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Ninigi v Electoral Commission of Papua New Guinea [2013] PGNC 18; N5060 (25 February 2013)

N5060

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 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 IMBONGGU OPEN ELECTORATE

BETWEEN

PILA NINIGI
Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

FRANCIS AWESA
Second Respondent

Waigani: Makail, J
2013: 22nd & 25th February

ELECTION PETITIONS – PRACTICE & PROCEDURE – Pre-trial conference – Matters for pre-trial conference – Venue for trial – Factors for consideration – Security of witnesses – Assault of petitioner and lawyer – Threats to witnesses for petitioner – Proof of – National Court Election Petition Rules, 2002 (as amended) – Rules 10 & 13.

Facts

The petition came for pre-trial conference and the petitioner raised among other matters, the venue for trial, that the petition be tried at Mt Hagen National Court instead of Mendi National Court for security reasons pursuant to Rule 10 of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. In determining the venue of trial in an election petition case, one of the considerations is security of witnesses.

2. There was unchallenged evidence that the petitioner will be a witness in this petition, was arrested, charged for being in possession of a copy of the common roll of the electorate which was subsequently struck out, that he was assaulted by the second respondent's supporters, that the second respondent's supporters attempted to kidnap and assaulted one of his lawyers and that they attacked and threatened his supporters and witnesses.

3. The application was upheld and the petition was fixed for trial at Mt Hagen National Court.

Cases cited:

Phillip Kikala -v- Electoral Commission & Nixon Koeka Mangape (2013) N4960
Nick Kopia Kuman -v- Dawa Lucas Dekena & Electoral Commission (2012) N4885

Counsel:

Mr J Kennedy, for Petitioner
Mr H Viogo, for First Respondent
Mr P Paraka, for Second Respondent

RULING ON VENUE FOR TRIAL

25th February, 2013

1. MAKAIL, J: This petition is listed for pre-trial conference. Among other matters, the matters for pre-trial conference are set out in Rule 13 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). Parties agree that:

1.1. the trial will take 4 weeks, and

1.2. except for 2 persons, 12 others should be summoned to give evidence at trial in addition to the petitioner's 26 witnesses, first respondent's 7 witnesses and second respondent's 12 witnesses.

2. The main disagreement is in relation to the venue of trial and to some degree the date(s) for trial, the petitioner asking for an early trial and the respondents for trial in the middle of the year as counsel have other election petition trials to attend to.

3. The petitioner relying on his notice of motion filed on 19th December 2012 moves the Court to have the petition fixed for trial at Mt Hagen National Court instead of Mendi National Court for security reasons pursuant to Rule 10 of the EP Rules. Rule 10 states that a petition may be heard at a place where it was filed or at any other venue determined by the Court. It gives the Court discretion to decide where the trial will be held. As a general rule, election petition cases outside the National Capital District must be heard at the location where the National Court is located. I have taken this position in a number of election petition cases such as Nick Kopia Kuman -v- Dawa Lucas Dekena & Electoral Commission (2012) N4885. However, each case must be decided on its own facts.

4. There is no doubt in my mind that election petition cases are politically charged and the risk of threatening or interfering with witnesses is very real. In my recent decision in Phillip Kikala -v- Electoral Commission & Nixon Koeka Mangape (2013) N4960, I said that "I do not think it would be an over statement if it is said that in Papua New Guinea, prosecuting and defending a petition is a pain staking exercise. This is because it is time consuming, costly and politically charged. It also involves people's emotions, and at times, people resort to violence as a means of resolving the dispute". Thus, in my view in determining the venue of trial of an election petition case, one of the considerations is security of witnesses. The onus is on the applicant to establish it.

5. In Nick Kopia Kuman's case (supra), Mr Kuman asked for the trial to be held at Waigani National Court instead of Kundiawa National Court on the grounds that his witnesses were threatened. The respondents out rightly denied the allegations. I refused the application because it was convenient for parties to have the trial in Kundiawa. There was inter-alia, a National Court house and resident Judge in Kundiawa to hear the petition.

6. That was the position I took in that case but that does not necessarily mean that I am bound to follow that decision in this case. I have to decide this case on its own facts. The first matter to note is that there is no dispute that there is a National Court house and a resident Judge in Mendi. There is also no dispute that all the witnesses are living in the Southern Highlands Province. Unlike Nick Kopia Kuman's case (supra), there is also no dispute that the petitioner will be a witness in this petition, was arrested, charged by police for being in possession of a copy of the common roll for the electorate and that the charge was subsequently struck out, that he was assaulted by a body guard of the second respondent by the name of Nolpi Buka and a solider by the name of Billy Tom, that the second respondent's supporters attempted to kidnap one of his lawyers Mr McRonald Nale on 04th July 2012 in an attempt to stop the counting of two ballot boxes from the petitioner's village, that while attempting to lay a formal complaint with the police, he was assaulted by the Provincial Police Commander and that the supporters of the second respondent attacked the petitioner's supporters during the counting which resulted in one of the petitioner's supporters being stabbed with a knife on 08th July 2012: see affidavits of the petitioner filed on 19th December 2012 and 03rd January 2013, affidavit of McRonald Nale filed on 19th December 2012 and affidavit of Cedric Kengi filed on 20th December 2012.

7. The second respondent supported by the first respondent did not deny these allegations but submit that these incidents happened 7 months ago during the counting of votes. Since then, there have been no threats of violence against the petitioner and his witnesses. There is therefore no basis for any concern about the security of the witnesses. If the Court is minded to move the venue for trial, they propose Port Moresby. In addition, the petitioner submits that the only place in Mendi to accommodate his witnesses is Kiburu Lodge. The second respondent not only owns it but also resides there and given the past incidents, there is a real risk that his witnesses will be interfered with if they are accommodated there. He did not say in his affidavits if Kiburu Lodge is the only lodge or place of accommodation for visitors to Mendi. For this reason, I am not satisfied that there are no alternative places of accommodation in Mendi.

8. I accept that the assault of the petitioner, the attempted kidnapping and assault of the petitioner's lawyers and the attack of the petitioner's supporters happened 7 months ago but the respondents have not given any assurance that such incidents will not occur again. I am of the view that the assaults and threats to the petitioner and his supporters including his lawyers are real. The assault of the petitioner is a serious matter and the likelihood of it happening again can never be underestimated. The petitioner was one of the candidates for Imbongu Open Electorate. He has every right to contest the election and no man has the right to deny him that right including the right to respond to objections raised about the legality of ballot boxes for scrutiny. Yet he was assaulted. The unchallenged evidence is that the assailants were members of the disciplinary forces. They have not been charged to date and police in Mendi, especially the Provincial Police Commander, it appears have taken sides and support the second respondent. This may explain why no action has been taken against the assailants. If police are not impartial in the discharge of their duties, security of witnesses is not guaranteed.

9. There is also unchallenged evidence that some of the petitioner's witnesses were threatened by the supporters of the second respondent. They were told not to give evidence at trial and if they do, they would be assaulted or killed. Given the undisputed events of 7 months ago, I am satisfied that this is a politically charged case. I am satisfied the petitioner has established a case for the venue of trial to be at Mt Hagen National Court. Mt Hagen National Court is also easily accessible by road from Southern Highlands Province and also cheaper than having a trial in Port Moresby.

10. In terms of the trial date(s), according to the Election Petition Trial list which I take judicial notice of, EP No 97 of 2012: Jamie Maxton-Graham –v- Electoral Commission & Dr Michael Tongamp (Jiwaka Regional Seat) is fixed for trial at Mt Hagen National Court from 01st – 12th April 2013 before David, J. This means one of the two Court Rooms there will be used for that election petition case. Further, the lawyers for the respondents will be engaged in other election petition trials up until June. While I appreciate the petitioner's request for an early trial, practically it is not possible for the reasons I have stated. Taking all the parties' concerns into account, I fix this petition for 4 weeks trial from Monday 17th June 2013 at 9:30 am to Friday 12th July 2013.

11. The petitioner's second application is for summonses to be issued to secure the attendances of 14 persons listed in his notice of motion also filed on 19th December 2012. The first respondent concedes that summonses be issued against these persons except Bogi Raga and Nelson Noma Kopeya on the grounds that the evidence they will be giving are hearsay and irrelevant to the issues raised by the petitioner. I reject this submission. Hearsay and relevance of evidence are matters for trial and for the trial judge to determine. I uphold the application.

12. There are other matters such as the second respondent's notice of objection to competency that requires a hearing date, which I will fix shortly. The other is the need for interpreters. Parties will require interpreters for the following languages, Pidgin, Mendi and Imbonggu. Parties may arrange for Interpreters in consultation with the Assistant Registrar for Mt Hagen National Court before the commencement of trial.

13. The terms of the order are:

14. Cost shall be in the cause.

Ruling accordingly.
____________________________________

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