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Chan v Apelis and Electoral Commission (No 1) [1997] PGLawRp 722; [1998] PNGLR 408 (13 October 1997)

[1998] PNGLR 408

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND

IN THE MATTER OF THE DISPUTED RETURNS FOR THE NAMATANAI OPEN ELECTORATE IN THE NEW IRELAND PROVINCE

AND

SIR JULIUS CHAN, GCMG, KBE

V

EPHRAIM APELIS; AND
THE ELECTORAL COMMISSION

WAIGANI: INJIA J
7 October and 13 October 1997

Facts

The petitioner was the runner-up in the 1997 National Elections for the Namatanai Open Electorate. He filed an election petition disputing the election of the first respondent as the Member of Parliament for Namatanai. The petitioner was the third longest serving Member of Parliament since independent when he was unseated by the first respondent who is his cousin.

The petitioner filed his petition on the 39th day of the 40 days required for filing an election petition under s 208(e) of the Organic Law on National and Local-level Government Elections (OLNLGE). The 40th day fell on a Saturday. The petitioner than filed an amendment to the petition on the 42nd day which was the following Monday.

The respondents opposed the validity of the amendment to the petition claiming that it was time barred. The respondents also argued that the original petition should be struck out if the amended petition was rejected by the Court.

Held

1. An election petition filed after the 40 days period cannot be amended thereafter. The 40 days envisioned by the OLNLGE includes weekends.
   
2. An amendment to a petition does not repeal or replace the original petition. The amendment only seeks to alter or amend a part or parts of the original petition.
   

Papua New Guinea cases cited

Biri v Ninkama [1982] PNGLR 342.

Other cases cited

Collins v Hertfordshire County Council [1947] KB 595.

Esbelby v Federated European Bank [1932] 1 KB 254.

Counsel

M Wilson, for the petitioner.
C Narakobi, for the 1st respondent.
J Nonggorr, for the 2nd respondent.

13 October 1997

INJIA J. The first respondent applies to dismiss the amended petition filed on 11 August 1997 on the ground that it was filed outside the 40 days time limit imposed by s 208(e) of the Organic Law on National and Local-Level Government Elections (hereinafter abbreviated OLNLGE). The application is supported by the second respondent.

The following facts are not in dispute. On 30 June 1997 the first respondent was declared the winner of the election for the Namatanai Open Electorate in the National Parliament. The petitioner was the runner-up in that election. Pursuant to s 208(e) of the OLNLGE the petitioner had "40 days after the declaration of the result of the election" to file an election petition under s 206 at the National Court Registry at Port Moresby or at the Court House in a provincial headquarters. The 40th day fell on Saturday 9 August 1997. On Friday 8 August 1997, the petitioner filed a petition at the National Court Registry at Port Moresby. This petition was filed within time. On Saturday 9th and Sunday 10th August which were on the weekend, the National Court Registry at Port Moresby was closed for business. On Monday the 11th, the said registry was open for business as usual. On that day the petitioner filed an amended petition at the National Court registry at Port Moresby. This amended petition was filed on the 42nd day after the declaration and therefore, it was filed out of time.

It is this amended petition, which is the subject of this application. The respondents also seek a dismissal of the original petition if the amended petition is dismissed. I will first deal with the application in respect of the amended petition.

It is submitted for the petitioner that the petitioner could not file the amended petition on Saturday 9th August because the National Court Registry at Port Moresby was not open for business so it was filed on the next available date, Monday the 11th, when the said registry was open for business. It is submitted that this is permitted by Constitution, Schedule 1.16 which provides:

"Effect of Time Limits

(1) Where in a Constitutional Law a time limit is imposed for doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of Subsection (1) is not excluded by a provision that unjustifiably specifies a time limit or a maximum time limit."

The counsels for the respondents submit that the 40 days time limit imposed by s 208(e) of the OLNLGE is mandatory and it cannot be extended by the deeming provision in Schedule 1.16. They refer me to the mandatory provisions of s 208(e) and s 3(2) of the OLNLGE and Schedule 1.1 of the Constitution the combined effect of which they say render Schedule 1.16 inapplicable. To support their contention, they refer me to the Supreme Court decision in Biri v Ninkama [1982] PNGLR 342.

Section 3(2) of the OLNLGE provides:

"Notwithstanding any other law, where a time limit is imposed under this law for the taking of an action, then unless the contrary intention appear, that time limit is mandatory."

And s 208(e) of the same law stipulates that:

"A Petition shall...(e) be filed in the Registry of the National Court at Port Moresby or at the Court house in any provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175 (i) (a)."

Schedule 1.1(i) of the Constitution states that:

"The rules contained in this Schedule (Schedule 1) apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Law."

The principles of law in relation to the interpretation of s 208(e) and s 3(2) of the OLNLGE and Schedule 1.1 and Schedule 1.16 of the Constitution were settled by the Supreme Court in Biri v Ninkama and there is no dispute as to what those principles are. The OLNLGE is a Constitutional Law and s 11 of the Interpretation Act (Ch. No. 2) which applies to interpretation of ordinary statutes has no application to interpreting provisions of the OLNLGE. For the purposes of interpreting s 3(2) and s 208(e) of the OLNLGE, Schedule 1 (which includes Schedule 1.1 and Schedule 1.16) of the Constitution applies. The combined effect of Schedule 1.1 and s 3(2) and s 208(e) in imposing a mandatory time limit of 40 days within which to file an election petition precludes the application of Schedule 1.16 to s 208(e). A petition cannot be amended by the National Court or a petitioner after the expiration of the 40 days time limit.

There is no dispute that the time limit of 40 days imposed by s 208(e) includes all seven (7) days of the week, that is, Monday through to Sunday and this means, both the five (5) weekdays or working days and the two days of the weekend. This accords with s 2(2) of the Practice Directions for Presentation and Conduct of Elections (N/C 2/97) issued by the National Court on 27 June 1997 which provides that "the reckoning of the time limit in sub-section (1) (40 days limit) includes all days of the week, and the time limit cannot be extended". (my emphasis).

Mr Wilson for the petitioner has eloquently sought to distinguish the application of the principles in Biri v Ninkama to the facts of the present case and based his arguments on s 208(e) and the practical application of Schedule 1.16 to the facts of this case. The only basis on which Biri v Ninkama may be distinguished is that in that case the Supreme Court was dealing with the question of whether the National Court had power to amend a petition made outside the two months period imposed by the repealed s 208 (e) whereas in the present case, the petitioner has exercised his right under Practice Direction (NC 2/97) to file an amended petition and the only question before this court is whether the amended petition is deemed to have been properly filed pursuant to Schedule 1.16. Sitting as a National Court, I am bound to apply these principles. In my view however, the principles in Biri v Ninkama are clearly of general application both to an application made to the National Court to amend a petition as well as an amendment filed without leave of the court under s 11 of Practice Direction (N/C 2/97).

For these reasons, the amended petition filed on 11 August 1997 is dismissed.

In contemplation of a ruling in their favour in relation to the amended petition, counsels for the respondents, especially Mr Narokobi submitted that if the amended petition is dismissed, then the original petition should also be dismissed. It is submitted that the amended petition repealed or "replaced" the original petition and substituted it with the amended petition. Mr Wilson counters this argument by submitting that the amended petition only sought to amend certain parts in the original petition and a dismissal of the amended petition does not affect the original petition.

The proposition advanced by Mr Narokobi runs contrary to well and long established principles of judicial practice and procedure. An action is instituted by an aggrieved person by an originating process which in this case is by a petition, which defines a cause of action or claim against a named person(s). An "amendment" simply seeks to amend or alter parts of an originating process without repealing or replacing the original originating process or altering the original cause of action or original claim in the original originating process. It is not in the nature of an "amendment" to repeal, withdraw, discontinue or terminate the entire original originating process or amend the original originating process by introducing a cause of action or claim which is completely new to that pleaded in the original claim in the original originating process: See Collins v Hertfordshire County Council [1947] KB 598, [1947] 1 All ER 633; Esbelby v Federated European Bank [1932] 1 K B 254; (Halsbury's Laws of England Vol. 36 (4th Ed.) para. 64). In the present case, it is clear that the amended petition seeks to simply amend the original petition in respect of certain parts only by adding new parts and deleting certain existing parts whilst the original petition remains on foot. These purported amendments were underlined in a replica of the original petition re-titled "amended petition" and filed in court.

For these reasons, I refuse to dismiss the original petition filed on 8 August, 1997. The original petition therefore remains on foot. Costs is reserved.

Lawyer for the petitioner: Warner Shand Lawyers.
Lawyer for the 1st respondent: Narokobi Lawyers.
Lawyer for the 2nd respondent: Nonggorr & Associates Lawyers.