

The respondents relied on the principles laid down by the Supreme Court in SCR No 48 of 1998: Karo v Kidu dated 5 June 1998; SCR No. 46 of 1998: Mendepo v Nali dated 9 April 1998 and SCR 13 of 1998: Peri v Agiru dated 3 April 1998.

Counsel for the petitioner admitted the above facts but requested for an extension of a further 2 or 3 days to comply with the order, given the fact that he had partially complied with the Court order. He submitted that the petitioner's late filing and/or service of the affidavits were a minor irregularity or mere technicality which could be easily rectified. Counsel for the petitioner whilst accepting the general principles laid down...