Madan v Gipolo [2002] PGDC 12; DC166 (18 October 2002)

DC166

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

LLG PEP NO 40 of 2002.

In The Matter Of The Organic Law On National And Local Level Government Elections.

And

Returns For The Goroka Rural Local Level Government Elections For The Ward Ten (10)

BETWEEN

David Madan
Petitioner

V

Tonny Gipolo
First Respondent

Electoral Commission
Second Respondent

Goroka: Manue F Magistrate
18th October 2002

Reasons for Judgement

MANUE F: The applicant came to Court by way of Motion seeking Orders for Costs and damages 36 days after the Petition was Struck out. Assumably the orders are sought pursuant to Section 22 of the District Court Act.

Does the Court have jurisdiction to award Costs and damages when the substantial matter has been laid to rest or decided?

Secondly, whether by provisions of the Organic Law the applicant/respondent had agreed with the Respondent/Petitioner in engaging a lawyer respectively for them.

FACTS:

An election Petition disputing the return of TONNY GIPOLO (applicant) was lodged by DAVID MADAN (respondent) to invalidate the election returns of Ward 10 in the Goroka Rural Local Level Government in the Goroka Open Electorate.

Both parties are from Kotuni, not far from Goroka.

The substantial matter of Petition was returnable on the 12th September 2002. It was Struck out as the Requisites of Petition of Section 208 (b) of the Organic Law was not complied with. I noted from the Court Deposition that the Respondent had requested for an adjournment as his lawyer was engaged in other Court matters. This gave the Court an impression that the applicant had engaged a service from a lawyer, who was not available to appear in Court then.

Before hearing the motion, I had to certify myself as to whether I had jurisdiction and whether there was concessions in one party engaging a lawyer.

THE LAW:

Section 22 of the District Court Act gives the Court General ancillary jurisdiction.

My reading of this provision is that the Court can exercise its powers under the Section only when there is or are substantial matters currently in before the Court. That is matters, which have not yet been decided or finalized. The phrase "a cause of action for the time being within its jurisdiction, shall, in proceedings before it" connotes that the proceedings must still be before the Court, either before the same Court instantly or otherwise.

In the present case, the proceedings relating to the election petition had been Struck out on the 12th September 2002. There is no longer a cause of action before the Court. The applicant had that opportunity in asking the Court for damages and Costs pursuant to Section 22 of District Court Act on that date.

In my view this Court does not have jurisdiction to entertain costs applications after a decision of a cause of action has been decided.

The second issue can be dealt with easily by quoting the appropriate provision.

Section 222 of the Organic Law is in these terms: -

222: Counsel or Solicitor:

(1) A party to a petition shall not except by consent of all parties or by leave of the National Court, be represented Counsel or Solicitor. (Emphasis mine)

(2) In no case shall more then one counsel appear on behalf of a party.

Sub-Sections allows parties to get legal representation only when they have consulted each other and agree to engage counsel.

In this case the respondent was not consulted and therefore, the applicants engagement of a lawyer was without consent by the respondent.

The applicant may have incurred higher costs when he engaged a lawyer.

I do not think that the applicant incurred costs higher than the respondent, who said, he only used about K10.00 in attending to substantial proceedings. The high costs, he incurred may have been due to engaging the services of a lawyer.

As laid out by law, his actions were not in line with lawful process.

Finally, by way of conclusion, costs are of course a discretionary matter for the Court to exercise in line with the principles of law.

I find that, the applicant fails his contention, as it is not within my discretion and law to grant him the remedy.

The motion therefore was dismissed.

In Person: Applicant
In Person: Respondent