N10248

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 89 OF 2022 (IECMS)

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

IN THE MATTER OF A DISPUTED RETURN FOR KAGUA ERAVE OPEN ELECTORATE

BETWEEN:
WESLEY ORA RAMINAI
Petitioner

AND:
MAINO PANO
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

ELECTION – Petition – Competency – IECMS Filing – ss. 208 (e) and 209 of the Organic Law on National and Local-level Government Elections.

Cases Cited:

Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Kuberi Epi v Tony Farapo (1983) SC247
Hagahuno v Tuke (2019) SC2018

Counsel: 
B. Lomai, for the Petitioner
P. Mawa, for the First Respondent
A. Ninkama, for the Second Respondent.

12th May, 2023

1.	MANUHU, J.  Before me are the respondents’ objections to the competency of the petition, which challenges the declaration of the first respondent as member for Kagua Erave Open Electorate in the 2022 National General Elections.

2.	The grounds for the objections are similar.  The reasons for the objections are that firstly the petition was filed out of time on 23rd September 2022 which offends s. 208 (e) of the Organic Law on the National and Local Level Government Elections (“The Organic Law”).  Alternatively, if the petition was filed within time, the petitioner failed to file his petition together with the security deposit as required by s. 209 of the Organic Law.

3.	Section 208 (e) provides that a petition shall be filed within 40 days after the declaration of the result of the election.  Section 209 states 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.

4.	What constitutes filing? Under the Election Petition (Miscellaneous Amendments) Rules 2022, “’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.”

5.	See Paru Aihi v Peter Namea Isoaimo (2015) SC1598, and Kuberi Epi v Tony Farapo (1983) SC247.

6.	In this case, the declaration of the first respondent as member for Kagua Erave Open Electorate was made on 6th August 2022.  Forty days from then would be 15th September 2022.  On Thursday 15th September 2022, at 10.14pm, Ryhen Tamarua of Lomai & Lomai Attorneys uploaded the petition, the notice of petition, the notice of payment of filing fee, and notice of payment of security deposit through IECMS.  The Registry would have been closed at the time.

7.	The Registry was also closed on Friday 16th September 2022.  On Monday 19th September 2022, Ryhen Tamarua attended the Registry to follow up on the uploaded documents, but he was advised to return on Tuesday 20th September 2022.  On Tuesday, Ryhen Tamarua returned to the Registry, but he was advised that the petition and the notices of payment of filing fee and security deposit would not be sealed yet because as an IECMS matter, “the case was yet to be registered.” 

8.	Long story short, the sealed copy of the petition was picked up on Thursday 22nd September 2022.  Ryhen Tamarua was advised to pick up the other documents on Friday 23rd September 2022.  Strangely, the petition cover page has 15th September 2022 as the date of filing. If a Registry officer was still in the Registry at 10.14pm to register, seal and endorse the petition, he deserves a pay rise, but it is very unlikely. On the evidence, I find that the entry of 15th September 2022 as the date of filing of the petition was done on 22nd September 2022. 

9.	According to Deputy Registrar Baka Bina, under IECMS, the petition was “deemed” to be filed on 15th September 2022. He went on to explain what happens after a document is uploaded, thus: 

“Thereafter, the administrative process for vetting, checking, registering, allocating file number, obtaining the Registrar’s endorsement sealing etc., are done thereafter: it may be done immediately or a time thereafter.” (sic.)

10.	In my view and with due respect, in the context of ss. 208 (e) and 209 of the Organic Law, this is a serious misunderstanding.  There is no legal basis for the Deputy Registrar to hold that view.  Filing of a petition 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. 

11.	I find ultimately that the petition and the supporting documents regarding the security deposit and filing fee were filed six or seven days out of time.  I have considered the possibility of saving the petition pursuant to s. 217 of the Organic Law and the ruling in Hagahuno v Tuke (2019) SC 2018 but there is no room for that.

12.	For the foregoing reasons, I find that the petition is incompetent and should be dismissed with costs. The orders of the court are:

•	The respondents’ objections to competency of the petition are upheld.
•	The petition is dismissed in its entirety.
•	The Petitioner shall pay the respondents’ costs of the entire proceedings which, if not agreed, shall be taxed.
•	The security deposit shall be equally paid to the respondents.   

________________________________________________________
Lomai & Lomai Attorneys: Lawyer for the Petitioner			
Mawa Lawyers: Lawyer for the First Respondent	
Adam Ninkama Lawyers: Lawyer for the Second Respondent