Heah v Pundari [2012] PGNC 203; N4792 (26 August 2012)

N4792

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 21 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 KOMPIAM-AMBUM OPEN ELECTORATE

BETWEEN

LUCAS NEAH
Petitioner

AND

JOHN THOMAS PUNDARI
First Respondent

AND

ROMALO BAPU – District Returning Officer for Kompiam-Ambum
Second Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2012: 20th & 26th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Grounds of – Irregular service on first respondent – Petition left at wrong residential address of first respondent – Application arising from election dispute – National Court Election Petition Rules, 2002 (as amended) – Rules 6,7 & 18.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Court's power of summary dismissal – Discretionary – Grounds of petition – Bribery, undue influence and illegal practices against respondents – No issue as to service on second and third respondents – Dismissal of petition prejudicial to petitioner's claim against second and third respondents – Application for summary dismissal refused – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7, 17 & 18.

Cases cited:

Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)
Wari Vele -v- Powes Parkop (2008) SC945
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364
Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378

Counsel:

Mr R Mann-Rai, for Petitioner
Mr D Dotaona, for First Respondent
Mr R Williams, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS ELECTION PETITION FOR IRREGULAR SERVICE

26th September, 2012

1. MAKAIL, J: This is an application by the first respondent to dismiss the petition on the ground that service of the petition is irregular pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). It states:

"18. SUMMARY DETERMINATION

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) make such other orders as it deems just."

2. In the petition, the petitioner disputes the election of the first respondent as member elect for Kompiam-Ambum open electorate in the Enga Province in the 2012 General Elections. The first respondent alleges that the petitioner failed to serve the petition on him in accordance with Rule 7 of the EP Rules. He alleges that the petition was left at a wrong residential address hence service is irregular and the petition should be dismissed.

3. If the petitioner seeks to have the Court extend time to serve the petition on him, he submits that first an election petition is a serious matter and the petitioner has an onerous burden in ensuring that he complied with the EP Rules to ensure that it progressed without delay and he failed to strictly comply with the rules on service. Secondly, the reason offered by the petitioner is unsatisfactory and for these additional reasons, the Court should refuse any application for extension of time and dismiss the petition.

4. The second and third respondents concede that the Court has power to summarily dismiss a petition under Rule 18 of the EP Rules but take no position on this application. They draw the Court's attention to the candidate's nomination form and candidate's information form and point out that the residential address of a candidate is set out in the latter and not the former.

5. The petitioner strongly opposes the application and submits that there is no irregularity in the service of the petition because the residential address where he delivered the petition is the residential address of the first respondent. It is also where the first respondent lives. Even if service is irregular, the first respondent has submitted to the jurisdiction of the Court by his act of filing of a Notice to Appear through his lawyers. Alternatively, he submits leave should be granted to extend time by a further 14 days to serve the petition on the first respondent by personal service.

6. Rule 7 of the EP Rules provides for the mode of service of a petition. According to that rule, the petition may be personally served, may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve. For completeness sake, I set out Rule 7 in full below:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament."

7. Under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the first respondent within 14 days of the date of filing the petition. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2. Rule 6 states:

"6. SERVICE OF PETITION ON RESPONDENTS

(1) Within 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents and must, at the same time, provide the respondents with:

(a) three copies of a Notice to Appear in accordance with Form 1 completed with the title of the proceedings; and

(b) the Registrar's or his delegate's Notice which shall state the date, time and place at which a Directions Hearing will be held and the matters in Rule 12(3).

(2) The Notice referred in Rule 6(1) (b) shall be in accordance with Form 2."

8. The petition was filed on 24th August 2012. The 14 days expired on 06th September 2012. The petitioner says that he served the petition on the first respondent within 14 days and that was on 03rd September 2012 at 4:30 pm at the residence of the first respondent located at allotment 11, section 42, East Boroko, in the National Capital District. The petition and related court documents were left by Constable Gerrison Simon and three other policemen with a relative of the first respondent by the name of Tomao Yakaegun. The first respondent says that his residential address is Meriamanda village, Kombiam, Enga Province. He annexes to his affidavit filed on 10th September 2012, four photographs of what appears to be a permanent dwelling house and says that, that is his residence located at Meriamanda village in Kompiam in Enga Province.

9. The first issue is whether the residential address where the petitioner left the petition is the one stated by the first respondent in the nomination form as required by Rule 7(1)(b). I consider that in order to establish that the residential address where the petitioner left the petition is the one stated by the first respondent in the nomination form, the petitioner must provide evidence, preferably from the second respondent to verify his assertion. Evidence of a nomination form that has the residential address would support his contention that service is regular. There is no evidence either from the second and third respondents or a nomination form or evidence suggested by the second and third respondents, candidate information form to verify the petitioner's assertion. For these reasons, I am not satisfied that the petitioner complied with Rule 7(1)(b). Service is therefore irregular.

10. Notwithstanding the irregularity in the service of the petition, the second issue is whether the filing of a notice of appearance by the first respondent's lawyers amounts to the first respondent submission to the jurisdiction of the Court and an acceptance of the service of the petition. Petitioner's counsel was unable to cite any case authority to support his submission. There is no dispute that the first respondent's lawyers filed a notice to appear. The notice does not state if it is a conditional one. The lawyers can be excused for not making that clear because unlike the National Court Rules, (O 7, r 7 - Conditional Notice), the EP Rules make no provision for it. But they have taken a position and made it clear at the outset that the first respondent disputes service of the petition.

11. This position is reinforced by the filing and service of the notice of motion on the petitioner seeking dismissal of the petition on the basis of irregular service. In my view, the first respondent has sufficiently put the petitioner on notice that he objects to service of the petition on him and for these reasons, I am not satisfied that the filing of notice to appear by the first respondent's lawyers constitutes a submission to the jurisdiction of the Court and acceptance of service of the petition.

12. Turning to the alternative submission, the petitioner submits that the Court extent time for him to serve the petition on the first respondent. He relies on the Court's power under Rule 17 of the EP Rules. It states:

"17. RELIEF FROM RULES

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-Level Government Elections." (Emphasis added).

13. Rule 17 was considered in Walter Schnaubelt -v- Hon Bryon Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012). It was conceded by the petitioner that service of the petition on the first respondent at his office was irregular and it was out of time by 16 days after the expiry of 14 days. He sought extension of time by invoking Rule 17 and the Court held that the Court has power to dispense with the time limit of 14 days and extend it even after the 14 days has expired. On that authority, I am satisfied that time may be extended after the 14 days has expired. Whether or not time is extended is an exercise of judicial discretion as it is exercised based on proper principles of law.

14. In Walter Schnaubelt's case (supra), I adopted and applied the principles enunciated by the Supreme Court in Wari Vele -v- Powes Parkop (2008) SC945. They are:

1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

2 The application for extension must be made promptly;

3. If there is delay, reasonable explanation for the delay;

4. The relief sought by the applicant will not unduly prejudice the other party's case; and

5. The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

15. The next course of action to be taken by the petitioner after service of the petition on the respondents is to attend directions hearing. It has been held that service of a petition on the respondent is a pre-requisite to the petition progressing further to directions hearing. If it is not served on the respondents, it is incompetent and may be dismissed: Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983.

16. There is no evidence explaining what the petitioner did between the 24th August and 06th September 2012 to serve the petition on the first respondent. The evidence show that the only time the petitioner attempted to effect service of the petition was on 03rd September 2012 at the residential address at East Boroko and considered that it was sufficient service.

17. It is apparently clear that the petitioner is adamant that service of the petition at the residence at East Boroko in Port Moresby was proper as it was in compliance with Rule 7 of the EP Rules. The petitioner maintained that position following service on 03rd September 2012 right up to the hearing of this application. He did not at least take a step back and reconsider his position. Because if he did, he would have noted that service at the residence at East Boroko may be an issue and he would have verified it with the second respondent by checking the nomination form. He had lawyers acting for him and in my view, verifying the residential address would have been the most prudent thing for the lawyers to do. This was not done. Now that an objection has been raised on service, he asks for leave to correct the error. It is a belated application.

18. In my view in the absence of any evidence verifying the residential address at East Boroko, the advice by the petitioner's lawyers was wrong and the petitioner acted on that advice to his own detriment. Further, in my view the change in the position is a belated attempt to dilute the seriousness of the default. I have also held in Walter Schnaubelt's case (supra) that a lawyer's failure to act is not a satisfactory reason to explain a default or ground to set aside a judgment. see also Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364 and Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378. I consider these principles equally apply here. For these reasons, I am not satisfied with the petitioner's explanation.

19. But that is not all. I have to also be satisfied that the relief sought by the first respondent will not unduly prejudice the other party's case, in this case, the second and third respondents. There is no dispute in relation to service of the petition on the second and third respondents. As noted earlier, they take no position on the application. This is a critical point because in my view, whether or not the petition should be dismissed in its entirety depends on the grounds of the petition.

20. I have carefully perused the grounds of the petition and they raised allegations of bribery and undue influence against the first respondent. That is not all. There are also allegations of illegal practices by supporters of the first respondent and servants and agents of the second and third respondents. Most of them alleged conspiracy among the respondents to hijack the polling process and ensure that the results favoured the first respondent. For example, at paragraphs 6.1 and 6.2 of the petition, the petitioner alleges that between 27th and 28th June 2012, the polling team sent out by the second and third respondents to conduct polling at Kundis and Pandai villages at Ambum conspired with the first respondent and hijacked the polling process by demanding and taking 50 unmarked ballot papers and marked them out in favour of the first respondent.

21. In my view the allegations against the respondents are serious and require further consideration by the Court at trial. If the petition is dismissed in its entirety, the petitioner will be greatly prejudiced in proving the allegations against the second and third respondents. As I said, the second and third respondents have been served and have remained neutral. The petitioner has a right to prove these allegations and should not be denied now. If the petition is dismissed against the first respondent only, then he will also be prejudiced because the petition will progress against the second and third respondents. In my view I do not think the first respondent will and can afford that or allow that to happen. It would certainly be in his interest that he remain and respond to these allegations. This is also the difference in Walter Schnaubelt's case (supra) where I dismissed the petition in its entirety because the grounds (bribery and undue influence) were alleged solely against the first respondent.

22. The power to dismiss is an exercise of judicial discretion. It must be exercised based on proper principles of law. Rule 18 gives the Court power to "make such other orders as it deems just". There is no issue as to Dotaona Lawyers representing the first respondent in this application. Unless Dotaona Lawyers cease to act, they remain as lawyers on record for the first respondent. Further to that, the first respondent is aware of the petition against him. Thus, despite the irregularity in the service of the petition, I am of the view that in the interests of justice, the discretion should not be exercised in favour of the first respondent. I refuse the application and in the exercise of the Court's power under Rule 17 and Rule 18(iii) to progress the petition to trial, I make the following orders:

1. The application to dismiss is refused.

2. The petitioner shall have a further 7 days to serve the petition and related court documents on Dotaona Lawyers from the date of this order.

3. Each party shall bear their own costs of the application.

4. Time shall be abridged.
________________

Mann-Rai Lawyers: Lawyers for Petitioner
Dotaona Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents