N10336
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 61 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
NORTHERN PROVINCIAL ELECTORATE

JEAN EPARO PARKOP
Petitioner

V

GARY JUFFA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 14th, 19th June

ELECTIONS – petitions – motion by petitioner for declarations that the successful candidate is not qualified to be a member of the Parliament and was not duly elected – whether the argument on which the motion is based could have been a ground of challenge in the petition – whether motion by a petitioner for summary determination of a petition, filed seven months after petition is filed, is an amendment of the petition – abuse of process.

The petitioner applied by notice of motion for declarations that the first respondent, the successful candidate, was not qualified to be a member of Parliament and was not duly elected. The petitioner maintained that the first respondent was not entitled to vote as he was not on the roll of electors and was not an eligible candidate and was not qualified to be a member of the Parliament under s 103 of the Constitution. The first respondent argued that he was in fact on the roll of electors in the electorate in which he stood as a candidate, but his name was misspelt. Besides that, the ground on which the petitioner seeks to invalidate his election was not raised in the petition, and by raising it through a notice of motion is an abuse of process. 

Held:

(1)	The argument that a successful candidate is not qualified to be a member of the Parliament due to failure to meet the requirements of s 103 of the Constitution is a proper ground of challenge, which can be raised in an election petition. 
 
(2)	The argument on which the notice of motion is based could have been  included in the petition.

(3)	Raising the argument in a notice of motion filed after the date of expiry for filing the petition is an attempt to amend the petition, made late and without leave, and an abuse of process. The motion was dismissed. 

Cases Cited

The following cases are cited in the judgment:

Aimo v Anisi (2012) N4870
Chan v Apelis (1997) N1627
Hagahuno v Tuke (2020) SC2018
Kamma v Itanu (2007) N3246
Parkop v Juffa (2023) N10153
Parkop v Juffa (2023) N10281
Powi v Kaku (2022) SC2290
SC Ref No 2 of 1985, Reference by National Court re Masive v Okuk [1985] PNGLR 263
SC Ref No 4 of 1982, Reference by National Court re Biri v Ninkama [1982] PNGLR 342 
Schulze v Somare (1998) N1798
Siune v Palma (2017) N7039
Tabar v Wong (2018) N7121
Wingti v Olga (2008) N3285

Counsel

D L Dotaona, for the Petitioner
A W Jerewai, for the First Respondent
L Dos, for the Second Respondent

19th June, 2023

1.      CANNINGS J: The petitioner, Jean Eparo Parkop, applies by notice of motion filed 21 April 2023 for declarations that the successful candidate, first respondent, Gary Juffa, is not qualified to be or remain a member of Parliament and was not duly elected as member for Northern Provincial in the 2022 general election.

2.      The petitioner argues that the first respondent was not entitled to vote as he was not on the roll of electors and therefore was not an eligible candidate and is not qualified to be a member of the Parliament under s 103(3)(a) (qualifications for and disqualifications from membership) of the Constitution. 

3.     The first respondent says that he was in fact on the roll of electors in the electorate in which he stood as a candidate, but his name was misspelt as “Juppa, Gary”. Besides that, the ground on which the petitioner seeks to invalidate his election was not raised in the petition, and by raising it through a notice of motion, seven months after the petition was filed (on 12 September 2022), amounts to an attempt to amend the petition, and is an abuse of process. 

4.     Before addressing the merits of the petitioner’s argument that the first respondent is unqualified, I need to address the issue of whether the motion is an abuse of process. 

IS THE MOTION AN ABUSE OF PROCESS?

5.     I have decided that it is, for the following reasons.

6.     First, the argument that the first respondent is unqualified could have been included as a ground of challenge in the petition. Similar arguments have been included as grounds in several previous cases, including:

•	Schulze v Somare (1998) N1798, where the argument was about residential qualifications under Constitution, s 103(2); 
•	Aimo v Anisi (2012) N4870, where the argument was about the age qualification under Constitution, s 103(1); 
•	Siune v Palma (2017) N7039, where the argument was about the lack of insolvency qualification under Constitution, s 103(3)(d); 
•	Tabar v Wong (2018) N7121, where the argument was about residential qualifications under Constitution, s 103(2). 

7.     Mr Dotaona, for the petitioner, concedes that the argument underpinning the notice of motion could have been included in the petition. 

8.     Secondly, there is a strict time limit for filing a petition. Section 208(e) of the Organic Law on National and Local-level Government Elections provides that it must be filed within 40 days after the declaration of the result of the election.

9.     Thirdly, there is an equally strict time limit for amending a petition. It can only be amended with leave of the Court, if leave is sought within the 40-day period in s 208(e) (SC Ref No 4 of 1982, Reference by National Court re Biri v Ninkama [1982] PNGLR 342, Hagahuno v Tuke (2020) SC2018, Powi v Kaku (2022) SC2290, Chan v Apelis (1997) N1627, Kamma v Itanu (2007) N3246, Wingti v Olga (2008) N3285). 

10.     Fourthly, the motion before the Court is, having regard to the argument underpinning it and the relief sought by it, properly regarded as an attempt to introduce a new ground of challenge into the petition. It is tantamount to an amendment of the petition, which is being made without leave and very late, seven months after the date of filing the petition. 

11.     Fifthly, though the petitioner or another person with requisite standing might be able to invoke the jurisdiction of the National Court under s 135 (questions as to membership etc) of the Constitution to determine the question of the qualifications of the first respondent to be or remain a member of the Parliament, that would need to be done, due to the failure to raise the issue in the petition, if at all, in a separate proceeding (SC Ref No 2 of 1985, Reference by National Court re Masive v Okuk [1985] PNGLR 263). It cannot be done in the present proceeding, which is an election petition under Part XVIII (disputed elections, returns etc) of the Organic Law, and the question of the qualifications of the first respondent was not raised in the petition.

12.     Sixthly, though the qualifications for membership of the Parliament are set out in the Constitution, which is a superior law to the Organic Law, there is no conflict between the Constitution and the requirement that a petitioner, having invoked the jurisdiction of the National Court under s 206 of the Organic Law to dispute the election of the first respondent, comply with s 208 of the Organic Law. Section 208 requires that the petition including the facts relied on to invalidate the election, be filed within 40 days after declaration of the result.

13.    Seventhly, it would be contrary to the substantial merits and good conscience of this case to entertain the argument that the first respondent is not qualified to be a member of the Parliament in circumstances where the argument has been raised belatedly, seven months after the filing of the petition, after the Court has heard and determined objections to competency of the petition (Parkop v Juffa (2023) N10153, decision given on 9 March 2023, and Parkop v Juffa (2023) N10281, decision given on 31 May 2023) and given directions for hearing the three surviving grounds of the petition. The Court would be acting in disregard of s 217 (real justice to be observed) of the Organic Law, if it, in this petition, entertained the argument, made through a notice of motion, that the first respondent is not qualified.

WHAT ABOUT THE ARGUMENT THAT THE FIRST RESPONDENT IS NOT QUALIFIED?

14.     I will refuse all relief sought in the petitioner’s notice of motion as it is an abuse of process. It is unnecessary and would be inappropriate to address the merits of the argument that the first respondent is not qualified. 

COSTS

15.     The question of costs of the motion is a matter of discretion. Rule 19(1) of the Election Petition Rules 2017 states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that costs follow the event. The petitioner will meet the respondents’ costs. 

ORDER

(1)	All relief sought in the petitioner’s notice of motion filed 21 April 2023, is refused.

(2)	The petitioner shall pay the respondents’ costs of and incidental to the notice of motion filed 21 April 2023, on a party-party basis, which shall, if not agreed, be taxed. 
_____________________________________________________________
Dotaona Lawyers: Lawyers for the Petitioner
Jerewai Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent