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Steven v Maladina [2023] PGNC 298; N10469 (8 September 2023)

N10469


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 36 OF 2022


IN THE MATTER OF A DISPUTED RETURN FOR THE ESA’ALA OPEN ELECTORATE


DAVIS STEVEN
Petitioner


AND
JIMMY MALADINA
First Respondent


ELECTORAL COMMISSION
Second Respondent


Waigani: Kariko, J
2023: 1st & 8th September


ELECTION PETITION – objection to competency – petition lodged without receipt of payment of filing fee – receipt filed the next day - s 208(e), Organic Law on National and Local Level Government Elections; Rules 5 & 6, Election Petition Rules 2022


ELECTION PETITION – objection to competency – amended petition filed a day after time-limit for filing petition – whether permissible - s 208(e), Organic Law on National and Local Level Government Elections


ELECTION PETITION – objection to competency – want of compliance with Form 1 – Rule 4, Election Petition Rules 2022


ELECTION PETITION – objection to competency – petition alleging bribery, undue influence and errors & omissions - whether sufficient facts pleaded - s 208(a), Organic Law on National and Local Level Government Elections.
ELECTION PETITION – objection to competency – occupation of attesting witness – spinster – s 208(d), Organic Law on National and Local Level Government Elections


Cases Cited:


Aihi v Isoaimo (2015) SC1598
Beseoh v Bao (2003) N2345
Biri v Ninkama [1982] PNGLR 342
Chan v Apelis & Electoral Commission (1997) N1627
Epi v Farapo [1983] SC247
Hagahuno v Tuke & Electoral Commission (2020) SC2018
Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99
Paru Aihi v. Sir Moi Avei (No 2) (2003) SC720
Powi v Kaku (2022) SC2290
Somoso v Sohia (2016) SC1507


Legislation:


Bougainville Elections Act 2007
Election Petition Rules 2002
Election Petition Rules 2022
Organic Law on National Elections
Organic Law on National and Local Level Government Elections


Counsel:


The petitioner in person
Mr I R Molloy, for the First Respondent
Mr N Onom, for the Second Respondent


8th September 2023


  1. KARIKO, J: The first respondent Jimmy Maladina was on 29 June 2022 duly declared the member-elect for the Esa’ala Open electorate in the 2022 national general elections, with the petitioner Davis Steven as runner-up.
  2. Mr Steven filed an election petition disputing the results on 7 September 2022, being the last day of the 40-day time limit within which he could file the petition.
  3. The next day, the petitioner filed an amended petition.
  4. This is my decision on an objection to the competency of both the petition and the amended petition, moved by the first respondent and supported by the second respondent, the Electoral Commission.

GROUNDS OF OBJECTION


  1. Several grounds of objection are raised. Summarized, it is alleged that:

FILING


  1. I first discuss the ground of objection relating to filing of the petition because a finding in favour of this ground would be determinative of the petition.
  2. In considering this ground of objection to competency, ss 208(e), 209 and 210 of the Organic Law are relevant:

  1. It is also important to consider rules 1, 5, 6, and 7 of the EP Rules:
  2. It is not in controversy that when the petitioner filed the petition, he lodged it with an official receipt for payment of the security deposit of K5,000.00 but he did not produce an official receipt or evidence of the payment of the K1.000.00 filing fee.
  3. The petitioner explained that when his assistant went to pay the filing fee as required by rule 6 at about 3pm on 7 September 2022, he was unable to do so because the finance office, the Collector of Public Monies at Vulupindi Haus, would not accept cash and advised the payment be made at the bank. However, the banks had closed by then. The petitioner proceeded with his assistant to the National Court registry at Waigani where the petitioner explained the difficulties encountered and asked that in the circumstances the petition be accepted as filed upon his undertaking that the filing fee would be properly paid the next day. The matter was referred to the Registrar who apparently accepted the petitioner’s plea and authorized the petition to be endorsed and actioned as filed on 7 September 2022.
  4. On 8 September 2022, the petitioner had the K1,000 cash collected from the National Court registry, paid the filing fee at the bank and obtained an official receipt for the payment from the Collector of Public Monies on presenting the bank deposit slip. The receipt was then lodged at the National Court registry.
  5. In addressing the issue, I first refer to the case of Epi v Farapo [1983] SC247, Kidu CJ, Andrew & Bredemeyer JJ. At that time s 209 of the then Organic Law on National Elections required the security for costs to be deposited “at the time of filing the petition”. There was no requirement for a filing fee. In that case, the petition was received at the registry some hours after payment by cheque of the security deposit. The cheque and the petition were then amalgamated to make a common time for filing both the deposit and the petition. Kidu CJ and Pratt J observed that:

...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...


  1. The laws pertaining to the filing of election petitions changed in subsequent years resulting in the Organic Law and the Election Petition Rules 2002 (EP Rules 2002) being the relevant law when the issue of what amounts to filing an election petition was considered by Injia J (as he then was) in Beseoh v Bao (2003) N2345. In that case, the petitioner lodged his petition together with a receipt showing payment of the security deposit on the same day but no receipt for the filing fee was produced. The filing fee was paid the next day and a copy of the official receipt then produced at the registry.
  2. His Honour noted the EP Rules 2002 made by the Judges under s 184 of the Constitution and s 212(2) of the Organic Law, provided the filing process of election petitions. The official receipt for payment of the filing fee was required to be forwarded to the Registrar “with the petition” (rule 4) while the security deposit had to be paid at the registry “at the time of filing” (rule 5). His Honour remarked that although Epi’s case concerned the payment of the security deposit, he found the principle in that case applicable, by analogy, to the issue before him.
  3. His Honour concluded:

In my view, the words ‘a petition shall be filed at the Registry of the National Court’ in s 208(e) by necessary implication, means a petition filed in accordance with the rules of Court pertaining to filing of Court documents by parties at the Court registry... In the present case, there is no provision in the EPR empowering the A/Registrar to accept a petition without evidence of the security deposit and filing fee being first paid.

  1. Subsequently in Aihi v Isoaimo (2015) SC1598, the Supreme Court (Injia CJ, Kariko & Poole JJ) was asked to review the decision of the National Court that dismissed an election petition for being incompetent. The issue in that case again concerned the filing of an election petition whereby the petition and receipt for the filing fee were lodged on one day while the receipt for the security deposit was lodged the day after. The Court referred to Epi’s case and Beseoh’s case, and affirmed the principle that the mandatory requirements of the Organic Law and the EP Rules regarding filing a petition must be strictly complied with. The Court accordingly refused the application for review.
  2. In his submissions, the petitioner suggested that when the Registrar approved the arrangement for the cash to be accepted instead of a receipt on 7 September 2022, that was sufficient to meet the requirement of s 208(e) of the Organic Law. I reject that submission, and endorse the statements by Injia J (as he then was) in Beseoh’s case that:

... the words ‘a petition shall be filed at the Registry of the National Court’ in s 208(e) by necessary implication, means a petition filed in accordance with the rules of Court ...


These rules should not be read and understood by parties and registry staff as mere technical requirements which they may ignore, waive or bend to suit their own personal conveniences.


  1. I also understood the petitioner to submit that because there was substantial compliance with the EP Rules relating to filing of a petition, the Court was invited to apply s 217 of the Organic Law and rule 22 of the EP Rules and exercise its discretion in favour of refusing the objection to competency.
  2. These two provisions read:
    1. Relief from the Rules
    1. Real justice to be observed.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.


  1. Before its amendment rule 22 stated:
    1. Relief from the Rules

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises, unless the rule is a requirement of the Organic Law.


  1. The amendment to rule 22 was prompted by the decision of the 5-judge Supreme Court (Kandakasi DCJ, Kirriwom, Mogish, Manuhu & Makail JJ) in Hagahuno v Tuke & Electoral Commission (2020) SC2018 which promulgated that substantial compliance with any form including a petition is sufficient; petitions should not be dismissed for want or defect of form unless extensive and substantial; and when considering the failure to comply, close regard should be had to s 217 of the Organic Law.
  2. It is noteworthy that the case was more focused on the application of s 217 when considering objections to competency of election petitions on grounds of failure to comply with the requirements of s 208(a)-(d) which deal with form and content, rather than s 208(e) which covers filing.
  3. When Beseoh’s case was decided, rule 17 of the EP Rules 2002 was the equivalent provision of rule 22 but it read in the same terms as rule 22 before its recent amendment. The petitioner in Beseoh’s case also asked for dispensation with the requirement for the filing fee to be filed with the petition. In answering that plea, Injia J (as he then was) stated that a petitioner facing difficulties in complying with the requirements of the rules, should properly make an application for waiver or dispensation in court, upon notice to the other parties. Furthermore, his Honour noted that as the fee had been paid, there could be no application made “before or after the occasion for compliance arises”. His Honour added that because the filing fee was paid outside the prescribed 40-day period, rule 17 was inapplicable.
  4. The factual situation in the present matter is quite similar to that in Beseoh’s case, and I adopt the position taken by the court then.
  5. Accordingly, I would refuse dispensation of the requirements of rules 5 and 6 of the EP Rules.
  6. The petitioner also relied on the case of Semoso v Sohia (2016) SC1507 to argue that a petition may be considered as validly filed even though actioned by the registry after expiry of the time limit. The case concerned the elections for the Bougainville House of Representatives. The petitioner filed his petition with the requisite filing fee within time as required by ss 205 and 206 of the Bougainville Elections Act 2007. It was not actioned by the Assistant Registrar because he could not get a file reference from the Waigani registry and he wanted to confirm the amount payable for the filing fee. By the time he got the information and advised the petitioner, the time limit for filing had expired. The Court (Hartshorn, Ipang & Higgins JJ) decided the petition would be taken as properly filed notwithstanding it being action outside the time limit because the petitioner had met the requirements when he lodged the petition.
  7. That case can be easily distinguished from the present matter because the petitioner had done all that was required of him in that case. The failure in complying was caused by the Assistant Registrar and not the petitioner.
  8. My finding that the petitioner failed to comply with s 208(e) of the Organic Law renders the election petition before me incompetent and I am obliged to dismiss the proceedings.
  9. While it is then not necessary for me to consider the other grounds of objection to competency, I will nevertheless do so, albeit in brief terms.


AMENDED PETITTION


  1. A petition cannot be amended by the National Court or the petitioner after the 40-day time limit has expired; Biri v Ninkama [1982] PNGLR 342, Kidu CJ, Kapi DCJ & Andrew J, and Chan v Apelis & Electoral Commission (1997) N1627, Injia J. A petition may be amended outside the time limit but only for minor corrections or changes, and not for substantial changes or additional grounds; Hagahuno v Tuke (supra) and Powi v Kaku (2022) SC2290, Kandakasi DCJ, Yagi & Makil JJ.
  2. While I am not entirely persuaded that the changes in the amended petition are substantial or add new grounds, leave should have been first sought and obtained to file the amended petition out of time because there is no statutory provision permitting such filing. To my mind, this entails a proper application with supporting affidavit filed and served on the other parties.
  3. The petitioner did not obtain the requisite leave to file the amended petition after the lapse of the time limit. In the circumstances, the amended petition is regarded as incompetent as an abuse of process.

FORM 1


  1. It is alleged that the petition and the amended petition do not comply with Form 1 of the EP Rules. For example, the title unnecessarily includes the words “IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL ELECTIONS”; it is addressed to the National Court and is introduced as “The Humble Petition of Davis Steven”. It is also noted that the sections of Form 1 designed for separately stating the facts, grounds and relief sought, have not been correctly followed.
  2. I consider these errors to be of the type referred to in Hagahuno v Tuke (supra) that may be amended outside the time limit.

PLEADING FACTS


  1. Section 208(a) of the Organic Law on National and Local Level Government Elections requires pleading of relevant and material facts that constitute the ground(s) relied upon to invalidate an election return, and the facts must be sufficient and clearly indicate to the other parties what is alleged and to sufficiently inform the Court of the issues involved: Biri v Ninkama (supra); Holloway v Ivarato and Electoral Commission [1988-89] PNGLR 99, Kai DCJ, Los & Hinchliffe JJ.
  2. Having regard to s 217 of the Organic Law as propounded by the Supreme Court in Hagahuno v Tuke (supra) and the established principle that pleadings must be sufficient so that respondents can prepare their arguments in response, and the court informed of the issues that it is to determine, I do not consider the facts pleaded in the petition or the amended petition to be incontestably deficient.

ATTESTING WITNESS


  1. The petition was witnessed by one Marie Joseph Lau whose occupation is stated as “a spinter”. This is obviously a typographical mistake and the word was meant to read “a spinster” which is not an occupation but rather a social status. The mandatory requirement to state the occupation of an attesting witness is provided by s 208(d) of the Organic Law.
  2. I am not satisfied the petition ought to be dismissed on this ground having regard again to s 217 of the Organic Law, and the statement by the 4-1 majority Supreme Court (Amet CJ, Los, Sakora, Injia & Sawong JJ) in Paru Aihi v. Sir Moi Avei (No 2) (2003) SC720 that:

The importance of the requirement in s 208 (d) to state the attesting witness’ occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witnesses attaches to the witness’ capacity to verify the petition. For instance, an infant or mute person lacking full capacity would not be expected to verify or attest a petition.


  1. A spinster refers to an unmarried female of mature years, who presumably would have capacity to verify the petition.

CONCLUSION


  1. In the end, I uphold the objection to competency and dismiss the petition.

ORDER


(1) The objection to competency of the petition is upheld.

(2) The petition is dismissed for being incompetent.

(3) The security deposit of K5,000 shall be released and paid to the respondents in equal shares.

(4) The petitioner shall pay the costs of the first and second respondents, assessed on a party and party basis and to be taxed if not agreed.

________________________________________________________________
Stevens & Associates: Lawyers for the Petitioner
Simpson Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent


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