Daniel Don Kapi v Samuel Abal and Andrew Trawen Electoral Commissioner of PNG (2005) N2856

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 31 May 2005
• Citation: (2005) N2856
• Docket Number: EP 1 of 2005
• Year: 2005

Full Title: EP 1 of 2005; Daniel Don Kapi v Samuel Abal and Andrew Trawen Electoral Commissioner of PNG (2005) N2856

National Court: Sevua J

Judgment Delivered: 31 May 2005

1 ELECTIONS—Parliament—Election Petitions—Direction Hearings—Directions to file and serve affidavits—Failure to comply—Whether or not petition should be dismissed.

2 Election Petitions—Directions Hearing—Petitioner directed to file and serve affidavits within certain time—Petitioner failed to comply—Petitioner's failure to seek extension of time to file and serve affidavits—No application for extension within the time directed—Whether petition should be dismissed.

3 SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Korak Yasona v Castan Maibawa (1998) SC589, Albert Karo v Carol Kidu (1998) SCR 48 of 1998, Steven Naik Mendepo v Michael Buku Nali (1998) SCR 46 of 1998, Korak Yasona v Castan Maibawa (1998) EP 21 of 1997, Steven Naik Mendepo v Michael Buku Nali (1988) EP 8 of 1997, Benedict Pisi v Sam Akoitai (1998) N1763, Opis Papo and Anton Pakena v Kappa Yarka (2003) N2350, Benias Peri v Herowa Agiwa and The Electoral Commission (1998) SCR 13 of 1998 referred to

Held:

1. Because election petitions are serious matters and not ordinary civil causes of action, parties, especially a petitioner, bears a heavy responsibility in ensuring that the further conduct of his petition through compliance with orders or directions issued by the Court is vital to his challenge.

2. Where a petitioner fails to comply with the orders or directions issued by the Court, his petition will be dismissed.

3. Where a petitioner is directed to comply with any order or direction of the Court in the further conduct of his petition, and the time given him expires, he must promptly come to court to either seek an extension of time or ask for further directions in regard to compliance. Such an application must be filed and made within the time given him to file and serve his affidavits or take any other action.

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Sevua J: By way of a notice of motion filed on 12 May 2005, the second respondent, the Electoral Commissioner of Papua New Guinea, supported by the first respondent, sought an order that this election petition be dismissed for want of prosecution or failure to comply with orders or directions issued by the Court. The applicant also sought an order for costs. The application is supported by the affidavit of counsel, Mr Ray William sworn on 11 May 2005 and filed on 12 May 2005.

The facts are not in dispute. The petitioner, Daniel Don Kapi has challenged the return of the first respondent, Samuel Abal, as the Member of Parliament for the Wabag Open Electorate in Enga Province for the second time since the National General Elections in 2002. The first time the first respondent was returned as elected was following his declaration on 1 August 2002. The petitioner challenged that result in EP 57 of 2002 resulting in the National Court voiding the election of the first respondent and the Court consequently ordered a by election. The current Election Petition EP 1 of 2005 stems from the return of the first respondent as the elected Member of Parliament for Wabag Open Electorate again following the by elections in which the first respondent was declared elected on 29 November 2004.

The petitioner filed his petition on 7 January 2005, although there is an issue involving the filing of two petitions. On 21 March 2005 the parties attended Directions Hearing before Kandakasi J at Waigani, as I was in Madang on circuit. The Court issued several orders or directions in respect of the further conduct of this matter. O4 directed the petitioner to file and serve his witnesses' affidavits by 18 April 2005. The respondents would reply on 25 April 2005. Parties were further directed to meet in conference on 2 May 2005 to discuss witnesses' affidavits; settle agreed and disputed facts, and the legal and factual issues to be tried. The matter was returnable on 16 May 2005 for Pre–Trial Conference.

However, on 16 May 2005 when this matter returned to my Court, neither the petitioner nor his counsel were present in Court. At that time, the Court was informed by Mr William, counsel for the second respondent, that this application was pending. Counsel for the first respondent, Mr Korowi informed the Court that the first respondent also has another application on foot. The Court then adjourned the motions to 1.30pm on Monday, 23 May 2005 for hearing. When we resumed on that date for the hearing of the second respondent's motion, the Court became aware that the petitioner has also filed a motion seeking extension of time to file and serve further affidavits, which is similar to the first respondent's motion. However, the Court declined to hear the petitioner's application as it was filed outside the time limit stipulated for the...