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Nukundj v Pim [2023] PGNC 111; N10263 (17 May 2023)

N10263

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO.66 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND:
IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF DEI OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
WESTLY NUKUNDI NUKUNDJ
Petitioner

AND:
STEVEN PIM
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Mt. Hagen: David, J
2023: 15^th & 17^th May

ELECTION PETITION – PRACTICE & PROCEDURE – application for leave to file a further objection to competency – Constitution, Sections 50(1), 87(1)(a) and 103(3)(a) - Organic Law on National and Local-level Government Elections, Sections 52, 208, 209, 210 and 212 - National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022, Rules 12 and 22 – National Court Rules - Practice Direction (IECMS) No.1 of 2022, Rules 6, 7, 8, 9, 10, 11, 12, 13 and 14.

Cases Cited:

Patterson Lowa v Wapula Akipe [1992] PNGLR 399
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Anton Francis Yagama v Jimmy Uguro and Electoral Commission of Papua New Guinea (2018) N7133
Peter Charles Yaama v Jerry Singirok (2020) SC1982
William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018
Nukundj v Pim (2023) N10136
Charles Kassman v Justin Tkatcheko and Electoral Commission (2023) N10213
Wesley Ora Raminai v Maino Pano & Electoral Commission (2023) N10248
Pundari v Yakos (2023) SC2345
Agiru v Makiba (2023) SC2366

Legislation Cited:

Constitution
Organic Law on National and Local-level Government Elections
National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022
National Court Rules
Practice Direction (IECMS) No.1 of 2022

Counsel:

Christine Copland, for the Petitioner
Dakan E. Doiwa, for the First Respondent
Shimandalee Kapi, for the Second Respondent

RULING ON APPLICATION FOR LEAVE TO FILE A FURTHER OBECTION TO COMPETENCY OF PETITION

17^th May, 2023

1. DAVID, J: INTRODUCTION: This matter returned as scheduled on Monday, 15 May 2023 in the morning for the continuation of the trial which was adjourned on 23 February 2023 part-heard to continue on dates allocated in March 2023 (27-29^th). The trial commenced following the dismissal on 16 February 2023 of the First Respondent’s Objection to Competency of the petition filed on 12 October 2022: Nukundj v Pim (2023) N10,136. The principal objection was that the Petitioner had no standing to file the petition as he was not a registered voter or elector within the meaning of Section 52 of the Organic Law on National and Local-level Government Elections (the Organic Law) and therefore neither qualified nor eligible to have nominated or contested as a candidate standing for public office under s.87(1)(a) of the Organic Law nor was he qualified to be elected to or hold public office pursuant to ss.50(1) and 103(3)(a) of the Constitution. The matter was recalled at Waigani on 31 March 2023 and new dates for the continuation of the trial in May 2023 (15-19^th) allocated commencing at 09:30 am on Monday, 15^th May as Ms. Doiwa, counsel for the First Respondent was unavailable on dates allocated in March for personal reasons. On Monday, I heard from Ms. Doiwa, that the Court’s ruling on the Objection to Competency was challenged by way of an Application for Leave to Review which went before the Supreme Court and was refused. When the trial resumed on Monday, Ms. Doiwa indicated to the Court that the First Respondent had an application to make which was filed early that morning and served on counsel for the Petitioner and the Second Respondent thereafter seeking leave to file another objection to competency of the petition in light of the decision of Manuhu, J delivered last Friday, 12 May in the case of Wesley Ora Raminai v Maino Pano & Electoral Commission (2023) N10,248 which discussed or touched upon the question of the effective date of filing of an election petition through the Integrated Electronic Case Management System (IECMS). This is my ruling on the application.
   

APPLICATION FOR LEAVE

2. By Notice of Motion filed on 15 May 2023, the First Respondent moves for orders that:

1. Pursuant to s.212(1) and (3) of the Organic Law and s.155(4) of the Constitution, the requirements of service of this application be dispensed with;
2. Pursuant to s.212(1) of the Organic Law and Rule 22(1) of the Election Petition Rules, the First Respondent is granted leave to dispense with the requirements of Rule 12 of the Election Petition Rules and file and serve a Notice of Objection to Competency as to Competency out of time;
3. Subsequently, directions be issued by the Court in respect of hearing of Notice of Objection as to Competency; and
4. Costs of and incidental to the application to be in the cause.
   
3. No issue was taken as to the competency of the application in particular as to the correct name of the rules currently applying to election petitions filed in the National Court with respect to the second relief sought so I proceeded with the hearing. The correct name of the rules is Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022 (Election Petition Rules).
   

EVIDENCE

4. The First Respondent relies on his own affidavit sworn on 14 May 2023 and filed on 15 May 2023 and the Affidavit of Luther N. Makap sworn on 14 May 2023 and filed on 15 May 2023.

5. The Petitioner and the Second Respondent did not rely on any affidavit.

HEARING AND SUBMISSIONS

6. The Petitioner and the Second Respondent did not take issue with the first relief sought in the motion, but requested a short adjournment to get acquainted with the application and the supporting affidavits which I granted. The matter was adjourned to 01:30 pm when the application was moved.

7. The First Respondent’s main contention is that leave should be granted to allow him to file another Objection to Competency of the petition as the IECMS record he has produced shows that the petition was filed out of time contrary to the requirements of the Organic Law. He relies on Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10,248, a copy of which is annexed to the First Respondent’s affidavit as annexure “A” where His Honour observed at [10] and [11] that:

“10. .... Filing of a petition is complete when the petition is lodged, sealed and endorsed with an election petition number. Merely uploading a petition through IECMS does not satisfy the requirement of filing under ss.208(e) and 209.

11. I find ultimately that the petition and supporting documents regarding the security deposit and filing fee were filed six or seven days out of time. I have considered the possibility of saving the petition pursuant to s.217 of the Organic Law and the ruling in Hagahuno v Tuke (2019) SC2018 but there is no room for that.”

8. In that case, both respondents filed separate objections to the competency of the relevant petition. The grounds raised were similar. The first was that the petition was filed out of time contrary to s.208(e) of the Organic Law and the other was that if the petition were filed in time, the petitioner failed to file the petition together with the security deposit contrary to s.209 of the Organic Law. Manuhu, J upheld both objections to competency and dismissed the petition.

9. Reference was also had to the National Court decision of Narokobi, J in Charles Kassman v Justin Tkatcheko and Electoral Commission (2023) N10,213 where one of the grounds of objection to competency raised was that the petition was filed out of time contrary to s.208(e) of the Organic Law. The Court held that s.208(e) of the Organic Law is mandatory and non-compliance is fatal and there was no room to argue substantial compliance. The Court also observed that in order for a petition to be considered as having been filed, the complete petition must be filed within time and the date affixed on the petition was the date the Court should accept. The petition there was dismissed as it was filed one day outside the 40-day requirement of s.208(e).
   
10. The First Respondent through Ms. Doiwa submits that while the petition states that the filing date was 13 September 2022, the IECMS record shows that that was the date when the petition was actually uploaded while the date of sealing is recorded as 21 September 2022. He was not aware of any Practice Direction or any other law dealing with the IECMS and more appropriately addressing the issue of the effective date of filing of documents through the IECMS and he had assumed that the correct process of filing had been followed until the observations in the judgment in Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10,248 which discussed or touched upon the question of the effective date of filing of an election petition through the IECMS.
    
11. He also argued that while the decisions in Charles Kassman v Justin Tkatcheko and Electoral Commission (2023) N10,213 and Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10,248 were not binding on the Court, they were both of persuasive value and he implored the Court to adopt the reasoning in Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10,248 applying the principle of logic and common sense.
    

12. In addition, the First Respondent argued that he had a more than an arguable case as:

(a) It was only proper that this issue of competency which is new and was not quite apparent at the time the initial Objection to Competency of petition was filed and determined by the Court be heard in accordance with the requirements of s.210 of the Organic Law due to the gravity of the nature of election petitions;
(b) Neither the Organic Law nor the Election Petition Rules prohibit the filing of more than one Objection to Competency of the petition and Rule 12 of the Election Petition Rules in particular did not expressly preclude the First Respondent from filing more than one objection to competition of the petition;
(c) Rule 22 of the Election Petition Rules supports the proposition that where compliance cannot or has not been done within time, it is only proper that an application for leave under this rule is made supported by a reasonable explanation for lack of compliance;
(d) The filing of an objection to competency is not a requirement of the Organic Law, but of the Election Petition Rules and the Court may, in the proper exercise of its discretion, dispense with the requirement upon proper application relying on Anton Francis Yagama v Jimmy Uguro and Electoral Commission of Papua New Guinea (2018) N7133.
(e) The issue of competence remains a live issue and can be raised at any stage of the proceedings on the authorities of Sir Arnold Amet v Peter Charles Yama (2010) SC1064, Patterson Lowa v Wapula Akipe (1992) PNGLR 399 and Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853;
(f) The proposed ground of objection to competency cannot be overcome by s.217 of the Organic Law or the decision in William Hagahuno v Johnson Tuke and Electoral Commission (2020) SC2018;
(g) There is no real prejudice to the Petitioner or the Second Respondent and they can be accorded time to respond to the proposed ground of objection should leave be granted; and
(h) Interests of justice favour the grant of the application.

13. Ms. Kapi for the Second Respondent supports the application.

14. Ms. Copland for the Petitioner opposes the application. She contends that the application is flawed and irregularly made and should therefore be refused and dismissed as:

1. The Court in Charles Kassman v Justin Tkatcheko and Electoral Commission (2023) N10213 observed at [27] that the actual date on the petition was decisive and crucial and in the present case, the petition is dated 13 September 2022 well within the 40-day time period for filing a petition after the declaration of the First Respondent as the winner of the 2022 election for the Dei Open Electorate;
2. The application was an abuse an abuse of the process of the Court for lengthy or inordinate delay without any reasonable explanation by appropriate evidence to support the proposed objection on IECMS filing including when he became aware of the details of uploading and sealing of the petition and supporting documents produced in evidence relying on the Supreme Court decision in Peter Charles Yaama v Jerry Singirok (2020) SC1982 where an oral objection to competency made by the first respondent there at the hearing was dismissed for abuse of process because it was made after more than two years of being served the application for review;
3. Rule 12 of the Election Petition Rules provides a timeframe within which to file an objection to competency of a petition following service of a petition and if not filed within the prescribed period, Rule 22 of the Election Petition Rules could be invoked;
4. The First Respondent’s initial objection to competency of the petition filed in accordance with Rule 12 has already been heard and determined by the Court;
5. Administrative issues of the Registry concerning the filing of election petitions and supporting documents required under the Organic Law such as notices or receipts evidencing payment of filing fee and security for costs through IECMS should not be used to penalise a petitioner who has uploaded all necessary documents within time.
   

ISSUE

15. The principal issue raised by the application is whether the First Respondent should be granted leave to file a further objection to competency of the petition.

CONSIDERATION

16. It is well settled in this jurisdiction that the issue of competence remains a live issue up to the determination of any proceedings.

17. Proceedings challenging the validity of an election or return commenced by petition cannot be heard unless the requirements of ss.208 (Requisites of petition) and 209 (Deposit as security for costs) of the Organic Law are complied with. These requirements are mandatory: s.210 Organic Law.

18. Sections 208(e) states:

“A petition shall–

(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).”

19. Section 209 states:

“At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.”
20. Section 210 states:

“Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

21. The filing of an objection to competency of a petition is not regulated by the Organic Law: Anton Francis Yagama v Jimmy Uguro and Electoral Commission of Papua New Guinea (2018) N7133. Rather, it is a requirement of the Election Petition Rules: Anton Francis Yagama v Jimmy Uguro and Electoral Commission of Papua New Guinea (2018) N7133.
22. Rule 12 of the Election Petition Rules is the rule under which a respondent who wishes to challenge the competency of a petition may be filed. The timeframe given under the rule is 21 days after service of the petition. Rule 12 states:

“Objection to Competency

A respondent who objects to the competency of the petition shall, within 21 days after service of the petition —

(a) file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b) serve a copy of the objection on the petitioner and on each of the other respondents; and
(c) file and serve all affidavits in support of the objection.”

23. Rule 22 of the Election Petition Rules states:

“Relief from the Rules

(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.

(3) No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, Court shall pay close regard to the requirements of section 217 of the Organic Law.”

24. Rule 22 grants the Court wide discretionary power to dispense with compliance with any requirement of the Election Petition Rules either before or after the occasion for compliance arises. The discretion must be exercised on proper basis though. It is open for an applicant to invoke this rule in appropriate cases. It is clear from the rule that the Court has no power to dispense with any requirement of the Organic Law.

25. As far as I am aware, the application under consideration is unprecedented and therefore warrants careful consideration. The gravity of the nature of election petitions demands it.

26. I have not been assisted or properly assisted by counsel on the principles, if any, I should consider and apply or be guided by in deciding whether or not to grant leave as sought by the First Respondent.

27. The principles governing the exercise of discretion by the National Court in applications to set aside judgments obtained ex parte or to file defence out of time or to amend documents pursuant to provisions of the National Court Rules are useful and I am guided by them. For this purpose, I would consider the following factors:

1. What is the extent of delay?
2. Is there a reasonable explanation provided for the delay?
3. Does the applicant have an arguable case?
4. Are there special or exceptional circumstances?
5. Will the Petitioner be prejudiced?
6. Where do the interests of justice lie?
   

Extent of delay

28. Rule 12 of the Election Petition Rules only allows for one objection to competency of a petition to be filed by a respondent within 21 days after service of a petition. Rule 22(1) allows for dispensation with compliance in appropriate cases before or after the occasion for compliance arises as mentioned earlier. In the present case, the First Respondent filed his initial objection to the competency of the petition pursuant to Rule 12 on 12 October 2022. That was heard and determined: Nukundj v Pim (2023) N10136.

29. This application seeks leave to file another objection to competency of the petition which is not allowed under Rule 12. On the face of it, the application is flawed and irregularly made. The First Respondent prays for dispensation with compliance under Rule 22(1) however. That, in my view, is untenable as the First Respondent could have availed himself of the rule had he not filed his initial objection to competency of the petition.

30. In any event, the delay in making this application after the service of the petition and the filing of the initial objection is about seven months. That is a lengthy and inordinate delay considering an objection to competency is allowed to be filed within 21 days after service of the petition.

31. This consideration favours the Petitioner.

Explanation for delay

32. There is no reasonable explanation provided for the delay. The reason given that this application was filed after becoming aware of the judgment given by Manuhu, J in Wesley Ora Raminai v Maino Pano & Electoral Commission (2023) N10248 which discussed or touched upon the question of the effective date of filing of an election petition through the IECMS is not a good excuse. The IECMS was officially launched on 16 December 2021 and Practice Direction (IECMS) No.1 of 2022 (Practice Direction IECMS) issued by the Chief Justice on 1 February 2022. Ms. Doiwa said at the hearing that she was not aware of any Practice Direction or Court Rules governing the IECMS. I indicated that there was a Practice Direction on the IECMS. Until revoked or superseded by further Practice Direction(s) or rules of Court made by the Judges on the subject, Practice Direction IECMS for now regulates the practice and procedure with respect to all cases initiated or filed through the IECMS in the Supreme Court and the National Court.

33. The scheme of the Organic Law is clear on dealing with petitions. Petitions challenging the validity of an election or return go through a process of scrutiny to check on compliance with necessary mandatory requirements under ss.208 and 209 of the Organic Law before they can be heard as expressly stated in s.210 of the Organic Law. The filing of the petition within 40 days after the declaration of the result of the election is crucial. The First Respondent slept on his right to check the IECMS filing and file an objection under Rule 12 based on alleged irregularity of filing of the petition through the IECMS.

34. This consideration favours the Petitioner.

Arguable case

35. The First Respondent contends that he has an arguable case.

36. Two decisions of the National Court have been referred to me, first is Charles Kassman v Justin Tkatcheko and Electoral Commission (2023) N10213 and the second is Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10248. They have been summarised already. I am not bound by these two decisions although persuasive. I will with respect make up my own mind for reasons I give below.

37. Currently, IECMS is regulated by Practice Direction (IECMS). It is a new case management system for civil cases in the National and Supreme Courts: Rule 1 of Practice Direction IECMS. The Practice Direction IECMS applies to proceedings involving election petitions by virtue of Rule 8.

38. The purpose of the IECMS is stated at Rule 6 which states:

“Purpose of IECMS

The purpose of the IECMS is to implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by:

(a) replacing the paper-based case filing and recording system by an electronic system;
(b) electronic streamlining of case processing, from filing to hearing and final disposal of cases;
(c) transparency and accountability in case management;
(d) simplification and predictability in each procedural step from filing to listing to prompt final disposal;
(e) better timely reporting to parties, lawyers and government agencies and others as required;
(f) elimination of opportunities for corruption to occur by administrative staff in case filing and management;
(g) improved access by parties and lawyers to filing of court process through electronic means;
(h) increased public and private sector confidence in our judicial process.”

39. Rule 7 sets out the overriding objectives of the IECMS and Practice Direction IECMS and it is in the following terms:

“Overriding Objectives of IECMS and this Practice Direction

The overriding objectives of the IECMS and this Practice Direction are to facilitate the resolution of real issues in dispute in cases within 24 months of filing through just, speedy, efficient, and cost-effective means by:

(a) ensuring that parties are on equal footing;
(b) cost saving through, among others, limiting interlocutory applications to what is strictly necessary to achieve fair and timely disposal of a matter having regard to:

• (i) amounts or value of the monetary claim involved;

(ii) importance of the matter and issues raised;

(iii) complexity of the issues and the financial position of the parties;

(iv) national or public interest in the matter.

(c) allocation to each matter of an appropriate share of the relevant Court’s limited time and resources;
(d) giving effect to the public interest in limiting the issues in dispute by enabling prompt resolution of disputes by the parties direct or through assisted negotiation using mediation or other forms of alternative dispute resolution (ADR).”

40. Rules 9, 10, 11, 12, 13 and 14 are relevant to filing of a case through IECMS. In the absence of any affidavit evidence from a Registry staff including the Registrar, Deputy Registrar (National Court) or any other Registry staff involved in the IECMS as to the how the IECMS is being implemented, a combined reading of these rules (especially rule 10(3)) demonstrate to me that the effective date of filing or lodgement through the IECMS is actually the date when the initiating documents with all supporting documents including copies of receipts for filing fees and in the case of election petitions receipts for security deposit are filed or lodged electronically. This conclusion accords with the purpose and overriding objectives of the IECMS and Practice Direction IECMS set out at Rules 6 and 7. Administrative issues or misgivings or laxity of staff involved in the administration and implementation of IECMS ought not to be used to penalise litigants or lawyers if they have filed electronically using the IECMS within the time limited by appropriate Court Rules or law generally. I concur with Ms. Copland’s submissions in this regard.

41. Rule 9 states:

“Case Initiation and Response

(1) A case shall be initiated in the National Court or the Supreme Court by use of the “cause form” that has been designed and embedded into the IECMS, pleading the relevant facts succinctly in sequential numbered paragraphs.

(2) A defendant or respondent shall also use the “cause form” by way of defence or response corresponding the matters pleaded by the plaintiff.

(3) The defence or response of a defendant or respondent may include objection to the competency of the matter filed or to any preliminary or interlocutory matter, except that no objection shall be taken as to the use of a court form unless that court form is clearly inappropriate to the procedural circumstances of the case and is prescribed by a constitutional law or an Act of Parliament.

(4) Each “cause form” and response thereto shall be filed with the supporting affidavit evidence, if based on facts.

(e) Unless ordered or directed by a judge or the relevant Court, no motion or interlocutory application (except only for urgent matters and enforcement of judgments or orders), shall be filed on a party’s own initiative.”

42. Rule 10 states:

“Case initiation and Response Process

(1) All new cases or matters in the National Court and the Supreme Court shall be commenced by way of electronic filing of the “cause form”, with all the supporting evidence in affidavit form in the National Court and in the Supreme Court for causes based on facts or raises factual issues other than for appeal or review causes.
(2) To use IECMS a litigant must register with IECMS.
(3) Upon electronic lodgement, the “cause form” (with all affidavit evidence in support if applicable) will be received and processed by the relevant Registry with notification to the lodging party to be given by the Registry within 48 hours of date and time of lodgement whether the Registrar has approved or rejected the “cause form”, and in the case of rejection, the Registrar’s reasons for the rejection shall be given.
(4) Subject to sub-rule (10), a “cause form” processed by the relevant Registry (with all affidavit evidence in support if applicable) shall be served on the defendant or respondent:

• (a) electronically through IECMS; or
• (b) by personal service of printed copies on the person to be served;
• (c) by personal service of printed copies on the registered address for service or registered office of a corporation;

within 30 days of notification to the plaintiff of the Registrar’s approval of the “cause form”.

(5) Subject to sub-rule 6, upon being served a defendant or respondent may file a response using the “cause form” with their supporting affidavit evidence, if applicable, within 30 days after the date of service.
(6) In a National Court matter, where the State is a defendant or respondent, it shall upon being served file a response using the “cause form” with its supporting affidavit evidence if applicable within 90 days after the date of service.
(7) Upon being served, a defendant or respondent must if not yet registered, register with IECMS to gain access to IECMS and then file its response using the “cause form”.
(8) Where there is no electronic access to the IECMS website, the parties and or their lawyers may attend at the relevant Registry with printed copies of their “cause form” and supporting affidavit evidence and shall be assisted by the relevant Registry staff to electronically file their documentation via IECMS with the assistance of staff of the relevant Registry.
(9) A “cause form” served as an initiating document or a response (with the supporting evidence if applicable) shall be evidenced in the IECMS and will be recognised as being duly served under these rules unless the provisions of sub-rule (10) applies.
(10) Where an Act of Parliament prescribes time limits for responses to a claim or service of court proceedings or documents in a certain way, such provisions shall prevail.”

43. Rule 11 states:

“e-filing and Electronic Lodgements

(1) The IECMS enables all case activities from the filing of case initiating documents, responses, pleadings, listings, and decisions to be conducted by means of e-filing and electronic lodgements.
(2) Lawyers and litigants are required wherever possible to use the IECMS from the commencement of a proceeding to final decision and enforcement.
(3) The Courts encourage the exchange of parties’ documents electronically, including the exchange of all pleadings, notices for discovery, lists in response to discovery and documents relevant to discovery, notices under the Evidence Act, documents to be adduced in evidence at trial or court hearing and all others forms of National Court and Supreme Court process.
(4) The Courts will be flexible and will assist all users of IECMS to meet their needs during the continuation of the piloting of the IECMS.”

44. Rule 12 states:

“Filing Fees

(1) The rules governing all filing fees under the SCR and the NCR shall continue to apply unchanged.
(2) Until further notice, filing fees are to continue to be paid at the National Finance Department and a copy of the receipt attached to the “cause form” at the time of lodgement with IECMS.
(3) Eventually, filing fees will be paid direct to the Court’s nominated bank account through the IECMS.”

45. Rule 13 states:

“Funds in Court

Funds paid into the Registrar of the National Registrar’s Trust Account will continue to be processed through the Registrar’s Office, but receipts issued can be attached to the e-file in the IECMS.”

46. Rule 14 states:

“Other documents and processes

(1) Unless the relevant Court otherwise directs or orders and except for the “cause form”, the forms for affidavits, notices and all other court process as prescribed in the SCR and the NCR will continue to be used.
(2) All such documents in their prescribed form can be annexed to the e-Court file in Microsoft Word or in editable PDF format or other compatible format as provided in IECMS.
(3) Where a document is lodged and accepted for filing by the relevant Registry, the appropriate seal and signature of the Registrar or his nominee will be electronically endorsed on the document to signify acceptance by that Registry.
(4) A document identified as such can be served by way of IECMS or by personal service of a printed copy.”

47. The Organic Law is a superior law. Practice Direction IECMS is subservient to it. The timeframe given for the filing of a petition is 40 days after the declaration of the result of an election in accordance with s.175(1)(a) of the Organic Law. Section 208(e) of the Organic Law does not provide the mode of filing. Practice Direction IECMS does through electronic filing. In this case, the petition was filed or lodged on 13 September 2022 and bears that date: see Nukundj v Pim (2023) N10136. There is no evidence from the First Respondent to demonstrate that the Petitioner did not electronically file the Notice of Petition, Notice of Payment of Filing Fee and Notice of Payment of Security Deposit together with the petition on 13 September 2022 which were subsequently sealed on 21 September 2022. Relying solely on IECMS record in my view is insufficient in the circumstances.

48. I am not persuaded by the First Respondent that he has an arguable case.

49. This consideration favours the Petitioner.

Special or exceptional circumstances

50. I find no basis that is special or exceptional in the circumstances of this case in favour of the First Respondent.

51. This consideration favours the Petitioner.

Prejudice

52. The Petitioner will be prejudiced if the application is granted. The normal term of office of a member of the Parliament is five years. It is not a long period so it is imperative that the trial must progress to completion without any further delay. It is also in the interest of the First Respondent to do so.

Interests of justice

53. The application is being made midway during trial when the Petitioner has already called evidence. The First Respondent should be prevented by his conduct or the manner in which the proceedings have progressed from being permitted to file another objection to competency of the petition. The relief sought is tantamount to having a second bite of the cherry.

54. For reasons given already, the application is an abuse of the process of the Court. Therefore, the interests of justice favour the Petitioner and leave sought to file a further objection to competency of the petition should be refused.

CONCLUSION

55. In the exercise of the Court’s discretion considering that all the considerations favour the Petitioner, I will refuse to grant leave sought to file a further notice of objection to competency of the petition and dismiss the application for abuse of process.

ORDER

56. The formal orders of the Court are:

1. The application for leave to file and serve a further notice of objection to competency of the petition is refused and dismissed.
2. Costs be in the cause.
3. Time is abridged.
   

Ruling and orders accordingly.

___________________________________________________________
Simpson Lawyers: Lawyers for Petitioner
Makap Lawyers: Lawyers for First Respondent
Niugini Legal Practice: Lawyers for Second Respondent