Edward Etepa & 551 Others of the Kome Tribe v Gari Baki, Provincial Operation Commander, Southern Highlands Province and Sam Inguba, the Papua New Guinea Police Commissioner and Thomas Lapan, Police Officer Kagua District, Southern Highlands and Andrew Trawne, Provincial Electoral Returning Officer, Southern Highlands Province and Reuben Kaiulo, Papua New Guinea Electoral Commissioner and the Independent State of Papua New Guinea (2015) SC1502

• Jurisdiction: Papua New Guinea
• Judge: Manuhu J, Kariko J and Murray J
• Judgment Date: 02 December 2015
• Court: Supreme Court
• Citation: (2015) SC1502
• Docket Number: SCA No 50 of 2014
• Year: 2015
• Judgement Number: SC1502

Full Title: SCA No 50 of 2014; Edward Etepa & 551 Others of the Kome Tribe v Gari Baki, Provincial Operation Commander, Southern Highlands Province and Sam Inguba, the Papua New Guinea Police Commissioner and Thomas Lapan, Police Officer Kagua District, Southern Highlands and Andrew Trawne, Provincial Electoral Returning Officer, Southern Highlands Province and Reuben Kaiulo, Papua New Guinea Electoral Commissioner and the Independent State of Papua New Guinea (2015) SC1502

Supreme Court: Manuhu J, Kariko J and Murray J

Judgment Delivered: 2December 2015

SC1502

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 50 OF 2014

EDWARD ETEPA & 551 OTHERS OF THE KOME TRIBE

Appellants

V

GARI BAKI, PROVINCIAL OPERATION COMMANDER, SOUTHERN HIGHLANDS PROVINCE

First Respondent

SAM INGUBA, THE PAPUA NEW GUINEA POLICE COMMISSIONER

Second Respondent

THOMAS LAPAN, POLICE OFFICER KAGUA DISTRICT, SOUTHERN HIGHLANDS PROVINCE

Third Respondent

ANDREW TRAWNE, PROVINCIAL ELECTORAL RETURNING OFFICER, SOUTHERN HIGHLANDS PROVINCE

Fourth Respondent

REUBEN KAIULO, PAPUA NEW GUINEA ELECTORAL COMMISSIONER

Fifth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Respondent

Waigani: Manuhu J, Kariko J and Murray J

2015: 26th October & 2nd December

SUPREME COURT - APPEAL –dismissal of claim for disclosing no reasonable cause of action – claim for negligence - tribal fight between two tribes arising from dispute at polling booth - alleged failure of electoral commission to provide free and fair elections – alleged failure or inaction by police to stop tribal fight - destruction of property owned by a tribe not involved in the tribal fight

PRACTICE & PROCEDURE - dismissal of proceeding following entry of default judgment – whether defence of res judicata or issue estoppel arose – notice of intention to defend & defence filed late - whether defendants entitled to apply for dismissal

Cases cited:

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562

Hami Yawari v Anderson Agiru(2008) N3983

Joshua Giru v Willie Edo(2007) N5032

Ken Fairweather v Jerry Singirok(2013) SC1293

Lina Kewkali v The State(2011) SC1091

Rupundi Maku v Steven Maliwolo & The State (2012) SC1171

William Mel v Coleman Pakalia & Ors(2005) SC790

Overseas cases:

Hill v Chief Constable of West Yorkshire (1987) UKHL 12 (Hill); (1989) AC 53

Legislation:

National Court Rules

Counsel:

Mr B Koke, for the appellants

Mrs P Nii, for the first, second, third & sixth respondents

No appearance for the fourth & fifth respondents

DECISION

2nd December, 2015

1. BY THE COURT: This is an appeal against the decision of the National Court at Mt Hagen given on 6th March 2014 whereby the learned primary Judge dismissed the entire proceedings WS No. 30 of 2006 for not disclosing a reasonable cause of action following an application by the State pursuant to Order 12 Rule 40 of the National Court Rules.

Background

2. In those proceedings, the appellants (as plaintiffs) who are a group of villagers from Kum village in the Mul District of Western Highlands Province claimed damages against the defendants (collectively “the State”) for the destruction of their properties in their village during the course of a fight between two other tribes that started from a polling area in the 2012 national general elections at the Uma Ward, Aiya Local Level Government. The appellants alleged that a polling official from the Electoral Commission failed to properly mark a ballot paper that led to a fight between two groups of supporters that in turn escalated into a fully-blown tribal fight which continued to the applicants’ village where the properties were destroyed. The appellants alleged that the Police failed to provide adequate security at the polling site and failed to prevent the tribal fight occurring. They also alleged that the electoral officer failed to maintain the integrity of the election process which caused the fight. They claimed therefore that the Police and the electoral officer failed in their duty of care and were negligent and as they were servants of the State acting in the course of their duties, the State was vicariously liable for their negligence.

2. When the matter came before the primary Judge, default judgment had already been entered and the matter was pending assessment of damages. On an application by the State, his Honour revisited the issue of liability and dismissed the entire proceedings for not disclosing a reasonable cause of action.

Grounds of appeal

3. The Notice of Appeal lists five (5) grounds of appeal but at the hearing Mr Koke of counsel for the appellants reduced and confined arguments to three grounds that briefly stated are:

(1) That the primary Judge erred in finding that no reasonable cause of action was disclosed; and

(2) That the question of whether there was a reasonable cause of action was previously decided in favour of the appellants and therefore the bar of res judicata applied; and

(3) That the State was not permitted by the National Court Rules to move its application.

Reasonable cause of action

4. In relation to the first ground of appeal, we stress that the appellants have only challenged the primary Judge’s determination that the pleadings disclosed no reasonable cause of action. The appellants argue that their cause of action being the tort of negligence was clearly pleaded in the Statement of Claim. Both in the National Court and on this appeal, the appellants firstly contended that an electoral officer breached his duty to ensure a free and fair election by wrongly marking a ballot paper. This breach of duty caused the argument leading to the tribal fight and the eventual destruction of the appellants’ property in their village some distance away from the polling area. The second leg of their claim was that the Police who have a duty to maintain law and order failed their duty by not providing adequate policemen to stop the fight.

5. It is appropriate therefore that we refer to the pleadings. After introducing the parties in paragraphs 1-7 of the Statement of Claim, the remaining paragraphs purport to plead the facts giving rise to the claim for damages and the basis for the claims. The pleadings are poorly drafted, somewhat convoluted, confusing and not easy-reading. After careful analysis however, it would appear that the appellants claim is for negligence alleging that:

· The electoral officer breached a duty of care to provide a free and fair election (paragraphs 10-13 of the Statement of Claim):

10.The Fourth and Fifth Defendants are being sued under Sections 15 and 16 of the constitution to organize and conduct all elections for Parliament and the legislative arms of the Local-level Governments and make available staff or officials necessary for the discharge of the functions conferred on the Electoral Commission.

11. The First, Second and Third Defendants are further sued for failure to provide effective and complete security whilst the Fourth and Fifth Defendants are sued for failure to ascertain the complete integrity of the electoral process for reasons that the security and integrity of the election process are often interrelated, and that the integrity of the election relies heavily on the security of the election process to preserve the integrity in the essence of s. (1) (a) (b) (c) of the Constitution and consequently the actions and omissions of the Defendants’ herein constitutes breaches of the Section 130, (1) (2) (3) (c ) (d) (e) of the Constitution and therefore this suit dwells on this total negligence of those provisions in the Constitution by the Defendants herein.

12. Further the First, Second and Third Defendants together with the Fourth and Fifth Defendants failed to take great care in ensuing that their personal conduct and performance of their entrusted responsibilities is done professionally, competently, efficiently and beyond questions and therefore in not doing so, they failed to safeguard the integrity and security of a free and fair election in accordance with the provision of the Constitution mentioned in Paragraph 11.

13.The Fourth and Fifth Defendants are further being sued for violation of Section 125 (a) (i) (ii) (iii) (iv) Section (1) & (2), Section (127) (1) (2) and Section (128) (1) (a) (b) (c) (2) (4) of the Constitution and Section 218 (1) of the Organic Law on National Election where error and omissions of the election officials questions the integrity of the votes cast at an election and the election process as a whole, then provided those errors or omissions to be material in that those error and omissions did affect the election in which the whole election has failed on the polling at Uma Ward, Aiya Local Level Government Council, Kagua/Erave Electorate in the Southern Highlands Province and the State through its agencies here declared election process in the electorate a failed election. (Our underlining)

· The Police failed to maintain law and order (paragraphs 9,11, 18 and 20 of the Statement of Claim):

9.The First and Second Defendants are being sued under Sections 196 and 197(1), (a) (b) (2) of...