In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Yangoru-Saussia Open Electorate; Peter Wararu Waranaka v Andrew Trawen, Electoral Commissioner, Electoral Commission of Papua New Guinea and David Tobena, the Returning Officer for Yangoru-Saussia Open Electorate and Electoral Commission of Papua New Guinea and Richard Maru (2012) N4815

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 08 October 2012
• Court: National Court
• Citation: (2012) N4815
• Docket Number: EP NO 17 of 2012
• Year: 2012
• Judgement Number: N4815

Full Title: EP NO 17 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 Yangoru-Saussia Open Electorate; Peter Wararu Waranaka v Andrew Trawen, Electoral Commissioner, Electoral Commission of Papua New Guinea and David Tobena, the Returning Officer for Yangoru-Saussia Open Electorate and Electoral Commission of Papua New Guinea and Richard Maru (2012) N4815

National Court: Makail, J

Judgment Delivered: 8 October 2012

N4815

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 17 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 YANGORU-SAUSSIA OPEN ELECTORATE

BETWEEN

PETER WARARU WARANAKA

Petitioner

AND

ANDREW TRAWEN, Electoral Commissioner,

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

DAVID TOBENA, the Returning Officer for Yangoru-Saussia Open Electorate

Second Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Third Respondent

AND

RICHARD MARU

Fourth Respondent

Waigani: Makail, J

2012: 01st & 08th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to strike out petition – Grounds of – Irregularity – Filing of petition by lawyers without leave of Court – Irregular service – Petition served by third party , policeman – Petition served without notice to appear in Form 1 and notice of directions hearing in Form 2 – Application arising from election dispute – Grounds misconceived – Application is objection to competency – Application dismissed – Organic Law on National and Local-level Government Elections – Sections 208 & 222(1) – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7(1)(a)&(c), 15 & 17.

Facts

Moses Murray & Company Solicitors & Advocates Limited filed a petition for the petitioner disputing the election of the fourth respondent as member elect for Yangoru-Saussia open electorate in the East Sepik Province in the 2012 General Elections. At the directions hearing, the fourth respondent raised a preliminary matter in relation to the petition being filed by the petitioner’s lawyers without first obtaining leave of the Court under section 222(1) of the Organic Law on National and Local-level Government Elections. He also alleged that the petitioner did not serve the petition on him in person and this was in breach of Rule 7(1)(a) of the National Court Election Petition Rules, 2002 (as amended).

Held:

1. The application for “preliminary matter to be raised” was in fact an objection to the competency of the petition and should have been by way of a notice of objection and argued at the trial pursuant to Rule 15 of the National Court Election Petition Rules, 2002 (as amended).

2. The failure to serve the notice to appear in Form 1 and notice of directions hearing in Form 2 at the time the petition was served under Rule 6 of the National Court Election Petition Rules, 2002 (as amended) does not render the petition invalid.

3. Rule 7(1)(a) of the National Court Election Petition Rules, 2002 (as amended) does not expressly preclude other persons from serving the petition on the respondents.

4. Section 222(1) of the Organic Law on National and Local-level Government Elections is not a pre-requisite of the petition under section 208 of the Organic Law on National and Local-level Government Elections and therefore is not a ground of objection to competency of a petition.

5. The application was based on misconceived grounds and delayed the directions hearing by 2 weeks. For these reasons, the fourth respondent was ordered to pay the petitioner’s costs of the application.

Cases cited:

Jimson Sauk -v- Don Pomb Polye (2004) SC769

Ginson Goheyu Soanu -v- Bob Dadae (2004) SC763

Mapun Papol -v- Antony Temo & The Electoral Commission [1981] PNGLR 178

Delba Biri -v- Bill Gembogl Ninkama [1982] PNGLR 342

Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983

Re: The Election of Karamui-Nomane; John Wemin -v- Simon Philip Gaima & Electoral Commission [1997] PNGLR 645

Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)

Wari Vele -v- Powes Parkop (2008) SC945

Counsel:

Mr M Murray, for Petitioner

Mr J Umbu, for First, Second & Third Respondents

Mr R Bradshaw, for Fourth Respondent

RULING ON APPLICATION TO STRUCK OUT PETITION

08th October, 2012

1. MAKAIL, J: On 23rd August 2012, Moses Murray & Company Solicitors & Advocates Limited filed the petition for the petitioner disputing the election of the fourth respondent as member elect for Yangoru-Saussia open electorate in the East Sepik Province in the 2012 General Elections. In accordance with Rule 12 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”), the petition was fixed for directions hearing on 21st September 2012. The Court did not sit on that date and the directions hearing was rescheduled to 24th September 2012 at 9:30 am.

Background

2. On the morning of 24th September 2012, Mr Moses Murray appeared with leave for the petitioner and Mr Andrew Kongri also appeared with leave for the first, second and third respondents. Mr Robert Bradshaw sought leave for which leave was granted and appeared for the fourth respondent. He then raised “some preliminary matters” one of which was the appearance of Mr Murray. He referred the Court to the petition and pointed out that it was filed by the lawyers for the petitioner without leave of the Court and this was in breach of section 222(1) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).

3. He added that he took issue with Mr Murray’s appearance because this was the first time such an issue was raised in an election petition case and sought the Court’s indulgence to determine it before the directions hearing. Mr Murray took exception to the challenge, suggesting that it was a trivial matter such that the Court should not bore itself with. Since it was the first time the issue was raised, the Court then directed Mr Bradshaw to file and serve a notice of motion on the parties setting out the basis of the objection and adjourned the matter to 28th September 2012 at 1:30 pm for hearing. Due to time constrain, the motion was not heard and was further adjourned to 01st October 2012 at 9:30 am for hearing.

4. Pursuant to the notice of motion filed on 25th September 2012, the fourth respondent moved the Court for the following orders:

“1. The Petition filed herein be struck-out as being irregularly filed for breach of section 222(1) of the Organic Law on National and Local-level Government Elections.

2. In the alternative to above, pursuant to Rule 18(1) of the National Court Election Petition Rules (the Rules), the Petition filed herein be dismissed for Petitioner’s failure to comply with Rule 6 of the Rules by:

(i) the Petitioner failing to serve on the Fourth Respondent, the Petition, and/or

(ii) the Petitioner failing to serve the Notices required by Rule 6(1)(a) and (b).

3. In the alternative to (1) and (2) above, pursuant to Rule 18 of the Rules, time be extended for the Fourth Respondent to file objection to competency of the Petition herein.

4. Such further or other orders as this Honourable Court deems appropriate.”

Grounds of Application

5. The fourth respondent relied on three grounds to dismiss the petition:

(a) The petition filed by Moses Murray Solicitors & Advocates is in breach of section 222(1) of the Organic Law on Elections; or

(b) The petition was served on the fourth respondent in breach of Rule 7 of the EP Rules, in that, a person other than the petitioner serve it on the fourth respondent; or

(c) The petition was served in breach of Rule 6 of the EP Rules, in that at the time of service of the petition, the petitioner failed to serve the notice to appear in Form 1 and notice of directions hearing in Form 2.

Fourth Respondent’s Submissions

6. Mr Bradshaw submitted that section 222(1) of the Organic Law on Elections is very clear. No lawyer shall appear for a party in an election petition unless parties consented or with leave of the Court. In this case, without obtaining the consent of the respondents or leave of the Court, Moses Murray Solicitors & Advocates have filed the petition on behalf of the petitioner. This is in breach of section 222(1). Section 222(1) is in mandatory terms and a failure to comply with it is not a trivial matter such that the Court should take lightly and allow the petitioner to pursue the petition. It must be strictly complied with and failure to comply may result in the petition being struck out for being irregularly filed.

7. In support of this submission, Mr Bradshaw relied on the obiter dictum of the Supreme Court in Jimson Sauk -v- Don Pomb Polye (2004) SC769:

“It is obvious to us that the legislative intent is to exclude or limit professional legal involvement in the initiation and conduct of the election...