N10404

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 34 OF 2022 (IECMS)

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

AND:
IN THE MATTER OF DISPUTED RETURN OF THE ELECTION RESULTS FOR THE NUKU OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
EMMANUEL WAIMOU NASAM
Petitioner

AND:
HONOURABLE JOSEPH SUNGI, MP
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Kassman J
2023: 10th, 11th and 12th July

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) and Election Petition Rules of the National Court Rules 1, 5, 6 and 7.  

The declaration of Sungi as the member elect was made on 28 July 2022.  The period of 40 days for the filing of a petition to lawfully challenge the election and declaration of Sungi on 28 July 2022 expired at midnight on 6 September 2022.  Nasam lodged his petition with evidence of payment of the filing fee and security deposit in the Registry at 11:45pm on 6 September 2023.  The Registry created a file for this proceeding on IECMS on 7 September 2022.  The petition was sealed and court file reference allocated on 8 September 2022.  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 8 September 2022. 

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 8 September 2022. 
2.	The Petition was filed on 8 September 2023 and so was filed out of time or after the 40 days period which expired on 6 September 2022. 
3.	The ground of objection that the Petition as 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 (2023) N10248 
Andapanga Alfred Nelson Baliawe v Hon. John Kaupa & Electoral Commission of Papua New Guinea (2023) N10357
Petrus Nane Thomas v- William Wai Bando & Electoral Commission EP No. 7 of 2022

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 rr. 1, 5, 6 and 7 

Counsel:

P. Mawa, for the Petitioner
S. Ranewa, for the First Respondent
L. Tangua, for the Second Respondent

DECISION 
OBJECTION TO COMPETENCY OF THE PETITION

12th July 2023

1.	KASSMAN J:  This is the court’s ruling on two objections to the competency of the Petition apparently filed by Emmanuel Waimou Nasam on 6 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 Petitioner Emmanuel Waimou Nasam is referred to as “Nasam”, the First Respondent Hon. Joseph Sungi MP is referred to as “Sungi” and the Second Respondent Electoral Commission of Papua New Guinea is referred to as “the EC”. 

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 Nuku Open Electorate situated in the West Sepik Province. Sungi and Nasam nominated and stood as candidates.  Sungi was declared elected on 28 July 2022 and Nasam was the first runner -up. 

Nasam’s Petition 

4.	In his petition, Nasam alleges the EC committed errors and omissions at pre-polling, 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 

5.	Before this court were two notices of objection to the competency of the petition.  The EC’s Amended Notice of Objection to Competency filed with leave on 30 June 2023 and Sungi’s Further Amended Notice of Objection also filed with leave on 3 July 2023. 

6.	Many documents were relied on at the hearing of both objections. The first category is the Petition filed 6 September 2022 [document number 1], the IECMS Petition Attachment 2 Notice of Payment of Filing Fee dated and filed 8 September 2022 [document number 2] and the IECMS Petition Attachment 3 Notice of Payment of Security Deposit dated and filed 8 September 2022 [document number 3].  The second category are the notices of objection being the EC’s Amended Notice of Objection to Competency filed with leave on 30 June 2023 [document number 94] and Sungi’s Further Amended Notice of Objection also filed with leave on 3 July 2023 [document number 96].  

7.	The third category are the affidavits relied on or referred to by the parties on the objections being the Affidavit of Lasen Tangua filed 23 June 2023 [document number 87], Affidavit of Ivan Nawatz filed 26 June 2023 [document number 88], Affidavit of Nasam filed 29 June 2023 [document number 93], Affidavit of Steven Ranewa filed 5 July 2023 [document number 98], Affidavit of Baka Bina filed 7 July 2023 [document number 107], Affidavit of Mathew Bae filed 7 July 2023 [document number 108], Affidavit of Kini Mamis filed 7 July 2023 [document number 109] and Affidavit of Charlie Arua filed 7 July 2023 [document number 110]. 

8.	The fourth category are the submissions of the parties being Sungi’s Submission received by email by my Associate on 11 July 2023, the EC’s Submission handed up in court on 11 July 2023 and Nasam’s Submissions filed 7 July 2023 and updated and handed up in court on 11 July 2023.   

Grounds of objection to competency 

9.	The grounds of the objections raised and argued by Nasam and the EC on which each counsel for the three parties addressed the court are:

(a)	Ground 1 – The Petition was filed out of time and that contravened the mandatory requirements of section 208(e) of the Organic Law.  

(b)	Ground 2 – The security deposit of K5,000 was not paid or made on the same day the petition was filed and that contravened the mandatory requirements of section 209 of the Organic Law.  

(c)	Ground 3 – Evidence of payment of the security deposit was not filed on the same day with the petition but was filed a day or two 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. 

10.	Other grounds of objection to the competency of the petition were also raised in both Notices of objection referred to above but were not argued as the parties agreed grounds 1, 2 and 3, as summarised above, were threshold issues and if one of the three grounds is upheld, that will result in the dismissal of the petition.   

The court’s power and duty – competency of the petition

11.	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. 

12.	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        

13.	The law applicable as to the issues raised on the contents of petition, fees payable and filing of the petition are provided in the following provisions of the Organic Law and the EP Rules.  

14.	Section 208 of the Organic Law 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 of the Organic Law 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.	Rule 1 of the EP Rules provides “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.” 

17.	Rule 5 of the EP Rules 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.” 

18.	Rule 6 of the EP Rules 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.” 

19.	Rule 7 of the EP Rules 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.” 

20.	The filing of the petition gives life to the petition which then enables or invites any challenge to the filing and then to the contents of the petition.  

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

21.	The first challenge is that 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.  It was agreed by all parties, the declaration of Sungi as member elect was made on 28 July 2022 and the period of 40 days commenced on 29 July 2022 and expired at midnight on 6 September 2022.

22.	The officers working at the material time in the National Court Registry in Waigani who swore affidavits were Mr Baka Bina, Deputy Registrar National Court, Mr Mathew Bae, Senior Clerk & Administrator CDS and IECMS and Ms Kini Mamis, Election Petition Track Leader. 

23.	Only Mathew Bae was called to give evidence on his affidavit.  All other affidavits were relied on and referred to by consent of the parties which I have perused.  I take note of the contents of the affidavits of Baka Bina as to the process of lodgements and filing generally and his actions in this matter as described and likewise for the affidavit of Kini Mamis.  The affidavits sworn by Mathew Bae, Nasam and Charlie Arua are important as those deponents were the persons who were at the Registry when the petition was purportedly delivered and received in the Registry at 11:45pm on 6 September 2023.  

24.	From my consideration of the evidence, I make the following findings. Firstly, the petition filing fee of K1,000 and the security deposit of K5,000 were duly paid on 31 August 2022 by or for Nasam.  This was not refuted by Sungi and the EC. 

25.	Without any serious evidence to contradict the evidence of Mathew Bae, Nasam and Charlie Arua, I find the petition was signed by Nasam and Nasam’s signing of the petition was attested to by witnesses and was lodged in the Registry of the National Court in Waigani and received by Mathew Bae on behalf of the Registrar at 11:45pm on 6 September 2022.  In oral examination, Mathew Bae said he did not apply the court seal to the petition immediately after it was lodged by Nasam and Charlie Arua. Mathew Bae also said he placed the petition on his desk for formal processing in the registry the following day 7 September 2022. 

26.	On 7 September 2022, staff in the Registry uploaded to IECMS the petition and receipts for the filing fee and security deposit which were lodged in the Registry and received by Mathew Bae at 11:45pm on 6 September 2022.

27.	On 8 September 2022, Baka Bina approved the IECMS uploading of the petition and receipts for the filing fee and security deposit and on that date 8 September 2022 Kini Mamis finalised IECMS processing of the documents and had them sealed and uploaded to IECMS.           

28.	Nasam and Charlie Arua say the petition and receipts for payment of the filing fee and security deposit were sealed by Mathew Bae but in oral evidence Mathew Bae said he did not seal those documents when they were lodged at 11:45pm on 6 September 2022.  I accept this evidence by Mathew Bae.  This evidence by Mathew Bae is confirmed by Baka Bina and Kini Mamis where Kini Mamis says she sealed the documents on 8 September 2022.  This is also supported by the evidence of Steven Ranewa, lawyer for Sungi, who swears he thoroughly reviewed data on IECMS on this matter which revealed the petition and security deposit were uploaded to IECMS by Charlie Arua on at 3:28pm on 7 September 2022.  The same screen shot annexure “A” to Steven Ranewa’s affidavit states the petition and notices of payment of the filing fee and security deposit were uploaded to IECMS by Kini Mamis on 8 September 2022.  These observations are also supported by an administration officer in the firm of Kawat Lawyers, who act for Sungi who is familiar with the workings of IECMS and who swore an affidavit that was filed on 26 June 2023.  Furthermore, I also note the Registrar signed the “Notice to Appear” on page 11 of the petition and dated it 7 September 2022.

29.	The evidence is overwhelming.  The petition was not sealed on 6 September 2022. The petition was sealed on 8 September 2022.  Likewise, the notices of payment of the filing fee and security deposit were sealed on 8 September 2022 which is a date outside the 40 days period.  I also note the notices of payment of the filing fee and the security deposit are dated and filed 8 September 2022 by Nickson James, Assistant Registrar.  This officer did not swear an affidavit.  I also note from both notices that Nickson James says receipts for both payments were “presented to me on the 6th September 2022”.  That contradicts Mathew Bae’s evidence that he was the only officer in the Registry at 11:45pm on 6 September 2022.  I accept Mathew Bae’s evidence in this regard.     

30.	I find the Petition was uploaded to IECMS on 7 September 2022 but was registered as formally filed in the court registry on 8 September 2022.  

31.	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…”   

32.	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…” 

33.	The 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 8 September 2022.    

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

a)	The declaration of Sungi as the member elect was made on 28 July 2022.  
b)	The period of 40 days for the filing of a petition to lawfully challenge the election and declaration of Sungi on 28 July 2022 expired at midnight on 6 September 2022.
c)	At 11:45pm on 6 September 2022, Nasam lodged or delivered his petition and receipts for payment of the filing fee and security deposit.  
d)	A file was created for this proceeding on IECMS on 7 September 2022;
e)	The petition and the receipts for the petition filing fee of K1,000 and the payment of the security deposit fee of K5,000 were sealed, scanned and uploaded to IECMS by Kini Mamis in the Registry on 8 September 2023. 

35.	The issue for this court is what constitutes “filing”.  This is not defined in the Organic Law.  The definition is found in Rule 1 of the EP Rules which provides “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.” I say this definition is in simple language and speaks for itself.  The petition had to be lodged in the Registry and sealed with the seal of the court and endorsed with an election petition number to be then considered as having been filed within the meaning of the law as provided by Rule 1.  With respect, I adopt the discussion on the interpretation by Kangwia J in EP No. 7 of 2022 Petrus Nane Thomas v- William Wai Bando & Electoral Commission in a decision delivered on 19 June 2023 and other caselaw which also adopt this interpretation that I apply in this matter.  

36.	On the evidence before this court, I have found the petition was sealed, scanned and uploaded to IECMS by Kini Mamis in the Registry on 8 September 2023 along with the receipt for the filing fee of K1,000 and the receipt for the security deposit fee of K5,000. The petition was certainly endorsed with an election petition number “EP 34 of 2022” and sealed by Kini Mamis on 8 September 2022. 

37.	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 8 September 2022.  As a result of my findings on the pertinent facts, I am satisfied the Petition which was filed on 8 September 2022 was filed out of time or after the 40 days period which expired on 6 September 2022. 

38.	For the reasons stated above, I uphold Ground 1 of the objections that the Petition was filed out of time.  

39.	Further, for the reasons stated above, Ground 3 of the objections fails.  Ground 3 claimed evidence of payment of the security deposit was not filed on the same day with the petition but was filed a day or two 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.  As stated above, 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 8 September 2022.  I dismiss ground 3 of the objections. 

40.	Ground 2 of the objections claimed the security deposit of K5,000 was not paid or made on the same day the petition was filed and that contravened the mandatory requirements of section 209 of the Organic Law, I say section 209 is clarified by the EP Rules giving practical and logical effect to section 209 of the Organic Law.  Rule 5 requires the filing of “evidence of payment of the filing fee and of the security deposit.”   With the petition and Rule 6 provides “… the official receipt of the payment shall be filed in the Registry with the petition …”.  Rule 7 refers to the security deposit and the states “… and evidence of the deposit shall be filed with the petition.”.  In practical and logical effect, the security deposit may be paid by a petitioner a day or more before the petition is filed and not after the petition is filed.  On the day the petition is filed, the petitioner must also file the receipts for payment of the filing fee and security deposit.  I discussed this issue at length in my decision in Andapanga Alfred Nelson Baliawe -v- Hon. John Kaupa MP and the Electoral Commission of Papua New Guinea (2023) N10357.  From paragraph 36, I discussed my understanding of the rationale for the requirements of section 209 of the Organic Law along with the EP Rules 5, 6 and 7 in particular Rule 7 which provides “… and evidence of the deposit shall be filed with the petition.” which I maintain is critical and determines the issue.  I repeat paragraph 46 of my decision in Baliawe:

“46.	The court must bear in mind when considering the requirements as to the filing of evidence of payment of filing fee and security deposit with the petition that not every provincial or sub-registry is within reasonable distance from a provincial finance office such that payments are best made the day or days before filing of the petition and on filing of the petition, the petitioner also files evidence of payment of the filing fee and security deposit.  In this day and age, technology has advanced with internet access embraced by government, business and the general population and that has enabled access to banking by direct online internet transactions such that a petitioner can make instantaneous deposit of the security deposit and payment of the filing fee.  The concerns of the past with personal cheques being dishonoured are now over as the National Court and Government Finance Department or offices have embraced the technology that is readily available for all forms of payments for government and court fees.  With the advancements in technology, it is not difficult to make online payments of the filing fee and security deposit at 7am and then print the receipts for those payments and then proceed to the National Court Registry and file the Petition on the same day”.

41.	Ground 2 of the objections which claims the security deposit of K5,000 was not paid or made on the same day the petition was filed is dismissed. 

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

43.	I will dismiss the petition for being incompetent.  As costs follow the event, I 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 also order the security deposit of K5,000 shall be released and paid to the Respondents in equal shares.

44.	The Court orders that: 

1)	The Petition is dismissed for being filed out of time and is therefore incompetent.   

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

3)	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:

Mawa Lawyers: Lawyers for the Petitioner
Kawat Lawyers: Lawyers for the First Respondent
Tangua Lawyers: Lawyers for the Second Respondent