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Samara v Numi and Electoral Commissioner [1988] PGLawRp 43; [1988] PNGLR 18 (18 January 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 18 - Re Organic Law on National Elections (OLNE) and Disputed Returns of the Sinasina/Yongumogl Open Electorate: Jimmy Ulka Samara v John Numi and the Electoral Commissioner�

[1988] PNGLR 18

N651

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS

AND IN THE MATTER OF DISPUTED RETURNS OF THE SINASINA/YONGUMOGL OPEN ELECTORATE

AND IN THE MATTER OF JIMMY ULKA SAMARA

V

JOHN NUMI AND THE ELECTORAL COMMISSIONER

Kundiawa

Woods J

18 January 1988

PARLIAMENT - Elections - Election petition - Service of - Failure to serve within four months - Unreasonable delay - Abuse of process - Petition struck out - Organic Law on National Elections (Ch No 1).

Held

That failure to serve an election petition disputing the election of a candidate in open parliamentary elections before the date fixed for hearing, being a period some four months after the petition was filed, constituted such an unreasonable and unwarranted delay as to amount to an abuse of the processes provided for in the Organic Law on National Elections (Ch No 1) and should be struck out.

Petition

A petition disputing the validity of an open parliamentary election for the National Parliament having been filed in August 1987 and fixed for hearing in January 1988, the respondents to the petition sought to have the petition struck out as an abuse of process on the ground that it had not been served on either respondent.

Counsel

A Yer, for the petitioner.

M Maladina, for the first respondent.

D Lambu, for the second respondent.

18 January 1988

WOODS J: The petitioner on 25 August 1987 filed a petition disputing the election of the first respondent in the Sinasina/Yongumogl Open Electorate in the National Parliament.

This matter was then included in the Circuit list for the National Court in October 1987 at Kundiawa. The parties were further advised in November of a special callover in December for a circuit in January 1988 and then advised of a circuit on 18 January at Kundiawa.

All parties are represented before me today; however, both respondents say they only knew about the petition by hearsay as they had never been served with the petition. The lawyer for the first respondent states that he himself finally sought and obtained a copy of the petition from the lawyer for the petitioner by facsimile transfer only 10 days ago.

Lawyers for the respondent submit that the petition should therefore be struck out as failure to serve the petition within a reasonable time is an abuse of the process of the court and unnecessarily prolongs the uncertainty of the representation of the people in the Parliament of the country.

Election petitions are very serious matters as they challenge the representation of the people in the Parliament. Such uncertainty cannot be allowed to continue unnecessarily. The whole procedure for the filing and hearing of such petitions in the Organic Law on National Elections (Ch No 1) points to a speedy resolution of such matters. Thus there is no provision for lengthy pleadings; rather the petition itself is meant to include all matters alleged in such a way that immediately on receipt of a petition the parties know the case and should be able to proceed through to an early hearing without any further documentation.

Petitions must therefore be pressed expeditiously. The petition was listed and called at the October 1987 sittings at Kundiawa and now it is January 1988, over four months since the petition was filed and the petitioner has not even served it on the respondents. The lawyer for the petitioner has given explanations as to why service has not been effected but no good reasons. It is general knowledge that Parliament sat for about three weeks in November 1987 so there was ample time and opportunity to serve the first respondent then.

I do not regard the communication between the lawyers earlier this month whereby the lawyer for the first respondent requested and received a copy of the petition by facsimile transfer as effective service.

This Court is not going to allow a casual procedure to develop in such a serious matter as the representation of the people in the Parliament. I find that there has been unreasonable and unwarranted delay in serving the petition such that it is an abuse of the processes provided for in the Organic Law on National Elections.

I strike out the petition.

Petition struck out

Lawyer for the petitioner: Alphonse Yer.

Lawyer for the first respondent: Kirkes.

Lawyer for the second respondent: Secretary for Justice.