N10330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 90 OF 2022 (IECMS)

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

AND:
IN THE MATTER OF A DISPUTED RETURNS FOR THE PORT MORESBY NORT-EAST OPEN ELECTORATE

BETWEEN:
DIANE UNAGI KOIAM
Petitioner

AND:
HONOURABLE JOHN KAUPA, MP
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Kassman J
2023: 7th &14th June

ELECTIONS – objection to competency of petition – petition must be filed within 40 days of declaration of result of election – uploading petition and notices of payment of filing fee and security deposit to IECMS – physically lodging, filing and sealing in the registry – Organic Law on National and Local-Level Government Elections section 208(e).

The declaration of Kaupa as the member elect was made on 12 August 2022. The period of 40 days for the filing of a petition to lawfully challenge the election and declaration of Kaupa on 12 August 2022 expired at midnight on 21 September 2022. Lawyers for Koiam created a file for this proceeding on IECMS at 9:33pm on 21 September 2022. At 9:44pm on 21 September 2022, Lawyers for Koiam uploaded to IECMS the receipt for filing fee of K1,000. At 9:47pm on 21 September 2022, Lawyers for Koiam uploaded to IECMS the receipt for the security deposit fee of K5,000.  At 11:29pm on 21 September 2022, Lawyers for Koiam uploaded to IECMS the Petition. The filing of the Petition, the filing of the Notice of Payment of the Filing Fee receipt and the filing of the Notice of Payment of the Security Deposit Fee were registered as filed in the court file in the National Court Registry on 23 September 2023. 

Held:

1.	The Petition, Notice of Payment of the Filing Fee Receipt and the Notice of Payment of the Security Deposit Fee were all filed together on 23 September 2023. 
2.	The Petition was filed on 23 September 2023 and so was filed out of time or after the 40 days period which expired on 21 September 2022. 
3.	The ground of objection that the Petition was filed out of time is upheld.
4.	The Petition is dismissed for being incompetent. 

Cases Cited:

Biri v Ninkama [1982] PNGLR 341 
Epi v Farapo [1983] SC247
Aihi v Isoaimo [2015] SC1598
Wesley Raminai v Maino Pano & Electoral Commission N10248 

Legislation Cited:

Organic Law on National & Local-level Government Elections s. 139, 175(1)(a), 208, 209 and 210. 
Election Petition (Miscellaneous Amendments) Rules 2022 s. 5, 6 and 7 

Counsel:

G. Salika, for the Petitioner
P. Mawa, for the First Respondent
P. Kuman, for the Second Respondent

DECISION 
OBJECTIONS TO COMPETENCY OF THE PETITION

14th June, 2023  

1.	KASSMAN J:  This is the court’s ruling on two objections to the competency of the Petition by Diane Unagi Koiam which was apparently filed on 21 September 2022.  The “filing” of the petition is a ground of objection which will be addressed below.  

Abbreviation 

2.	In this decision, for convenience, the following abbreviations are applied.  The Organic Law on National & Local-level Government Elections is referred to as “the Organic Law”, the Election Petition (Miscellaneous Amendments) Rules 2022 is referred to as “the EP Rules”,   The Electoral Commission of Papua New Guinea is referred to as “the EC”, John Kaupa is referred to as “Kaupa”, Andapanga Alfred Nelson Baliawe is referred to as “Baliawe”, Diane Unagi Koiam is referred to as “Koiam” and Peter Dominic is referred to as “Dominic”. 

Introduction

3.	The Papua New Guinea National General Elections to the National Parliament was held in the year 2022 with the issue of writs by the Governor-General for all seats in the National Parliament including the Moresby North-East Open Electorate situated in the National Capital District.  A total of 77 candidates nominated and stood in Moresby North-East Open Electorate and among them were Kaupa, Baliawe, Koiam and Dominic.  

4.	Baliawe, Koiam and Dominic who were the first, second and third runners-up respectively have each filed petitions challenging the election and declaration of Kaupa as the winner of the election.  Baliawe’s petition is EP 85 of 2022, Dominic’s petition is EP 88 of 2022 and Koiam’s petition is EP 90 of 2022. 

5.	By section 139 of the Organic Law, where there are three or more candidates,  as in this electorate with 77 candidates, an elector shall record his votes on his ballot paper in the order of preference from 1, 2 and 3.  This has a bearing on distribution of ballot papers after the first or primary count of ballot papers and after all subsequent exclusions of candidates from the lowest upwards until the final exclusion when the ballot papers of the second runner-up are distributed to the leading and first runner-up.  Ultimately, that also has a bearing on the calculation of the figure for the “absolute majority” of votes which determines the final outcome.
 
6.	On 12 August 2022, Kaupa was declared Member Elect having polled 18,365 votes which exceeded the “absolute majority” of votes of 18,034 votes.  Baliawe was the first runner-up having polled 17,508 votes.  Earlier, Dominic was removed after the 73rd exclusion.  Ballot papers marked in his favour by voters as the voter’s primary choice or second choice were then distributed to either Kaupa, Baliawe or Koiam if those ballot papers had either Kaupa, Baliawe or Koiam marked as second or third choice selections.  Dominic’s remaining ballot papers with other third choice selections were deemed exhausted and therefore were excluded.  After that, Koiam was excluded after the 74th exclusion having polled 15,714 votes.  Koiam was the second runner-up in the election. 

7.	In the final distribution after the exclusion of Koiam, the ballot papers obtained by Koiam as primary choice, and second choice selections were distributed to either Kaupa or Baliawe if those ballot papers had Kaupa or Baliawe marked as second choice or third choice selections.  Koiam’s remaining ballot papers with third choice selections not of Kaupa or Baliawe were deemed exhausted and therefore were excluded.         

Koiam’s Petition 

8.	Briefly, Koiam alleges the EC committed errors and omissions at pre-polling and at the counting of votes which affected or are likely to have affected the outcome of the election.    

Notices of Objection to Competency 

9.	The EC first filed Notice of Objection to Competency on 9 December 2022 and that was superseded by an Amended Notice of Objection filed with leave on 30 November 2022.  Kaupa filed Notice of Objection on 4 November 2022.  There was no preliminary issued raised by Koiam questioning the filing of both objections or questioning the court’s jurisdiction to hear and determine the objections.  Many documents were relied on at the hearing of both objections. 

10.	The first category are the Petition filed 21 September 2022 [document number 1], the IECMS Petition Attachment 2 Notice of Payment of Filing Fee 23 September 2022 [document number 3], the IECMS Petition Attachment 3 Notice of Payment of Security Deposit 23 September 2022 [document number 4], the Statement of Agreed Facts filed 27 December 2022 [document number 66 and Koiam’s Outline of Petition which was unsealed and handed up in court 7 June 2023.  The second category are the notices of objection being the EC’s Amended Notice of Objection to Competency filed 30 November 2022 [document number 50] and Kaupa’s Notice of Objection to Competency filed 9 December 2022 [document number 58]. The third category are the submissions of the parties being the EC’s Submission on Objection to Competency filed 5 June 2023 [document number 85], Kaupa’s Submission on Objection to Competency filed 6 June 2023 [document number 89] and Koiam’s Submission on Objection to Competency filed 6 June 2023 [document number 91].  The fourth category are the affidavits relied on or referred to by the parties on the objections being the Affidavit of Nicholle Bitas filed 29 May 2023 [document number 78], the Affidavit of Peter Kuman filed 5 June 2023 [document number 86] and the Affidavit of Thalia Salika filed 6 June 2023 [document number 95].  The fifth category are other documents relied on and referred to by the parties being the Memorandum by the Chief Justice to Judges dated 31 January 2022 – Practice Direction (IECMS) No. 1 of 2022, the Practice Direction (IECMS) No. 1/2022 – Integrated Electronic Case Management System (IECMS) issued by Chief Justice and dated 1 February 2022, Kaupa’s case authorities volumes 1 & 2 handed up in court by Mr Mawa on 7 June 2023 and Koiam’s case authorities volumes 1 & 2 handed up in court by Ms Salika on 7 June 2023. 

Grounds of objection to competency 

11.	The grounds of the objection raised are common to both Kaupa and the EC and each counsel for the three parties addressed the grounds of objection together so I will address the grounds of objection together and in this order.

(a)	The Petition was filed out of time.  This objection was not raised by Kaupa and the EC in their Notices of Objection to Competency but was raised by the EC in written submissions at the hearing.

(b)	The receipt for the payment of the security deposit of K5,000 was not filed in the court registry on the same day the petition was filed but was filed 2 days after the day the petition was filed and that contravened the mandatory requirements of section 209 of the Organic Law and Rules 5 and 7 of the EP Rules. This ground was raised by Kaupa and the EC. 

(c)	The receipt for the filing fee of K1,000 was not filed in the court registry on the same day the petition was filed but was filed 2 days after the day the petition was filed and that contravened the mandatory requirements of Rules 5 and 6(2) of the EP Rules.  This ground was raised by the EC.  

(d)	An attesting witness to the Petition failed to state the full description of his occupation contrary to section 208(d) of the Organic Law.  This ground was raised by Kaupa. 
(e)	The petition failed to plead or set out the facts relied on to invalidate the election or return and contravened the mandatory requirements of Section 208(a) of the Organic Law.  Detailed grounds were raised separately by Kaupa and the EC.
 
The court’s power and duty – competency of the petition 

12.	By section 210 of the Organic Law, “proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.” That is the constitutional basis that not only empowers this court and but also directs this court to ensure the contents of the petition and the filing of the petition meet the mandatory requisites of sections 208 and 209 of the Organic Law before the court proceeds to the hearing of evidence on the petition. 

13.	The Supreme Court in Biri v Ninkama [1982] PNGLR 341 said “…The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court.  In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with.  Section 208 is in mandatory terms and being the Organic Law on national Elections it is a constitutional Law.  Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with…” 

Contents of petition, fees payable and filing of petition        

14.	Section 208 is titled “Requisites of petition” and provides “A petition shall – (a) Set out the facts relied on to invalidate the election or return; and (b) Specify the relief to which the petitioner claims to be entitled; and (c) Be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and (d) Be attested by two witnesses whose occupations and addresses are stated; 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).” 

15.	Section 209 is titled “Deposit as security for costs” and provides “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.” 

16.	By the EP Rules, Rule 5 is titled “Filing” and provides “A petition shall be filed with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.” 

17.	Rule 6 is titled “Filing fees” and provides “(1) The filing fee for an election petition shall be K1,000; (2) The fee shall be paid at a provincial finance office and the official receipt of the payment shall be filed in the Registry with the petition in accordance with Rule 5.” 

18.	Rule 7 is titled “Security for costs” and provides “The security deposit required by section 209 of the Organic Law shall be paid in cash or by bank cheque into the National Court Registrar’s Trust Account at the appropriate bank and evidence of the deposit shall be filed with the petition.” 

The “filing” of the Petition

19.	I deal firstly with grounds of objection that go to the “filing” of the petition because the filing gives life to the petition which then enables or invites any challenge to the filing and then to the contents of the petition.  I will then deal with the grounds of objection that go to the contents of the petition. 

20.	The validity of the “filing” of the petition is challenged in several respects.  

Petition filed late or after 40 days from the date of the declaration

21.	The first challenge claims the petition was filed late or after the period of 40 days from the date of the declaration.  Section 208(e) of the Organic Law provides a petition shall be filed within 40 days after the declaration of the result of the election.  The declaration of Kaupa as the member elect was made on 12 August 2022.  The period of 40 days from 12 August 2022 expired at midnight on 21 September 2022.

22.	The EC’s lawyers relied on the Affidavit of Nicholle Bitas (“Bitas”) sworn 26 May 2023 and filed 19 May 2023 in which Bitas swears she is a lawyer in the firm of Kuman Lawyers who act for the EC and that she undertook a review of the Integrated Electronic Case Management System (IECMS) in respect of this proceeding on 17 May 2023 and she says “My reading of the IECMS records shows that the Petition was sealed on 30 September 2022 at 13:35 pm.”  Bitas annexes to her affidavit the “IECMS Filing Track Record” as at 17 May 2023 from which I note for the first document filed being the Petition, details entered are “Sealed copy file by GFS Lawyers” and “Patricia Kolohu (2) / 30/09/2022 13:35. 

23.	I take judicial notice of the fact Patricia Kolohu is the EP Scanning Officer in the National Court Registry.  I understand that IECMS Filing Track Record to mean what it states and that is a sealed copy of the Petition was filed by GFS Lawyers and formally entered on IECMS by the Registry Officer Patricia Kolohu on 30th September 2022. 

24.	Koiam’s lawyers relied on the affidavit of Thalia Salika sworn and filed 6 June 2023 and I restate in full the contents of that affidavit from paragraph 2. “2. I am a legal assistant in the employ of GFS Lawyers, Lawyers for the Petitioner herein and depose to this affidavit in respect of the filing of the Petition, the security Deposit and the security Deposit on IECMS.  On 21 September 2022 at 9:33p.m. we created the file on IECMS for the proceedings herein.  Annexed and ‘TDS.1’ is screen print of Ms Gloria Salika’s IECMS account, exhibiting the IECMS Court File exhibiting the date and time the IECMS file was created.  On 21 September 2002 at 9:44 p.m. we filed the filing fee, receipt number R00001439445 on IECMS.  Annexed and ‘TDS.2’ is a screen print of Ms Salika’s IECMS account, exhibiting the IECMS Court File exhibiting the date and time the Filing Fee was filed.  On 21 September 2022 at 9:47p.m. we filed the security deposit receipt of K5000 on IECMS.  Annexed and marked ‘TDS.3’ IS A SCREEN PRINT OF Ms Salika’s IECMS account, exhibiting the IECMS Court File and the date and time evidence the Security Deposed was filed.  On 21 September 2022 at 11:29p.m. we filed the Petition on IECMS.  Annexed and marked ‘TDS.4’ is a screen print of Ms Salika’s IECMS account, exhibiting the IECMS Court File and the date and time that the Petition was filed.  As a constant user of IECMS, I am aware that any party to the proceedings who is linked to the IECMS file is able to view the same data.  Ordinary users of IECMS are unable to change the fixed settings on IECMS such as the time and date of documents lodged on IECMS.  I am aware that IECMS has an explanatory manual and I have found this to be useful.  Annexed and marked ‘TDS.5’ is a copy of said manual. 

25.	From my perusal of annexure ‘TDS.1’ to Thalia’s affidavit, I note it states, “Case Filed: 21/09/22” and “Case Registered: 23.09.22”.  I understand that to mean Koiam’s lawyers went online and created on IECMS the court file on 21 September 2022 and the court file was formally registered on 23 September 2022 in the records of the Registry of the National Court. 

26.	My observations from consideration of the affidavit of Nicholle Bitas filed 29 May 2023 and my observations from consideration of the affidavit of Thalia Salika filed 6 June 2023 are a contradiction.  For the EC, a sealed copy of the Petition was filed by GFS Lawyers and formally entered on IECMS by the Registry Officer Patricia Kolohu on 30th September 2022.  For Koiam, Koiam’s lawyers went online and created on IECMS the court file on 21 September 2022 and the court file was formally registered on 23 September 2022 in the records of the Registry of the National Court.  Either scenario supports the arguments of the EC that the petition was not filed on the deadline for filing of 21 September 2022 but was filed on either 23 September 2022 or on 30 September 2022 which are dates outside the 40 days period.  

27.	From my perusal of the actual Petition on the court file, I see on the coversheet of the petition under the title “Petition” and after the word “Filed” is hand-written the date “21st” and type-written are the words “September 2022”.  I also note the rectangular court stamp has hand-written “21.09.22” but on closer examination I note the date appears as originally hand-written “23.09.22” with the date number “21” written over the date number “23”.  Other details handwritten are the document number “1” and the signature of a registry officer and those details are not in dispute.  Interestingly, on page 9 of the Petition, there is no date inserted under the signature and typewritten name of the Petitioner but under the signatures of the attesting witnesses on pages 9 and 10 are the type-written dates “21st September 2022”. 

28.	From my consideration of these details in the Petition, I find the Petition was uploaded to IECMS on 21 September 2022 but was registered as formally filed in the court registry on 23 September 2022.  That understanding or observation is consistent with my understanding of the records produced by Thalia on behalf of Koiam and by Bitas on behalf of the EC as discussed above.  

29.	This now takes me to the Rule 5 of the EP Rules which provides “A petition shall be filed with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.”  The Supreme Court in Epi v Farapo [1983] SC247 said “…Whilst the Court must strive to avoid sophistry, the act of filing petition and lodging deposit must be part of one act, an act of filing which is manifestly one and the same, not two separate and distinct acts requiring two separate and distinct visits to the Registry, one with the cheque and another with the petition…”   

30.	The Supreme Court also said in Aihi v Isoaimo [2015] SC1598 “…22. It is long held that the mandatory requirements of the Organic Law and the rules of Court that make provision for filing a petition must be complied with and complied with strictly.  In the case before us, the filing in the case at hand failed to comply with those mandatory requirements in several respects.  Firstly, the Petitioner visited the Curt registry on two different days to lodge the Petition and the payment of the filing fee and the security deposit respectively.  There were two visits to the registry on two different days.  On 20th March 2014, the Petition was lodged and left at the registry.  If it were intended that the Petition were to be “filed” the next day, the Petition should not have been lodged at the registry and left there.  All too often, litigants deliver documents intended for filing through the court registry in the supposed act of filing and left there.  Litigants ought not and should not take the registry as if it were their repository to hold documents for them to collect or view at their own discretion and timing.  The delivery and surrender of the document at the registry constitutes the act of filing.  24. The onus of ensuring that the requirements of the rules are adhered to strictly in filing the petition primarily rests with the petitioner.  Petitioners should be made to take full responsibility for any administrative error made by court staff occasioned by the petitioner’s own lack of compliance with the rules of court pertaining to filing a petition in the first place.  25. In the case at hand, the petitioner mistakenly lodged the petition at the registry without the cash or bank cheque for the security deposit.  He had paid the security deposit to the wrong person at the wrong time at the wrong place.  He should have recalled the document and returned to the registry the next day and lodged the petition with the security deposit in cash or bank cheque…” 

The late filing of the “Notice of Payment of Filing Fee” and the “Notice of Payment of Security Deposit”  

31.	The second aspect of the challenge to the “filing” of the petition concerns the date of payment of the filing fee of K1,000 and the “filing” of the receipt or deposit slip as evidence of payment of the filing fee.

32.	The third aspect of the challenge to the “filing” of the petition concerns the date of the payment of the security deposit of K5,000 and the “filing” of the receipt or deposit slip as evidence of payment of the security deposit. 

33.	During the hearing, at the request of Ms Salika of counsel for Koiam, my attention was drawn to two documents from the court file. 

34.	The first document was the IECMS form entitled “Attachment 2 Notice of Payment of Filing Fee” which was dated 23 September 2022.  That document is also marked with the court stamp as “Dated 23.09.22” and was marked as Document number 3.  The filing fee receipt confirms the sum of K1,000 was paid by Koiam at Vulupindi Haus on 21 September 2022 and that is verified by the Notice signed by Baka Bina who certifies “the copy of the receipt was presented to me on the 21st September 2022”.  However, that receipt was attached to the Notice and lodged or filed in the Registry on 23 September 2022.    

35.	The second document was the IECMS form entitled “Attachment 3 Notice of Payment of Security Deposit” which was dated 23 September 2022.  That document is also marked with the court stamp as “Dated 23.09.22” and was marked as Document number 4.  Ms Salika for Koiam says the security deposit confirmation was automatically generated when Koiam made her direct deposit of K5,000 by phone banking but there is no notation in that automatically generated receipt that states the date the security deposit was paid in by Koiam.  Instead, there is a handwritten notation “23922” which appears to mean the date 23 September 2022.  In my view, it is unclear as to the date when the security deposit was actually paid or deposited into the designated bank account.  However, the receipt is attached to the Notice that was lodged or filed in the Registry on 23 September 2022.      

36.	Those court records and details tell me that the Notice of Payment of the Filing Fee and the Notice of Payment of the Security Deposit were formally filed in the court registry on 23 September 2022.    

37.	The EC’s lawyers also relied on the Affidavit of Peter Kuman sworn and filed on 5 June 2023 and I restate in full the contents of that affidavit from paragraph 1. “1. I am the principal of Kuman Lawyers, Lawyers for Electoral Commission of Papua New Guinea “ECPNG” (“our clients”), in this proceeding and, as such, I am authorised to depose to this my Affidavit.  Except where stated to be on information or belief, I have personal knowledge of the facts deposed to herein, and where stated to be on information or belief, I believe the same to be true.  I caused to be sent to Gloria Salika the Principal of GFS Lawyers at about 10:05pm on Tuesday, 29 November 2022 an email outlining a request for a clear copy of the Notice of Security of Costs.  Annexed hereto and marked “PK1” is a true copy of my email dated 29 November 2022.  I caused to be sent to Gloria Salika the Principal of GFS Lawyers at about 10:07pm on Tuesday, 29 November 2022 a further email requesting a copy of the banking details confirming the date of transaction.  Annexed hereto and marked “PKS” is a true copy of my email dated 29 November 2022.  I again caused to be sent to Gloria Salika the Principal of GFS Lawyers at about 10:26pm on Tuesday, 29 November 2022 another email requesting a copy of the banking receipt.  Annexed hereto and marked “PK3” is a true copy of my email dated 29 November 2022.  I caused to Gloria Salika the Principal of GFS Lawyers, letter dated 29 November 2022.  Annexed hereto and marked “PK4” is a true copy of Kuman Lawyers letter dated 29November 2022.  The letter referred to above was served on Gloria Salika on 30 November 2022.  Annexed hereto and marked “PK5” is a true copy of Kuman Lawyers letter dated 29 November 2022 containing acknowledgment of service details.  Ms Salika has never responded nor provided a clear copy of the security for costs deposit paid by her client to date.  Then on 30th May 2023, I caused a letter to Ms Salika again in light of the decision by Manuhu J in Raminai v Pano and Electoral Commission (Unreported 12 May 2023).  Annexed hereto and marked “PK6” is a true copy of my letter.  On 2 June 2023 Ms Salika wrote to me enclosing a copy of Cannings J’s decision in Parkop v Guffa and Electoral Commission (Unreported 31 May 2023).  Annexed hereto and marked “PK7” is a true copy of her letter.” 

38.	This affidavit evidence was not refuted by counsel for Koiam despite repeated requests for provision of the receipt for the security deposit and clarification as to the date when the bank deposit was made by Koiam in three separate communications on 29 November 2022 and again five months later, on 30 May 2023, all to no avail.  Even at the hearing on 7 June 2023, Koiam’s lawyer had not responded directly to the lawyer for the EC on this issue. 

39.	In my consideration of all the evidence submitted on this issue, there is no direct evidence disclosed as to the date Koiam made payment of the security deposit into the designated bank account although there is evidence, uncontested, that the security deposit was paid and formal notice of that payment was filed in the National Court Registry on 23 September 2022.

40.	In summary, my findings on the pertinent facts are:

a)	The declaration of Kaupa as the member elect was made on 12 August 2022. 
b)	The period of 40 days for the filing of a petition to lawfully challenge the election and declaration of Kaupa on 12 August 2022 expired at midnight on 21 September 2022
c)	GFS Lawyers for Koiam created a file for this proceeding on IECMS at 9:33pm on 21 September 2022;
d)	At 9:44pm on 21 September 2022, GFS Lawyers for Koiam uploaded to IECMS the receipt for filing fee of K1,000
e)	At 9:47pm on 21 September 2022, GFS Lawyers for Koiam uploaded to IECMS the receipt for the security deposit fee of K5,000
f)	At 11:29pm on 21 September 2022, GFS Lawyers for Koiam uploaded to IECMS the Petition
g)	The filing of the Petition, the filing of the Notice of Payment of the Filing Fee receipt and the filing of the Notice of Payment of the Security Deposit Fee were registered as filed in the court file in the National Court Registry on 23 September 2022.      

41.	As a result of my findings on the pertinent facts, I am satisfied the Petition, the Notice of Payment of the Filing Fee receipt and the Notice of Payment of the Security Deposit Fee were all filed together on 23 September 2022. 

42.	As a result of my findings on the pertinent facts, I am satisfied the Petition which was filed on 23 September 2022 was filed out of time or after the 40 days period which expired on 21 September 2022. 

43.	The circumstances of this case as discussed above are almost the same as circumstances in the recent matter of Wesley Raminai v Maino Pano & Electoral Commission (2023) N10248 heard and decided by Justice Manuhu on 12 May 2023:

 “…The declaration was made on 6 August 2022.  Forty (40) days from then was 15 September 2022.  The petition (including the notices of payment of filing fees and payment of security for costs) was filed on 15 September 2022 at 10.14pm.  Sealed copies of the petition were uplifted from the Registry on 22 September 2022, albeit the cover page to the sealed copies of the petition indicated 15 September 2022 to be the petition’s filing date  Under the Election Petition (Miscellaneous Amendments) Rules 2022, “filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number.  8. Long story short, the sealed copy of the petition was picked up on Thursday 22nd September 2022…Strangely enough the petition cover page has 15th September 2022 as the date of filing.  If a Registry officer was still in the Registry at 10.14pm to register, seal and endorse the petition, he deserves a pay rise, but it was unlikely.  On the evidence, I find that the entry of 15th September 2022 as the date of filing of the petition was done on 22nd September 2022…”  Responding to the Deputy Registrar’s explanation that, under IECMS, the petition was “deemed” to be filed on 15th September 2022, Manuhu J held:  10. In my view and with due respect, in the context of ss. 208(3) and 209 of the Organic Law, this is a serious misunderstanding.  There is no legal basis for the Deputy Registrar to hold that view.  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(3) and 209.” 

 With respect, I adopt the reasoning of the court in this matter as the circumstances are similar and appropriate to the circumstances of this matter.  I also note Counsel for the EC correctly alerted me to the fact this decision of Manuhu J has been appealed to the Supreme Court.  

IECMS

44.	I am a judge resident in Kokopo since 2019 and I am not familiar with this system although I am aware it was introduced for proceedings filed in Waigani following the issue of a Practice Direction (IECMS) No. 1/2022 by the Chief Justice dated 1 February 2022 undercover of a memo from the Chief Justice to all Judges dated 31 January 2022.  These documents were handed up in court by counsel for Koiam.  I note rule 8(2)(d) provides that the Election Petition Rules will continue to apply to all cases initiated or filed through IECMS.  

45.	In the Affidavit of Thalia Salika filed 6 June 2023, it annexed an explanatory manual in respect of IECMS.  At page 14, it describes “Some fields in this section are mandatory to be filled in.  They are marked with an asterisk.”  Then below that, it provides the following “Case Filed – indicate the date and time when the case is filed at the court.”  And “Case Registered – indicate the date and time when the case is registered in the system database.  I understand this to mean that in those fields, the person providing the information is expected to input that information.  Returning to annexure “TDS.1” of the Affidavit of Thalia Salika filed 6 June 2023, I assume the information appearing under Case Filed “21-09-2022 21:33” was inserted by the lawyer for Koiam.  Those details could not be correct as the National Court Registry was closed at that time.  The reliance on this information taken from IECMS as to the filing of the petition or documents generally is not entirely accurate or reliable as there appears to be the possibility a user has the power to edit, delete and change information.  Although I did not take submissions in this regard from counsel for the parties, I believe there maybe issues with IECMS with the “filing” of documents through IECMS when considering some provisions of Order 2 of the National Court Rules including the following: 

Rule 5.  Affixing of seal and stamp.  The seal or the stamp shall be affixed by the Registrar to such documents as are by these Rules authorized to be sealed or stamped.

Rule 10.  Signing and filing of documents.  Documents may be signed for the Registrar and documents may be received or filed by any clerk in the Registry to whom such duties are assigned.

Rule 11.  Registry hours. (2/6).  (1)  The Registry shall be open to the public for business every day of the year except Saturdays, Sundays and Court holidays.  (2) The Registry shall be open from 8.00a.m. to 12.00 noon and 1.00 p.m. to 3.30 p.m.

Rule 12.  Opening of Registry outside business hours. (2/6).  Where any party or practitioner or any person having any interest in any proceedings pending or about to be commenced has any proper business to transact with the Registrar at any time when his office Is not open to the public which business for any reason could not be transacted when the office is next to be opened in the normal course or which might if so transacted involve the person concerned or any other person in serious risk of prejudice that person may, on payment of a fee of K5.00, require the Registrar to open his office to transact the business in question at some proper and convenient time.

Rule 15.  Register of documents filed.  There shall be kept in the Registry a register of all documents filed and all proceedings taken in any cause or matter showing the dates on which such documents are filed or such proceedings taken.

Rule 19.  Date of filing.  The date of filing shall be written by the Registrar on every document which is filed.	

46.	For the reasons stated above, I will dismiss the grounds of objection that notice of payment of the filing fee and the notice of the payment of the security deposit were filed two days after the filing of the petition and I will uphold the ground of objection that the Petition was filed out of time. 

47.	The determination of these three grounds of the objections renders it unnecessary to consider the remaining grounds of the objections.                   

48.	I will dismiss the petition for being incompetent.  As costs shall follow the event, I will order the Petitioner shall pay the costs of the First and Second Respondents, such costs to be paid on a party and party basis and to be taxed if not agreed.  Further, I will also order the security deposit of K5,000 shall be released and paid to the Respondents in equal shares.

49.	The Court orders that: 

1)	The grounds of objection that the notice of payment of the filing fee and the notice of the payment of the security deposit were filed two days after the filing of the petition are dismissed.  

2)	The ground of objection that the Petition was filed out of time is upheld.

3)	The Petition is dismissed for being incompetent.   

4)	The security deposit of K5,000 shall be released and paid to the Respondents in equal shares.

5)	The Petitioner shall pay the costs of the First and Second Respondents, such costs to be assessed on a party and party basis and to be taxed if not agreed.

Decision accordingly:

GFS Lawyers: Lawyers for the Petitioner
Mawa Lawyers: Lawyers for the First Respondent
Kuman Lawyers: Lawyers for the Second Respondent