Norbert Kubak v Andrew Trawen, Electoral Commissioner, Electoral Commission Of Papua New Guinea and Ekonia Walom, Returning Officer For Gazelle Open Electorate and The Electoral Commission Of Papua New Guinea and Malakai Tabar (2012) N4992

• Jurisdiction: Papua New Guinea
• Judge: Kariko J
• Judgment Date: 15 November 2012
• Court: National Court
• Citation: (2012) N4992
• Docket Number: E.P. NO. 2 of 2012
• Year: 2012
• Judgement Number: N4992

Full Title: E.P. NO. 2 of 2012; Norbert Kubak v Andrew Trawen, Electoral Commissioner, Electoral Commission Of Papua New Guinea and Ekonia Walom, Returning Officer For Gazelle Open Electorate and The Electoral Commission Of Papua New Guinea and Malakai Tabar (2012) N4992

National Court: Kariko, J

Judgment Delivered: 15 November 2012

N4992

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

E.P. NO. 2 OF 2012

BETWEEN:

NORBERT KUBAK

Petitioner

AND:

ANDREW TRAWEN, ELECTORAL COMMISSIONER, ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND:

EKONIA WALOM, Returning Officer for Gazelle Open Electorate

Second Respondent

AND:

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Third Respondent

AND:

MALAKAI TABAR

Fourth Respondent

Kokopo: Kariko, J

2012: 12th, 13th & 15th November

ELECTION PETITION – Objection to competency – Objection filed out of time – Whether Objection may be heard – Exercise of discretion – National Court Practice Direction (Election Petitions) No. 2 of 2012; Rule 17, National Court Election Petition Rules; s.210, Organic Law on National and Local Level Government Elections

ELECTION PETITION – Appearance by counsel – Whether different counsel but from same law firm permitted to appear – s. 222, Organic Law on National and Local Level Government Elections

ELECTION PETITION – Objection to competency – Requirement to plead facts upon which the election could be invalidated – s. 208(a), Organic Law on National and Local Level Government Elections

Facts:

An objection to the competency of the election petition based on s. 208(a) of the Organic Law on National and Local Level Government Elections was raised and filed outside the time limit prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012.

Held:

(1) An objection to the competency of the election petition outside the prescribed time limit may still be heard as:

(a) Rule 17 of the National Court Election Petition Rules gives the Court discretion to waive strict compliance with the Rules;

(b) As a provision of an Organic Law, Section 210 of the Organic Law on National and Local Level Government Elections which states that an election petition cannot proceed to hearing if sections 208 and 209 requirements are not met, must take precedence over a Practice Direction;

(c) The issue of competency is one the Court may in the exercise of its inherent jurisdiction address at any stage of the hearing; and

(d) The discretion should be exercised in favour of the applicant if he establishes that he has arguable grounds for the objection.

(e) Any inconvenience caused by a late objection to competency may be compensated by an appropriate order for costs.

(2) Section 222 of the Organic Law on National and Local Level Government Elections does not require consent or leave of the Court each time there is a change in counsel from the same law firm or legal practice.

(3) Section 208(a) of the Organic Law on National and Local Level Government Elections requires the relevant and material facts pleaded in the petition to sufficiently and clearly indicate to the other parties as to what is alleged and to sufficiently inform the Court of the issues involved.

(4) If illegal practices (electoral and Criminal Code offences) are alleged all the constituent elements of the offences must be pleaded in the grounds of a petition according to s. 208(a).

(5) The petition is incompetent for failing to meet the requirements of s. 208(a).

Cases cited:

Peri v. Agiwa (1998) unreported and unnumbered (SCR 13 of 1998)

Delba Biri v. Bill Ninkama [1982] PNGLR 342

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064

Mathias Karani v. Yawa Silupa (2004) N2517

Barry Holloway v. Aita Ivarato and Electoral Commission [988] PNGLR 99

Mathias Ijape v. Bire Kimisopa and Electoral Commission (2003) N2344

Dick Mune v. Anderson Agiru & Ors (1998) SC 590

Neville Bourne v. Manasseh Voeto (1977) PNGLR 298

Mathias Karani v. Yawa Silupa (2003) N2385

Martin Thompson v. James Pokasui [1988] PNGLR 210

Counsel:

Mr W Donald, for the petitioner

Mr T Kuma, for the first, second & third respondents

Ms G J Sheppard, for the fourth respondent

15th November 2012

1. KARIKO, J: This election petition was filed pursuant to s. 206 of the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election and return of the Gazelle Open Electorate in the recent national general elections.

2. At the commencement of this trial on Monday morning, counsel for the fourth respondent sought to make a verbal application challenging the petition on the basis that it did not comply with s. 208(a) of the Organic Law. After hearing from counsel who agreed that the application was in effect an objection to competency of the petition, I exercised my discretion allowing the application to be made notwithstanding that no formal motion had been filed within the time period prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012 (Practice Direction 2/12) being “within 21 days of service of the petition”.

3. My ruling was based on the following:

(f) While Mr Donald for the petitioner objected to the application being raised at “the 11th hour” contrary to Practice Direction 2/12, he was nevertheless willing to have the application heard in the afternoon provided the Court granted leave, and the fourth respondent provide the particulars of the alleged non-compliance with s. 208(a); and

(g) Rule 17 of the National Court Election Petition Rules (the Rules) gives this Court a discretion to waive strict compliance with the Rules; and

(h) Pursuant to s. 210 of the Organic Law a petition cannot proceed to hearing if s. 208(a) requirements are not met; and

(i) The issue of competency is one the Court may address at any stage of the hearing.

4. The Court then adjourned to the afternoon during which time a formal objection to competency (the Application) was filed and served. On resumption, the petitioner asked for a day’s adjournment to properly prepare his response to the Application, which I readily granted.

5. The first, second and third respondents (collectively, the Electoral Commission) endorsed the fourth respondent’s submissions in support of the Application which was of course opposed by the petitioner. I found all the submissions concise and most helpful, and I now give my ruling.

Late application

6. Mr Donald repeated and in strong terms, his client’s objection to the Application firstly arguing that to allow the Application to be heard after the respondents had failed to raise any competency issue earlier and within the prescribed time-limit, amounted to a gross abuse of process. Counsel quoted the following remarks by the Supreme Court in Peri v. Agiwa (1998) unreported and unnumbered (SCR 13 of 1998) that emphasized the need for speedy disposition of election petitions:

It has been expressed countless times that election petitions are not ordinary legal processes. They are sacred. This is why the Court has repeatedly stressed on the speedy disposition of election petitions so that the wishes of the majority expressed in the election returns are respected.

7. I agree with the remarks and I am mindful that Practice Direction 2/12 is in line with the sentiments expressed in this statement of the Supreme Court. Amongst other things, the Practice Direction requires early notice of any objection to competency. This is obviously to allow the petitioner to prepare his response to the notice well before the trial and in this way avoid adjournments due to want of service or short-service. The aim then is to save election petition trials from being dragged out by interlocutory applications normally experienced in the ordinary civil law proceeding.

8. However, I still hold the view that I should entertain this late objection to competency firstly because Rule 17 allows the Court to dispense with strict compliance with the Rules (which includes Practice Directions that are issued under the Rules). This discretionary power should of course be exercised properly and on judicial grounds. In this case, I consider being:

(a) obliged by the dictate of s. 210 of the Organic Law; and

(b) persuaded by the sound legal principle that the issue of competency is open to the court at any stage of a hearing up to judgement,

to hear the application even at this late stage.

9. Section 210 provides:

210. NO PROCEEDING UNLESS REQUISITES COMPLIED WITH.

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

10. There are a long line of case authorities that have held that if a Petitioner fails to strictly comply with the mandatory requirements of s.208 and s.209, the petition must be dismissed at the preliminary stage: see for example Delba Biri v. Bill Ninkama [1982] PNGLR 342.

11. The Supreme Court in Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 in dealing with an appeal arising from an election petition and on the...