Amireng v Desmond [2008] PGDC 22; DC685 (8 October 2008)

DC685

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

LLG-EP 05 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 SELTAMIN WARD 12, OLSOBIP LOCAL-LEVEL GOVERNMENT

BETWEEN

PETER AMIRENG
(Petitioner)

AND

ROBIN DESMOND
(First Respondent)

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
(Second Respondent)

Tabubil: P. Monouluk, SM
2008: 17 September; 08 October

RULING

ELECTION PETITION – Objection to Competency – Not considered – Petitioner failed to appear to prosecute petition – Petitioner not able to respond to objection – Second respondent seeks dismissal of the petition – Section 144 District Courts Act appropriate and applicable.

Case
1. Gaitianus Angen v. Joshua Kawong and the Electoral Commission of PNG,LLG-EP 08 of 2008.

Reference

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

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

08th October 2008.

1. P. Monouluk, SM: This petition disputes the election victory of the first respondent for Seltamin Ward 12, Olsobip Local-level Government, Western Province. The matter formally came to court on the 17th September for the second respondent to move its objection to competency however the petitioner for reasons unknown failed to turn up to prosecute his petition and at the same time receive the formal presentation of the objection. This is the second time within 24 hours I will have to make a ruling on another instance of petitioners not being available. This unexplained absence by the petitioner prompted the counsel representing the second respondent to move that the petition be dismissed for want of prosecution.

2. I do reiterate what I have said yesterday in the case of Gaitianus Angen v. Joshua Kawong and the Electoral Commission of PNG, LLG-EP 08 of 2008 that there appears to be a silence in the law in respect to petitioners not being present to prosecute their petitions in the District Courts and when that happens resort can be made to the enabling District Courts Act Chp. 40. where I said:

"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. In so doing the District Courts are vested with the authority by virtue of s. 144 of the Act (supra) to decide whether to dismiss or adjourn the petition depending on the circumstances.

4. I must ask whether this matter deserved to be adjourned. I think not. I say this because this matter was adjourn to the 17th September at 9:30 in the morning after all parties including the petitioner were consulted during the compulsory pre-trial conference at the Pitalok Center, Tabubil, WP on the 1st September at about 3 o’clock in the afternoon and soon after a notice was placed in the public notice board at the court house and read on the local radio toksawe segment of the 17th September meeting. Had the petitioner missed those notices he would have been reliably informed had he made an attempt to visit the court house registry.

5. My review of the file indicates no request by the petitioner seeking an adjournment nor is a representative present in court to pray for one. The Organic Law on National and Local-level Government Elections 1997 places a lot more responsibility on those who seek to question a presumably free and fair election victory of which prompt attendance is one such implied duty and any unexplained failure by them to appear to prosecute can prove fatal. I said in the Angen Case that not only is a petitioner expected to appear but the law places a duty upon him to make himself available personally or through representative; after all the proceeding itself was allowed to commence at his own volition and therefore he must make every effort to ensure his case endures all due processes and challenges till the end.

6. Despite this seemingly strict expectation, the law however is not blind to situations and circumstances that may be beyond the control of either of the parties thus we see in rule 4.4.1 of the Practice Rules Local-level Government Election Petitions 2008 that a court may adjourn at any time of the proceeding upon the application of a party. This is also the same under s. 144 District Courts Act (supra) and is left to the parties to avail themselves of.

7. As it was in the Angen Case I do not wish to make a ruling on the objection to competency filed simply because the petitioner is not available and had not formally received the objection and responded accordingly, hence my ruling on competency be withheld.

8. 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 Parua Lawyers