N4880
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 63 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KEROWAGI OPEN ELECTORATE

BETWEEN

PETER KUMAN
Petitioner

AND

CAMILLUS DANGIMA BONGORO
First Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 01st & 02nd November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for interim restraining orders – Variation of existing orders – To give effect to meaning and effect of orders – Clear and unambiguous – Application arising from election dispute – Interference with witnesses – Protection of witnesses – Proof of – Hearsay evidence – Inherent powers of Court – Constitution – Section 155(4) – Organic Law on National and Local-level Government Elections – Sections 212(3) & 217 – National Court Election Petition Rules, 2002 (as amended) – Rules 12(3)(j)&(k).

Cases cited:

Jamie Maxton Graham -v- Electoral Commission & Dr Michael Tongamp: EP No 97 of 2012 (Unnumbered & Unreported Judgment of 28th September, 2012)

Counsel:

 Petitioner in person 
Mr M Kombri, for First Respondent
Mr H Viogo, for Second Respondent

RULING

02nd November, 2012

1. MAKAIL, J: Relying on the notice of motion filed on 19th October 2012, the petitioner Mr Peter Kuman moved the Court for specific restraining orders against named persons individually and collectively including all and/or any supporters of the first respondent from contacting or attempting to contact his witnesses and supporters, either by acts, omissions, utterances, conducts, words and/or gestures, and holding meetings or gatherings until final determination of the proceeding and costs on an indemnity basis. The individuals are, Kamane Joseph Kagl, Maima James (Left Hand), John Aragl, Kuglame Boi Gabriel, Dilu Negnem, Aglai Philip, Pastor Mick Martin, Otto Vitus, Par Peter and Goiye Alois.

2. He moved the application pursuant to section 155(4) of the Constitution. He abandoned his primary application for a warrant of arrest to be issued to apprehend persons for allegedly threatening, intimidating and harassing his witnesses and to have them cited for contempt of court. Thus, this ruling is confined to the application for interim restraining orders.

3. Mr Kuman relied on three affidavits; one sworn and filed on 13th September 2012, another sworn and filed on 19th October 2012 and final one sworn and filed on 30th October 2012. He conceded that the Court issued an interim restraining order on 14th September 2012 but seeks a further interim restraining order against named individuals who have been identified so that they will cease their unlawful activities. Further to that, despite the earlier order, the threats and intimidation of his witnesses are continuing and are perpetrated by these named individuals and if the Court issued an order directing these individuals to cease their unlawful activities, hopefully, they will stop. The order is necessary because his witnesses and supporters in Kerowagi are apprehensive and concern about their safety and right to give evidence freely at trial.

4. The first respondent Mr Camillus Dangima Bongoro the member-elect for Kerowagi open electorate opposed the application. He relied on his affidavit sworn and filed on 31st October 2012 and of counsel sworn and filed on 31st October 2012. Mr Bongor submitted that the application is misconceived and an abuse of process because first there is already in existence an interim restraining order against him and his supporters from threatening, intimidating and harassing Mr Kuman's witnesses and supporters. The Court issued the interim restraining order on 14th September 2012. 

5. Secondly, there is no evidence to support the application because it is not open to Mr Kuman to rely on his affidavit of 13th September 2012 as that affidavit was relied upon to obtain the interim restraining order of 14th September 2012 and is no longer relevant to the present application. He should have filed and relied upon a new affidavit for this application because circumstances have changed. In that respect, the remaining affidavits of Mr Kuman are hearsay and inadmissible. Finally, he came prepared to oppose the primary application and for that, he filed a cross-motion on 28th October 2012 which sought orders to set aside the order of 14th September 2012 or to have it reargued inter parties. The Electoral Commission took no position on the application.

6. There is no dispute that the Court issued interim restraining orders on 14th September 2012. There is also no dispute that it is in general terms and directed to Mr Bongoro and his supporters. In this application, Mr Kuman seeks another interim restraining order specifically against certain individuals whom he claims are Mr Bongoro's supporters and who have threatened, intimidated and harassed his witnesses. I am of the view that there is no law prohibiting Mr Kuman from relying on his affidavit of 13th September 2012. It is the relevance of evidence that is relevant and therefore, it is open to him to rely on it in this application. Further, there are signed statements by witnesses in this petition who say that they have been threatened, intimidated and harassed by Mr Bongoro's supporters. They are annexed to Mr Kuman's supplementary affidavit. 

7. In Jamie Maxton Graham v Electoral Commission & Dr William Tongamp (2012) N4808, I declined to apply section 217 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"), to an application for extension of time to serve the petition. I took that position because I was not satisfied with the reasons offered by the petitioner to call evidence from eye witnesses who claimed to be hindered or prevented from serving the petition on the Governor-elect of Jiwaka Province. 

8. Secondly and very importantly, the threshold issue was service and the petitioner bore the burden of proving service before the petition could proceed to directions hearing. In this instance, it is not on service. It is on protection of witnesses. On the authority of section 217 and that Mr Bongoro has not denied Mr Kuman's claim that his supporters threatened Mr Kuman's witnesses, I am satisfied that I should rely on them.

9. I appreciate Mr Kuman's application. He wants an order that is specific so that persons that are named cease their unlawful activities. In my view as there is already an existing interim restraining order, it would amount to duplicity of orders if the application is granted in the manner proposed by Mr Kuman. 

10. But I do not think that this is a sound reason to dismiss the application. He must not be turned away because he did not correctly invoke the jurisdiction of the Court. This is a Court of law and also a Court of justice. Justice must be done to those who seek it, those who ask for it. Mr Kuman conceded that given that there is an existing order, the proper course to take is to vary the existing order to include the individuals to give "teeth" to it, if you like.  I do not see any impediment in following that course, neither will Mr Bongere be prejudiced if such an order is made. The Court has wide discretion under section 212(3) of the Organic Law on Elections and Rule 12(3)(j)&(k) of the National Court Election Petition Rules 2002 (as amended) to grant interim orders to enhance the disposition of an election petition. Thus, what the Court can do is to tailor the existing order in such a way that it reflects the applicant's wish and also that it is clear and unambiguous. 

11. Taking the issue of clear and unambiguous terms of Court orders one step further, let me raise two matters of concern. First, this is a case where there is an order in existence protecting Mr Kuman, his witnesses and supporters from threats and intimidation by Mr Bongoro and his supporters pending the determination of dispute. Very importantly, it was intended to protect the witnesses. I have been saying and I will say it again; the National Court is the only forum or place where election disputes are settled or resolved, not any other place. This is the only place provided by law, section 206 of the Organic Law on Elections for aggrieved candidates to dispute the results of the elections; this is the only place for them to air out their grievances as to how the election was conducted; how the Electoral Commission conducted it in the electorates in the country and how voters participated in it. 

12. Thus, witnesses who will be called to give evidence at trial as to how the election was conducted, whether something went wrong at the polling or counting or whether voters have been bribed or influenced one way or the other are expected to come forward freely and voluntarily. They need not be afraid or concern about their well being and safety. Regrettably, it does not seem to be the case, and in this case, accepting the evidence of Mr Kuman and his witnesses, on the face of it, these individuals that I have named above have breached the order. 

13. Secondly, the Electoral Commission took no position on the application. I would have thought it would be proactive in such applications because it must not be overlooked that whilst the election is over, its ramification continues. The Electoral Commission is charged with the Constitutional duty to conduct election and it must be prepared to defend it to the very end for the common good of our people. The people must be assured that the person they elected to Parliament went there on merits not by default. The Court is the only place where the truth will be revealed; the truth as to whether the election was fair and free; the truth as to whether the member-elect was legally elected.

14. This Court has inherent powers under section 155(4) of the Constitution to do just that and in the exercise of such powers, I vary the order of 14th September 2012 by adding as a new paragraph 8, an order that Kamane Joseph Kagl, Maima James (Left Hand), John Aragl, Kuglame Boi Gabriel, Dilu Negnem, Aglai Philip, Pastor Mick Martin, Otto Vitus, Par Peter and Goiye Alois are restrained from individually and collectively including all and/or any supporters of Mr Bongroro from contacting or attempting to contact his witnesses and supporters, either by acts, omissions, utterances, conducts, words and/or gestures, and holding meetings or gatherings until final determination of the proceeding. As Mr Bongoro came prepared to argue the primary application, in the exercise of discretion, I order that costs be in the cause.

Ruling accordingly.
____________________________________

Paul Paraka Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent