In the matter of the Organic Law on National and Local-Level Government Elections and in the Matter of Disputed Returns for the Imbongu Open Electorate; Pila Ninigi v Electoral Commission of Papua New Guinea and Francis Awesa (2012) N4879

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 31 October 2012
• Court: National Court
• Citation: (2012) N4879
• Docket Number: EP NO 55 of 2012
• Year: 2012
• Judgement Number: N4879

Full Title: EP NO 55 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 Imbongu Open Electorate; Pila Ninigi v Electoral Commission of Papua New Guinea and Francis Awesa (2012) N4879

National Court: Makail, J

Judgment Delivered: 31 October 2012

N4879

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 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 IMBONGU OPEN ELECTORATE

BETWEEN

PILA NINIGI

Petitioner

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

First Respondent

AND

FRANCIS AWESA

Second Respondent

Waigani: Makail, J

2012: 09th & 31st October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to set aside ex parte order – Application to dismiss petition – Application arising from election dispute – Service of petition – Service on second respondent – Grounds of – Multiple service by multiple means – Abuse of process – Irregular service – Petition left at Kiburu Lodge – Residential address in nomination form vague – Petition served by post – Purpose of service – Notice to party of proceedings – Whether service was irregular – Whether arguable case shown – National Court Election Petition Rules, 2002 (as amended) – Rules 7(1)(a)&(b) & 18.

Facts

This is an application to set aside ex parte orders on service of petition and related Court documents and also dismiss the petition for abuse of process. The application to dismiss is made pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). It was contended that the petition was not personally served on the second respondent or served at his residential address as nominated by him in the nomination form pursuant to Rule 7(1)(a), (b)&(c) of the National Court Election Petition Rules, 2002 (as amended). The petition and related Court documents were purportedly left at Kiburu Lodge in Mendi, Southern Highlands Province.

Held:

1. There is evidence in the nomination form establishing that the second respondent’s residential address is Kiburu Lodge, Mendi, Southern Highlands Province.

2. The second respondent failed to show that the petition and related Court documents were served at the wrong residential address.

3. It was open to the petitioner to utilize the various prescribed modes of service to serve the petition and related Court documents on the second respondent.

4. The application was refused with costs on indemnity basis to be paid by the second respondent’s lawyers.

Cases cited:

Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: SC Rev No 27 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012)

Darryl Jee -v- Ben Micah & Electoral Commission (2012) N4823

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

Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816

Sam Tei Abal -v- Robert Sandan Gamin & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 24th October, 2012)

Peter Wararu Waranaka -v- Electoral Commission & Richard Maru: EP No 17 of 2012 (Unnumbered & Unreported Judgment of 08th October, 2012)

Counsel:

Mr J Kennedy, for Petitioner

Mr H Viogo, for First Respondent

Mr D Lora, for Second Respondent

RULING ON APPLICATION TO SET ASIDE EX PARTE ORDER AND DISMISSAL OF PETITION

31st October, 2012

1. MAKAIL, J: Pursuant to an amended notice of motion filed on 05th October 2012, the second respondent who is the member-elect for Imbongu open electorate in the Southern Highlands Province seeks to set aside the following ex parte orders:

1.1. Order of 13th September 2012,

1.2. Order of 20th September 2012, and

1.3. Order of 27th September 2012.

2. He also seeks to dismiss the entire proceedings for being an abuse of process pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”). He further seeks an order to stay the Order of 13th September 2012 and a further order to vacate the directions hearing of 28th September 2012.

3. The combine effect of these orders, are that the petition and notice to appear in Form 1 were served on the second respondent when they were left at his residential address as stated by him in the nomination form at Kiburu Lodge, Mendi, Southern Highlands Province and also by post to the postal address stated in the nomination form of PO Box 466, Mendi, Southern Highlands Province. As the notice of directions hearing in Form 2 was not served at the time the petition and notice to appear were served, leave was granted and it was published in the two daily newspapers, the National and Post Courier and also posted to the postal address of PO Box 466, Mendi, Southern Highlands Province.

4. Counsel for the second respondent relied on the affidavit of the second respondent sworn and filed on 28th September 2012 and his further affidavit sworn and filed on 01st October 2012 and another further affidavit sworn and filed on 04th October 2012 and submitted that by obtaining these multiple ex parte orders to effect service of the petition and related Court documents on the second respondent by multiple means after they were left at Kiburu Lodge in Mendi, they demonstrated that the petitioner was uncertain if he had served the petition and related Court documents on the second respondent. Such is an abuse of the Court’s process and the Court is obliged to protect itself from abuse by litigants. To protect itself, it must dismiss the entire proceedings for being an abuse of process. Counsel did not make submissions on the relevant principles of law on setting aside of an ex parte order, except to stress the point that the petitioner abused the Court’s process by obtaining these ex parte orders.

5. The first respondent conceded that ex parte orders on service of the petition and related Court documents were made by the Court but took no position on the application. The petitioner’s counsel relying on the number of affidavits opposed the application and strongly submitted that the application is incompetent and an abuse of process because section 220 of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”) by inference prohibits application to set aside ex parte orders.

6. In the alternative, it is open to the petitioner to utilise the various modes of service prescribed by Rule 7 of the EP Rules to effect service of the petition and related Court documents on the second respondent. This is because first the second respondent’s nomination form does not clearly state his residential address. However, there is some evidence in the nomination form to suggest that it is Kiburu Lodge, Mendi, Southern Highlands Province. The petitioner corroborated this evidence in his further affidavit sworn on 11th September and filed on 12th September 2012 where he deposed that the second respondent does not have a house in the village at Kiburu. He lives at Kiburu Lodge.

7. Secondly, numerous attempts were made to locate and serve the petition on him in person but were unsuccessful because the petitioner could not find him and if he did, the second respondent avoided service. One such incident was on 06th September 2012 where he and his agents attempted to serve the petition on the second respondent at Jackson’s International Airport terminal and he took a different route and boarded the plane and departed for China via Singapore. See affidavit of the petitioner sworn and filed on 11th September 2012 and affidavit of Kieeh Carlos Kendakali sworn and filed on 11th September 2012.

8. Finally, as the petitioner bore the burden of serving the petition on the second respondent and to ensure that there is no complaint on service later, he took the liberty to also seek and was granted leave to send the petition and related Court documents to the postal address of Kiburu Lodge, Mendi as stated by the second respondent in his nomination form. He also obtained leave and published the notice of directions hearing in the two daily newspapers because it was not served with the petition and notice to appear at Kiburu Lodge. It was not served at the same time as it was not ready for collection at the National Court Registry in Waigani.

9. He also posted a copy to the second respondent’s postal address at PO Box 466, Mendi, Southern Highlands Province. See affidavit of service of Kieeh Carlos Kendakali sworn and filed on 20th September 2012 and further affidavit of service Kieeh Carlos Kendakali sworn and filed on 18th September and filed on 21st September 2012. For these reasons, counsel submitted that the application is misconceived and should be dismissed with costs on an indemnity basis against the second respondent’s lawyers. He referred the Court to a letter to the second respondent’s lawyers dated 01st October 2012 forewarning them of the costs.

10. Rule 7 provides that a petition may be personally served, left at the residential address of the successful candidate as stated by him or her in the nomination form with a...