Opis Papo v Electoral Commissioner and Kappa Yarka; EP 41 of 2002 NCD; Anton Pakena v Electoral Commissioner and Kappa Yarka (2003) N2350

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 24 January 2003
• Court: National Court
• Docket Number: EP 31 of 2002 NCD
• Citation: (2003) N2350
• Year: 2003
• Judgement Number: N2350

Full Title: EP31 of 2002 NCD; Opis Papo v Electoral Commissioner and Kappa Yarka; EP 41 of 2002 NCD; Anton Pakena v Electoral Commissioner and Kappa Yarka (2003) N2350

National Court: 24 January 2003

Judgment Delivered: Sevua J

1 ELECTION PETITION

2 Benedict Pisi v Sam Akoitai (1998) N1763, Albert Karo v Lady Carol Kidu and Electoral Commission (Unnumbered and unreported Supreme Court judgment dated 5 June 1998), Korak Yasona v Castan Maibawa and Electoral Commissioner (Unnumbered and unreported National Court judgment of Sawong J dated 16 June 1998), Benias Peni v Herowa Agiwa and Electoral Commission (Unnumbered and unreported Supreme Court judgment dated 3 April 1998), Stephen Naik Mendepo v Michael Buku Nali (Unnumbered and unreported National Court judgment, 1997) referred to

___________________________

N2350

PAPUA NEW GUINEA

[National Court of Justice]

EP31 of 2002 NCD

BETWEEN

OPIS PAPO

Petitioner

AND

ELECTORAL COMMISSIONER

First Respondent

AND

KAPPA YARKA

Second Respondent

EP 41 of 2002NCD

BETWEEN

ANTON PAKENA

Petitioner

AND

ELECTORAL COMMISSIONER

First Respondent

AND

KAPPA YARKA

Second Respondent

2003 : 24th January

Waigani : Sevua, J

Mr T. Rei for Petitioner in EP31/02

Mr R. Pato for Petitioner in EP41/02

Mr R. Williams for First Respondents in both EP’s

Mr L. Vava for Second Respondents in both EP’s

SEVUA, J: There are four Motions in both Petitions for hearing on 21st January 2003. In both petitions, the First Respondent had filed two motions essentially seeking extension of time to file and serve affidavits since Directions No. 1 on 10th December 2002 was not complied with.

The Petitioner in EP31/2002NCD has also filed a motion on 20th January 2003 seeking that the Second Respondent’s affidavits filed on 18th December 2002 and served on 3rd January 2003 be struck out.

The Second Respondent in EP41/2002NCD had filed a motion on the morning of 21st January 2003, the day the other motions were fixed for hearing. The Court declined to hear that motion because it was not filed prior to the 18th December 2002, which is the date the respondent’s were to file and serve their affidavits.

At the hearing of the First Respondents motions on 21st January, the reasons for non-compliance with the Court’s direction to file and serve affidavits by 18th December 2002 were advanced. It should be noted at this junction that the First Respondent’s notices of notion were said to have been filed on the 18th December 2002. The Court notes that the Notice of Motion in EP31 of 2002 was dated 17th December 2002 and filed on 20th January 2003, while the motion on EP41 of 2002 was dated 18th December 2002 and filed on 20th January 2003.

On 21st January 2003, I instructed that the reason the motions were formally filed on 20th January 2003 was that they were not brought to my attention at the time they were lodged for filing in December last year, that was why I had allocated 21st January 2003 as the hearing date. The Court also instructed that since these two motions were lodged earlier in time, they would be moved first before the Petitioner’s motion in EP31 of 2002, which motion, as alluded to, was filed on 20th January 2003.

It was during that time the Court was attempted to determine exactly how many motions were on foot that Mr. Vava, counsel for the Second Respondent in EP41 of 2002, informed the Court he had filed a motion that morning, re. 21st January 2003, which motion the Court had refused to hear because it wasn’t filed before or on the 18th December 2002.

In both petitions, Mr. Pato, counsel for the Petitioner in EP41 of 2002 submitted that all affidavits filed and served after the 18th December 2002 ought to be struck out as the respondents were merely validating the Court’s directions to file and serve after the date fixed for filing and serving had expired. Mr. William for the Second Respondent in both petitions then informed the Court that some of his clients’ affidavit were filed “yesterday”, being, 25th January 2003.

Mr. Pato relied on the National Court’s decision in Benedict Pisi v. Sam Akoitai and Electoral Commission, N.1763, 3rd September 1998, an unreported judgment of Jalina, J who cited three unreported decisions of the Supreme Court, and one unreported decision of the National Court. It must be noted that these applications were adjourned to this morning for decision because I had indicated to all parties, I needed to peruse these judgments. And now that I have had the liberty to do that, I need to stress some important aspects of those cases that have been referred to.

In Benedict Pisi v. Sam Akoitai and Electoral Commission, the petitioner had failed to comply with several directions to file and serve his affidavits. At the trial, he sought to rely on unsworn and unsigned affidavits. Counsel for the Petitioner also sought leave to rely on affidavits filed on the day prior to trial and not served on the respondents. The respondents objected to leave.

In refusing to grant leave to the petitioner to rely on the unsworn and unsigned affidavits and statements signed after the expiry of the date specified in the Court’s directions on 5th August 1998, ie., the petitioner’s failure to comply with the direction to file and serve his affidavit with seven (7) days, the trial Judge relied on the Supreme Court’s decision in Albert Karo v. Lady Carol Kidu and Electoral Commission, unreported, 5th June 1998, and Benias Peni v. Herowa Agiwa and Electoral Commission, unreported, 3rd April 1998.

The trial Judge also relied on two National Court decisions, Stephen Naik Mendepo v. Michael Buku Nali, unreported, date ?? and Korak Yasona v. Castan Maibawa and Electoral Commissioner, unreported, 16th June 1998.

The most and sole striking feature of all these cases is that the petition in each case had failed to comply with the Court’s directions to file and serve his affidavits. This is not the same as in the present applications.

I have already adverted to the petitioner’s failure to comply with directions to file and serve his affidavits in Benedict Pisi. In Albert Karo v. Lady Carol Kidu and Electoral Commission, the statement by the Supreme Court at Page two (2) of its judgment cited in Benedict Pisi at Page six (6) was attributed to the petitioners – “therefore a person who files an election petition bears a hearing responsibility to ensure that the petition is bought for hearing………….”.

In Benias Peni v. Herowa Agiwa and Electoral Commission, the applicant’s petition had been dismissed and he sought a review pursuant to s.155 (2) (h) of the Constitution. However, the applicant failed to comply with the Supreme Court direction to file a review book by 27th March 1998, which directions was issued on 19th March 1998. The review book was served on the First Respondent on 30th March 1998, three (3) days outside the date fixed for filing and serving. The Court was provided with copies on the date of hearing when there were supposed to have been filed well before the hearing on 2nd September 1998. The review books were even not certified as ……………… by all parties.

I was a member of the Supreme Court which dismissed that application and said amongst other things, “it has been expressed countless times that Election Petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on their speedy dispositions of Election Petitions so that the wishes of the majority expressed in the Election returns and respected. The same argument goes for review applications”. Again, that statement is attributed to petitioners. (my emphasis)

In Korak Yasona v. Castan Maibawa and Electoral Commissioner, the petitioner failed to file and serve his affidavits by the date directed by the Court. He had filed the affidavits, but failed to serve them in pursuance of the order. His petition was dismissed by the National Court. He subsequently filed an application for review in Supreme Court, which was dismissed by the Supreme Court on 5th June 1998.

The Supreme court decision in effect confirmed the National Courts decision to dismiss the petition for non compliance with Court Orders or directions.

I am not sure if the date alluded to, ie. 5th June 1998 is correct as I have not located a copy of that judgment. However, I suspect the date is incorrect because I have perused a copy of the Supreme Court judgment, SC589 of 9th October 1998 in Korak Yasona, which relates to the decision by the National Court in dismissing the petition because of the petitioner’s failure to fully comply with the Court order requiring filing and serving of witnesses affidavits. I wish to refer to that decision.

The Supreme Court (Hinchliffe, Injia and Akuram, JJ) said at page three (3) of its judgment, “……….although the facts of Mendepo v. Nali and Karo v. Kidu are slightly different……..the common factor in all these cases is that the petitioner was not ready to prosecute the petition on the date fixed for trial either because the petitioner and his lawyer were...