Application under Section 155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, Luke Alfred Manase v Don Pomb Poyle and the Electoral Commission of Papua New Guinea (2013) SC1329

• Jurisdiction: Papua New Guinea
• Judge: Sakora, Makail & Murray, JJ
• Judgment Date: 17 March 2014
• Court: Supreme Court
• Citation: (2013) SC1329
• Docket Number: SC REVIEW (EP) NO 22 OF 2013
• Year: 2013
• Judgement Number: SC1329

Full Title: SC REVIEW (EP) NO 22 OF 2013; Application under Section 155(2)(B) of the Constitution and in the matter of Part XVIII of the Organic Law on National and Local-Level Government Elections, Luke Alfred Manase v Don Pomb Poyle and the Electoral Commission of Papua New Guinea (2013) SC1329

Supreme Court: Sakora, Makail & Murray, JJ

Judgment Delivered: 17 March 2014

SC1329

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 22 OF 2013

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN

LUKE ALFRED MANASE

Applicant

AND

DON POMB POLYE

First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Sakora, Makail & Murray, JJ

2013: 28th October & 2014: 17th March

SUPREME COURT REVIEW - ELECTION PETITIONS – Application for review – Review of National Court decision – Dismissal of petition for non-compliance with directions – Directions for parties to file and serve written submissions in relation to objection to competency – Non-compliance of – Trial judge’s exercise of discretion – Whether discretion properly exercised – Constitution – s. 155(2)(b) – National Court Election Petition Rules, 2002 (as amended) – Rules 17 & 18.

SUPREME COURT REVIEW - ELECTION PETITIONS – Court directions – Directions for parties to file and serve written submissions in relation to objection to competency – Purpose of – Written submissions aid and enhance hearing of objection to competency – Grounds of objections are set out in the notice of objection to competency – Directions issued as part of Court’s management of election petitions – Timely and expeditious disposition of cases – National Court Election Petition Rules, 2002 (as amended) – Rule 12.

Facts

The applicant and the first respondent were candidates for the Kandep Open electorate in the 2012 General election. The first respondent finished first and was returned as Member. Aggrieved by the result, the applicant filed a petition in the National Court and sought to void the first respondent’s election. He alleged among others, illegal practices, errors and omissions at polling and counting of votes against the respondents. On 04th March 2013, the National Court dismissed the petition on the ground that he failed to comply with Court direction to file and serve written submission to the respondents’ objections to competency. It also ordered the applicant to pay costs and the sum of K5,000.00 as security for costs be paid to the respondents. He sought a review of that decision pursuant to s. 155(2)(b) of the Constitution.

First, the applicant argued that the trial judge erred when he dismissed the petition because there was no direction for him to file and serve written submission and his counsel only “volunteered” to file written submission. Secondly, he argued that the trial judge wrongly exercised his discretion when he, inter-alia, placed so much weight on strict compliance with Court directions and failed to find that since he had filed a belated written submission, the respondents were not adversely prejudiced by the default. Thirdly, the decision was unreasonable because the trial judge was influenced by irrelevant matters such as the tape recording of proceedings and did not give parties opportunity to address the Court on matters raised in it.

Held:

1. As to the first ground, the trial judge correctly held that there were two sets of directions issued by the Court for the applicant to file and serve written submissions to the respondents’ objections to competency. First was on 26th November 2012 and the second on 07th February 2013 and the applicant failed to comply with both of them. Therefore, this ground was dismissed.

2. As to the second ground, the power to summarily dismiss a petition under Rule 18 of the National Court Election Petition Rules, 2002 (as amended) is discretionary and must be exercised on proper principles. The principles are:

(a) Reasonable explanation for the default;

(b) Prejudice caused to the other party by the default; and

(c) The overall interests of justice.

3. The trial judge wrongly exercised his discretion when he placed so much weight on the strict compliance with the Court directions and gave less or no consideration to the question of prejudice and interests of justice.

4. It was not necessary to consider the final ground because the decision of the trial judge was based primarily on the non-compliance with the Court directions of 26th November 2012 and 07th February 2013 and the consideration of the tape recording was merely to confirm and re-affirm his finding that the applicant had failed to comply with these directions.

5. The application for review was upheld, the decision of the National Court of 04th March 2013 was quashed and a re-trial was ordered.

Cases cited:

Joseph Kopol -v- William Titipe Powi & Electoral Commission (2013) N5106

Fly River Provincial Government -v- Pioneer Health Services (2003) SC705

Curtain Bros -v- UPNG (2005) SC788

Issac Lupari -v- Sir Michael Somare & Ors (2010) SC1071

Sakaraias Akap -v- Kenneth Korakali (2012) SC1179

Ezekiel Sigi Anisi -v- Tony Waterupu Aimo (2013) SC1237

Paru Aihi -v- Peter Isoaimo & Electoral Commission (2013) SC1276

Delba Biri -v- Bill Gembogl Ninkama [1982] PNGLR 342

Daniel Don Kapi -v- Samuel Abal & The Electoral Commission (2005) N2856

Korak Yasona -v- Casten Maibawa and The Electoral Commissioner of Papua New Guinea: EP No 21 of 1997 (Unnumbered & Unreported Judgment of 16th June 1998)

Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983

Sani Rambi -v- Koi Trappe & The Electoral Commission (2012) N4925

Siwi Bungo -v- John Robin (2011) N4195

Moi Avei and Electoral Commission -v- Charles Maino [2000] PNGLR 157

Korak Yasona -v- Casten Maibawa and The Electoral Commissioner of Papua New Guinea (1998) SC589

Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354

Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935

Application of Ludwig Patrick Schulze (1998) SC572

Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244

Kasap -v- Yama [1998-1999] PNGLR 81

Application by Ben Semri (2003) SC723

Benedict Pisi -v- Sam Akoita & Electoral Commission (1998) N1763

Opis Papo & Anton Pakena -v- Kappa Yarka (2003) N2350

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

Daniel Bali Tulapi -v- Aiya James Yapa Lagea & Electoral Commission (2012) N4939

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

Counsel:

Mr I Molloy QC with Ms C Copland, for Applicant

Mr P Kak with Mr P Dowa, for First Respondent

Mr R William, for Second Respondent

JUDGMENT

17th March, 2014

1. BY THE COURT: The applicant and the first respondent were candidates for the Kandep Open electorate in the 2012 General election. The first respondent finished first and was returned as Member. Aggrieved by the result, the applicant filed a petition in the National Court and sought to void the first respondent’s election. He alleged among others, illegal practices, errors and omissions at polling and counting of votes against the respondents. On 04th March 2013, the National Court constituted by the Deputy Chief Justice Mr Justice Salika dismissed the petition on the ground that he failed to comply with Court direction to file and serve written submission to the respondents’ objections to competency. It also ordered the applicant to pay costs and the sum of K5,000.00 as security for costs be paid to the respondents. He seeks a review of that decision pursuant to s. 155(2)(b) of the Constitution.

Background

2. This direction was part of a number of directions issued by the Court in its management of this and other election petitions in an effort to dispose of them in an expeditious and timely manner following the 2012 General election. They were issued at the pre-trial conference on 26th November 2012. The specific details of these directions are set out in the minutes of the order taken out by the lawyers for the applicant on 30th November 2012. They are:

“1. This Petition is fixed for three (3) weeks trial commencing Monday 4 March 2013 and ending Friday 22 March 2013.

2. The First and Second Respondents’ Notices of Objection to Competency filed respectively on 19 September 2012 and 19 November 2012 are fixed for hearing on 4 March 2013 at 9:30 am.

3. Summonses are issued to secure the attendance of persons listed 1-10 in Annexure “A” of the Pre-Trial Outline provided by the Petitioner to give evidence at Trial.

4. The First and Second Respondents shall file and serve written Objection to Competency Submissions by Friday 28 December 2012.

5. The Petitioner shall reply to the Respondents’ respective written Submissions by Friday 01 February 2013.

6. A Judge will be assigned for the Trial and parties notified.”

3. On 27th December 2012, the first respondent filed his written...