Olmi v Electoral Commission of Papua New Guinea [2012] PGNC 170; N4851 (29 October 2012)

N4851

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 105 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE NATIONAL CAPITAL DISTRICT PROVINCIAL ELECTORATE

BETWEEN

AIWA OLMI
Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 25th & 29th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Joinder of parties – Application to join – Addition of party – Application arising from election dispute – Power of Court to grant joinder – Wide discretion – Grounds of – Interested party – Governor-elect – Sufficient interest – Relief sought to invalidate election of applicant–Application granted – Organic Law on National and Local-level Government Elections – Section 212(3) – National Court Election Petition Rules, 2002 (as amended) – Rules 11, 12(3)(j)&(k) & 17.

Facts

This is an application for joinder by the applicant who is the Governor-elect for National Capital District. The petitioner opposed the application on the ground that the Organic Law on National and Local-level Government Elections and the National Court Election Petition Rules, 2002 (as amended) do not provide for joinder of party.

Held:

1. Section 212(3) of the Organic Law on National and Local-level Government Elections and Rule 12(3)(j)&(k) of the National Court Election Petition Rules, 2002 (as amended) are wide enough to grant power to the Court to order joinder of party.

2. An applicant for joinder must establish that he has sufficient interest in the matter. Konze Kara -v- Public Curator (2010) N4048 referred to.

3. The applicant is the Governor-elect and beneficiary of the 2012 General Elections. As his election is being challenged by the petitioner where the petitioner wants his election declared null and void and a by-election ordered, he has sufficient interest in this petition.

4. Leave is granted to the applicant to join as second respondent in the proceeding.

Cases cited:

Konze Kara -v- Public Curator (2010) N4048

Counsel:

Mr P Ame, for Petitioner
Ms A Kimbu, for Respondent
Mr P Harricknen, for Applicant

RULING ON APPLICATION FOR JOINDER OF PARTY TO PETITION

29th October, 2012

1. MAKAIL, J: This is an application for joinder. The applicant is the Governor-elect for National Capital District and seeks leave of the Court to join as a respondent in this proceeding. If he is joined, he further seeks leave to file and serve a notice to appear out of time. He was elected Governor after the 2012 General Elections. The petitioner was one of the candidates who contested the same seat and lost. He finished fifth. On 17th September 2012, the petitioner filed this petition disputing the election of the applicant.

2. The applicant brings this application under Rule 17 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). He relied on this Rule to dispense with Rule 11 on amendment of petitions and be allowed to join the proceeding because he does not want the petitioner to raise a complaint against him that the joinder after 40 days is an amendment to the petition which is prohibited by Rule 11.

3. He contended that as Governor-elect, he has interest in this petition and must be joined to respond to it, especially where the petitioner seeks orders to invalidate his election as Governor and a by-election. In addition, he contended that one of the grounds (Ground 7) raises a legal issue. It is in relation to the expiration of the term of the Chief Electoral Commissioner, suggesting that the Chief Electoral Commissioner had no authority to conduct the General Elections and the election was void ab initio.

4. The Electoral Commission supported the application, contending that if the joinder is not allowed, it will prejudice the applicant. The petitioner vigorously opposed it. He submitted that the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and the EP Rules do not provide for joinder of party. If it was Parliament's intention to allow joinder of party in election petition cases, the Organic Law on Elections would have said so.

5. This is evident in its absence in section 212 of the Organic Law on Elections, which provision sets out the powers of the National Court with regards to the conduct of election petitions. Its absence is also evident in the EP Rules. In furtherance to this contention, he drew a comparison with section 228 of the Organic Law on Elections, which provides for references by Parliament to the National Court on question of qualification of member or vacancy. He submitted that in these references, section 230 provides for an interested party to join with leave of the National Court.

6. In short, the petitioner contended that the Court does not have power to join a party in election petitions and to do so would have the effect of amending the petition, which amendment is prohibited after the 40 days time period for filing of petition. He was unable to cite a case authority for this proposition.

7. With respect, I reject these submissions. They are misconceived. While I accept that the Organic Law on Elections and the EP Rules do not expressly provide for joinder of party, it does not mean that the Court has no power to grant joinder of party. In my view the Court has power under section 212(3) of the Organic Law on Elections and Rule 12(3)(j)&(k) of the EP Rules to order joinder of parties. In my view these two provisions are wide enough to grant power to the Court to order joinder of party.

8. As to the principles on joinder, Justice Hartshorn summarised them in Konze Kara -v- Public Curator (2010) N4048 as follows:

"As to an application to add a party to a proceeding, as Davani J. said in PNG International Hotels Pty Ltd & Anor v. The Registrar of Land Titles and Ors (2007) N2307, the principles on joinder in this jurisdiction are well established. They were discussed by Kandakasi J. in Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718 where he enunciated principles adopted by Sakora J. in AGC (Pacific) Ltd v. Sir Albert Kipalan & Ors (2000) N1944.

25. These principles are;

1. whether the applicant has sufficient interest in the

proceedings,

b) whether the applicant's joinder as a party is necessary to

ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated upon.

26. In considering whether a proposed party has a sufficient interest in the proceeding or whether his joinder is necessary to ensure that all matters in dispute in the proceeding can be effectively and completely adjudicated upon, certain factors warrant consideration.

27. These include whether:

a) any relief is sought against the proposed party,

b) the plaintiff opposes the application for joinder,

c) the proposed party will be affected if the relief sought in the statement of claim is granted,

d) the joinder of the proposed party is necessary to satisfy any orders made in the proceeding."

9. Thus, the main consideration is sufficient interest. An applicant for joinder must establish that he has sufficient interest in the matter. To determine the nature of interest of the applicant, the Court must look at the pleadings and the reliefs sought by the party initiating the legal proceedings. Never is an amendment a consideration. Similarly, the addition of a party or parties does not change the pleadings. They remain unchanged. It is the parties to the legal proceedings that change because of the addition of a new party or parties. Such change will be reflected in the cover page of the originating process, in this instance, the petition.

10. It would seem any amendments to the petition is confined to pleadings under section 208(1) of the Organic Law on Elections and must be done before the expiry of 40 days from the date of declaration. Thus, I am of the view that it is not necessary for the applicant to ask the Court to dispense with the requirement under Rule 11. On the other hand, it is sufficient on the authority of section 212(3) and Rule 12(3)(j)&(k) to join a party. Rule 12(3)(j)&(k) states that:

"At the Directions Hearing, the judge administrator shall consider amongst other things, the following:

(j) subject to Rule 15, any interlocutory matter; and

(k) such other matters as may aid in the prompt disposition of the petition.".

11. I accept the applicant's submissions. He is the Governor-elect and beneficiary of the 2012 General Elections. His election is being challenged by the petitioner. The petitioner wants his election declared null and void and a by-election ordered. I am satisfied that he has sufficient interest in this petition. He must at least be given an opportunity to be heard. The only way is to join him as a respondent in this proceeding. I grant leave to him to be joined and made second respondent in this proceeding. I also grant him leave to file and serve his notice to appear on the petitioner and Electoral Commission forthwith. Cost shall be in the cause and time be abridged.

Ruling accordingly.
____________________________________

Ame Lawyers: Lawyers for Petitioner
Parua Lawyers: Lawyers for Respondent
Harricknen Lawyers: Lawyers for Applicant