N5330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 21 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 KOMPIAM-AMBUM OPEN ELECTORATE

BETWEEN

LUCAS NEAH
Petitioner

AND

JOHN THOMAS PUNDARI
First Respondent

AND

ROMALO BAPU – District Returning Officer for Kompiam-Ambum
Second Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Respondent

Waigani: Makail, J
2013: 17th July

ELECTION PETITIONS – PRACTICE & PROCEDURE – Equity – Unclean hands – Application to dismiss petition – Allegations of illegal practices during polling against petitioner – Hijacking and tampering of ballot-boxes – Double voting – Appropriateness of application – Constitution – Section 155(4) – Organic Law on National and Local-level Government Elections – Sections 208, 210 & 212(3) – National Court Election Petition Rules, 2002 (as amended) – Rule 18.

Cases cited:

Peter Wararu Waranaka -v- Electoral Commission & Richard Maru (2012) N4815
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877

Counsel:

 Mr R Mann-Rai, for Petitioner 
Mr D Dotaona, for First Respondent
Mr H Viogo, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS ELECTION PETITION

17th July, 2013

1.	MAKAIL, J: In 2012 General Election, the first respondent Honourable John Thomas Pundari was returned as Member for Kompiam-Ambum Open electorate. One of the candidates and runner-up is the petitioner Mr Lucas Neah. On 24th August 2012, he filed this petition alleging among others illegal practices during polling. Supporters of the Honourable Member hijacked and tampered with ballot-boxes and double voted. At present, the petition is going through directions hearing as parties have been directed to attend to among others filing and serving of affidavits and a statement of agreed and disputed facts and issues for trial. 

2.	The Honourable Member has filed an application to dismiss the entire petition on the ground of what he describes as "the petitioner has come to Court with unclean hands having committed bribery and illegal practices during the 2012 Kompiam-Ambum Open electorate election." In the alterative, relying on the same ground, he applies to stay the proceedings pending the petitioner purging himself. He cited section 155(4) of the Constitution as the jurisdictional basis for both applications. 

3.	At the hearing of the application this morning, Mr Dotaona of counsel for the Honorable Member moved the application and in submissions proposed to rely on a number of affidavits of witnesses for the Honourable Member to establish the allegations of bribery and illegal practices against Mr Neah. Counsel informed the Court that counsel for Mr Neah has given notice to cross-examine the witnesses for the Honourable Member. Given this, he invited the Court to assess the evidence and make findings of fact before ruling on the application. He invited the Court to use Order 10, rule 24 of the National Court Rules as a guide to determine the application. 
 
4.	Although he did not cite them as the jurisdictional basis in the notice of motion, Mr Dotaona submitted that the Court has jurisdiction to dismiss the petition under section 212(3) of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and also Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules") where it is established that a petitioner is guilty of committing illegal practices and bribery during an election. This is because in equity, he who comes to Court must come with clean hands. 

5.	The Court has discretion and must exercise it to protect its own integrity. Otherwise, it would be allowing unsuccessful candidates with unclear hands to manipulate the Court in its dispensation of justice and unjustly enriched themselves to the detriment of the successful candidate. He asked the Court to draw an analogy from filing of a cross-claim in ordinary civil proceedings where the Court may and have granted counter orders to a primary claim and urged the Court to follow this practice and procedure in this case. 
	
6.	Mr Viogo for the Electoral Commission supported the application and Mr Dotaona's submissions but cautioned in a general way that the rules of practice and procedure in ordinary civil proceedings in the National Court Rules do not apply to election petitions. He submitted that while it is open to the Honourable Member to bring the application, it is a question of when the application should be moved. 

7.	Mr Mann-rai strongly opposed the application. He submitted that it is misconceived as the Organic Law on Elections and EP Rules do not make provisions for it and section 155(4) powers of the Court is too broad such that it would be unreasonable and breach of natural justice for the Court to dismiss the petition without determining the merits of the petition. In addition to that, such an application has never been moved before and the fact that Mr Dotaona has not been able to cite a precedent to support his submission confirmed that the application is misconceived and an abuse of process.

8.	I consider that the question is not so much on the jurisdiction of the Court to dismiss the petition but the appropriatness of the application. Is this a proper application invoking the discretionary powers of the Court to dismiss the application? This is the threshold issue. I need to be satisfied that it is proper before I consider the merits of the application which would entail the calling of evidence and its assessment and ultimately the findings of fact and conclusion. 

9.	I consider that the starting point is section 208 of the Organic Law on Elections. This is the provision on the requisites of a petition. 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)."

10.	Objections to the competency of a petition must be grounded on one or more of these requisites. For example, a respondent may apply to dismiss the petition if the petition fails to plead material facts to invalidate the election or return and there is abundance of case authority on this point which need not mentioning: section 208(a). If an application to dismiss is brought outside of this section, it is not a competency application: see my decision in Peter Wararu Waranaka -v- Electoral Commission & Richard Maru (2012) N4815.

11.	Secondly, an application to dismiss a petition as being incompetent may be made if the security deposit of K5,000.00 is not paid at the time of filing a petition under section 209 of the Organic Law on Elections. In my view this is another application that properly invokes the Court's discretionary power to dismiss the petition. This is because under section 210, only petitions that meet or satisfy the requirements of sections 208 and 209 shall proceed to trial.

12.	Thirdly, I consider applications made under the EP Rules are proper and the Court may exercise its discretion to dismiss a petition if it is established a petitioner has breached or failed to comply with the EP Rules and Court directions. The Court's discretionary power is derived from Rule 18. It states:

"18. SUMMARY DETERMINATION 

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:- 
(i) order that the petition be dismissed where the defaulting party is the petitioner; or 

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or 

(iii) make such other orders as it deems just."

13.	Again, there is abundance of case authority on breaches of the EP Rules and Court directions. The common applications are on failure to meet service requirements and Court directions in relation to filing and serving of affidavits by petitioners. For examples, see Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791 on failure to meet service requirements and Edward Ekanda Alina -v- Francis Mulungu Potape & Electoral Commission (2012) N4877 on failure to comply with Court directions on filing and serving of affidavits by petitioner.

14.	I consider that any application falling outside this class of cases briefly outlined above is improper and amount to an abuse of process. In the present case, it is clear the ground of the application does not fall into any one of the above class of cases. Given this, it would be wrong in law for the Court to invoke its discretionary power to determine the application. 

15.	In addition to that, with respect, contrary to Mr Dotaona's submissions, I consider that because such application is not permissible and this perhaps explains why counsel has not been able to cite any case authority for this application, what the application seeks to do is to have the Court conduct a "mini trial" before the actual trial. I accept Mr Mann-rai's submission. In my view to give consideration to this application at the preliminary hearings of the proceedings is tantamount to breach of natural justice because the Court has yet to inquire into the allegations raised in the petition. The petitioner must be given that opportunity to be heard. Otherwise, it defeats the whole purpose of bringing the petition.

16.	Finally, there is no provision in the Organic Law on Elections and the EP Rules on cross-claims and as correctly pointed out by Mr Viogo, the rules of practice and procedure in ordinary civil proceedings in the National Court Rules do not apply to election petitions. They can be used as a guide but I am not bound to strictly apply them and in this case I do not see any justifiable reason to be guided by them. 

17.	For these reasons, I am not satisfied that the application is properly before the Court. The alternative application also suffers the same fate for the same reasons. I find both applications are misconceived. I dismiss them with costs.
______________________________________________________________

Mann-Rai Lawyers: Lawyers for Petitioner
Dotaona Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents