N7215

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No.12 of 2017

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF A DISPUTED RETURN FOR THE KANDRIAN GLOCESTER OPEN ELECTORATE IN THE 2017 GENERAL ELECTIONS  

BETWEEN:
WALTER LUNGA
Petitioner

AND:
JOSEPH LELANG
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Kimbe: David, J
2018: 9 & 10 April

ELECTION PETITION – PRACTICE & PROCEDURE – application to withdraw petition – respondents unaware of petitioner’s position until at the eve of trial – respondents’ joint application to dismiss the petition for abuse of the process of the Court - Organic Law on National and Local-level Government Elections, Section 206, 212(2) - National Court Election Petition Rules 2017, Rules 12, 13, 14, 15, 16 and 18.

Cases cited:

Amet v Yama (2010) SC 1064
Anderson Agiru v The Electoral Commission and The State (2002) SC687
Island Helicopter Services Ltd v Wilson Sagati & Ors (2008) N3340
National Executive Council and Luke Lucas v Public Employees Association (1993) PNGLR 264
PNG Water Board v Gabriel M Kama (2005) SC821
Telikom PNG Ltd v ICCC (2008) SC906	
The State v Peter Painke (1976) PNGLR 210

Legislation cited:

National Court Election Petition Rules 2017
Organic Law on National and Local-level Government Elections

Counsel:

C Gagma, for the Petitioner
P W Korowi, for the First Respondent
T Topo, for the Second Respondent 

RULING ON APPLICATION TO WITHDRAW PETITION

10th April, 2018
	
1. 	DAVID J:  INTRODUCTION:  The Petitioner, Walter Lunga (hereafter "the Petitioner") and the First Respondent, Joseph Lelang (hereafter “the First Respondent”) were amongst 17 candidates who contested the seat for the Kandrian Gloucester Open Electorate in the West New Britain Province (hereafter "the Electorate") during the recently concluded 2017 National General Election. At the conclusion of the primary count of 22 boxes from 22 teams, the First Respondent who is from the Kandrian Inland LLG area polled 16,850 primary votes.  The total primary votes received by the petitioner at the completion of the primary count was 3,073.  The difference of primary votes received by the Petitioner and the First Respondent was 13,777.  The absolute majority (50% total formal votes plus 1) required to win the election after the completion of the primary count was fixed at 16,727 votes.  On or about 17 July 2017, Emily Kelton, the Election Manager, responsible for the Electorate declared the First Respondent as the successful candidate for the Electorate on the results of the primary count after passing the absolute majority.  The First Respondent was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.    

PETITION

2. 	Aggrieved by the outcome, the Petitioner has disputed the validity of the election or return of the First Respondent as the successful candidate for the Electorate by filing a petition on 25 August 2017 addressed to the National Court at Waigani pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law).

3.	In the petition and in order to demonstrate why the First Respondent’s election or return should be invalidated, the Petitioner raises issues of; illegal practices involving bribery demonstrated in two instances (Allegation 1, 700 pieces of roofing iron for villagers at Nukakau village) and (Allegation 2, band instruments for Silovotu Youth Group) pleaded at paragraphs B2:13 to 26 of the petition; and errors and omissions with regard to; the Second Respondent’s conduct of polling on a Sunday (Allegation 3, B3: 27 to 36); polling after 6:00 pm (Allegation 4, B3:37); change of polling venue (Allegation 5, B3:38 to 41); admission of ballot boxes with broken seals at scrutiny (Allegation 6, B3: 42 to 50); admission of ballot papers with similar handwriting (Allegation 7, B3:51 to 55); admission of ballot boxes that contained ballot papers outside the serial range (Allegation 8, B3: 56 to 57); ballot paper butts not produced for scrutiny (Allegation 9, B3: 58 to 62; and ballot papers in ballot boxes 7 and 8 received into scrutiny without following scrutiny procedures particularly without the sanction of the respective presiding officers responsible for the respective ballot boxes (Allegation 10, B3:68 to 66).

4.	The petitioner, among others, seeks:

(a)	A declaration that the election for the Kandrian Gloucester Open Electorate was absolutely void.
(b)	A declaration that the First Respondent who was returned as elected was not duly elected.
(c)	An order that a by-election for the Kandrian Gloucester Open Electorate be held and conducted by the Second Respondent forthwith.

OBJECTIONS TO COMPETENCY

5. 	On 27 September 2017, the First Respondent filed his notice of objection to the competency of the petition dated 26 September 2017.

6. 	On 2 November 2017, the Second Respondent filed its notice of objection to the competency of the petition dated 2 November 2017 with leave of the Court.

7.	These objections to competency were filed by the respondents pursuant to Rule 12 of the National Court Election Petition Rules 2017.

TRIAL

8.	On 1 December 2017, the Judge Administrator of the Election Petition Track, his Honour Justice Makail fixed the matter for trial here in Kimbe for a duration of about two weeks from 3 April to 13 April 2018.  The trial was to be presided over by his Honour Justice Manuhu.  Following the recent recusal of Justice Manuhu on 26 March 2018 to hear the matter, early last week after the Easter long weekend, I was assigned to deal with the matter.  Given the circumstances, the parties’ lawyers were informed that the trial was rescheduled to commence on Monday, 9 April 2018 at 9:30 am here in Kimbe.  

9.	When the Court convened yesterday morning, the first business of the day for the Court was to hear the two objections to competency filed by each of the respondents in accordance with Rule 16 of the National Court Election Petition Rules 2017 and their outcome would determine whether or not to conduct a trial.  It was then that Mr Gagma for the Petitioner informed the Court that he had recently as late as Friday, 6 April 2018 at about 12:40 pm received instructions from the Petitioner to withdraw the petition and that parties bear their own costs.  In support of the application and with leave of the Court, counsel handed up an unsealed copy of an affidavit sworn by the Petitioner on 7 April 2018. 

10.	The pertinent parts of the affidavit that the Petitioner sets out as the reasons why he has decided to seek leave to withdraw the petition are contained at paragraphs 4 to 8 and I set them out below.

“4.	On or about 16 October 2017 up to 6 April 2018, I lost contact with my lawyers and have not given any instructions to progress the case or enquire from them about the status of my case.
5.	The reason for my decision being that I have been having too many problems with my family and my clan.  I also encounter financial problems to meet the costs of the proceedings.  As such, I decided to withdraw the entire election petition.  That decision was made in mutual consultations with my family and clan members and their consent.
6.	After more than 6 months of no communication with my lawyers, I went to the office of my lawyers on 6 April 2018 at around 12:40 pm and instructed my lawyers, one Mr Gagma Camillus, principal of Gagma Legal Services to withdraw the entire proceeding.
7.	Mr Gagma was upset that I did not contact them and that my lawyers’ attempts to communicate with me about my case were unsuccessful.  However, I convinced him about my instructions to withdraw the election petition matter.
8.	I hereby humbly seek leave of court to withdraw the entire proceedings and that parties meet their own costs of the proceedings.” (sic)         

PETITIONER’S SUBMISSIONS

11.	Mr Gagma submitted that the petitioner had the right to withdraw his petition at any stage of the proceedings.  Family and personal problems had caused the petitioner to come to a decision to withdraw the petition.

12.	He conceded that the petitioner should bear the respondents’ costs of and incidental to the proceedings on a party and party basis. 

RESPONDENTS’ SUBMISSIONS AND APPLICATION TO DISMISS

13.	The respondents jointly and severally oppose the petitioner’s application.

14.	They however jointly and severally make application for the petition to be dismissed essentially for abuse of the process of the Court with costs to follow the event.  The respondents supporting each other contend that:

1.	the Petitioner has failed to provide any good or reasonable explanation as to why his decision has been made at the 11th hour when the respondents are here and ready to prosecute their objections to competency and to defend the proceedings should the matter proceed to trial on any substantive issue requiring the Court’s determination;
2.	while the petitioner was entitled to withdraw the petition at any time during the interlocutory stages, they were not aware of the petitioner’s position until on the afternoon of Sunday, 8 April 2018;
3.	the petitioner’s conduct was tantamount to making a mockery of the process established under the Organic Law for challenging the result of an election;
4.	proceedings instituted pursuant to the provisions of the Organic Law to challenge results of an election were serious matters and should not be treated lightly;
5.	it was a costly exercise to convene the Court especially when the trial was to be presided over by a judge from outside the Province specifically assigned by the Judge Administrator of the Election Petition Track to deal with the election petition proceedings.

15.	In addition, the First Respondent submits that his costs should be paid by the petitioner on a solicitor and client or indemnity basis.

16.	No affidavit was relied on by either of the respondents under the circumstances.  

REASONS FOR RULING

17.	This is the ruling of the Court on the two contrasting applications.

18.	The National Court Election Petition Rules 2017 prescribe the practice and procedure of the National Court relating to the conduct of election petition proceedings and related matters.  They are special rules and it is arguable that they have the force of a constitutional law as they are promulgated by judges of the National Court pursuant to Section 212(2) of the Organic Law. The provisions of the National Court Rules do not apply to election petition proceedings as a result.

19.	Unlike the National Court Rules, there are no specific provisions regulating the withdrawal or discontinuance of election petition proceedings.  It would appear however that this subject may be raised at a directions hearing pursuant to Rule 13(3)(l) of the National Court Election Petition Rules 2017 which states:

“At the directions hearing, the Judge Administrator shall consider amongst other things the following: 
(a)	whether a party shall be represented by a lawyer;
(b)	identification of legal issues;
(c)	filing and serving of witness statements and or affidavits;
(d)	number of witnesses;
(e)	filing, serving and production of any other relevant documents including: electoral records, summonses and notices to produce; agreed statement of facts;
(f)	number of trial days;
(g)	date, time and place for pre-trial conference;
(h)	manner of presentation of arguments at hearing;
(i)	the place of trial and the desirability of any change of venue;
(j)	subject to Rule 13, any interlocutory matter;
(k)	any objection to competency; and   
(l)	such other matters as may aid in the prompt disposition of the petition.”(my emphasis)      

20.	The subject could be addressed under Rule 13(l) as it is a matter that will aid in the prompt disposition of the petition.

21.	Even where the subject is not raised under Rule 13(l) at the directions hearing, it does not prevent the petitioner from raising it at the pre-trial conference under Rule 14(3) of the National Court Election Petition Rules 2017 as the matters listed there for consideration are not exhaustive or as late as the status conference under Rule 15(1) of the National Court Election Petition Rules 2017 where matters raised under Rule 14(3) are checked and reviewed for compliance. 

22.	Where a withdrawal is by consent of the parties during any of the interlocutory stages of the election petition proceedings either at the directions hearing, pre-trial conference, status conference or at any other preliminary hearing convened by the Court before the date of trial, any notice of withdrawal should bear the consent of the consenting parties.

23.	Where a petitioner who does not withdraw his petition at the directions hearing, pre-trial conference, status conference or at any other preliminary hearing convened by the Court before the date of trial, to my mind and as it is not specifically permitted by the National Court Election Petition Rules 2017, he can only do so at the trial with the leave of the Court.  The rationale behind this proposition is the assumption that all preliminary matters that need to be raised and settled at the interlocutory stages before trial are complete or done by consent of the parties or at the direction and intervention of the Court.  Any matter raised after that including the issue of the withdrawal of a petition should be brought before the Court at the trial by way of an application for leave desirably by notice of motion on sufficient notice.  This process safeguards the interests of all parties who participate in the election petition proceedings and also allows the Court, inter alia, to screen a petitioner’s conduct and determine, after hearing parties’ submissions, as to whether or not its process has been abused by a recalcitrant petitioner.

24.	The petitioner’s right to withdraw his petition is one thing, but the respondents who are put to the trouble and expense of defending the proceedings is another thing which must be considered in deciding whether to grant leave or determine the proceedings in another manner. The expense and logistics involved in convening the Court to conduct the trial is another important factor that needs to be considered as well.  

25.	Otherwise, the only preliminary matter that should be entertained before a trial proper is conducted is the issue of competency of the election petition proceedings raised by objections to competency if any notice is filed by a respondent pursuant to Rule 12 of National Court Election Petition Rules 2017 or the subject is raised by the Court or orally by a respondent at the trial with leave:  Amet v Yama (2010) SC 1064.

26.	The Court has an inherent power to protect its processes from being abused by litigants or by petitioners in election petition proceedings.  In Anderson Agiru v The Electoral Commission and The State (2002) SC687, the Supreme Court summarized the principles in relation to abuse of process as follows:

“Those principles in essence are that, the court’s inherent power is its authority to do all things that are necessary for the proper administration of justice.  Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity.  Essential to these inherent powers is the court’s duty to protect itself by ensuring that vexatious litigants do not abuse the court’s process by instituting frivolous or vexatious suits.  It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights.  The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of the process of the court.”   

27.	In the State v Peter Painke (1976) PNGLR 210, it was held that any use of the process or procedures of the Court for an improper purpose or in any improper way will amount to an abuse of the process of the Court. 

28.	An abuse of process of the Court can exist in many different ways: National Executive Council and Luke Lucas v Public Employees Association (1993) PNGLR 264, Telikom PNG Ltd v ICCC (2008) SC906.  So it is not wise to indicate the circumstances that may amount to abuse of the process of the Court as this can be developed on a case by case basis:  National Executive Council and Luke Lucas v Public Employees Association, Telikom PNG Ltd v ICCC.   

29.	In the present case, the respondents are ready to prosecute their respective objections to competency of the petition.  According to the Court’s file, on 1 December 2017, this matter was fixed for trial to commence on Tuesday, 3 April 2018 at 9:30 am.  Appearing in Court on 1 December 2017 for the petitioner was his lawyer, Mr Tobias Dalid.   For reasons I have alluded to already, the trial of this matter was deferred to start yesterday and to begin with the hearing of the two objections to competency filed by each of the respondents.  

30.	The explanation given by the petitioner for the decision to seek leave to withdraw the election petition proceedings at this very late stage is unreasonable, inexcusable and borders on perjury.  Since 16 October 2017 to 6 April 2018, he has been incommunicado.  So it seems his lawyers have been attending Court without instructions since October 2017.  No affidavit was filed by the petitioner’s lawyer to verify those assertions. The petitioner highlights family, personal and financial problems as grounds for his decision to withdraw.  In fact, his conduct (by not appearing in Court in person) is tantamount to a submission of a no contest to the objections to competency of the petition raised by the respondents, the nature of which he should be aware at least by 6 April 2018; and further, the petitioner’s conduct is tantamount to making a mockery of the process established under the Organic Law and the National Court Election Petition Rules 2017.  These to my mind are sufficient basis for the Court to refuse the application for leave to withdraw the petition, but to dismiss the petition for abuse of the court’s process pursuant to Rule 18 of the National Court Election Petition Rules 2017 under which the Court has a wide discretionary power to make any of the relief specified under Rule 18(a) or (b) or (c).  

31.	Rule 18 states:

“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:
(a)	order that the petition be dismissed where the defaulting party is the petitioner; or
(b)	where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or
(c)	make such other order as it deems just.”  

32.	The Court on 1 December 2017 issued a direction that the trial would be conducted in Kimbe starting 3 April 2018 and ending on 13 April 2018.  The petitioner filed no formal application seeking leave to vacate the trial or withdraw the petition.  Non-compliance with rules or directions of the Court is at the risk or peril of a party requiring compliance.  

33.	I concur with the respondents’ submissions to dismiss the proceedings.  The Court’s power is exercised under Rule 18(a) or in the alternative under Rule 18(c).

34.	As to the First Respondent’s application to seek costs on a solicitor and client or indemnity basis, an order for a award of costs on a solicitor and client basis is intended to signify the court’s disapproval of the conduct by a party of court proceedings.  The Court’s power is discretionary and must be exercised on proper considerations.  Costs usually follow the event and the successful party is awarded their costs usually on a party and party basis, but is subject to the Court’s discretion.  There is no evidence available to the Court that the First Respondent requested the petitioner to withdraw or discontinue the election petition proceedings because they were frivolous or vexatious or an abuse of the process of the Court and that costs on a solicitor and client basis would be sought if the election petition proceedings were dismissed. Giving a forewarning in writing to claim costs on a solicitor and client basis is a good practice:  PNG Water Board v Gabriel M Kama (2005) SC821 and Island Helicopter Services Ltd v Wilson Sagati & Ors (2008) N3340.   For these brief reasons, an order for costs to be awarded on a solicitor and client basis is not warranted.     

ORDER

35.	The formal orders of the Court are:

1.	The petitioner’s application for leave to withdraw the election petition proceedings instituted by election petition filed on 25 August 2017 is refused.
2.	The respondents’ joint application to dismiss the election petition proceedings instituted by election petition filed on 25 August 2017 for abuse of process of the court is granted.
3.	The whole of the petition filed in EP No.12 of 2017 filed on 25 August 2017 is dismissed.
4.	As a matter of discretion, the respondents’ costs of and incidental to the proceedings shall be paid by the petitioner on a party and party basis, if not agreed, to be taxed.
5.	The security deposit of K5,000.00 currently held in the National Court Trust Account be paid in equal portion to the First and Second Respondents respectively.
6.	The time for the entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.

________________________________________________________________
Gagma Legal Services:  Lawyers for the Petitioner 				
Korowi Lawyers:          Lawyers for the First Respondent			
Kimbu & Associates:  Lawyers for the Second Respondent