N10752
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 16 OF 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE

BETWEEN:
PETER YAKOS
Petitioner

AND:
SIR JOHN PUNDARI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani:  Dingake J
2024:  8th & 28th March

ELECTIONS – application by first respondent to amend its original objection to competency to add new grounds - First Respondent’s application to amend original objection to competency comes about a year or so after the original objection to competency was filed - First Respondent blames the Integrated Electronic Case Management System (IECMS) for the delay and also says recent cases by the National Court clarifying the meaning of Section 209 of the Organic Law prompted this application – petitioner opposes first respondents application on the grounds, among others, that the amendments sought was not filed within the required twenty-one (21) days – objections to competency of an application is not time barred - it is open right throughout the hearing of the petition – application to amend grounds of objection to competency granted

Cases Cited:

Peter Waram v Richard Maru (2023) N10358
Michael Kandui v Powes Parkop (2023) N10597
Counsel: 

Mr. Solomon Wanis, for the Petitioner    
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING

28th March 2024

1.	DINGAKE J.	This is a ruling on the First Respondent’s application to amend its original objection to competency to add new grounds.

2.	The petition was filed by the unsuccessful candidate Peter Yakos (the petitioner) disputing the election of the First Respondent, Sir John Thomas Pundari, as member of Kompiam Ambum Electorate in the 2022 General Election.

3.	The original objection to competency was filed on the 4th of October 2022.

4.	On the 19th of December, 2023, by way of a Notice of Motion (Doc No.187) the First Respondent seeks to be granted leave to amend his original objection to competency.

5.	The First Respondent’s application to amend the original objection to competency comes about a year or so after the original objection to competency was filed. 

6.	The First Respondent blames the Integrated Electronic Case Management System (IECMS) for the delay and also says recent cases by the National Court clarifying the meaning of Section 209 of the Organic Law prompted this application.

7.	The Petitioner objects to the application being granted for number of reasons. These reasons include the following:

a)	That there is no jurisdictional basis for amending the objection to competency.

b)	That Section 155(4) of the Constitution is not the proper jurisdictional basis for seeking the amendment sought.

c)	That the amendment sought was not filed within the required twenty-one (21) days.

d)	that the Petitioner stands to be prejudiced if the amendment is granted.

e)	that the proposed grounds to be included in the objection to competency do not have evidentiary foundation.

8.	The above grounds are discussed in detail in the Petitioners supplementary submission filed on the 8th of March 2024 which I have read and understood. I do not agree with all the above grounds for reasons stated below.

9.	Section 210 of the Organic Law on National and Local Level Government Elections (the Organic Law) prohibits the hearing of a petition that is incompetent.

10.	Section 210 of the Organic Law provides that:

“210.	NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

11.	It is trite law that the competence of an election petition depends on the petition meeting the requirements of Sections 208 and 209 of the Organic Law.

12.	This application seeks to introduce new grounds relating to compliance with Section 208 and 209 of the Organic Law.

13.	It is trite law that the competency of an application is not time barred - it is open right throughout the hearing of the petition. (Peter Waram v Richard Maru (2023) N10358; Michael Kandui v Powes Parkop (2023) N10597).

14.	In terms of Rule 22 (1) of the Election Petition Rules, this Court has a discretion to entertain a late objection to competency.

15.	Section 22 (1) of the Election Petition Rules provides that:

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

16.	In the recent past this Court granted leave to the Respondents to amend their notice of objection based on Section 209 of the Organic Law. (Peter Nupiri v Hon. William Powi (2023) N10390; Johnson Tuke Ibo v William Hagahuno (2023) N10322; Peter Wararu v Richard Maru (2023) N10358 and Michael Kandiu v Powes Parkop (2023) N10597).

17.	It follows from the above that I do not find any merit in the Petitioner’s grounds in opposition to this application. I find that the First Respondent has made out a case for dispensation with the strict requirements of Rule 12 (a) of the EP Rules.

18.	In the result, it is ordered that: 

1)	Pursuant to Rule 22(1) of the EP Rules and Section 185 and 155(4) of the Constitution, the strict compliance with requirement of Rule 12(a) of the EP Rules be dispensed with and the First Respondent be granted leave to amend his Notice of Objection to Competency filed on 4th October, 2022, (Court Doc No. 21), to include additional objection grounds based on Sections 208(e) and 209 of the Organic Law on National and Local Level Government Elections and Rules 5, 6 and 7 of the EP Rules and to file further supporting Affidavits if any within seven (7) days from today (28th March 2024).

2)	Costs be in the cause.

3)	Time be abridged to the date of settlement by the Registrar, which shall take place forthwith.
_______________________________________________________________
Solomon Wanis Lawyers: Lawyers for the Plaintiff/Applicant	 
Paul Othas Lawyers: Lawyers for the First Respondent   	
Pacific Legal Group: Lawyers for the Second Respondent