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Ninigi v Electoral Commission of Papua New Guinea [2012] PGNC 176; N4879 (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 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."

11. The power to summarily dismiss a petition under Rule 18 is discretionary. Rule 18 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."

12. 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 second respondent to establish the default or failure to comply with the requirements of service. There is no dispute that the petition was not personally served on the second respondent. Thus, Rule 7(1)(a) does not apply. The second respondent's application is premised on the multiple service of the petition and related Court documents on him. However, nowhere in his three affidavits does he deny receiving the petition and the related Court documents.

13. 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. Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission (2012) SC1206, Darryl Jee -v- Ben Micah & Electoral Commission (2012) N4823

14. Where the petition is left at the residential address of the successful candidate, the petitioner must ensure that it is left at the residential address stated by the successful candidate in the nomination form. In Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791 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.

15. In Andrew Sallel -v- James Gelak Gau & Electoral Commission (2012) N4816, the petition was served at a residential address in Madang town but the nomination form stated that the residential address of the member-elect was 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.

16. In a case where the residential address of the successful candidate is vague or missing in the nomination form, it does not mean that he or she does not have a residential address in the electorate. Rule 7(1)(b) requires the petitioner to serve the petition at the residential address of the successful candidate. 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: see Hon John Simon (supra)), Darryl Jee (supra) and Sam Tei Abal -v- Robert Sandan Gamin & Electoral Commission (2012) N4841.

17. In relation to service of the notice of directions hearing at the same time as the petition, in Peter Wararu Waranaka -v- Electoral Commission & Richard Maru (2012) N4815, the member-elect for Yangoru-Saussia open electorate Hon Richard Maru applied to dismiss the petition. One of the grounds was that the petitioner failed to serve on him the notice of directions hearing in Form 2. The Court said that Form 2 is issued by the Registrar in accordance with Rule 12 of the EP Rules. Rule 12 requires that the petition must be fixed for directions hearing within 28 days of its filing. Form 2 is issued to inform the respondents of the date, time and venue of directions hearing. This is because the petition does not provide this information. It is envisaged by Form 2 that, upon its receipt, the respondents will be informed of the date, time and venue of the directions hearing. The Court went on to hold that the failure to serve the notice of directions hearing in Form 2 at the time the petition was served under Rule 6 of the EP Rules does not render the petition invalid.

18. In the present case, the second respondent does not dispute or deny that he cited the notice of directions hearing in Form 2 in the two daily newspapers and was aware of the date, time and venue of the directions hearing of 28th September 2012 at 9:30 am. On that date, he appeared through counsel and asked for an adjournment because he disputed service of the petition. He disputed service because the petition and the notice to appear were not served at his village at Kiburu. They were served at Kiburu Lodge. He did not state in his nomination form that Kiburu Lodge was his residential address when he nominated to contest the election. He said that Kiburu Lodge is not the same as Kiburu village. To support his assertion, he gave an example of Aku Lodge in Boroko. He said Aku Lodge is the name of a lodge and is located in Boroko. It is not located in Aku village. Thus, the petitioner served the documents at the wrong residential address and service was irregular.

19. In Sam Tei Abal's case (supra), it was held that unless it is expressly stated or some evidence in the nomination form of a candidate that a guest house is the residential address of the candidate, it is a place of business and does not fall within the definition of a residential address under Rule 7(1)(b) of the EP Rules. With the greatest respect to the second respondent, the proposition that Kiburu Lodge is not Kiburu village is untenable. I give two reasons for rejecting this proposition.

20. First, there is evidence in the nomination form establishing that Kiburu Lodge is the second respondent's residential address. The second respondent stated in the nomination form that he was born in Kiburu. The accompanying document called the "Candidate Information Form" also stated that he was born in Kiburu and his postal address is PO Box 466, Mendi, Southern Highlands Province. Further, a copy of an excerpt of the telephone directory annexed to the affidavit the petitioner sworn and filed on 11th September 2012 has Kiburu Lodge's postal address as PO Box 466, Mendi.

21. Secondly and I mean no disrespect to the second respondent nor am I personalising this affair, but it is misleading to suggest that Kiburu Lodge is not in Kiburu village. I have been on numerous Court circuits to Mendi since 2008 and am well familiar with the locality of Kiburu. I stayed in Kiburu Lodge during those circuits. I even walked around Kiburu and even from Kiburu to Mendi town. The question I ask is; where is Kiburu Lodge located? The next question I ask is; where did Kiburu Lodge get its name from? The answer is obvious, Kiburu. Kiburu Lodge is located on Kiburu land and that is where it got its name. On the same land is Kiburu village.

22. The Court's own local knowledge of Kiburu is further supported by the evidence of the petitioner in his further affidavit sworn and filed on 04th October 2012 where he deposed that the second respondent lives at Kiburu Lodge. The second respondent does not deny that he lives there and it is one thing contending that the petition was served at a wrong residential address at Kiburu Lodge and it is another thing denying that he lives there. Thus, it must be the case that he lives at Kiburu Lodge. This is also where I distinguish this case from Sam Tei Abal's case (supra) where I held that the petitioner's agent a policeman served the petition at a wrong residential address. He served it at Teremanda Guest House and the nomination form did not state it as his residential address and the member-elect denied living there. In my view all these information sufficiently establish that Kiburu Lodge is where the second respondent lives.

23. What must also be appreciated by the parties as to why the Court granted these ex parte orders is that there were numerous attempts by the petitioner to locate the second respondent to serve the petition and related Court documents on him. These attempts were unsuccessful and I need not go into the details suffice to refer parties to the affidavit of the petitioner sworn and filed on 11th September 2012. If the petitioner found him, he avoided service. One such incident was on 03rd September 2012 when the petitioner followed him to the Jackson's International Airport terminal and as he confronted him, the second respondent turned around and escaped through the arrival corridor.

24. The other incident was on 06th September 2012 where the petitioner's agents attempted to serve the petition on him, again, at Jackson's International Airport terminal and he took a different route, boarded the plane and departed for China via Singapore. All these information are in the affidavit of the petitioner sworn and filed on 11th September 2012 and affidavit of Kieeh Carlos Kendakali sworn and filed on 11th September 2012.

25. For these reasons, I am of the view that it was open to the petitioner to serve the petition and notice to appear in Form 1 by leaving them at Kiburu Lodge in Mendi, Southern Highlands Province. The notice of directions hearing was not served at the same time as it was not ready for collection at the National Court Registry in Waigani. In my view it was also open to the petitioner to obtain leave and have it published in the two daily newspapers. It was also open to him to post a copy to the second respondent at the postal address of PO Box 466, Mendi, Southern Highlands Province.

26. I also accept the petitioner's submission that as he bears the burden of serving the petition on the second respondent and to ensure that there are no complaints 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. In my view 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. The petitioner utilised these various modes of service to prompt or compel the second respondent to attend the directions hearing and participate in the conduct of the petition. In my view the purpose of service has been achieved. The second respondent has appeared at the directions hearing on 28th September 2012. For these reasons, I am not satisfied that the petitioner has abused the Court's process.

27. Finally, one of the considerations for setting aside an ex parte order is that it must be established by the applicant, in this case, the second respondent that he has an arguable case in relation to the issue of service. For the reasons, I have given above, I am not satisfied that the second respondent has established an arguable case, in that, service of the petition and related Court documents were irregular such that the ex parte orders ought to be set aside, stayed or the directions hearing vacated. I refuse the application in its entirety with costs and direct that matter proceed to directions hearing forthwith.

28. As to costs, the petitioner has asked for costs on an indemnity basis against the second respondent's lawyers and has put them on notice. The second respondent failed to address this issue in submissions. An award of costs on an indemnity basis is discretionary. The petitioner must establish that he incurred costs unnecessarily as a result of the conduct of the second respondent's lawyers. He must establish that they acted improperly, without reasonable cause or by other misconduct or default. He may also establish that costs were incurred by undue delay.

29. I am satisfied that the second respondent's lawyers were forewarned of a cost order to be sought against them if the application failed. I am also satisfied that the application is misconceived and an abuse of process. Not only that but it is also frivolous and vexatious. It was a waste of judicial time. It also delayed the petitioner the opportunity to proceed with directions hearing on 28th September 2012. As I have found, the petitioner was entitled to utilise the various modes of service provided under Rule 7 to effect service of the petition and related Court documents on the second respondent. He did that to secure the attendance of the second respondent and also to avoid any further complaints on the issue of service. For these brief reasons, I am satisfied that the second respondent's lawyers acted improperly. They also acted without reasonable cause. As a result, the petitioner incurred unnecessary costs. I order them to pay the petitioner's costs of the application on an indemnity basis.

Ruling accordingly.
____________________________________

Jema Lawyers: Lawyers for Petitioner
Niugini Legal Practice: Lawyers for First Respondent
A D Lora Lawyers: Lawyers for Second Respondent