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Yagama v Uguro [2018] PGNC 68; N7134 (20 February 2018)

N7134

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 70 OF 2017

IN THE MATTER OF A DISPUTED RETURN FOR THE USINO/BUNDI OPEN ELECTORATE

BETWEEN
ANTON FRANCIS YAGAMA
Petitioner

AND
JIMMY UGURO
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
(No.2)

Madang: Toliken J
2018: 19^th & 20^th February

ELECTION PETITIONS - Practice and procedure - Application for dispensation with requirement for service of Objection under Rule 12 of Election Petition Rules - Application made after dismissal of previous Objection to Competency - Whether Court is functus officio - Whether abuse of processes - Whether dispensation will be prejudicial to petitioner - Requirements for dispensation - Election Petition Rules, rr 12, 22.

Cases Cited:

Kubak v Trawen (2013) SC 1250
Special Reference by the Attorney General pursuant to Constitution Section 19 (2016) SC 1534
Vele v Parkop (2008) SC 946
The Right Honourable Sir Julius Chan v The Ombudsman Commission (1999) SC 607
Manase v Polye (2017) N6684
Dop v Goi (2017) N6985
Piari v Samai (2014) N5886 a
Kubak v Trawen (2012) N4992
Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea (No.1) (2018) N7133

Counsel:

P Kuman, for the Petitioner
K Iduhu with H Masiria, for the First Respondent
R Kukari, for the Second Respondent

RULING

20^th February, 2018

1. TOLIKEN J: The First Respondent in this matter first applies to dispense with the requirement for service of this application pursuant to Rule 22 of the Election Petition Rules 2017 (the "Rules") and Section 155 (4) of the Constitution. And secondly he seeks leave to dispense with the requirement of Rule 12 of the Rules to file and serve his Notice of Objection to Competency of the Petitioners petition on the grounds of bribery and undue influence pursuant to Rule 22 of the Rules.
   
2. This was a consequence of my earlier ruling on an application by the Petitioner which challenged the competency of the First and Second Respondent's respective Notices of Objection to competency on the basis that they were filed in contravention of the requirements of Section 12 of the Rules. (see Anton Yagama v Jimmy Uguro & The Electoral Commission of Papua New Guinea; EP 70 of 2017 (No.1)(2018) N7133.
   
3. In support of his motion, the First Respondent relied on his affidavit sworn on 15^th February 2018 and filed on 16^th February 2018, to which several annexures including his Notice of Objection and the affidavit of Hillary Masiria, among other documents.
   

Background

4. The brief background to the matter are succinctly summarised in the Applicant's submission which I respectfully adopt.
5. The Petitioner filed his petition in the matter on 7 September 2017 by causing a Notice of Petition to be published in the National Newspaper on 12 September 2017.
   
6. The First Respondent filed his Notice of Objection to Competency on 03 October 2017, but it was not until 11 October 2017 that the Notice of Objection was served on the Petitioner, when one Constable Eugene Wanai served him the Notice. The Notice was served 8 days after the 21days stipulated by Rule 12 of the Election Petition Rules 2017. Incidentally the Second Respondent also filed an objection to the competency of the petition on 11 October which objection was neither served on the Petitioner nor was it supported by an affidavit as required by Rule 12. This notice was also 8 days late.
   
7. After Directions and Pre-trial, trial was set to run from 12 February to 2 March 2018.
   
8. On 6 February 2018 the Petitioner filed a Notice of Motion seeking to challenge the competency of the Respondents' competency objections.
   
9. On 12 February 2018, I heard both the Petitioner's Notice of Motion as well as the Respondents' objections to competency in Waigani.
   
10. On 15 February 2018, here in Madang , I rendered my ruling. I dismissed the petitioners' respective Notices of Objections for non-compliance with the requirements of Rule 12. I, however, did not rule on the merits of the objections themselves, which, as I intimated in my ruling, the Respondent's were at liberty to raise at any stage during the proceeding.
    
11. The First Respondent then immediately filed the present Notice of Motion when the matter resumed the next day on 16 February, 2018. Incidentally, the Petitioner, through Counsel, advised the Court that he will be abandoning the second count of the two allegations of bribery. The Court was of the view that the Petitioner ought to make a formal application when the matter returns on 19 February 2018 after the weekend break. The Petitioner did not file formally to withdraw the second count of bribery, but sought leave to do so verbally. The Respondents did not object hence the application was granted and that ground now stands withdrawn or abandoned. We are therefore left with one count of bribery and one count of undue influence.
    
12. The Petitioner objected to the First Respondent's Notice of Motion on the basis that the Court is functus officio and for abuse of process.
    

Issues

13. What falls to be determined therefore is whether or not the First Respondent ought to be granted leave pursuant to section 22 of the Rules to relieve himself of the requirements of Rule 12 for service of his Notice of Objection to Competency. This, however, will turn on the question of whether the Court is functus officio and whether the motion is an abuse of process.
    

Functus Officio

14. Mr. Iduhu, for the First Respondent submitted that I am not functus officio. That is, because my decision of 15 February 2018 was in respect of the Petitioner's objection to the competency of the notices of objections by the Respondents to the petition. And despite the fact that those objections were also heard at the same time with the Petitioner's own motion, coupled with the fact that the Respondents' Notices of Objections were dismissed, the objections themselves were not dealt with. It is therefore open to the Court to deal with the current motion, which is coming before it for the first time. The Court is therefore not functus officio. For authority Counsel relied upon the cases of Piari v Samai (2014) N5886 and Manase v Polye (2017) N6684. I will return to these cases shortly.
    
15. Mr. Kuman submitted for the Petitioner that the court has heard full arguments on the issue of competency on 12 February 2018 in Waigani, where the Respondents were allowed to move their objections and the Petitioner Responded fully to the grounds. The Court dismissed the objections on 15 February 2015.
    
16. Mr. Kuman was unable to draw the Court's attention to case authority directly on point, but invited the Court to draw an analogy with the matter of Special Reference by the Attorney General pursuant to Constitution Section 19 (2016) SC 1534, where the Supreme Court dealt with three separate references, two of which concerned the powers, functions and responsibilities of the Public Prosecutor under the Organic Law on the Duties and Responsibilities of Leadership. In that case the Ombudsman had referred the Prime Minister Mr, Peter O'Neill to the Public Prosecutor for prosecution under the Leadership Code. But on receiving the Referral, the Public Prosecutor requested the Ombudsman to collate and submit to him further evidence before he can exercise his powers.
    
17. One of the questions before the Supreme Court was therefore whether the Public Prosecutor was, having formed the view that there were certain further evidence was required before he can form an opinion whether the Prime Minister should be referred to a tribunal, entitled to request the Ombudsman Commission for further evidence to assist him in exercising his powers under the Organic Law on the Duties and Responsibilities of Leadership.
    
18. Counsel relied on Salika DCJ's ruling that once the Ombudsman has referred a matter to the Public Prosecutor for prosecution of the Prime Minister he was functus officio and therefore the Public Prosecutor cannot go back to the Ombudsman Commission and request it to provide with whatever evidence he thought was lacking, or to reinvestigate. Mr. Kuman emphasized that there was a process to follow, albeit administrative.
    
19. Hence, in this case a process is similarly in place that must also be followed. And once the Court has dismissed the Respondents' Notices of Objection it was functus officio and cannot reconsider the issue. So, is the Court functus officio?
    
20. Osborne's Concise Law Dictionary (8th edn) defines the concept or principle of Functus Officio as:
    

[Having discharged his duty]. Thus a magistrate has convicted a person charged with an offence before him, he is functus officio, and cannot rescind the sentence or re-try the case.

21. As one internet site aptly elaborates (to which I am thankful for Mr. Kuman):

Functus officio is the principle in terms of which decisions of officials are deemed to be final and binding once they are made. They cannot, once made, be revoked by the decision maker. Both the granter and receiver of rights know where they stand. The doctrine supports fairness and certainty. ...
...

In Judicial Proceedings

There is no power of review with the Court after judgment has been rendered. ... When an order is passed, it cannot be reviewed. It is principle of law that once matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction ... . The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. [latestsupremecourtjudgments.blogspot.com]

22. What appears clear from these definitions, in the context of judicial proceedings, is that once a court has passed judgment or made a decision, it has discharged its function or duty and therefore lacks further power to make further rulings or take other actions.
    
23. There, however, are exceptions to that general rule, one of which is in respect of interlocutory rulings. The Supreme Court in The Right Honourable Sir Julius Chan v The Ombudsman Commission (1999) SC 607 (per Sheehan and Jalina JJ) held :
    

... [A] Court in making interlocutory decisions is not functus officio i.e. unable to reconsider an order afresh. Rulings so made, are open, upon application pursuant to the rules of that Court to vacate or vary them.

24. His Honour Kariko J followed this case in Piari v Samai (supra). The plaintiff in that matter had sought orders to punish the defendants for contempt of court for allegedly breaching certain ex parte restraining orders. The ex parte orders were made returnable on a specific date for inter parte hearing. The plaintiff did not appear on that day nor did he appear on subsequent dates to which the orders were extended, resulting in the discharge of the orders.
    
25. The plaintiff had argued that the application was functus officio when the ex parte interim orders were issued and the only way they can be disturbed was by way of an appeal to the Supreme Court. His Honour roundly held that the plaintiff's arguments were misconceived as the court there was not functus officio as the orders were interlocutory and returnable for inter parte hearing for which the plaintiff failed to appear. His Honour relied on that statement by the Supreme Court in Chan v The Ombudsman Commission (supra).
    
26. The matter of Special Reference by the Attorney General pursuant to Constitution Section 19 (supra) dealt with the process of investigating and referring leaders for prosecution to the Public Prosecutor by the Ombudsman Commission, and was thus decided appropriately, as the Public Prosecutor would be functus officio once he has formed the opinion that there was not sufficient evidence to warrant him to pursue a prosecution. He cannot do anything else, as the incumbent purported to do in that case, i.e. request the Ombudsman Commission to provide him further evidence. All that was required of him, as the court there said, was to advise the Ombudsman Commission and the leader that he declines to prosecute the matter because of lack of sufficient and cogent evidence.
    
27. Despite Mr. Kuman's submission that the same can be applied to judicial proceedings, and in particular to the procedure in election petitions, I find it difficult to accept this in the context on the previous ruling in the instant case, which, for all intents and purpose was interlocutory in nature. The Public Prosecutor there was not considering an interlocutory aspect of the procedures under the Organic Law on Duties and Responsibilities of Leadership. Rather he was tasked to decide with finality whether there was cogent and credible evidence from which he can ask the Chief Justice to appoint a tribunal.
    
28. In the instant case, there were several applications before the Court which I heard together. I ruled only on the Petitioner's motion challenging the competency of the Respondents' respective Notices of Objection to Competency. I did not rule on the issues raised in the Respondents' objections to competency, which, importantly raised questions on the Court's jurisdiction. Those objections find authority in constitutional law, i.e. Section 210 of the Organic Law on National and Local Government Election which provides in mandatory terms that "Proceedings shall not be heard on a petition unless the requirements of Section 208 and 209 are complied with."
    
29. It should therefore follow, I should think, that a court is not functus officio if it did not adjudicate on an issue that was argued before it, as was the case here.
    
30. It is to be noted, however, that the present application, though it latently or effectively seeks the same result as previously sought, is one that seeks dispensation under Rule 22 of requirement for service of Notice of Objection under Rule 12.
    
31. The application is premised on the well established principle that an objection to competency of a petition may be made at any stage of the proceedings. As to what stage in the proceedings it can be made, may be debatable, but what is clear is that of there is a challenge to the Court's jurisdiction, which an objection to competency really is, then such a challenge must be dealt with at the beginning of the trial. That is in the preliminary stages or where trial has commenced, before evidence is called.
    
32. To postulate that the issue of competency can be raised after the close of a petitioner's case in a "no case" submission is misconceived. That is because a matter that has proceeded to the evidence stage is one that is on all fours, having met the strict requirements of Sections 208 and 209 as reinforced in no uncertain terms by Section 210 of the Organic Law.
    
33. On the issue of whether or not the Court is functus officio, I rule that it is not, primarily because this is a fresh application and that the threshold issue of competency, hence, jurisdiction remains unresolved despite the dismissal of the Respondents' earlier challenge, which, was strictly on the basis of procedural non-compliance and not on the merits.
    

Abuse of Process

34. Mr. Kuman further submitted that the proceedings are an abuse of process for the following reasons:
    
    1. The order sought in the Notice of Motion is vague and confusing, particularly when it seeks "dispensation" when it ought to seek leave for extension of time to file and serve the purported Objection to Competency outside the required 21 days under Rule 12.
    2. But even if it were competent, the affidavit in support offers no reasonable or plausible explanations as to why leave should be granted. There is simply no evidence to show why the deadline was not met in the first place.
    100. The motion seeks to reinstate the earlier Objection to Competency filed on 3 October 2017 which was dismissed on 15 February 2018 for non-compliance with Rule 12 of the Rules.
    4. A lack of respect for the Court and its process by the First Respondent, who, though legally represented throughout, failed to file a cross motion/application to seek for extension of time when the petitioner filed his Motion of 6 February 2018, and by moving the Court from the bar table to invoke Rule 22.
    5. The Objection to Competency filed on 3 October 2017 has been dismissed after full and substantive inter partes arguments on 12 February 2018. The fact that the merits of the objections may not have been ruled on is no good basis to re-open or re-argue the Objections.
    6. The Court has pronounced its decision on 15 February 2018 and that should be the end of the matter. Here the Petitioner refers to the Heading of the judgment and paragraph 6 thereof wherein the Court said " I heard the Petitioners motion and the Respondents' objections to the petition together and adjourned for a decision to be handed down." which he says put an end to the objections.
    7. That at para. 8 of the Court's ruling, it was clear what the basis of the ruling was when it said "I will deal with the Petitioner's Objection to the Respondents' Objections to Competency first. My ruling on this will impact on the Objections by the Petitioners. If I uphold the Petitioner's Motion, the matter will proceed to trial without the necessity to consider the Respondents' competency objections. Conversely, if I deny the Petitioner's Motion, I will then have to rule on the Respondents' objections, and the matter may or may not proceed to trial at all."
    8. That it was on the basis of full argument that the Petitioner conceded and abandoned the allegation on "errors and omissions" in open Court.
    9. The only option open to the First Respondent was for him to file a review in the Supreme Court.
    10. ...
    11. The First Respondent can raise the issue of competency at the close of the Petitioner's case in a "no case submission."
        
35. Mr. Iduhu responded that there is no abuse here for the same reason that the issue of competency was never resolved by the Court. Counsel pointed out to the Court that the initial failure of the First Respondent's lawyers to serve his Notice of Objection to the Petitioner was because he did not initially have a lawyer and therefore there was some difficulty locating him. Be that as that may, that no longer is of any consequence because the current issue is whether leave should be granted to dispense with the requirements of Rule 12. And this question has never been considered by the Court. What was considered there was the Petitioner's application under Section 155 (4) of the Constitution to dismiss the Respondents' objections on the basis that it was served out of time. No similar motion has been put before or considered by the Court until 15 February 2018 then the Petition filed the current Notice of Motion.
    
36. My short answer to the Petitioner's submission that this application is an abuse of process is that it is not. As I already alluded to above, this is a fresh application, wherein the First Respondent seeks to avail himself of the opportunity to challenge the competency of the Petition, an opportunity which will be lost to him, should the Court proceed to hear evidence, which in itself will be tantamount to acceptance of the competency of the petition - a matter which they have rigorously challenged. And the First Respondent is well within his right to do so because even though the Court has heard submissions on competency, it did not render a ruling.
    
37. There is no doubt that some prejudice will be occasioned on the Petitioner who has obviously brought witnesses in from the hinterlands of Madang. However, prejudice, whether real or perceived, must be weighed against the strict constitutional imperative of Section 210 of the Organic Law, so that no incompetent petition should proceed to trial, because a court that proceeds to trial on an incompetent petition would be acting without jurisdiction.
    
38. The case of Kubak v Trawen (2012) N4992, is squarely on point here. There His Honour Kariko J had allowed an 11^th hour verbal application by the fourth respondent challenging the competency of the petition for failing to comply with Section 208(a) of the Organic Law. His Honour upheld the objection and dismissed the petition despite the fact that it did not comply with the time prescribed by National Court Practice Direction (Election Petitions) No. 2 of 2012 which required that an objection to competency shall be filed "within 21 days of service of the petition."
    
39. Kubak applied to the Supreme Court for review but his application was refused by His Honour Injia CJ who said:
    

6. ... The objection in this case was filed outside of the time stipulated in that Practice Direction, without first obtaining an order dispensing with the requirement of that practice direction. The trial judge dealt with the issue of late filing and concluded that in the interest of preserving the dictates of OLNLLGE, s 210 and the principle that competency issues may be raised at any stage of the proceedings, the objection should be allowed to be filed in Court and argued. The objection was argued and determined. I find no error in the exercise of discretion on the reasons given. This point therefore does not raise an important point of law that is not without merit. [Kubak v Trawen (2013) SC 1250]

40. The facts of Kubak v Trawen are easily distinguishable from the current case. In Kubak v Trawen, there was an 11^th hour application which was heard and determined. In the current case the Notices of Motion were heard, but not determined because the Court dismissed the objections purely on procedural grounds.
    
41. The First Respondent, is therefore entitled to seek a ruling on the issue of competency, and the only way he can do that is by taking out the current proceedings, otherwise he will allow an otherwise potentially incompetent petition to go to trial. And the Court is duty bound to hear him out and rule accordingly before it proceeds any further.
    
42. In hindsight, and I say this with a certain degree of forthrightness, we have been led to this situation principally by default as a consequence of the Court's earlier ruling. Had I ruled against the Petitioner's challenge to the Respondents' Objections to Competency, the issues confronting us now will not have arisen.
    
43. This application is therefore not an abuse of process. I now turn to the issue of whether the First Respondent had discharged the requirements for dispensation of the Rules.
    

Requirements for Dispensation

44. Rule 12 of the Election Petition Rules 2017, provides –
    
    12. Objection to competency
        

A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —

(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and

(b) serve a copy of the objection on the petitioner and on each of the other respondents; and

(c) file and serve all affidavits in support of the objection.

45. Rule 22, however, allows a respondent to apply to the court to dispense with a requirement of the Rules, unless the rule is a requirement of the Organic Law. Rule 12 provides –
    
    22. 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 the rule is a requirement of the Organic Law.

46. Mr. Kuman did not address the Court directly on this point, but did raise points that touch on this issue in his arguments on abuse of process.
    
47. Mr. Iduhu, on the other hand, submitted that the First Respondent has met the requirements for dispensation, which he said, in reliance on Dop v Goi (2017) N6985 (Makail J), must be exercised on proper principles. There His Honour Makail J, when dispensing with the requirements of Rule 12, adopted and applied Vele v Parkop (2008) SC 946 from which judgment the following principles can be derived:
    

1. An explanation for allowing the time limit to expire, why a rule was not complied with or otherwise why dispensation is required.

2. The application for extension of time must be made promptly.

3. If there is delay reasonable explanation for the delay

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

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

48. And on this point, Counsel again relied on Kubak v Trawen (supra) which as we have seen was a case where no formal application was made, but the trial judge nevertheless allowed and determined the application after having allowed the fourth respondent in that matter to provide particulars of the alleged non-compliance with Section 208 of the Organic Law, a consideration of the requirement of Section 210 of the Organic Law and that the issue of competency can be dealt with at any stage of the proceedings.
    
49. Relying on the affidavit by the First Respondent and Ms. Masiria, Mr. Iduhu submitted that the time limit for objections lapsed on 03 October 2017, the day on which the original Objection was filed. The Objection was, however, not served on the Petitioner until 11 October 2017 (8 days late) because the Petitioner did not, at that time, have a lawyer on record, and it took quite a while for him to be located. The First Respondent had to seek the assistance of a Police officer to effect service on him on 11 October 2017.
    
50. The present application was filed on 16 February 2018, a day after the Court dismissed the Respondents' Objections to Competency on 15 February 2018, hence, there was no delay.
    
51. Mr. Iduhu submitted that there is no prejudice on the Petitioner as the First Respondent is not raising any new grounds of objection - the grounds being similar to those raised in the 03 October 2017 Objections to which the Petitioner has already filed submissions and argued them. He therefore has had sufficient time to consider the objections and argue them.
    
52. And lastly, because Objections go to the issue of jurisdiction of the Court, they can be raised at any stage during the proceedings. The Petitioner raises serious allegations of bribery committed by third persons in breach of Section 215 of the Organic Law and Section 103 (a)(i)(iii)(d) of the Criminal Code for which the pleadings lack sufficient facts to satisfy the elements of the offences, and hence offend Section 208 of the Organic Law. Therefore they must not be allowed to go to trial as that would offend Section 210 of the Organic Law.
    
53. So has the First Respondent met the requirements to dispense with the requirements of Rule 12?
    
54. Firstly, this is a fresh application and is quite different from the one that had been dismissed for non-compliance with Rule 12. Hence I accept that it was served almost immediately and without delay after the ruling of 15 February 2018. As to why the first objection was not served promptly on the Petitioner and in contravention of Rule 12, I am satisfied that service was not possible because he Petitioner could not be located as he did not have a lawyer on record then.
    
55. On the issue of undue prejudice on the Petitioner, I repeat what I have said above - that any prejudice must be weighed against the clear and unambiguous dictate of Section 210 of the Organic Law. And in this case, the Objection challenges the competency of the petition for non-compliance with Section 208 (a) of the Organic Law and that surely must take precedence over anything else. The cost of bringing witnesses in for trial is something that is unavoidable and can be easily allayed with orders for costs at the end of the trial. I am satisfied therefore that there is no undue prejudice on the Petitioner.
    
56. Finally, there are serious issues in contention here which require a ruling by the Court. As I said above, the petition cannot be allowed to proceed if it is lacking in relevant and material facts as provided by Section 208(a) of the Organic Law. To allow the petition to proceed without scrutiny would be to circumvent the clear dictate of Section 210 of the Organic Law.
    
57. This is not an issue that can be argued at the close of the Petitioner's case for reasons I have alluded to above. Pertinently, a "no case" submission in a criminal matter, presupposes that the indictment is not defective and that it alleges all the necessary elements of the charge. An indictment that does not satisfy those requirements may therefore be quashed on application by an accused. And this is done before the indictment is put to the accused. A "no case" submission will primarily be granted if the evidence adduced by the prosecution does not establish an essential element of the charge under enquiry.
    
58. An objection to competency under the Election Laws and Rules are analogous to a motion to quash an indictment and must therefore be heard and determined before evidence is called. If a petitioner fails to lead evidence to support his allegations, then a "no case" submission can be appropriately made. And this applies with more force for allegations of bribery and undue influence as reference to these offences under Section 215 is a reference to these offences under the Criminal Code.
    
59. I therefore rule that the First Respondent has met all the requirements for dispensation with the requirements of the Rules.
    
60. All things considered, the motion is therefore allowed and the orders sought are granted.
    
61. Finally, since I have already heard submissions on the issue of competency, if the parties agree, I can simply make a ruling without having to hear fresh arguments.
    
62. That is my ruling and I order accordingly.

_______________________________________________________________
Kuman Lawyers: Lawyer for the Petitioner
Fairfax Legal PLN: Lawyer for the First Respondent
Kimbu & Associates Lawyers: Lawyer for the Second Respondent