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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]
EP. NO. 31 OF 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND
LOCAL LEVEL GOVERNMENT ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS
FOR THE TARI OPEN ELECTORATE
BETWEEN:
JOHNNY POKAYA PHILIP
Petitioner
AND:
JAMES MARAPE
First Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Tari: Yagi J
2013: 03rd, 05th & 07th June
ELECTION PETITION – PRACTICE & PROCEDURE – Objection to Competency – petition filed out of 40 days time limit – Organic Law on National and Local Level Government Elections, s. 208(e).
ELECTION PETITION – PRACTICE & PROCEDURE – Application to amend petition – power of National Court to amend petition – no power to amend petition after 40 days period – law in Re Delba Biri v Bill Ninkama [1982] PNGLR 342 applied – application to amend dismissed – petition dismissed as incompetent with cost.
Cases Cited:
Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Andrew Kumbakor v Joseph Sungi & 3 Ors – EP No. 23 of 2012, unreported Judgment of Kirriwom J delivered in Wewak on 7th December 2012.
Tulapi v Charles Luta (2000) SC653
Paias Wingti v Tom Olga & 2 Ors (2008) N3285
Steven Pirika Kamma v John Itanu & Ors (2007) N3246
Bryan Kramer v Nixon Duban & The Electoral Commission (2013) N4884
Guma Wau & Anor v Electoral Commission of PNG and Camillus Dangima Bongoro, EP No. 92 of 2012 and EP No. 93 of 2012 (consolidated), unreported Judgment of Kariko J delivered at Waigani dated 30th May 2013.
Counsel:
C. Copeland, for the Petitioner
R. Leo, for the First Respondent
R. William, for the Second Respondent
DECISION
07th June, 2013
1. YAGI J: This is an application by the petitioner to amend his petition which was filed on 25th August 2012. The application is made in the face of strong objections filed by the first and second respondents as to the competency of the petition. The application was filed on 23rd November 2012 and is supported by affidavit of Ms. Christine Copland sworn and filed also on the same date.
General background
2. The application arises in an unusual manner because it was prompted by the notice of objection to competency filed by both respondents. A brief background will demonstrate this point. The court records show that the petitioner filed his petition on 25th August 2012. The petition was served on the first respondent on 7th September 2012 and on the second respondent on 29th August 2012. Consequently, the first and second respondents filed their respective notice of objection to competency of the petition. The first respondent filed his objection on 21st September 2012 whilst the second respondent filed its objection on 21st November 2012. In their respective notice of objection, both respondents stated, amongst others, that the petition was filed outside of the 40 days time limit and is therefore incompetent. In response to that ground of objection the petitioner filed on 23rd November 2012 his application to amend the petition.
3. After hearing parties in respect to how the petitioner's application and the respondents' objections should be determined by the Court, the Court ruled that the petitioner's application should be dealt with first as this issue of amendment alone is a fundamental threshold issue and the necessity to determine other grounds of objection will depend on the success of the application to amend.
4. In the course of the petitioner moving his motion, the first respondent raised 2 preliminary objections. The objections relate to the admissibility of certain parts of the supporting affidavit and the competency of the notice of motion itself. These objections were dismissed by the Court. A written ruling in respect to the objections was delivered on 05th June 2013 and a copy of which was made available to the parties.
Notice of Motion
5. The petitioner's notice of motion states:
"THE PETITIONER will at 9.30 A.M. on November 2012 move the Court for orders that:
1. Pursuant to Section 208(a) of the Organic Law on National & Local Level Government Elections (As Amended) leave be granted to the Petitioner to amend the Petition filed August 25, 2012.
2. The court dispense with the requirements of Rule 11 under Rule 17 of the National Court Election Petition Rules 2002 (as amended) to correct a typological error, namely, at paragraph 2 of the Petition, the:-
(a) date the poll was declared from July 13, 2012 to July, 16, 2012; and
(b) number of votes at the declarations of the poll on July 16, 2012 from 23,952 votes to 18,271 votes;
3. Costs of the application be in the cause of the proceedings.
4. For such further or other Orders as the Court may deem fit.
Dated: November 2012
________________________________
C. Copland of YOUNG & WILLIAMS
LAWYERS, lawyers for the First Respondent." (emphasis added)
6. At the time of moving the application and upon objection being raised by the first respondent, Ms. Copland of counsel for the petitioner, quite properly withdrew paragraph 1 of the notice of motion. The application is therefore made pursuant to paragraph 2 of the notice of motion.
7. At the outset it should be noted that there are serious defects in the notice of motion which under normal circumstances would render the notice liable for dismissal on technical grounds. Firstly, on the face of it, the notice of motion is technically defective for want of clarity and certainty. It is also confusing because of the use of the words "typological error". There is no such thing as "typological error". Ms. Copland's attempt to amend the word to "typographical error" was refused. However, notwithstanding this anomaly, the parties nevertheless proceeded on the footing that it was a typographical mistake and went on to argue their respective cases as regards the merits and demerits of the application. Secondly and more significantly, r. 17 of the National Court Election Petition Rules 2002 gives the Court a discretionary power to dispense with other provisions or requirements of the Rules. It does not give the Court the power to amend a petition. Therefore the notice of motion has not stated the correct jurisdictional basis and is therefore incompetent in itself. Having said that I note in my earlier ruling delivered on 5th June 2013 I dismissed the respondent's objection on the very same point. I have now had a closer look at the Rules and found that the ruling was an error in judgment. The decision or ruling then was arrived at on the face value of the said notice. Assuming I am wrong on the competency of the notice of motion I now turn to consider the merits of the application.
Facts
8. The facts are simple and straight forward. The material facts are not in dispute. The petition in the proceeding was filed on 25th August 2012. Paragraph 2 of the petition states; inter alia, that the result of the election for the Tari – Pori Open seat in the National Parliament was declared on 13th July 2012. Therefore calculating from the date of declaration of the result as stated in the petition to the date of filing of the petition it is very obvious that the petition was filed outside the 40 days time limit.
9. However, the petitioner's counsel says that the date stated in paragraph 2 of the petition was a typographical error. She claims that the correct date should be 16th July 2012 as per the Writ for the Tari Open Electorate. Counsel referred to her affidavit evidence in support of the application.
Issue
10. In my view, the facts give rise to only one issue that require determination by the Court. The issue is whether an amendment to a petition after 40 days time limit is allowed.
Law
11. The primary law is the Organic Law on National and Local Level Government Elections (Organic Law). By virtue of the Constitution, s. 11, the Organic Law is a constitutional and supreme law. The Organic Law governs the conduct of National as well as Local Level Government elections. It provides amongst other things, a mechanism in terms of process and procedure for disputing results of elections. In terms of process and procedure for disputing results of the National Elections, these are provided for under Part XVIII, Division 1 (Sections 206 to 227) of the Organic Law. The relevant provision of the Organic Law for the present purposes is s. 208(e) which states:
"208. Requisites of petition.
A petition shall—
(a) ..........................
(b) ............................
(c) ..........................
(d) ...........................
(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)." (Emphasis added)
12. This provision (s. 208(e)) is in clear mandatory terms and requires that a petition disputing an election result as a consequence of a declaration being made must be filed within 40 days period.
13. The meaning and effect of s. 208(e) was first considered by the Supreme Court in Re Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342. The Biri v Ninkama (supra) case is the leading case authority on the law in relation to amendment of a petition. As Kirriwom J observed recently in Andrew Kumbakor v Joseph Sungi & 3 Ors – EP No. 23 of 2012, unreported Judgment delivered in Wewak on 7th December 2012, two pertinent questions were put for the opinion of the Supreme Court in that case:
(a) within two months after the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections; and
(b) after the period of two months following the declaration of the result of the election in accordance with s. 176(1)(a) of the Organic Law on National Elections"
14. In giving its opinion the Supreme Court also made it plainly clear that the requirement of s. 208 of the Organic Law must be strictly complied with. The opinion of the Supreme Court in respect to the first question is that:
and in relation to the second question, the Supreme Count answered:
(a) may allow and an amendment of a petition which does not comply with all or any of the provisions of s. 208 of the Organic Law on National Elections provided that the application for amendment is made within the period of two months (now 40 days) after the declaration of the result in accordance with s. 176(1)(a) of the Law on Organic National Elections; and
(b) shall not allow and does not have power to allow an amendment of a petition after the period of two months (now 40 days) after the declaration of the result in accordance with s. 176(1)(a) of the Law on Organic National Elections." (emphasis added)
15. The Supreme Court in discussing why there should be strict application of s. 208 of the Organic Law reasoned that the right to stand for and hold public office under our electoral law is a sacred right and therefore strict compliance was intended. The Court said:
"Furthermore it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 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 our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s. 210"
16. The Supreme Court also in that case clearly stated that any amendments to a petition must be made within the stipulated time and not after its expiry because there is no power given to the National Court to amend to correct any defect or error after the expiry period because the power given by the Organic Law is a special power to the exclusion of all other powers including the general discretionary powers exercisable in its civil jurisdictions. At pp. 347 – 348 of the judgment the Supreme Court categorically stated:
"...... the Organic Law contains no such provision that the National Court hearing disputed return under s. 206 has the same power, jurisdiction and authority as it would have on the trial of an civil suit, so that the position in our jurisdiction is even stronger, that there can be no amendment by calling in aid such a provision as for example O. 32, r. 13 of the National Court Rules of Court which gives to a judge in an ordinary cause a discretionary power of amendment of any defect or error in any proceedings."
17. The authoritative statements of the law has been endorsed, adopted and followed by great majority decisions of the National and Supreme Courts to this day. I am not aware of any Supreme Court decision that had since overruled the decision in Biri v Ninkama (supra). Many of these decisions have been cited by counsel for the first and second respondents in their comprehensive and detailed written submissions. I do not intend to revisit these cases. It will suffice, in my view, for the present purposes to refer to one of the Supreme Court judgments.
18. About 18 years later the Supreme Court in Daniel Tulapi v Charles Luta (2000) SC653, re-affirmed the law pronounced in Biri v Ninkama (supra) in relation to amendment to a petition after the expiry date. In that case, the petitioner applied to the National Court to amend his petition after the 40 days time limit by adding a party and new grounds to the petition. The National Court granted the application to add a party but refused to allow new grounds. The petitioner applied to the Supreme Court for a review of that decision refusing to add new grounds arguing that new grounds are necessary and consistent with the addition of the party. In considering the issue as to the power of the National Court to amend the petition, the Supreme Court said:
"This application raises one important threshold legal issue concerning a petitioner's right to amend his petition after the expiration of the 40 days period prescribed by OLNE, S. 208(e) for filing of an election petition and the National Court power to grant such amendment.
The question is whether a petitioner has a right to amend his petition after the expiration of the said 40 days. The issue was determined by the Supreme Court in Biri v Ninkama. The Supreme Court said the petitioner has no right to amend a petition after the 40 days has lapsed. The Supreme Court also ruled in that case that the National Court had no power to make such amendment. To this day, the decision in Biri v Ninkama has not been overruled. Pursuant to the doctrine of judicial precedent or stare decisis adopted in Schedule 2.8 of the Constitution, the decision in Biri v Ninkama is binding on the National Court."
19. And the Supreme Court went further in expressing its views in respect to the failure of the National Court to follow and apply the decision in Biri v Ninkama (supra) by amending the petition in terms of adding a new party stated:
"In the present matter, the application to amend the petition was filed well outside the 40 day time limit. The question then arose as to whether the National Court had the power or jurisdiction to amend the petition. The National Court did consider the precedent in Biri v. Ninkama and said "... my own considered opinion on that issue simply is this, that the National Court as a Court of unlimited jurisdiction has inherent power to amend a petition in appropriate circumstances through the life of the petition until final disposition. This surely must be so to enable this Court of justice to effect equity and justice in appropriate circumstances".
At the outset, we are of the opinion that the National Court fell into error in refusing to apply the principles on this point established by the Supreme Court in Biri v. Ninkama. It is not put to us by the applicant that the decision in Biri v. Ninkama is not good law and that we should re-visit the decision. Until the decision in Biri v. Ninkama is overruled by the Supreme Court, it is still binding authority on the National Court."
Submissions by the Respondents
20. The submissions by the first and second respondent are essentially the same. They submit that based on the Supreme Court authoritative statement of the law in Biri v Ninkama and subsequent cases there can be no amendment to the petition after the 40 days period. The Court should therefore refuse the application and dismiss the petition with costs.
Submission by the Petitioner
21. It is submitted on behalf of the petitioner that the Court should allow the amendment because the amendment is to correct the typographical error in stating the correct date of declaration and the number of votes.
Considerations
22. The petitioner relies on several decisions of the National Court to argue that minor amendments such as typographical errors or cosmetic amendments to a petition are permissible. Reliance is placed firstly on the decision of Cannings J in Paias Wingti v Tom Olga & 2 Ors (2008) N3285 where his Honour found support from an earlier National Court decision by Kandakasi J in Steven Pirika Kamma v John Itanu & Ors (2007) N3246 which decision was highly critical of the soundness in the decision of the Supreme Court in Biri v Ninkama (supra). The petitioner also relied on the recent National Court decisions in Bryan Kramer v Nixon Duban & The Electoral Commission (2013) (Makail J) N4884 and Guma Wau & Anor v Electoral Commission of PNG and Camillus Dagma Bongoro, EP No. 92 of 2012 and EP No. 93 of 2012 (consolidated), unreported Judgment of Kariko J delivered at Waigani dated 30th May 2013.
23. In Paias Wingti v Tom Olga (supra) the petitioner sought leave to withdraw a ground of the petition in the course of arguments on competency of the petition. The respondent argued that the withdrawal in effect amounted to amendment which is prohibited by the decision in Biri v Ninkama (supra). The Court rejected the respondent's submission and allowed the withdrawal on the basis that the withdrawal "does not amount to the amendment in the sense intended by the Supreme Court in Biri v Ninkama." The Court also said that "there is no outright prohibition against withdrawal of grounds of a petition after the 40-day time limit." The Court although referred to Pirika v Itanu (supra) as a case on point dealing with withdrawal of a ground of petition, did not necessarily endorse the sentiments expressed in that decision about the soundness of the principle in Biri v Ninkama (supra). The Court said in relation to the sentiments:
"His Honour set out in clear and coherent detail the reasons he frankly considered Biri v Ninkama to have been wrongly decided, at least as far as the Supreme Court held that no amendments are permitted after 40 days. I do not need to say whether I agree with Kandakasi J, as I have decided that the withdrawal of a ground is not an amendment in the sense referred to in Biri v Ninkama."
24. In Kamma v Itanu (supra) the National Court was faced with 3 issues; one of which was the question as to whether the petitioner was at liberty to withdraw a paragraph in the petition. In its deliberations over the issue the Court expressed sentiments which were highly critical of the decision in Biri v Ninkama. Whilst I do not wish to express any view as to the appropriateness and correctness of the sentiments, the context in which the sentiments were made should be appreciated. The Electoral Commission filed objections to the competency of the petition. At the hearing of the competency, the Electoral Commission abandoned some grounds and raised new grounds of objection to competency belatedly in relation to certain grounds in the petition contending that the grounds were inconsistent. The objection caused the petitioner to withdraw a ground to remove the inconsistency. It is in that context of the respondent raising an objection very late that the Court expressed serious concern about the rigidness and strictness in the application of the law and the seemingly unfairness entrenched in the process and procedure in the context of the need for respondents to file its objections in sufficient time and to give sufficient notice. This is evident in my view from the opening remarks made by the Court:
"Before considering the issue of inconsistency raised, it is appropriate in my view to deal with the issue of whether the Respondents are at liberty to raise the objections in relation to paragraphs 9 and 10 of Part B.1(b) first. This is because the right of the Respondents to raise the issue depends on whether or not they can raise the issue without first including it in their respective objections to the competency or prior to the matter being progressed to trial through the directions, pre-trial conference and the status conference stages."
25. From there the National Court went on to making observations about the trend in the way the Courts have strictly applied the principle in Biri v Ninkama (supra) and how the Court considered the law to be wrongly decided. In respect to the specific issue at hand the Court concluded that there is no express prohibition in terms of withdrawal of a ground in the petition after the expiry of the 40 days time period and consequently allowed the withdrawal of the ground.
26. With regards to the National Court decision in Kramer v Duban & Anor (supra), the petitioner applied to amend his petition on the grounds that there were typographical errors and that the amendments do not substantially change the grounds of the petition. The respondents opposed the application citing Biri v Ninkama (supra) as the law against amendments to a petition after the 40 days time period. The National Court whilst acknowledging the law in Biri v Ninkama nevertheless expressed the view in similar terms to Kamma v Itanu & Ors (supra). The Court said there is no express prohibition to amend the petition after the 40 days period under the Organic Law.
27. In the case of Guma Wau & Anor v Electoral Commission of PNG and Camillus Dagma Bongoro (supra) the description given to the occupation of a attesting witness as stated on the petition was "Substance Farmer". In noting that there is no occupation as such the Court took the view that it was an obvious typing error which view was conceded by the respondent. The Court found that there was no apparent error such that the petition should be dismissed for incompetency. The petitioner also relied on the following statement by the Court in that case "Paragraph A6 of EP 92/12 wrong(ly) states the percentage for an absolute majority but this obvious typing error does not and should not render the petition incompetent."
Reasons for decision
28. Having considered all the submissions from the parties I find that the law in Biri v Ninkama (supra) is the law applicable today. It is good law and has not been overturned or overruled by any subsequent Supreme Court decisions. It is a Supreme Court decision and by virtue of Section Schedule 2.9 of the Constitution this Court is duty bound to follow and apply the law as pronounced by the Supreme Court. I am satisfied and I accept the submissions by the respondents that the law as it applies today is that there can be no amendment to a petition after the expiry of the 40 days time limit prescribed by s. 208(e) of the Organic Law. The petitioner has not cited any decision of the Supreme Court that directly overruled the decision in Biri v Ninkama (supra). Although there are a number of decisions by the National Court that appear to run against the principle in Biri v Ninkama, the overwhelming case authorities and in particular the various Supreme Court decisions to date referred to by the respondents continue to affirm and endorse that principle. I am not duty bound to follow those differing National Court decisions. With all due respect, in my view none of these decisions appear to be based on clear law and principles that altered or watered down the principles in Biri v Ninkama (supra). As the Supreme Court in Biri v Ninkama stated very clearly the National Court cannot assume any jurisdiction or power from all other sources except the Organic Law itself.
29. I therefore find, as a matter of law, that there is no power vested in this Court to amend the petition now before the Court after the 40 days period. The petitioner's application was filed and moved well outside the 40 days time period. This Court has no power to entertain the application. The application is therefore dismissed.
30. Ms. Copland in her concluding submissions made a submission in the alternative. She submits that in the event that the Court dismisses the application to amend, the petitioner will seek to withdraw paragraph 2 of the petition, the subject of the application, leaving the grounds of the petition intact and that the petition is to proceed to the next stage. Whilst the submission is a novel one, it is seriously flawed because what the law as provided in s. 210 is clear. Firstly, the petition cannot proceed further to trial unless all the requirements of s. 208 are strictly complied with. This Court has found that one of the requirements of s. 208 in particular the filing of the petition within 40 days was not complied with. This finding automatically renders the whole petition incompetent notwithstanding that there may be arguable grounds in the petition. The petitioner is not permitted by law to have two bites at the cherry. Secondly, the effect of the withdrawal, in my view, amounts to an amendment to the petition and therefore the proposed intention cannot be legally possible because the Court has already found there can be no amendment to the petition after the 40 days period.
31 I also find that, on the face of the petition, the declaration of the result of the election was made on 13th July 2012. The petition was filed on 25th August 2012. The filing of the petition was done outside of the 40 days period prescribed by s. 208(e) of the Organic Law. Clearly the petition has not strictly complied with s. 208(e) and therefore the petition is incompetent to proceed to trial by virtue of s. 210 of the Organic Law.
32. For all these reasons the objection by the respondents as to competency of the petition under s. 208(e) of the Organic Law is upheld and the petition is therefore dismissed forthwith with cost.
33. The formal orders are:
1. The application to amend the petition is dismissed.
2. The objection to competency of the petition based on s. 208(e) of the Organic Law is upheld.
3. The petition in this proceeding is dismissed in entirety forthwith.
4. The petitioner shall pay the first and second respondents costs.
5. The security for costs deposited by the petitioner in accordance with s. 209 of the Organic Law shall be released and paid to each respondent in equal amounts in part payment of their costs in the proceeding.
34. The Court will now hear the parties as to the question of whether costs should be paid on solicitor client basis.
Orders accordingly.
_______________________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner
Leo Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent
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