Tonde v Samuel [2021] PGNC 460; N9291 (9 November 2021)

N9291

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 01 OF 2021 (IECMS)

IN THE MATTER OF A DISPUTED RETURN FOR 2021 BY-ELECTION FOR MORESBY NORTH-WEST ELECTORATE, NATIONAL CAPITAL DISTRICT

BETWEEN:
JOE TONDE
Petitioner

AND:
LOHIA BOE SAMUEL
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Yagi J
2021: 01^st & 09^th November

ELECTION PETITION – Practice and Procedure – application to dispense with the prescribed time limit to file and serve notice of objection to competency of petition – power of the Court is discretionary – relevant principles considered and applied – Election Petition Rules 2017, rr 12 and 22.

Cases Cited:

Vele v Parkop (2008) SC946
Powi v Kaku (2018) SC1743
Dop v Goi (2017) N6985
Delba Biri v Bill Ninkama [1982] PNGLR 342
Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Counsel:

Mr S. Phannaphen, for the Petitioner
Ms G. Sikre, for the First Respondent
Mr M. Ninkama, for the Second Respondent

RULING

09^th November, 2021

1. YAGI J: This is a ruling on the second respondent’s application to dispense with the prescribed time limit to file and serve a notice of objection to competency of an election petition. The application is made pursuant to notice of motion filed on 27 October 2021 and supported by an affidavit sworn by Simon Sinai filed also on 27 October 2021.

Facts

2. In this matter the petitioner filed a petition disputing the result of the recent Moresby North West By-Election. The petition was filed on 30 July 2021. A notice of the petition was served on all respondents including the second respondent by way of publication in a daily newspaper on 06 August 2021 pursuant to Rule 8(2)(b) of the Election Petition Rules 2017 (EP Rules). A sealed copy of the petition was subsequently served on the second respondent on 20 August 2021. The second respondent does not dispute the issue of service of the petition.

3. Since the service of the petition the proceedings has progressed. A number of court hearings were convened where the second respondent failed to appear during the hearings. The first hearing was held on 03 September and the second was on 20 September. The first hearing was a directions hearing where a set of directions were issued by the Court. On the second hearing the directions were extended as it was evident that the directions were not fully complied with. The matter was then fixed for status conference hearing on 01 November 2021.

Notice of Motion

4. The notice of motion seeks two reliefs –

1. time to file and serve an objection to competency of the petition as prescribed under Rule 12 of the EP Rules be dispensed with and leave to file and serve such notice be extended by 7 days.
   
2. leave to file and serve affidavits in reply to the petitioners’ affidavits by or before 12 November 2021.
   

Position of the Parties

5. The first respondent takes no position, that its, he neither support or oppose the application and hence did not make any submission.

6. The petitioner opposed the application in part. In so far as the second relief is concerned, the petitioner does not oppose leave being granted for the second respondent to file and serve affidavits which it intends to rely upon at trial. On that basis, leave was granted by consent, and directions were issued accordingly.

7. However, the petitioner strongly opposes leave to file and serve the objection to competency of the petition.

Affidavit Evidence

8. As alluded to the application is supported by evidence deposed to by Mr Sinai in his affidavit filed on 27 October 2021. He deposed to, among others, the following relevant matters:

• He is the Acting Electoral Commissioner of Papua New Guinea
  
• He received and sighted a sealed copy of the petition on or around 14 October 2021, after it was brought to his attention by his lawyers
• The petition was not brought to his attention prior to 14 October 2021 due to oversight or inattentiveness of admin staff of the Electoral Commission
  
• A court file search was conducted by his lawyers on 20 October 2021
  
• It was brought to his attention that directions were issued by the Court, among others, for the Electoral Commission of PNG (Second Respondent) to file and serve affidavits to be relied upon at trial.
  
• The Electoral Commission of PNG will require at least 14 days to prepare, file and serve the affidavits. The affidavits are to be deposed to by the Returning Officer and Assistant Returning Officers involved in the By-Election.
  
• He has perused the petition and believe that the grounds in the petition are imprecise, vague, speculative or conjecture and do not meet the requirements of s. 208(a) of the Organic Law on National & Local Level Government Elections (OLNLLGE).
  
• The Electoral Commission of PNG will be prejudiced in not knowing what exactly it will defend at trial due to the vagueness in the pleading.
  
• He has instructed his lawyers to prepare an Objection to the Competency of the Petition, a draft copy of which is annexed to his affidavit.
  

9. The petitioner and the first respondent have not filed any affidavit evidence.

Submission by the Second Respondent

10. Counsel for the second respondent relied on his written submissions which he handed up in Court to argue the case for the second respondent. I have read the submissions and heard counsel articulate on the submissions. In summary counsel cited Vele v Parkop (2008) SC946, Powi v Kaku (2018) SC1743 and Dop v Goi (2017) N6985 and submits the Court has discretion under Rule 22 of the EP Rules to dispense with the time limit prescribed by Rule 12 of the EP Rules. In applying the five (5) criteria discussed by the 3 cases cited, the Court should exercise its discretion in favour of the second respondent.

Submission by the Petitioner

11. Counsel for the petitioner at the outset concedes that the Court has discretionary power to grant the relief sought, however, argues that in applying the 5 criteria as propounded in the 3 cases cited, the Court should refuse to grant the application.

12. More specifically it was argued as follows in respect to the five criteria:

1. Reasonable explanation for the default.
   

It is argued that the second respondent provided no good explanation for the failure to file and serve its notice of appearance. The second respondent does not dispute the fact the two modes in which a sealed copy of the petition was served. However, its primary duty is running elections and where an election result is disputed, the second respondent is expected to take serious note. In that regard, the explanation is not a good one.

2. Application must be made promptly.
   

The current status of the proceeding is such that directions have been issued by the Court and the proceedings is at the status conference stage. The second respondent has no explanation for the delay.

3. Overall interest of justice.
   

The explanation has been provided for the delay in making the application despite the communications made on behalf of the petitioner.

4. The relief sought will not prejudice the other party’s case.
   

The petitioner will be prejudiced because the case has progressed to directions hearing and now status conference hearing stages.

5. The purported dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.
   

The objection will not properly bring the issues and the contentions in Court. The issues are already pleaded clearly in the petition.

13. Accordingly, it is submitted the second respondent has not made out a case for the discretion to be exercised favourably. The Court must take a strict approach. In Dop v Goi, there was no good reasons, but in this case, the reason is administrative. Parties must comply with the timelines. Administrative delay is not a good reason.

Analysis, considerations, and Conclusion

14. Having considered the submissions and arguments I address the 5 relevant considerations as follows:

1. Reasonable explanation for the default. In my view the explanation given by the second respondent is unsatisfactory. There is no evidence that the second respondent is unaware of the requirement to file a notice of appear within time. There is also no evidence that the second respondent is unaware of its obligation to file and serve an objection to competency of the petition within 21 days after service of the petition. These are legal obligations and have been promulgated by Court and have been in existence for at least 4 years. In Vele v Parkop (supra), the Supreme Court stated in clearly and plain language that election petition review proceeding, and I should add, the election petition proceedings in the National Court, “is not an ordinary matter but a special matter requires the constant and detailed attention” by the second respondent. Indeed, the second respondent should or ought to have known about the strict requirement of these obligations under the EP Rules. Ignorance of the law is never a valid excuse. The reason offered, in my view, relates to short comings in terms of management and or administrative practices and procedures within the Office of the second respondent. If such is the case, it is incumbent on the second respondent to take appropriate remedial steps to eliminate such short comings. As submitted by the petitioner the second respondent’s primary responsibility is conducting a free and fair elections and if history is any indication disputes over election results has been the norm and is expected. For these reasons I find the explanation unreasonable and unsatisfactory.
   
2. Application must be made promptly. The Acting Electoral Commissioner (Mr Sinai) gave evidence that a sealed copy of the petition was received by the second respondent on 14 October 2021. The second respondent then filed the present application for dispensation and leave on 27 October 2021. The is a period of 13 days or approximately 2 weeks delay. This is a best case scenario for the second respondent. The worst-case scenario is that accepting the date of publication of the notice of petition on 06 August 2021 as the date of service the delay would be about 2 months 3 weeks. In the worst-case scenario there is no evidence that the application was intentionally delayed. In either case it is my opinion the delay was relatively minimum. In the circumstances I am satisfied the application was made reasonably promptly.
   
3. Overall interest of justice. In election petition disputes that are instituted under Part XVIII of the OLNLLGE there is a strong presumption that the result of an election process has been conducted without any form of illegality or impropriety. Case authorities based on s. 208 of the OLNLLGE makes it plain that any challenge to this presumption requires strict pleading of sufficient material facts. see Delba Biri v Bill Ninkama [1982] PNGLR 342, Sir Barry Holloway v Aita Ivarato [1988] PNGLR 99 and Sir Arnold Amet v Peter Charles Yama (2010) SC1064. Where pleadings are wanting, defective, insufficient or do not comply with the requirement of ss. 208 or 209 of the OLNLLGE such petition is deemed incompetent as a matter of law. A challenge as to competency of an election petition is an interlocutory legal process that directly impinges on the threshold issue of jurisdiction of the National Court to hear and determine a valid petition. It is thus an important process in an election petition proceeding.
   
4. The relief sought will not prejudice the other party’s case. It is argued by counsel for the petitioner that granting of application will prejudice the petitioner. However, the petitioner has not filed any affidavit material to show how and what prejudice he will suffer in the event of the reliefs being granted. With respect I am unable to see any serious or substantial prejudice that may affect the rights and interest of the petitioner other than delay and cost being incurred. In my view these can be remedied by awarding of cost.
   

5. The purported dispensation will enable all the issues in contention to be promptly brought before the Court without further delay. I have heard the submission made by the petitioner’s counsel in respect to this principle. It is argued the objection, if allowed to be filed and served, will not properly bring the issues and the contentions in Court. These issues are already clearly pleaded in the petition. With respect I disagree with the petitioner’s submission. The objection will bring into focus the threshold issue of competency at an early stage so that where appropriate the competency issue may be considered at the outset to minimise cost and inconvenience to the parties and more importantly avoid unnecessary wastage of precious judicial time.

15. Having regard to the principles discussed I consider that the interest of justice warrants the excise of the Court’s discretion in favour of the application on terms as to costs.

16. Accordingly, the formal orders will be as follows:

1. Pursuant to Rule 22 of the EP Rules the requirement under Rule 12 in terms of the time limit of 21 days for the second respondent to file and serve an objection to competency be dispensed with.
   
2. The second respondent shall file and serve a notice of objection to competency within seven (7) days of today, the deadline being Tuesday, 16 November 2021.
   
3. The second respondent shall pay the petitioner’s cost of and incidental to defending the application on solicitor-client basis to be taxed, if not agreed.
   
4. The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

Orders accordingly.
__________________________________________________________________
Lhyrn Lawyers: Lawyer for the Petitioner
Mawa Lawyers: Lawyer for the First Respondent
Jema Lawyers: Lawyer for the Second Respondent