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Abal v Ganim [2012] PGNC 166; N4841 (24 October 2012)

N4841

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 61 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 WABAG OPEN ELECTORATE

BETWEEN

SAM TEI ABAL
Petitioner

AND

ROBERT SANDAN GANIM
First Respondent

AND

MAKU KOPYAYA-THE RETURNING OFFICER
FOR WABAG OPEN ELECTORATE
Second Respondent
AND

ANDREW TRAWEN-THE CHIEF ELECTORAL COMMISSIONER
Third Respondent

AND

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Makail, J
2012: 09th & 24th October

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to strike out petition – Application arising from election dispute – Grounds of – Irregular service – Service at wrong residential address – Residential address in nomination form vague – Ground misconceived – Application dismissed –National Court Election Petition Rules, 2002 (as amended) – Rules 6, 7(1)(b) & 18.

Facts

This is an application to strike out the petition pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). It arises from an election dispute between the petitioner and respondents where the first respondent was returned as member-elect for Wabag Open Electorate following the 2012 General Elections. The ground being that service of petition was in breach of Rule 7 of the EP Rules, hence irregular. The first respondent contends that the petition was left at the wrong residential address. First it was left at Teremanda Guest House and secondly, at a residence at Premier's Hill. The petitioner contends otherwise and says that he served the petition at the correct residential addresses.

Held:

1. Unless it is expressly stated or some evidence in the nomination form of a candidate that it is the residential address of the candidate, a guest house is a place of business and does not fall within the definition of a residential address under Rule 7(1)(b) of the National Court Election Petition Rules, 2002 (as amended).

2. On the evidence, the first respondent failed to establish that residential address at Premier's Hill was wrong. Accordingly, service of the petition at the residential address was not irregular.

3. The application was based on misconceived ground and refused with costs.

Cases cited:

Darryl Jee -v- Hon Ben Micah & Electoral Commission: EP No 19 of 2012 (Unnumbered & Unreported Judgment of 12th October 2012)

Counsel:

Mr G Manda, for Petitioner
Mr J Issac, for First Respondent
Mr H Viogo, for Second, Third & Fourth Respondents

RULING ON APPLICATION TO STRUCK OUT PETITION

24th October, 2012

1. MAKAIL, J: This is an application to strike out the petition pursuant to Rule 18 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). It arises from an election dispute between the petitioner and respondents where the first respondent was returned as member-elect for Wabag Open Electorate following the 2012 General Elections. The ground being that service of petition was in breach of Rule 7 of the EP Rules, hence irregular. The first respondent contends that the petition was left at the wrong residential address. First it was left at Teremanda Guest House and secondly, at a residence at Premier's Hill. The petitioner contends otherwise and says that he served the petition at the correct residential addresses.

2. The power to dismiss is an exercise of judicial discretion. It must be exercised based on proper principles of law. The onus is on the applicant, in this instance, the first respondent to establish that there is a default or failure by the petitioner to comply with the requirements of the EP Rules. He must establish that the petitioner failed to serve the petition. He must establish that the residential addresses where the petitioner served the petition were wrong.

3. In this respect, according to his affidavit sworn and filed on 27th September 2012, the first respondent says that he does not live at Teremanda Guest House or a house at Premier's Hill. He says his residential address as stated by him in his nomination form is Wabag. In Wabag, he lives in his wife's house at Teremanda located on the side of the main highway that leads to Laiagam and Porgera. He does not know the person Bui Peter who is said to have received the petition in his absence at the premises of the Guest House at 3 o'clock in the afternoon on 10th September 2012. He says that following his declaration as winner of the Wabag open seat, he stayed at home in Teremanda village and Wabag Town for 2 days before he travelled to Port Moresby on 26th July 2012. He also resides in Port Moresby because he has a house at Gerehu Stage 2 and the petitioner should have served the petition there. He says that he learnt of the petition when he read about it in the newspaper.

4. His witness David Pone in his affidavit sworn and filed on 02nd October 2012 says that he is a security guard employed by the Enga Provincial Government and looks after all the houses at Premier's Hill in Wabag owned and occupied by public servants or employees of the Enga Provincial Government. He says that the first respondent lived in one of the houses at Premier's Hill when he was the Education Advisor in the Department of Enga. He no longer lives there after he resigned to contest the Wabag open seat and eventually won. At about 11 o'clock in the night of Friday 14th September 2012, he was on duty at Premier's Hill and a police vehicle came and stopped where he was standing. A policeman got out of the vehicle and handed him a yellow envelope. The policeman told him that it was for the member and he could open it and see the contents if he wanted to. The policeman left in the vehicle. He did not pass the envelope to the first respondent because he did not know his new residential address.

5. The petitioner's witness, Constable Wauyari Kenneth in his affidavit of service sworn on 22nd September and filed on 24th September 2012 says that he served the petition on the first respondent by leaving a copy including the notice to appear in Form 1 and notice of directions hearing in Form 2 with a person called Bui Peter at the premises of the Guest House at 3 o'clock in the afternoon on 10th September 2012. He annexes a copy of the nomination form of the first respondent which shows Wabag as the residential address of the first respondent. It also states that the first respondent lived in Wabag from 2006 to 2012. In his further affidavit of service sworn on 22nd September and filed on 24th September 2012, he says that he served the petition on the first respondent by leaving a copy including the notice to appear in Form 1 and notice of directions hearing in Form 2 with Tipi David Puni, the gate keeper to the residence of the first respondent at 8:10 pm on 13th September 2012.

6. From these affidavits, it is not disputed that the petition was not served on the first respondent in person. Thus, Rule 7(1)(a) does not apply in this case. The first respondent contends that the petition was purportedly served at his residential address at two different locations; one at Teremanda Guest House and the other at Premier's Hill. According to Rule 7(1)(b), the petitioner is required to serve the petition on the first respondent by leaving it at the residential address stated by him in the nomination form with a person who appears to be over the age of 18 years. Rule 7 states:

"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." (Emphasis added).

7. It is common ground that the residential address stated in the nomination form is Wabag. It does not state Teremanda Guest House or Premier Hill. I am of the view that the residential address of Wabag is vague. But that does not mean that the first respondent does not have a residential address in Wabag. The residential address is the place where he lives or resides. His counsel submits that Teremanda Guest House by its very name and description is a place of business. Therefore, it cannot be a place where the first respondent lives or resides. In addition, the first respondent denies living there. He says he lives in a house in his wife's village at Teremanda located on the side of the main highway that leads to Laiagam and Porgera.

8. I accept these submissions. The whole purpose of serving the petition at the residential address of the first respondent is that it is the most probable location where the first respondent will receive it regardless of whether or not he is at home. The simple reason is this, it is where he lives or resides. If he is out, he will eventually return at some stage and the petition will be brought to his attention. Rule 7(1)(b) is there to give effect to that purpose. I made this point in my decision in Darryl Jee -v- Ben Micah & Electoral Commission: EP No 19 of 2012 (Unnumbered & Unreported Judgment of 12th October 2012) where I said at pp 6 & 7:

"12. Before I deal with this issue, it is instructive to note why Rule 7(1)(b) requires a petitioner to serve the petition at the residential address of the successful candidate. The whole purpose of requiring a petitioner to serve the petition on the respondents is to give them notice of the legal proceedings (petition) against them and for them to attend the hearing at a date, time and venue appointed by the Court. I am indebted to the Deputy Chief Justice who stood by me in his decision where he refused leave sought by Hon John Simon to review my decision in holding that service of the petition was properly effected by the losing candidate for Maprik open electorate Mr Gabriel Kapris when a copy was left with a councillor at Mr Simon's village at Malba in Maprik. His Honour said:

"The whole idea of service of the petition on the respondents is to compel them to attend the hearing at the appointed date and time. This is a legal process which must be accepted and allowed to be practiced without any hindrance. The Respondents including the applicant are now in court. The purpose of service has been served and completed." see Hon John Simon -v- Gabriel Lenny Kapris & Electoral Commission: SC Rev No 27 of 2012 (Unnumbered & Unreported Judgment of 05th October, 2012) at 6."

13. Thus, in my view where there is an issue on service, one must not lose sight of the purpose of service. One should ask; have the respondents been given a copy of the petition, thus making them aware of its existence? Rule 7(1)(b) requires the petitioner to serve the petition at the residential address of the first respondent. It is there to give effect to the purpose of notice. The residential address is chosen as the place of service because it is where the successful candidate lives or resides. By leaving the petition there, it is more likely than not that the successful candidate will receive it whether or not he or she is at home. In other words, the residence is the most probable location where the candidate will receive the petition because it is where he or she lives."

9. While I appreciate the dilemma faced by the petitioner in identifying the first respondent's residential address because the one in the nomination form is vague, unless it is expressly stated or some evidence in the nomination form that Teremanda Guest House is the residential address of the first respondent, I am of the view that a guest house is a place of business and does not fall within the definition of a residential address under Rule 7(1)(b). That being the case, this supports the first respondent's claim that he did not receive the petition at that location. Accordingly, I am satisfied that the petition was served at the wrong location.

10. But that is not the end of the matter. The petitioner says he also served the petition at the first respondent's house at Premier's Hill. In my view, the first respondent tries to paint a picture and have the Court believe that he lived in his wife's village and also in Port Moresby at the time the petition was served there. While I appreciate the lack of details or particulars of the first respondent's residential address in the nomination form, I am not satisfied that he does not have a house in Wabag.

11. First, what he said contradicts his own evidence which I alluded to earlier, where he said that he also stayed in Teremanda village and Wabag town for 2 days prior to travelling to Port Moresby on 26th July 2012. Where did he reside in Wabag town? He does not say but the inference to be drawn here is that he was living at Premier's Hill. In other words, the house at Premier's Hill was where he was living when the petition was served. My view is fortified by the lack of evidence in relation to when he vacated the house at Premier's Hill.

12. I am of the view that David Pone's evidence is lacking because he does not say when the first respondent resigned to contest the election. The first respondent's evidence is also lacking because he does not say when he resigned to contest the election and when he vacated the house. In the absence of clear evidence on these matters, I am not satisfied that the first respondent was not living at the house at Premier's Hill when a copy of the petition was left with David Pone at 8:10 pm on 13th September 2012. In my view, that is sufficient compliance with the requirement of service under Rule 7(1)(b). Therefore, service was regular.

13. For these reasons, I am not satisfied that the petitioner failed to comply or defaulted with the requirements of the EP Rules and I should exercise my discretion in favour of the first respondent and strike out the petition. I refuse the application with cost and I direct that the matter proceed to directions hearing forthwith.

Ruling accordingly.
____________________________________

Greg Manda Lawyers: Lawyers for Petitioner
Manase Lawyers: Lawyers for First Respondent
Niugini Legal Pratice: Lawyers for Second, Third & Fourth Respondents