Angen v Kawong [2008] PGDC 21; DC684 (7 October 2008)

DC684

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

LLG-EP 08 OF 2008

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL
AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND IN THE MATTER OF A DISPUTED RETURN FOR THE WARD 17, KIUNGA RURAL LOCAL-LEVEL GOVERNMENT

BETWEEN

GAITIANUS ANGEN
(Petitioner)

AND

JOSHUA KAWONG
(First Respondent)

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(Second Respondent)

Kiunga: P. Monouluk, SM
2008: 23 September; 07 October

RULING

ELECTION PETITION – Notice of Objection to Competency – Objection not considered – Petitioner failed to appear to prosecute petition – Petitioner not able to respond to objection – Second Respondent seeks dismissal of the petition – Practice Rules silence on the consequences of non-attendance by petitioners.

DISTRICT COURTS ACT – Application to dismiss petition – Petitioner not available to prosecute petition – District Courts sitting as Courts of Disputed Returns – Primary jurisdiction assumed under the District Courts Act Chp. 40 – Courts can still avail themselves of the provisions of the District Courts Act where Practice Rules are silence on the issue of non-attendance by petitioners – Section 144 enables a court to dismiss complaint where complainant not present – Applicable to election petitions.

Case
1 James Embiap v. Issac Joseph and the Electoral Commission of PNG, EP 37 of 2007

Reference

1. District Courts Act Chp. 40
2. Election Petition Rules 2002
3. Organic Law on National and Local-level Government Elections 1997
4. Practice Rules Local-level Government Election Petitions 2008
   

Counsel
Petitioner not available
First respondent in person
Second respondent by T Dalid

07th October 2008.

1. P. Monouluk, SM: This petition disputes the election victory of the first respondent for Ward 17, Kiunga Rural Local-level Government, Western Province. The matter subsequently was set down for trial on the 23rd September 2008 at 9 o’clock in the morning. On the morning of the trial the petitioner for reasons still unknown to the court failed to turn up to prosecute his petition. This prompted Tobias Dalid, the counsel representing the second respondent to move that the petition be dismissed for want of prosecution and in addition to that he asked the court to review the objection to competency of the petition he had filed earlier, which I will deal with later.

2. What is the position at law in respond to non-appearance by petitioners or their legal representatives to prosecute their petitions? The counsel is not able to assist nor is my research able to reveal any whether under the Organic Law on National and Local-level Government Elections (the Organic Law hereafter) or the Practice Rules Local-level Government Election Petition Rules 2008 (the Practice Rules hereafter) which is applicable to District Courts hearing election petitions or even under the Election Petition Rules 2002 (the Rules hereafter) applicable to the National Courts hearing election petitions. It would seem that the law is silent in this regard and if that is so then recourse may be made to the District Courts Act Chp. 40 under which this court assumes primary jurisdiction to sit as such by virtue of s. 287 of the Organic Law. I do not see any difficulty for this court to avail itself of the provisions of the Act (supra) in instances whereby there appears to be an apparent ‘silence’ in the Organic Law and the Practice Rules, unless that is expressly disallowed by law.

3. Section 144 of the Act (supra) is of help and is termed in this manner:

"144 Where complainant does not appear

Where, at the time and place specified in a summons, the defendant attends in obedience to the summons served on him for that purpose, but the complainant does not appear by himself or by his legal representative, the Court shall –

(a) dismiss the complaint and hear and determine the defendant’s set-off, if he has given notice of set-off; or

(b) if it thinks proper, adjourn the hearing or further hearing of the complaint and the set-off to some other day on such terms as it thinks fit."

4. This provision of the law is clear; it gives a discretionary power to a District Court to dismiss or adjourn complaints in instances whereby the complainant makes no appearance in court whether in person or by representation to prosecute his case. While this refers to a ‘complaint’ I believe when given a fair and liberal meaning, its definition may well extend to cover a ‘petition’ also. A ‘complaint’ and a ‘petition’ are legal avenues by which grievances are brought to the court by an aggrieved party to seek and where successful obtained some form of redress. Except for their terminologies, their principles are almost the same therefore it is logical that their effects and consequences be the same also; and so when a petitioner fails to attend to the prosecution of his petition, similar to a complainant, his case stands to be dismissed.

5. In the present case it was mandatory for the petitioner or his representative to have appeared to prosecute his petition on the 23rd September. In fact the date for the trial was set down in close consultation with him and the respondents and therefore it was important for him to be present in court. Not only is he expected to appear but the law places a duty upon him to make himself available personally or through his representative since the whole proceeding was allowed to commence at his own volition and therefore he must be responsible enough to ensure it endures all due processes and challenges till the end.

6. Nevertheless, the law is mindful of unforeseeable circumstances that may warrant adjournment. In this case no reasons requiring adjournment were brought to the attention of the court to explain the absence of the petitioner. The court however was informed through the first respondent (from the bar table) that the petitioner was seen minutes prior to the hearing outside the court house. It would seem that despite his presence in the vicinity, his non appearance indicates that he may have lost interest in furthering his course; yet is not able to show dignity in himself and courtesy to the court to appear and formally seek a withdrawal if he so desires.

7. Counsel did refer the court to the case of James Embiap v. Isaac Joseph and the Electoral Commission of PNG, EP 37 of 2007 in his bid to have the petition dismissed for want of prosecution; however my review of the case indicates a different scenario to the one that is now before us. In that case the National Court found that the petitioner did not comply with rules 6 and 7 of the Rules to ‘personally’ serve the petition upon the first respondent ‘within 14 days of filing’ but instead served the first respondent outside the 14 day period, and not only that but the service itself was done through a third party without first seeking leave of court.

8. In the present case however, the petitioner simply did not attend to his matter at all and because such incident is not covered by the Practice Rules it is appropriate for now that I resort to s. 144 District Courts Act (supra). Ideally I would prefer the use of s. 22 (general ancillary jurisdiction) of the Act to invoked National Court powers however because there is in no existence under the Rules a practice governing the absence of petitioners and their representatives in the National Court, the next best law is s. 144 of the Act as stated above.

9. Finally I had the benefit to review the six grounds upon which the counsel for the second respondent seeks to rely on to object to the competency of the petition and within which he had various dot points highlighting numerous suspected defects on the petition that the counsel said had contravened largely s. 208 of the Organic Law. I am not able to make a ruling on the objection as it is for the mere reason that we do not have the benefit of the petitioner to formally respond as required. In the absence of the petitioner, it is my view that my ruling on competency be reserved.

10. On the basis of my discussion I hereby grant the application by the counsel to dismiss the petition for want of prosecution and make the following orders: (a) that the petition is dismissed; and (b) that the parties to meet their own costs; and (c) that the security deposit be forfeited to the State.

Orders accordingly.

Second respondent by Parus Lawyers