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Graham v Papua New Guinea Electoral Commission [2012] PGNC 212; N4808 (28 September 2012)

N4808

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 97 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 JIWAKA PROVINCIAL ELECTORATE

BETWEEN

JAMIE-MAXTON GRAHAM
Petitioner

AND

PAPUA NEW GUINEA ELECTORAL COMMISSION
First Respondent

AND

DR. WILLIAM TONGAMP
Second Respondent

Waigani: Makail, J
2012: 25th & 28th September

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to extend time for service – Service of petition – Grounds of – Difficulty in locating second respondent – Application arising from election dispute – Discretionary – Proof of attempts – Hearsay evidence – Grounds of petition – Illegality, illegal practices, errors and omissions against first respondent – No issue as to service on first respondent – Prejudice to petitioner – Relief sought to invalidate election of second respondent – Second respondent's interest affected – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7 & 17.

Cases cited:

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
Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983
Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364
Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378

Counsel:

Mr T Hamarhai, for Petitioner
Ms S Kapi, for First Respondent
Mr T Dalid, for Second Respondent

RULING ON APPLICATION FOR EXTENSION OF TIME TO SERVE ELECTION PETITION

28th September, 2012

1. MAKAIL, J: Pursuant to a notice of motion filed on 24th September 2012, the petitioner applies for an order that service of the petition, notice to appear in Form 1 and notice of directions hearing in Form 2 were served on the second respondent at 5:00 am on 23rd September 2012 or alternatively for extension of time by a further 14 days and leave to serve these documents by way of substituted service by publishing them in the two daily newspapers, the National and Post Courier. He also seeks costs. The application is made pursuant to Rule 6, Rule 7(1)(c) and Rule 17 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

2. The petitioner disputes the election of the second respondent as Governor elect for Jiwaka Province in the 2012 General Elections. He says that the petition was filed on 09th September 2012 and the time limitation of 14 days to serve the petition under Rule 6 of the EP Rules expired on 22nd September 2012. He was unsuccessful in serving it on the second respondents by the due date and is out of time by 2 days when he filed this application. He relies on the following affidavits:

2.1. Affidavit of counsel sworn and filed on 24th September 2012;

2.2. Affidavit of Senior Constable Bram Moea sworn on 20th September and filed on 24th September 2012; and

2.3. Affidavit of Senior Constable Ibabe Nadabe sworn on 20th September and filed on 24th September 2012.

3. The deponents of these affidavits say that they attempted to serve the petition between 20th September and 23rd September 2012 at Minj and Banz and have been unsuccessful. They say that the second respondent made it difficult for them to serve the petition on him by organising his supporters to prevent them from gaining access to him to serve the petition. They say that the supporters were gathered in hundreds, rowdy and issued threats of violence against them and any person or persons who seek to serve the petition on the second respondent.

4. At one stage, on 20th September 2012, Senior Constable Bram Moea and Senior Constable Ibabe Nadabe went to Banz to serve the petition on the second respondent at his office at the Jiwaka Haus and were refused entry by policemen. They were told to wait outside and one of the policemen informed the second respondent. The second respondent called Senior Constable Bram Moea on his mobile phone and informed him that he will not accept the petition unless the petitioner attended in person and served him at Minj. The other was at Minj Police station where the petition was handed to a cousin of the second respondent at 5:00 am on 23rd September 2012 and he refused.

5. The petitioner submits that there is sufficient evidence to establish that he made genuine efforts in locating the second respondent but has been unsuccessful. Counsel relies in the newspaper reports in the Post Courier and the National and submits that there is sufficient evidence establishing that the second respondent's supporters had gathered and threatened the petitioner and his supporters, thus preventing them from serving the petition within time. If the respondents contend that the evidence is hearsay, the Court has discretion under section 217 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") to dispense with the strict rules of evidence.

6. The first respondent neither supports nor opposes the application while the second respondent vigorously opposes it and submits that first the circumstances described by the petitioner does not meet the requirements of service under Rule 7(1)(b) of the EP Rules, such that the Court should declare that the petition was served on him. Secondly, there is no evidence or the evidence is hearsay and vague in relation to attempts by the petitioner to serve the petition on him. In relation to the application for extension of time, he says that there is an unexplained period between 09th September 2012 and 20th September 2012, 2 days before the time limit of 14 days expired on 22nd September 2012 as to what the petitioner did to serve the petition on him.
7. It is common ground that pursuant to Rule 7 of the EP Rules the petitioner is required to personally serve the petition on the second respondent, leaving it at the residential address of the second respondent as stated by him in the nomination form with a person who appears to be over the age of 18 years, or serve in other circumstances as the Court may, on application approve. For completeness sake, I set out Rule 7 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."

8. It is also common ground that under Rule 6 of the EP Rules, the petitioner is required to serve the petition on the second respondent within 14 days of the date of its filing. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2. Rule 6 states:

"6. SERVICE OF PETITION ON RESPONDENTS

(1) Within 14 days of the date of filing a petition, the petitioner must serve a copy of the petition on the respondents and must, at the same time, provide the respondents with:

(a) three copies of a Notice to Appear in accordance with Form 1 completed with the title of the proceedings; and

(b) the Registrar's or his delegate's Notice which shall state the date, time and place at which a Directions Hearing will be held and the matters in Rule 12(3).

(2) The Notice referred in Rule 6(1) (b) shall be in accordance with Form 2."

9. The petitioner alleges that the petition was delivered to a cousin of the second respondent at Minj Police Station at 5:00 am on 23rd September 2012. The cousin refused it and it was left on the ground. He relies on an email from Benny Kombuk to Michael Wilson marked as annexure "C" to the affidavit of counsel as evidence of service. The first issue is whether the circumstances described by the petitioner constitute service of the petition on the second respondent. I accept the second respondent's submission that there is no evidence that the petition was served on him at 5:00 am on 23rd September 2012. The email from Benny Kombuk to Michael Wilson is hearsay and therefore inadmissible. For this reason, I am not satisfied that service was effected on the second respondent. I refused the first leg of the application.

10. The second issue is whether the petitioner has established a case for extension of time to serve the petition on the second respondent. I accept that the Court has discretion under Rule 17 of the EP Rules to extend time even after the time limit of 14 days has expired. It states:

"17. RELIEF FROM RULES

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless it is a requirement of the Organic Law on National and Local-Level Government Elections." (Emphasis added).

11. The recent decision in Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission (2012) N4791 reaffirms the proposition that Rule 17 gives the Court discretion to extend time even after the expiry of the time limit of 14 days. In Walter Schnaubelt's (supra), I adopted and applied the principles enunciated by the Supreme Court in Wari Vele -v- Powes Parkop (2008) SC945. I would adopt and apply them in this case as well. They are:

11.1. An explanation for allowing the time limit to expire, a Rule not complied with or otherwise why dispensation is required;

11.2 The application for extension must be made promptly;

11.3. If there is delay, reasonable explanation for the delay;

11.4. The relief sought by the applicant will not unduly prejudice the other party's case; and

11.5. The granted dispensation will enable all of the issues in contention to be promptly brought before the Court without further delay.

12. I also accept that section 217 of the Organic Law on Elections, gives the Court discretion to dispense with the strict rules of evidence. Such exercise of discretion must be based on proper principles of law. First, apart from relying on section 217, counsel for the petitioner did not give any reasons for asking the Court to exercise its discretion under section 215. Except for the evidence of Senior Constable Bram Moea and Senior Constable Iababe Nadabe, no reasons were given by counsel as to why he was unable to call evidence from persons who saw the rowdy supporters of the second respondent at Kudjip market. Secondly, service of a petition is a pre-requisite to the petition progressing further to directions hearing. In my view therefore, the onus is on the petitioner to establish by clear and admissible evidence that he made every effort to locate the second respondent and has been unsuccessful before that discretion will be exercised in his favour. For these reasons, I am not satisfied that the strict rules of evidence should be dispensed with.

13. Except for the evidence of Senior Constable Bram Moea and Senior Constable Iababe Nadabe, the petitioner's case is full of hearsay evidence. For example, counsel deposes at paragraphs 4-6 of his affidavit that:

"4. I was informed by the Petitioner, his servant and agents that they were trying to serve the Second Respondent on 9th September 2012 herein Port Moresby as soon as the Petition was filed. They were advised that the Second Respondent was in his village in Minj, Jiwaka Province. Therefore, the Petitioner's agents or servants travelled up to Minj to serve the Petition.

5. I was advised that the Second Respondent was aware that the petition has been filed challenging his election and was using all means to avoid service. He was staying in his village and could not move around. He advised his supporters to attack anyone who comes to serve the petition. Therefore, the Petitioner, his agents and servants could not serve the petition. The Second Respondent was moving around in Jiwaka Province only in the nights.
   
6. I am informed that the Second Respondent's residential address is his village where he has been staying and therefore the petition could not be served. The Petitioner, his agents and servants were scared of being attacked by the Second Respondent and his servants or agents because he has sent a warning that he will attack anyone who comes to serve the petition."
   

14. In my view, counsel's assertions that the second respondent is avoiding service of the petition, has organised his supporters to attack the petitioner or anyone who attempts to serve the petition on him and issued a warning to the petitioner to cease pursing the petition are very serious and damming allegations. Counsel must be extremely cautious when making such assertions in his affidavit because somebody's reputation and integrity is on the line, in this case, the Governor elect of the new Jiwaka Province. There must be hard evidence to support such assertions and not simply what counsel "heard" or was "informed".

15. The Court is further urged to rely on the newspaper reports by Post Courier and the National dated 24th September 2012 which reported among other things, people of Jiwaka gathered at Kudjip market to protest against the petition by the petitioner and the failure by the petitioner to attend the gathering to present the petition to the second respondent. The evidence is hearsay and is rejected.

16. This leaves the evidence of Senior Constable Bram Moea and Senior Constable Iababe Nadabe. On their evidence, I am satisfied that they went to Banz to serve the petition on the second respondent and he refused. However, as correctly pointed out by counsel for the second respondent, there is an unexplained period of about 2 weeks. This is the period from 09th September 2012 to 20th September 2012 where there is no evidence on what the petitioner did to serve the petition on him. In the absence of such evidence, it is open to the Court to infer that the petitioner made no attempts to locate and serve the petition on the second respondent.

17. The petitioner has lawyers acting for him. He had the benefit of legal advice. His lawyers were supposed to advise him on the options available to him under Rule 7 of the EP Rules if they saw that personal service of the petition was going to be difficult. They had an option to apply to the Court for alternative mode of service, eg. publishing the petition in the newspapers. They did not. It is apparently clear that the attempt to serve the petition on the second respondent at Banz on 20th September 2012 by the two policemen was a belated attempt. The observation I make is reinforced by the belatedness of application. It was filed after the time limit of 14 days had expired.

18. Rules 12 of the EP Rules states that directions hearing shall take place within 28 days from the date of the filing of a petition. The next course of action to be taken by the petitioner is to attend directions hearing. It has been held that service of a petition on the respondents is a pre-requisite to the petition progressing further to directions hearing. If it is not served on the respondents, the petition is incompetent and may be dismissed: Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983.

19. In my view the failure to properly advice the petitioner as to the options available to him is fatal; it could deny him the right to dispute the election of the second respondent in Court. Further, in my view the belatedness of application cannot dilute the seriousness of the default. I have recently held in Walter Schnaubelt's case (supra) that a lawyer's failure to act is not a satisfactory reason to explain a default or ground to set aside a judgment. see also Martha Limitopa -v- Independent State of Papua New Guinea [1988-89] PNGLR 364 and Leo Duque -v- Avia Andrew Paru [1997] PNGLR 378. I consider these principles equally apply here. For these reasons, I am not satisfied with the petitioner's explanation for allowing time to expire.

20. Nonetheless, I am inclined to grant the application because the relief sought by the petitioner will not prejudice the first respondent. The first respondent does not dispute service of the petition. It takes no position on the application. I have also considered the grounds of the petition and they raised allegations of illegality, illegal practices, errors and omissions against the first respondent. There are allegations of illegal appointments of Provincial Returning Officer and Counting Officials and illegal counting after hours, suggesting that ballot papers were falsely counted in favour of the second respondent resulting in the second respondent scoring the highest number of votes and declared winner. The petitioner seeks to have his election declared invalid and for a recount of the ballot papers. In my view, the second respondent is the party that will be greatly affected by these allegations and must also be given that opportunity to respond to the allegations.

21. In the exercise of the Court's discretion under Rule 7(1)(c) and Rule 17 of the EP Rules, I grant the second part of the application and make the following orders:

21.1. Time for service of the petition, notice to appear in Form 1 and notice of directions hearing in Form 2 on the second respondent is extended by a further 14 days from the date of this order.

21.2. Leave is also granted to the petitioner to serve the petition, notice to appear in Form 1 and notice of directions hearing in Form 2 on the second respondent by publishing them once in the two daily news papers, namely Post Courier and the National within the next 14 days of the date of this order.

21.3. Each party shall bear their own costs of the application.

21.4. Time shall be abridged.
____________________________________

Warner Shand Lawyers: Lawyers for Petitioner
Niugini Legal Practice: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent