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Alina v Potape [2012] PGNC 252; N4877 (9 November 2012)

N4877

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 33 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 KOMO MAGARIMA OPEN ELECTORATE

BETWEEN

EDWARD EKANDA ALINA
Petitioner

AND

FRANCIS MULUNGA POTAPE,
Member-elect for Komo Magarima Open Electorate
First Respondent

AND

MR RAPHAEL YAKI,
Returning Officer for Komo Magarima Open Electorate
Second Respondent

AND

ANDREW TRAWEN,
Chief Electoral Commissioner of Papua New Guinea
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2012: 08th & 09th November

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Discretionary – Application arising from election dispute – Directions hearing – Directions for parties to file and serve affidavits – Time fixed for parties to file and serve affidavits – Failure by petitioner to comply with directions – Application granted – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to extend time – Discretionary – Time to comply with directions – Time to file and serve affidavits – Failure by petitioner to comply with directions – Failure to file and serve affidavits – Explanation for default – Whether satisfactory – Prejudice – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rule 17.

Cases cited:

Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012)
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- Anderson Agiru & Electoral Commission (2008) SC948
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)

Counsel:

Mr J Kolo, for Petitioner
Ms C Copland, for First Respondent
Ms S Tadabe, for Second Respondent

RULING

09th November, 2012

1. MAKAIL, J: There are two notices of motion for ruling. They are:

1.1. The first respondent's notice of motion filed on 01st November 2012 seeking dismissal of the petition for failure to comply with Court directions pursuant to Rule 18 of the National Court Election Petition Rules 2002 (as amended) ("EP Rules"); and

1.2. The petitioner's notice of motion filed on 07th November 2012 seeking Court's approval on late service of affidavits on the respondents and extension of time to comply with other directions of the Court pursuant to Rule 17 of the EP Rules.

2. The applications arise from an election dispute in respect of Komo-Magarima open electorate in the new Hela Province where the first respondent was returned as member-elect for a second term following the 2012 General Elections. Rule 18 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:-

(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."

3. The power of the Court to summarily dismiss a petition is discretionary. In Eddie Mike Jondi -v- Jeffrey Kuave & Electoral Commission: EP No 76 of 2012 (Unnumbered & Unreported Judgment of 29th October, 2012), a case where the first respondent applied to dismiss the petition for failure to comply with Court directions, namely failure to file and serve affidavits on the respondents, the Court said:

"15. Whether the petition should be dismissed or should remain and the petitioner be given more time to comply with the directions is discretionary. The Court must decide them according to proper principles of law. In my view the principles are first, it must be established that the petitioner defaulted in complying with the Court's direction, and if he has, secondly whether he has satisfactorily explained the default, thirdly whether the grant of the application will not prejudice the respondents and finally, the overall interests of justice."

4. Based on the affidavit of Ms Christine Copland sworn on 30th October and filed on 01st November 2012, affidavit of Mr Peter Mision Yaki sworn and filed on 07th November 2012, affidavit in support of Mr Jason Kolo sworn and filed on 07th November 2012 and affidavit of service of Mr Yaki Kale sworn and filed on 07th November 2012, the undisputed facts are:

4.1. On 26th August 2012, the petitioner filed the petition.

4.2. On 26th September 2012, the matter was fixed for directions hearing. Parties appeared and the Court issued the following directions:

4.2.1. Petitioner shall file and serve his affidavits of all the witnesses by or before 10th October 2012.

4.2.2. The Respondents shall file and serve their affidavits of all the witnesses by or before 24th October 2012.

4.2.3. Petitioner to forward a draft Statement of Agreed and Disputed Facts and Legal Issues to the Respondents for comments by 26th October 2012.

4.2.4. Respondents after comments forward draft Statement of Agreed and Disputed Facts and Legal Issues to the Petitioner for finalisation and parties executing same by 31st October 2012.

4.2.5. The Petitioner shall file and serve Statement of Agreed and Disputed Facts and Legal Issues to the Respondents by 02nd November 2012.

4.2.6. Both Petitioner and Respondents are at liberty to file and serve relevant notices under the Evidence Act by 26th October 2012.

4.2.7. The Petitioner shall request in writing to the Electoral Commission to provide the Common Rolls and the Electoral Returns for the Komo Magarima Electorate by or before 02nd November 2012.

4.2.8. The Electoral Commission shall provide the Petitioner or his lawyers with the Common Rolls, Electoral Returns and such other documents in its care and custody as requested by the Petitioner by or before 05th November 2012.

4.2.9. The matter returns to the Court for pre-trial conference on the 07th November 2012.

4.2.10.The matter is fixed for status conference on 02nd November 2012 at 9:30 am.

4.2.11. Time is abridged.

4.3. On 10th October 2012, the petitioner filed an application to extend time to file and serve affidavits and to extend dates for other compliance. The respondents consented to the application and the Court made the following orders:

4.3.1. Petitioner shall file and serve his affidavits of all the witnesses by or before 24th October 2012.

4.3.2. The Respondents shall file and serve their affidavits of all the witnesses by or before 07th November 2012.

4.3.3. Petitioner to forward a draft Statement of Agreed and Disputed Facts and Legal Issues to the Respondents for their comments by or before 09th November 2012.

4.3.4. Respondents shall forward draft Statement of Agreed and Disputed Facts and Legal Issues to the Petitioner for finalisation and parties shall settle upon same by or before 13th November 2012.

4.3.5. The Petitioner shall file and serve Statement of Agreed and Disputed Facts and Legal Issues to the Respondents by or before 15th November 2012.

4.3.6. Both Petitioner and Respondents are at liberty to file and serve relevant notices under the Evidence Act by or before 09th November 2012.

4.3.7. The Petitioner shall request in writing to the Electoral Commission to provide the Common Rolls and the Electoral Returns for the Komo Magarima Electorate by or before 02nd November 2012.

4.3.8. The Electoral Commission shall provide the Petitioner or his lawyers with the Common Rolls, Electoral Returns and such other documents in its care and custody as requested by the Petitioner by or before 05th November 2012.

4.3.9. The matter is fixed for status conference on the 14th November 2012 at 9:30 am.

4.3.10.The matter returns to Court for Pre-trial conference on 18th November 2012 at 9:30 am.

4.3.11. Time is abridged.

4.4. The petitioner failed to serve his witnesses' affidavits by or before 24th October 2012. As a result, on 01st November 2012, the first respondent filed the application to dismiss the petition.

4.5. On 05th November 2012, the first respondent served the notice of motion on the petitioner. At about 5:00 pm on 06th November 2012, the petitioner served 7 affidavits on the first respondent and also the Electoral Commission.

4.6. The petitioner's reason for serving the affidavits late is because of inadvertence by his lawyers as they got mixed-up with affidavits they had served on the lawyers for two other election petitions that they are conducting in EP No 85 of 2012: John Taluh Tekwie -v- Amkat Mai & Electoral Commission and EP No 94: Andrew Mald -v- Labi Amaiu & Electoral Commission.

5. The first respondent supported by the Electoral Commission submitted that the petitioner defaulted in serving his witnesses' affidavits by 24th October 2012 and is, therefore, in clear default of the Court direction of 17th October 2012. They further submitted that the petitioner did not obtain leave of the Court to serve the affidavits out of time. In any case, since he eventually filed an application seeking the Court's approval to accept late service of the affidavits, they submitted that his reasons for the default are unsatisfactory.

6. They relied on the cases of 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 and Hami Yawari -v- Anderson Agiru & Electoral Commission (2008) SC948 to support their submission that because of the special nature of election petitions, the petitioner bears a heavy responsibility in prosecuting it and this included complying with time limits fixed by the EP Rules and the Court. Where a petitioner defaults in complying with them, the Court has discretion to dismiss them.

7. The petitioner made an earnest plea to the Court not to dismiss the petition because he has served the affidavits on the respondents although late by 15 days. This is substantial compliance and the Court should approve the late service and extend time for parties to comply with the other directions of the Court. He emphasised that the affidavits were filed within time and that was on the due date of 24th October 2012 but due to an oversight by his lawyers, they were not delivered to the respondents on the same date. He also submitted that the respondents will not be adversely prejudiced by an extension of time.

8. In my view, the petitioner's submission tries to avoid the issue of filing affidavits by the due date by drawing the Court's attention to his lawyers' inadvertence to serve the affidavits by the due date, thus trivialising the seriousness of the default. He shifts the blame to his lawyers. They overlooked the service of the affidavits. He also tries to establish that although belated, he has eventually complied with the direction to file and serve affidavits on the respondents. In Hami Yawari's case (supra) the Supreme Court considered an application to dismiss Mr Yawari's application for review for want of prosecution and failure to comply with Court's direction to file and serve a Review Book. The Supreme Court had this to say in response to lawyers' inadvertence:

"If Mr. Yawari attributes the reason for there being no application made under Rule 32 to his former lawyers (or his present lawyers as no such application has been filed to date) this is not in our view a satisfactory reason. It has been held on numerous occasions in this jurisdiction that the failure of a person's lawyer is not a good reason for the granting of an extension of time: Peter Dickson Donigi v. Base Resources Ltd [1992] PNGLR 110."

9. In Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791, I dismissed the petition by Mr Schnaubelt. One of the reasons was that the petitioner had lawyers acting for him and they allowed the petition to be served at the office of the member-elect Hon Byron Chan. In the absence of a nomination form stating that the office was the nominated residential address of the member, I found that service was irregular. In coming to that conclusion, I said that:

"21. Lawyers owe a duty of care to their clients. When acting for their clients, they must exercise great care and skills. In my view, election petitions are a different breed of civil cases and where parties retain lawyers to represent them, the lawyers must exercise extreme care and skills when conducting them. They must carefully study the Organic Law on Elections and the EP Rules before advising their clients on the course of action to take."

10. Accordingly, I am not satisfied with the reasons given for the default. I look back at the history of this petition. The first respondent was declared member on 19th July 2012. On 26th August 2012, the petitioner filed this petition. Between that time, he had 38 days to prepare his affidavits. This would include rounding up witnesses, interviewing them, drafting and settling and filing affidavits. And I think there is a misconception out there that parties should wait until the directions hearing to then be directed by the Court to file and serve affidavits. This seems to be the trend these days, especially in election petition cases, although I note there have been a couple of cases where the petitioner filed and served affidavits well before the cases came before the Court for directions hearing.

11. What happened to the days when the party initiating a legal proceeding takes on the responsibility of preparing, filing and serving affidavits on the opposing party well before the first appearance in Court, noting that the onus of prosecuting the proceeding is on the party who initiates it? They seemed to be long gone! Now parties seem to wait for the Court to issue directions before they start preparing their cases. The Court is seen as an usher ushering the parties forward in their case preparation. While the Court is now taking an active role in case preparation or more appropriately "case management" and that is appreciated, in my view, the onus does not shift to the Court. It remains with the party who initiates the proceeding.

12. That means, there was nothing stopping the petitioner to get his affidavits filed and served well before the first appearance, that is, the directions hearing. Then he had a further 14 days from 26th September to 10th October to file and serve affidavits. On 17th October 2012, he was graciously given a further 14 days to do that because it was with the consent of the respondents. This saw him have time until 24th October 2012 to get his affidavits in and served. In total, he had 66 days at his disposal.

13. Now he wants more time. What he fails to appreciate is that the respondents, in particular the first respondent takes serious issue with the filing of the affidavits. The petitioner said that he filed his affidavits on 24th October 2012. The respondent contended otherwise. In my view, this is the critical aspect of both applications. According to paragraphs 4 to 7 of the affidavit of Mr Yaki, he deposed that at about 4:00 pm on 24th October 2012, he checked with a staff at the Waigani National Court Registry to verify if the petitioner filed affidavits. He was informed that apart from the petition and some notes, there were no affidavits by the petitioner. On next day, 25th October 2012 at around 9:00 am, for the second time, he checked with a staff at the Waigani National Court Registry and was informed that no affidavits were filed by the petitioner.

14. Mr Yaki's evidence has not been refuted by petitioner. The petitioner suggested that the affidavits were filed on time because they bore the date of filing as 24th October 2012 and that the petitioner's lawyers Legal Assistant Mr Kale served them on the respondents between 4:55 and 5:00 pm on 06th November 2012. In my view, the absence of evidence refuting Mr Yaki's evidence means that the petitioner failed to file the affidavits by 24th October 2012. It also leaves open an inference and the Court is entitled to draw an inference that the petitioner lodged the affidavits after 25th October 2012. They were accepted, filed and back dated to 24th October 2012.

15. Further support in drawing this inference is found in the delay of 15 days in serving the affidavits on the respondents. This was a very important case. The petitioner is challenging the election of the first respondent as member-elect for Komo Magarima. It is very unusual for him and his lawyers to simply over look the service of the affidavits by the due date. In my view a case such as this would have them closely monitoring its progress as it progressed through directions hearing, status conference and pre-trial conference. In addition, this is a case where the petitioner not only failed to serve the affidavits on the first respondent but also on the Electoral Commission. In my view this is very unusual because, at the very least, it would not be unreasonable to expect them to serve the Electoral Commission by the due date. Interestingly, the first respondent and the Electoral Commission were not served by the due date.

16. The petitioner and his lawyers' tardiness cannot be a coincidence. Repeating myself to emphasise the point, they were well aware of the Court's directions because on 10th October 2012, parties came to Court and were directed to among other things, file and serve affidavits on each other. Then on 17th October 2012, parties returned to Court and agreed to extend time to comply with the directions. This was done purposely for the benefit of the petitioner. The Court endorsed the parties' agreement and the petitioner had until 24th October 2012 to file and serve his affidavits. For these reasons, I am not convinced by the petitioner's submission that the delay in serving the affidavits was due to an oversight by his lawyers. Accordingly, I find as a fact that the petitioner did not file his affidavits on 24th October 2012. This is where the default lies.

17. The default resulted in the late service of the affidavits. The flow on effect is that the parties could not comply with the other directions of the Court. The result is that there is further delay to get this matter to trial. Thus, when I look back at the history of the petition, the overall interests of justice does not favour the petitioner. He has failed to diligently prosecute this petition and the first respondent and the people of the electorate must not be kept at bay at the wimp of the petitioner.

18. I refuse the petitioner's application and uphold the first respondent's application. I dismiss the petition for want of compliance with Court directions. I order the petitioner pay the respondents' costs to be taxed if not agreed and further order that the security deposit of K5,000.00 held by the Registrar be paid to the respondents in equal share. Time is abridged.

Ruling accordingly.
____________________________________

Kolo & Associates Lawyers: Lawyers for Petitioner
Young & Williams Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents