N4790

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 26 OF 2012

BETWEEN

JOHN KELEWA KEKENO
Petitioner

AND

PHILIP UNDIALU
First Respondent

AND

WAMU WALU in his capacity as the Returning Officer for the Koroba Lake Kopiago Electorate
Second Respondent

AND

ANDREW TRAWEN in his capacity as the Electoral Commissioner of Papua New Guinea
Third Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2012: 10th & 12th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Service of petition – Service on first respondent – Refusal to accept service – Application seeking order to deem service on first respondent – Application arising from election dispute – Grounds of – Difficulty in locating first respondent – Costly in publishing the petition – Application made pursuant to inherent powers of the National Court – Constitution – Section 155(4) – National Court Election Petition Rules, 2002 (as amended) – Rules 6 & 7 – National Court Rules – Order 6, rule 3(1).

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for variation of earlier order for substituted service – Substituted service of petition by public advertisement - Application seeking order to deem service on first respondent – Competency of – Application for variation treated as fresh application – Constitution – Section 155(4) – National Court Election Petition Rules, 2002 (as amended) – Rule 7 – National Court Rules – Order 6, rule 3(1).

No cases cited:

Counsel:

Mr M Nandi, for Applicant/Petitioner 
No appearance, for Respondents

EX PARTE RULING ON APPLICATION FOR SERVICE OF ELECTION PETITION

12th September, 2012

1. MAKAIL, J: On 24th August 2012, the petitioner filed this petition disputing the election of the first respondent as member elect for Koroba/Lake Kopiago open electorate in the new Hela Province in the 2012 General Elections. Under Rule 6 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"), he is required to serve the petition on the respondents within 14 days of the date of filing the petition. 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."

2. According to Rule 7, the petition may be personally served, or it may be left at the residential address of the successful candidate as stated by him or her in the nomination form with a person who is over the age of 18 years, or it may be served in other circumstances as the Court may, on application approve. For completeness sake, 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."

3. The petitioner applies to vary an earlier order of the Court made on 06th September 2012 and relies on the following affidavits:

(a) Affidavit in support of Marley Nandi sworn and filed on 08th September 2012; 

(b) Affidavit in support of the petitioner sworn and filed on 08th September 2012; and

(c) Affidavit of Proof of Service of Mathew Towang sworn on 03rd September 2012 and filed on 05th September 2012.

4. According to these affidavits, the petitioner had difficulty in locating the first respondent to serve the petition on him. The time limitation of 14 days expired on 09th September 2012. As that date fell on a Sunday and time was running out on him to serve the petition and related documents on the first respondent, on 06th September 2012, he filed and moved an application for substituted service. The application was granted and he was given leave to publish a copy of the petition and Form 1 in the two daily newspapers, namely the Post Courier and The National.

5. He now forgoes this right because it is too costly and he is unable to meet the cost; the huge cost being significantly attributed to the huge number of pages of the petition totalling 177. The Post Courier's cost is K53,143.86 and the National's is K122,222.10. The total is K175,369.96. Instead, he seeks to have the Court confirm service of the petition on the first respondent pursuant to the inherent powers of the National Court under section 155(4) of the Constitution, Order 6, rule 3(1) of the National Court Rules and Rule 7(1)(a)&(c) of the EP Rules.

6. He says that the petition and three copies of unsealed Notice to Appear (Form 1) have in fact been personally served on the first respondent at Ambua Lodge in Tari on 02nd September 2012 by Police Constable Mathew Towang. Constable Towang also verifies the petitioner's claim. He says at 10 o'clock in the morning of 02nd September 2012, in the presence of three other policemen by the names of Constables Peter Okep and Stanley Puyu and Commander Joe Kuim, he presented the petition in an open envelope to the first respondent and explained to him that they were serving on him the petition filed by the former Member of Parliament John Kelewa Kekeno. At the time he served the petition, the first respondent was coming out of the Ambua Lodge Restaurant. 

7. The first respondent received the envelope and took out the documents and glanced at them and he asked him to sign the document service form. After going through the documents, the first respondent looked at him and the other three policemen and told them that the documents were about an election petition and he would not accept them as he was heading to Port Moresby for Parliament session. He returned the documents to him and told them to re-serve the petition on him in three days time after the Parliament session. 

8. Mr Nandi of counsel for the petitioner submits the circumstance described by the petitioner is not prescribed in the EP Rules. However, the Court may invoke its inherent power under section 155(4) of the Constitution and Rule 7(1)(a)&(c) of the EP Rules to deem service of the petition and supporting documents on the first respondent. He submits the Court should adopt the process of personal service set out in Order 6, rule 3(1) of the National Court Rules to give meaning and effect to Rule 7(1)(a)&(c) of the EP Rules. He further submits that in so doing, the Court should find that the petition and Form 1 were personally served on the first respondent by Constable Towang on 02nd September 2012 at Ambua Lodge in Tari.

9. The first issue I need to consider is the competency of the application. In my view, the application is misconceived in so far as it seeks to vary the order of 06th September 2012. In my view, the application is a fresh one and should be considered on its own merits without varying the order of 06th September 2012. That is to say, the grounds of the application are different to the earlier application and the application must be considered based on these new grounds. A further reason is that, there is no issue as to whether the application was filed outside the time limitation of 14 days. This further supports the view that the application should be considered as a fresh application. For these reasons, rather than dismissing the application for being incompetent and denying the petitioner an opportunity to be heard on the merits of the application, I will consider it on the premise that it is a fresh application.

10. Turning to it now, I accept Mr Nandi's submission that the circumstance described by the petitioner is not prescribed in the EP Rules. It is also true that EP Rules does not have an equivalent provision as Order 6, rule 3(1) of the National Court Rules. Order 6, rule 3(1) states: 

"3.      Personal service: How effected. (9/3)

(1)     Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document."

11. But that does not mean that the petitioner has no recourse. The National Court in its inherent jurisdiction under section 155(4) of the Constitution may make orders that are just and fair in a given case. Separate from that and in the context of this application, Rule 7(1)(c) of the EP Rules gives the Court wide discretion to order "such other service as the Court may, on application approve." 

12. The onus is on the party seeking to invoke the Court's inherent jurisdiction to establish a case for the Court to exercise its discretion in its favour. On the evidence, I find that Constable Towang had handed the petition and three unsealed copies of Form 1 to the first respondent at Ambua Lodge at 10 o'clock in the morning on 02nd September 2012 and had sufficiently explained the nature of the documents to him. I also find that the first respondent had perused the documents and then refused to accept them. In my view, the first respondent should not put the petitioner through more trouble to re-serve the petition on him if he has refused it in the first instance. If the first respondent or any successful candidate or member elect for that matter refuses to accept the petition and any related documents from the petitioner, they do so at their own peril. 

13. In my view also, the fact that Form 2 was not handed over with the petition and Form 1 does not render service of the petition irregular or invalid. This is because the crucial document that must be served and has been served on the first respondent is the petition: Rule 6 (supra) Adopting and applying the process of personal service of documents under Order 6, rule 3(1) of the National Court Rules together with Rule 7(1)(a)&(c) of the EP Rules, and in the exercise of the Court's inherent power to do justice in the circumstances, I am satisfied that the petitioner has served the petition and three unsealed copies of Form 1 on the first respondent at 10 o'clock in the morning on 02nd September 2012 at Ambua Lodge in Tari. The orders are: 

1. The petition and three unsealed copies of Form 1 are deemed to have been served on the first respondent at 10 o'clock in the morning of 02nd September 2012 at Ambua Lodge in Tari. 

2. The first respondent shall pay the cost of the application.

3. Time shall be abridged.
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Marley Nandi Lawyers: Lawyers for Applicant/Petitioner