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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 95 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE
MADANG PROVINCIAL ELECTORATE
PETER CHARLES YAMA
Petitioner
V
RAMSEY PARIWA
First Respondent
ELECTORAL COMMISSION
Second Respondent
Madang: Cannings J
2023: 18th, 19th, 23rd August
ELECTIONS – petitions – objection to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether petition adequately sets out facts relied on to invalidate election due to errors or omissions by electoral officers – s 218 (immaterial errors not to invalidate election) – s 217 (real justice to be observed) – whether s217 applies when determining objections to competency of petition.
The respondents to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) each objected to competency of the petition, which originally consisted of six grounds of challenge. Three grounds of the petition, Nos 2, 5 and 6, were abandoned with leave of the Court, leaving the petition based on Nos 1, 3 and 4. No 1 alleged that the second respondent unlawfully extended the date for the return of the writ for the election, which was a material error for the purposes of s 218 of the Organic Law on National and Local-level Government Elections. No 3 alleged that the first respondent committed the criminal offence of undue influence during the campaign period and that his election is void under s215(1) of the Organic Law. No 4 alleged that officers of the second respondent committed numerous errors or omissions during the scrutiny (counting of votes), which were material errors affecting the outcome of the election as there was no actual scrutiny. The grounds of objection in the first respondent’s notice of objection were: (a) ground 1 of the petition was incompetent as it argued an issue that had already been determined by the Supreme Court in another proceeding; (b) ground 3 of the petition was incompetent as it failed to plead the elements of the offence of undue influence and the statements allegedly made by the first respondent were true; (c) ground 4 of the petition was incompetent as it was vague and failed to plead sufficient facts, by failing to plead the names of electoral officers who allegedly committed errors or omissions; (d) the petition was not filed within 40 days after the date of declaration of the result and was therefore incompetent under s 208(a) of the Organic Law; and (e) the petitioner’s security for costs was not deposited with the Registrar on the day of filing the petition contrary to s 209 of the Organic Law. The grounds of objection in the second respondent’s notice of objection were: (a) ground 1 of the petition was incompetent as it was not a proper ground of challenge in an election petition as it argued questions of constitutional interpretation within the exclusive jurisdiction of the Supreme Court; (b) ground 4 of the petition was incompetent as it was vague and failed to plead sufficient facts, by failing to plead how the alleged errors or omissions of electoral officials affected the result of the election; (c) the petition was not filed within 40 days after the date of declaration of result of the election and was therefore incompetent under s 208(a) of the Organic Law; and (d) the petitioner’s security for costs was not deposited with the Registrar on the day of filing the petition contrary to s 209 of the Organic Law.
Held:
(1) As to the first respondent’s grounds of objection to competency: (a) was refused as although the petitioner’s proposition that the return date of the writ was unlawfully extended may have been determined in a previous Supreme Court proceeding, that did not create an issue estoppel against the petitioner; (b) was refused as the elements of an offence under s 102(b) of the Criminal Code were adequately pleaded and the question of whether the statements allegedly made by the first respondent were true could only be determined at a trial; (c) was sustained as the particulars of the alleged errors or omissions were inadequately stated, thus failing to meet the requirements of s 208(a) of the Organic Law; (d) was refused as there was sufficient evidence to find that the petition was lodged through IECMS on the 40th day after the date of the declaration of the result of the election; and (e) was refused as the security for costs was deposited one day prior to the filing of the petition, which amounts to “at the time of filing” the petition for the purposes of s 209 of the Organic Law.
(2) As to the second respondent’s grounds of objection to competency: (a) was sustained as, although the question of whether the return date of the writ was unlawfully extended for this election was within the jurisdiction of the National Court, it was not pleaded that, and how, extension of the return date for the writ affected the result of the election; (b) was sustained as the particulars of the alleged errors or omissions were inadequately stated, thus failing to meet the requirements of s 208(a) of the Organic Law; (c) was refused as there was sufficient evidence to find that the petition was lodged through IECMS on the 40th day after the date of the declaration of the result of the election; and (d) was refused as the security for costs was deposited one day prior to the filing of the petition, which amounts to “at the time of filing” the petition for the purposes of s 209 of the Organic Law.
(3) Grounds 1 and 4 of the petition were struck out and, grounds 2, 5 and 6 of the petition having been abandoned, the petition was ordered to proceed to trial only on ground 3 of the petition.
Cases Cited
The following cases are cited in the judgment:
Kassman v Tkatchenko (2023) N10213
Minape v Rosso & Electoral Commission in EP 3 of 2022, Gavara-Nanu J, 16.05.23, unreported
Numu v Sia & Electoral Commission, EP 87 of 2022, 28.07.23 unreported
Parkop v Juffa (2023) N10281
Ramanai v Pano (2023) N10248
SC Ref No 4 of 2017, Reference by the Ombudsman Commission (2019) SC1814
Sua v Numu & Electoral Commission (2020) SC1978
Counsel
B B Lomai, for the Petitioner
M Kombri, for the First Respondent
P Kuman, for the Second Respondent
23rd August 2023
1. CANNINGS J: This is a ruling on two objections to competency of an election petition. The petition was filed by unsuccessful candidate Peter Charles Yama (the petitioner) disputing the election of first respondent Ramsey Pariwa as member for Madang Provincial in the 2022 general election. The Electoral Commission is second respondent.
2. The petition originally contained six grounds of challenge:
3. Three of those grounds, Nos 2, 5 and 6, were abandoned with leave of the Court prior to the hearing of the two objections to competency, leaving the petition based on grounds 1, 3 and 4.
4. The first respondent’s objection to competency was made by the further amended notice of objection filed 3 August 2023.
5. The second respondent’s objection to competency was made by the amended notice of objection filed 2 August 2023.
FIRST RESPONDENT’S GROUNDS OF OBJECTION
6. The grounds of objection in the first respondent’s notice of objection are:
(a) ground 1 of the petition is incompetent as it argues an issue that has already been determined by the Supreme Court in another proceeding (paragraph 1 of the notice of objection);
(b) ground 3 of the petition is incompetent as it fails to plead the elements of the offence of undue influence and the statements allegedly made by the first respondent were true (paragraph 3 of the notice of objection);
(c) ground 4 of the petition is incompetent as it is vague and fails to plead sufficient facts, by failing to plead the names of electoral officers who allegedly committed errors or omissions (paragraph 4 of the notice of objection);
(d) the petition was not filed within 40 days after the date of declaration of the result and is incompetent under s208(e) of the Organic Law (paragraph 7 of the notice of objection); and
(e) the petitioner’s security for costs was not deposited with the Registrar on the day of filing the petition contrary to s 209 of the Organic Law (paragraph 7 of the notice of objection).
SECOND RESPONDENT’S GROUNDS OF OBJECTION
7. The grounds of objection in the second respondent’s notice of objection are:
(a) ground 1 of the petition is incompetent as it is not a proper ground of challenge in an election petition in that it argues questions of constitutional interpretation within the exclusive jurisdiction of the Supreme Court (paragraph 4 of the notice of objection);
(b) ground 4 of the petition is incompetent as it is vague in that it fails to plead sufficient facts, by failing to plead how the alleged errors or omissions of electoral officials affected the result of the election (paragraph 5 of the notice of objection);
(c) the petition was not filed within 40 days after the date of declaration of result of the election and is therefore incompetent under s 208(a) of the Organic Law (paragraph 1 of the notice of objection); and
(d) the petitioner’s security for costs was not deposited with the Registrar on the day of filing the petition contrary to s 209 of the Organic Law (paragraph 2 of the notice of objection).
METHOD
8. The grounds of objection in the two notices of objection overlap to a large extent but are not identical, so I will determine the two objections separately.
DETERMINATION OF FIRST RESPONDENT’S OBJECTION
(a) Ground 1 of the petition is incompetent
9. Ground 1 of the petition argues that the second respondent extended the date for return of the writ for the Madang Provincial election to 19 August 2022, which was in contravention of s 105 (general elections) of the Constitution and ss 81 (general election to be held on same day) and 177 (extension of time) of the Organic Law. It is argued that the extension of the date for return of the writ was unconstitutional and therefore a material error or omission which affected the outcome of the election, rendering the election of the first respondent null and void.
10. The first respondent argues that this ground of the petition is incompetent in two respects. First the petitioner has already raised the issue in another case, SCCOS No 10 of 2022, which is an application by the petitioner under s 18(1) of the Constitution based on the same cause of action and seeking the same relief that he is prosecuting in ground 1 of the petition. He ought not be permitted to maintain that cause of action in an election petition as it is an abuse of process to do so, as determined by Yagi J in a similar case, Numu v Sia & Electoral Commission, EP 87 of 2022, 28.07.23 unreported. Secondly, the cause of action being prosecuted in ground 1 of the petition has been authoritatively determined by the Supreme Court in SC Ref No 4 of 2017, Reference by the Ombudsman Commission (2019) SC1814 and is res judicata or at least issue estoppel.
11. I reject both arguments of the first respondent. First, there is evidence that SCCOS No 10 of 2022 has been discontinued by the petitioner with leave of the Supreme Court. Though there might be an unresolved issue regarding costs of that proceeding it is for all intents and purposes a closed case. There is no abuse of process. Secondly, the petitioner is seeking to apply constitutional principles to the facts of this case regarding the Madang Provincial election in 2022. The decision of the Supreme Court in SC1814 had nothing to do with this case and its unique facts. The principles of res judicata and issue estoppel are irrelevant and have no application here.
12. The first respondent’s objection to ground 1 of the petition is refused.
(b) Ground 3 of the petition is incompetent
13. Ground 3 of the petition alleges that the first respondent committed the criminal offence of undue influence under s 102(b) of the Criminal Code during a campaign rally at Tugutugu village, Karkar Island, Sumkar District. It is alleged that the first respondent made the following statement in Tok Pisin:
Nau gavman bilong Peter Yama em corrupt. Peter Yama em wanpela corrupt man stret na em wanpela steal man.
Peter Yama em wanpela bisnis man em appim em yet na em no nap mekim wanpela samtin blo Madang. Em wok lo usim public funds lo runim own bisnis bilong em.
Peter Yama em wanpela bisnis man na mani man tasol em wanpela steal man noken votim em. Lo mi em Marape Gavman i givim mi K5,000.00 lo kam na campaign.
[English translation, agreed by the parties:
The government of Peter Yama is a corrupt government and Peter Yama is one of the corrupt men and one of the thieves.
Peter Yama is one of the businessmen and he always lifts up his name and never does something good for Madang. He normally uses the public funds to run his own business.
Peter Yama is a businessman and he is one of the money men or businessmen with lots of money and also he is one of the thieves and you must not vote for him. As for me, Marape government gave me K5,000.00 to come and do my campaign.]
14. The first respondent argues that ground 3 of the petition is incompetent as it fails to plead the elements of the offence of undue influence and the statements allegedly made by the first respondent were true (paragraph 3 of the notice of objection).
15. The elements of an offence under s 102(b) of the Criminal Code were explained by the Supreme Court in Sua v Numu & Electoral Commission (2020) SC1978. It is an offence for a person to:
16. Those elements are adequately pleaded in ground 3 of the petition. The person who allegedly was prevented or obstructed in the free exercise of his franchise as an elector is identified and it is sufficiently pleaded that the statements attributed to the first respondent amounted to fraud.
17. The question of whether the statements allegedly made by the first respondent are true can only be determined at a trial.
18. The first respondent’s objection to ground 3 of the petition is refused.
(c) Ground 4 of the petition is incompetent
19. Ground 4 of the petition alleges that officers of the second respondent committed numerous errors or omissions during the scrutiny (counting of votes), which were material errors affecting the outcome of the election as there was no actual scrutiny.
20. The objection to this ground of the petition is that it is incompetent as it is vague and fails to plead sufficient facts, by failing to plead the names of electoral officers who allegedly committed errors or omissions. I uphold this argument. The particulars of the alleged errors or omissions are inadequately stated, thus failing to meet the requirements of s 208(a) of the Organic Law. The first respondent’s objection to ground 4 of the petition is sustained.
(d) Petition not filed within 40 days after date of declaration of the result
21. The parties agree that the declaration of the result of the election was made on 18 August 2022 and that the 40-day period for filing the petition expired at midnight on 27 September 2022.
22. The first respondent argues that the facts show that the petition was not filed until at least 28 September 2022 when the petition and supporting documents were sighted and processed by Deputy Registrar Baka Bina.
23. Mr Bina gave oral evidence in this case and was cross-examined on his affidavit in which he deposed that the IECMS records showed that the petition was uploaded on to IECMS on the afternoon of 27 September 2022 and approved by the Registrar, Ian Augerea, at 10.00 pm on that day. It was for that reason, he testified, that the petition was given the filing date of 27.09.22.
24. Mr Kombri, for the first respondent, submitted that Mr Bina was evasive in his response to cross-examination and had improperly backdated the petition. I reject those submissions. I consider that Mr Bina was an honest and reliable witness and there was no improper backdating of the petition.
25. I agree with Mr Kombri’s submission that if the petition was not filed until 28 September 2022, it would have been late. As s 208(e) imposes a mandatory requirement and it is in the Organic Law, strict compliance with it is necessary. Substantial compliance is insufficient. Failure to comply with it means the petition is incompetent and must be dismissed. A petition filed one day late is too late and will be dismissed.
26. However, I accept Mr Bina’s evidence that the petition was in fact filed, by being uploaded on to IECMS, on 27 September 2022.
27. Mr Kombri relies on the recent decision of Manuhu J in Ramanai v Pano (2023) N10248 in support of that argument. His Honour held:
Filing 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.
28. I note that in drawing that conclusion, and finding that the petition (EP 89 of 2022 re Kagua-Erave Open) had been filed late, even though it had been uploaded through IECMS before the expiry of the 40-day period, his Honour took into account the definition of “filed” in rule 1 of the Election Petition Rules. That rule states:
“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.
29. I acknowledge that if that is the approach to be taken in the present case, I would find that the petition was filed no earlier than on 28 September 2022 and perhaps as late as 3 October 2022.
30. However, I am not bound by the decision of the National Court in that case and I respectfully decline to follow the approach that led to that decision. The definition of the word “filed” in the Rules of Court does not govern the meaning of that word in the Organic Law, which is a Constitutional Law and a superior law to the Election Petition Rules.
31. The word “filed” in the Organic Law should be given its natural and ordinary meaning, and in the event of ambiguity in its meaning, it must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).
32. I take into account that there is a practice direction issued by the Chief Justice, and it is an administrative requirement imposed by the Registrar, that election petitions filed in the Waigani Registry must be electronically lodged through IECMS. If I am wrong in saying that, then at least it is the case that petitioners or their lawyers are encouraged and invited to lodge petitions through IECMS.
33. That is what the petitioner did. Giving the word “filed” in s 208(e) of the Organic Law its natural and ordinary meaning, and giving paramount consideration to the dispensation of justice, and giving the word its fair and liberal meaning, I consider that lodging an election petition through IECMS amounts to filing of the petition.
34. I repeat what I said when the same issue arose in Parkop v Juffa (2023) N10281:
Interpreting the provision any other way could result in perverse consequences. What will happen if IECMS is down, or the internet is down or the Registry is flooded due to a downpour and is out of action for a week? The petitioner has done what is required to be done and lodged her petition before the end of the 39th day, but the Registry, through some lack of diligence on the part of its officers or through an act of God or whatever reason, good or bad, does not seal and allot a file reference until after the 40th day. I consider it is unjust in such circumstances for the court to say that the petition has been filed late.
35. I distinguish the facts of the present case with those in the recent case of Kassman v Tkatchenko (2023) N10213, in which part of the petition was lodged through IECMS before the end of the 40th day after the result was declared, and the balance was lodged the next day. Narokobi J held that filing was not complete until the whole of the petition was lodged through IECMS, so that petition, EP No 30 of 2022 re Moresby South Open, was dismissed as incompetent.
36. In the present case, the whole of the signed and attested petition, inclusive of the receipts of filing fee and security for costs, was lodged through IECMS on 27 September 2022. This means the petition was filed on 27 September 2022.
37. There was no failure to comply with s 208(e) of the Organic Law. I refuse ground (d) of the objection to competency.
(e) Security for costs not deposited on day of filing the petition
38. The first respondent argues that even if the petition is regarded as being filed on 27 September 2022, Mr Baka’s evidence is that he certified receipt of the deposit on 28 September 2022. Therefore, the deposit was made late, contrary to s 209 of the Organic Law.
39. The recent (16 May 2023) unreported decision of Gavara-Nanu J in Minape v Rosso & Electoral Commission in EP 3 of 2022 re Lae Open would support that argument. His Honour apparently upheld a similar argument about an early deposit not being at the time of filing the petition, and found that there was a failure to comply with s 209 of the Organic Law and upheld an objection to competency and dismissed the petition.
40. I understand that his Honour gave oral reasons for decision and has not yet published a written decision. Whatever the decision of his Honour was, I would respectfully have regard to it, but I make the same point that I made in relation to Manuhu J’s decision in Raminai v Pano: I am not bound to follow any decision of the National Court (Constitution, schedule 2.9(2)).
41. I consider the present case on its merits. I have to give the phrase “at the time of filing the petition” in s 209 of the Organic Law its ordinary and natural meaning. Does that mean that the security deposit has to be made on the same day that the petition is filed? I do not think so. As already seen in this case, if the first respondent’s arguments on the first ground of objection were to be sustained, the petitioner would not know the date of filing as that is something over which he had no control. But I have rejected that argument. The date of filing is clear. I have determined it to be 27 September 2022.
42. I find that proof of the making of the security deposit into the Registrar’s trust account at Bank South Pacific was lodged with the petition through IECMS on 27 September 2022. That is sufficient compliance with s 209. If the deposit was made earlier than 27 September 2022 that would also amount to being made “at the time of filing of the petition”.
43. There is no express requirement that the date of making the deposit must be the same date as filing the petition. The phrase “at the time of filing the petition” must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).
44. There was no failure to comply with s 209 of the Organic Law. I refuse ground of the objection to competency.
DETERMINATION OF SECOND RESPONDENT’S OBJECTION
45. The second respondent’s grounds of objection overlap with most of the first respondent’s grounds of objection. I determine them as follows:
(a ) Ground 1 of the petition is incompetent
46. This ground of objection is sustained. I consider that the question of whether the return date of the writ was unlawfully extended for this election is within the jurisdiction of the National Court (though it might have to be referred to the Supreme Court, if it were allowed to proceed to hearing, under s 18(2) of the Constitution). However, ground 1 of the petition does not plead that, and how, extension of the return date for the writ affected the result of the election.
(b) Ground 4 of the petition is incompetent
47. This ground of objection is sustained as the particulars of the alleged errors or omissions were inadequately stated, thus failing to meet the requirements of s 208(a) of the Organic Law.
(c)Petition not filed within 40 days after date of declaration of the result
48. This ground of objection is refused as there was sufficient evidence to find that the petition was lodged through IECMS on the 40th day after the date of declaration of the result of the election.
(d) Security for costs not deposited on day of filing the petition
49. This ground of objection is refused as the security for costs was deposited one day prior to the filing of the petition, which amounts to “at the time of filing” the petition for the purposes of s 209 of the Organic Law.
CONCLUSION
50. The result of determination of the two grounds of objection is that grounds 1 and 4 of the petition are struck out and, grounds 2, 5 and 6 of the petition having been abandoned, the petition will proceed to trial only on ground 3 of the petition: the alleged commission by the first respondent of the offence of undue influence.
51. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that subject to specific costs orders relating to the objections to competency, the parties bear their own costs as the objections to competency have not been entirely successful.
ORDER
(1) The first respondent’s objection to competency of the petition, filed by further amended notice of objection on 3 August 2023, is sustained in so far as it relates to ground 4 of the petition and refused in so far as it relates to other grounds of objection to competency.
(2) The second respondent’s objection to competency of the petition, filed by amended notice of objection on 2 August 2023, is sustained in so far as it relates to grounds 1 and 4 of the petition and refused in so far as it relates to other grounds of objection to competency.
(3) Grounds 1 and 4 of the petition are struck out and, grounds 2, 5 and 6 of the petition having been abandoned, the petition shall proceed to trial on ground 3 of the petition in accordance with directions of the Court.
(4) Subject to specific costs orders made regarding the objections to competency, the parties will bear their own costs of the objections to competency.
_____________________________________________________________
Lomai & Lomai Attorneys: Lawyers for the Petitioner
Kombri & Associates Lawyers: Lawyers for the First Respondent
Kuman Lawyers: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2023/264.html