N4939
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 20 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 KAGUA-ERAVE OPEN ELECTORATE

BETWEEN

DANIEL BALI TULAPI
Petitioner

AND

AIYA JAMES YAPA LAGEA
First Respondent

AND

ALBERT WENS,
RETURNING OFFICER FOR KAGUA-ERAVE
Second Respondent

AND

ANDREW TRAWEN,
THE ELECTORAL COMMISSIONER
Third Respondent

AND

THE PAPUA NEW GUINEA ELECTORAL COMMISSION
Fourth Respondent

Waigani: Makail, J
2012: 13th & 21st December

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application to strike out objection to competency – Objection to competency – Objection filed out of time – 21 days time limit – Time fixed by Practice Direction (Election Petitions) No 2 of 2012 – Constitutionality of Practice Direction – Purpose of Practice Direction – Provision for mode and time for raising objection – No application seeking extension of time – Wide discretion – Prejudice – No real prejudice shown – Application refused – Objection allowed – National Court Election Petition Rules, 2002 (as amended) – Rules 15 and 17.

Cases cited:

Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064
Norbert Kubak –v- Electoral Commission & Malakai Tabar: EP No 02 of 2012 (Unnumbered & Unreported Judgment of 15th November, 2012)

Counsel:

Mr S Soi, for Petitioner 
Mr S Bonner, for First Respondent
Mr R Williams, for Second, Third & Fourth Respondents

RULING ON APPLICATION TO STRIKE OUT OBJECTION TO COMPETENCY

21st December, 2012

1.	MAKAIL, J: There has been some strong suggestion that Practice Direction (Election Petitions) No 2 of 2012 is unconstitutional because it is inconsistent with sections 208, 209 and 210 of the Organic Law on National and Local-level Government Elections ("Organic Law on Elections"). It has been claimed that it restricts the right of a respondent to raise an objection to the competency of a petition at any stage of the proceedings. There has also been cases that the Court is aware of where respondents, more so the Electoral Commission have filed objections to competency outside the time limit of 21 days stipulated by the Practice Direction. 

2.	Practice Direction (Election Petitions) No 2 of 2012 provides that challenges to competency of a petition shall be commenced by way of a notice of objection to competency and shall be filed and served within 21 days of service of the petition. 

3.	In this case, the petitioner seeks to strike out an objection to competency filed by the second, third and fourth respondents for being filed out of time. In moving the application, the petitioner relied on his affidavit sworn on 30th November 2012 and filed on 03rd December 2012. Based on this affidavit, it is not disputed that the petition was served on the second, third and fourth respondents on 06th September 2012 and the time limit of 21 days for them to file an objection to competency expired on 27th September 2012. They filed their objection on 24th October 2012, some 27 days after the time limit has expired. It is also not disputed that leave has not been obtained to file the objection out of time nor is there an application for leave filed.

4.	The respondents submitted that despite their failure to obtain leave to file the objection out of time, it should not be struck out because it raises jurisdictional issues. The issue of jurisdiction can be raised at any stage of the proceedings. They alleged that the facts in the petition are inadequate and this is contrary to section 208(a) of the Organic Law on Elections. 

5.	They further submitted that Practice Direction (Election Petitions) No 2 of 2012 is inconsistent with section 208(a) of the Organic Law on Elections because it restricts the right of a respondent to challenge the competency of the petition at any stage of the proceedings. They relied on the Supreme Court case of Sir Arnold Amet -v- Peter Charles Yama (2010) SC1064 and the recent National Court decision of Norbert Kubak –v- Electoral Commission & Malakai Tabar: EP No 02 of 2012 (Unnumbered & Unreported Judgment of 15th November, 2012) to support their submissions.

6.	It must be appreciated that prior to the 2002 General Elections, there was no National Court Election Petition Rules to regulate the presentation and conduct of election petitions in the National Court. Even after the promulgation of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"), in 2002, there was no provision in the EP Rules (and still is the case) on the mode of commencing an objection to competency of a petition and the time limit for filing it. That is, by what manner should an objection be raised, (should it be in writing and if so, by what form, or should it be orally and when should it be raised?). 

7.	The only provision on objection to competency is Rule 15. It provides for challenges to competency to be raised at the hearing of the petition. The questions I posed above are practical ones. Lawyers and parties grapple with them daily when contemplating an objection. They highlight what I would term "inadequacies" in the EP Rules.

8.	Thus, in my view Practice Direction (Election Petitions) No 2 of 2012 was issued to fill the inadequacies in the EP Rules, and clear any uncertainty in relation to the mode and time for raising an objection to a petition. It was intended to complement and enhance the presentation and conduct of petitions in so far as the question of competency is concerned. By its issuance, lawyers and parties will be guided to prepare and file objections in writing within 21 days of service of the petition. There should be no more uncertainty and confusion in the way objections are raised by the parties and dealt with by the Court.

9.	This Court is not only a Court of law but also a Court of justice. It must be fair to all parties and must give them sufficient time to prepare their respective cases for hearing unless it is clear that one or both are guilty of laxity. Parties must not unduly prejudice each other. The system of administration of justice that we have adopted is one of fairness and openness; not trial by ambush. Thus, having a time limit of 21 days for a respondent to raise an objection to competency promotes fairness and openness, so that justice is dispensed fairly and according to law. It gives the parties sufficient time to prepare for the hearing of the objection. The Court is also put on notice of the objection so that come the date for hearing, it is not caught by surprise. It also makes the presentation and conduct of the petition as a whole, neat and orderly.

10.	For these reasons and appreciating the argument put forward by the respondents that an objection raising an issue of jurisdiction such as the one raised by them under section 208(a) of the Organic Law on Elections can be raised at any stage of the proceedings, I am not satisfied that Practice Direction is unconstitutional. Thus, they must comply with it.

11.	They conceded that they have not obtained leave to file the objection out of time. They also conceded that they have not filed an application for leave. They have also not explained why they have not been able to file and serve the objection within the time limit of 21 days. If the Court strictly applies the Practice Direction, they are in clear default. But the Court has a wide discretion under Rule 17 of the EP Rules. 

12.	The wide discretion encompasses considerations such as the prejudice suffered or will be suffered by the party if the default is allowed to continue and the delay. Apart from its late filing and service, the petitioner has not shown either by evidence or in submissions that he has been and will be prejudiced if the objection is allowed. Rule 15 makes it clear that challenges to competency must be raised at the hearing of the petition. That is the time the Court will hear the objection. The matter is yet to be fixed for trial and therefore, no date has been fixed for the hearing of the objection. 

13.	In my view, since the petitioner has been served the objection, he has ample time until the date when the petition and objection are fixed for hearing to prepare his response to the objection. I find no real prejudice has been shown by the petitioner if the objection is allowed. The application is therefore refused and objection allowed. Cost shall be in the cause.

Ruling accordingly.
____________________________________

Soi & Associates:		Lawyers for Petitioner
Sam Bonner Lawyers:	Lawyers for First Respondent
Niugini Legal Practice:	Lawyers for Second, Third & Fourth Respondents