Yawari v Agiru [2008] PGNC 244; N3983 (27 May 2008)

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PARLIAMENT – Election – Disputed returns – Election petition – Practice and procedure – Amendment of petition – Mistake in relying on affidavit without inviting parties to address on issue raised in affidavit – Power of the Court to correct its own mistake – Service – Service of petition – Requirement of service under Election Petition Rules – Service of Forms 1 and 2 Notices – Service pre-requisite to petition progressing to Directions Hearing.

PARLIAMENT – Election Petition – Election Petition Rules – Requirement of service of Petition – Whether service of petition effected on second respondent – If not, whether petition should be dismissed – Power to dismiss is discretionary.

Organic Law on National and Local-Level Government Elections, ss. 206, 208
National Court Election Petition Rules (as Amended) 2007 rr. 6, 7, 8

Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342
Miki Kaeok v. Rimbink Pato & Masket Iangalio (2005) unreported, SC877, 2nd September 2005
Jay Mingo Pty Ltd v. Steamships Trading [1995] PNGLR 129
Dick Mune v. Paul Poto [1997] PNGLR 356

P. Ame, for Petitioner
C. Copland, for First Respondent
A. Kongri, for Second & Third Respondents

1. SEVUA, J: The petitioner is an unsuccessful candidate in the 2007 National General Elections for the Southern Highlands Province Regional Electorate which concluded in August, 2007. The first respondent is the successful candidate and the current sitting Member of Parliament for that electorate. The second respondent was the third respondent’s officer in charge of elections in the Southern Highlands Province in the 2007 National General Elections. The third respondent is charged with the constitutional function of conducting all elections for the National Parliament.

2. The respondents, at the direction of the Court, made applications to the Court to dismiss the petition following what appeared to be irregularities in the service of the petition and other documents on the respondents.

3. The following factual background will hopefully lead to some understanding and appreciation of why these applications were made and this decision.

4. The Southern Highlands Province Regional Seat was declared on 5th August 2007 when Anderson Agiru, the first respondent, was declared elected.

5. It is a requirement of law pursuant to s.208 (e) of Organic Law on National and Local Level Government Elections (hereinafter the Organic Law), that a petition challenging the result of the election under s.206 of the Organic Law must be filed within 40 days after the date of declaration (my emphasis). In this case, the 40 days period expired on Friday, 14th September 2007.

6. The petitioner filed his petition on 6th September 2007, which was within the 40 days time limit. A sealed copy of the petition was served on the third respondent on 13th September 2007. Another copy was served on the first respondent on 19th September 2007.

7. Unbeknown to the Court, the petitioner had filed an Amended Petition on 14th September 2007, the last day of the 40 days period. This fact was only revealed to the Court on 9th October 2007 when the issue of service of the petition arose. I will revert to this issue later.

8. At this juncture, let me state that on the basis of the petition being filed on 6th September 2007; the Directions Hearing was fixed for 26th September 2007. The Notice of Date, Time and Venue of Directions Hearing or Form 2, had that date inserted on it. That form was filed on 13th September 2007, but it should have been filed on 6th September 2007, together with the petition because by Rule 6 (1) (b) of the Election Petition Rules (the Rules), that Notice or Form must be served with the petition. However, the petitioner failed to comply with that requirement therefore his failure constitutes non-compliance with r 6 (1) (b) of the Rules.

9. The date of Directions Hearing was fixed on the basis of the original petition not on the basis of the Amended Petition. As I alluded to, the amended petition only became known to the Court on 9th October 2007, the date of the Directions Hearing, which will be explained hereunder.

10. This petition was initially set down for Directions Hearing on 26th September 2007 however, for reasons that are no longer relevant today, Directions Hearing was not conducted. Instead it became one of twelve Election Petitions that were listed for re-scheduling on 4th October, 2007. On that date, Directions Hearing was rescheduled to 9th October 2007. At that time, the petitioner did not draw the attention of the Court to that fact therefore the Court was not aware that there had been an Amended Petition filed by the petitioner.

11. On 9th October 2007, the Court proceeded with Directions Hearing under r 12 (3). After Directions had been issued, the issue of the petitioner’s Notice of Motion and service on the respondents were raised by the petitioner’s counsel and having considered those issues now, I am of the view that the petitioner and his lawyers were purposely misleading the Court as to the status of those matters.

12. Having considered the entire evidence in respect of the respondents’ applications and the petitioner’s evidence and response, it becomes evident to the Court that this petition should not have progressed to Directions Hearing. But it did because of certain untruths and lies by the petitioner, his witnesses, and to some extent, his counsel. I will refer to the pertinent matters which have led me to say what I have just adverted to.

13. At the end of the Directions Hearing, Mr. Ame then raised the issue of service of the petition on the second respondent. Mr. Ame started by informing the Court that he had a notice of motion on foot which had not been served on the respondents. In fact, the respondents’ counsels did not have any knowledge of that motion either. Because it had not been served on the second respondent, the petitioner’s counsel suggested that the motion would be withdrawn, but the second respondent should be removed as a party.

14. At that point in time, the Court was of the view that that proposition would amount to amending the petition which Mr. Ame agreed.

15. It must be emphasized by the Court that up to 9th October 2007, neither the Court nor the respondents knew that the petition had been served on the second respondent as there was no affidavit of service. This is a very pertinent issue because it has some bearing on whether or not the Court should believe the petitioner and his two witnesses, Robin Tuna and Jack Wesil. In fact, on that day, Mr. Ame admitted from the bar table that the second respondent had not been served.

16. Following these revelations by Mr. Ame, the Court was of the view that it was too late to raise the issues of service of petition and the notice of motion, which should have been raised at the beginning of that day’s proceedings. That to me demonstrates the attitude of the petitioner and his counsel, which in my view, amounted to misleading the Court and to a certain degree, dishonesty.
17. However, counsel for the first respondent announced that her client took issue with the non-service of the notice of motion and invoked the Court’s discretion under r 18. The submission to dismiss the petition under Rule 18 was just that. There was no formal application or oral application supported by any affidavit. Ms. Copland merely submitted that because the second respondent had not been served and the issue of the notice of motion was raised at the end of the Directions Hearing, the petition should be dismissed.

18. Mr. Kongri, counsel for the second and third respondents said he was not aware that the petitioner’s motion was on foot. His client had not been served therefore he had no knowledge that the petitioner was seeking an order for substituted service. Counsel also raised the issue of non-service of the two forms, Form 1 and Form 2 on the second and third respondents. Form 1 is the Notice to Appear and Form 2 is the Notice of Date, Time and Venue of Directions Hearing.

19. Mr. Kongri finally supported Ms. Copland’s reference to r 18 and also asked the Court to exercise its discretion in favour of his clients and dismiss the petition because the petitioner had not complied with the requirement of the Rules as to service of the petition.

20. In response, Mr. Ame submitted that the respondents have not been prejudiced in any way. In relation to the first respondent, counsel submitted that the non-service of the petition on the second respondent has nothing to do with the first respondent. And in relation to the second and third respondents, Mr. Ame submitted that "in fact we have delivered extra copy of the petition on (sic) the Electoral Commission Office in Boroko." That statement was made in relation to service on Mr. Wakias, the second respondent herein.

21. I have placed emphasis on the above statement because it is quite significant as it is consistent with the evidence of Mr. Wakias and the evidence of the petitioner, therefore that lends support to the respondents’ case. That statement by Mr. Ame is also supported by an affidavit sworn on 19th September 2007 by Isaac Kelly and filed on 21st September 2007. It is Document No. 9. Mr Kelly is in the employ of Mr. Ame.

22. That fact is pertinent to the issue of service on the second respondent, David Wakias, which he raised in his affidavit sworn on 18th October and filed on 22nd October 2007. The significance of these matters will be highlighted later.

23. Mr. Ame continued with some degree of arrogance, if I may add with respect to counsel, and I am sorry to say that, but it was quite evident that Mr. Ame and his client, Mr. Hami Yawari implied that the Court should accept service of the petition on the Electoral Commission as service on David Wakias, the second respondent. They also think that they could also amend the petition by deleting the name of the second respondent well after the 40 days period required by s.208 (e) had lapsed, contrary to the Supreme Court statement of the law in Re Delba Biri v. Bill Ginbogl Ninkama [1982] PNGLR 342 at 347.

24. The law on amending a petition is clear. It is trite law that a petition cannot be amended outside the 40 days period specified in s.208 (e) Organic Law. The Supreme Court has succinctly made it clear.

"Again we are in agreement with the judgment in Mapun Papol v. Antony Temo (supra) at p.180 that these provisions were intended to make a definite cut-off point after which there would or could be no further questions about the results of elections. The electorate is entitled to be in no doubt as to who is its member. The peculiar nature of this jurisdiction and the importance of the public interest of securing an early determination of the matter are relevant considerations against extensions of time and amendments of petitions. See Senanayake v. Navaratne [1954] A.C. 640.

The weight of authority both in our jurisdiction and in other jurisdictions with very similar electoral laws is clearly on the side of disallowing any amendment after the time limit for filing the petition has expired. See In re Manus Provincial Parliamentary Election [1977] PNGLR 354, and per Kearney J. (as he then was) in Re Pomio Open Election (Unreported judgment, dated 18th October, 1977), delivered at Rabaul.

There is a long line of authority for the proposition that there can be no amendment to a petition after the expiration of the time limit, commencing with Maude v. Lowley (1874) [1874] UKLawRpCP 10; L.R. 9 C.P. 165. Then see Clark v. Lowley (1883) 48 L.T. 762, where the court indicated that an amendment would not be allowed where there was "a rigid limit" of time for the presentation of the petition. In In re Norwich Election Petition; Birbeck v. Bullard (supra) the court indicated that if an election petition were an ordinary cause, probably an amendment introducing additional grounds might be allowed but the court was obliged to have regard to the limitation within which a petition must be presented. In Crafter v. Webster (1979) 23 S.A.S.R. 61, the Full Court of the Supreme Court of South Australia said at p.63:

"A rigid limit of time similar to that falling for consideration in the cases to which we have referred is provided in s.170 (1) (e) of the Electoral Act (S.A). In our view the mere fact that the Court has the same powers, jurisdiction and authority as a Judge of the Supreme Court presiding at the trial of a civil cause does not entitle the Court of Disputed Returns to allow an amendment after the expiry of the time limited for filing the petition. For the sake of completeness we refer to Cameron v. Fysh [1904] HCA 49; (1940) 1 C.L.R. 314, in which Griffith C.J. refused an application to amend a petition under the Electoral Act 1902 (Cth) upon the ground that if he were to allow the amendment he would ‘practically be extending the time for filing the petition’."

26. At the end of the arguments by counsels, the Court considered that the petitioner’s notice of motion and the issue of service on the second respondent should have been raised by Mr. Ame and his client either on the 4th October or earlier in the proceedings on 9th October 2007. The Court was not happy with the conduct of Mr. Ame and his client in raising these issues after the matters under r 12 (3) have been completed, and the Court was ready to issue Directions for the further conduct of this matter.

27. In the light of what had transpired on October 9, the Court decided not to issue Directions but adjourned the matter to 11th October 2007 to consider whether Directions should or should not be issued, and to further consider whether or not the petition should be dismissed for non-compliance with the requirement of service under the Rules.

28. On 11th October 2007, the Court delivered its ruling on the above issues. That decision is a matter of public record as the judgment is published.

29. In that judgment, I referred to the respondents’ submissions to dismiss the petition as "the application". On second thought, and upon further consideration, I now acknowledge that I made an error in ruling that "the application to dismiss the petition is declined". I now consider that the respondents’ submissions were not a formal application, but were just submissions to dismiss the petition. In fact, the respondents did not make a formal or oral application to dismiss the petition.

30. Furthermore, the Court did not know that the petitioner had filed the affidavit of Robin Tuna on 10th October 2007. In the process of preparing my written reasons for the ruling for 11th October, I came across that affidavit which influenced my decision in not dismissing the petition.

31. In that affidavit, Robin Tuna swore that he had served the second respondent with the petition on 26th September 2007 at 11.00 am in front of Room 4 at Hotel Poroman in Mt. Hagen. Service was said to have been effected in the presence of a policeman, Jack Wesil.

32. Again, I now acknowledge that I had taken into account the content of that affidavit erroneously, and without giving an opportunity to the respondents to address the Court on that affidavit. The affidavit was not relied on by the petitioner on 9th October 2007 therefore the Court should not have considered it at all in its ruling. By doing so, and without giving an opportunity to the respondents to be heard on that affidavit, I believe I fell into error. What I should have done then was to defer the ruling and recall the matter so that parties can address the Court on the affidavit of Robin Tuna. That would have been the appropriate course of action to take.

33. Subsequent to that, the second respondent filed an affidavit on 22nd October 2007 disputing service by Robin Tuna. The Court will discuss the affidavits when it considers the respondents’ applications, the subject of this judgment.

34. Following its ruling on 11th October 2007, the Court issued various Directions and adjourned the matter to 16th November for Pre-Trial Conference. However, on that date, the Court did not deal with matters under Rule 13 (3) because the issue of service on the second respondent, David Wakias was resurrected. The respondents were of the view that Robin Tuna had misled the Court by swearing in his affidavit that he had served the second respondent whereas the second respondent had filed an affidavit disputing that.

35. Mr. Kongri referred to the affidavit of David Wakias filed on 22nd October 2007 in which David Wakias swore that he was not served with a petition as claimed by Robin Tuna. The issue of service of petition on the second respondent therefore continued to be a contentious issue after the relevant periods under the Rules had lapsed.

36. At that point in time, it became evident that there were a number of irregularities committed by the petitioner and his legal representatives that the Court was not aware of. One such irregularity was the issue of service on the second respondent. It became obvious too that the Court had proceeded with this petition this far on the assumption that service on all respondents had been effected in accordance with the Rules. However as it turned out, the second respondent was disputing the petitioner’s evidence that service had been effected on him (Wakias).

37. The Court then referred to its ruling of 11th October where it declined to dismiss the petition on the basis of Robin Tuna’s affidavit. Because it appeared that there were irregularities that should not have allowed the petition to progress this far, the Court was of the view that Robin Tuna had misled and lied to the Court thus the Court could not proceed to Pre-Trial Conference, and consequently ordered Robin Tuna to appear personally in Court on Monday, 26th November 2007 at 9.30am.

38. On 26th November 2007, Mr. Kongri informed the Court that all Directions had been complied with except the production of electoral records. The Court then ordered that these records be produced by the third respondent as directed on 11th October.

39. As for Robin Tuna, he personally appeared in Court. Again the respondents raised the issue of service on the second respondent and submitted that this issue should be determined prior to Pre-Trial Conference.

40. The Court was of the view that because the issue of service on the second respondent had become a contentious issue; and because I consider that service of the petition is fundamental to the petition proceeding to Directions Hearing, the question whether Robin Tuna lied or fabricated his evidence needed to be addressed then, not later. The respondents’ counsels submitted that the issue should be dealt with then as it was a preliminary issue to be resolved prior to Directions Hearing. I accepted those submissions because I consider that satisfactory service of a petition on the respondents is a condition precedent to the Court progressing the petition to Directions Hearing stage. For without the petition being served, Directions Hearing could not be conducted.

41. Mr. Ame submitted that the Court has already made a ruling based on the evidence, and if Mr. Kongri wanted to take issue with that, the witness was available in Court for cross examination. Secondly, Mr. Ame said he had filed an affidavit to the effect that on 10th October, he was with Robin Tuna and attested Tuna’s affidavit as Commissioner for Oaths, but he had yet to serve that affidavit on the respondents. Mr. Ame also raised the issue of res judicata and submitted that the respondents should have appealed. In any case, he said Robin Tuna is in Court and he could be cross examined.

42. The Court considered that it should address this issue because the veracity of Robin Tuna’s evidence was being challenged and the issue of service of the petition was fundamental to whether the petition proceeded to Directions Hearing or not.

43. In view of what had transpired up to the 26th October 2007, the Court was of the opinion that it needed to resolve the issue of service on the second respondent. Accordingly, the Court ordered the respondents to file and serve formal applications pursuant to r 18 by 29th November 2007 and the applications were listed for hearing on Friday, 30th November at 1.30pm.

44. However, on 30th November 2007, the Legal Training Institute Admissions Ceremony did not end until after lunch therefore it was late to hear the respondents’ applications and so at 3.00 pm the matter was recalled into Chamber where all counsels attended and agreed to adjourn the hearing to 9.30 am on 6th December, 2007.

45. The respondents’ applications were therefore moved on 6th December 2007. It must be reiterated that the respondents’ applications were filed on orders issued by the Court and not otherwise. But on 4th December 2007, the first respondent had filed an Amended Notice to cross-examine the petitioner’s witnesses, Robin Tuna, Philip Ame, Morea Garea, George Yauwe and Jack Wesil. These witnesses were therefore available in Court on 6th December for cross examination.

46. On 6th December 2007, the respondents moved their applications and made submissions. All counsels provided written submissions to the Court, and the Court is thankful to counsels for their assistance.

47. The Court should have, but did not enquire of counsels, as to the best approach to how the proceedings should be conducted on that day because as it turned out, the respondents had made submissions prior to cross-examining the petitioner’s witnesses and I thought that should not have occurred. However, parties were given the opportunity to address the Court after the witnesses were examined therefore; in my view, no one was prejudiced by what appeared to be an unfamiliar procedure.

48. The applications were made in pursuance of r 18 of the Election Petition Rules which deals with summary determination of election petitions. Rule 18 is in the following terms:

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.

49. At the hearing of the applications, the petitioner’s witnesses, Robin Tuna, Jack Wesil, Morea Garea and George Yauwe were cross-examined on their affidavits which the petitioner relied on. Without the need to canvass all the evidence both in the affidavits and in oral examination, I will only discuss the demeanor and credibility of each witness and draw the necessary inferences and conclusions of fact. I will cover the evidence of the first two witnesses together as each supported each other in their evidence as to service of the petition on the second respondent.

50. It should be emphasized and reiterated that the reasons for the Court directing the respondents to file their applications was because of the evidence of Robin Tuna which was disputed by the second respondent.

51. In essence, Robin Tuna deposed to in his affidavit sworn on 10th October 2007 that on 26th September 2007, outside Room 4 at Hotel Poroman in Mt. Hagen, he served the second respondent with a copy of the Petition, Amended Petition, Notice to Appear, and Notice of Directions Hearing contained in a brown envelope.

52. Jack Wesil who is a Constable of Police supported the evidence of Tuna. But in cross-examination, he admitted that he did not know what was in the brown envelope that Tuna had handed to Wakias. I need not cover their evidence in detail as I alluded to.

53. However, I find that both witnesses were not truthful in cross-examination. They were very evasive. They refused to answer certain questions until the Court directed them to. They raised their voices in answering questions as if they were having a heated argument with counsels for the respondents; and generally, their conduct on oath was one which demonstrated they were concealing the truth.

54. Robin Tuna gave three different reasons why he did not provide the proof of service to Mr. Ame immediately after service was effected on 26th September, 2007 as he had claimed. He said he had no money to stay in Mt. Hagen to pursue the transmission of the proof of service to Port Moresby. Then he changed it to having no instructions to return the proof of service to either Mr. Ame or the petitioner. And the third reason was that he just went home. But there is evidence that he had hired a 10 Seater Land Cruiser, and had travelled from Mendi to Mt. Hagen in it in the company of Jack Wesil.

55. If Robin Tuna had no money, how come he hired the 10 Seater Toyota Land Cruiser? Nevertheless, I find it quite strange and unbelievable that, elections being a very big and sensitive issue in the Highlands, Tuna could just hold onto the proof of service until the day Directions Hearing was to take place then telephone the petitioner to find out what to do with the proof of service.

56. That is hardly the action of a honest witness. I find it very strange that having served the petition on the second respondent; he just took the proof of service to his village and did nothing for almost two weeks until the date of Directions Hearing when he inquired with the petitioner and was told to rush the proof of service to Port Moresby. And because he has given three different reasons for not returning the proof of service to the petitioner until the day of the Directions Hearing, his evidence is not credible. I find him to be an untruthful witness and I conclude that he lied on oath in Court. But that’s not the only reason I find him to be a lying witness. There are other reasons which I will refer to.

57. Jack Wesil was formally one of the Close Police Protection personal attached to the petitioner when he was the Governor. Why was he still running around doing the petitioner’s errands when he no longer was attached to the petitioner’s Close Protection Unit as the petitioner was no longer the Governor of Southern Highlands Province? In any case, he did not know what the documents in the brown envelope were as he did not see the documents in the envelope so how did he know those documents were the said documents Robin Tuna said he had served on David Wakias?

58. I have already adverted to the conduct of this witness in the witness box during cross examination. He was evasive; refused to answer some questions until directed by the Court; raised his voice to counsel cross examining him, and his demeanor in the witness box was not convincing. As I have said, I find that he was not a witness of truth.

59. It appears that policemen are running around doing politicians’ errands for money without the authority and knowledge of the Police Commissioner and something should be done to stop this. The Commissioner of Police should stop this practice and discipline members of the Police Force who provide services to the politicians without authority.

60. If both witnesses were in Court to assist the Court in finding the truth on the issue raised, why did they behave in the manner I have described? I consider that their demeanor was not that of witnesses who came to tell the truth in Court.
I do not believe both witnesses as witnesses of truth and I reject their evidence as fabrication and concoction. I am of the view that they lied on oath.

61. Morea Garea is an employee of Air Niugini who gave evidence of making a reservation for Robin Tuna and issuing a ticket on the morning of 9th October 2007 to George Yauwe. However, most of her evidence is hearsay evidence because she had no personal knowledge of some of the things she referred to in her oral evidence. For instance, the time stated on the itinerary receipt, Exhibit "A" and the flight manifest, Exhibit "B" are matters that she did not have personal knowledge of because she said those times were given by the finance staff. Her explanation of times and dates in these documents were contradictory and unconvincing.

62. For instance, she said Robin Tuna flew into Port Moresby on 9th October, 2007 however; the date shown on the two exhibits is 22nd October 2007. Her explanation of that is not convincing. Her explanation as to why the time shown as 0748 am but it was in fact 2.45 or 4.41 pm is totally confusing, contradictory and I find it unacceptable. In any event, she was trying to give evidence of what she did not personally know.

63. But I consider that the important fact is that she did not know Robin Tuna personally; she did not know who he was, and she did not actually see Robin Tuna arrive in Port Moresby on 9th October 2007. Her evidence is therefore unreliable thus the Court will not place any credence to it. It is obvious that she was being used to give evidence which she has no personal knowledge of to support the petitioner, however the Court is unable to accept her evidence as credible evidence.

64. George Yauwe is the final witness for the petitioner. He is an employee of the petitioner’s company in Hohola. He met Robin Tuna on the morning of 10th October 2007 at the petitioner’s office where he also saw Mr. Ame. He said he swore his affidavit at Boroko in Mr. Ame’s office, but the affidavit clearly states it was sworn at Hohola.

65. Having observed the demeanor of the petitioner’s witnesses and perused their affidavits, I am of the view that the affidavits should be rejected for the principal reason that the witnesses did not take an oath before they signed their affidavits. They admitted in cross examination that they did not take an oath prior to signing their affidavits.

66. There were also some conflicting and contradicting aspects of the witnesses’ evidence in relation to their affidavits. George Yauwe said in oral evidence that he signed his affidavit at Mr. Ame’s office at Boroko; however, the affidavit shows it was signed at Hohola. Jack Wesil said he signed his affidavit at Boroko; however the affidavit states the place of signing as Hohola. Morea Garea’s evidence is that she signed her affidavit at Boroko, but the affidavit itself does not state the place she signed the affidavit.

67. The above are discrepancies in respect of the witnesses’ affidavits which add doubts to the issue of truth and credibility of these witnesses. However, the major reason the Court is not able to accept all these affidavits is that they were not signed under oath therefore they are merely self - serving statements with no truth in them, and I cannot attach any weight to them. The affidavits were signed without the deponents swearing an oath.

68. The second respondent, David Wakias did swear an affidavit on 18th October 2007 and filed on 22nd October 2007. In that affidavit, he denied being served a copy of the petition with other documents as stated by Robin Tuna. He said he only signed the proof of service and was tricked by Robin Tuna into signing that document.

69. The second respondent was not cross-examined by the petitioner’s counsel. Counsel did not file any notice under s.36 of the Evidence Act that he required David Wakias for cross-examination. He did not object either to the affidavit of the second respondent. Therefore the Court accepts the evidence of the second respondent that he was not served with a sealed copy of the petition and other documents.

70. The Court accepts the second respondent’s affidavit evidence because it is consistent with one of the petitioner’s witness’ earlier affidavit. I refer to the affidavit of Issac Kelly, a clerk in the employ of Mr. Ame, sworn at Boroko on 19th September 2007. At paragraph 3 he deposed as follows:-

"I also served other copies of the Amended Election Petition on David Wakias on Dianne Hagai at the Office of the Electoral Commission."

71. There can be no clearer evidence of lack of personal service on the second respondent than the affidavit of Issac Kelly. It is consistent with the affidavit of the second respondent that he was not served with the petition and other documents.

72. By law, Ms. Dianne Hagai is not David Wakias, and by the same token, the Electoral Commission is not David Wakias. The petitioner could not effectively serve David Wakias by leaving the petition on both Dianne Hagai and the Electoral Commission. Rule 6 (1) of the Election Petition Rules (as amended) is mandatory for the petitioner to serve a copy of his petition on the respondents, which service must be effected within 14 days from the date of filing. That Rule provides:-

(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).

73. The mode of service of petition in r 6 is personal service; however service can be effected in accordance with an order of the Court on application. Rule 7 provides:-

(a)	personal service; or
(c)	such other service as the Court may, on application approve.

74. From the evidence before me, it is clear and unambiguous that the second respondent was not served with a copy of the petition in accordance with the Election Petition Rules. Furthermore, the petitioner did not obtain leave to serve the second respondent through the Electoral Commission Office in Boroko.

75. The State, the Court, the Electoral Commission, and the first and second respondents have been put to unnecessary expenses by the petitioner in getting his petition this far when it could have been disposed of summarily earlier on if the Court and the respondents had not been taken for a ride by the petitioner and his lawyer.

76. The notice of motion which the Court had referred to earlier in this judgment supports the respondents’ contention that the second respondent had not been served. The fact that the petitioner’s counsel Mr. Ame had suggested on 9th October 2007 in Court that the second respondent be omitted as a respondent in this petition is further testimony to that lack of service on the second respondent.

77. So what better evidence do we need than what the Court has alluded to? The Court has already rejected the oral testimony of Robin Tuna and Jack Wesil for the reasons that have already been given. Their affidavits have also been rejected because they were not sworn under oath. Therefore, in my view, the Court has been misled by the petitioner and his counsel and their witnesses. They have abused the process of the Court and the Court has power to stop its processes from being abused by litigants and their legal representatives.

78. Rule 18 of the Election Petition Rules, which provides for a Summary Determination of a petition, is in the following terms.

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.

79. The Court has a discretion to order the dismissal of a petition where it has not been served on the respondents. This discretion is premised upon a failure to do something that is required to be done under the Election Petition Rules. And furthermore, that discretion is exercised when the Court is satisfied that what is required to be done under the Rules has not been done.

80. In Miki Kaeok v. Rimbink Pato and Masket Iangalio (2005), unreported,
SC 877, 2nd September 2005; the Supreme Court (Sakora, Lenalia & Manuhu JJ.) said at page 3:

"The power to dismiss is a discretionary one which may be exercised if the Court is satisfied that "an applicant has not done any act required to be done by these rules......."

81. The Court in that case was referring to Rule 23 of the Supreme Court Election Petition Review Rules which is in very identical terms with Rule 18 of the National Court Election Petition Rules. I adopt and apply that statement of the law in the present case in respect of Rule 18. It must be reiterated and emphasized that the Court has a discretion to dismiss a petition where a petitioner has failed to serve his petition on a respondent.

82. Mr. Ame’s submissions that the principle of res judicata, and or, estoppel applies here, must be rejected for three reasons. First, election petition is a special jurisdiction of the Court pursuant to the provisions of the Organic Law on National Elections, which primary jurisdiction is derived from s.126 Constitution. As such the Rules of Court in civil litigation and practice and procedure do not apply. As to the application of such Rules, see Biri v. Ninkama (supra) at page 348 where the Supreme Court said the National Court Rules can have no application to election petitions.

83. Secondly, there has been no final judgment in this petition so that the principle of res judicata can be invoked. Furthermore, this is not a common law issue where common law principles may be applied. However, since it has been raised let me refer to the principle, which is clearly stated by the High Court of Australia in Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466 where Fullager, J said

"The rule as to res judicata can be stated sufficiently for present purposes by saying that, when an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action."

84. I consider that reference to ‘judgment’ in that case means a final judgment which disposes of the substantive issues in a case so that the case is finalized and need no further action by any party.

85. In an ordinary civil suit, a defence of res judicata must be specifically pleaded.

86. As to estoppel, I refer to this Court’s judgment in Jay Mingo Pty Ltd v. Steamships Trading [1995] PNGLR 129; where I cited Discount & Finance Ltd v. Gehrigs NSW Wine Ltd & Anor. [1940] NSWStRp 52; (1940) 40 SR (NSW) 598; 57 NW (NSW) 226; where Chief Justice Jordan summarized the different categories of estoppel.

87. As I understand, Mr. Ame correctly referred to estoppel by judgment, which is often referred to as ‘issue estoppel’ and is quite different to res judicata. A concise statement of the rule in issue estoppel or estoppel by judgment is succinctly stated by Dixon, J in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at 531:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

88. As I said earlier, these principles of law do not apply to this case, however I have referred to them because Mr. Ame referred to them in his submissions without providing any authority to support his submissions.

89. The third reason is this, Mr. Ame argued that since I have already made a decision (ruling) I could not allow the respondents application to be made. I have alluded to my error earlier in this judgment. However, I want to fortify my reasons for correcting my error with a very important Supreme Court decision which I consider to be applicable to this situation and the present case.

90. I am of the view that the error I made in relying on the affidavit of Robin Tuna without giving the opportunity to the respondents to address the Court on the same affidavit, is an issue the Court has power to correct and can correct. Therefore I find support from the Supreme Court decision in Dick Mune v. Paul Poto [1997] PNGLR 356; where the Supreme Court describes the power of the National Court to correct its own mistakes.

91. That case was dealing with a situation where the National Court had dismissed a petition and then reinstated it after realizing its error in dismissing it. Various applications for review were filed by both parties and others seeking judicial review pursuant to s.155 (2)(b) Constitution.

"3.	The National Court judge has inherent jurisdiction by common law to rectify a mistake in order to avoid injustice: re. Swire, Mellor v. Swire (1885) 30 Ch D 293 and Milson v. Carter [1893] UKLawRpAC 44; [1893] AC 638 considered and applied.
4.	The power of the National Court to rectify a mistake does not involve a question of appeal to a higher tribunal."

93. The Supreme Court has spoken therefore to add anything more to those principles would only add to confusion, and may amount to pure conjecture. In my view, the principles enunciated by the Supreme Court are abundantly clear that it takes care of the issue of res judicata and estoppel raised by the petitioner’s counsel. Mr. Ame’s submissions are therefore inconsistent with the law as established by Supreme Court in Dick Mune (supra). That decision is binding on this Court by virtue of Schedule 2.9 (1) Constitution therefore I am bound to apply it in the present case.

94. I reiterate that I have acknowledged the error I fell into in relation to Robin Tuna’s affidavit. And after realizing that error, I directed the respondents to make formal applications under r 18. This Court has the power to do what it had done in this case and that is the end of that issue. The Court has power to rectify its on mistake.

For these reasons, and in accordance with Rule 18 (1) of the Election Petition Rules, I order that the petition, EP 46 of 2007 be dismissed with costs to the respondents. I further order that the petitioner’s security for costs in the sum of K5, 000.00 be paid to the respondents as follows, 50% to the first respondent and 50% to the second and third respondents.

Ame Lawyers: Lawyers for Petitioner
Young & Williams: Lawyers for First Respondent
Nonggorr & Associates: Lawyers for Second & Third Respondents

National Court of Papua New Guinea

Yawari v Agiru [2008] PGNC 244; N3983 (27 May 2008)