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Leonard v Wesly [2013] PGNC 87; N5105 (25 March 2013)

N5105

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 65 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 SAMARAI-MURUA OPEN ELECTORATE

BETWEEN

ISI HENRY LEONARD
Petitioner

AND

GORDON WESLEY
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2012: 20th December & 2013: 25th March

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Application arising from election dispute – Failure to file proof of service – Service of petition – Service on first respondent – Whether default sufficient ground to dismiss petition – No dispute as to service of petition – Application refused – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7 & 8.

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for security for costs – Additional security for costs to prescribed minimum amount of K5,000.00 paid on filing of petition – Application arising from election dispute – Inherent powers – Relevant principles of – Party acting in bad faith – Delay in settling earlier order for cost – Interests of justice – Application granted – Constitution – Section 155(4) – Organic Law on National and Local-level Government Elections – Section 209.

Facts

The first respondent applied to dismiss the petition on the ground that the petitioner failed to file a proof of service of the petition as required by Rule 8 of the National Court Election Petition Rules 2002 (as amended). In the alternative, he applied for security for cost of K50,000.00. At the same time, the petitioner applied for interim restraining orders to stop the first respondent, his servants and agents, including policemen from threatening, intimidating, assaulting and interfering with him, his witnesses and family members until the determination of the petition.

Held:

1. Unless service of a petition is in issue, a failure to file a proof of service of the petition within 14 days after service of the petition under Rule 8 of the National Court Election Petition Rules 2002 (as amended) is not a sufficient reason to dismiss a petition.

2. In election petitions, section 209 of Organic Law on National and Local-level Government Elections prescribes the minimum amount of K5,0000.00 for security for costs. The National Court has inherent powers under section 155(4) of the Constitution to make order for security for costs in addition to the prescribed minimum amount of K5,000.00.

3. The amount to be awarded over and above the security deposit of K5,000.00 is a matter of discretion. K25,000.00 was considered fair and reasonable. The petitioner was ordered to give security for costs in the sum of K25,000.00.

Cases cited:

SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349
David Lambu -v- Peter Ipatas & Electoral Commission: (1999) SC601

Counsel:

Mr P Mawa, for Petitioner
Mr H Leahy, for First Respondent
Mr T Dalid, for Second Respondent

RULING

25th March, 2013

1. MAKAIL, J: The first respondent applied to dismiss the petition on the ground that the petitioner failed to file a proof of service of the petition as required by Rule 8 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). In the alternative, he applied for security for cost in the sum of K50,000.00. At the same time, the petitioner applied for interim restraining orders to stop the first respondent, his servants and agents, including policemen from threatening, intimidating, assaulting and interfering with him, his witnesses and family members until the determination of the petition.

2. The first respondent relied on the following affidavits:

2.1. Affidavit of Search of Clera Aisi sworn and filed on 19th December 2012;

2.2. Affidavit of Vicky Baloiloi sworn and filed on 18th December 2012;

2.3. Affidavit of the first respondent sworn and filed on 21st November 2012;

2.4. Affidavit of Gregory Celestine sworn and filed on 22nd November 2012; and

2.5. Affidavit of Service of Peter Laka sworn and filed on 20th November 2012.

3. The petitioner relied on the following affidavits:

3.1. His affidavit in opposition sworn on 26th November and filed on 28th November 2012; and

3.2. His further affidavit in opposition sworn and filed on 28th November 2012.

4. Counsel for the parties have made submissions on each application and I have considered them.

Dismissal of petition

5. I deal first with the application to dismiss the petition. I have said in a number of cases decided before this one that 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."

6. It must be exercised based on proper principles of law. It must be established that a party has defaulted or failed to comply with the requirements of the EP Rules and the onus is on the applicant to establish the default or breach. From the various affidavits, there is no dispute that the petitioner did not file a proof of service. The petitioner is therefore in breach of Rule 8. Should the petition be dismissed then? The petition was fixed for directions hearing on 01st October 2012. All the parties were represented by counsel at the directions hearing. The Court issued a number of directions for parties to progress the petition to trial, including filing and serving of affidavits. At that time, no issue was raised by the first respondent on the failure by the petitioner to file a proof of service of the petition. This issue was raised at the status conference.

7. I accept the submissions of the first respondent supported by the second respondent that election petitions are serious matters as they challenge the wishes of the majority of the voters. It is therefore imperative that petitioners must strictly comply with the requirements of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections") and the EP Rules when prosecuting them: see SCR No 04 of 1982: Delba Biri -v- Bill Ninkama [1982] PNGLR 349.

8. I also accept their submissions that the filing of a proof of service is a mandatory requirement under Rule 8 of the EP Rules. This is because it precedes Rules 6 and 7, which Rules require that the petitioner must serve the petition on the first respondent and also prescribe the mode of service. I agree that the issue of service of the petition goes to the foundation of the petition. It is for this reason that the petitioner must file a proof of service to prove that the petition was served before the petition can progress to trial. Having said that, I am not satisfied a failure to comply with this requirement is fatal.

9. The application is based on the lack of proof of service and not on service of the petition. In my view, these are two distinct requirements under the EP Rules but are complementary. The combine effect is that they go to establishing service of the petition. If the respondents' case is premised on the fact that the petitioner did not serve the petition on them, then complying with Rule 8 becomes necessary. But that is not the case here. In my view, a failure to file a proof of service does not necessarily mean that a petition is not served. This is where I have to agree with the petitioner's submission that while he has not filed a proof of service, the first respondent has not denied being served with the petition.

10. Moreover, the first respondent's conduct as represented by counsel at the directions hearing on 01st October 2012 and not taking issue with service at the first given opportunity is an admission that the petition has been served. In other words, unless service of the petition is in issue, a failure to file a proof of service of a petition within 14 days after service of the petition under Rule 8 is not a sufficient reason to dismiss a petition. For these reasons, I find the application is misconceived and is refused.

Security for costs

11. In relation to the application for security for costs, the first respondent asked the Court to invoke its inherent powers under section 155(4) of the Constitution to order the petitioner to give security for costs in the sum of K50,000.00. He gave two reasons for making this application. First, the petitioner is guilty of delay of over 10 years to pay his costs in a previous election petition case from the 2002 General Elections. The petitioner has not explained why it has taken him so long to pay him. It was after he gave notice of his intention to apply for a stay of the current proceedings that the petitioner paid the outstanding costs in the sum of K25,000.00. Secondly, the petitioner's claim is not genuine. Evidence of the petitioner's bad faith is in the affidavit of Gregory Celestine (supra) where this witness said that his affidavit in support of the petitioner's case was fabricated because he did not swear it.

12. The petitioner submitted that the Court has no power to order him to give security for costs over and above the security deposit of K5,000.00 which he paid on filing of the petition pursuant to section 209 of the Organic Law on Elections.

13. The first issue is whether the Court has power to order security for costs separately from the security deposit of K5,000.00 under section 209 (supra). Secondly, if the Court has power, how should it be exercised and finally, how much should be awarded? In election petitions, section 209 states that at the time of filing the petition, the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs. This is the sum the petitioner must pay upfront when he files the petition and it is held by the Registrar as security for costs. In my view, it is the prescribed minimum amount fixed by Parliament to cater for costs incurred by respondents in defending a petition. It is also a requisite of a petition as section 210 states that proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.

14. Given this view, I am further of the view that whether additional security for costs should be given is a matter of discretion. This is so because it is not unusual or extra ordinary as cost of litigation do increase as the case progresses. It depends very much on the complexity of the petition and its duration. There may be cases where costs will increase beyond K5,000.00. In such a case, it would be wrong and mischievous to say that the National Court has no power to order security for costs over K5,000.00. Surely the National Court must have some power and that power is found in section 155(4) of the Constitution. It is the inherent power of the Court to do justice in the circumstances of the case. For these reasons, I am satisfied that I have the power to make an order for security for costs in addition to the prescribed minimum amount of K5,000.00 under section 209 (supra).

15. The exercise of the inherent power is discretionary. It must be exercised based on proper principles of law. In David Lambu -v- Peter Ipatas & Electoral Commission: (1999) SC601, the Supreme Court in adopting the words in section 155(4) of the Constitution said that the ultimate test should be whether it is in the interests of justice to make or not to make an order for security for costs having regard to all the circumstances of the case. When I look at the entire circumstances of the case, one matter that favours the first respondent is the delay by the petitioner to pay costs of the previous election petition from the 2002 General Elections. The delay was 10 years and the costs was K13,893.00.

16. The petitioner does not deny these matters, except to say that he was not aware. Of course, the first respondent should have taken out enforcement proceedings to recover the outstanding costs but that would be asking too much from him. After all, he has had his costs taxed, obtained a certificate of taxation which was served and the petitioner was obliged by law to pay. Then without paying, he contested the 2012 General Elections and was again, unsuccessful. He then filed this petition and again, without paying the first respondent's costs.

17. It was only after the first respondent threatened to apply to stay proceedings that he paid costs in the sum of K25,000.00 inclusive of outstanding and current costs. This was on 15th October 2012 when parties were attending to directions issued by the Court on 01st October 2012. In my view, the petitioner's past conduct says it all. This is a person who is unlikely to pay costs if his petition is unsuccessful. In addition, apart from paying K25,000.00, there is no evidence from him that he has the ability and capacity to pay costs arising from this proceedings.

18. As to the first respondent's assertion that the petitioner's petition is not genuine, I do not consider it necessary to rely on it. The suggestion that the affidavit of Gregory Celestine was fabricated is a matter for trial. It should be best left for the trial judge to decide. That said, I am satisfied the petitioner should be ordered to give additional security for costs.

19. The final issue is the amount the petitioner should give as security for costs. By law, K5,000.00 has been paid. I re-iterate, the sum of K5,000.00 is the prescribed minimum amount. In my view, the amount to be awarded over and above the security deposit of K5,000.00 is a matter of discretion. In considering the amount, I am mindful that it must not burden the petitioner such that it renders it impossible for him to prosecute the petition. The undisputed evidence is that the first respondent's lawyers have rendered to the first respondent a bill of K53,915.00. The first respondent has asked for K50,000.00. This is roughly the amount of costs already incurred by him. No serious objection has been taken by the petitioner in response.

20. I am of the view that since the petitioner has paid K25,000.00 which covered costs incurred in the earlier election petition as well as part of the current costs, K25,000.00 is fair and reasonable. In addition, the petitioner has paid K5,000.00. K5,000.00 plus K25,000.00 will give K30,000.00 which in my view is sufficient to cater for the first respondent's costs. For these reasons, I order the petitioner to pay K25,000.00 to the Registrar of the National Court within 14 days of this order.

Interim restraining order

21. The final application is the petitioner's application for interim restraining order to stop the first respondent, his servants and agents, including policemen from threatening, intimidating, assaulting and interfering with him, his witnesses and family members until the determination of the petition. The first respondent did not oppose the application but submitted that no orders should be made against the policemen. The reason being that they are investigating a case of forgery by the petitioner where it is alleged he forged Mr Celestines' signature in one of the affidavits purportedly sworn by Mr Celestine in support of his case.

22. As the application is not opposed and having satisfied myself as to the basis of the application, I grant it in so far as it restrains the first respondent, his servants and agents from threatening, intimidating and assaulting the petitioner, his witnesses and family members until the determination of the petition. I refuse to restrain the police because if I do, it would be interfering with their work. They should be allowed to investigate the complaint of perjury against the petitioner notwithstanding the proceedings before the Court.

Order

23. The orders are:

23.1. The application to dismiss the petition is refused.

23.2. The petitioner shall pay K25,000.00 as security for costs to the Registrar of the National Court within 14 days of this order.

23.3. The first respondent, his servants and agents are restrained from threatening, intimidating, assaulting and interfering with the petitioner, his witnesses and family members until the determination of the petition.

23.4. Costs shall be in the cause.
______________________________________________________________
Paul Mawa Lawyers: Lawyers for Petitioner
H. J. Leahy Lawyers: Lawyers for First Respondent
Parua Lawyers: Lawyers for Second Respondent