John Simon v Gabriel Lenny Kapris and Others

• Jurisdiction: Papua New Guinea
• Judge: Yagi J
• Judgment Date: 07 November 2022
• Neutral Citation: N10103
• Citation: N10103, 2022-11-07
• Counsel: Mr T. Waisi, for the Petitioner,Mr S. Renewa, for the First Respondent,Mr R. William, for the Second Respondent
• Hearing Date: 25 October 2022,07 November 2022
• Docket Number: EP NO. 09 OF 2022
• Court: National Court

N10103

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 09 OF 2022

In the Matter of a Disputed Return for the Maprik Open Electorate

Between:

John Simon

Petitioner

v.

Gabriel Lenny Kapris

First Respondent

and

Electoral Commission

Second Respondent

Waigani: Yagi J

2022: 25^th October & 07^th November

ELECTION PETITION — PRACTICE & PROCEDURE — application to dismiss the petition, Election Petition (Miscellaneous Amendments) Rules, Rule 18 — non-compliance with court order — failure to serve affidavits within time — whether the Court should strictly apply the requirement of the Rule — law in William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018 considered and applied — requirement for real justice under s. 217 of the Organic Law to be observed — reasonable explanation provided — no serious prejudice suffered — overall interest of justice does not favour dismissal of petition — application refused.

Cases Cited:

Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816

Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342

Daniel Don Kapi v Samuel Abal (2003) N2327

Edward Ekanda Alina v Francis Mulungu Potape & Electoral Commission (2012) N4877

Ginson Saonu v Bob Dadae (2004) SC763

Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983

Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948

Jimson Sauk v Don Pomb Polye (2004) SC769

Jamie Maxton Graham v Electoral Commissioner of PNG (2013) N5385

Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589

Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589

Luke Alfred Manase v Don Pomb Poyle (2013) SC1329

Mikki Kaiok v Rimbink Pato (2005) SC877

Niap v Papua New Guinea Harbours Ltd (2010) N4278

Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110

Philomena Kassman v Kila Igaba (2012) SC1211

Sani Rambi v Koi Trappe (2012) N4924

Sandy Talita v Peter Ipatas & The Electoral Commission (2016) SC1603

Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295

William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018

Counsel:

Mr T. Waisi, for the Petitioner

Mr S. Renewa, for the First Respondent

Mr R. William, for the Second Respondent

Kawat Lawyers: Lawyer for the First Respondent

Niugini Legal Practice: Lawyer for the Second Respondent

RULING

07^th November, 2022

1. Yagi J: This is an application by the first respondent seeking to dismiss the petition under Rule 18(a) of the Election Petition (Miscellaneous Amendment) Rules 2022 (EPR).

2. The application is made pursuant to notice of motion filed on 18 October 2022 and is supported by two affidavits; one filed by the first respondent on 18 October 2022, and the other filed on 24 October by Ivan Nawatz.

3. The following reliefs are sought in the notice of motion:

“1. Pursuant to Rule 18(a) of the Election Petition (Miscellaneous Amendment) Rules 2022, the petition be summarily determined as a result of the Petitioner's failure to comply with the consented directional orders endorsed by the Court on 26th September 2022.”

2. Any others Orders the Court deems fit.

3. Costs be in the cause.”

4. The first respondent's application is contested by the petitioner whilst the second respondent neither support nor oppose the application.

5. The petitioner relies on the affidavits of Charlie Arua and Kini Mamis both filed on 20 October 2022.

6. The relevant facts are; on 26 September 2022 the Court endorsed a draft consent order by the parties in the proceeding. Among the orders, was an order for the petitioner to file and serve the affidavits that he intends to rely upon at trial. The order directed that the affidavits are to be filed by or before 14 October 2022 and it is in these terms:

“3. Pursuant to Rule 13(3)(c) of the Rules, the Petitioner shall file and serve any affidavits to be relied upon on trial by or before 14 October 2022.”

7. The petitioner did not serve the affidavits that he intended to rely upon at trial on the first respondent by Friday, 14 October 2022. The first respondent's lawyer then carried out a search on the court file on 14 October 2022 and discovered that no affidavits were filed by the petitioner pursuant to order # 3. Consequently, the first respondent's lawyer wrote on Monday, 17 October 2022 to the petitioner's lawyer advising of the breach.

8. In late afternoon of 17 October 2022, the petitioner's lawyer attempted to serve the affidavits on the office of the first respondent's lawyer. The first respondent's lawyer declined to accept belated service on the basis of prima facie breach of the order and hence this application was filed.

9. The petitioner opposes the application and relies on affidavits of Charlie Arua and Kini Mamis filed on 20 October 2022. From these two affidavits the following facts can be ascertained. Mr Arua is a legal clerk in the employ of the legal firm — Waisi Lawyers. The firm represents the petitioner in this proceeding. Mr Arua went to the National Court registry with a flash drive containing about 20 affidavits at about 1.00pm. With the assistance of the officer in charge of election petition track, Ms Kini Mamis, all the affidavits were uploaded onto the IECMS system. However, the IECMS system encountered a technical issue and was inoperable or not functional. For that reason, the hard copies of the affidavits were manually processed as from about 3.30pm. Mr Arua then left the registry with the sealed affidavits at about 4.00pm. The sealed copies of the affidavits were to be uploaded to the IECMS later.

10. The first respondent submits that the direction of the Court requires the petitioner to “file and serve” his affidavits by 14 October 2022. Although the petitioner may have technically filed on 14 October he had not served by that date and therefore the Court should exercise its power under Rule 18(a) of the EPR to dismiss the petition. It is submitted the EPR must be strictly complied with and enforced. Counsel for the first respondent, however, concedes the Court's power is discretionary.

11. The petitioner submits the affidavits were filed on 14 October and served on 17 October and in that regard, there was substantial compliance with the court order. In any event it is submitted, among others, there is explanation for non-compliance within time, there is no delay in service, no prejudice was suffered by the first respondent and the interest of justice warrant a refusal of the application. Counsel for the petitioner cited and relied on Niap v Papua New Guinea Harbours Ltd (2010) N4278 which sets out the relevant principles for dismissing a proceeding for want of prosecution.

12. The second respondent neither supported nor opposed the application, however, assisted the Court with case law authorities. Counsel for the second respondent cited the Supreme Court decisions in Luke Alfred Manase v Don Pomb Poyle (2013) SC1329 and Korak Yasona v Casten Maibawa & The Electoral Commissioner (1998) SC589 for the Court's assistance.

13. I accept the first respondent's submission that the Court has a discretionary power to dismiss a petition where the petitioner has failed to comply with a court issued order or direction under Rule 18(a) of the EPR. This Rule states:

“18. Summary determination

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:

(a) order that the petition be dismissed where the defaulting party is the petitioner; or

(b) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(c) make such other orders as it deems just.” [Underlining added]

14. The Supreme Court in Luke Alfred Manase v Don Pomb Polye (supra) said that the principles relevant to exercise of power under Rule 18 of the EPR are:

1. there must be reasonable explanation for default or breach

2. whether there is prejudice caused by the default

3. where the overall interest of justice lie

15. This power has been exercised by the Court on numerous occasions in the past. For example, in Sani Rambi v Koi Trappe (2012) N4924 the petitioner failed to comply with the court direction or order to file his witnesses' affidavits within time. The petitioner conceded to failing to comply with the court order, however, provided an explanation that he fled to his village in fear of his life, as a result of an election-related death where he had no access to communication links and no means to travel into Mt Hagen city to communicate with his lawyers. He was away and out of communication for 8 weeks. The petitioner also had an agent who attended on the lawyer on behalf of the petitioner. The Court found the reasons and explanation provided by the petitioner was incredible and concluded that the petitioner had not taken serious step to comply with the court direction and consequently dismissed the petition.

16. In Edward Ekanda Alina v Francis Mulungu Potape & Electoral Commission (2012) N4877 the Court deliberated on two competing applications; one was by the first respondent to dismiss the petition for the failure by the petitioner to comply with the order to file and serve his affidavits with time specified; and the other was by the petitioner to extend time to comply with the court order. The basic facts are that the Court issued orders, among others, for the parties to take steps...