Sohia v Semoso [2016] PGNC 148; N6338 (5 July 2016)

N6338
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 02 OF 2015

IN THE MATTER OF THE BOUGAINVILLE ELECTIONS ACT, 2007 AND IN THE MATTER OF DISPUTED RETURNS FOR TSITALATO CONSTITUENCY

BETWEEN

COSMOS SOHIA
Petitioner

AND
FIDELIS SEMOSO
First Respondent

AND
GEORGE MANU in his capacity as the Acting Electoral Commissioner for the Office of Bougainville Electoral Commission
Second Respondent

AND
THE BOUGAINVILLE ELECTORAL COMMISSION
Third Respondent

Waigani: Makail, J
2016: 21^st June & 5^th July

ELECTION PETITION – PRACTICE & PROCEDURE – Autonomous Region of Bougainville Election – Leave to amend petition – Grounds of – Jurisdiction of – Bougainville Elections Act, 2007 – Sections 203 (2) & 205 (e) – National Court Election Petition Rules, 2002 (as amended) – Rules 11 & 17

Cases cited:

Andrew Kumbakor v. Joseph Sungi & 3 Ors (2012) N5002
Bryan Kramer v. Nixon Philip Duban & Electoral Commission (2012) N4884
Daniel Tulapi v. Charles Luta (2000) SC653
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Johnny Pokaya Philip v. James Marape & Electoral Commission (2013) N5276
Paias Wingti v. Electoral Commission & Tom Olga (2008) N3285
Steven Pirika Kamma v. John Itanu & Ors (2007) N3246

Counsel:

Mr. N. Yalo, for Petitioner
Mr. P. Mawa, for First Respondent
Ms. H. Masiria, for Second & Third Respondents

RULING ON LEAVE TO AMEND PETITION

5^th July, 2016

1. MAKAIL J: This is an application for leave to amend a petition pursuant to Section 155 (4) of the Constitution and Rules 11 & 17 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”).
   

2. The Petitioner was an unsuccessful candidate for the seat of Tsitalato Constituency at the election of the Autonomous Region of Bougainville (“ARB”) in 2015. The First Respondent Mr. Fidelis Semoso was the successful one and declared Member on 30^th May 2015. Aggrieved by the result the Petitioner filed this petition.

3. The petition is filed pursuant to the provisions of the Constitution of the Autonomous Region of Bougainville, 2004 (“Constitution”) and not the Bougainville Elections Act, 2007 (“Act”). According to Section 205 (e) of the Act, the time limit to file a petition is one month after the declaration of result of the election.

4. The Petitioner seeks to amend it by deleting any reference to the provisions of the Constitution and replacing them with the provisions of the Act. The reason is that, it is the Act that is the applicable law. Leave is being sought to amend the petition after the time limit of one month has expired.

5. This is the first time the issue of amendment of a petition outside the time limit of one month is raised before this Court. It is also the first time in the context of the ARB election under the relevant Act. Furthermore, by virtue of Section 203 (2) of the Act, in the absence of a Bougainville High Court at this time, the National Court assumes jurisdiction to deal with this petition including the present application.

6. Both sides acknowledged that in the case of an amendment of a petition arising from a General Election under the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”), the National Court has expressed differing views on this issue and the time limit to file a petition is 40 days after the declaration of result of the election. See Section 208 (e) of the Organic Law on Elections.

7. There is one view that no amendments can be made after the expiry of the 40 days and there is the other view that it can. The Petitioner’s submission is based on the latter view and relies on the case of Bryan Kramer v. Nixon Philip Duban & Electoral Commission (2012) N4884 a decision of the National Court.

8. That case followed Paias Wingti v. Electoral Commission & Tom Olga (2008) N3285. In Bryan Kramer v. Nixon Philip Duban case (supra), it was held that the Court has jurisdiction to amend a petition after the time limit of 40 days by dispensing with the requirement of Rule 11 under Rule 17 and the power to amend is confined to simple amendments or “cosmetic” changes as opposed to substantive amendment.

9. In any event, the Petitioner submits that in the case of ARB election there are no EP Rules governing the conduct of practice and procedure of election petitions under the Act. Strictly, the EP Rules of the National Court do not apply. It follows that Rule 11 has no application to this case and that is not necessary for him to obtain leave to amend the petition. He may, without leave, file an amended petition.

10. The Respondents hold a contrary view basing it on the authority of Delba Biri v. Bill Ninkama [1982] PNGLR 342 which they contend stand for the proposition that strict compliance with Section 208 of the Organic Law on Elections is mandatory. The Court shall not allow and does not have power to allow an amendment of a petition after the period of two months, as it then was, (now 40 days) after the declaration of the result of the election regardless of whether it is simple or “cosmetic” or substantial amendment.

11. I note that Delba Biri v. Bill Ninkama (supra) was followed by the National Court in Johnny Pokaya Philip v. James Marape & Electoral Commission (2013) N5276. I also note the point the Petitioner makes in his alternative submission at [9] above.

12. If one were to strictly apply the provisions of the Act to this case, then the petition must be decided based on the Act. The EP Rules are then inapplicable because they were promulgated to compliment the Organic Law on Elections which cover petitions arising from a General Election.

13. And it will be acknowledged that the cases cited by counsel for the parties were decided based on the Organic Law on Elections and the EP Rules of the National Court covering the practice and procedure for election petitions arising from a General Election and are inapplicable.

14. However, given that by virtue of Section 203 (2) of the Act, in the absence of a Bougainville High Court to exercise jurisdiction in relation to an election dispute at this time, I am of the view that the National Court assumes that jurisdiction.

15. The exercise of jurisdiction is wide enough to cover, in my view, matters of practice and procedure which are set out in the EP Rules subject to any variation. For instance, the applicable time limit to amend a petition under the Act is one month from the declaration of result of the election as opposed to 40 days under the Organic Law on Elections.

16. And so accepting that the EP Rules do apply and on reviewing cases cited by the parties above, with respect, I agree with the decision of the Court in Johnny Pokaya Philip case (supra). The Court came to the conclusion that it has no power to amend a petition after the period of 40 days has expired.

17. It came to this conclusion after reviewing the decisions of the Supreme and National Courts in Delba Biri v. Bill Ninkama (supra), Daniel Tulapi v. Charles Luta (2000) SC653, Andrew Kumbakor v. Joseph Sungi & 3 Ors (2012) N5002, Paias Wingti v. Electoral Commission & Tom Olga (supra), Steven Pirika Kamma v. John Itanu & Ors (2007) N3246 and Bryan Kramer v. Nixon Philip Duban & Electoral Commission (supra).

18. As to whether simple or cosmetic changes are allowed, the case of Paias Wingti v. Electoral Commission & Tom Olga (supra) is distinguishable on its facts. That was a case where the Petitioner sought to withdraw one of the grounds of the petition. The Court allowed the amendment outside the period of 40 days because it considered that strictly, it was not an amendment but a withdrawal of a ground which was not substantive (not cosmetic) amendment and that it did not cause prejudice to the Respondents in terms of research and preparation or prolonged the hearing of the petition.

19. The Court considered Steven Pirika Kamma v. John Itanu (supra). In the latter mentioned case, during a hearing of an objection to competency of the petition, the Petitioner sought leave to withdraw a particular paragraph of the petition. The Court granted leave. Amongst other reasons, it held that in a case where serious allegations of errors or omissions and illegal practices are alleged against the Respondents, it would be against the spirit and intent of an election petition to prohibit a withdrawal of a paragraph of the petition. This is another example of a case on withdrawal of a pleading.

20. With respect, I beg to differ from my earlier decision in Bryan Kramer v. Nixon Philip Duban & Electoral Commission (supra) which followed the decision in Paias Wingti v. Electoral Commission & Tom Olga (supra). It is distinguishable on its facts.

21. The distinction is this the application for leave to amend was not based on a withdrawal of a ground or grounds of the petition as was in the case of Paias Wingti v. Electoral Commission & Tom Olga (supra). It was a case of deleting an incorrect date and replacing it with a correct one and adding a missing letter “c” to the name of a person mentioned in the petition. The amendments sought were similar to the one sought in the case of Johnny Pokaya Philip v. James Marape & Electoral Commission (supra).

22. In this case the proposed amendments are similar to the one in Johnny Pokaya Philip v. James Marape & Electoral Commission (supra) and if any, Bryan Kramer v. Nixon Philip Duban & Electoral Commission (supra). In essence the Petitioner is not seeking to withdraw a ground or grounds of the petition but rather replacing a pleading with another. Deleting and replacing a pleading is not the same thing as withdrawing a pleading of which the latter can be categorised as a simple or “cosmetic” change.

23. I uphold the Respondents’ submission and find that, as a matter of law, this Court has no power to amend the petition outside the one month period prescribed by Section 205 (e) of the Act.

24. As to the inherent power of the Court under Section 155 (4) of the Constitution, I am of the view that it does not apply.

25. Leave is refused with costs.

____________________________________---------------------------_______________________
Nemo Yalo Lawyers: Lawyers for the Petitioner
Mawa Lawyers: Lawyers for the First Respondent
Fairfax Legal Lawyers: Lawyers for the Second and Third Respondents