Unreported National Court Decisions
N1694
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 57 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
IN THE MATTER OF THE DISPUTED RETURN IN A GENERAL ELECTIONS FOR THE CENTRAL BOUGAINVILLE OPEN ELECTORATE
BETWEEN: DR. BENEDICT PISI
PETITIONER
AND: SAM AKOITAI
1ST RESPONDENT
AND: THE ELECTORAL COMMISSION
2ND RESPONDENT
Waigani
Sawong J
17 October 1997
20 October 1997
GENERAL ELECTIONS - Petitions - Dispute result of elections - Objections to Petition - Objections to Petition - Organic Law s. 208 (e) - Time Limit for filing Petition
Cases Cited
Biri -v- Ninkama [1982] PNGLR 342
Chan -v- Apelis, Unreported Judgement N1627
Counsel
Mr. Alua,, for Petitioner
Mr. M. Koiri,, for First Respondent
Mr. D. Dotaona,, for Second Respondent
20 October 1997
SAWONG J: The First and Second Respondents (respondents) apply to dismiss the Petition filed by the Petitioner in its entirety. They rely on three grounds, the first is that the Petition was filed outside the 40 days time limit imposed by s. 208(e) of the Organic Law on National and Local level Government Elections (Organic Law). The second is the reliefs to which he is not entitled to. The final ground is that the pleading pleaded offend against s. 208(a) of the Organic law, in that the pleadings either do not state material facts or that insufficient material facts have been left out.
I propose to deal with the submissions in relation to the first ground, because in my view the ruling on the point will determine whether the Court should embark all upon considering the other grounds.
Section 208(e) of the Organic law, so far as is relevant reads:
“208.   REQUISITES OF PETITION
A petition shall ...
(e)      be filed in the Registry of the National Court in Port Moresby or at the Court house in any Provincial headquarters within 40 days after the declaration of the result of the elections in accordance with s. 175(1)(a)”. (emphasis is mine).
The issue of the 40 days time limitation has been considered recently in Sir Julius Chan -v- Ephraim Apelis, Unreported Judgement N1627, dated 13 October, 1997 by Injia, J.
The facts of that case is quite different to the facts of the present case. Nevertheless, I consider the principles of law laid down in that are relevant and applicable. In that case, the Court was considering, amongst other matters, whether an amended petition was filed within the time period of 40 days that has been prescribed by s. 208(e) of the Organic Law. At p. 5 of the decision, Injia J said;
“There is no dispute that the time limit of 40 days imposed by OLNE, s. 208(e) includes all seven days of the week, that is, Monday through to Sunday and this means both the five (5) week days or working days and the two week-ends. This accords with s. 2(2) of the Practice Directions for Presentation and Conduct of Elections N/C 2/97 issued by the National Court 27 June 1997. Which provides that “the reckoning of the time limit in subsection (1) (40 days limit) includes all days of the week, and the time limit cannot be extended”.
It is also clear that that requirement of s. 208 of the Organic Law must be compiled with strictly. That principle is not being challenged here. The only issue is whether on the evidence before the Court, the Petitioner has complied with those requirements, and in particular with s. 208(e) of the Organic Law.
The respondents rely on the evidence of the First Respondent but more particularly on the evidence of Mr. Mathias Pibi, the Provincial Returning Officer for North Solomons Province.
The relevant parts of his evidence is contained in paragraph 3 and 4 of his affidavit evidence dated 10 October, 1997 and filed on 13 October, 1997. In his evidence he swears that he declared the First Respondent as winner of the Central Bougainville Open Electorate on 1 July, 1997. He has not been cross-examined on this.
Mr. Narokobi, lawyer for the Petitioner has filed an answering affidavit. In it he says he obtained instructions from his client, the Petitioner and two others, who told him amongst other things, that the declaration for this particular seat was made on 3rd July 1997.
Counsels for the respective respondents have submitted that Mr. Narokobi’s evidence, in respect of this particular issue is hearsay and therefore should not be accepted. Alternatively they submit that the evidence of Mr Pihei is even more credible because he was the one who physically ascertained the results of the elections and subsequently made declaration, declaring the First Respondent as being elected.
In either case, I accept the submission made by the counsels for the respondents. I accept the evidence of Mr. Pihei as much more credible. He was the Provincial Returning Officer. he ascertained the results of the election for this particular seat and he made the declaration. He was speaking of events that he himself did and made.
With respect, I do not accept Mr. Narakobi’s evidence for two simple reasons. First it is hearsay. He was reciting what was told to him. Secondly there is no evidence from any of the persons he interviewed. There is no evidence that anyone of them was present at the counting centre and saw and heard the declaration.
From the foregoing, I find that the declaration for the Central Bougainville Open Seat was made on 1st July 1997. It follows from this finding of fact that the 40 day time limitation commenced to run from that day (i.e. 1st July, 1997) and ended on 10 August, 1997. The petition in this case was dated 11 August, 1997. There is no notation on the cover or on any part of the Petition as to w hen it was filed. However there is a receipt issued by the National Court, which is dated 11 August, 1997. On this basis infer that the Petition was infact filed on 11 August, 1997. That being the case, there is no doubt that the Petition was filed outside the time period prescribed by law.
It follows that the Petitioner has not complied with s. 208(e) of the Organic Law. 
For these reasons, I uphold the objection by the respondents and dismiss the Petition in toto.
My formal orders are:
1.       That the Petition be dismissed in toto, and
2.       That the Petitioner pay the costs of the respondents, such costs are to be paid        from the funds held as security for costs, and, the costs are to be agreed, if      not to be taxed.
Lawyer for the Petitioner: Narakobi Lawyers
Lawyer for the 1st Respondent: Thirlwall, Aisi & Koiri Lawyers
Lawyer for the 2nd Respondent: Allens Arthur Robinson Lawyers