Danaya v Wobiro [2014] PGNC 212; N5879 (1 December 2014)

N5879

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 70 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 WESTERN PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTIONS

BETWEEN:

DR. BOB TAWA DANAYA
Petitioner

AND:

ATI WOBIRO
First Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Hartshorn J.
2014: July 10th
: December 1st

Notice of Motion seeking relief pursuant to Rules 15 and 17 National Court Election Petition Rules 2002 (As Amended)

Counsel:

Mr. A. Furigi, for the Petitioner
Mr. G. Gileng, for the First Respondent
Mr. M. Kuma, for the Second Respondent

1st December, 2014

1. HARTSHORN J: The petitioner seeks leave to dispense with the hearing of the undetermined objections to competency to his Election Petition so that the matter proceeds to trial without the undetermined objections being heard. He applies under Rule 17 or alternatively Rule 15 National Court Election Petition Rules 2002 (As Amended). The respondents oppose the application.

Background

2. The petitioner disputes the election of the first respondent as the Member for Parliament for the Western Provincial Electorate in the 2012 General Election. On 5th March 2013, after hearing objections to competency by the two respondents, I dismissed the petition. On 4th November 2013 the Supreme Court quashed the dismissal and reinstated and remitted this petition to the Judge Administrator, Election Petitions. On 5th December 2013, the petition was adjourned by the Judge Administrator to me. I then heard the petitioner's application for my disqualification which I refused.

Preliminary

3. The first respondent objects to the Rules relied upon by the petitioner on the basis that they do not permit this court to grant the relief that the petitioner seeks. Rules 15 and 17 are:

"15. HEARING

The Court shall deal with the petition and any challenges to the competency of it at the hearing.

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."

Rule 17
4. The first respondent contends that the requirement to deal with a challenge to the competency of a petition is a requirement under s. 208 and s. 210 Organic Law on National and Local-Level Government Elections (Organic Law). From a reading of Rule 17, the court cannot dispense with the compliance of a requirement of the Organic Law.

5. Consequently, the court does not have the discretion to dispense with hearing the balance of the undetermined grounds of objection to the competency of the Petition.

6. Counsel for the petitioner did not specifically address the contentions of the first respondent on this point but from his general submissions it is clear that he opposes them. In his submissions in reply, if I understand correctly, he submitted that the requirements of the Organic Law and specifically s.210 had been complied with but that there was then a successful review. In such a circumstance, it is only fair and for the sake of natural justice that the court hears the merits of the Petition at the trial without the requirement of a second competency hearing.

7. Sections 208 and 210 Organic Law are:

"208. REQUISITES OF PETITION.

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(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).

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with."

8. From a reading of these sections it is clear in my view that s. 208 stipulates what is mandatory for a petition. As s. 210 provides that proceedings on a petition shall not be heard unless amongst others, the requirements of s. 208 are complied with, it must be determined first whether a petition complies with the s. 208 requirements. To make such a determination, the court considers objections to the competency of the petition. These objections to competency must be heard first, to satisfy a requirement of s. 210 Organic Law.

9. As to the submissions of the petitioner; the fact that there has been a successful review of my decision to dismiss the Petition does not in my view lead to mandatory provisions of the Organic Law no longer having any effect when the Petition returns to the National Court for further consideration. Further, until all of the objections to competency have been determined, it cannot be that s. 210 Organic Law has been complied with.

10. Consequently, as objections to competency must be heard first to satisfy a requirement of the Organic Law, Rule 17 does not provide for the court to dispense with the requirement of hearing objections to competency. In this instance, as it is common ground, as I understand it, that I only considered and determined one of the grounds of the objections to competency, and did not consider and determine the others, Rule 17 does not provide for the court to dispense with the hearing of the balance of the objections to competency that are undetermined.

11. Given this I am satisfied that Rule 17 does not permit this court to grant the relief sought by the petitioner.

Rule 15
12. The first respondent contends that Rule 15 provides in mandatory terms for the court to deal with any challenges to the competency of the petition at the hearing and in so doing aids or facilitates s. 210 Organic Law. Rule 15 does not provide for the court to give dispensation.

13. Again, counsel for the petitioner did not specifically address this point.

14. It is clear from a reading of Rule 15 that the contention of the first respondent is correct. I am satisfied that Rule 15 does not permit the court to grant to the petitioner the relief that he seeks.

15. Consequently the relief sought by the petitioner in his notice of motion should be refused. Given the above it is not necessary to consider the other submissions of counsel.

Orders
16. The formal Orders of the Court are:

a) the relief sought in the petitioner's notice of motion filed 25th June 2014 is refused;

b) the petitioner shall pay the costs of the respondents' of and incidental to the notice of motion.
_____________________________________________________________
Furigi Lawyers: Lawyers for the Petitioner
Posman Kua Aisi Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent