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Jee v Micah [2012] PGNC 127; N4823 (12 October 2012)

N4823

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 19 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 KAVIENG OPEN ELECTORATE

BETWEEN

DARRYL JEE
Petitioner

AND

BEN MICAH
First Respondent

AND

ELECTORAL COMMISSION OF PNG
Second Respondent

Waigani: Makail, J
2012: 03rd & 12th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Service of petition – Service on first respondent – Grounds of – Irregular service –Petition left at village of first respondent – Residential address in nomination form vague – Purpose of service – Notice to party of proceedings – Candidates obliged to provide residential address – Whether requirements of service satisfied – Constitution – Section 103(2) – National Court Election Petition Rules, 2002 (as amended) – Rules 7(1)(a)&(b) & 18.

Facts

The first respondent applied to dismiss the petition for want of service pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended). He contended that the petition was not served on him personally or served at his residential address as nominated by him in the nomination form pursuant to Rule 7(1)(b) of the EP Rules. The petition was purportedly served at 11:12 am on 04th September 2012 at Maiom village in Kavieng, New Ireland Province.

Held:

1. The whole purpose of requiring a petitioner to serve the petition on the respondents is to give them notice of the legal proceedings (petition) against them and for them to attend the hearing at a date, time and venue appointed by the Court.

2. There is a misconception that the nomination form does not require a candidate to state his or her residential address when nominating. It is implicit in section 103(2) of the Constitution that a candidate is obliged to provide it when completing the nomination form at nomination.

3. While the residential address of the first respondent in the nomination form is vague, it is open to the petitioner to serve the petition at the first respondent's village at Maiom because it is where the first respondent resides.

4. The first respondent failed to establish that the petition was irregularly served and the application was refused with costs.

Cases cited:

Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: SC Rev No 27 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012)
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: EP No 28 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012)

Counsel:

Mr A Menai, for Petitioner
Mr A Manase, for First Respondent
Mr T Kuma, for Second Respondent

RULING ON APPLICATION TO DISMISS PETITION FOR WANT OF SERVICE

12th October, 2012

1. MAKAIL, J: Pursuant to a notice of motion filed on 27th September 2012, the first respondent applies to dismiss the petition for want of service pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). In the substantive proceedings, the petitioner seeks to invalid the first respondent's election as member-elect for Kavieng open electorate in the New Ireland Province following the 2012 General Elections. The first respondent contends that the petition was not served on him personally or served at his residential address stated by him in the nomination form pursuant to Rule 7(1)(a)&(b) of the EP Rules. The petition was purportedly served at 11:12 am on 04th September 2012 at Maiom village in Kavieng, New Ireland Province. At the same time, the petitioner did not provide a notice to appear in Form 1 and notice of directions hearing in From 2.

2. His counsel relies on his affidavit sworn on 26th September and filed on 27th September 2012 and submits that except for a short time when he went to Singapore, he was in the country between the time the petition was filed on 24th August 2012 and 29th August 2012. He was in Singapore between 30th August and 04th September 2012 when the petition was purportedly served. Counsel further submits that the first respondent was in Kavieng and Port Moresby and that was the time, the petitioner should have located and served the petition on him. He did not, thus there was no personal service. Furthermore, counsel informed him that the petition was listed for directions hearing on 25th September 2012 and he instructed counsel to appear and advise the Court of the non-service of the petition.

3. Counsel further submits that the nomination form does not state the residential address of the first respondent, except Kavieng. The residential address of Kavieng is vague and is of no assistance to the parties, especially the petitioner who is required to serve the petition at the residential address of the successful candidate as required by Rule 7(1)(b) of the EP Rules. Given the vagueness, it is possible that the petition could have been served anywhere in Kavieng town and not on the first respondent.

4. He suggests that the nomination form does not require a candidate to provide his or her residential address when nominating except to state how long he or she has resided in the electorate prior to nomination. He even suggested that Rule 7(1)(b) was drafted without regard to the nomination form, hence the inadequacy. For these reasons, he submits that the first respondent is not obliged to state his residential address in the nomination form. He is only required to state where he resided prior to nomination and that he did by stating Kavieng. If the residential address is vague or missing, the petitioner is not left without a remedy; he could have applied for substituted service under Rule 7(1)(c) of the EP Rules. For example, he could have asked for leave to publish the petition, notice to appear and notice of directions hearing in the two daily newspapers. He did not do that.

5. He concludes his submission by submitting that there is only one ground in the petition. It is on disqualification of the first respondent because it is alleged that the first respondent was not registered as a voter in Kavieng open electorate when he nominated. He submits that this ground has no merit because section 64 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") allows a candidate to nominate at an electorate other than the electorate he is enrolled. In any case, the first respondent is a former member for Kavieng and by section 41 of the Organic Law on Elections, he is automatically qualified to nominate and contest the seat. If the petition is dismissed against the first respondent on these grounds, there would be no utility in pursuing it against the second respondent. The entire petition should be dismissed.

6. The second respondent supports the application and endorses the submissions made by the first respondent. Counsel adds that the second respondent takes no issue with service of the petition as it was served and that there is only one ground in the petition and it is against the first respondent. If the application is upheld, the petition should be dismissed in its entirety.

7. As for the petitioner, his counsel relies on the affidavit of Jonathan Mesulam sworn on 06th September and filed on 18th September 2012, affidavit of service of William Bartley sworn on 26th September and filed on 27th September 2012 and affidavit of Joyce Grant sworn on 27th September 2012 and filed on 28th September 2012 and submits that the service of the petition was properly effected on the first respondent. He points out that these affidavits established that the petition was left with the First Secretary of the first respondent by the name of Jenifer Matautu at 11:12 am on 04th September 2012 at Maiom village in New Ireland Province. Service was effected in that manner because the nomination form of the first respondent does not state the residential address of the first respondent. It only stated Kavieng. Maiom is in New Ireland, is the first respondent's village and where he lives.

8. It is common ground that according to Rule 7, the 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 person who appears to be over the age of 18 years, or may be served in other circumstances as the Court may, on application approve. Rule 7 is set out in full below:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament."

9. The first respondent asks the Court to invoke its power under Rule 18 to dismiss the petition. He says that the petitioner was required by Rules 6 and 7 to serve the petition on him either in person or by leaving it at the residential address stated by him in the nomination form with a person who appears to be over the age of 18 years. Rule 18 grants the Court power to summarily dismiss a petition. It states:

"18. SUMMARY DETERMINATION

Where a party has not done any act required to be done by or under these rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of the proceeding:-

(i) order that the petition be dismissed where the defaulting party is the petitioner; or

(ii) where the defaulting party is a respondent, the petition shall be set down for expedited hearing; or

(iii) make such other orders as it deems just."

10. The power to dismiss is an exercise of judicial discretion. It must be exercised based on proper principles of law. The question is, is there a default or failure by the petitioner to comply with the requirements of the EP Rules, in this instance, service of the petition? The onus is on the first respondent to establish the default or failure to comply with the requirements of service. First, there is no dispute that the petition was not personally served on the first respondent. Thus, it is settled that the petition was not served under Rule 7(1)(a). Secondly, the first respondent did not make any submissions on the failure by the petitioner to provide the notice to appear in Form 1 and notice of directions hearing in Form 2 under Rule 6. In any case, the application is not based on the petitioner's failure to serve these notices. On the other hand, it is based on the purported service under Rule 7(1)(b).

11. In this respect, the first respondent does not deny or dispute that the petition was left with his First Secretary by the name of Jenifer Matautu at 11:12 am on 04th September 2012 at Maiom village in New Ireland Province. Secondly, there is no dispute that his nomination form does not state his residential address. It only states Kavieng. The issue is whether leaving the petition at Maiom village with Jenifer Matautu is service.

12. Before I deal with this issue, it is instructive to note why Rule 7(1)(b) requires a petitioner to serve the petition at the residential address of the successful candidate. The whole purpose of requiring a petitioner to serve the petition on the respondents is to give them notice of the legal proceedings (petition) against them and for them to attend the hearing at a date, time and venue appointed by the Court. I am indebted to the Deputy Chief Justice who stood by me in his decision where he refused leave sought by Hon John Simon to review my decision in holding that service of the petition was properly effected by the losing candidate for Maprik open electorate Mr Gabriel Kapris when a copy was left with a councillor at Mr Simon's village at Malba in Maprik. His Honour said:

"The whole idea of service of the petition on the respondents is to compel them to attend the hearing at the appointed date and time. This is a legal process which must be accepted and allowed to be practiced without any hindrance. The Respondents including the applicant are now in court. The purpose of service has been served and completed." see Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: SC Rev No 27 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012) at 6.

13. Thus, in my view where there is an issue on service, one must not lose sight of the purpose of service. One should ask; have the respondents been given a copy of the petition, thus making them aware of its existence? Rule 7(1)(b) requires the petitioner to serve the petition at the residential address of the first respondent. It is there to give effect to the purpose of notice. The residential address is chosen as the place of service because it is where the successful candidate lives or resides. By leaving the petition there, it is more likely than not that the successful candidate will receive it whether or not he or she is at home. In other words, the residence is the most probable location where the candidate will receive the petition because it is where he or she lives.

14. I reject the first respondent's suggestion that the nomination form does not require a candidate to provide his or her residential address at nomination. This is a misconception because a closer examination of the nomination form below the word, "Qualification" in paragraph no 2 shows that there are two instances of residential qualification. First is where the candidate has resided in the electorate for a continuous period of 2 years prior to nomination and secondly, has resided in the electorate for a period of 5 years at periods and places specified by the candidate.

15. I note where a candidate qualifies to nominate in the first category, there is no space in the form for him to state his residential address. In my view, that does not mean that he does not have a residential address in the electorate. It is implicit in section 103(2) of the Constitution that a candidate is obliged to provide it when completing the nomination form at nomination. The second respondent as the custodian of the nomination form should require a candidate qualifying under the first category to write down the residential address. As I said earlier, a candidate contesting the elections surely must have a residential address in the electorate, that is, a place of abode or dwelling. It could be a house, flat or unit etc, located in town or a village. The provision of this information by a candidate will reinforce and give effect to the requirement of Rule 7(1)(b). I give the same reasons in the case of a candidate who qualifies to nominate under the second category of residential qualification.

16. In this instance, the first respondent qualified to nominate under the second category. He does not state his residential address except Kavieng. In my view, as the residential address is vague or missing, it does not mean that the first respondent does not have a place of abode or dwelling in Kavieng. Surely he would have one and to suggest that the residential address of Kavieng is vague and the possibility that the petition could have being served anywhere in Kavieng town not only defies logic and common sense but is also absurd.

17. In my view, it is open to the petitioner to make further inquiries as to where the first respondent resides or if he knows where he resides in Kavieng, then it is also open to him to serve the petition at that residential address. The first respondent does not deny he comes from Maiom village and lives there. He also does not deny that Maiom village is in New Ireland Province. This is the residential address where the petitioner through Jonathan Mesulam left the petition. It was left with Jenifer Matautu. She was the one who received it. The first respondent does not deny that she is over the age of 18 years. He does not deny that she is his First Secretary. In my view, by leaving it there, it is more likely than not that the first respondent would receive it, hence aware of the petition against him.

18. This is where I distinguish this case from the case of Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012) where I dismissed the petition on the ground that service was irregular. The petition was served on a staff member at the office of Hon Byron Chan. There was no evidence of a copy of the nomination form to verify that the office was the residential address of the member-elect.

19. I also distinguish this case from the case of Andrew Sallel -v- James Gelak Gau & Electoral Commission: EP No 28 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012). In that case, the petition was served at a residential address in Madang town but the nomination form stated the residential address of the member-elect as Sogum village in Rai Coast. The Court found that the petition was served at the wrong residential address and therefore, service was irregular and the Court dismissed the petition.

20. In this instance, there is undisputed evidence that the petition was served at the village of the first respondent. That is the place where he resides. In the circumstances, I am not satisfied that service was not properly effected under Rule 7(1)(b). This means, the first respondent has failed to establish a default or failure by the petitioner to comply with the requirements of service under Rule 7. Conversely, it means that as of 04th September 2012, the first respondent was served the petition and is aware of the proceedings. Therefore, he should be ready to participate in the directions hearing, which has been delayed by more than 2 weeks.

21. For these reasons, I am not satisfied that I should exercise my discretion under Rule 18 in his favour. I refuse the application with costs and direct that matter proceed to directions hearing forthwith. That being the decision, it is not necessary to consider the other aspects of the parties' submissions.
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Kaipu & Associates Lawyers: Lawyers for Petitioner
Manase & Co Lawyers: Lawyers for First Respondent
Kimbu & Associates Lawyers: Lawyers for Second Respondent