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Waraku v Trawen [2012] PGNC 153; N4815 (8 October 2012)

N4815

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 17 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE YANGORU-SAUSSIA OPEN ELECTORATE

BETWEEN

PETER WARARU WARANAKA
Petitioner

AND

ANDREW TRAWEN, Electoral Commissioner,
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
First Respondent

AND

DAVID TOBENA, the Returning Officer for Yangoru-Saussia Open Electorate
Second Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

AND

RICHARD MARU
Fourth Respondent

Waigani: Makail, J
2012: 01st & 08th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to strike out petition – Grounds of – Irregularity – Filing of petition by lawyers without leave of Court – Irregular service – Petition served by third party, policeman – Petition served without notice to appear in Form 1 and notice of directions hearing in Form 2 – Application arising from election dispute – Grounds misconceived – Application is objection to competency – Application dismissed – Organic Law on National and Local-level Government Elections – Sections 208 & 222(1) – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7(1)(a)&(c), 15 & 17.

Facts

Moses Murray & Company Solicitors & Advocates Limited filed a petition for the petitioner disputing the election of the fourth respondent as member elect for Yangoru-Saussia open electorate in the East Sepik Province in the 2012 General Elections. At the directions hearing, the fourth respondent raised a preliminary matter in relation to the petition being filed by the petitioner's lawyers without first obtaining leave of the Court under section 222(1) of the Organic Law on National and Local-level Government Elections. He also alleged that the petitioner did not serve the petition on him in person and this was in breach of Rule 7(1)(a) of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. The application for "preliminary matter to be raised" was in fact an objection to the competency of the petition and should have been by way of a notice of objection and argued at the trial pursuant to Rule 15 of the National Court Election Petition Rules, 2002 (as amended).

2. The failure to serve the notice to appear in Form 1 and notice of directions hearing in Form 2 at the time the petition was served under Rule 6 of the National Court Election Petition Rules, 2002 (as amended) does not render the petition invalid.

3. Rule 7(1)(a) of the National Court Election Petition Rules, 2002 (as amended) does not expressly preclude other persons from serving the petition on the respondents.

4. Section 222(1) of the Organic Law on National and Local-level Government Elections is not a pre-requisite of the petition under section 208 of the Organic Law on National and Local-level Government Elections and therefore is not a ground of objection to competency of a petition.

5. The application was based on misconceived grounds and delayed the directions hearing by 2 weeks. For these reasons, the fourth respondent was ordered to pay the petitioner's costs of the application.

Cases cited:

Jimson Sauk -v- Don Pomb Polye (2004) SC769
Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763
Mapun Papol -v- Antony Temo & The Electoral Commission [1981] PNGLR 178
Delba Biri -v- Bill Gembogl Ninkama [1982] PNGLR 342
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Re: The Election of Karamui-Nomane; John Wemin -v- Simon Philip Gaima & Electoral Commission [1997] PNGLR 645
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)
Wari Vele -v- Powes Parkop (2008) SC945

Counsel:

Mr M Murray, for Petitioner
Mr J Umbu, for First, Second & Third Respondents
Mr R Bradshaw, for Fourth Respondent

RULING ON APPLICATION TO STRUCK OUT PETITION

08th October, 2012

1. MAKAIL, J: On 23rd August 2012, Moses Murray & Company Solicitors & Advocates Limited filed the petition for the petitioner disputing the election of the fourth respondent as member elect for Yangoru-Saussia open electorate in the East Sepik Province in the 2012 General Elections. In accordance with Rule 12 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"), the petition was fixed for directions hearing on 21st September 2012. The Court did not sit on that date and the directions hearing was rescheduled to 24th September 2012 at 9:30 am.

Background

2. On the morning of 24th September 2012, Mr Moses Murray appeared with leave for the petitioner and Mr Andrew Kongri also appeared with leave for the first, second and third respondents. Mr Robert Bradshaw sought leave for which leave was granted and appeared for the fourth respondent. He then raised "some preliminary matters" one of which was the appearance of Mr Murray. He referred the Court to the petition and pointed out that it was filed by the lawyers for the petitioner without leave of the Court and this was in breach of section 222(1) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections").

3. He added that he took issue with Mr Murray's appearance because this was the first time such an issue was raised in an election petition case and sought the Court's indulgence to determine it before the directions hearing. Mr Murray took exception to the challenge, suggesting that it was a trivial matter such that the Court should not bore itself with. Since it was the first time the issue was raised, the Court then directed Mr Bradshaw to file and serve a notice of motion on the parties setting out the basis of the objection and adjourned the matter to 28th September 2012 at 1:30 pm for hearing. Due to time constrain, the motion was not heard and was further adjourned to 01st October 2012 at 9:30 am for hearing.

4. Pursuant to the notice of motion filed on 25th September 2012, the fourth respondent moved the Court for the following orders:

"1. The Petition filed herein be struck-out as being irregularly filed for breach of section 222(1) of the Organic Law on National and Local-level Government Elections.

2. In the alternative to above, pursuant to Rule 18(1) of the National Court Election Petition Rules (the Rules), the Petition filed herein be dismissed for Petitioner's failure to comply with Rule 6 of the Rules by:

(i) the Petitioner failing to serve on the Fourth Respondent, the Petition, and/or

(ii) the Petitioner failing to serve the Notices required by Rule 6(1)(a) and (b).

3. In the alternative to (1) and (2) above, pursuant to Rule 18 of the Rules, time be extended for the Fourth Respondent to file objection to competency of the Petition herein.

4. Such further or other orders as this Honourable Court deems appropriate."

Grounds of Application

5. The fourth respondent relied on three grounds to dismiss the petition:

(a) The petition filed by Moses Murray Solicitors & Advocates is in breach of section 222(1) of the Organic Law on Elections; or

(b) The petition was served on the fourth respondent in breach of Rule 7 of the EP Rules, in that, a person other than the petitioner serve it on the fourth respondent; or

(c) The petition was served in breach of Rule 6 of the EP Rules, in that at the time of service of the petition, the petitioner failed to serve the notice to appear in Form 1 and notice of directions hearing in Form 2.

Fourth Respondent's Submissions

6. Mr Bradshaw submitted that section 222(1) of the Organic Law on Elections is very clear. No lawyer shall appear for a party in an election petition unless parties consented or with leave of the Court. In this case, without obtaining the consent of the respondents or leave of the Court, Moses Murray Solicitors & Advocates have filed the petition on behalf of the petitioner. This is in breach of section 222(1). Section 222(1) is in mandatory terms and a failure to comply with it is not a trivial matter such that the Court should take lightly and allow the petitioner to pursue the petition. It must be strictly complied with and failure to comply may result in the petition being struck out for being irregularly filed.

7. In support of this submission, Mr Bradshaw relied on the obiter dictum of the Supreme Court in Jimson Sauk -v- Don Pomb Polye (2004) SC769:

"It is obvious to us that the legislative intent is to exclude or limit professional legal involvement in the initiation and conduct of the election petitions. Never was there an intention that this special jurisdiction of the court would end up being a game for legal eagles to play around with depending on whose instructions they were acting on."

8. He also relied on the obiter dictum of the Supreme Court in Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763 to support his submission that the legislature did not intent that lawyers get involved in election petitions and that section 222(1) of the Organic Law on Elections makes it obvious that lawyers were not permitted to appear in Court in prosecuting or defending parties to a petition without all parties agreeing to that, or the National Court granting leave.

9. He concluded his submission on this ground by submitting that the default by the petitioner and his lawyers cannot be remedied by the Court invoking its discretionary power under Rule 17 of the EP Rules to dispense with the strict compliance with section 222(1) of the Organic Law on Elections. This is because the default is not under the EP Rules but the Organic Law on Elections and Rule 17 expressly excludes dispensation of any requirements of the Organic Law on Elections. Finally, he submitted that section 217 (Real justice to be observed) of the Organic Law on Elections is also of no assistance to the petitioner because this provision is not applicable in cases where a preliminary point is raised in an election petition, such as in this case. Reliance was placed on the National Court decision by Kapi, J (as he then was) in Mapun Papol -v- Antony Temo & The Electoral Commission [1981] PNGLR 178 at 180 and Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342.

10. In relation to the second ground, Mr Bradshaw submitted that Rule 7(1) of the EP Rules states that service of a petition may be effected by personal service. This means that the petitioner and no other person must serve the petition on the respondents. He relied on the case of Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983 where the National Court was critical of policemen serving petitions. In this case, a policeman was engaged by the petitioner to serve the petition on the fourth respondent. This was in breach of Rule 7(1)(a) and therefore, service was irregular.

11. He went on to suggest that if the petitioner had encountered difficulties in serving the petition on the fourth respondent in person, he was not left without a remedy; he had and could have applied for substituted service under Rule 7(1)(c) of the EP Rules, eg, to have the petition published in the two daily newspapers. He failed to do that and it is too late now to correct the error. He has not even sought to dispense with personal service or obtained an order for service by use of policemen and the breach is continuing.

12. With regards to the last ground, counsel submitted that the petition was served in breach of Rule 6 of the EP Rules, in that at the time of service of the petition, the petitioner failed to serve the notice to appear in Form 1 and notice of directions hearing in Form 2. Again, this was the fourth respondent. This was in breach of Rule 6 and therefore, service was irregular.

13. Finally, Mr Bradshaw submitted that if the orders sought by the fourth respondent are refused, then leave should be granted to the fourth respondent to file and serve a notice of objection out of time. This is because if the Court decides in favour of the petitioner, it would be deemed that service of the notices in Form 1 and 2 are dispensed with at the date of decision.

Petitioner's Submissions

14. Mr Murray countered these submissions by first objecting to competency of the application on the ground that the application itself is incompetent because the so called "preliminary matter to be raised" by the fourth respondent struck at the heart of competency of the petition. In other words, the fourth respondent is objecting to competency of the petition and he should appropriately raise it in a notice of objection and argue it at trial pursuant to Rule 15 of the EP Rules. He submitted that the fourth respondent is wasting the Court's time by asking it to determine the issue of lawyers filing petition on behalf of petitioners at directions hearing when such issue(s) should be raised at trial by way of an objection. If the Court accepts this proposition, then the fourth respondent is out of time to object to the competency of the petition.

15. In relation to the merits of the application, he submitted that for as long as election petitions have been around, it has been the commonly accepted practice that lawyers retained by petitioners file petitions on their behalf in the National Court. If the Court is to accept the submission of the fourth respondent and dismiss the petition, then the Court would be opening the floodgates and inviting all manner of objections by respondents to election petitions, let alone depriving petitioners who have filed petition through their lawyers, right to have their petitions determined on their merits. He submits that this clearly is not the intention of the Organic Law on Elections. To support these submissions, he relied on the case of Re: The Election of Karamui-Nomane; John Wemin -v- Simon Philip Gaima & Electoral Commission [1997] PNGLR 645.

16. As to the ground on service of petition, he submitted that according to the affidavit of the petitioner sworn and filed on 26th September 2012, it was practically impossible for the petitioner to serve the petition on the fourth respondent in person. First, it was difficult to locate the fourth respondent despite numerous attempts to locate him in Port Moresby. Searches for him were made even harder when he has a number of residences in Port Moresby. The Electoral Commission did not help the petitioner's cause when it did not provide a copy of the nomination form of the respondent to enable the petitioner to identify the residential address of the fourth respondent and serve him.

17. Secondly, there were threats of violence by the fourth respondent and his supporters to the petitioner and his supporters following the election victory of the fourth respondent, thus preventing the petitioner from serving the petition in person. For these reasons, the police were engaged to serve the petition and did serve on the fourth respondent at 6:15 pm on 27th August 2012 at allotment 11, section 22, Geregere Avenue, Boroko, National Capital District. He concluded by submitting that to suggest that the petition should have been served on the fourth respondent by the petitioner in person is totally absurd and without foundation in law.

18. With respect to the last ground, Mr Murray conceded that the notice to appear in Form 1 and notice of directions hearing in Form 2 were not served at the time the petition was served on the fourth respondent but explained that at the time the petition was served, the notices were dislodged from the petition. He submitted, nonetheless, the important document that must be served is the petition and it was served in time. This ground is misconceived and should be dismissed. All in all, he submitted the application should be refused with cost.

First, Second & Third Respondents' Submissions

19. Mr Umbu appearing for the first, second and third respondents' made no submissions.

Objection to the Fourth Respondent's Application

20. First, let me address the objection to the application. I accept the petitioner's submission that the preliminary matter (lawyers filing petition for the petitioner without leave of the Court) strikes at the heart of competency. To my mind, it is a challenge to the competency of the petition and I must make that very clear at the outset. Mr Murray suggested that if the Court accepts this proposition, then it should dismiss the application because it was made outside the time limit of 21 days allowed by Practice Direction for an objection to competency to be filed: see Practice Direction (Election Petitions) No 2 of 2012 dated 02nd August 2012. I could do that but it would be unfair to parties to come this far after having prepared and made extensive submissions on the merits of the application only to find that the Court has dismissed the application on a competency ground.

21. In any case, the Court had allowed the fourth respondent to raise the issue when it was first raised by Mr Bradshaw at the directions hearing by directing him to file and serve a notice of motion on the other parties before hearing. At that time, it was unclear whether the "preliminary matter to be raised" was a competency issue. The Court issued this direction because it considered that it was the fairest way to deal with the issue. Parties were given time to prepare and present respective submissions on the issue. Therefore, in all fairness, I refuse the objection to the competency of the application and will now address the grounds of the objection.

Compliance with service of Notice to Appear and Notice of Directions Hearing

22. I address the last ground first. It is common ground that under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the respondents within 14 days of the date of its filing. At the same time, he must provide three copies of notice to appear in Form 1 and notice of directions hearing in Form 2. Rule 6 states:

"6. SERVICE OF PETITION ON RESPONDENTS

(1) Within 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents and must, at the same time, provide the respondents with:

(a) three copies of a Notice to Appear in accordance with Form 1 completed with the title of the proceedings; and

(b) the Registrar's or his delegate's Notice which shall state the date, time and place at which a Directions Hearing will be held and the matters in Rule 12(3).

(2) The Notice referred in Rule 6(1) (b) shall be in accordance with Form 2."

23. It is also an undisputed fact that at the time the petition was served on the fourth respondent, the notice to appear in Form 1 and notice of directions hearing in Form 2 were not provided to the fourth respondent. I accept the fourth respondent's submission that at the time of the service of the petition, the petitioner must also provide a notice to appear in Form 1 and notice of directions hearing in Form 2.

24. I also accept the petitioner's submission that the important document that must be served on the respondents within the time limit of 14 days is the petition. I accept this submission because the petition is the originating process; it is the document that initiates the legal proceedings in the National Court to challenge the validity of the election of the fourth respondent: section 206 of the Organic Law on Elections. It must be served within 14 days of its filing and if it is not served within time or that service is found to be irregular, then it renders the proceedings irregular and the proceedings may be dismissed. see my recent decision in Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012).

25. Forms 1 and 2 are issued by the Registrar in accordance with Rules 9 and 12 of the EP Rules respectively. Rule 12 requires that the petition must be fixed for directions hearing within 28 days of its filing. Form 2 is issued to inform the respondents of the date, time and venue of directions hearing. This is because the petition does not provide this information. It is envisaged by Form 2 that, upon its receipt, the respondents will be informed of the date, time and venue of the directions hearing. In this case, the petition was fixed for directions hearing on 21st September 2012 at 9:30 am at Waigani National Court. There is no dispute that the fourth respondent was aware of the date, time and venue of the directions hearing.

26. There is also no dispute that the petition was served within time. The fourth respondent has neither given any reasons nor shown how the failure by the petitioner to provide these notices unduly prejudiced him in the defence of the petition. In the absence of reasons or prejudice, I am of the view that the failure to serve the notices does not render the petition invalid. In any case, the fourth respondent has filed a notice to appear on 20th September 2012. This sufficiently establishes that he is defending the petition. He even attended the directions hearing through his lawyers. In my view, by his conduct, he has waived these procedural requirements and cannot now turn around and complain. For these reasons, I am not satisfied that this ground has been made out and dismiss it.

Personal Service of Petition

27. Turning to the second ground, it is common ground that pursuant to Rule 7 of the EP Rules, the petitioner is required to personally served the petition on the fourth respondent, leaving it at the residential address of the fourth respondent as stated by him in the nomination form with a person who appears to be over the age of 18 years, or serve in other circumstances as the Court may, on application approve. Rule 7 is set out in full below:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament." (Emphasis added).

28. On the plain reading of Rule 7(1)(a), Mr Bradshaw's submission seems to have merit. But when it is considered with Rule 6 (above), the submission by the petitioner has more weight and proper foundation in law. I do not believe that Rule 7(1)(a) is intended to restrict personal service of a petition to the petitioner. If that was the intention, Rule 7 would have so expressed. Practically and generally speaking, all lawyers practicing in this jurisdiction or elsewhere should know that requiring the party who initiates legal proceedings or the originating process to serve the originating process on the opposite party in person is unrealistic. Issues of logistics, finance, security, geographical location of opposing party(s) etc, arise. Thus, it is not as simple as that, as the fourth respondent would have liked the Court to believe.

29. In ordinary civil litigation and where lawyers are retained to represent the party who initiates the originating process, lawyers or law firms these days have process servers, usually a legal clerk or a para-legal; somebody who has some general knowledge of the law, practice and procedure, who does the service of the originating processes or any Court documents for that matter on behalf of the party. Thus, it would be most unusual if Rule 7(1)(a) excludes other persons from serving the petition on the respondents.

30. The case of Hami Yawari (supra) relied upon by Mr Bradshaw does not assist the fourth respondent. The obiter dictum by Sevua, J that, "[i]t appears that policemen are running around doing politicians' errands for money without the authority and knowledge of the Police Commissioner and something should be done to stop this. The Commissioner of Police should stop this practice and discipline members of the Police Force who provide services to the politicians without authority...." was made in passing and this Court is not bound by it.

31. Thus, to suggest that no-one, let alone a policeman is not permitted by Rule 7 to serve a petition on the respondents is unrealistic and without foundation in law. Of course, the petitioner could have applied to the Court for substituted service under Rule 7(1)(c) of the EP Rules as suggested by the fourth respondent. However, it was not necessary because at that time, service of the petition was duly effected. For these reasons, and without discussing the evidence of the petitioner as to his explanation for engaging police to serve the petition on the fourth respondent, I am not satisfied that Rule 7(1)(a) restricts the person who is required to serve a petition to only the petitioner. In other words, a person apart from the petitioner can serve it on the fourth respondent. In this case, it was First Constable Marcellin Klei. For these reasons, this ground is misconceived and is dismissed.

Filing of Petition by Lawyers

32. I turn to the objection taken by the fourth respondent under section 222 of the Organic Law on Elections. Section 222 states:

"222. Counsel or solicitor.

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of a party."

33. The question is, is this a ground of objection to competency? Before I answer this question, it is necessary to ask what exactly is meant by the word "competency" in the context of legal proceedings. The answer is found in Jimson Sauk's case (supra), one of the cases Mr Bradshaw quoted extensively in his submissions to strike out the petition for being in breach of section 222(1) of the Organic Law on Elections. I cannot express my answer better than what the Supreme Court said when answering that question and would respectfully adopt and quote what it said as follows:

"Finally, in relation to the legal proceedings itself, the term would, in our opinion, concern the issue of whether or not there is (or are) legal basis for the proceedings.

Putting it another way, it involves determining whether or not there is legal foundation for the initiation of the proceedings; is there a proper or legitimate cause of action recognized by law, analogous to determining in ordinary civil litigation if there is a lis inter partes. Does there exist a recognized legal bar to bringing the particular proceedings?

In ordinary parlance the adjective competent which is derived from the noun competence or competency, connotes ability or authority to do what is required. Thus, in relation to judicial proceedings, the term would refer to having the legal power or authority to deal with something, so that we are concerned with the power of the court to entertain, and determine, a particular action, claim or dispute. It, therefore, has to do with jurisdiction. The Oxford Dictionary of Law defines jurisdiction as: the power of a court to hear and decide a case or make a certain order; it is the power of a court or judge to entertain an action, petition or other proceeding: Osborne's Concise Law Dictionary.

In election petitions the subject of the National Court's determination and the resultant application for review before us now, what provision in the Organic Law creates or vests jurisdiction? We would, without hesitation, hold that s 208 does by its enumeration of five (5) requisites of an election petition. The mandatory nature of these requisites is well established from a line of judicial authorities starting with the seminal decision of the Supreme Court in the case of: Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342, where the Court stated (at 345) that:

In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with.""

34. The Supreme Court, in referring to the decision of Delba Biri (supra), went on to say:

"The Supreme Court interpreted ss 208, 209 and 210 and laid down the law that unless a party (petitioner) strictly complies with the requirements of ss 208 and 209, pursuant to s 210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s 206 (Method of Disputing Returns), but unless each and every requirement of ss 208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return."

35. In Jimson Sauk's case (supra), the applicant sought review of the decision of the National Court in the Supreme Court. One of the grounds for the National Court dismissing his petition for being incompetent was that, it was wrongly addressed to the respondents. It should have been addressed to the National Court of Justice in accordance with section 206 of the Organic Law on Elections. In the Supreme Court, it was argued that the judge erred in holding that the petition was incompetent when section 206 is not a "pre-requisite" to a petition. Section 206 states:

"206. Method of Disputing Returns.

The validity of an election or return may be disputed by petition addressed to the National Court."

36. In upholding this ground of review, the Supreme Court said:

"It is our considered opinion that this provision does not vest jurisdiction such that its non-compliance would render the petition invalid and/or incompetent. The provision is quite clear as to what it means. It means what it says, and that is to provide the method by or through which an election or return can be challenged or disputed. To suggest that this provision has anything to do with jurisdiction such that the validity or competency of a petition depended on its compliance is to, in our respectful opinion, indulge in a mischievous importation of an intention or purpose never envisaged."

37. Relevantly is section 208. It states:

"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)."

38. In my view, section 222(1) (supra) applies to legal representation of parties to a petition to either prosecute or defend it. It allows parties to be represented by counsel or solicitor either by consent of all parties or by leave of the National Court. The first situation is where parties agree that lawyers to represent them in the petition. The second is by leave of the Court. The latter seems to suggest that if parties disagree, then they can seek leave of the Court. The Court will make a decision for the parties. I consider that in a case where parties disagree on legal representation, they must give reasons. I would even suggest they must put their reasons in writing by way of an affidavit and filed a notice of motion before the Court.

39. Section 222(1) has historical significance because petitions are presented to the Crown by common man. It was not intended that lawyers would be involved in the drafting, presentation and presentation of arguments for the petitioners. The dictum relied upon by Mr Bradshaw in Jimson Sauk's case (supra) reinforces this position. But it is an observation made in passing since the issue before the Court in that case was not whether the filing of the petition by lawyers without leave of the Court under section 222(1) rendered the petition irregular. Rather, it was whether the petition was in breach of section 206 (supra) and therefore, incompetent. Thus, that case is of no assistance to the fourth respondent. I give the same reason for not following the decision of Ginson Goheyu Soanu (supra).

40. In this case, no particular reason was given by the fourth respondent for objecting to Mr Murray representing the petitioner except that Mr Murray filed the petition in the law firm's name without first obtaining leave of Court under section 222(1) (supra). In my view, this is not a sufficient reason to refuse Mr Murray leave to appear for the petitioner. In fact, I have granted leave to Mr Murray to appear for the petitioner and also to Mr Umbu and Mr Bradshaw for the respondents. Thus, at the end of the day, the parties are represented by lawyers and that to me is the fairest thing the Court can do for them.

41. The long and short of these discussions is this, unless the ground or grounds of objection fall in one or more of those stated in section 208 or even section 209, no objection to competency can be raised to a petition. The fourth respondent's objection under section 222(1) does not fall under any of those grounds or pre-requisites of a petition under section 208. It also does not fall under section 209. It is not a ground of objection to competency. I am, therefore, of the view that the objection is misconceived and must be dismissed.

Application for leave to file Objection to Competency out of time

42. The fourth respondent also applied for leave to file a notice of objection to competency out of time pursuant to Rule 18 of the EP Rules. The petition was served on him on 27th August 2012. According to the Practice Directions (Election Petitions) No 2 of 2012, he had 21 days to file and serve the notice of objection on the petitioner. The 21 days expired on 16th September 2012. The grant of leave is an exercise of judicial discretion. It must be exercised based on proper principles of law. None of the counsel made submissions on the relevant principles. Nonetheless, I would adopt and apply the principles set out in the Supreme Court case of Wari Vele -v- Powes Parkop (2008) SC945. They are:

1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

2 The application for extension must be made promptly;

3. If there is delay, reasonable explanation for the delay;

4. The relief sought by the applicant will not unduly prejudice the other party's case; and

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

43. From 27th August 2012 to 25th September 2012 is almost a month. In my view, this is the period of delay. The reason given for the delay is that service of the petition was irregular but if the Court decides in favour of the petitioner, it would be deemed that service of the notices in Forms 1 and 2 are dispensed with at time of the decision. In my view, this reason is not only unsatisfactory but also misconceived. As I have found, the application to strike out the petition was based on misconceived grounds. Further, there is no evidence to establish that the grant of leave will not unduly prejudice the other parties, especially the petitioner and more importantly, whether the issues in contention between the parties will be promptly brought before the Court and determined without further delay. For these reasons, I am not satisfied that leave should be granted. Leave is refused.

Conclusion

44. I appreciate and respect the right of the fourth respondent to raise these issues. It is equally important that the application must be based on sound legal grounds. I have been stressing for a while now that in election petitions, time is of essence and parties, especially petitioners must prosecute them diligently and expeditiously. I think the respondents must also be reminded to play their part to progress the petitions to trial. This must include ensuring that any interlocutory applications they intend to bring must have proper legal foundation before bringing them to Court.

45. In this instance, I have found that the application was founded on misconceived grounds. It clearly had no proper legal foundation at the outset. There was no legal foundation for the objection to be taken against the lawyers for the petitioner. Perhaps this explains why the question of whether Rule 17 of the EP Rules and section 217 of the Organic Law on Elections that the fourth respondent emphasised in his submissions do not apply. It may also explain why there has not been any such objection in the past and also supports the sentiments expressed by Mr Murray that it is a commonly accepted practice in this jurisdiction that lawyers file petitions for petitioners in the National Court without any issue.

46. The directions hearing was suppose to take place on 24th September 2012. It would appear the petitioner was ready to proceed with directions hearing on that date. The "preliminary matter to be raised" by the fourth respondent delayed the directions hearing by 2 weeks. What is the remedy for the petitioner? Cost and the petitioner had asked for it in the event that the application is unsuccessful. Cost is a discretionary matter. For the reasons I have briefly stated, I would exercise my discretion in favour of the petitioner and order the fourth respondent to pay his costs of the application. I award no costs to the first, second and third respondents because they did not support the petitioner in the application.

Order

47. The formal orders are:

1. The fourth respondent's notice of motion filed on 25th September 2012 is dismissed in its entirety.

2. The fourth respondent shall pay the petitioner's costs of the application.

3. Parties shall proceed to directions hearing forthwith.

4. Time shall be abridged.
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Moses Murray Solicitors & Advocates: Lawyers for Petitioner
Harvey Nii Lawyers: Lawyers for First Second, Third Respondents
Bradshaw Lawyers: Lawyers for Fourth Respondent