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Opa v Mendani [2017] PGNC 297; N6974 (11 October 2017)

N6974

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 41 OF 2017

BETWEEN
THOMAS OPA
Petitioner

AND
HONOURABLE RICHARD MENDANI
First Respondent

AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail J
2017: 10^th & 11^th October

ELECTION PETITION – PRACTICE & PROCEDURE – Service of petition – Publication of Notice of Petition – Prescribed time limit to serve petition – 14 days after date of filing – Publication of Notice of Petition one day late – No extension of time sought – National Court Election Petition Rules, 2017 – Rules 8 & 22

No cases cited:

Counsel:

Mr. J. Talopa, for Petitioner
Mr. T. Waisi, for First Respondent
Mr. A. Kongri, for Second Respondent

RULING

11^th October, 2017

1. MAKAIL J: The Petitioner is an unsuccessful candidate for Kerema Open electorate in the 2017 General Election. On 1^st September 2017 he filed this petition to challenge the election of the First Respondent. According to Rule 8 (1) of the National Court Election Petition Rules, 2017 (“EP Rules,”) he had 14 days to serve it on the Respondents. There is no issue he served it on the Second Respondent within time but there is an issue with serving on the First Respondent. That according to the Petitioner, the petition was served on 15^th September 2017 by way of a publication of Notice of Petition in the Post Courier, a day after the time limit of 14 days had expired.

3. In order to remedy the default and comply with the requirement for service within the given time frame, he moves a motion filed on 3^rd October 2017, for orders that he had complied with the requirement for service when payment was made to the Post Courier to publish a Notice of Petition on 12^th September 2017 pursuant to Rule 8 (1) and (2) (b) of the EP Rules and secondly, that the publication of the Notice of Petition by Post Courier on 15^th September 2017 was an omission by the Post Courier, such omission, hence default, should not be attributed to him.

4. There are two problems with this application. Firstly, it is not an application to seek extension of time to serve the petition out of time as provided under Rule 8 (1) of the EP Rules. It is an application which seeks the Court’s approval that the petition was served within time.

5. It cannot be the case because if the petition was served a day late or after the time limitation has expired or outside the time limitation, then it is late and the Petitioner is and would be in breach of the requirement to serve petition. The requirement to serve a petition within 14 days is mandatory. It has been the requirement under the old EP Rules, 2002 (as amended) and still is in the new and current EP Rules.

6. Under the new or current EP Rules, it is provided for under Rule 8 which states:

“8. Service of petition on respondents

(1) The petition shall be served on the respondents within 14 days after the date of filing the petition or within such further period as the Court determines upon application made within those 14 days.

(2) Service on the first respondent shall be deemed to have been effected when any of the following events occurs:

• (a) personal service on the first respondent is effected; or
  
• (b) publication by the petitioner of the Notice of Petition in Form 2, endorsed with the approval of the Registrar, at the petitioner's expense, at least once in a daily newspaper circulating in the country; or
  
• (c) compliance with any other mode of service authorised by the Court.
  

(3) Service on the Electoral Commission shall be deemed to have been effected by:

• (a) leaving the document at the office of the person apparently occupying the position of personal secretary to the Electoral Commissioner between the hours of 7.45 am and 12 noon, or 1.00 pm and 4.06 pm, or such other hours as may from time to time be declared by or under the Public Services (Management) Act 1995 to be the normal public service hours of duty, on any day which is not a Saturday, Sunday or a public holiday declared by or under the Public Holidays Act (Chapter 321); or
  
• (b) publication by the petitioner of the Notice of Petition in Form 2, endorsed with the approval of the Registrar, at the petitioner's expense, at least once in a daily newspaper circulating in the country; or
  
• (c) compliance with any other mode of service authorised by the Court.
  

(4) Publication of a Notice of Petition in Form 2 shall be in the size of a standard quarter-page tabloid page newspaper notice and shall be without embellishment.” (Emphasis added).

7. The end result is that the Court has no discretion to accept a petition that is served outside the 14 days period. The Petitioner application is therefore, misconceived and should be dismissed.

8. Even the explanation for the default that the failure by the Post Courier to publish the petition within 14 days or before the expiry of 14 days is of no consequence. A default has occurred, which cannot be remedied in the manner suggested by the Petitioner but by an application to extend time under Rule 8 (1) (supra).

9. The second problem is this, no order has been sought to extend time to comply within the requirement of service. Given that there is a specific provision under Rule 8 (1) (supra) for extension of time to serve the petition, such an application would have been brought by invoking the discretionary power of the Court under Rule 8 (1) (supra) and Rule 22 (Relief from Rules) which is of general application is of no application in this type of case.

10. It reinforces the long held view by the Courts that election petitions are serious matters such that they require an awful lot of attention and care by the parties, especially the Petitioners when prosecuting them. This includes diligently attending to procedural requirements such as service of petition. Where the breach or default is significant, it may render the petition incompetent and liable to dismissal.

11. In this case, it is quite clear that the Petitioner knew what he was doing, that he was running out of time to serve the petition on the First Respondent, having been unable to locate the latter and had only 4 days remaining when he sought the assistance of the Post Courier. By the time he went to the Post Courier, it was the 12^th day and he informed and expected it to publish the Notice of Petition before or by the 14^th day which did not happen.

12. It was a gamble he took, even though he knew well that he had not much time left to serve the petition. The option to seek extension of time under Rule 8 (1) (supra) was open and available to him to utilise. He does not say if this option was put to him by his lawyers and if he took it up. Quite obviously, he did not take it up because he relied on the Post Courier to publish the Notice of Petition before the 14 days expired.

13. It is sometimes too easy to blame someone for the default such as this when really the onus is on the Petitioner to avoid it. That he was better placed than anyone, let alone the Post Courier to avoid the default if he had sought extension of time within the 14 days under Rule 8 (1) (supra). That was done in the case of Edwin Baafe v. Hon. Peter Sapia & Electoral Commission: EP No 1 of 2017 and there was no reason not to do likewise in this case.

14. The entire application is misconceived and must be dismissed. The default in serving the petition within 14 days must bring an end to the petition. It is dismissed with costs. The security deposit in the sum of K5,000.00 held by the Registrar of the National Court shall be paid to the respondents in equal portion forthwith.

Ruling and orders accordingly.
________________________________________________________________

Justin Talopa Lawyers: Lawyers for Petitioner
Waisi Lawyers: Lawyers for First Respondent
Kongri & Associates Lawyers: Lawyers for Second Respondent