N10544

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 51 OF 2022 (IECMS)

In the matter of the Organic Law on National & Local Level Government Elections

And
In the matter of of Disputed Return for 2022 Goroka Open Electorate

BETWEEN
JEFFERY SASUWO
Petitioner

AND
AIYE HUMAI TAMBUA
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka:  Batari J
2023: 6th & 7th March

PARLIAMENT – national elections – returns – challenge of – time within which to file election petition – mandatory requirement of s. 208 (e) Organic Law on National and Local-Level Government Elections considered – petition file outside limitation of s. 208 (e) requirements.    

The petitioner contested the election results that went against him. The responded contested the originating process for being filed out of time. 

Held:     

1.	The preponderance of judicial authority on the interpretation and construction of ss. 208, 209 and 210 of the Organic Law is unequivocally conclusive in that no proceedings can be heard on the petition and the entire petition must be dismissed as being incompetent if the requirements of ss. 208 and 209 are not met because of s. 210.

2.	An election petition is validly filed when it is lodged at the National Court Registry, sealed and allocated a reference number on the same date or on some later date within the 40 day time limitation stipulated in s. 208 (e) of the Organic Law on National and Local-Level Government Elections.

3.	The election petition in this case was filed in breach of s 208 (e) of the Organic Law where it was lodged on the last date for filing but sealed the next day and outside the time limitation without reasonable explanation.  

Cases Cited.
William Hagahuno v Johnson Tuke [2020] PGSC 105; (2020) SC2018
Sir Arnold Amet -vs- Peter Yama (2010) SC1064 
Delba Biri v Bill Ninkama [1982] PNGLR 342
William Hagahuno v Johnson Tuke (2019) SC1776

Counsel:
Mr. Robert Awalua, for the Petitioner
Mr. Paul Mawa, for the First Respondent
Mr. Dick Korowa Kipoi, for the Second Respondent

RULING ON COMPETENCY OF ELECTION PETITION

7th March 2023

1. 	BATARI J:	 In the substantive proceeding, Jeffery Sasuwo, a losing candidate in the 2022 General Elections alleges several instances of election related improprieties against the winning candidate, Aiye Humai Tambua and electoral officials. The allegations are contested.

2. 	Before proceedings can be heard on the petition, I must determine the respondents’ objections to competency of the originating process. The challenge is straddled on several grounds, the pivotal contention being, that Mr Sasuwo lodged his petition outside the time limitation stipulated in s. 208 (e) of the Organic Law on National and Local-Level Government Elections (the Organic Law). 

3. 	The petitioner’s case is that the EP was filed within the statutory time limit and hence, it was not time-barred.

Background

4. 	The brief background which also forms the common facts to this proceeding are, that the petitioner and the first respondent were amongst 18 candidates vying for the Goroka Open Electorate in the 2022 General Elections. Mr Tambua polled 40,032 votes. He was declared winner and member elect on 30 July 2022. Candidate Bire Kimisopa came second on 33,726 votes.  Mr Sasuwo polled 17,502 votes in third place. Aggrieved by the election results, he filed this EP 51 of 2022.

Issue

5. 	It is a common fact, the time within which to file the petition expired on 8 September 2022. The IECMS records and the manual hard copy indicated the petition was filed and sealed the next day, 9 September 2022.

6. 	The issue then is whether EP 51 of 2022 was filed out of time. The issue involves questions of both facts and law.

Parties Positions

7. 	Mr Sasuwo relied on the affidavits of – 

•	Nigel Paito sworn on 21/12/2022, filed in December 2022.
•	Michael Abanigi sworn on 21/12/2022, filed in December 2022.

8. 	His version is, that on Thursday of the last day for filing, he came down from Goroka and in the afternoon, he lodged his EP document at Waigani National Court Registry. So, he had filed within the time limit. 

9. 	Mr Awalua of counsel for the petitioner conceded the existence of the IECMS records but, ventured a proposition that the requirement for electronic filing is not sanctioned by law under s. 208 (e) of the Organic Law. Thus, the IECMS record is invalid, it has no relevance in computing the time limitations.

10. 	 Counsel’s contention is, that the uploading of the EP document on the IECMS records is not a requirement for filing. Too, it inappropriately slows down the filing process. Failure by registry staff to process and seal the document with due diligence added to the procrastination in sealing and allocating the registration number. All these contributed to the belated validation of the EP document one day late on, 9 September 2022.

11. 	Mr. Mawa of counsel for Mr Tambua raised numerous competency issues, the pivotal issue being a breach of s. 208 (e). Counsel relied on two affidavits and an affidavit of lawyer, Mr Larsen Tangua in agitating, the late filing of the petition of the EP by one day is clearly shown on the records. The hardcopy of the document bears the National Court Seal with the date of filing ascribed as, “09.09.22”. The hardcopy date is consistent with the IECMS computer printout entry annexed to the affidavit of Mr Tangua.

12. 	The second respondent also filed an objection to competency on numerous grounds. It relies only on the issue of time compliance. Counsel, Mr. Korowa submitted, the non-compliance with a constitution requirement is substantial, there is no room for waiver of the mandatory condition. The only option is to dismiss the petition because the 40 days in s. 208(e) is a rigid prerequisite for filing of a petition.

13. 	On the petitioner’s story of having filed the EP document on 8 September 2022, Mr. Korowa submitted, the evidence in the two affidavits contained assumptions, it lacked particularity and cogency. So, the Court should dismiss the affidavit assertions as baseless and unreliable.

The law and Principles Applied

14. 	Sections 208 and 210 of the Organic Law read as follows:

208.	Requisites of petition.

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).
210.	No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

15. 	Until recently, there have been two lines of opinions in the application of these constitutional provisions, namely, the strict approach and the liberal approach.
 
16. 	In Sir Arnold Amet -vs- Peter Yama (2010) SC1064 the Supreme Court endorsed the principle enunciated in Delba Biri v Bill Ninkama [1982] PNGLR 342 as follows:

“It is often stated that the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of allegation relied upon. 
This is the underlying principle of law behind s. 208 of the Organic Law as adverted to be the Supreme Court in Delba Biri -vs- Bill Ninkama [1982] PNGLR 342.”

17. 	The case of Delba Biri -vs- Bill Ninkama represented the “strict” approach. Quite recently, the Supreme Court in, Hagahuno v Tuke [2020] PGSC 105; (2020) SC2018, reviewed and qualified the approach in Biri v Ninkama (supra) in this way in the leading judgement of Kandakasi DCJ:

“In careful consideration of all the foregoing discussions including the observations I made in Kamma –vs- Itanu 
case, there is good reason now to depart from Biri –vs- 
Ninkama in all that it stands for except only where it states. 
that the requirement of s.208 and 209 are mandatory because 
of s.210 of the Organic Law and those requirements must 
therefore, be strictly met [Emphasis Ours).
•	For clarity the requirements to strictly meet the requirements of s.208 of the Organic law is in: -
(a)	setting out sufficient facts disclosing a known ground that can invalidate an 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 occupation and addresses are stated; and
(e)	be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with section 175(1)(a).
As long as a petitioner addresses and or meets all of these requirements, his or her petition should qualify to progress to trial. In other words, if a petition on its face reveals a meeting of all these requirements that should be sufficient for the purposes of s.210 of the Organic Law. It should follow therefore that, objections to competency of petitions under s.208(a) to (d) and (e) is something that cannot be cured by appropriate amendments either before or after the expiry of the time period stipulated under s.208(e) of the Organic Law.
An incurable defect, error or omission in an election petition could be a complete failure to:- 
(a)	disclose a statement of facts (regardless of however poorly or well drafted the petition might) at least a known ground for invalidating an election or return;-
(b)	state the occupation of the attesting witnesses as was the case in Biri-vs- Ninkama;- or
(c)	state both or either of the required two attesting witness addresses; -
(d)	specify the relief sought;- or
(e)	sign the petition by the Petitioner; - or
(f)	file the petition within 40 days after the declaration of the relevant election result.
Also, a petition that fails to meet the condition precedent of the deposit requirement under s.209 of the Organic Law could correctly attract an objection to the competency of the petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filling an election petition.”

18. 	For all intents and purposes, it is settled, the preponderance of judicial authority on the interpretation and construction of ss. 208, 209 and 210 of the Organic Law is unequivocally conclusive in that no proceedings can be heard on the petition and the entire petition must be dismissed as being incompetent if the requirements of ss. 208 and 209 are not met because of s. 210.

19. 	Section 208 (e) is the only provision under scrutiny in this ruling. The provision sets out the mandatory constitutional requirement to file an Election Petition within 40 days after the declaration of the result of the election. It is settled, that the date of reckoning for the 40 days constructional time limitation comes the next day after the date of declaration. The date of declaration is omitted from the 40 days calculation in determining whether a petition is filed within 40 days after the date of declaration as mandatorily required under s.208 (e) of the Organic Law.

Considerations & Ruling

20. 	The requirement of s. 208 (e) is clear. A petition must be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarter within 40 days after the declaration of the results of the election in accordance with s. 175(1) (a).

21. 	In this case, the declaration of Mr Tambua as the elected member was made on 30 July 2022. The last date for filing of a petition fell on 8 September 2022. On that date, Mr Sasuwo lodged this petition at the National Court Registry in Waigani. The next day, 9 September 2022 the document was sealed and referenced, “EP No 51 of 2022”.

22. 	The computation of time for filing of the EP within 40 days is not in dispute. The last day fell on 8 September 2022. The Supreme Court in, Hagahuno v Tuke (supra) confirms the computation of time in this way: 
  
“On its true construction, section 208(e) of the Organic Law requires that the date of the declaration is excluded from calculation of the 40-day period allowed for filing a Petition. The period commences to run from the next day.”

23. 	The dispute is whether Mr Sasuwo filed his EP on 8 September as he is fervently seeking the Court’s indulgence, or whether the EP was filed one day late as being contested by the respondents. 

24. 	This brings to the fore, questions of facts surrounding filing of the EP which I will shortly deal with. But first, it is pertinent to refer to the law and process on filing an election petition under the Organic Law and the Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022, (EP Rules as consolidated).  

25. 	The phrase, “be filed in the Registry of the National Court ….. within 40 days,” in s.208 (e) of the Organic Law are essential elements of the filing process that must be compulsorily complied with before proceedings are heard as dictated by s.210.

26. 	The term, “filed,” is defined in Rule 1 Definitions section of the EP Rules as consolidated, as follows:
“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 in Scheduled 1, and sealed with the seal of the Court and endorsed with an election petition number.” (Underlining added)

27. 	This definition gives meaning to and clarifies what is intended under s 208 (e) of the Organic Law. It is clear, the process of filing an election involves three essential steps, namely:

•	Lodgement of the document in a registry of the National Court,
•	Sealing of the document with the seal of the National Court, 
•	The document is allocated an election petition number. 

28. 	In my view, filing is only complete and the document is deemed duly filed only when these three essentials steps are satisfied.
 
29. 	Conversely, when the process of filing is initiated by lodgement but is it not sealed and is not endorsed with a file or case reference number, the document remains pending filing unless it is withdrawn or retrieved from the Registry. If on the other hand, the sealing and endorsement are done on some later date, the three processes would then be completed, and petition would be deemed to have been duly filed on that later date. 

30. 	This view has support in the use of “and” in the definition of “filed.” The word “and” has a conjunctive effect. Thus, the acts of lodgement, sealing and allocation of election a petition number are to take place in a wholesome, inseparatable process. The whole process must be completed before a document is ascertained to have been validly filed.

31. 	In this case, the petitioner’s position is, that he lodged his EP within the time limit but, the Registrar and Deputy Registrar were unavailable to endorse the document. Mr Sasuwo gave another explanation that his petition was filed on time, but the Registry staff could not seal it because it must be processed through the IECMS filing, a system that is unknown to many petitioners and that may not be sanctioned by law. 

32. 	To put the petitioner’s case into context, it had done all that is possible to file on the last day. It is not responsible for the EP being sealed the next day. It was the fault of the Registry staff and the use of an electronic filing system which procrastinated and frustrated the delay in sealing EP the next day. 

33. 	Counsel, Mr Awalua did not specifically address this, but I think counsel is propagating the substantial compliance principle.  His client has substantially complied by lodging his EP on the last day. So, the Court must accept it as being duly filed in time. In other words, the petitioner is seeking a waiver of the mandatory requirements of a constitutional law.

34. 	The law is clear on this. A constitutional requirement to file a petition within 40 days under s. 208 (e) is not subject to waiver by Court. Nor is the filing date subject to amendment outside the 40 days limit. There may be exceptional cases or situations where a fault or slip may be curable after the time limit because of a typo error or a slip in the wrong date being entered by the registry staff. With due diligence, such mistakes and oversights would be rare because s. 208 (e) requires strict adherence.

35. 	So clearly this Court cannot accept the proposition that the EP in this case was filed on 08 September 2022 upon lodgement, albeit, sealed the next day due to administrative deficiency at Waigani National Court Registry. The petitioner wants this Court to accept an administrative deficiency as a reasonable explanation for the late sealing and endorsement on the basis of substantial compliance. That would tantamount to waiver or extension of the statutory time limit. The Court has no power to do that.

36. 	In addition to the persuasive contentions by the respondents’ lawyers on credibility of the petitioner’s affidavit, the real difficulty is the attempt to circumvent the real practical issues of filing on the 11th hour. 

37. 	There was clearly no urgency to file the petition on time. It seems so illogical that someone could take the document down to Waigani from Goroka, for filing on the last date, oblivious to the contingencies involved when he can be easily and quickly done at Goroka National Court Registry. The Registry in Goroka is an approved place for filing an election petition under Schedule 1 of the EP Rules and s. 208 (e), Organic Law.

38. 	The petitioner and his lawyers would have surely known the practical difficulties confronting their compliance but elected to assume the risk.

39. 	Besides, if the EP was lodged on 8 September 2022 but sealed on the next day, the issue of delayed sealing may be a genuine cause for grievance. That then should have been a priority concern. The petitioner instead belatedly filed his affidavit in December 2022 (some 3 months later).

40. 	The arguments against filing by IECMS is, but a lame excuse. Electronic filing has been on trial for some time following public awareness and workshops. It is a management tool for efficient disposition of cases. It is not against any legislation or rule of practice. The Courts all over the world are embracing the new technology of e-filing and PNG Courts are following suit to migrate into paperless court process. It is in the interest of clients or lawyers to also embrace these Court developments. 

41. 	In this case, it is obvious lawyers could have filed electronically on the last day but failed to do so and there has been no explanation for that failure. Lawyers owed it to their clients to keep abreast of the procedural requirements for compliances, be it legislative or rule of practice. It is inexcusable to slip on dictates of the legislative process and rules of practice. Inevitably, lack of application is detriment to client’s cause. 
 
42. 	Accepting in this case, that the 40 days limit expired on 8 September 2022 and accepting that, that is the position of all the parties, the inescapable result of the objections by the respondents is that the EP was time-barred.  Because of s.210 there will be no further proceeding on this EP. The Court will have no power to continue with it.

Orders

43. 	It is ordered that:

1.	The objections to competency on the petition are upheld.
2.	The petition is wholly dismissed.
3.	The petitioner shall pay the respondents’ costs of the petition from the deposit as security for costs in the fixed sum of K2,500.00 each.
4.	The Registrar shall promptly forward to the Clerk of the National Parliament, copy of this order pursuant to s. 221 of the Organic Law.
__________________________________________________________
Awalua Lawyers: Lawyers for the Petitioner 
Mawa Lawyers: Lawyers for the First Respondent 
Tangua Lawyers: Lawyers for the Second Respondent