Kandui v Parkop [2023] PGNC 451; N10597 (1 December 2023)

N10597

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 100 AND 102 OF 2022

BETWEEN:
MICHAEL KANDUI
Petitioner

AND:
POWES PARKOP
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2023: 13^th November, 1^st December

ELECTION – practice and procedure - applications seeking to add two additional grounds to the Notice of Objection to Competency of the petition – whether late amendments would cause real prejudice and injustice to the Petitioners in that it delayed the trial of the Petitions – Courts would allow amendments if to do so would not occasion any prejudice and or injustice – and or if the prejudice, (if any) cannot be sufficiently addressed by an order as to costs - on a proper balance of all the relevant considerations, the First Respondent should be granted leave he seeks - Leave is granted to the First Defendant to amend its objection to competency to add the new grounds he wishes to add as reflected in his Notice of Motion

Cases Cited:
Johnson Tuke Ibo v William Hagahuno [2023] PGNC 132; N10322
Peter Waram v Richard Maru [2023] PGNC 168; N10358

Counsel:
Mr. David L. Dotaona & Mr. Nemo Yalo, for the Petitioner
Mr. Timwapa Dawidi, for the First Respondent

RULING

1^st December 2023

1. DINGAKE J: INTRODUCTION: On the 13^th of November 2023 I heard applications by the First Respondent pertaining to election petitions 100 and 102 of 2022 (which were consolidated or ordered to be heard together) the nub of which is and or was to grant leave to the First Respondent to amend his Notice of Objection, concerning the above petitions, filed on the 8^th of November 2022.
   
2. The crisp background to this matter is that following the elections held in 2022, the petitioners in EP 100 and 102 disputed the result of the election of First Respondent, Powes Parkop as a Member for the National Capital District Regional Seat. Mr. Parkop was declared the winner of the seat on the 2^nd of September 2022.
   
3. The Petitions were filed on the 10^th and 12^th of October 2022, respectively. After the petitions were filed with this Court, the First Respondent on the 8^th of November 2022 filed an objection to competency.
   
4. For completeness, it is important to state that the objections to competency with respect to both petitions as indicated above were filed on the 8^th of November 2022.
   
5. On the 22^nd of September 2023, the First Respondent filed a Notice of Motion seeking to add one additional ground of objection.
   
6. With respect to EP 102 of 2022, the First Respondent filed two applications being:
   
   • (a) Application filed on the 11^th of August 2023, seeking to include the objection relating to the late filing of the petition pursuant to Section 208 (e) of the Organic Law; and
     
   • (b) Notice of Motion filed on the 22^nd of September 2023, seeking to include the objection relating to the failure to comply with the requirements of Section 209 of the Organic Law.
     
7. The above applications seek to add two additional grounds to the Notice of Objection to Competency of the petition.
8. The applications (with respect to both petitions) were brought pursuant to Rule 22 of the Election Petition (Miscellaneous Amendments) Rules, that, inter alia, gives the Court the discretion to dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.
   
9. Both petitions have not been fixed for hearing.
   
10. The First Respondent took a few months, ranging between 5-10 months or thereabout, with respect to both applications, after filing the objection to competency, on the 8^th of November 2022, to bring the various applications referred to above to amend his objection to competency.
    
11. The First Respondent gave no explanation, in the form of any sworn affidavits, why he took so long to amend the objection to competency. This much was conceded by learned Counsel for the First Respondent, Mr. Dawidi.
12. The Petitioners argued that the late amendments caused real prejudice and injustice to the Petitioners in that it delayed the trial of the Petitions.
    
13. Mr. Yalo, learned Counsel for the Petitioner in (EP 100 of 2022), pointed out that the election in the Nation’s Capital was the first to be conducted in July 2022 and the result to be declared in September 2022.
    
14. Mr. Dawidi, learned Counsel for the Respondent, submitted that no prejudice would be occasioned to the Petitioners if the amendments sought are allowed as the date of the trial of the two elections petitions has not been fixed.
    
15. I have considered the arguments of the lawyers for the parties. Generally, the approach of the Courts is to allow amendments, if to do so would not occasion any prejudice and or injustice – and or if the prejudice, (if any) cannot be sufficiently addressed by an order as to costs.
    
16. I had the benefit of reading a case in which the Court allowed a respondent to amend its Notice Objection to competency outside the time allowed to file the Notice of Objection to Competency (Johnson Tuke Ibo v William Hagahuno (2023) N10322.
    
17. I have also had the profit of reading the judgment of my brother Shepherd J, in the case of Waram v Maru (2023) N10358, in which he indicated that the issue of objection to competency of an objection can be raised at any stage of the proceedings including at a trial.
    
18. In exercising its discretion to grant or refuse leave the court must have a good reason for its conclusion – in other words, the discretion it is enjoined to exercise is a judicial one and should not be arbitrarily exercised.
    
19. In this case, there is no doubt that the First Respondent delayed bringing the applications for amendments referred to earlier, for a period of slightly over 10 months or so, at most, and offers no explanations for such delay. I have taken this delay into consideration. I have advised myself that an objection to competency may be raised anytime. I considered the period of the delay in each case ranging from 5 -10 months or thereabout. I have considered whether the delay is in any way so prejudicial as to justify the refusal to allow the amendments, in the context of the totality of the considerations mentioned above.
    
20. I have also considered that the date of trial for the petitions has not been fixed.
    
21. I am of the considered view that on a proper balance of all the relevant considerations, the First Respondent should be granted leave he seeks. There may well have been some prejudice to the Petitioners in the sense that the delay may have slowed down the progress of the trial. I am of the considered view that if there are any prejudice, it can be addressed by an appropriate order as to costs.
    
22. In this case the First Respondent ought to have known of the provisions of Section 208(e) and 209 of the Organic Law and raised the objection sought by the amendments at the time he filed his objection on the 8^th of November 2022. It is obvious that failure to do so is the reason why the Petitioners are opposing the amendments. I think this aspect of prejudice can be addressed by an appropriate order for costs.
    
23. In all the circumstances of this case, I’m satisfied that the First Respondent has made out a case for the relief sought.
    
24. In the result, it is ordered that:
    
    • (a) Leave is granted to the First Defendant to amend its objection to competency to add the new grounds he wishes to add as reflected in his Notice of Motion filed on the 22^nd of September 2023 (EP No. 100 of 2022); application filed on the 11^th of August 2023 and Notice of Motion filed on the 22^nd of September 2023.
      
    • (b) The First Respondent shall pay the Petitioners (in both EP 100 and 102 of 2022) costs attendant to the delayed filing of the applications for amendments – such costs to be agreed or taxed.
      

_______________________________________________________________
Dotaona Lawyers & Yalo Lawyers: Lawyer for the Plaintiff
Dawidi Lawyers: Lawyer for the First Respondent