N10988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 102 OF 2022 [IECMS]

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

AND IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE NATIONAL CAPITAL DISTRICT REGIONAL SEAT IN THE 2022 GENERAL ELECTIONS

BETWEEN:
MICHAEL KANDIU
Petitioner

AND:
POWES PARKOP
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAUA NEWGUINEA
Second Respondent

Lae:  Dingake J
2024:  13th May, 23rd August

ELECTIONS - Filing of petition and payment of security – Section 209 speaks for itself – It must be at the same time – Not different dates – The requirement is strict – National Court bound by decisions of Supreme Court – No discretion for National Court to relax the provisions of section 209 of the Organic Law

Held:

The security deposit having been paid on a different date to the date the petition was filed renders the petition incompetent.

Cases Cited:

Papua New Guinean Cases
Epi Farapo v Electoral Commission (1983) PGSC1 SC247
Manwau v Bird and Electoral Commission (2023) N10249
Ibo v Hagahuno and Electoral Commission (2023) N10322
Kala v Temu and Electoral Commission (2023) N10364
Dola v Aula and Electoral Commission (2023) N10464
Nupiri v Powi and Electoral Commission (2023) N10398
EP No. 3 of 2022; Minape v Rosso & Electoral Commission
EP No. 33 of 2022; Simake v Hewabi & Electoral Commission
Dominic v Kaupa (2023) N10361
Robert Ganim v Lino Tom Moses (2018) N7233
Patrick Leslie v Christopher Ken (2015) N6073
Onglo v Dilu (2023) N10595
Marus v Maneke (2024) N10665
Manase v Polye (2024) EP No. 22 of 2022 per Bona J
Aimo v Wapunai (2024) EP No. 25 of 2022 per Polume-Kiele J
Kiso v Ling-Stucky (2023) N10290
Parkop v Juffa (2023) N10281
Moses Manwau v Hon. Allan Bird and Electoral Commission (2023) N10249
Evele Kala v Sir Puka Temu (2023) SC2453
Paru Aihi v Peter Namea Isoaiomo (2015) SC1598
Sai-Sail Beseoh v Yuntivi Bao & EP (2023) N2348
Davis Steven v Jimmy Maladina & EC (2023) N10469
Petrus Nane Thomas v William Wai Bando & EC [2023] PGNC 126; N10335
William Hagahuno v Johnson Tuke (2020) SC2018
Peter Nupiri v William Titipe Powi (2023) PGSC 107; SC2459

Overseas Cases
Maliselino B. Mbipi v Ostina Martine Hyera (Misc Civil Application No. 8 of 2022;
MW Rice Millers Ltd vs Mwasa Security Limited (Civil Appeal 10 of 2022 (unreported).

Counsel: 
Mr. David Dotaona, for the Petitioner
Mr. Dawidi Timwapa, for the First Respondent

RULING

23rd August 2024

1.	DINGAKE J: INTRODUCTION: This is my Ruling on a contested objection to competency by the First Respondent.

2.	The material background facts are that the Petitioner and the First Respondent were candidates for the National Capital District Regional Seat in the 2022 General Elections, in which the First Respondent was declared the winner on the 2nd of September 2022.

3.	The Petitioner pleads in the petition that the First Respondent got 78,566 votes, whilst he got 31,082 votes, resulting in a margin of 47,484 votes.

4.	A close reading of the Petition suggests that the Petitioner is aggrieved by the declaration of the First Respondent as the winner based on, inter alia, allegations of illegal practices and bribery.

Grounds of Objection to Competency

5.	The First Respondent objects to the competency of the petition on three (3) grounds, being that:

a)	The Petitioner failed to pay the security deposit at the time of filing the petition, thereby violating s.209 of the Organic Law on National and Local-Level Government Elections (“the Organic Law”).

b)	The Petition was filed out of time, contrary to Section 208(e) of the Organic Law.

c)	That the petition lacks specific factual allegations required by Section 208(a) of the Organic Law.

The Facts

6.	Based on the totality of the evidence of the parties, it is clear that: (a) the deposit for security for costs was made on the 12th of October, 2022 and (b) the Petition was lodged on the 12th of October, 2022, but was only sealed and endorsed with an election petition number on the 13th of October 2022.

7.	It would seem on the uncontradicted evidence of Baka Bina (Supplementary Affidavit of 26th of September 2023 (Doc No. 46) that although he received the election petition on the 12th of October 2022, at 8:58pm, the election petition was uploaded on the 13th of October, 2022 because the IECMS system was out and there was no connectivity for the parties to get onto the system to file their petition.

8.	At paragraphs 7, 8, 9 and 11 (Doc No. 46) Mr. Bina states that:

“7.	On that acknowledgement documents, and that on the 12th of October 2022 and at 8:58 pm, I had penned that I received the physical petition at the counter that was brought in for filing.

8.	I had done this and penned that I received the petition over the counter to enable a party to file their petition with the accompanying receipts. This was because the IECMS system was out and there was no connectivity for the parties to get into the system to file their petition.

9.	I had signed off that the copy of the petition and would have noted that the petition was accompanied by the yellow receipt of the filing fee receipt No. 1448667 and the bank receipt for the security deposit.

11.	Physical Filing – Occasionally we have had computer glitches. When these occasions happen, it was necessary for the Registrar to approve physical filing, i.e. the filing was done manually and received over the counter. I as the Registrar available on the night of the 12th of October 2022, approved the physical filing of the Election Petition. This was then corrected immediately when the system came back on.”

Submissions

9.	The First Respondent submits that on account of breach of the provisions of Section 208(e) and 209 of the Organic Law – and the lack of specific allegations required by Section 208(a) of the Organic Law, the petition should be dismissed for incompetency.

10.	The Second Respondent agrees with the submissions of the First Respondent.

11.	The Petitioner submits that the petition is competent and should proceed to trial on all the grounds and that the objections should be dismissed with costs. According to the Petitioner, there are sufficient facts for the Court to consider and determine that the NCD Regional Seat Election be declared a failed election.

Consideration

12.	I propose to deal with the alleged non-compliance with Section 209 of the Organic Law first, because, if this ground succeeds, it will not be necessary to deal with the other grounds raised by the First Respondent.

13.	It is proper to remark at this stage that the Justices of this Court have taken divergent views on the interpretation of Section 209 of the Organic Law. Suffice to say that the Justices of this Court are oath bound to always keep an open mind and determine each case on its facts, circumstances and the law.

14.	It is a requirement of Section 209 of the Organic Law, that security for costs be deposited at the time of filing the petition and not before or after.

15.	Section 209 of the Organic Law bears stating in full:

“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.	In the case of Epi Farapo v Electoral Commission (1983) PGSC1 SC247, the Court, stated 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…”.

17.	I have, in the course of preparing this Ruling -reconsidered the divergent views of this Court on the interpretation of Section 209 of the Organic Law. I have considered and taken into account a line of authorities that embrace a strict and less strict approach.

18.	Under the strict approach one may list the following cases:

1)	Manwau v Bird and Electoral Commission (2023) N10249;
2)	Ibo v Hagahuno and Electoral Commission (2023) N10322;
3)	Kala v Temu and Electoral Commission (2023) N10364;
4)	Dola v Alua and Electoral Commission (2023) N10464;
5)	Nupiri v Powi and Electoral Commission (2023) N10398;
6)	EP No. 3 of 2022; Minape v Rosso & Electoral Commission
7)	EP No. 33 of 2022; Simake v Hewabi & Electoral Commission
8)	Dominic v Kaupa (2023) N10361.

19.	Under the less strict approach one may list the following cases:

1)	Robert Ganim v Lino Tom Moses (2018) N7233 per Makail J;
2)	Patrick Leslie v Christopher Ken (2015) N6073 per Makail J;
3)	Onglo v Dilu (2023) N10595 per Kandakasi DCJ;
4)	Marus v Maneke (2024) N10665 per Makail J;
5)	Manase v Polye (2024) EP No. 22 of 2022 per Bona J;
6)	Aimo v Wapunai (2024) EP No. 25 of 2022 per Polume-Kiele J;
7)	Kiso v Ling-Stucky (2023) N10290) per Manuhu J;
8)	Parkop v Juffa (2023) N10281.

20.	I must say, with respect, that there is a lot that is admirable about a line of cases that adopt a less strict approach as the quest for substantive justice is plain in those decisions. I find however, that this quest is frustrated by the operation of Schedule 2.9 of the Constitution, which provides that:

“Sch.2.9. Subordination of Courts

(1)	All decisions of law by the Supreme Court are binding on all other courts, but not on itself.” (emphasis mine)

21.	In the case of Moses Manwau v Hon. Allan Bird and Electoral Commission (2023) N10249, Gavara-Nanu J, at paragraph 18 stated that:

“The operative words in s.209 are “at the time of filing the petition”, (the Petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for costs). These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for cots in the sum of K5,000.00 had to be paid in full on 7th September, 2022, when the petition was filed with the Registrar of the National Court. To give any other meaning to the words would not only result in this Court striking down the mandatory constitutional law, but it would also give rise to serious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.”

22.	My brother Anis J, sitting as a single judge of the Supreme Court in Evele Kala v Sir Puka Temu (2023) SC2453, at paragraph 18 stated that:

“18. These cases interpret s.209 to mean … that at the time of filing a petition, the security for costs, and not receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court. The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time. The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss.208, 209 and 210 of the OLNLLGE. Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when His Honour at paragraph 38 of his decision stated, a receipt is merely documentary evidence of payment. It is no payment per se.”

23.	It is plain from the case of Farapo (supra), and many others, such as the case of Paru Aihi v Peter Namea Isoaiomo (2015) SC1598, that the payment of security and the filing of the petition must occur on the same day.

24.	It is trite learning that each case must turn on its facts, circumstances and the law.

25.	During argument in this matter, I remarked that in circumstances where the electronic filing system was malfunctioning and frustrating the parties to file documents in time, the Court may take that into account in interpreting Section 209 of the Organic Law.

26.	Having regard to the above, I had directed the parties to assist the Court with case law on how this Court must approach the issue of malfunctioning electronic system that frustrate the parties to file their petitions in time as required by law.

27.	The Petitioner helpfully referred me to the decision of the High Court of Tanzania in the case of Maliselino B. Mbipi v Ostina Martine Hyera (Misc Civil Application No. 8 of 2022), which dealt with issues of electronic filing system malfunctioning in the context of an application for extension to file an appeal out of time.

28.	Significantly, the Court in the aforesaid case stated that it cannot lay down hard and fast rules in the area of electronic filing of documents because each case must be looked at individually on a case-by-case basis.

29.	In another case of MW Rice Millers Ltd vs Mwasa Security Limited (Civil Appeal 10 of 2022 (unreported), the High Court of Tanzania blamed the delay in filing court documents on the malfunctioning electronic system and exonerated the Appellant.

30.	In this case, based on the supplementary Affidavit of Mr. Bina, it does appear that at one stage the electronic filing system was not functioning well, but that part of the evidence that the system was malfunctioning is very sketchy and unhelpful. Mr Bina does not give any details as to what was happening with the system that day; how long it was malfunctioning and at what time it was restored.

31.	Based on the insufficiency of the evidence, and notwithstanding my inclination to hold that the system was not functioning properly and to exonerate the Petitioner from the delay, it is not possible (based on insufficiency of evidence) to hold that the malfunctioning of the electronic system is wholly or substantially to be blamed for the delay.

32.	In the result, based on the evidence on record, I am satisfied that: (a) the security deposit was paid on the 12th of October, 2022 and (b) the petition was filed on the 13th of October, 2022 and that this violated the strict and mandatory provisions of s.209 of the Organic Law.

33.	I take the view that the correct meaning of “filed” is the one that is found in Rule 1 of the Election Petition (EP) Rules. Rule 1 of the EP Rules, states that: 

“1.	Definitions

In these Rules, unless the contrary intention appears:

“Court” means the National Court of Justice;

“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 scale of the Court and endorsed with an election petition number;

34.	It is beyond dispute that Section 184 of the Constitution and Section 212(2) of the Organic Law empower and authorize the Judges to make rules for the Election Petitions. The word “filed” is not defined by the Organic Law and therefore, it is safe to conclude that definition under Rule 1 of the Petition Rules should stand because the Petition Rules are the creature of Section 212(2) of the Organic Law. In Sai-Sailon Beseoh v Yuntivi Bao (2023) N2348, Injia J. (as he then was) said the following:

“It is fair to say that in not defining the word “filed”, in s.208(e) or the OLNE generally, the Parliament intended that the National Court would prescribe its own procedures for filing a petition in its own registry. Indeed, it is the traditional practice that the legislature has accorded the Courts greater freedom, to prescribe its own procedure in these sorts of matters. That is the purpose of OLNE s.212(2) and s.184 of the Constitution which empower the Courts to make rules of Court on the practice and procedure in such matters as filing of documents in Court, payment of filing fee for those documents and conducting pre-trial conferences. And when Courts make these rules, they are intended to effect provisions of OLNE, including s. 208(e). These rules should not be read and understood by parties and registry staff a mere technical requirement which they may ignore, waive or bend to suit their own personal conveniences …”

35.	Speaking for myself, I accept that the logic of Injia J in the case of Beseoh (supra) is compelling and correct.

36.	The EP Rules are authorized by the Organic Law and should be followed. In the recent case of Petrus Nane Thomas v William Wai Bando & EC [2023] PGNC 126 the Court stated that:

“42. 	On the grounds relating to deposit of security for costs, the Respondents submit that the petition is incompetent because Court documents showed that the security for costs of K5,000 was deposited on 25 August 2022 and not at the time of filing.

43. 	They cite the cases of Paru Aihi v Peter Naema Isoaimo (2015) SC 1598; Moses Manwau v Hon Allan Bird [2023] N10249; EP 62 of 2022 Hagahuno v Tuke and EP 3 of 2022 Mathew Minape v John Rosso as guides on the failure to pay security deposit at the time of filing the petition.

44. 	For the Petitioner Mr. Molloy submits that the Petitioner followed Rule 7 of the Organic Law and the practice that a security deposit is paid prior to filing the petition. It is physically impossible to file the petition and simultaneously pay the security at the “appropriate bank”. Where the 40 days expired on a weekend a petitioner would be deprived of the 40 days and the fair and liberal approach under schedule 1.5 should be given.”

37.	The law is clear that the provisions of s.209 are to be observed strictly. In the case of William Hagahuno v Johnson Tuke (2020) SC2018, at paragraph 66 the Court states that:

“Carefully considering this and all of the foregoing discussions including, the observations I made in Kamma v. Itanu case, there is good reason now to depart from Biri v. 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 mine).

38.	At paragraph 69 the Court in Hagahuno stated that:

“69.	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 a petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filing an election petition.” 

39.	A careful reading of the Supreme Court case of Hagahuno, in my opinion, shows that the strict requirements of Section 209 of the Organic Law have not been relaxed. In other words, Hagahuno does not say it is competent to pay security deposit on a different date to the date the petition was filed. The payment of the security deposit must take place on the same day. 

40.	To this extent, I respectfully agree with my brother Anis J. in the case of  Peter Nupiri v William Titipe Powi (2023) PGSC 107 SC2459), that non compliance cannot be cured by this Court invoking Section 217 of the Organic Law as that section does not give any power to this Court, in the exercise of its discretion, under the said section, to override other provisions of the Organic Law such as Section 209 which is mandatory and must be strictly complied with.

41.	The bright lines that separate the perspectives of the learned Justices of this Court on the circumstances under which our Courts should approach or interpret the Organic Laws governing election petitions is laid bare in clear terms by my brother Kandakasi DCJ, in the Hagahuno case. Hagahuno is the leading authority on embracing a “fair and liberal approach as per Section 217 of the Organic Law on election petitions. The bright lines notwithstanding, it seems to me that Hagahuno still leaves s.209 of the Organic Law firmly insulated against the invocation of Section 217 to relax the strictness of its terms.

42.	In my respectful view having regard to the mandatory language of s.209 of the Organic Law, there is no room to read substantial compliance therein.

43.	Having regard to the above conclusion, there is no need to address other grounds of incompetency raised by the First Respondent.

44.	In the circumstances, this petition is liable to be dismissed as incompetent.

Order

45.	In the result, it is ordered that:

(1)	The objection to competency under s.209 of the Organic Law is upheld.

(2)	The petition is dismissed in its entirety pursuant to s.210 of the Organic Law.

(3)	The Petitioner’s security for cost deposit is in the sum of Five Thousand Kina (K5,000.00) paid into the National Court Registrar’s Trust Account is to be paid to the First and Second Respondents in equal amounts.

(4)	The Petitioner is to pay the First and Second Respondents’ cost of and incidental to the proceeding on party-part, to be taxed, if not agreed.

(5)	The Registrar of the National Cout shall forthwith take appropriate steps to comply with and give effect to the requirement of s.221 of the Organic Law.

(6)	The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.
__________________________________________________________________
Dotaona Lawyers:	 Lawyers for the Petitioner			
Dawidi Lawyers:	Lawyers for the First Respondent