Hami Yawari v Anderson Agiru and David Wakias SHP Returning Officer and The Electoral Commission of Papua New Guinea (2008) N3983

• Jurisdiction: Papua New Guinea
• Judge: Sevua, J
• Judgment Date: 27 May 2008
• Court: National Court
• Citation: (2008) N3983
• Docket Number: EP 46 OF 2007
• Year: 2008
• Judgement Number: N3983

Full Title: EP 46 OF 2007; Hami Yawari v Anderson Agiru and David Wakias SHP Returning Officer and The Electoral Commission of Papua New Guinea (2008) N3983

National Court: Sevua, J

Judgment Delivered: 27 May 2008

N3983

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 46 OF 2007

BETWEEN

HAMI YAWARI

Petitioner

AND

ANDERSON AGIRU

First Respondent

AND

DAVID WAKIAS

SHP RETURNING OFFICER

Second Respondent

AND

THE ELECTORAL COMMISSION

OF PAPUA NEW GUINEA

Third Respondent

Waigani: Sevua, J

2007: 6 & 7 December

2008: 27 May

PARLIAMENT – Election – Disputed returns – Election petition – Practice and procedure – Amendment of petition – Mistake in relying on affidavit without inviting parties to address on issue raised in affidavit – Power of the Court to correct its own mistake – Service – Service of petition – Requirement of service under Election Petition Rules – Service of Forms 1 and 2 Notices – Service pre-requisite to petition progressing to Directions Hearing.

PARLIAMENT – Election Petition – Election Petition Rules – Requirement of service of Petition – Whether service of petition effected on second respondent – If not, whether petition should be dismissed – Power to dismiss is discretionary.

Legislation:

Organic Law on National and Local-Level Government Elections, ss. 206, 208

National Court Election Petition Rules (as Amended) 2007 rr. 6, 7, 8

Cases Cited:

Papua New Guinea cases

Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342

Miki Kaeok v. Rimbink Pato & Masket Iangalio (2005) unreported, SC 877, 2nd September 2005

Jay Mingo Pty Ltd v. Steamships Trading [1995] PNGLR 129

Dick Mune v. Paul Poto [1997] PNGLR 356

Other cases

Jackson v. Goldsmith (1950) 81 CLR 446

Discount & Finance Ltd v. Gehrigs NSW Wine Ltd & Anor (1940) 40 SR (NSW) 58, 57 WN (NSW) 226

Blair v. Curran (1939) 62 CLR 464

Counsels

P. Ame, for Petitioner

C. Copland, for First Respondent

A. Kongri, for Second & Third Respondents

27 May, 2008

1. SEVUA, J: The petitioner is an unsuccessful candidate in the 2007 National General Elections for the Southern Highlands Province Regional Electorate which concluded in August, 2007. The first respondent is the successful candidate and the current sitting Member of Parliament for that electorate. The second respondent was the third respondent’s officer in charge of elections in the Southern Highlands Province in the 2007 National General Elections. The third respondent is charged with the constitutional function of conducting all elections for the National Parliament.

2. The respondents, at the direction of the Court, made applications to the Court to dismiss the petition following what appeared to be irregularities in the service of the petition and other documents on the respondents.

3. The following factual background will hopefully lead to some understanding and appreciation of why these applications were made and this decision.

4. The Southern Highlands Province Regional Seat was declared on 5th August 2007 when Anderson Agiru, the first respondent, was declared elected.

5. It is a requirement of law pursuant to s.208 (e) of Organic Law on National and Local Level Government Elections (hereinafter the Organic Law), that a petition challenging the result of the election under s.206 of the Organic Law must be filed within 40 days after the date of declaration (my emphasis). In this case, the 40 days period expired on Friday, 14th September 2007.

6. The petitioner filed his petition on 6th September 2007, which was within the 40 days time limit. A sealed copy of the petition was served on the third respondent on 13th September 2007. Another copy was served on the first respondent on 19th September 2007.

7. Unbeknown to the Court, the petitioner had filed an Amended Petition on 14th September 2007, the last day of the 40 days period. This fact was only revealed to the Court on 9th October 2007 when the issue of service of the petition arose. I will revert to this issue later.

8. At this juncture, let me state that on the basis of the petition being filed on 6th September 2007; the Directions Hearing was fixed for 26th September 2007. The Notice of Date, Time and Venue of Directions Hearing or Form 2, had that date inserted on it. That form was filed on 13th September 2007, but it should have been filed on 6th September 2007, together with the petition because by Rule 6 (1) (b) of the Election Petition Rules (the Rules), that Notice or Form must be served with the petition. However, the petitioner failed to comply with that requirement therefore his failure constitutes non-compliance with r 6 (1) (b) of the Rules.

9. The date of Directions Hearing was fixed on the basis of the original petition not on the basis of the Amended Petition. As I alluded to, the amended petition only became known to the Court on 9th October 2007, the date of the Directions Hearing, which will be explained hereunder.

10. This petition was initially set down for Directions Hearing on 26th September 2007 however, for reasons that are no longer relevant today, Directions Hearing was not conducted. Instead it became one of twelve Election Petitions that were listed for re-scheduling on 4th October, 2007. On that date, Directions Hearing was rescheduled to 9th October 2007. At that time, the petitioner did not draw the attention of the Court to that fact therefore the Court was not aware that there had been an Amended Petition filed by the petitioner.

11. On 9th October 2007, the Court proceeded with Directions Hearing under r 12 (3). After Directions had been issued, the issue of the petitioner’s Notice of Motion and service on the respondents were raised by the petitioner’s counsel and having considered those issues now, I am of the view that the petitioner and his lawyers were purposely misleading the Court as to the status of those matters.

12. Having considered the entire evidence in respect of the respondents’ applications and the petitioner’s evidence and response, it becomes evident to the Court that this petition should not have progressed to Directions Hearing. But it did because of certain untruths and lies by the petitioner, his witnesses, and to some extent, his counsel. I will refer to the pertinent matters which have led me to say what I have just adverted to.

13. At the end of the Directions Hearing, Mr. Ame then raised the issue of service of the petition on the second respondent. Mr. Ame started by informing the Court that he had a notice of motion on foot which had not been served on the respondents. In fact, the respondents’ counsels did not have any knowledge of that motion either. Because it had not been served on the second respondent, the petitioner’s counsel suggested that the motion would be withdrawn, but the second respondent should be removed as a party.

14. At that point in time, the Court was of the view that that proposition would amount to amending the petition which Mr. Ame agreed.

15. It must be emphasized by the Court that up to 9th October 2007, neither the Court nor the respondents knew that the petition had been served on the second respondent as there was no affidavit of service. This is a very pertinent issue because it has some bearing on whether or not the Court should believe the petitioner and his two witnesses, Robin Tuna and Jack Wesil. In fact, on that day, Mr. Ame admitted from the bar table that the second respondent had not been served.

16. Following these revelations by Mr. Ame, the Court was of the view that it was too late to raise the issues of service of petition and the notice of motion, which should have been raised at the beginning of that day’s proceedings. That to me demonstrates the attitude of the petitioner and his counsel, which in my view, amounted to misleading the Court and to a certain degree, dishonesty.

17. However, counsel for the first respondent announced that her client took issue with the non-service of the notice of motion and invoked the Court’s discretion under r 18. The submission to dismiss the petition under Rule 18 was just that. There was no formal application or oral application supported by any affidavit. Ms. Copland merely submitted that because the second respondent had not been served and the issue of the notice of motion was raised at the end of the Directions Hearing, the petition should be dismissed.

18. Mr. Kongri, counsel for the second and third respondents said he was not aware that the petitioner’s motion was on foot. His client had not been served therefore he had no knowledge that the petitioner was seeking an order for substituted service. Counsel also raised the issue of non-service of the two forms, Form 1 and Form 2 on the second and third respondents. Form 1 is the Notice to Appear and Form 2 is the Notice of Date, Time and Venue of Directions Hearing.

19. Mr. Kongri finally supported Ms. Copland’s reference to r 18 and also asked the Court to exercise its discretion in favour of his clients and dismiss the petition because the petitioner had not complied with the requirement of the Rules as to service of the petition.

20. In response, Mr. Ame submitted that the respondents have not been prejudiced in any way. In relation to the first respondent, counsel submitted that the non-service of the petition on the second respondent has nothing to do with the first respondent. And in...