N10398

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 91 OF 2022 [IECMS]

IN THE MATTER OF DISPUTED RETURN FOR THE
SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN
PETER NUPIRI
Petitioner

AND:
HON. WILLIAM POWI
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri J
2023: 03rd & 7th July

ELECTION – Parliamentary – Petition – Objection to competency – Security Deposit Paid Before Filing of Petition – Section 209 OLNLLGE Breached – Security Deposit 15th Sept. 22 – Petition Filed 23rd Sept. 22 – Section 210 OLNLLGE No Proceedings – Incompetency of petition – S 210 Dismissal of Petition – Security Deposit Distributed Evenly between the Respondents – Cost Follow Event.

Facts

The Respondents objected to the competency of the petition filed by the Petitioner invoking section 209 of the Organic Law on National & Local Level Government Elections contending that “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. The security Deposit was paid on 15th September 2022 and petition was filed 23rd September 2022, so it offended against section 209 of the OLNLLGE. Both not having been done one and at the same time together there and then, but 8 eight days apart of each other.

Held

Petition not complying with section 209 of the OLNLLGE.
Section 210 no Petition.
Objection to competency upheld.
Petition dismissed.
Security deposit divided equally between respondents.
Cost follows the event against petitioner.

Cases Cited:
Aihi v Isoaimo [2015] PGSC 81; SC1598 
Andrew Kumbakor v Joesph Sungi [2012] PGNC 287; N5002
Andapanga Alfred Nelson Baliawe v Hon. John Kaupa & Electoral Commission (2023) N10357
Delba Biri v Bill Ninkama [1982] PNGLR 342
Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 
Ephraim Apelis v Sir Julius Chan [1998] PGSC 43; SC573
Ephraim Apelis v Sir Julius Chan [1998] PGSC 43; SC573
Holloway v Ivarato [1988] PNGLR 99
Ibo v Hagahuno [2023] PGNC 132; N10322
Kiso v Ling Stucky (2023) N10290 
Koiam v Kaupa [2023] PGNC 135; N10330
Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 
Kubak v Malakai Tabar [2012] PGNC 286; N4992 
Mune v Aigiru, Kaiulo & Electoral Commission [1998] PGSC 3; SC590
Manwau v Bird [2023] PGNC 94; N10249 
Quoreka v Basa (2023) N10207
Parkop v Juffa (2023) N10281
Raminai v Pano [2023] PGNC 98; N10248 
Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC1064 
Sauk v Polye and Electoral Commission of Papua New Guinea [2004] PGSC 13; SC769
Sir Arnold Amet v Peter Yama [2010] PGSC 46; SC1064 

Counsel:
E. M. Waifaf, for the Petitioner
A. Baniyamai, for the First Respondent
H. Nii, for the Second Respondent
		
RULING
7th July, 2023

1.	MIVIRI J: This is the ruling on the objections to competency filed by the First and second Respondents on the 20th October 2022. By leave granted 03rd July 2023 by this Court the Notice of objection to competency was amended and included an additional ground. 

2.	This additional ground is pursuant to section 209 of the Organic Law on that the security deposit was made eight (8) days after which the petition was filed 23rd September 2022. Therefore, not at the same time as the filing of the petition. Both objections are against the Petition filed of the 23rd of September 2022 by the Petitioner, who disputes the return of the incumbent the first Respondent, notice of the petition caused to the respondents the 26th September 2022.

3.	The argument of both respondents founded on section 209 of the OLNLLGE is that the petition was filed on the 23rd September 2022. That was eight (8) days after the deposit of the security deposit made on the 15th September 2022. It did not comply with being filed at the same time therefore the Petition could not be heard by section 210 of the OLNLLGE. It was incompetent and should be dismissed with costs.

4.	The first respondent relies on the affidavits of firstly, William Powi sworn of the 19th June 2023 filed the 20th June 2023, and Dawah Kelebi sworn of the 19th June 2023 filed the 20th June 2023. Essentially this evidence is that the petition was filed on the 23rd September 2022, which was (8) days after payment of the security deposit on the 15th September 2022. File search of document 1, the Petition and Document 4 confirmed these facts attaching the butt of the deposit slip of Bank of South Pacific dated 15th September 2022, evidence deposit of K 5000 that was made into the account 1000583618 National Court Registrar’s Trust Account. So, it was eight (8) days after and not on the same day and time.

5.	In the case of the second respondent, he simply relies on the documents as they appear on the court file. They are the records of the Court, it being a court of record. And its records speak what is depicted there. Here clearly by the records of the Court, security deposit was made 15th September 2022 and petition was filed 23rd September 2022. Both on different days hence evidence of breach of section 209 and by section 210 making the petition in competent and therefore subject to dismissal with costs.

6.	The petitioner rebuts relying on the affidavits of Sylvester Komba sworn of the 27th June 2023 filed the 29th June 2023, affidavit of Peter Nupiri sworn of the 29th June and filed 29th June 2023. And affidavit of Mathew Bae sworn 30th June 2023 filed 03rd July 2023, Baka Bina also sworn and filed of the same date. And lastly the affidavit of Kini Mamis filed of the 03rd July 2023. 

7.	The essentials of all these evidence relied is that on the 23rd September 2022 at 12.54pm the Petitioner’s Lawyers uploaded on IECMS the Election Petition with the receipt of the Filing fees at 1.26pm and the Security Deposit at 1.28pm. The filing fee was paid on 08th September 2022. The Security Deposit K 5000.00 was deposited at the Bank of South Pacific National Court Registrar’s Trust Account number 1000583618 on the 15th September 2022. And IECMS approval by the Assistant Registrar of the Petition was on the 24th September 2022 at 6.59am with the EP No. 91 of 2022 registered. Together with his Staff the Assistant Registrar did the following: Print the uploaded election petition and sealed it on the 23rd June 2022 and created a physical court file. After creating the file, they prepared the receipts and notices submitted to the Assistant Registrar on the 26th September 2022 who signed issued confirming that he had received the petition with the filing fee receipt and the security deposit receipt. And on the 26th September 2022 the sealed election petition and notices were returned to the Petitioners Lawyers and the Petitioner served on the second respondent the petition filed the 23rd September 2022. Service on the first Respondent was on the 29th September 2022 by advertisement in the Newspaper.

8.	And that because the K1000 filing fee is paid at the Finance Office after which the yellow receipt is produced at filing. The Security Deposit is made at the Bank of South Pacific limited at the Registrar’s nominated account and the receipt is produced at filing. And the Petition is lodged through the IECMS in accordance with the Practice Directions (IECMS). No. 1 of 2022. And it is filed with the receipts of the filing fee and the Security deposit as held by Parkop v Juffa (2023) N10281. That the filing fee and security deposit were made eight (8) days ago on the 15th September 2022. And Petition was filed on the 23rd September 2022. But the uploading to IECMS was filed at the same time by the receipts of both which were lodged with the petition on the IECMS. Therefore, complied with section 209 of the OLNLLGE. And that is supported by this Courts determination in Kiso v Ling Stucky (2023) N10290. And which are National Court Judgements and of persuasive value but not binding on me. So, for all intent and purposes do not lay out the law to be followed. And the same is so of Parkop (supra).

9.	That the challenge by the Petition must be allowed the full hearing because declaration of the incumbent was made prematurely without the counting of votes casted in 509, 450 ballots. And that the respondents are nit picking in their arguments which does not stand to derail the petition. He relies on Quoreka v Basa (2023) N10207 decision of this Court presided by Justice Manuhu. Where the allegation is as to the sabotaging of counting that did not conclude but declaration made by the Electoral Commission despite. The simple answer here is that by itself it is not a basis to waive the requirements set out by section 209. And therefore, this is not the ground that will enhance the permission to hear this petition. I accordingly will reject this argument.

10.	In my considered view the material facts are set out in the Notice of Payment of Security Deposit signed by the Deputy Registrar Baka Bina of the National Court, document number 4 attaches the butt of the deposit slip of Bank of South Pacific dated 15th September 2022, evidence deposit of K 5000 that was made into the account 1000583618 National Court Registrar’s Trust Account. The petition, Document 1 on the Court file was filed on the 23rd September 2022. That is (8) eight days later. And therefore, not at the same time in the words of section 209 of the OLNLLGE. Because the butt of the Deposit slip is the primary document that evidences the deposit into that account managed by the Bank of South Pacific. It does not keep timelines so as to determine an election petition and the dispute that arises out of section 209 of the OLNLLGE. It is an independent person whose primary concern is the business of Banking and the maintenance of that account number 1000583618 bearing the name National Court Registrar’s Trust Account. It is not interested in the filing of the documents. It has forms that evidence its business of banking here the deposit slip butt attached. 

11.	In my view it is independent confirmation of that fact that, K 5000.00 was paid into that account held at that bank in that name for the account 1000583618 of the National Court Registrar’s Trust Account. The affidavit relied by the petitioner of Deputy Registrar Baka Bina of the 03rd July 2023 sworn of the 30th June 2023 affirms that fact. That is the same evidence that is in of the incumbent William Powi and Dawah Kelebi relevant particulars set out above. So that it is common both to the Petitioner as well as the incumbent that the security deposit was paid into the bank account particulars set out above on the 15th September 2022. Eight (8) days later the 23rd September 2022 the petition was filed.

12.	In my view the concession to these material facts by both sides of the dispute, means that the security deposit was made on the 15th September 2022. And the petition was filed on the 23rd September 2022. There were administrative duties by the IECMS system carried out by Deputy Registrar Baka Bina supported by his Staff, but ultimately the record was locked with petition filed 23rd September 2022. 

13.	When these facts are aligned with section 209 of the OLNLLGE the filing is not at the same time as contended by the petitioner. The petition was filed on 23rd September 2022, 8 days after payment or deposit of the security for costs into the National Court Registrar’s Trust Account No. 1000583618 with Bank of South Pacific Ltd on 15th September 2022, and hence offends against section 209 of the Organic Law. Because “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.” This language is compelling and cannot be discounted either liberally because the ultimate compass is the language that is used by the legislature, shall, as opposed to may here. 

14.	This language is mandatory and in commanding terms denoted using the word shall. It commands that at the time of filing the petition, the petitioner shall deposit. It means both must be attended to or carried out, executed at the same time and date of filing. It is one and the same on that individual date not separate and distinct days apart. It would be in order if the payment made on the 15th September 2022 was coupled accompanied with the filing of the Petition. That in both instance it bore the date 15th September 2022. 

15.	The uploading of forms including the deposit slip butt does not mean that payment of the security deposit takes place in that uploading by the IECMS, Raminai v Pano [2023] PGNC 98; N10248 (12 May 2023). That system manages into the court registry by electronic means a document, the Deposit Slip that is generated by the Bank of South Pacific detailing that the deposit of K 5000.00 paid into the account 1000583618 National Court Registrar’s Trust Account was on the 15th September 2022. The receipt issued by the Bank confirms the security deposit into that account. The uploading of that receipt does not consist of the deposit.  And the filing of the petition was on the 23rd September 2022 which is the date document 1 on EP 91 of 2022 came into being: Koiam v Kaupa [2023] PGNC 135; N10330 (14 June 2023). It is therefore evident that there is a breach of section 209 by these facts. And this is also consistent with the files search conducted by Dawah Kelebi affidavit sworn of the 19th June 2023 filed 20th June 2023. Coupled with that of the incumbent of the same date and time both relied in the leave application to amend the notice of objection subject of the decision there.

16.	Both documents are the official court records that speak and evidence that the petitioner has not filed, paid, at the same time and date. The payment of the security Deposit is on the 15th September 2022. Eight (8) days later the 23rd September 2022, Document 1 is dated the 23rd September 2022, the petition by the Petitioner is filed. That is official court records held by the registry of the Court at the discretion of the Court to use in the use of the determination of the matter before it: Andapanga Alfred Belson Baliawe v Hon. John Kaupa & Electoral Commission (2023) N10357; Kunjil v PNG Power Ltd [2007] PGNC 271; N3879 (23 April 2007). It does not need formal application to be applied to the law. The Court must follow and apply the law in all that it does. And it is no different given here by the facts and circumstances now apparent. That evidence apparent shows in my view a serious and underlying breach that will not advance this petition the combined effects of section 209 and 210 of the OLNLLGE. The breach makes the petition incompetent to advance any further from where it is by that fact in law. 

17.	Because Election Petition rules 2017 consolidated to the Election Petition (Miscellaneous Amendments) Rules 2022, rule 5 Filing and 7 Security Deposit are made to fulfill sections 208, 209 and 210 of the OLNLLGE. By themselves they do not operate over and above the Organic Law. They are there to give effect to the Organic law, here, section 209, or section 208 or 210 inclusive. And as subservient rules, so do not override in their operation against the Organic Law in any way or form. There is no marked difference, or distinction that portray or contend into the lane of the petitioner. Because the bank deposit slip butt is clearly on the 15th September 2022 and the petition is filed 23rd September 2022. Rule 1 definition defines, “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;” The depiction here is 15th September 2022 security deposit K 5000.00 and petition 23rd September 2022. Even going by Attachment 3 Notice of Payment of security Deposit document number 4 dated 26th September 2022. It is still not compatible with the fact that deposit was made physically into that account 1000583618 National Court Registrar’s Trust Account was on the 15th September 2022. Even if it is filing it is three days (3) apart from the act of filing the petition. Section 209 would have been complied with if on the 15th September 2022 the petition was also filed into the Registry not the 23rd September 2022.

18.	The primary effects of the OLNLLGE are not watered down either by the Rules or practise directions. The Organic Law is Constitutional Law and remains Supreme law pursuant to section 10 and 11 of the Constitution. Its dictate given its fair large and liberal interpretation by schedule 1.5 fair meaning to be given to the language used must go to the “operative words in section 209 at the time of the filing of the petition” which as held in Manwau v Bird [2023] PGNC 94; N10249 (2 March 2023) gives effect to the contention that section 209 if not complied by the operative words set out above, read with section 210 will make the petition incompetent and suffer dismissal.

19.	Because it is the very same scene set out in Aihi v Isoaimo [2015] PGSC 81; SC1598 (5 June 2015) where the Supreme Court firmed the dismissal of the petition on the ground that the security deposit was paid a day later after the filing of the petition. Here it is (8) eight days apart from payment and filing. Survival of the petition is in serious default warranting its incompetency evident. It is also the same ground that this Court followed in the dismissal of the petition in Ibo v Hagahuno [2023] PGNC 132; N10322(12 June 2023) recently. It is the law that has been followed in other similar cases bolding that position in law since Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 (28 March 1983) and Manwau v Bird & ELPNG (supra). This line of authoritative pronouncements of the law taken cardinal by the highest Court of the Land, the Supreme Court in the decisions set out above, cannot in my view be ignored but must be followed. And stares decisis is clearly laying out that section 209 is strict and any non-compliance as is the case here will draw dismissal. Because that is the intent of the legislature both sections 208 and 209 with 210 of the OLNLLGE depict in bold the serious business of voting, composing the legislature of the people. The voice of the people expressed sacred in majority must be respected unless there are very clear reasons demonstrated in law to follow otherwise.

20.	Section 210 of the Organic Law is the pillar that runs through this dispute authoritatively sanctioning that the petition will not proceed and cannot be entitled to proceed if the mandatory requisites under Section 208 (a) and 209 of the Organic Law are not fully complied with. Simply put this is filing and payment of the security deposit 8 days apart from each other and therefore would follow what the Supreme Court observed set out above.

21.	It is undisputed that the law on this is very well settled by Delba Biri v. Bill Ninkama [1982] PNGLR 342 which has been adopted applied authoritatively in many other cases that have come in similar vein as Holloway v Ivarato [1988] PNGLR 99; Ephraim Apelis v Sir Julius Chan [1998] PGSC 43; SC573 (9 October 1998); Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC 1064 (9 July 2010); to name a few. The authoritative proposition of sections 208, 209, and 210 of the Organic law is resoundingly conclusive well summed by Justice Injia as he then was that, “The National Court is not a free for all open political quasi-judicial forum for any aggrieved persons to come to air their grievances in the hope that the election, the choice of the majority, maybe overturned”, Mune v Aigiru, Kaiulo & Electoral Commission[1998] PGSC 3; SC590. Whether it is the liberal approach or otherwise it is not nit picking here defeating the spirit of the Organic Law. Because this is not mere technical objections without merit and substance, but warranted sanctioned by the law set out above, Jimson Sauk v Don Polye & Electoral Commission of Papua New Guinea [2004] PGSC 13; SC769 (15 October 2004).
 
22.	The seriousness of all I set out above stems from the determinations of the Constitutional Planning Committee who were at great pains to explain, emphasise and make recommendations on for inclusion in the Independent Constitution (CPC Report Ch. 5, p. 13; Ch. 16, pp. 2 & 3), and as numerous judicial decisions have stressed over the years, considerable importance is attached to the electoral system; the system, as we all know full well, by which members of Parliament are chosen; the aim of which system is to make Parliament representative of the views of the people.  

23.	“Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.
Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . .Review pursuant to section 155 (2) (b) ; Sauk v Polye and Electoral Commission of Papua New Guinea [2004]PGSC 13; SC 769 (15 October 2004).

24.	The Organic Law on National & Local Level Government Elections (OLNLLGE) carries this into effect in the way it is drafted out. Section 208, 209, and 210 were considered in Delba Biri (supra) at p 345, “it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause ... and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right, and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."  That determination is relevant for the purposes of the consideration of section 209 here, because of the words of section 210 which says, “Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

25.	And Delba Biri (supra) at 345 makes that very clear; “In our view, it is clear that all requirements in Section 208 and Section 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 proceedings unless Section 208 and section 209 are complied with. In our opinion, it is beyond argument that if a petition does not comply with all or any of the requirements of section 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of section 210 of the Organic Law”. It is conclusive by the application of these laws set out above that the facts here do not warrant the survival of this petition. It is evident apparent and identifiable by all its facts on all fours set out above that it is incompetent from the word go. It is not compatible to allow it to remain intact on the list and must be dismissed forthwith with costs. And it follows that the security costs of K 5000.00 be equally distributed between the respondents. Costs will follow the event against the petitioner in favour of the respondents.

26.	And I make the following orders:

(i)	The Respondent’s Objections to competency are upheld.
(ii)	The Petition is dismissed in its entirety.
(iii)	The Petitioner shall pay the Respondents Costs of the proceedings to be taxed if not agreed.
(iv)	The security deposit of K5000 held by the Registrar shall be paid to the Respondents in equal share.

Orders accordingly. 
__________________________________________________________________
Edward M. Waifaf Lawyers:  Lawyer for the Petitioner	
Baniyamai Lawyers              : Lawyer for First Respondent
Harvey Nii		              : Lawyer for the Second Respondent