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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP No.97 of 2012
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION
BETWEEN:
JAMIE MAXTON-GRAHAM
Petitioner
AND:
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Respondent
AND:
DR. WILLIAM TONGAMP
Second Respondent
Minj: David, J
2013: 3 & 5 April
ELECTION PETITIONS – PRACTICE & PROCEDURE – applications to dismiss two notices of objection to competency of petition – notices of objection to competency of petition filed outside 21 days of service of petition – failure to comply with time limitation prescribed by Practice Direction 2 of 2012 – failure to comply with Court direction as to time fixed for filing and service of written submissions – exercise of power under Rule 18 Election Petition Rules discretionary – discretion to be exercised on proper principles – question of competency of petition can be raised at any stage of proceedings by a party or by Court – once question of competency raised either by written notice or orally as it relates to jurisdiction, it must be determined – filing of notices of objection to competency of petition out of time does not warrant dismissal – non-compliance with direction to file and serve written submissions not a proper basis to dismiss objections – law in relation to practice and procedure governing election petition proceedings is found in the Organic Law on National and Local-level Government Elections and any regulations made under it – Section 155 (4) Constitution has no application - National Court Rules have no application particularly if inconsistent with any provision of statute - rules of practice and procedure subservient to mandatory requirements in Organic Law on National and Local-level Government Elections – discretion exercised in favour of refusing applications - Organic Law on National and Local-level Government Elections, Part XVIII Div.1 (Sections 206-227) –National Court Election Petition Rules 2002 (as amended), Rules 15 & 18 – Practice Direction (Election Petitions) No.2 of 2012.
Cases cited:
Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Patterson Lowa v Wapula Akipe (1992) PNGLR 399
Peri v Agiwa, SCR 13 of 1998, (1998), Unreported & Unnumbered Judgment of the Supreme Court
Ginson Saonu v Bob Dadae (2004) SC763, PGSC12
Daniel Don Kapi v Samuel Abal (2005) N2856, PGNC101
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853, PGSC1
Sir Arnold Amet v Peter Charles Yama (2010) SC1064, PGSC46
Edward Ekanda Alina v Francis Mulunga Potape (2012) N4877, PGNC252
Sani Rambi v Koi Trappe (2012) N4924, PGNC218
Nemo Yalo v Aiya James Yapa Lagea (2012) N4937, PGNC216
Walter Schnaubelt v Byron Chan (2012) N4791, PGNC211
Nobert Kubak v Andrew Trawen (2012) N4992, PGNC286
Patrick Basa v Bob Dadae (2013) N4991
Soroi Marepo Eoe v Mark Ivi Maipakai (2013), Unreported & Unnumbered Judgment of Cannings, J delivered at Waigani on 26 February 2013
Counsel:
Tony Yamarhai, for the Petitioner
Ray William, for the First Respondent
Michael Kuma, for the Second Respondent
RULING ON APPLICATIONS TO STRIKE OUT OBJECTIONS TO THE COMPETENCY OF PETITION
5th April, 2013
1. DAVID, J: The petitioner, Jamie Maxton-Graham is an unsuccessful candidate for the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (the Electorate) during the 2012 National General Election. The Second Respondent, Dr. William Tongamp was the successful candidate for the Electorate and is now the Member of Parliament for the Electorate.
2. On 9th September 2012, pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law), the petitioner filed his petition disputing the validity of the election or return of the Second Respondent as the successful candidate for the Electorate.
3. On 25th October 2012, the Second Respondent filed his notice of objection to competency of the petition.
4. On 2nd November 2012, the First Respondent, the Electoral Commissioner of Papua New Guinea filed his notice of objection to competency of the petition.
5. At the pre-trial conference conducted on 26th November 2012, the Court constituted by the Judge Administrator for the Election Petitions Track, Makail, J issued a number of orders intended to progress and expedite the proceedings to a trial.
6. This is a ruling on two applications made by the petitioner to strike out the two notices of objection to the competency of the petition.
7. I will deal with the applications together.
8. The first application was made pursuant to an amended notice of motion filed on 8th February 2013 (the first application) and is supported by the affidavit of Tony Yamarhai sworn on 4th February 2013 and filed on 6th February 2013. The main relief sought is pleaded at Item 1 of the amended notice of motion and it reads:
"Pursuant to Rule 18 (ii) and (iii) of the National Court Election Petition Rules and Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the First Respondent's Notice of Objection to Competency filed on 2nd November 2012 and Second Respondent's Notice of Objection to Competency filed on 25th October 2012 be struck out for non-compliance of this Court's Orders of 26th November 2012."
9. The second application was made pursuant to a notice of motion filed on 25th March 2013 (the second application) and is supported by the affidavit of Tony Yamarhai sworn on 21st March 2013 and filed on 25th March 2013. The main relief sought is pleaded at Item 1 of the notice of motion and it reads:
"Pursuant to Rule 18 (ii) of the National Court Election Petition Rules, Practice Direction (Election Petitions) No.2 of 2012, Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the Notice of Competency to the Petition filed by the First Respondent on 2nd November 2012 be dismissed."
10. The Respondents contest the applications. They have not filed any affidavit in response to the applications.
11. With respect to the first application, the petitioner argues that the Respondents having failed to comply with the fourth order of the orders made on 26th November 2012, i.e., to file and serve their written submissions with respect to their objections to the competency of the petition by or before 4th January 2013, their notices of objection should be struck out so that it paves the way for the petition to be set down for an expedited hearing. Counsel argued that failing to comply with Court directions was fatal to a party to whom the directions are directed, more particularly in the absence of any reasonable explanation by affidavit for non-compliance.
12. Mr. Yamarhai of counsel for the petitioner has referred me to a number of cases which emphasize the need to comply with Court directions and time limits fixed by the Court and the National Court Election Petition Rules 2002 (as amended) (the Election Petition Rules) because of the special nature of proceedings involving election petitions which calls for their speedy disposition. These are; Peri v Agiwa, SCR 13 of 1998, (1998), Unreported & Unnumbered Judgment of the Supreme Court; Daniel Don Kapi v Samuel Abal (2005) N2856, PGNC101; Edward Ekanda Alina v Francis Mulunga Potape (2012) N4877, PGNC252; Sani Rambi v Koi Trappe (2012) N4924, PGNC218; Nemo Yalo v Aiya James Yapa Lagea (2012) N4937, PGNC216; Walter Schnaubelt v Byron Chan (2012) N4791, PGNC211; Nobert Kubak v Andrew Trawen (2012) N4992, PGNC286; and Soroi Marepo Eoe v Mark Ivi Maipakai (2013), Unreported & Unnumbered Judgment of Cannings, J delivered at Waigani on 26 February 2013. I have considered these cases.
13. With respect to the second application, the petitioner argues that the First Respondent's notice of objection to competency of the petition was filed outside the time prescribed by Practice Direction (Election Petitions) No.2 of 2012 (Practice Direction No.2) therefore should be dismissed.
14. The First Respondent contends that the two applications should be refused on the basis that:
1. the petitioner has not been prejudiced by his non-compliance with the particular Court direction in that his notice of objection to competency had been filed and served on the petitioner and the petitioner has responded to the matters raised in his notice of objection to competency by filing his written submissions on 5th March 2013;
2. having raised the issue of competency of the petition which relates to the jurisdiction of the Court, irrespective of whether or not Practice Direction No.2 was complied with, and which by settled law can either be raised by a party to the proceedings or by the Court at any stage of the proceedings, that issue needs to be dealt with first in order to determine whether the petition proceeds to substantive hearing to accord with the dictates of Section 210 of the Organic Law; and
3. the third order of the Court directions specifically states that the Respondents' notices of objection to competency are set down for hearing at these sittings and by his own conduct the petitioner cannot now raise his objection through these applications.
15. The Second Respondent supports the First Respondent's contention that the applications be refused. He concurs with the First Respondent's submissions and adopts them as his own. In addition, he argues that; first, leave to vary order 4 was granted by this Court on his application which hearing preceded this application and that variation applied not only to him, but the First Respondent as well; second, Rule 18 (ii) of the Election Petition Rules does not expressly state that a notice of competency to a petition can be struck out; and finally, whilst the power vested in the Court under Rule 18 of the Election Petition Rules was discretionary, the discretion could not be exercised contrary to Section 210 of the Organic Law.
16. In his reply to the Respondents' submissions, the petitioner argued that; first, Order 3 was subject to compliance with Order 4; second, the Respondents' non-compliance with Order 4 prejudiced him in the conduct of these proceedings; and finally, the variation to Order 4 only applied to the Second Respondent.
17. The law governing the practice and procedure of election petition proceedings is to be found in the Organic Law and any regulations made under it: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342. The Election Petition Rules regulate the practice and procedure relating to election petition proceedings: Patrick Basa v Bob Dadae (2013) N4991. They were promulgated by judges under Section 212 (2) of the Organic Law: see also Section 184 of the Constitution. The Election Petition Rules are subservient to the provisions of Part XVIII (Sections 206-227, Disputed Elections, Returns, etc.) of the Organic Law.
18. Section 155 (4) of the Constitution does not apply to election petition proceedings. In Delba Biri v Bill Ginbogl Ninkama, it was held:
"...this section was interpreted in the recent case of Avia Aihi v The State (1981) PNGLR 81, and by majority the court ruled that s.155 (4) of the Constitution could not be interpreted in a way which would give the court the power to override the provisions of an Act passed by Parliament. This would be giving a power to the court greater than the unlimited legislative power given to the Parliament by the Constitution. A fortiori, in our view, the court would not have the power to override the provisions of an organic law which is a constitutional law and even more so again to override the provisions of a constitutional law which is in mandatory terms."
19. The National Court Rules applies to all proceedings instituted under those rules: see Order 1 Rule 2 of the National Court Rules. The Organic Law does not expressly adopt the National Court Rules as applying to election petition proceedings. In Delba Biri v Bill Ginbogl Ninkama, it was held that the National Court Rules have no application to election petition proceedings particularly if they were inconsistent with any provision of a statute. There the court observed:
"The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court..."
20. The National Court sitting as the Court of Disputed Returns is vested with special jurisdiction through the Organic Law.
21. As I have mentioned already, judges were given power under Section 212 (2) of the Organic Law to make rules with respect to the practice and procedure of election petition proceedings and the Election Petition Rules were promulgated subsequently for that purpose.
22. The Judge Administrator for the Election Petitions Track on 26th November 2012 at Waigani issued these orders:
"1. Leave granted to the petitioner to withdraw the motion for contempt and the statement of charge and Second Respondent to file and amend affidavits.
23. Order No.3 is abundantly clear. The Notices of Objection to Competency filed by the Respondents were set down for hearing on 1st April 2013 at 09:30 am at the Mt. Hagen National Court. The fixture fell on a public holiday, but it meant the first day of the hearing of these proceedings. The change of venue from Mt. Hagen to Minj meant that the hearing of the objections would be a preliminary matter to be dealt with at the commencement of the hearing of the petition at the sittings here in Minj. I reject the petitioner's argument that Order No.3 was made subject to Order No.4. The petitioner is bound by his conduct in not challenging in any way the terms of Order No.3 prior to this hearing.
24. According to Rule 15 of the Election Petition Rules, the Court can deal with any challenge to the competency of a petition at the hearing of the petition. Practice Direction No.2 states that challenges to the competency of a petition must be commenced by notice of objection to competency and shall be filed and served within 21 days of service of the petition. However, it has been held in the recent Supreme Court decision in Sir Arnold Amet v Peter Charles Yama (2010) SC1064, PGSC46 that issues of competency of a petition can be dealt with at any stage of the proceedings even if they were not raised before the National Court sitting as a Court of Disputed Returns in the case of a review before the Supreme Court: see also Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853, PGSC1. I am bound by the legal doctrine of judicial precedent (also known as stare decisis) adopted and preserved in Sch.2.8 (1)(a) and Schedule 2.9 of the Constitution.
25. In Chief Collector of Taxes v Bougainville Copper Limited, the Supreme Court also said:
"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court."
26. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law and each and every requirement must be strictly complied with: see Delba Biri v Bill Ginbogl Ninkama; and Holloway v Ivarato [1988] PNGLR 99. In Delba Biri v Bill Ginbogl Ninkama, the Supreme Court said:
"The requisites in s.208 and s.209 are conditions precedent to instituting proceedings by way of petition to the National Court. 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.....
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."
27. In Ginson Saonu v Bob Dadae (2004) SC763, PGSC12, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
28. In Delba Biri v Bill Ginbogl Ninkama, the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:
"But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v. Antony Temo (supra) )".
29. Section 210 of the Organic Law states:
"Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."
30. As I have alluded to earlier, the Election Petition Rules regulate the practice and procedure relating to election petition proceedings. The Election Petition Rules were promulgated by judges of the National Court in accordance with Section 212 (2) of the Organic Law and Practice Direction No.2 was issued by the Registrar of the National Court in consultation with the Chief Justice, Deputy Chief Justice and other judges. The Election Petition Rules and Practice Direction No.2 are subservient to the mandatory requirements of the Organic Law as indicated by Section 210. The hierarchy of the laws of Papua New Guinea set out under Section 9 of the Constitution indicates that Organic Laws are superior than subordinate legislative enactment. The phrase "subordinate legislative enactment" is defined in Schedule 1.2 of the Constitution and it means a regulation or any other instrument (whether of a legislative nature or not) made under a statute. As was held in Delba Biri v Bill Ginbogl Ninkama, the Organic Law gave no power to dispense with the mandatory requirements.
31. I reject the petitioner's contention that he is prejudiced in the conduct of these proceedings. The petition was served on the First Respondent on 11th September 2012. The First Respondent's notice of objection to competency of the petition was filed on 2nd November 2012 and served on the petitioner on 5th November 2012 which was outside the 21 days prescribed by Practice Direction No.2 and just under 2 months after the service of the petition. Despite non-compliance with Practice Direction No.2, it is my respectful view that the First Respondent has given more than ample notice to the petitioner of the various matters constituting his objections when compared with how the objection to competency of the petition in Nobert Kubak v Andrew Trawen was raised and dealt with by the court for example. His failure to comply with Practice Direction No.2 however cannot be advanced as a proper basis for the Court to exercise its discretionary power under Rule 18 (ii) of the Election Petition Rules in view of the mandatory requirements of the Organic Law under Section 210. In any event, the petitioner on 5th March 2013 filed his written submissions in response to the First Respondent's notice of objection to competency of the petition.
32. Order No.4 of the orders issued on 26th November 2012 was varied when the Second Respondent was granted leave to file and serve his written submissions in relation to his objection to competency of the petition. The First Respondent did not apply for leave to extend time to file and serve his written submissions. His failure to comply with the order however cannot be advanced as a proper basis for the Court to exercise its discretionary power under Rule 18 (ii) and (iii) of the Election Petition Rules in view of the mandatory requirements of the Organic Law under Section 210.
33. The applications are misconceived.
34. For all these reasons, I will dismiss the petitioner's applications.
35. The formal orders of the Court are:
_________________________________________________
Warner Shand Lawyers: Lawyers for the Petitioner
Niugini Legal Practice : Lawyers for the First Respondent
Parua Lawyers : Lawyers for the Second Respondent
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