William Powi v Pastor Bernard Kaku and Electoral Commission (2018) SC1743

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Yagi, Kariko & Polume-Kiele, JJ
• Judgment Date: 22 November 2018
• Citation: (2018) SC1743
• Judgment Number: SC1743
• Year: 2018
• Docket Number: SC REVIEW (EP) NO. 10 OF 2018

Full Title: SC REVIEW (EP) NO. 10 OF 2018; William Powi v Pastor Bernard Kaku and Electoral Commission (2018) SC1743

Supreme Court: Yagi, Kariko & Polume-Kiele, JJ

Judgment Delivered: 22 November 2018

SC1743

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 10 OF 2018

WILLIAM POWI

Applicant

-V-

PASTOR BERNARD KAKU

First Respondent

ELECTORAL COMMISSION

Second Respondent

Waigani: Yagi, Kariko & Polume-Kiele, JJ

2018: 29th August & 22nd November

ELECTION PETITION – Application for review of National Court decision – Dismissal of application for dismissal of petition for non-compliance with court directions – Directions for parties to file and serve affidavits for the hearing of the petition – Default by the petitioner – Primary Judge’s exercise of discretion – Whether discretion properly exercised – Constitution, s.155(2)(b) – National Court Election Petition Rules 2017, Rule 18

Cases Cited:

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

Basa v Dadae (2013) N4991

Benias Peri v Herowa Agiwa & Electoral Commission (1998) Unreported and unnumbered Supreme Court decision dated 3rd April, 1998

Daniel Don Kapi v Samuel Abal (2005) N2856

Delba Biri v Bill Ninkama [1982] PNGLR 342

Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (2012) N4877

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

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

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

Karo v Kidu (1998) Unreported and unnumbered National Court decision dated 5th June 1998

Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC589

Luke Alfred Manase v Don Pomb Poyle (2013) SC1329

Mendipo v Nali (1998) Unreported and unnumbered National Court decision dated 9th April 1998

Mikki Kaeok v Rimbink Pato (2005) SC877

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

Papo v Electoral Commission (2003) N2350

Rambi v Trappe (2012) N4924

Legislation:

Constitution

Election Petition Rules 2017

Organic Law on National and Local-level Government Elections

Counsel:

Mr A Baniyamai, for the applicant

Mr R Diweni, for the first respondent

Mr A Ninkama, for the second respondent

JUDGEMENT

22nd November, 2018

1. BY THE COURT: Pursuant to s. 155(2)(b) of the Constitution, the Governor of Southern Highlands Province, William Powi, applies for a review of the decision of the National Court at Waigani given on 21st February, 2018 in election petition proceedings EP No. 79 of 2017: Pastor Bernard Peter Kaku v William Powi & Electoral Commission of Papua New Guinea, whereby the primary Judge declined the applicant’s motion filed 20th February 2018 seeking summary dismissal of the election petition.

2. Leave to apply for the review was granted on 22nd March 2018 and the application for review was filed on 26th March 2018.

Background

3. The main background facts giving rise to this review are not in controversy.

4. The applicant is the Member of the Southern Highlands Provincial Electorate in the National Parliament and is the Governor for that province, having been declared the winner for that electorate in the 2017 National Elections.

5. Following the declaration, two election petitions were filed separately each by an unsuccessful candidate disputing the Governor’s win. The petitions are EP No. 78 of 2017 filed by Joseph Kobol and EP No. 79 of 2017 filed by Pastor Bernard Peter Kaku (Pastor Kaku) both filed against the Governor and the Electoral Commission of Papua New Guinea.

6. The principal issue in both petitions is whether the Electoral Commission lawfully declared the Governor as duly elected even though counting of the votes had not properly progressed to the stage where, although the applicant was leading on votes counted, he had not reached the requisite absolute majority of the votes. The Electoral Commission considered “special circumstances” as contemplated by Section 175(1A)(b) of the Organic Law on National and Local-level Government Elections existed for the declaration to be made in favour of the applicant.

7. On 30th January, 2018, the primary judge issued the following directions in respect of the petition EP No. 79 of 2017:

The Petitioner shall file and serve his affidavits by or before Tuesday 6th February, 2018.

The respondents shall have 14 days thereafter to file and serve affidavits in response by or before Tuesday 20th February, 2018.

The Second Respondent shall provide copies of Form 66A and Form 66B by or before Friday 9th February, 2018.

The application for production of the original writ for the Southern Highlands Provincial Electorate is adjourned until the pre-trial conference.

The petition is adjourned to Wednesday 21st February, 2018, at 9.30am for pre-trial conference.

(our underlining)

8. Each of the parties were directed to take certain steps before the return date:

Pastor Kaku to file affidavits for trial by 6th February, 2018.

The Governor to file affidavits in reply by 20th February, 2018.

The Electoral Commission to provide Forms 66A and Form 66B by 9th February, 2018.

Pastor Kaku failed to comply with the first direction prompting this application being filed by the Governor pursuant to Rule 18(a) of the Election Petition Rules 2017 for the dismissal of the petition for non-compliance with the court direction.

9. The Governor moved his application when the petition returned to court for pre-trial conference on 21st February, 2018.

10. Pastor Kaku did not deny the default and through counsel from the bar table offered his explanation for the non-compliance. He also sought to rely on his affidavit in support of filed together with his motion for an extension of time to comply with the directions to file his affidavits for trial.

11. After hearing arguments, the primary Judge refused the Governor’s application and instead extended time for Pastor Kaku to file and serve his affidavits for trial (the Decision).

12. Aggrieved by the Decision, the applicant filed for leave for this review.

Grounds of review

13. Summarized, the grounds for the review are that the primary Judge erred in law:

by not providing adequate and proper reasons for the Decision;

in exercising his discretion to dismiss Mr Powi’s application for dismissal; and

in exercising his discretion to extend time for Pastor Kaku to file his affidavits for trial.

Submissions

14. Counsel for the applicant agreed to focus on the second and third grounds after accepting that the arguments for the first ground could be conveniently covered in discussing the core issue of this review and that is whether the primary Judge properly exercised his discretion when he refused the Governor’s application and then allowed the petitioner further time to file his affidavits.

15. Mr Baniyamai argued that in dismissing his client’s application, the primary Judge acted contrary to the following established legal principles, citing a number of case authorities in support of the arguments:

That election petitions are to be treated as a special category of court cases that require expeditious hearing and determination: Benias Peri v Herowa Agiwa & Electoral Commission (1998) Unreported and unnumbered Supreme Court decision dated 3rd April, 1998 ; Karo v Kidu (1998) Unreported and unnumbered National Court decision dated 5th June 1998; Korak Yasona v Casten Maibawa & Electoral Commission (1998) SC589; Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983; Daniel Don Kapi v Samuel Abal (2005) N2856; Andrew Sallel v James Gelak Gau & Electoral Commission (2012) N4816; Hami Yawari v Angerson Agiru & Electoral Commission (2008) SC948; and Mikki Kaeok v Rimbink Pato (2005) SC877.

That Court orders and directions must be complied with and non-compliance shows disrespect to the court and is at the peril of the defaulting party: Korak Yasona v Casten Maibawa & Electoral Commission (supra); Hami Yawari v Anderson Agiru & Electoral Commission (2008) N3983; Daniel Don Kapi v Samuel Abal (supra); Andrew Sallel v James Gelak Gau & Electoral Commission (supra); Hami Yawari v Anderson Agiru & Electoral Commission (2008) SC948; Mikki Kaeok v Rimbink Pato (supra); Rambi v Trappe (2012) N4924; Delba Biri v Bill Ninkama [1982] PNGLR 342; Basa v Dadae (2013) N4991; Papo v Electoral Commission (2003) N2350; Benias Peri v Herowa Agiwa & Electoral Commission (supra); and Mendipo v Nali (1998) Unreported and unnumbered National Court decision dated 9th April 1998; and

That the defaulting party must provide a reasonable explanation for the default and any application for extension of time to comply must be made within the time period for compliance: see Kapi v Abal (supra) and Steven Mendepo v Michael Nali (supra).

16. In the National Court, counsel cited the cases of Korak Yasona v Casten Maibawa & Electoral Commission (supra), Karo v Kidu (supra), Rambi v Trappe (supra) and Edward Ekanda Alina v Francis Mulunga Potape, The Electoral Commission & Ors (2012) N4877 in support of the motion to dismiss the petition.

...