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Sallel v Gau [2012] PGNC 126; N4816 (5 October 2012)

N4816

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 28 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 RAI COAST OPEN ELECTORATE

BETWEEN

ANDREW SALLEL
Petitioner

AND

JAMES GELAK GAU
First Respondent

Waigani: Makail, J
2012: 01st & 05th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to dismiss petition – Grounds of – Want of service of petition – Application arising from election dispute – Grounds of petition – Bribery against respondent – Court's power of summary dismissal – Exercised where defaulting party is petitioner – Petition dismissed for want of service – National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7 & 18.

Cases cited:

Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012)
Lucas Neah -v- John Thomas Pundari & Electoral Commission: EP No 21 of 2012 (Unnumbered & Unreported Judgment of 26th September, 2012)
William Tongamp: EP No 97 of 2012 (Unnumbered & Unreported Judgment of 28th September, 2012)
Kennedy Wenge -v- Electoral Commission & Gisuwat Mangere Siniwin: EP No 42 of 2012 (Unnumbered & Unreported Judgment of 03rd October, 2012)
Jamie-Maxton Graham -v- Papua New Guinea Electoral Commission & Dr Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983

Counsel:

Mr P Wariniki, for Petitioner
Mr D Dusal, for Respondent

RULING ON APPLICATION TO DISMISS ELECTION PETITION FOR WANT OF SERVICE

05th October, 2012

1. MAKAIL, J: The respondent applies by notice of motion filed on 28th September 2012 to dismiss the petition for want of service pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). 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."

2. On 25th August 2012, the petitioner filed this petition disputing the election of the respondent as member elect for Rai Coast Open electorate in the Madang Province in the 2012 General Elections. He alleges bribery against the respondent. He was required by Rule 6 of EP Rules to serve the petition on the respondent within 14 days. The 14 days expired on 07th September 2012. At the same time, he must provide three copies of Notice to Appear in Form 1 and Notice of Directions Hearing in Form 2. Rule 6 states:

"6. SERVICE OF PETITION ON RESPONDENTS

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

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

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

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

3. The petition was fixed for directions hearing on 24th September 2012 at 9:30 am. Due to the non attendance by the respondent, the Court adjourned the directions hearing to 01st October 2012. Rule 12 of the EP Rules states that directions hearing shall take place within 28 days from the date of the filing of a petition. I repeat what I said in Walter Schnaubelt -v- Hon Byron Chan & Electoral Commission: EP No 12 of 2012 (Unnumbered & Unreported Judgment of 24th September, 2012), Lucas Neah -v- John Thomas Pundari & Electoral Commission: EP No 21 of 2012 (Unnumbered & Unreported Judgment of 26th September, 2012), William Tongamp: EP No 97 of 2012 (Unnumbered & Unreported Judgment of 28th September, 2012) and Kennedy Wenge -v- Electoral Commission & Gisuwat Mangere Siniwin: EP No 42 of 2012 (Unnumbered & Unreported Judgment of 03rd October, 2012) and that is, service of a petition on the respondents is a pre-requisite to the petition progressing further to directions hearing. If it is not served on the respondents, the petition is incompetent and may be dismissed: Hami Yawari -v- Anderson Agiru, David Wakias as Returning Officer & Electoral Commission (2008) N3983.

4. According to the affidavit of Mr David Dusal sworn 27th September and filed on 28th September 2012, on 09th September 2012, the respondent informed counsel that he had received information that an election petition was filed against him by a losing candidate for Rai Coast Open electorate. The Respondent was not served with a copy and instructed counsel to conduct a search at the Waigani National Court Registry. Counsel did that on 10th September 2012 and obtained a copy of the petition.

5. As for the petitioner, counsel relies on the affidavit of service of Steven Etna sworn on 10th September and filed on 11th September 2012 and affidavit of the petitioner sworn and filed on 28th September and submits that the petition was served on the respondent at his residence in Madang on 04th September 2012, well within the time limit of 14 days. Counsel also submits that the respondent avoided service of the petition and for this reason, the petition was left with the family and supporters of the respondent at the residence of the respondent located at allotment 26, section 65, on 04th September 2012 by Steven Etna and two policemen by the names of Inspector J Bando and Sergeant A Michael.

6. This is apparent from the affidavit of Steven Etna where he deposed that at about 7:30 pm on 29th August 2012, he and the two policemen met the respondent at Madang Resort Hotel and attempted to serve the petition on him and he refused. He told them to meet him at the office the next day and failed to show up. Further search for him from 30th August to 04th September 2012 were unsuccessful and the only option was to leave the petition at his residence.

7. Counsel submits that in any case, on 26th September 2012, the petitioner conducted a search of the records kept by the Electoral Commission and obtained a copy of the nomination form for the respondent. The petitioner noted that the residential address of the respondent was Songum village in Madang Province. On the afternoon of 27th September 2012, he attempted to board a flight to Lae/Madang to go to Sogum village to serve a copy of the petition, notice to appear and notice of directions hearing when he met the respondent at the Jackson's airport boarding lounge. He handed over the petition and notice to appear to him and he accepted them and said that he had also obtained a copy of the petition from the National Court Registry.

8. Rule 7 of the EP Rules is very clear on the requirements of service. The petitioner is required to personally serve the petition on the respondent. Alternatively, he may serve by leaving it at the residential address of the respondent as stated by him in the nomination form with a person who appears to be over the age of 18 years, or serve in other circumstances as the Court may, on application approve. Rule 7 is set out in full below:

"7. MODE OF SERVICE

(1) Service under this Rule may be effected by:

(a) personal service; or

(b) in the case of the successful candidate, by leaving it at his or her residential address as stated by him or her in the nomination form, with a person who appears to be over the age of 18 years; or

(c) such other service as the Court may, on application approve.

(2) The Registrar shall send a copy of each petition to the Clerk of Parliament."

9. In my view if the petitioner says that according to the nomination form of the respondent, his residential address is Sogum village in Madang Province, then leaving the petition at the residential address of allotment 26, section 65, in Madang town on 04th September 2012 by Steven Etna and the two policemen is not service under Rule 7(1)(b). In any case, the evidence is vague because first Steven Etna does not name the person who received the petition and secondly, if the person appeared to be over the age of 18 years when he left it at the "doorway" into the residence.

10. Steven Etna and the two policemen could have left the petition on the ground and walked away when they first met the respondent on the night of 29th August 2012, at Madang Resort Hotel. They said they attempted to serve the petition on him and he refused. If they had done that, the petitioner may have a strong case on service if one is to argue that service was effected in accordance with Rule 7(1)(a) of the EP Rules and Order 6, rule 3(1) of the National Court Rules. They did not. Even if the respondent received the petition at Jacksons airport on the afternoon of 27th September 2012, it would be late service because the 14 days expired on 07th September 2012.

11. If the petitioner had found it difficult to locate the respondent to serve the petition on him, he was not left without a remedy at that time. Before the expiry of the time limit of 14 days, he could have made an application under Rule 7(1)(c) for alternative means of service, for example, publishing the petition in the daily newspapers. He had lawyers acting for him and that should have been the most prudent thing his lawyers could have advised him to do. They did not.

12. In the end, I am not satisfied that service of the petition was done in accordance with Rule 7 of EP Rules. That means, the petitioner has failed to serve the petition on the respondent and where a party has not done any act required to be done by or under the EP Rules, the Court has power under Rule 18(1) to summarily dismiss the petition if the defaulting party is the petitioner. On this authority, I uphold the respondent's application and dismiss the petition with costs.
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Wariniki Lawyers & Consultants: Lawyers for Petitioner
Dusal & Associates Lawyers: Lawyers for Respondent