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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
OS 14 of 2002
BETWEEN:
ALFRED POGO
Petitioner
AND:
GUAO KATUCNANE ZURENUOC
First Respondent
AND:
THE ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent
Lae: Sevua, J.
10th & 13th February 2003
Counsel:
M. Wilson, G.Manda & E.Suelip for Petitioner
J. Kunjip for 1st Respondent
R. William for 2nd Respondent
13th February, 2003
SEVUA, J: The Petitioner has disputed the result of the election for the Finschaffen Open Electorate returning the First Respondent as the elected Member of Parliament representing the people of Finschaffen following the 2002 National General Elections.
The petition was filed at the Waigani Registry on 14th August 2002. The trial was initially fixed for 2nd December 2002 then changed to 3rd February 2003 and eventually 10th February 2003.
At the commencement of the trial on Monday, 10th February, Mr Wilson announced that there were two preliminary matters to be dealt with. The first was an application to amend the date of declaration in the petition, and the second was the objections to competency by the First Respondent supported by the Second Respondent. In the interim, grounds 6.1, 6.5, 6.6, 7.4 and 8 of the petition were to be withdrawn. Consequently, I ordered that those grounds were withdrawn with leave. Thirdly, Mr. Manda had been briefed to appear as counsel with Ms Suelip as Mr. Manda had initially drawn up the petition and is familiar with it. Mr. Wilson then sought to be excused because he said there are other electoral matters in Port Moresby he must return to attend to so leave was granted to him excusing him from further participation in this trial.
However, prior to Mr. Wilson being excused, he had asked the Court to indicate how this matter would proceed. Unaware that the order being sought in the Petitioner’s motion was the first ground of objections raised by the First Respondent, I had intimated that I would hear the application then rule on it and depending on what the outcome of the motion was, the Court would then proceed with hearing the competency issue. It was not until the Petitioner’s counsel had moved its motion and was addressing the Court that the Court became aware that the issue in the Petitioner’s motion was the first ground of objections to competency raised by the First Respondent. I then announced that the position I had indicated earlier would not be maintained in the light of the revelation of the fact I have alluded to, and that the Court would hear the Petitioner’s application and then allow the First Respondent to move its objections and then the respondents would respond to the Petitioner’s motion in their addresses. That course was agreed to by all the parties and this trial commenced in that manner.
The Petitioner’s notice of motion was filed on 27th November 2002 and the orders sought were:-
In moving the motion, counsel for the Petitioner, Mr. Manda, informed the Court that he would address motions 1 and 2 when he responds to the objections to competency, but at this stage he was seeking an order in terms of paragraph 3 of the motion, which in substance, an amendment of the petition.
The particular part of the petition that the Petitioner is seeking to amend is paragraph 3 which reads:
"On 4th July 2002 the Second Respondent declared the result of the Elections and returned the First Respondent as the duly elected Member for the Electorate."
The motion was supported by the affidavit of the Petitioner sworn and filed on 27th November 2002. The material parts of the affidavit are that the declaration for the result of the Finschaffen seat was made on Friday, 5th July 2002, but that he had mistakenly instructed his lawyers that the date of declaration was 4th July 2002, and by the time the statutory time limit of 40 days had expired he realized his mistake hence this application. As such he was "seeking orders from the Court to amend the date of declaration for the electorate as it is evident in public record that the declaration date is 5th July 2002 and not 4th July 202 as stated in the Petition", (my emphasis).
A copy of the writ for the Finschaffen Open Electorate was annexed to the affidavit, and it clearly shows that the Returning Officer for the Finschaffen Open Electorate, Bob Bigilam, certified the writ on 5th July 2002.
At this juncture the Court must emphasise that the date of declaration, which is the 5th July 2002, is not disputed by the respondents. That date, as the Petitioner has shown in his affidavit, is the correct date. The Court can accept that as a primary fact because the writ speaks for itself. But whether the 4th July 2002 or the 5th July 2002 is the date of declaration is not the issue here. The issue is simply whether the petition can be amended outside the 40 days time limit. Or, to put it in a slightly different way, whether the Court has any discretion to amend this petition outside the 40 days requirement in both the Organic Law on National and Local-Level Government Elections (the Organic Law) and the National Court Election Petition Rules 2002.
Counsel for the Petitioner submitted that the pleading of the declaration date as the 4th July 2002 is curable by a simple amendment to the Petition in accordance with the decision of the Supreme Court in Chan v. Apelis (1999) unreported. The Court has not been provided with the details of that decision and I have not had the liberty of reading that judgment so I am unable to determine what the Supreme Court said in that judgment. But I have looked at Apelis v. Chan, (1998) SC573, however the issues there are not relevant to the present case. Counsel also mentioned a decision of Injia, J and submitted that a similar determination in respect of the 40 days was made, however, the details of that case were not supplie. If a party relies on the strength of a case law, he is obliged to provide that case to the Court, if not, provide the citation.
Mr. Manda submitted that the evidence in support of the motion is undisputed as the writ is a public document and it sets out the correct date of the declaration, which is 5th July 2002, therefore the Court should accept the evidence and grant the order to amend the Petition. He relied on the Supreme Court decision in Kelly Kilyali Kalit v. John Pundari and The Electoral Commission, unreported, (1998) SC 569 where the Court said,
"The Original Writ speaks for itself. No amount of persuasion or representation by the Electoral Commission or by its staff can change the Writ."
The Petitioner therefore submitted that the failure to plead the correct date of declaration is of no consequence as the error is curable by a simple amendment especially when the undisputed evidence is that the petition was filed within the forty (40) days statutory time limit.
In response to the objection raised by the First Respondent, the Petitioner submitted that paragraph 3 of the petition is merely a part of the background introduction of the petition. The facts in which the Petitioner relies on to over turn the result of the election are pleaded from paragraph 6 onwards. Again, in his submissions in reply to the first objection by the First Respondent as to this issue, counsel relied on Kalit v. Pundari (supra).
However, interestingly enough, counsel for the Petitioner informed the Court during his reply to the First Respondent’s objections after lunch on 10th February that if the Court finds against the Petitioner on this issue, he had instructions to withdraw paragraph 3 of the petition and counsel sought leave to withdraw this paragraph. The Court intimated that it would rule on this in its judgment but that the Petitioner had allowed this ground to remain paving the way for the First Respondent’s first objection to competency and that it was too late to withdraw at that point in time. Nevertheless, the Court was of the view that if paragraph 3 was withdrawn there was no way the Court, or anyone for that matter, would know from reading the petition that the petition was filed within the 40 days time limit stipulated by law. It is the Court’s view, and that of the respondents, that paragraph 3 which pleaded the date of declaration is crucial to the whole petition and the proceedings.
When pressed by the Court to show where the Court can derive its power to amend outside the 40 days time frame, Mr. Manda invited the Court to consider s. 212 and s. 217 of the Organic Law. He submitted that in considering these provisions, the Court can exercise its power and grant the amendment his client now seeks because it would be just if to do so. With respect, I consider that this argument is baseless and misconceived. These provisions are irrelevant to the issue of amendment and I will revert to this aspect later.
The First Respondent’s objections to competency, which was filed on 13th November 2002, sets out sixteen grounds of objections. The First Respondent says that the petition does not comply with the mandatory requirements of Section 208 (a) to (e) inclusive then sets out each ground of objection that the petition is incompetent. The first ground of objection that the Court has already alluded to relates to the date of declaration, the subject of the Petitioner’s notice of motion moved prior to the Court hearing these objections.
Counsel for the First Respondent, Ms Kunjip, submitted that the first ground of objection the First Respondent relies on is that paragraph 3 pleaded the wrong date of declaration and therefore on the basis of that pleading, the petition was filed one day outside the 40 days time limit. The 40 days period from 4th July 2002 expired on 13th August 2002, and since the Petitioner had filed his Petition on 14th August 2002, he was out of time by one day.
The First Respondent therefore submitted that the petition, as it is, is not capable of being amended on the 10th February 2032. Counsel relies on the authoritative decision of the Supreme Court in Delba Biri v. Bill Ginbogl Ninkama & Ors [1982] PNGLR 342. In particular, Ms Kunjip referred the Court to pages 346 and 347 of the judgment. In that case, the Court was dealing with the same issue as it now arises before me, but under the old Organic Law on Elections. Nevertheless, the provisions are very similar and have the same effect. In answering the questions posed in that reference, the Court sets out the law as follows:
" An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.
Section 2 (2) of the Organic Law provides that notwithstanding any other law, where a time limit is imposed under this law for the taking of an action, then unless the contrary intention appears, that time is mandatory. When this is read in conjunction with s. 208 (e) of the Organic Law, it is clear that the time limit of two months following the declaration of the result of the election, in which to file a petition, is a rigid limit of time ..............."
The First Respondent submitted that the petition offends s. 208 (e) as the Organic Law does not empower the Court to grant an amendment outside the 40 days time limit. In response to the Petitioner’s notice of motion, the First Respondent contended that if the Court were to accede to that application by granting the amendment, the amendment would offend s. 208 (e) of the Organic Law and Rule 11 of the Election Petition Rules.
Furthermore, it was submitted that the Court’s power in amending a petition only applies when the amendment is made within the 40 days time limit.
In respect of the Petitioner’s submissions on Sections 212 and 217 of the Organic Law, the First Respondent submitted that those provisions do not apply to the issue of amendment, but are applicable to the merits of the petition. Counsel argued that s. 217 is a mere procedural provision in the Organic Law and the Petitioner cannot rely on it. As for s. 212, although it provides for the powers of the Court, it is invoked only after the evidence in a case have been adduced and are before the Court. Counsel further submitted that what the Petitioner is seeking in his notice of motion is not a relief under s. 212.
In her final submission, Ms Kunjip submitted that the petition was filed out of time, which failed to meet the requirement of s. 208 (e) of the Organic Law and furthermore, that the Court has no power to amend the petition at this stage.
The Electoral Commission, (the Commission) which is the Second Respondent herein, supports the First Respondent’s objections to competency.
In relation to the issue of amendment, counsel for the Commission, Mr. William, submitted that the Court has no power to amend paragraph 3 of the petition which pleaded 4th July 2002 as the declaration date, so the 4th July 2002 remains as a fact in the petition. He also cited Biri v. Ninkama (supra), in particular, the Court’s view expressed at page 345:
"In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with."
Mr. William referred to the submission by the Petitioner’s counsel on s. 217 of the Organic Law and argued that that provision only comes into play when the Court is considering evidence. Again he referred to Biri’s case and the Supreme Court’s statement of principle at 346:
"It is clear to us that s. 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to merits. It is a procedural section only: See Ithaca Election Petition; Webb v. Hanlon [1939] QSR 90"
Having considered all the submissions by all the counsel and the authorities cited by them, I consider that I do not have a choice or power other than to follow the authoritative statements of the law in Biri v. Ninkama (supra).
There is no dispute that the Petitioner filed his petition on 14th August 2002. There is no dispute that paragraph 3 of the petition pleaded 4th July 2002 as the date the seat of the Finschaffen Open Electorate was declared. There is no dispute that 5th July 2002 is the correct date in which the Returning Officer for the Finschaffen Open Electorate declared the First Respondent the winning candidate for that electorate. As I alluded to earlier, the issue in this matter is not whether 4th July 2002 or 5th July 2002 is the correct date of declaration.
I consider that there are two issues raised in this preliminary hearing. The first is whether the Petitioner can amend his petition at the trial, and the second issue follows the first. It is whether the petition is competent to proceed to trial. I think all the counsel had addressed both issues in a substantive way and I thank all counsel for their well prepared written submissions, which has assisted the Court in its deliberation.
There is no need to delve substantively on the first issue as the law is quite clear and is settled in this jurisdiction. We start on the premise that s.208 (e) stipulates a time limit. This provision states:
A petition shall –
(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).
The Election Petition Rules promulgated by the Judges on 11th July 2002 compliment that Constitutional Law provision in Rule 11, which states:
A petition may be amended at anytime before the expiry of 40 days from the declaration.
In my view, nothing can be clearer than those provisions of the law. The Petitioner has the right to amend his petition, but the law is quite specific as to when he may amend his petition. He may amend within the 40 days from the date of declaration. The law does not allow an amendment outside that 40 days time limit and despite the Court’s several questions to counsel for the Petitioner as to where this Court can derive its power to amend the petition at this stage, he has been unable to point to any law. It is important to note that the Petitioner’s motion to amend his petition is heard on the sixth month after the 40 days time limit has lapsed. Simply, there is no power to amend outside the 40 days limit.
Counsel for the Petitioner also submitted that so long as the amendment does not go to the merits of the case, this Court can take
judicial notice of the actual date of declaration in the writ. However, I am sorry to say that this submission misconceives the law.
In my opinion, the principle in Kalit v. Pundari (supra) does not apply here. It is true that the writ speaks for itself, however
the basis for which the Supreme Court established that principle in that case is not the same as the issue in the present case. The
Court appreciates that the issue in that case relates to the date of declaration
as is similar to this case. However, in that case, there was a dispute as to the correct date of declaration. In the present case,
there is no dispute with the date of the declaration except that the Petitioner pleaded the wrong date and he seeks to amend that
date at this stage. I consider therefore that Kalit v. Pundari (supra) does not apply in the present case.
It is trite law that s. 208 of the Organic Law, requires in mandatory terms, full compliance with the requisites of a petition. A petitioner must comply with those mandatory requirements. The first requisite is stipulated in sub-paragraph (a) – a petition must set out the facts relied on to invalidate the election or return. Contrary to the Petitioner’s arguments that paragraph 3 of the petition is merely an introductory background to the petition, it is my view that the date of the declaration is a primary fact that must be precisely pleaded in the petition because from that fact, the Court, and all other parties, will know if the petition is filed within the time limit required by the requisite in sub-paragraph (e).
Both the Supreme and the National Courts, have, in many instances, held that election petitions are serious matters. It is a serious matter for a losing candidate to challenge the wishes of the majority expressed through the ballot. It is therefore required of him to ensure that the facts he relies on to over turn the wishes of the majority in a return are clearly and precisely pleaded. But if he makes an error, he has the right to seek an amendment to any fact pleaded in his petition, so long as he exercises that right in accordance with the law. The people of Finschaffen are entitled to be in no doubt as to who their political representative in the National Parliament is.
In my view, the Petitioner in this case has had every opportunity to ensure that the facts pleaded in his petition were correct. One would be forgiven for saying that the petitioner should have checked the writ prior to its transmission to the Head of State, but that is what he failed to do. I do not think it would have been difficult for him to check with the Returning Officer in Finschaffen or Lae before the writ was sent to the Electoral Commissioner if he had intended to challenge the result of the election. The writ would have been the first document for him to view so that the mistake he made could have been avoided. Even then, after the transmission of the writ to the Head of State, the Petitioner still had ample time to check before filing his petition. His notice of motion was filed on 27th November 2002 and heard on 10th February 2003. The period between these dates do not fall within the 40 days time limit.
It is my opinion that the 40 days time limit has a significant bearing on all election petitions. There is a very good reason for the legislature in putting this time limit in the Organic Law because election petitions are serious matters. The statements of the law pronounced by the Supreme Court in Delba Biri (supra), which I wish to cite and apply here demonstrates this significance. At page 347 the Court said these:
"Again we are in agreement with the judgment in Mapun Papol v. Antony Temo (supra) at p. 180 that these provisions were intended to make a definite cut-off point after which there would or could be no further questions about the results of the elections. The electorate is entitled to be in no doubt as to who is its member. The peculiar nature of this jurisdiction and the importance of the public interest of securing an early determination of the matter are relevant considerations against extensions of time and amendments of petitions.
The weight of authority both in our jurisdiction and in other jurisdictions with very similar electoral laws is clearly on the side of disallowing any amendment after the time limit for filing the petition has expired."
The Petitioner has not referred to any authorities that lend weight to his application and the Court is unable to find any case law on amendment of petitions outside the 40 days time limit. However there is along line of authority for the proposition that there can be no amendment to a petition after the expiration of the time limit. Delba Biri’s case sets out some of these authorities from the English and Australian jurisdictions at pages 347 and 348. I can only echo the Supreme Court’s pronouncement that I have just cited above.
In respect of the Petitioner’s notice of motion therefore, it is beyond argument that the petition cannot be amended outside the 40 days time limit. I am of the opinion that the Petitioner’s application to amend the petition at this stage and outside the 40 days limit is unmeritorious and has no constitutional and legal basis. The Court must reiterate that the issue here is one of amendment outside the 40 days statutory time period, it is not whether 4th July 2002 or 5th July 2002 is the correct date of declaration. The Petitioner therefore cannot amend his petition at this late stage. His right to do that expired on the 14th August 2002. His argument that the Court should take judicial notice of the writ is misconceived.
I consider that s. 212 and s. 217 of the Organic Law do not assist the Petitioner at all. Section 212 provides the relief that the Court has power to grant to a petitioner, amongst other things. There is nothing in that provision that assist the Petitioner in his application. Similarly, s. 217 renders no assistance to the Petitioner. The Court is not dealing with the evidence at this stage. The affidavit of the Petitioner in support of his motion is not the evidence in the trial. The Petitioner therefore cannot invoke s. 217. The law is quite clear as established in Delba Biri at page 346:
"It is clear to us that s. 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only."
With respect that is the law on s. 217. It was subsequently applied by the National Court in Michael Badui v. Bart Philemon [1992] PNGLR 451; Raymond Agonia v. Albert Karo [1992] PNGLR 463 and Vagi Mae v. Jack Genia, unreported (1992) N.1105. Thus s. 217 is procedural only and it is invoked only when the Court is dealing with evidence in a trial. I consider that this is not the time to invoke this provision. I am of the opinion that the Petitioner’s reliance on sections 212 and 217 is misconceived. Those provisions do not help his case and I reject his arguments.
Accordingly, the Petitioner’s notice of motion is refused and dismissed as being misconceived, unmeritorious and without any constitutional and legal basis.
The effect of the dismissal of the Petitioner’s application for amendment means that the petition stands as it is, with the incorrect pleading of the date of declaration as 4th July 2002 in paragraph 3.
The next question then is, is the petition competent to proceed to trial? With paragraph 3 of the petition pleading 4th July 2002 as the declaration date, the 40 days stipulated by s. 208 (e) lapsed on the 13th August 2002. The petition was filed on the 14th August 2002 therefore it is one day outside the 40 days time limit required by s. 208 (e) of the Organic Law. It follows therefore that the First Respondent’s first ground of objection to competency must be upheld. And again, I am at pains to express and reiterate that the date of the declaration is not 4th July 2002, but 5th July 2002. Nevertheless, despite the Court’s acceptance of 5th July 2002 as a primary fact, it is not the correctness of the date that is in issue here. The Petitioner pleaded the wrong date as the date of declaration. He did not amend that date within the 40 days period as provided in Rule 11 of the Election Petition Rules. His application for amendment has been dismissed and there is no other conclusion, in my view, then to say that the petition as it stands, is incompetent.
Earlier on I emphasized the fact that an election petition is a serious matter. I want to reiterate that principle of law. Section 208 of the Organic Law provides all the requisites of a petition. These are mandatory which demands strict and total compliance. If a petitioner fails to comply with any of those requisites, he is not entitled to proceed to trial because s. 210 does not permit that. I need only quote and apply the law as enunciated by the Supreme Court in Biri v. Ninkama (supra) at page 345:
"An election petition is not an ordinary cause ( In Re the Norwich Election Petition; Birbeck v. Bullard (1886) 2 TLR 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."
In respect of the First Respondent’s first ground of objection, the Court upholds that objection. It is the judgment of this Court that as it stands, the petition is incompetent. The date 4th July 2002 pleaded in paragraph 3 of the petition is incorrect, however because the Petitioner has no right to correct that error by an amendment at this late stage, that date remains as a fact which has been pleaded, resulting in the petition not being filed within the 40 days time limit required by s. 208 (e) of the Organic Law.
That period of 40 days following the declaration of the result of an election in which a petition can be filed is a rigid time limit. Failure to comply with any requisite in s. 208 means that the petition cannot proceed because of s. 210 of the Organic Law. This petition must therefore be terminated here and at this stage.
Both counsel for the respondents have addressed substantially on each of the grounds of objection to competency. The Court has not considered the submissions in those objections. In the light of the refusal of the Petitioner’s application to amend, and the subsequent upholding of the First Respondent’s first ground of objection to competency, it is not necessary to address the rest of the objections to competency.
For the foregoing reasons, it is the judgment of the Court that this petition, as it stands, is incompetent and is dismissed. Costs follow the event. The formal orders of the Court are:
Lawyers for the Petitioner: Warner Shand
Lawyers for First Respondent: Maladinas
Lawyers for Second respondent: Nonggorr & Associates
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