Labi Amaiu v John Kaupa

• Jurisdiction: Papua New Guinea
• Judge: Liosi J
• Judgment Date: 11 April 2018
• Citation: (2018) N7266
• Court: National Court
• Year: 2018
• Judgement Number: N7266

Full : EP No 67 of 2017; In the matter of disputed return for the Port Moresby North East Open Electorate; Labi Amaiu v John Kaupa and the Electoral Commission of Papua New Guinea (2018) N7266

National Court: Liosi J

Judgment Delivered: 11 April 2018

N7266

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 67 OF 2017

IN THE MATTER OF DISPUTED RETURN FOR THE

PORT MORESBY NORTH EAST OPEN ELECTORATE

BETWEEN

LABI AMAIU

Petitioner

AND:

JOHN KAUPA

First Respondent

AND:

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: LIOSI J

2018: 9th & 11 April

ELECTION PETITIONS – Application to dismiss 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 – Discretion to be properly exercised on proper principles – Constitution – s. 155 (2) (b) – National Court Election Petition Rules 2017.

Cases cited:

Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853

Jamie Maxtone Graham v. Electoral Commission of PNG (2013) N5211

Joseph Kopol v. William Powi (2013) N5106

Jimson Sauk v. Don Pomb Polye (2004) SC 769

Luke Alfred Manase v. Don Pomb Polye & Electoral Commission (2014) SC1329 Peter Wararu Waranaka v. Andrew Trawen & others (2012) N4815

Vari Vele v. Powes Pakop (2008) SC945

Counsels:

Mr. J Napu, for the Applicant/First Respondent

Mr. S Ranewa, for the Applicant/Second Respondent

Mr. S Liria, for the Respondent /Petitioner

RULING

11th April, 2018

1. LIOSI J: By a Notice of Motion filed on the 7th March 2018, the First Responded moves the court that pursuant to Rule 18(a) of the Election Petition Rules 2017 EP No. 67 of 2017 between Labi Amaiu Petitioner and John Kaupa First Respondent and Electoral Commissioner Second Respondent be dismissed in its entirety for failing to comply with directions orders of 20th November 2017. The Second Respondent supports the motion.

2. By way of a cross-motion filed on 12th March 2018. The petitioner seeks leave to file and serve its submission on the objection to competency out of time. The motions were heard on Monday 9th April and were adjourned to this morning for ruling. This is the ruling.

Facts

3. The applicant and the respondent were candidates for the Port Moresby North East Open Electorate in the 2017 General Elections. The first respondent finished first and was declared winner. Aggrieved by the results, the applicant filed a petition in the National Court seeking to void the first respondent’s election. He alledged amongst others, illegal practices, errors and omissions at the polling. On the 20th November 2017, the court issued certain directional orders. One of them was to file and serve written submissions on the objection to competency by or before Friday 2nd March 2018. (Order No. 6). On 13th February 2018, among other orders, the court confirmed the due date of filing and serving the submissions to the objections to competency by the parties on 2nd March 2018.

4. In compliance with the above 2 orders, the first and second respondents filed and served their respective submissions. The petitioner failed to comply with such orders of the court. On 7th March 2018, the first respondent filed its motion pursuant to Rule 18(a) of the Election Petition Rules 2017 to have the entire petition dismissed summarily for failing to comply with directions order of 20th November 2017.

5. On the 12th March 2018, the petitioner belatedly filed a motion seeking extension of time to file and serve his submission on the respondents. The motion was supported by an affidavit which annexed a draft copy of the petitioner’s written submission. These documents were served on 12th March 2018 on first respondent’s lawyer evidenced in the affidavit of service of Edwin Gesi. The second respondent basically supports the first respondent’s application and has filed a supporting affidavit to that effect.

Applicants/Respondents submissions

6. The respondent submits there was a clear default by the petitioner. Section18 of the Election Petition Rules 2017 states the law on default:

"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: -

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

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

(iii) make such other orders as it deems just."

7. It further submits that the position of law regarding summary dismissal of cases is well established and is set out in the case of Vari Vele v. Powes Parkop (2008) SC945. This was followed in various other subsequent decisions including Peter Wararu Waranaka v. Andrew Trawen & others (2012) N4815, Jamie Maxtone Graham v. Electoral Commission of PNG (2013) N5211. This case laws set out the criterias that need to be fulfilled. They are:

(i) An explanation for allowing the time to expire, a rule not complied with or otherwise why dispensation is required;

(ii) The application for extension must be made promptly;

(iii) If there is a delay, reasonable explanation for the delay;

(iv) The relief sought by applicant will not unduly prejudice the other parties case and;

(v) The granted dispensation will enable all of the issues in contention to be promptly brought before the court without further delay.

8. The respondents submits the petition should be dismissed for the following reasons;

(1) The parties had almost 5 months to file and serve their submission on objection to competency. The default is inexcusable as between December and January 2017 and 2018, the court also went into recess enhancing the ample time.

(2) The reasons given for the delay is inexcusable. One reason been that he was involved in another election petition EP No. 39/17, however he failed to particularise the kind of engagement.

(3) That the petitioner did not pay his bills

(4) The affidavit of Mr Liria did not address the prejudice aspect. He states the trial was set down for 9th April 2018 and the late filing of the submission will entirely prejudice the respondents and also inconvenience the court.

(5) The petitioner is seeking extension of further 2 days to file and serve submissions on objections if the court so grants the application. Effectively the trial date will be delayed by 2 days.

9. It submits the court must at all times safeguard itself from abuse by reckless litigants and its lawyers. He cites the case of Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853, where the Supreme Court said;

“It is settled law that the courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that lays open to the court at any stage of the proceedings. As such it does not matter whether a party appearing before the court is raising it because it goes into the competence of very proceedings brought before the court.”

10. It says there is abuse and there is a clear default. The intent and spirit of S.18 of the Election Petition Rules 2017 is to make it easy for compliance to litigants so they don’t unnecessarily resort to lawyers. Where lawyers are involved the bar or standard is accordingly elevated. The court must therefore come hard on lawyer’s negligence to protect itself from abuse: Jimson Sauk v. Don Pomb Polye (2004) SC 769.

11. In summary the first respondent says Rule 18 of Election Petition Rules 2017 is violated, the explanation is unreasonable and the respondents will be prejudiced all because of the petitioner’s lawyer’s negligence and the petition must be dismissed with costs. The second respondent made verbal submissions basically endorsing the first respondent’s submissions. Further that the petitioner should have filed its motion before the 2nd March 2018, ie; before expiry of the time allotted.

Petitioners Submission

Issues

1. Whether it is fair to dismiss the petition for failing to file written submissions on objection to competency for non-compliance with the directional orders of the court of 20th November 2017.

2. Whether in fairness the petitioner should be granted leave to file his written submissions outside of the time allowed by the directional orders of the court of 20th November 2017.

12. Under Election Petition Rules 18(a) the court is empowered to summarily determine an election petition. Rule 18 (c) says the court may make such other further orders as it deems just. It therefore submits the summary dismissal powers are not automatic upon default of compliance of directional orders or default by the petitioner but gives a discretion to the court to consider and make a decision that is fair and just considering all the circumstances of the case.

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