Kaiabe v Agiru [2013] PGNC 54; N5223 (17 May 2013)

N5223

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 37 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 HELA PROVINCIAL ELECTORATE

BETWEEN

ALUAGO ALFRED KAIABE
Petitioner

AND

ANDERSON AGIRU
First Respondent

AND

JOHN TIPA in his capacity as the Returning Officer for the Hela Provincial Electorate
Second Respondent

AND

ANDREW TRAWEN in his capacity as the Electoral Commissioner of Papua New Guinea
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail J
2013: 09th & 17th May

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss – Application arising from election dispute – Three different versions of amended petition – Two versions served on respondents different to one in court file – Whether failure to serve amended petition in court file renders proceedings irregular – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rules 6(1)&18.

Cases cited

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342
Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2008) N3341
Alfred Pogo -v- Guao Katucnane Zurenuoc & Electoral Commission (2003) N2351
John Kaupa -v- Labi Amaiu & Electoral Commission: EP No 90 of 2012 (Unnumbered & Unreported Judgment of 18th April 2013)

Counsel

Petitioner in person
Ms C Copland, for First Respondent
Mr R William, for Second, Third & Fourth Respondents

RULING
17th May, 2013

1. MAKAIL J: Mr Anderson Agiru was the successful candidate in the 2012 General Elections for the Hela Provincial Electorate. On 27th August 2012, Mr Kaiabe, an unsuccessful candidate, filed this election petition disputing the result pursuant to s. 208(e) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections").

2. On 28th August 2012, Mr Kaiabe filed an amended petition. As he ran out of time to serve it, on 06th September 2012, he was given a further 14 days by the Court to serve. On 06th September and 10th September 2012, he served the original petition and the amended petition on the second, third and fourth respondents ("Electoral Commission"). On 13th September 2012, he did likewise on Mr Agiru. Thereafter, parties proceeded to preliminary hearings and eventually obtained dates for trial from 24th June - 19th July 2013 in Tari. There is no dispute that there are three different versions of the amended petition in existence. They did not come to the parties' notice until the parties were settling the statement of agreed and disputed facts and issues for trial. They were picked up by the lawyers for Mr Agiru and brought to the attention of the lawyers for the Electoral Commission and subsequently, Mr Kaiabe.

3. The first version of the amended petition is the one in the Court file, the second is the one that was served on Mr Agiru and the third is the one served on the Electoral Commission. The amended petition in the Court file has no page 73. It has two pages 74. The amended petition served on Mr Agiru has pages 73 and 74 and the one served on the Electoral Commission also has pages 73 and 74 but page 74 is different to page 74 of the amended petition served on Mr Agiru. Other than these, the rest of the contents in all three amended petitions are the same.

4. Mr Agiru supported by the Electoral Commission applied to dismiss the amended petition pursuant Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") because they say since the petitioner has filed the amended petition, it superseded the original and he has failed to serve the one that is in the Court file on them. This is because the ones they received are different to the one in the Court file. They also say that because Mr Kaiabe has not obtained leave to serve the amended petition that is in the Court file, it is not open to him to rely on it. They have been prejudiced because they have not prepared their respective cases based on the one in the Court file. For these reasons, the entire petition should be dismissed.

5. They further submitted that if Mr Kaiabe seeks to remove the offending pages of the amended petition, it would constitute an amendment and it is prohibited by s. 208(e) of the Organic Law on Elections. They submitted that the law is clear. S. 208(e) of the Organic Law on Elections states that a petition shall be filed within 40 days from the date of declaration of result. Any request by Mr Kaiabe to amend will be well past 40 days and for this reason, the petition should be dismissed. For these submissions, they relied on SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 342, Luke Alfred Manase -v- Don Pomb Polye & Electoral Commission (2008) N3341, Alfred Pogo -v- Guao Katucnane Zurenuoc & Electoral Commission (2003) N2351 and John Kaupa -v- Labi Amaiu & Electoral Commission: EP No 90 of 2012 (Unnumbered & Unreported Judgment of 18th April 2013).

6. Mr Kaiabe conceded that first there are three different versions of the amended petition. Secondly, the one before the Court was not served on Mr Agiru and the Electoral Commission. Thirdly, the one that was served on the Electoral Commission is different to the one served on Mr Agiru because of conflicting pages 74. He submitted that the error is insignificant as it does not adversely prejudice the respondents in their defence and can be cured by removing the offending page 74. He explained that the offending page is for the election petition for Koroba-Lake Kopiago Open Electorate, that it was mistakenly inserted in the amended petition, that the copies of the amended petition were subsequently filed and served on Mr Agiru and the Electoral Commission. For these reasons, he moved his counter application to dismiss Mr Agiru's application and asked for its dismissal.

7. There is no dispute that Mr Agiru and the Electoral Commission were served the original petition within the extended time of 14 days granted by the Court. So, in terms of complying with the time limit on service, the original petition is properly before the Court. But the significant undisputed fact is that Mr Kaiabe did not serve the amended petition in the Court file on Mr Agiru and the Electoral Commission. The issue is whether the failure to serve the amended petition in the Court file constitutes a breach of Rule 6(1) of the EP Rules and therefore, rendering the proceedings irregular and ought to be dismissed. Rule 6(1) states that, "[w]ithin 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents ..........." (Emphasis added). It does not state that the petitioner must serve an "amended petition" within 14 days of its filing.

8. Given this, there is no requirement for a petitioner like Mr Kaiabe to serve the amended petition within 14 days of its filing unless he has not served the original within 14 days. It follows the submission by Mr Agiru and the Electoral Commission that Mr Kaiabe has not obtained leave to serve the amended petition that is in the Court file is misconceived. Further, their submission that Mr Kaiabe's request to remove the offending page from the copies which they have received would constitute an amendment and breach of s. 208(e) is also misconceived. Finally, it follows that to remove the offending pages from the ones which have been served is of no consequence and that the Court and parties will use the one in the Court file for purposes of trial.

9. If Mr Kaiabe has served the wrong amended petition on them, then they can and could have requested him to serve the correct version on them. They did not. Instead, they ran to Court. As a result, they have wasted judicial time and caused Mr Kaiabe unnecessary costs. They have not shown how they have been prejudiced. In fact, they still have time between now and the commencement of trial on 24th June 2013 to attend to the correct petition and if they complain of insufficient time, they have yet to blame themselves. The whole application is misconceived and is dismissed with costs.

Ruling and orders accordingly.
____________________________________

Young & Williams Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second, Third & Fourth Respondents