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Yagama v Uguro [2018] PGNC 66; N7133 (15 February 2018)

N7133


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO 70 OF 2017


IN THE MATTER OF A DISPUTED RETURN FOR THE USINO/BUNDI OPEN ELECTORATE


BETWEEN
ANTON FRANCIS YAGAMA
Petitioner


AND
JIMMY UGURO
First Respondent


AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
(No 1)


Waigani, Madang: Toliken J
2018: 12th,15th February


ELECTION PETITIONS - PRACTICE & PROCEDURE - Objection to competency - Motion to dismiss objections to competency for non-compliance with requirements of Election Petition Rules - Effect of - Petitioners and objectors to be treated equally - Non-compliance by lawyers and unrepresented litigants differentiated - Motion to dismiss objections allowed - Matter to proceed to trial - Constitution, s 155 (4), Organic Law on National and Local Government Elections, ss. 208, 209, 210, 214, 215; Criminal Code Ch. 262, ss. 102, 103(a)(ii)(d); National Election Petition Rules 2017, rr. 8, 12, 22.


Cases Cited:


Kubak v Trawen (2013) SC 1250
Ame v Yama (2010) SC1064)
Thomas Opa v Honourable Richard Mndani & Electoral Commission of Papua New Guinea (2017) N6974 (11 October 2017)
Graham v Electoral Commissioner of Papua New Guinea (2013) N5134
Kubak v Trawen (2012) N4992


Counsel:


P Kuman, for the Petitioner
K Iduhu with H Masiria, for the First Respondent
R Kukari, for the Second Respondent


RULING ON OBJECTIONS TO COMPETENCY


15th February, 2018


  1. TOLIKEN J: The Petitioner and the First Respondent were candidates for the Usino/Bundi Open Electorate in the last general elections in which the First Respondent was declared winner.
  2. The Petitioner was aggrieved by the result and filed a petition on 07 September 2017 alleging -
    1. 2 x counts of indirect bribery in contravention of Section 215 (1) of the Organic Law on National and Local Government Elections (the "Organic Law" hereafter) and Section 103 (a)(ii) and (d) of the Criminal Code Ch. 262 (the "Code" hereafter);
    2. 1 x count of undue influence contrary to Section 215 of the Organic Law and Section 102 of the Code;
    1. 1 x count of Errors and Omissions by the Second Respondent pursuant to Section 46 of the Organic Law and Section 50 of the Constitution.
  3. Both the First and the Second Respondents objected to the competency of the petition and respectively filed objections - the First Respondent on 03rd October 2017 and the Second Respondent on 11th October 2017.
  4. The matter went before the Judge Administrator for Directions on 05th January 2018 and Pre-trial Conference on 30th January 2017. The matter was fixed for a 15 days trial to run from 12th February 2018 to 02nd March 2018.
  5. On 06th February 2018, the Petitioner filed a Notice of Motion seeking to dismiss or strike out the Respondents' Objections to Competency of the petition after prior written notice to the Respondents.
  6. The matter came before me on 12th February 2018 at Waigani. I heard the Petitioner's Motion and the Respondent's Objections to the petition together and adjourned for a ruling to be handed down yesterday afternoon (14th February 2018). However, I could not, as another Petition was being heard here, hence, we had to fly my Court Reporter from Alotau at short notice and he did not get in until late yesterday afternoon. This is my judgment on the objections.
  7. At this juncture, I pause to mention that the Petitioner had abandoned his challenge to the result on alleged grounds of errors and omissions in the 2017 Roll, thus, leaving only the objections to allegations of bribery and undue influence. Essentially Mr. Kuman conceded that this ground is incompetent as it challenges the correctness of the Roll which is prohibited by Section 214 of the Organic Law.
  8. I will deal with the Petitioner's Objection to the Respondents' Objections to Competency first. My ruling on this will impact on the Objections by the Petitioners. If I uphold the Petitioner's Motion, the matter will proceed to trial without the necessity to consider the Respondents' competency objections. Conversely, if I deny the Petitioner's Motion, I will then have to rule on the Respondents' objections, and the matter may or may not proceed to trial at all.
  9. The Petitioner objects to the competency of Respondents' Objections on the basis that they were filed (and served) outside of the time stipulated by the National Court Election Petition Rules 2017 (the "Rules" hereafter). The Petitioner's Motion seeks the following -

  1. Pursuant to Section 155 (4) of the Constitution the Objections to Competency filed by the First Respondent on 3 October 2017 be dismissed and or struck out for failure to comply with Order 12 [sic] of the Election Petition Rules 2017.
  2. Pursuant to Section 155 (4) of the Constitution the Objections to Competency filed by the Second Respondent on 11 October 2017 be dismissed and or struck out for failure to comply with Order 12 [sic]of the Election Petition Rules 2017.
  3. The main issue for my determination here is whether the First and Second Respondents' respective objections should be dismissed or failing to comply with the Election Petition Rules 2017.
  4. At this point it is perhaps appropriate to provide the chronology of pertinent events that transpired from date of filing of the petition.
  5. Mr. Kuman submitted on behalf of the Petitioner that both Respondents have defaulted by failing to comply with the requirements of Rule 12. The First Respondent, Counsel submitted, whilst partially complying with Rule 12 in that he had served a copy of his objection together with a supporting affidavit on the other parties, filed his objection 8 days late. The Second Respondent on the other hand, also filed his Objection 8 days late but did not file any supporting affidavit as required.
  6. Furthermore neither Respondent availed himself to Rule 22 which relevantly provides –
    1. 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 the rule is a requirement of the Organic Law.


  1. While acknowledging that elections are a serious matter, and hence are appropriately treated by the court, resulting in petitions being dismissed for non-compliance with the Rules, Mr. Kuman submitted that the same strict approach should be employed in respect of defaulting respondents. If for instance, a petitioner can have his petition dismissed for filing it a day late as was the case in Thomas Opa v Honourable Richard Mendani & Electoral Commission of Papua New Guinea (2017) N6974 (a case decided under the new Rules), then the same duty should be demanded from respondents who fail to comply with procedural requirements. While these are not requirements of the Organic Law, they are there for the proper and timely conduct of cases.
  2. Mr. Kuman, submitted that this is especially true now that the Election Petition Rules 2017 require respondents to formally file objections to competency which was not the case in the 2012 Rules.
  3. Counsel submitted therefore that the Respondents' respective Objections should be dismissed with costs for being incompetent themselves, and the matter should proceed to trial, where, the Respondents can again raise their objections, for the right to challenge the competency of a petition is not lost, but may be raised at any stage during the trial (Ame v Yama (2010) SC1064).
  4. Mr. Iduhu for the First Respondent submitted that his client’s Notice of Objection was indeed filed out of time nor had they sought relief from compliance with the Rules. However, Counsel submitted that Rule 12 is not a requirement of the Organic Law and that the Court has wide discretion under Section 217 of the Organic Law which enjoins it to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities.
  5. Mr. Iduhu relied on the case of Kubak v Trawen (2012) N4992, where His Honour Kariko J had allowed a verbal application by a respondent in that matter which, it was agreed by counsel, as a challenge to the competency of the petition for failing to comply with Section 208(a) of the Organic Law. His Honour upheld the objection and dismissed the petition despite the fact that it did not comply with the time prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012 which required that an objection to competency shall be filed "within 21 days of service of the petition."
  6. Aggrieved by the decision the Petitioner sought leave for review by a full bench of the Supreme Court. Leave was, however, refused by His Honour Injia CJ. While acknowledging that objections to competency were not formally provided by National Election Rules 2002, but by way of Practice Direction No.2 of 2012, the His Honour treated the Practice Direction as forming part of the rules governing the conduct of election petitions. His Honour accepted that the objection was raised out of time, and without prior leave, but held that the trial judge had considered the issue of late filing and had concluded that the objection should be allowed in order to preserve the dictates of Section 210 of the Organic Law that no petition can proceed to a hearing unless it complies with the requirements of Section 208, and further that issues of competency can be raised at any stage of the proceedings. His Honour thus denied leave for review (Kubak v Trawen (2013) SC 1250).
  7. Mr. Iduhu further submitted that no real prejudice had been suffered by the Petitioner. Here the parties had complied with all court directions and had filed all necessary affidavits. But while the First Respondent objection was filed 8 days late, it was filed before the Directions Hearing and the Pre-hearing conference and the Petitioner never raised an objection at that stage.
  8. On this point Counsel relied on the case of Graham v Electoral Commissioner of Papua New Guinea (2013) N5134, where His Honour David J dismissed an application to dismiss an objection to competency on the basis that it was not filed within the 21 days stipulated by Practice Direction No.2 of 2012. There the objection was filed just under 2 months after service of the petition, but well outside 21 days stipulation. His Honour was of the view that First Respondent had given more than ample notice to the Petitioner of the various matters constituting his objection to which the latter had even filed submissions in response to the notice of objection, circumstances which His Honour contrasted with how the court in Kubak v Trawen (supra) had allowed the objection before it, albeit done at the 11th hour.
  9. His Honour said that the First Respondents' "... 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."
  10. Lastly, despite the late filing of the objections, Rule 22 of the Election Rules 2017 gives the Court discretion to waive strict compliance with the Rules, hence the Court may waive the requirement.
  11. So based on the foregoing, Counsel implored the Court to dismiss the Petitioner's application.
  12. Ms. Kukari for the Electoral Commission supported Mr. Iduhu's submission. But given the fact that Petitioner has abandoned his allegations against the Commission, I do not think that Ms. Kukari will be needed beyond this point. In fact the objections the Second Respondent raised in respect of allegations of errors and omissions abated as a consequence of the abandonment of those grounds by the Petitioner and I do not need to hear from the Petitioner and the Second Respondent any further. Any discussion on those grounds would be merely academic and a waste of time.
  13. So, should the objections be dismissed for non compliance with requirements of the Election Petition Rules 2017?
  14. At this point it is important to note that one of several changes to the election rules brought about by the Election Petition Rules of 2017, was the inception of Rule 12 dealing with objections to competency, which was not provided for in the 2002 Election Petition Rules. Rule 12 provides:
    1. Objection to competency

A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —
(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and

(b) serve a copy of the objection on the petitioner and on each of the other respondents; and

(c) file and serve all affidavits in support of the objection.


  1. A respondent who objects to the competency of a petition challenging the result of an election must therefore within 21 days after he is served the petition file his notice of objection and serve a copy of the objection on the petitioner(s) and file and serve all affidavits in support of the objection.
  2. Rule 22 (Relief from Rules) allows the Court to dispense with the requirements of the Rules. The Rule provides:

22. 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 the rule is a requirement of the Organic Law.


  1. As we can see here the discretion to dispense with the requirements of the Rules is subject to one important qualification, being that, dispensation will not lie where the requirement sought to be dispensed with is a requirement of the Organic Law. Pertinently Sections 208 and 209 of the Organic Law provides for such requirements. Section 208 and 209 provides:

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).


209. DEPOSIT AS SECURITY FOR COSTS.


At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.


  1. Section 210 provides that "Proceedings shall not be heard on a petition unless the requirements of Section 208 and 209 are complied with."
  2. An objection to competency is not a requirement of the Organic Law, but rather a requirement of the Rules. It is therefore one of those requirements which the Court may, in the proper exercise of its discretion, dispense with, on application of course.
  3. In the current case there is no dispute whatsoever that both objections by the Respondents were filed well outside of the time stipulated by Rule 12. The First Respondent's objection was filed on 11th October 2017, which was 8 days after service of the Petition on him. He also served the objection on the other parties and filed supporting his supporting affidavit. By contrast the Second Respondent filed his Notice of Objection on 11th October 2017, also 8 days after service of the petition on him, but it failed to file a supporting affidavit. There was therefore a substantial non-compliance with the requirements of Rule 12.
  4. Mr, Kuman submitted, as we have seen, that such non-compliance should not be countenanced by the Court and that objectors to petitions should be treated with the same strictness as defaulting petitioners. Hence, if a petition can be dismissed where the petitioner has missed the prescribed time limit for service of the petition under Rule 8 (1) of the Election Petition Rules 2017 by a day, as was the case in Opa v Mendani (supra), there is no reason why the objections in the instant case, which were filed 8 days late in contravention of Rule 12, should not be similarly dismissed.
  5. Mr. Kuman's argument has a lot of sense, for it is only fair and just that all parties - petitioners or objectors to petitions alike- are treated equally by the Court.
  6. I accept the counter-argument by Mr. Iduhu that the non-compliance here is not fatal because it does not involve a requirement of the Organic Law. The authorities Counsel relied on were premised on the old Rules which did not provide for objections to competency, but which was cured by Practice Direction No. 2 of 2012. That is no longer the case under the new Rules which have now filled that gap.
  7. I also accept what has been said in Kubak v Trawen (supra), both by the trial judge and Injia CJ sitting as a single judge in the Supreme Court on the leave application by Kubak, and what David J said in Graham v Electoral Commission of PNG (supra) on the issue of prejudice.
  8. I am acutely aware of the need to filter out non-meritorious petitions, especially those that do not meet the strict requirements of Section 208 of the Organic Law, as reinforced by Section 210.
  9. However, Mr. Kuman's argument for equal treatment of parties in election petitions, require some serious consideration. Rules are made for the proper and effective resolution of cases and litigants are expected to comply with them. And courts and judges who promulgated such rules are equally expected to enforce them judicially within legal bounds. What is the use of having rules of practice if judges turn a blind eye to serious non-compliance or infractions by the parties?
  10. In this case, the fact that the Petitioner appears to have allowed the non-compliance to pass without comment, even past the directions and pre-trial stages, should not provide solace for the Respondents. They knew they were in breach of Rule 12 and perhaps hoped silently that the Petitioner will not take issue. Well he did, albeit belatedly, and filed to dismiss the Respondents' objections.
  11. Neither Respondent sought to dispense with the requirements of Rule 12 under Rule 22, a remedy which is quite liberal because it provides that relief from the Rules may be made either before or after the occasion for compliance arises. So what stopped them from doing that? Nothing I suppose.
  12. Section 217 provides that the Court shall be guided substantially by the merits and good conscience of each case without regard to legal forms and technicalities. This amplifies the intention of Parliament that election petitions and parties should not be bogged down with strict rules of evidence and procedure which often unnecessarily results in protracted litigation as is the case in mainstream matters before the courts. This intention is further fortified by Section 222 of the Organic Law, which provides that a party shall not be represented by legal counsel without the consent of all parties or by leave of the Court. Section 222 does not prohibit the appearance of lawyers in election petition per se. It merely provides that appearance by legal counsel is not as of right, but by the consent of all parties, or by leave of the Court.
  13. Having said that, I do not think that the same latitude accorded to unrepresented litigants in election petitions ought to be accorded to those represented by legal counsel, which appears to be the norm nowadays. Hence, where legal counsel errs or fails to comply with a requirement of the Rules, regardless of whether or not it is a requirement of the Organic Law, this must in appropriate cases be met with appropriate sanctions or penalties.
  14. The current case is, in my opinion such a case. The Respondents were and are represented by legal counsel and any non-compliance with the Rules or failure to avail oneself to the provision for relief from the Rules is unacceptable.
  15. I must therefore allow the Petitioner's Motion and dismiss the Respondents' Notices of Objection to Competency in respect of the grounds of bribery and undue influence. The Second Respondent's Objection to competency on the ground of errors and omission abate as a consequence of the Petitioner's abandonment of those grounds. The matter will proceed to trial on the allegations of bribery and undue influence only. Of course this is not the end of the matter in so far as competency is concerned because the Respondents may raise the issue again in the course of the proceedings. Costs shall be in the cause.
  16. My orders are therefore as follows:

1. Subject to Order 3 the Petitioner's Motion to dismiss the Respondents' Objections to competency is granted, but only in respect of allegation or bribery and undue influence.

2. The Respondents' objections to competency on the basis of two (2) counts of bribery and one Count of undue influence are dismissed and trial shall proceed accordingly on these grounds.

3. The Petitioner's allegation of Errors and Omissions in the 2017 Common Roll, having been abandoned, is dismissed for being incompetent.

4. Costs in the cause.
________________________________________________________________
Kuman Lawyers: Lawyers for the Petitioner
Fairfax Legal: Lawyers for the First Respondent
Kimbu Lawyers: Lawyers for the Second Respondent



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