N5146

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

2012: 09th October
2013: 15th April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Service of petition – Service on second respondent – Lack of – Whether proceedings should be dismissed – Discretionary – Prejudice – Serious allegations of illegal practices raised against second respondent – Application refused – Leave granted to petitioner to serve petition out of time – National Court Election Petition Rules, 2002 (as amended) – Rules 6(1), 7(1)(a)&(c), 17 & 18.
Facts

This matter comes back to Court for the second time for ruling on the issue of service of petition. On the first occasion, the first respondent took issue with service and applied to dismiss the petition. The application was refused: see Lucas Neah -v- John Thomas Pundari & Electoral Commission (2012) N4792, decision delivered on 26th September, 2012. On this occasion, it is the second respondent who seeks to dismiss the proceedings pursuant to his notice of notice of motion filed on 08th October 2012 pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). The petitioner did not deny not serving the petition on the second respondent and the respondents submitted that the proceedings should be dismissed.

Held:

1.	In election petitions, service of the petition on the respondents is mandatory under Rule 6(1) of the National Court Election Petition Rules, 2002 (as amended) and failure to serve will result in its dismissal. However, the power to dismiss is discretionary because the requirement for service is a requirement under the National Court Election Petition Rules, 2002 (as amended) and not the Organic Law on National and Local-level Government Elections and Rule 17 gives the Court the discretion to "dispense with any requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-level Government Elections." 

2.	The filing of a notice of appearance by lawyers for the second and third respondents does not mean that they accepted service of the petition. Its filing serves two purposes. First, it is notice to the opposing party and the Court that the party giving notice will defend the proceedings and secondly, notice of the appointment of the party's lawyers.

3.	The petitioner satisfactorily explained the default, that the second respondent will not be prejudiced if the application for leave is granted and that the petitioner has raised serious allegations of bribery and undue influence are against the first respondent and allegations of illegal practices against the respondents such that the petitioner should be given the opportunity to prove the allegations at trial so that the issues in contention between the parties are determined not only for the benefit of the parties but also for the benefit of the people of the electorate.

4.	The second respondent's application to dismiss the proceedings is refused and leave is granted to the petitioner to serve the petition on the second respondent's lawyers within seven days of the order.

Cases cited:

Lucas Neah -v- John Thomas Pundari & Electoral Commission (2012) N4792
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Wari Vele -v- Powes Parkop & Electoral Commission (2008) SC946
Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791
John Thomas Pundari -v- Lucas Neah & Electoral Commission (2012) SC1207
Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission (2012) SC1206
Darryl Jee -v- Ben Micah & Electoral Commission (2012) N8423

Counsel:

 Mr R Manrai, for Petitioner 
Mr D Dotaona, for First Respondent
Mr R Williams, for Second & Third Respondents

RULING ON APPLICATION TO DISMISS PETITION

15th April, 2013

1.	MAKAIL, J: This matter comes back to Court for the second time for ruling on the issue of service of petition. On the first occasion, the first respondent took issue with service and applied to dismiss the petition. The application was refused: see Lucas Neah -v- John Thomas Pundari & Electoral Commission (2012) N4792, decision delivered on 26th September, 2012. On this occasion, it is the second respondent who seeks to dismiss the proceedings pursuant to his notice of notice of motion filed on 08th October 2012 pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2.	The petitioner disputes the election of the first respondent as member elect for Kompiam-Ambum Open Electorate in the Enga Province in the 2012 General Elections. In this application, the second respondent contends that the petition was not personally served on him or by alternative means as required by Rule 7(1)(a)&(c) of the EP Rules. He relies on his affidavit sworn on 03rd October 2012 and filed on 04th October 2012 and affidavit of counsel sworn and filed on 05th October 2012 to support the application. The first respondent also supported his application. The petitioner did not deny not serving the petition on the second respondent.

3.	It was submitted for the second respondent that since the petitioner conceded this fact, it is sufficient for the Court to use its discretion under Rule 18 of the EP Rules to dismiss the petition. This is because service of the petition is a pre-requisite to the petition progressing on to directions hearing. Further, any notice of appearance that was filed by the lawyers on behalf of him and the third respondent is not an acceptance of service of the petition nor is it a submission to the jurisdiction of the Court. The case of Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983 was cited in support of this submission. Furthermore, it was submitted that any application by the petitioner seeking leave to serve the petition out of time should not be entertained by the Court. It should be refused.

4.	Moving on his notice of motion filed on 08th October 2012, the petitioner asks for leave to serve the petition on the second respondent out of time. He relies on his affidavit sworn and filed on 08th October 2012 and affidavit of Caspart Yoanes sworn and filed on 08th October 2012 and submits that first he had difficulty in serving the petition on the second respondent because the second respondent was not at Kompiam Station at the material time. Secondly, he was led by the second and third respondents to believe that they have accepted service of the petition when their lawyers filed a notice of appearance and appeared at the hearing of the first application to dismiss the petition. Their conduct amounted to an estoppel. Because he was misled, the respondents have not come to Court with "clean hands" and the Court should exercise its discretion under Rule 17 of the EP Rules and refuse their application and grant leave to him to serve the petition out of time.

5.	In Hami Yawari's case (supra), the issue was whether the Returning Officer Mr David Wakias was served the petition. The Court held that pursuant to Rule 6(1) of the EP Rules, it is mandatory for the petitioner to serve the petition on the respondents within 14 days from the date of its filing. It held further that the petitioner did not serve the petition on Mr Wakais and dismissed the entire proceedings, notwithstanding service on the Electoral Commission.

6.	I accept in election petitions, service of the petition on the respondents is mandatory under Rule 6(1) of the EP Rules and failure to serve will result in its dismissal. However, the power to dismiss is discretionary because the requirement for service is a requirement under the EP Rules and not the Organic Law on National and Local-level Government Elections and Rule 17 gives the Court the discretion to "dispense with any requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-level Government Elections". (Emphasis added).

7.	The principles upon which the Court's discretion is exercised are those established in the Supreme Court case of Wari Vele -v- Powes Parkop & Electoral Commission (2008) SC946 and adopted and applied in Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791. These are:

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

7.2	The application for extension must be made promptly;

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

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

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

8.	First, as to the explanation for allowing the time limit to expire, there are two different positions in relation to the whereabouts of the second respondent at the time the petitioner was looking for him to serve the petition. The second respondent says he was at Kompiam station while the petitioner says otherwise. In my view, as there is serious conflict in relation to the location of the second respondent, the first reason is inconclusive. As to the second reason, the filing of a notice of appearance by lawyers for the second and third respondents does not mean that they have accepted service of the petition. In my view, its filing serves two purposes. First, it is notice to the opposing party and the Court that the party giving the notice will defend the proceedings and secondly, notice of appointment of the party's lawyers. 

9.	However, when the lawyers for the second and third respondents appeared before the Court on 20th September 2012, they did not raise the issue of service nor did they object to the petition proceeding on the ground of lack of service. The Court must assume that when lawyers appear in any legal proceedings, they have instructions from their clients. If they have no instructions, they must inform the Court. In this instance, the Court must assume that the lawyers for the second respondent had instructions and it is unacceptable for them to assume that the second respondent was served when in fact he was not. If they had no instructions, they should not have filed a notice of appearance and appeared for the second respondent. To my mind, their conduct has led the petitioner to believe that the second respondent had accepted service of the petition. I am satisfied the petitioner has satisfactorily explained the default.

10.	Secondly, the second respondent's submission that the Court should not entertain the petitioner's application for leave to serve the petition out of time is unreasonable because he did not raise the issue of service at the first given opportunity. It was after the Court refused the first application on 26th September 2012 that prompted him to raise the issue in this application. That was on 04th October 2012 and that was the time the petitioner became aware that the second respondent disputed service of the petition. This also prompted the petitioner to file his application on 08th October 2012. In my view, the second respondent has not come to Court with "clean hands". On the other hand, I am satisfied the petitioner has promptly filed his application for leave as soon as he became aware that service of the petition was disputed. 

11.	Thirdly, the exercise of discretion must take into account the prejudice or the adverse effect the granting of the relief sought will have on the other party's case. While it is acknowledged that election petitions do distract the elected member from serving the people of the electorate, all that needs to be said and emphasised here is that the petition is yet to proceed to directions hearing stage. That said, I am not satisfied that he will be prejudiced if the application is granted. 

12.	Finally, the primary relief sought by the petitioner is an order to invalidate the election of the first respondent and for a by-election. The grounds upon which the petitioner relies upon are bribery, undue influence and illegal practices during polling. The allegations of bribery and undue influence are against the first respondent. They can be found at paragraphs 6.16, 6.17 and 6.18 of the petition. The allegations of illegal practices are against all the respondents and are set out at paragraphs 6.1 - 6.15 and 6.19 - 6.22 of the petition. Most of them alleged conspiracy among the respondents to hijack the polling process and ensure that the results favoured the first respondent. In my view, these are serious allegations.

13.	The first respondent sought review in the Supreme Court against the Court's decision refusing his application to dismiss the petition for lack of service and grant of leave to the petitioner to serve the petition on him out of time. On 24th October 2012, the Deputy Chief Justice sitting as a single Judge of the Supreme Court dismissed the application for leave for review: see John Thomas Pundari -v- Lucas Neah & Electoral Commission (2012) SC1207. The end result, the Court's decision of 26th September 2012 stands. It follows it must be accepted that the first respondent has been served. As for the third respondent, there is no dispute that it has been served. In my view, if the petition is dismissed, it would prejudice the petitioner's case against the first and third respondents. 

14.	For these reasons, I am not satisfied that the petition should be dismissed. It is the judgment of the Court that the second respondent's application to dismiss the proceedings is refused. On the other hand, the petitioner should be given the opportunity to prove the allegations at trial so that the issues in contention between the parties are determined not only for the benefit of the parties but also for the benefit of the people of the electorate. As the law firm of Niugini Legal Practice have filed a notice of appearance for the second respondent, that they have represented him up to this point and have in their possession a copy of the petition, it would be superfluous to require the petitioner to serve another one on the second respondent. 

15.	In other words, the whole purpose of requiring the petitioner to serve the petition on the second respondent is to give him notice of the legal proceedings (petition) against him and for him to attend the hearing at a date, time and venue appointed by the Court. It has been achieved by his appearance through his lawyers: see Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: (2012) SC1206 and Darryl Jee -v- Ben Micah & Electoral Commission (2012) N8423. However, to comply with the requirement of service and to settle the issue once and for all, I grant leave to the petitioner to serve the petition on Niugini Legal Practice within seven days of this order and further adjourn the matter to Tuesday 23rd April 2013 at 9:30 am for directions hearing. Finally, I order costs to be in the cause. 

Ruling and orders accordingly.
____________________________________

Manrai Lawyers: Lawyers for Petitioner
Dotaona Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second & Third Respondents