Phannaphen v Pundari [2024] PGNC 93; N10750 (28 March 2024)

N10750

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 14 of 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE

BETWEEN:
SAMSON PHANNAPHEN
Petitioner

AND:
SIR JOHN THOMAS PUNDARI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2024: 8^th & 28^th March

ELECTIONS – practice and procedure – application by first respondent to vary terms of previous court order – first respondent also seeks leave to amend notice of objection filed – whether court can dispense with strict compliance of rules - Court can still entertain a late objection to competency as it has the discretion to do so in terms of Rule 22 (1) of the Electoral Petition Rules - Petitioner will suffer no prejudice if leave is granted to amend the Notice of Objection to Competency to include additional grounds raising jurisdictional issues – application granted

Case Cited:

Nobert Kubak v Andrew Trawen (2012) PGNC 286 N4882
Michael Kandiu v Powes Parkop (2023) N10597
Nick Kopia Kuman v Dawa Lucas Dekena & Electoral Commission (2012) N4885
Peter Charles Yama v Anton Yagama (2012) N4928
Nobert Kubak v Andrew Trawen (2012) N4992
Peter Nupiri v Hon. William Powi (2023) N10390
Johnson Tuke Ibo v William Hagahuno (2023) N10322
Peter Wararu v Richard Maru (2023) N10358
Michael Kandiu v Powes Parkop (2023) N10597

Counsel:

Mr. Caspart Yoanes, for the Petitioner
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING

28^th March 2024

1. DINGAKE J. This is an application by the First Respondent to vary term two (2) of the Court Order made on the 20^th of November, 2023 and for leave to be granted for the First Respondent to withdraw the Notice of Motion filed on the 16^th of November, 2023.
   
2. Furthermore, the First Respondent also seeks leave to amend the Notice of Objection filed on the 23^rd of September 2022 to include additional grounds based on Section 209 of the Organic Law on National and Local Level Government Elections and Rule 5 of the Election Petition (Miscellaneous Amendments) Rule 2022 and to file further affidavits if any within seven (7 days).
   
3. This application is supported by three (3) Affidavits, the Affidavit of Cedric Sina Lau filed on the 16^th of November 2023, and two (2) Affidavits of Sir John Thomas Pundari filed on the 16^th of November, 2022 and the other filed on the 20^th of December, 2023.
   
4. It is common cause that the original Notice of Objection to competency in this matter was filed on the 23^rd of September, 2022.
   
5. The First Respondent’s reasons for only bringing the amendment sought, almost a year or more later, is that his lawyers were not linked to the Integrated Electronic Case Management System (IECMS), as a result of which they could not confirm the date when the Petition in this matter was uploaded onto the IECMS and whether the receipts for the Security Deposit were uploaded together.
   
6. The other reason offered by the First Respondent is that his lawyers recently came to know of cases delivered by the National Court on the effect of depositing security for costs as required by Section 209 of the Organic Law. The First Respondent says he wishes to be granted leave to argue the point that the deposit for security for costs in this matter was done two (2) days before the complete Petition was filed.
   
7. The First Respondent also prays the Court to dispense with strict compliance of Rule 12 of the Election Petition Rules which requires the Notice of Objection to Comptency to be filed and served within twenty-one (21) days and for leave to be granted to file and serve the amended Notice of Objection.
   
8. The dates of the trial of the Petition have been set from the 6^th of May, to 31^st of May 2024. The First Respondent has applied that these dates be vacated.
   
9. The thrust of the First Respondent’s submissions in support of the prayer he seeks is that the law allows objection to competency to be raised at any stage of proceedings and further that the Petitioner will not be prejudiced if the amendment sought is granted.
   
10. The Petitioner is opposed to the application because it is an abuse of Court process according to the Affidavit of the Petitioner (Doc# 335) filed on the 1^st of February, 2024. I have read the entire Affidavit which elaborates the assertion that the First Respondent’s application is an abuse of Court process and I do not need to repeat the contents of the said Affidavit.
    
11. As indicated earlier it took slightly more than a year for the First Respondent to file this application and the First Respondent advanced reasons related to the IECMS and recent decisions of the National Court interpreting Section 209, which he says changed the legal landscape.
    
12. It is trite law that the Court can still entertain a late objection to competency as it has the discretion to do so in terms of Rule 22 (1) of the Electoral Petition Rules.
    
13. Section 22(1) of the aforesaid rule provides that:
    

“The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.”

14. It is trite law that the issue of competency may be raised at any stage of proceedings, including during trial (Nobert Kubak v Andrew Trawen (2012) PGNC 286, N4882 and Michael Kandiu v Powes Parkop (2023) N10597.
    
15. Section 155(4) of the Constitution gives the Court power to make orders to do justice in the circumstances of a particular case.
    
16. I have also been referred to authorities by the First Respondent that say that a Respondent can raise fresh grounds of objections not pleaded in the notice of objection to competency provided a Petitioner is afforded adequate opportunity to respond to the new grounds. (Peter Charles Yama v Anton Yagama (2012) N4928). The other authorities I was referred to also say that a Respondent can raise an objection to competency even where no objection to competency has been filed (Nobert Kubak v Andrew Trawen (2012) N4992).
    
17. In the recent past this Court granted leave to the Respondents to amend their notice of objection based on Section 209 of the Organic Law. (Peter Nupiri v Hon. William Powi (2023) N10390; Johnson Tuke Ibo v William Hagahuno (2023) N10322; Peter Wararu v Richard Maru (2023) N10358; Michael Kandiu v Powes Parkop (2023) N10597).
    
18. In light of the authorities cited above, I am persuaded that the Petitioner will suffer no prejudice if leave is granted to amend the Notice of Objection to Competency to include additional grounds raising jurisdictional issues; and that the First Respondent has made out a case that his amendments must be allowed.
    
19. I am also satisfied that the First Respondent has made out a case to dispense with the requirements of Rule 12 of EP Rules.
    
20. In the result it is ordered that:
    
    1. Pursuant to Section 155(4) of the Constitution and Section 212(3) of the Organic Law on National and Local Level Government Elections (herein referred to as “the Organic Law”), term 2 of the Court Order granted on the 20^th November 2023 be varied and leave be granted to the First Respondent to withdraw his Notice of Motion filed on 16^th November, 2023 (Court Document No. 255).
       
    2. Pursuant to Rule 22(1) of the EP Rules and Section 185 & 155(4) of the Constitution, the strict compliance with requirement of Rule 12(a) of the EP Rules be dispensed with and the First Respondent be granted leave to amend his Notice of Objection to Competency filed on 23^rd September, 2022 (Court Document No. 16) to include additional objection grounds based on Section 209 of the Organic Law and Rule 5 of the EP Rules and to file further supporting Affidavits if any within seven (7) days from today (28^th March 2024).
       
    3. Costs be in the cause.
       
    4. Time be abridged to the date of settlement by the Registrar, which shall take place forthwith.

_______________________________________________________________
Lhyrn Lawyers: Lawyers for the Plaintiff/Applicant
Paul Othas Lawyers: Lawyers for the First Respondents
Pacific Legal Practice: Lawyers for the Second Respondents