Daroa v Toua [2008] PGDC 148; DC4099 (8 December 2008)

DC4099
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Court of Disputed Returns

LLGEP (21) 6 OF 2008

LOHIA DAROA

Petitioners
-v-

TOUA PAULO TOUA

1^st Respondent

PETER MALAIFEOPE

2^nd Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

3^rd Respondent

Port Moresby: Pupaka, PM

2008: 24^th October & 13^th November

RULING ON OBJECTION TO COMPETENCY

Local Level Government Election Petition – Petition challenging the result of Poreporena Lahara Council Ward – Grounds – Mandatory requirements of section 208 of the Organic Law on National & Local Level Government Election

Objection to competency – Section 208(a) – Insufficient facts – Whether LLG Election Petition filed outside the 40 days stipulated by the Chief Magistrate’s Practice Direction on LLG Election Petitions is competent for the purposes of the Organic Law – Practice Direction is a lawful instrument guiding practice in the District Court issued under Section 21A of the District Courts Act and it has force and effect of law. Non compliance fatal for petition – Costs

Mr. W. Thomas for the Petitioner
MS. C. Copland for the 1^st Respondent
Mr. D. Kobagle for the 2^nd & 3^rd Respondents
8^th December 2008

PUPAKA, PM: This is a ruling in relation to objections raised over the competency of the Local Level Government election petition filed by the Petitioner herein, Mr. Lohia Daroa, challenging the validity of the 1^st Respondent’s declaration as winner for the Poreporena Lahara Council Ward in the Motu-Koitabu Local Level Government area.

The 1^st Respondent’s win was declared on 19^th June 2008. This petition was filed on 25^th August 2008. The Petitioner sought, as relief a declaration from this Court that the 1^st Respondent’s election is null and void and in his stead the Petitioner himself be declared winner of the said council ward. The Petitioner also sought a recount of the votes for the ward with a view to declaring any of the contesting candidates, other than the 1^st Respondent, as winner. Following on from this plea he further requested that if the recount again showed a result favouring the 1^st Respondent then the Court must order fresh elections to be conducted for the ward.

For the record only I must say I have dealt with strange pleadings before but this Petitioner’s demand that the 1^st Respondent must not benefit from a recount would easily top the list. I am unable to make out any compelling or other reason, whether pleaded in the petition or stated or inferred in the documents on file, including the respective parties’ submissions, as a remote or discernable ground for demanding that the 1^st Respondent be excluded from the recount process in the manner pleaded.

OBJECTIONS

A notice containing a list of objections to the competency of the petition dated 26^th September 2008, was filed by the 1^st Respondent. The objections are based on an allegation that the petition’s pleadings failed to meet the expressed requirements of section 208 of the Organic Law on National and Local Level Government Elections (OLNLLGE). However before hearing the objections the Court directed the parties on 2^nd October 2008 to submit on the issue of whether the petition is incompetent for not being filed within 40 days from the date of declaration of the 1^st Respondent’s win. As a result the 1^st Respondent amended his objections to include, inter alia, the apparent late filing of the petition.

The late filing of this petition is not disputed. It is common ground between the parties. As I alluded to above, the 1^st Respondent was declared winner on 19^th June 2008. The petitioner filed this petition, disputing that result, on 25^th August 2008, which is about 68 days after the 1^st Respondent was declared winner. The standard 40 days had lapsed on 29^th July 2008.

Under the circumstances it is only reasonable and logical to rule on the issue first. The need to deliberate or rule upon all other issues, including the other grounds pleaded in the objection; depend directly upon the outcome of this threshold issue. In the circumstances this Petitioner’s petition will either stand or fall on this first ground alone, which is that the petition herein was filed outside a stipulated 40 days requirement.

THE 40 DAYS REQUIREMENT

For the purposes of discussions in relation to this issue I shall presume that the requirements of section 208 and section 287 of the OLNLLGE, as well as sections 209 and 210 thereof, and their respective applications for the purposes of National Parliamentary and Local Level Government elections, are trite matters. There is no need to discuss at any length the command of Legislature in section 287 that requirements of section 208, not specifically excluded, are also applicable for purposes of LLG election petitions. However I must set out these provisions for their respective significance to be appreciated and also for reasons of clarity.

Sections 208, 209, 210 and 287 of the OLNLLGE read:

208. Requisites of petition.

A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

209. Deposit as security for costs.
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2, 500.00 as security for costs.

210. No proceedings unless requisites complied with.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

287. Disputed elections and returns.

(1) Subject to this section, the provisions of Part XVIII of this Law, other than Sections 208(e), 209, 210, 212(2), and 213, shall apply as the provisions of this law relating to disputed Local-level Government elections and returns.
(2) References in Part XVIII to—

(a) "Clerk of Parliament" shall be read as to "clerk of Local-level Government"; and
(b) "electorate" shall be read as to a "ward"; and
(c) "member" shall be read as to "member of the Local-level Government"; and
(d) 'National Court" shall be read as to "District Court"; and
(e) "Registrar of National Court" shall be read as to "Clerk of the District Court"; and
(f) "Speaker" shall be read as to "head of the Local-level Government.

(3) A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held.

(4) At the time of filing the petition the petitioner shall deposit with the Clerk of the District Court the sum of K50.00 as security for costs.

(5) Proceedings shall not be heard on a petition unless the requirements of Subsections (3) and (4) and Section 208(a) to (d) inclusive are complied with.

The OLNLLGE does not expressly require persons disputing results of LLG elections to file their petitions within 40 days. Apparently the 40 days requirement in section 208 seems to be one of only two requirements under that section of the OLNLLGE, for purposes of National Parliamentary elections, which were conspicuously omitted or rendered substantially different for the purposes of disputing LLG election results. The other is the requirement for deposits. Whereas a petitioner must pay a deposit of K2500.00 in relation to a National Parliamentary elections petition, a LLG election petitioner is only required to make a K50.00 deposit. The reason or reasons for this latter, rather wide disparity is unclear. As it is election disputes, for all parties, whether prosecuted or defended in the National Court or the District Court, are an expensive exercise.

In light of a lack of a clear cut-off point, within which LLG election results may be challenged, the Chief Magistrate issued a Practice Direction – Practice Direction No. 001 of 2008 – to guide the filing process and conduct of LLG election petitions in the District Court.

The Chief Magistrate is vested with power to formulate rules, including issuing Practice Directions. That authority is found in section 21A of the District Courts Act. That provision reads:

21A. Rules relating to practice, etc

Subject to the approval of the Judicial and Legal Services Commission the Chief Magistrate may make rules relating to practice and procedure in the civil jurisdiction.

Practice Direction N0. 001 of 2008

LLG election petitions are dealt with as civil cases in the District Court. Therefore, when a LLG election petition is on the list, the District Court is not converted into a ‘court of disputed returns’, governed only by the provisions and requirements of the OLNLLGE. It only means the District Court commences sittings as a court of disputed returns to deal with a LLG election petition in accordance with the law, namely the OLNLLGE and the court’s own practices and procedures or rules. Again it is trite that rules formulated and issued by the Chief Magistrate under section 21A of the District Court Act have force and effect of law.

That said the preamble of Practice Direction No. 001 of 2008 reads:

“PURSUANT to Sections 21A of the District Courts Act Chapter 40 and all other powers me enabling I, John K. Numapo, LLB (Hons) LLM, Chief Magistrate of Papua New Guinea, issue the following Practice Rules to regulate and guide the District Court of Justice whilst sitting in its Court of Disputed Return Jurisdiction, relating specifically to the registration, listings, pre-trial conferences and hearings of Local Level Government Election Disputes pursuant to Section 287 and other pertinent provisions of the Organic Law on National and Local Level Government Elections (the Organic Law).

APPLICATION OF THE PRACTICE RULES

These Practice Rules shall govern and regulate proceedings in the conduct of Local Level Government Election Disputes pursuant to Section 287 and other relevant provisions, including Section 208, of the Organic Law.

The application of these Practice Rules is valid and binding to the extent that they do not interfere with or restrict any rights conferred under Subdivision 111.3 C (qualified rights) of the Constitution and do not interfere with and are contrary to any mandatory requirements of the Organic Law.

These Practice Rules are intended to reflect and simplify mandatory requirements of the Organic Law and at the same time ensure that the apparent intention of Parliament postulated under Section 217 of the Organic Law, which requires simplicity of application of processes and requirements of the provisions encapsulated under the Organic Law, is fully implemented to the end that the integrity of the process is protected and upheld.”

In the body of the practice direction its requirements and directives are set out. The requirement for filing LLG election petitions within 40 days is postulated in Rule No. 2 in the following terms:

“2. Time period for filing LLG election petitions

2.2.1 Petitions disputing the results of LLG elections shall be filed at a designated District Court Registry no later than 40 days from the date of declaration of results of the LLG election intended to be disputed.

2.2.2 Amendments to a LLG election petitions maybe made without leave of court within 40 days from the date of declaration of results of the LLG election intended to be disputed.”

Until such time the Chief Magistrate’s powers under section 21A of the District Courts Act or more particularly his rule in “Practice Direction No. 001 of 2008” or its contents is faulted or negated or nullified, the said practice direction and its requirements are binding upon this Court. Needless to say that that too is a trite proposition. This Court must therefore abide by and comply with the requirements of Practice Direction No. 001 of 2008. It is that simple.

Moreover, there are currently no restraint or injunction or stay of this Court’s jurisdiction. This Court must therefore now proceed to rule on the merits of the objections that have been raised and argued before it.

Consequently I have perused the Petitioner’s submission carefully, particularly his plea for a stay of this matter whilst he seeks some “clarification” from the Nation Court. Having done that, in my view, a stay of this whole proceeding or a lengthy adjournment of it would make no difference at all. The 1^st Respondent will still retain all benefits that come with the presumption of legitimacy of his win and would continue to discharge his duties and enjoy all privileges of office. Meanwhile that does not prevent the Petitioner from seeking the “clarification” that his counsel alludes to and if he so desires, he may also challenge the soundness of this instant ruling, both of which he can only do in the National Court.

As a result of all the foregoing I must strike this petition down and dismiss it as being filed out of the stipulated 40 days requirement. Filing this petition was in direct contravention of a mandatory requirement of the District Court’s Practice Direction No. 001 of 2008.

Awarding cost is a discretionary relief. That being the case, in the circumstances of this case, it seems overly unfair to allow the Petitioner to bear the Respondents’ costs of this proceeding.

Consequently I order that each party pay their own costs.

______________________________________________________

Warner Shandy Lawyers for the Petitioner
Young & Williams Lawyers for the 1^st Respondent
Para Lawyers for the 2^nd & 3^rd Respondents