Kiso v Stuckey [2022] PGNC 567; N10102 (17 October 2022)

N10102

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 12 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF THE DISPUTED RETURN FOR 2022 NATIONAL GENERAL ELECTIONS FOR KAVIENG OPEN ELECTORATE

BETWEEN:
GLEN KISO
Petitioner

AND:
IAN LING STUCKEY
First Respondent

AND:
SIMON SINAI, ELECTORAL COMMISSIONER OF ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Yagi J
2022: 30^th September & 17^th October

ELECTION PETITION – PRACTICE & PROCEDURE – application to amend the petition after 40 days – power of the Court to amend a petition – no power to amend a petition after 40 days – law in Delba Biri v Bill Ninkama [1982] PNGLR 342 applied – application dismissed with cost.

Cases Cited:

Bryan Kramer v Nickson Philip Duban (2012) N4884
Cosmos Sohia v Fedelis Semoso (2016) N6338
Cosmos Sohia v Fidelis Semoso (2016) N6338
Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Highlands Provincial Government (2006) SC844
Hagahuno v Tuke (2020) SC2018
Johnny Pokaya Philip v James Marape (2013) N5276
Jamie Maxton Graham v Electoral Commissioner of Papua New Guinea (2013) N5134
Reference by the East Sepik Provincial Executive (2011) SC1154
SCR No.2 of 1981 [1982] PNGLR 150
Uma More v UPNG [1985] PNGLR 401
William Powi (Acting Administrator for Southern Highlands Province) v Southern

Counsel:

Mr M. Murray, for the Petitioner
Mr I. Shepherd, for the First Respondent
Mr J. Kiluwe, for the Second Respondent

RULING

17^th October, 2022

1. YAGI J: The petitioner seeks to amend his petition which he filed on 29 August 2022. This is a ruling on his application. The application is opposed by the first respondent. The second respondent, however, takes a neutral position to the application.

2. The application is made by notice of motion dated 20 September 2022 seeking the following principal relief:

“Pursuant to Section 155(4) of the Constitution, Section 217 of the Organic Law on National and Local-level Government Elections and Rules 11 and 17 of the Election Petition Rules for Presentation and Conduct of Election Petitions 2002 (As Amended) the Petitioner seeks an order to amend its Petition outside the 40 days from the date of declaration.”

3. The petitioner relies on his own affidavit sworn on 22 September 2022.

4. A copy of the notice of motion and the supporting affidavit were handed up in court as the copies uploaded to the IECMS were not sealed at the time of the hearing. No issue as to service is taken by the respondents.

5. In summary the petitioner deposed, among others, to the following facts in his affidavit:

1. He is the petitioner.
   
2. The first respondent was declared the member elect for Kavieng Open Electorate on 20 July 2022.
   
3. He and other losing candidates for Kavieng Open Electorate mobilised to secure a lawyer who is experienced in election petition cases to file a petition disputing the declaration of the first respondent.
   
4. The petitioner and others were advised that the deadline to file a petition is 29 August 2022.
   
5. The first lawyer engaged by an associate of the petitioner failed to deliver on her promise within time and the deadline was fast approaching.
   
6. As a result, Mr Moses Murray was consulted on 24 August 2022 and thereafter instructed on 26 August 2022 to prepare and file a petition based on allegations of bribery and undue influence.
   
7. After filing a petition in the proceeding, the petitioner reviewed the contents of the petition with his lawyer on 14 September 2022 and consequently instructed his lawyer to amend certain paragraphs in the petition which are cosmetic in nature.
   

8. The proposed amendment to the petition is not adding new ground.

9. Based on advice by his lawyer the petitioner believes amendments after expiry of 40 days from declaration of election result are allowed by Rule 11.
   
10. A draft copy of the petition with the proposed amendments is annexed to his affidavit and marked annexure “A”.
    

6. It is apparent that the petitioner has invoked various provisions of the law and the Rules of the Court in this application. These provisions are:

• Section 155(4) of the Constitution
• Section 217 of the Organic Law on National & Local-level Government Elections (Organic Law)
• Rule 11 of the Election Petition Rules for Presentation and Conduct of Election Petitions 2002 (As Amended) (EP Rules 2002)
• Rule 17 of the EP Rules 2002
  

7. Section 155(4) of the Constitution states:

“(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

8. The question arises whether the inherent power of the Court under s. 155(4) of the Constitution is available for the purpose of amendment to a petition in an election petition proceeding. It is settled law that s. 155(4) is not a source of primary jurisdiction. The provision can only be relied upon to protect a primary right of a party where there is a vacuum in the law: SCR No.2 of 1981 [1982] PNGLR 150 and Uma More v UPNG [1985] PNGLR 401. It has also been held that in election petition proceedings s. 155(4) is not applicable.

9. In Jamie Maxton Graham v Electoral Commissioner of Papua New Guinea (2013) N5134, the Court stated that s. 155(4) does not apply. In that case two objections to competency to a petition was filed and was directed to be heard at trial. The petitioner filed an application to strike out the objections to competency citing s. 155(4) as one of the jurisdictions of the Court. The Court adopted and applied the statement of the Supreme Court in Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342 that s. 155(4) does not apply. The same statement of the law was made in another election petition proceeding by Makail J in Cosmos Sohia v Fidelis Semoso (2016) N6338. Moreover, it was held that it is an abuse of court process to invoke s. 155(4) in improper or inappropriate circumstances: William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844.

10. With regards to the petitioner invoking s. 217 of the Organic Law, this provision states:

“217. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

11. It is clear, in my view, that this provision is also inapplicable simply because it does not give the Court a power to grant a relief, let alone the power to amend a petition. It is a guiding principle only which the Court is obliged to follow in conducting its proceedings including applying the election laws.

12. As to Rules 11 and 17 of the EP Rules 2002 these rules have long been repealed and therefore no longer in force.

13. The Judges have promulgated the Rules of Court governing the practice and procedure in election petition proceedings over the years. Such Rules can be traced back to 2002 where the EP Rules 2002 were made by the Judges. This set of Rules were later amended in 2007 and described as Election Petition Rules 2002 (As Amended) which come into effect on 18 September 2007. Eventually this Rule was repealed by Election Petition Rules 2017 which became operational on 03 July 2017. The Election Petition Rules 2017 was amended recently on 28 February 2022 by Election Petition (Miscellaneous Amendments) Rules 2022 and commenced operation on 01 May 2022.

14. The Court’s power to amend petitions was previously provided by the EP Rules 2002 under Rule 11 in the following terms:

“11. AMENDMENT OF PETITION

A petition may be amended at anytime before the expiry of 40 days from the declaration.”

15. However, as mentioned earlier, Rule 11 was repealed and is no longer in force. It therefore follows that the petitioner had invoked a jurisdiction that is non-existent and consequently there is no power in the Court to exercise in granting the relief or orders being sought in the notice of motion.

16. For the foregoing reasons I find the application to be incompetent for being without any legal basis and must fail on that basis alone.

17. However, if I am wrong on that point, I will proceed to consider the merit of the application. The petitioner’s counsel argued strenuously and relied heavily on certain passages in the opinion expressed by Kandakasi DCJ (particularly at paragraphs 37 - 42) in the recent Supreme Court decision by 5-member Bench in Hagahuno v Tuke (2020) SC2018 where his Honour discussed the Court’s power to amend a petition and concluded that the Court had power to amend a petition after the expiry of 40 days period. It is submitted other 4-members of the Court (Kirriwom J, Mogish J, Manuhu J and Makail J) also endorsed the statement of the law propagated by the learned Deputy Chief Justice in respect to the Court’s power to amend the petition after 40 days. Counsel therefore argued that the judgment of the Court is binding on this Court and this Court should follow in applying the law, thus, grant the application and make orders in terms of the notice of motion.

18. The first respondent submits there is no power to amend a petition after the 40 days period and relied on Delba Biri v Bill Ninkama (supra) and Johnny Pokaiya Philip v James Marape (2013) N5276.

19. Having read the written submissions and heard oral arguments I accept the submission by the first respondent for the following reasons. In Johnny Pokaya Philip v James Marape (supra), after reviewing the law and case authorities on amendment to petitions I noted that the specific question was answered by the Supreme Court in Delba Biri v Bill Ninkama (supra). The Court in that case held in no uncertain terms that no amendment to a petition can be allowed after 40 days. This statement has not been overruled to date. I have carefully perused the judgment of the Supreme Court in Hagahuno v Tuke (supra). With respect, the statement by the Honourable Deputy Chief Justice is ‘orbiter dicta’ because the issue as to the power of the Court to amend a petition was not before the Supreme Court. There were only two issues before the Court, and these were whether “self-employed” is an occupation within the meaning of s. 208(d) of the Organic Law and whether sufficient facts in relation to bribery allegations were pleaded for the purpose of s.208(a) of the Organic Law. The other 4-members of the Court did not consider the issue of amendment to a petition neither did they express any agreement or support to the statements by the learned Deputy Chief Justice on that point.

20. In Reference by the East Sepik Provincial Executive (2011) SC1154 the Supreme Court (per Gavara-Nanu J at para 804) stated that an ‘orbiter dicta’ judgment has no binding effect and should not be followed. It therefore follows that the decision in Delba Biri v Bill Ninkama (supra) remains the law and it has not been overturned by Hagahuno v Tuke (supra).

21. I therefore accept the submission by the first respondent that the law as per the Delba Biri v Bill Ninkama (supra) is that no amendment to a petition is allowed after 40 days from the date of declaration. In this case the declaration was made on 20 July 2022. The time for amendment to the petition lapsed on 29 August 2022. The application was filed after the expiry date, and consequently the Court has no power to amend the petition. Accordingly, I find that there is no legal basis nor merit in the application and must be dismissed with costs.

22. The orders will be that:

1. The application is dismissed.
   
2. The petitioner shall pay the first respondent’s cost on party-party basis, if not agreed, to be taxed.

_________________________________________________________________
Murray & Associates, Solicitors & Advocates: Lawyers for the Petitioner
Ashurst PNG Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent