N10456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 71 OF 2022 (IECMS)

IN THE MATTER OF A DISPUTED RETURN FOR THE KARIMUI-NOMANE OPEN ELECTORATE

BETWEEN:
TULIP WESU DOLA
Petitioner

V

FRANCIS YORI ALUA
First Respondent

AND
THE ELECTORAL COMMISSION
Second Respondent

Waigani: Anis J
2023: 22nd & 24th August

INTERLOCUTORY APPLICATION – notice of motion seeking to amend notice of objection to competency of petition – preliminary issues – jurisdiction – whether motion incompetent – whether correct source invoked – s.212(3) – National and Local-level Government Elections – Rule 13(3), (j), (k) and (l) – Election Petition Rules 2017 (Consolidated) – whether criteria for seeking amendment met – consideration - ruling

Cases Cited:
The Papua Club Inc. v Nusaum Holdings Ltd (2002) N2273
Eki Investments Ltd v Era Dorina Ltd (2006) N3176
Niap v PNG Harbours Ltd (2009) N3672
Kerowa v Hargy Oil Palms Ltd (2012) SC1194
Kewa v Kombo (2004) N2688
Ombudsman Commission v Gabriel Yer and Ors (2009) SC1041

Counsel:
F Tamarua, for the Petitioner
J Wohuinangu, for the First Respondent
J Simbala, for the Second Respondent

RULING

24th August 2023

1.	ANIS J:  I heard the first respondent’s application filed 23 June 2023 (motion) on 22 August 2023 and reserved to this afternoon at 1:30pm.

2.	This is my ruling.

BACKGROUND

3.	The petitioner Mr. Dola (the petitioner) is challenging the election of the first respondent who was declared the winner for the Karimui-Nomane Open Electorate Seat in the 2022 National General Elections.  He alleges 1 ground in his Petition filed 13 September 2022 (Petition) claiming alleged errors, omissions, and irregularities committed under s.218 of the Organic Law on National and Local-level Government Elections (OLNLLGE).

4.	The Petition has been fixed for hearing together with the first respondent’s Notice of Objection to Competency (Objection) for 2 weeks commencing at 9:30am at the Goroka National Court on Monday 4 September 2023.

MOTION

5.	Meanwhile, the first respondent has filed this motion.  The first respondent seeks to amend his Objection.  The main relief is pleaded at term 3, which reads:

3.	Pursuant to section 212(3) of the Organic Law on National and Local-level Government Elections and Rule 13(3) (j), (k), and (l) of the Election Petition (Miscellaneous Amendments) Rules 2022, an order that the Notice of Objection to Competency filed on behalf of the 1st Respondent dated 10 October 2022 be amended to include matters stated in the draft annexed to Justin Wohuinangu’s affidavit and marked “JTWS”.

6.	The motion is supported by evidence, that is, affidavit of Mr Wohuinangu filed 23 June 2023.  

COMMON GROUND

7.	The parties are at common ground on a preliminary issue raised by the Court, that is, concerning the timing of when such an application to amend an objection may be heard by the Court.  The parties are at common ground that Rule 16 of the Election Petition Rules 2017 (Consolidated) (EP Rules) expressly states that the Court shall only deal with petitions and any objections to competencies of petitions at the hearings.  Mr Simbala submits that the motion is interlocutory in nature thus is properly before the Court for hearing before the commencement of the trial.

8.	For completeness, I uphold the submission by counsel for the second respondent. 

PRELIMINARY ISSUES

9.	The petitioner raised 2 preliminary issues which I will deal with now.  First, he challenges the jurisdictional basis of the motion.  He submits the correct jurisdiction to invoke are (i), Rule 22(1) of the EP Rules and (ii), s.185 of the Constitution and not s.212(3) of the OLNLLGE or Rule 13(3)(j)(k)(l) of the EP Rules, and secondly, he submits that relief 3 is premised as of right which is wrong; that the first respondent should be seeking leave to amend the Objection.

10.	In regard to the latter argument, I find that it is, with respect, without merit.  The express use of the term leave is not fatal.  The test for leave and whether it is required is not necessarily premised on whether it has been expressly pleaded in the relief, but rather, whether the relevant or correct source or jurisdiction has been invoked in an application such as this.

11.	This brings me to the first challenge.  Rule 13(3)(j)(k)(l) and s.212(3) state:

(3)	At the directions hearing, the Judge Administrator shall consider amongst other things the following:

(j)	subject to Rule 13, any interlocutory matter;
(k)	any objection to competency; and
(l)	such other matters as may aid in the prompt disposition of the petition.
……

212.  POWERS OF COURT.

(1)  In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things–
……

(2)  The Judges of the National Court may make rules of court with respect to pre-trial conferences and procedures relating to procedures under this Part.
(3)  The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

  [Underlining mine]

12.	The petitioner references Rule 22(1) of the EP Rules and s.185 of the Constitution.  I state them herein:

22.  Relief from the Rules
(Note: rule 22 of the Election Petition Rules 2017 repealed and replaced by Rule 2 of the Election Petition (Miscellaneous Amendments) Rules)

(1)  The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
……

185.  LACK OF PROCEDURAL PROVISION.

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.

13.	I note the submissions of the parties on this issue.  

14.	I make the following observations.  First, I note that s.185 of the Constitution is inapplicable because there are existing and adequate provisions under the OLNLLGE and the EP Rules, that provides this Court with jurisdiction and provisions where one may apply for interlocutory matters such as the present motion.  The provisions are Rules 13(3)(j) and 14(3) in general.  These rules provide for the National Court to, during directions hearing or pre-trial conferences, consider or determine other matters including those matters that are set out within them respectively.  My second observation concerning Rule 22(1) is this.  The petitioner submits that since the first respondent has already filed its Objection within time but now wishes to amend it, it should have invoked Rule 22(1) to seek dispensation of the requirement to file an objection within 21 days as required under Rule 12, and when dispensation is granted, proceed to file an amended notice of objection to competency.  I find this argument to be, with respect, misconceived.  Rule 12 applies to filing of an original notice of objection to competency that is guided by time limit for compliance.  For example, if an applicant is late and intends to file a notice of objection to competency outside of the 21 days, then the applicant may invoke Rule 22(1) and ask the Court to accept the late filing or filing that is outside of the time, that is, by asking the Court under Rule 22(1) to dispense with the requirement for filing within the 21 days as required by Rule 12.  In the present case, the first respondent has already filed his Objection within time or in compliance with Rule 12.  Thus, no dispensation is necessary.  And the document that he intends to file is a new document, and the EP Rules do not have provision for an amended notice of objection to competency to be filed within a specific time where failure to do so may attract the application of Rule 22(1).  

15.	Thus, I also dismiss the claim by the Petitioner in this regard.

16.	However, and in my view, this is not the end of the matter.

17.	I also make the following observations in regard to the submissions and reliance by the first respondent on Rule 13(3)(j).  Sub-rule (j) reads, subject to Rule 13, any interlocutory matter.  What this means is that Rule 13((3)(j) is to be read subject to Rule 13 as a whole.  Rule 13 falls under the heading “Directions hearing” and begins with the following, (1) A directions hearing shall take place within 28 days after the date of filing of the petition or as soon as practicable thereafter.  And sub-rule (3) begins as follows, (3) At the directions hearing, the Judge Administrator shall consider amongst other things the following:  What these mean in my view is that Rule 13(3)(j) and other provisions or relief therein may be sought before the National Court within the 28 days of the filing of the petition or as soon as practicable thereafter as required by Rule 13.

18.	In the present matter, we have gone past directions hearing and pre-trial conference stages.  We are in fact at the status conference stage.  Thus, I also find Rule 13(3)(j) and other provisions that have been relied by the first respondent in the said rule misconceived and inapplicable to the present motion, as a reliable or relevant source to invoke at this stage of the proceeding.

19.	But having said that, I note that the first respondent has also invoked s.212(3) of the OLNLLGE.  The section begins as follows, In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things.  [Underlining mine].  The use of the phrase under this part refers to PART XVIII. –DISPUTED ELECTIONS, RETURNS, ETC. which commences from s.206 and ends at s.233.  I note that s.212(2) of the OLNLLGE and s.185 of the Constitution are provisions that give power to the Judges of the National Court, to make election petition rules.  Section 212 is the source provision.

20.	But coming back to s.212(3), and I quote:

(3)  The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

 [Underlining mine]

21.	The use of the phrase under this section therein refers to s.212, and as stated, the section begins where it expressly states that National Court shall sit as an open court and may, amongst other things.  What this means is that the Court sitting, like in this instance, has discretionary power to consider relevant matters including those that are stated under s.212(1).  The relevant matters, in my view, includes application such as the present where there are no processes or provisions in the EP Rules that will cater for.  Thus, the first respondent, in my view, has invoked the correct source where this Court, sitting as an open Court, may consider and hear applications such as this, namely, an application seeking to amend an already filed notice of objection to competency of a petition which is the Objection, and at a time or stage where the matter has past directions hearing and pre-trial conference.

22.	Therefore, I find that the first respondent has invoked the proper or correct jurisdiction of the Court which is s.212(3) of the ORNLLGE.

LAW

23.	In regard to amendments or where a party seeks leave to amend a document or a pleading, whether it be a statement of claim, defence or cross-claim, there are general criteria that have been developed by case law.  I will summarise them herein premised on The Papua Club Inc. v Nusaum Holdings Ltd (2002) N2273, Eki Investments Ltd v Era Dorina Ltd (2006) N3176, Niap v PNG Harbours Ltd (2009) N3672, Kerowa v Hargy Oil Palms Ltd (2012) SC1194 and Kewa v Kombo (2004) N2688 as follows:

1.	Will the amendment enable the Court to determine the real issues in controversy between the parties?
2.	Will the amendment correct any defect or error in the proceedings?
3.	Will the amendment cause real prejudice or injustice to the other party?
4.	Is the application for such amendment made bona fide or mala fide or, that is to say has the application been made in good faith or in bad faith?
5.	Can the other party be fairly compensated with costs for the amendment?
6.	Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?
7.	Where do the interests of justice lie?
8.	Is the proposed amendment efficacious? Is it a proper amendment?

CONSIDERATION

24.	I note that I need not tick all the criteria as summarised above.  Case: Ombudsman Commission v Gabriel Yer and Ors (2009) SC1041.  But they of course will be used as a useful guidance for me to determine whether I should exercise my general discretionary power that is bestowed on me under s.212 in general and under sub-rule (3) of the OLNLLGE.

25.	I refer to the affidavit in support of Mr Wohuinangu filed 23 June 2023.  The propose amended Notice of Objection to Competency is annexed as JTW5.  I have perused the said proposed amendment.  The first respondent intends to include a further jurisdictional ground to his Objection.  The further proposed jurisdictional ground is this.  The first respondent intends to allege in the Objection that the petitioner paid his K5,000 security for costs on a different date from the date when he filed his Petition.  Therefore, he intends to allege that the said action of the petitioner breached ss.208(e) and 209 of the OLNLLGE.  

26.	Sections 208(e) and 209 state:

208.  REQUISITES OF PETITION.

A petition shall–
……
(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).

209.  DEPOSIT AS SECURITY FOR COSTS.

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

27.	I note the submissions of the parties in this regard.

28.	Premised on the evidence filed, I note that there is prima facie evidence in support of the proposed additional ground.  I also note that such an allegation may be a valid basis for challenging the jurisdiction or competency of a petition.  Secondly, I note the motion was filed earlier and is moved well ahead of the hearing date of the Petition and the Objection which will commence hearing on 4 September 2023.  As such and in my view, I do not see any real prejudice caused if I am minded to allow the amendment.  The parties will have ample time to prepare and come ready at the hearing in time for the Court to deal with the matter.  This is a case where the Objection was filed well within the time that is permitted under the EP Rules (Rule 12).  I also find the proposed amendment to be efficacious.  It is a proper type of amendment, in my view, to include into this type of application, namely, a notice of objection to competency of an election petition.  I also note that the petitioner may be compensated by an order for cost for this somewhat belated request at the time when the matter is at the status conference stage.

29.	Finally, I note that interest of justice would be better served if Courts permit parties to bring forth all valid claims or arguments in election petition matters, whether they are preliminary or otherwise, before them (i.e., the Courts) to consider and make determinations.  And by that and in ending, I refer to s.210 of the OLNLLGE.  Section 210 makes it mandatory for all election petition Courts (i.e., the National Court) to observe and comply.  It states that and I quote, Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.  The proposed amendment sought in the motion is relevant premised on the evidence that supports it, to the extent that it is efficacious, or that its determination (together with the existing ground in the Objection) is necessary and must be exhausted in compliance with s.210.

SUMMARY

30.	In summary, I will grant the first respondent’s motion.

COST

31.	An award of cost herein is discretionary.  I will order the first respondent to pay the petitioner’s cost for defending this motion.  It was the first respondent’s intention to amend its Objection that had caused the petitioner to make these appearances and thus incurred additional costs when time could have been well spent in preparing for the hearings in the coming week.

ORDERS OF THE COURT

32.	I make the following orders:

1.	Term 3 of the first respondent’s notice of motion filed 23 June 2023 is granted.

2.	The Notice of Objection to Competency of the first respondent filed 10 October 2022 shall be amended to include matters stated in the draft annexed to Justin Wohuinangu’s affidavit and marked “JTWS”.

3.	The first respondent to take immediate steps to file and serve the Amended Notice of Objection to Competency of the Petition on the parties.

4.	The first respondent shall pay the petitioner’s cost for defending the application on a party/party basis to be taxed if not agreed.

5.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly

________________________________________________________________
Lomai & Lomai Attorneys:	Lawyers for the Petitioner
Gileng & CO:	Lawyers for the First Respondent
Harvey Nii:	Lawyers for the Second Respondent