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Amaiu v Kaupa [2017] PGNC 282; N7004 (16 November 2017)

N7004
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 67 OF 2017

BETWEEN
LABI AMAIU
Petitioner

AND

JOHN KAUPA
First Respondent

AND

ELECTORAL COMMISSION
Second Respondent

Waigani: Makail, J
2017: 6^th & 16^th November

ELECTION PETITION – Objection to competency of petition – Grounds of – Late filing of petition – Computation of time – Prescribed time limit of 40 days – Organic Law on National and Local-level Government Elections – Section 208 (e) – National Court Election Petition Rules, 2017 – Rule 12

Cases cited:

Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569
Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712
Labi Amaiu v. Andrew Mald (2008) N3334
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6^th March 2015)
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29^th May 2015)

Counsel:
Mr. S. Liria, for Petitioner
Mr. J. Napu, for First Respondent

Mr. S. Renewa, for Second Respondent

RULING

16^th November, 2017

1. MAKAIL, J: This is the first respondent’s objection to the competency of a petition brought pursuant to a notice of objection filed 6^th October 2017. It is based on the ground that the petition was filed out of time. This ground is amongst others, forming the objection to the competency of the petition.

2. It is also a ground for dismissal of the petition pursuant to a notice of motion filed by the first respondent on 18^th October 2017. It was considered by the Court that it raised a threshold issue as to whether the petition was filed within time, and that, it be determined ahead of others pursuant to the discretion conferred on the Court under Rule 12 of the National Court Election Petition Rules 2017. If the petition survives, the balance of the grounds will be set down for hearing on a later date.

3. The time limit to file a petition prescribed by Section 208 (e) of the Organic Law on National and Local-level Government Elections (“Organic Law”) is “within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)”.

4. Section 208 (e) states:

“208. Requisites of petition.

A petition shall—

(a) .........; and

(b) .........; and

(c) .........; and

(d) .........; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)”. (Emphasis added).

5. Two dates are critical to compute the time limit of 40 days. First is the date of declaration of the successful candidate. Second is the date of filing of the petition.

6. There is no contest that 28^th July 2017 was the date of declaration of the first respondent as the successful candidate. Secondly, there is no contest that the petition was filed on 6^th September 2017.

7. The contest is in relation to firstly, when the 40 days starts to run. Does it run from the date of declaration of 28^th July or the following day, which was 29^th July?

8. Secondly, if it were to run from the date of declaration of 28^th July, whether days that fall on public holidays are not counted or excluded. This issue was raised and argued because it was claimed that 26^th August fell on a public holiday, it been, the National Repentance Day.
9. As to the first issue, the first respondent whose submission was endorsed by the second respondent in a joint effort to dismiss the petition, grounded their submissions on the cases of Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569 and Labi Amaiu v. Andrew Mald (2008) N3334 and contended that these cases held that 40 days ran from the date of declaration of the successful candidate.

10. If computed in that manner, counting 40 days from 28^th July would have expired on 5^th September. As the petition was filed on 6^th September, it was one day out of time.

11. It was further contended that in Kelly Kuliyali Kalit and Labi Amaiu, the Court in each case did not indicate if public holidays were not counted or excluded. It would follow that it was open to infer that public holidays were counted and the petition was filed out of time by one day.

12. The respondents contended that by all accounts, the petition has been filed outside the mandatory time limitation and is incompetent. It should be dismissed.

13. In opposing the objection, the petitioner contended and emphasised that according to Section 208 (e) of the Organic Law, a petition shall be filed within 40 days after the declaration of the result. It means that 40 days starts to run a day following the declaration of the result, which in this case ran from 29^th July and expired on 6^th September. As the petition was filed on 6^th September, it fell on the 40^th day, which was within time.

14. Even then, there was a public holiday – National Repentance Day on 26^th August and it should not be counted. That so, 40 days would have expired on 6^th September and the petition was filed within time.

15. I prefer the primary submissions of the petitioner. It is consistent with the wording and dictates of Section 208 (e) of the Organic Law because of the phrase “within 40 days after the declaration of the result of the election” .

16. In my respectful view, the date of declaration is not inclusive for the purpose of computing the 40 days. The time limit of 40 days starts to run the following day from the date of declaration. In this case, it ran from 29^th July and expired on 6^th September. The petition was filed on 6^th September. It was filed within time.

17. My view is fortified by the decisions in Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6^th March 2015) and Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29^th May 2015). These decisions emanated from the 2012 General election.

18. The first was a National Court decision concerning the election dispute for Hela Provincial electorate. The date of declaration of the result was 19^th July 2012. Mr. Kaiabe filed his petition on 27^th August 2012. Then on the next day, 28^th August, he filed an amended petition. The Court computed 40 days from the date of declaration of 19^th July and concluded that, the amended petition was filed on the 41^st day, which was one day late. It was held that the amended petition was filed out of time and incompetent. The petition was dismissed.

19. Mr. Kaiabe sought a review of that decision to the Supreme Court. This was the second case referred to above. In his ruling on the application for leave, Kirriwom J sitting as a single Judge of the Supreme Court held that the calculation of 40 days from the date of declaration of 19^th July was wrong. The count should have started on the following day which was 20^th July. There was a clear error of law which would have resulted in the petition been re-instated. However, leave was refused because the pleadings were bad.

20. The Supreme Court decision in Kaiabe’s case is consistent with the literal interpretation of Section 208(e) of the Organic Law and represents the correct legal position in terms of computing the time limitation of 40 days to file a petition.

21. The cases of Kelly Kuliyali Kalit and Labi Amaiu are distinguishable on their facts. In Kelly Kuliyali Kalit, there were two conflicting dates on the date of declaration; one 4^th July 1997 and the other, 5^th July 1997 and needed to be resolved before computing the 40 days. In this case, there is no dispute in relation to the date of declaration of the first respondent.

22. Basing his finding on the date stated in the Writ, the trial judge held that the date of declaration was 4^th July 1997. Computing the 40 days from that date, the petition was filed out of time and was dismissed: see Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712.

23. The petitioner sought a review of that decision. The Supreme Court upheld the decision of the trial judge. It was of the view that the trial judge did not err when he held that based on the date of 4^th July 1997 stated in the Writ, the date of declaration was that date and dismissed the review.

24. In both cases, there was no contest as to when the 40 days starts to run. Parties had accepted that time ran from the date of declaration. In this case, it is an issue. Thus, those cases do not conclusively settle the issue.

25. The Supreme Court decision in Kelly Kuliyali Kalit was followed by the National Court in Labi Amaiu. Coincidentally, Mr. Amaiu who is the present petitioner was the petitioner in that case. He had pleaded in that petition that the date of the declaration was 23^rd July 2007. Computing 40 days from that date, 40 days expired on 31^St August 2007. The petition was filed on 1^st September 2007.

26. Both counsel had agreed that the computation of 40 days was calculated from the date of declaration of the result of the election (including the date of the declaration) based on the method applied in Kelly Kuliyali Kalit case. Again, the date as to when the 40 days starts to run was not an issue in that case, but, it is in this case. Thus, that case is of little assistance.

27. For all these reasons, I come to the conclusion that 40 days is computed from the day following the date of declaration of the result of the election. That being the case, the petition having been filed within 40 days meets the time limitation requirement under Section 208 (e) of the Organic Law and is competent. This ground of objection is dismissed.

28. Finally, it is not necessary to consider whether 40 days should exclude public holidays, in this case, 26^th August for National Repentance Day because whether that day is counted or not, the petition was filed within 40 days.

29. The petition and balance of the grounds of objection will be adjourned to a date to be fixed, for pre-trial conference, and listing. Costs shall be in the petition.

Ruling and orders accordingly.
______________________________________________________________
Liria Lawyers: Lawyers for Petitioner
Napu & Company Lawyers: Lawyers for First Respondent
Kawat Lawyers: Lawyers for Second Respondent