SC1598

PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE]	

SC REV (EP) NO. 7 OF 2014

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

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

BETWEEN:
PARU AIHI
Applicant 

AND:
PETER NAMEA ISOAIMO
First Respondent

AND:
ELECTORAL COMMISSION OF
PAPUA NEW GUINEA
Second Respondent

Waigani:  Injia, CJ, Kariko, J and Poole, J
2015: 29th April & 5th June
SUPREME COURT – Practice & Procedure – Election dispute – Petition dismissed as incompetent – Application to review dismissal – Security deposit filed day after petition filed – Meaning of “filing” – Requirement to pay security deposit with petition – Whether section 209, Organic Law on National and Local Level Government Elections complied with. 

Cases cited:

Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
Kuberi Epi v Albert Farapo & Anor (1983) SC247 
Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980

Legislation:

Organic Law on National and Local Level Government Elections 
National Court Election Petition Rules 2002 

Counsel:

Mr D Kipa, for the Applicant
Mr G Sheppard & Mr Meninga, for the First Respondent
Mr P Kuma, for the Second Respondent

DECISION

5th June, 2015 

1.	BY THE COURT: This is an application for review of the decision of the National Court given on 28th July, 2014 whereby the trial judge upheld an objection to competency of the election petition filed by the applicant Paru Aihi (Aihi) in proceedings EP No. 3 of 2014 and dismissed that petition.  

2.	In the 2012 General Elections, Aihi was elected and returned as the winning candidate for the Kairuku-Hiri Open Seat. His election and return was challenged successfully by the respondent Peter Isoaimo (Isoaimo) in the Court of Disputed Returns which among others ordered a by-election for the Seat. That decision was affirmed by the Supreme Court on 1st October 2013 on an application for review by Aihi. 

3.	The by-election resulted in Isoaimo being elected for the Kairuku-Hiri Open Seat. As a losing candidate Aihi filed an election petition in the National Court pursuant to the Organic Law on National and Local Level Government Elections (the Organic Law) disputing the validity of the election of Isoaimo

4.	That petition was dismissed as incompetent on 28th July, 2014 pursuant to section 210 of the Organic Law for not complying with the mandatory requirement of section 209 of the Organic Law, that is that the petition was not filed with the requisite payment of K5,000 as security deposit (the Decision). Section 210 states that an election petition shall not be heard if the requirements of sections 208 and 209 are not complied with. Section 209 requires the security for cost to be deposited with the Registrar “at the time of filing the petition”.  

5.	Being aggrieved by the Decision, Aihi filed for an application for review of that decision and was subsequently granted leave to make the application.

Grounds for Review

6.	The application for review lists three grounds of review which in essence claim that his Honour the trial judge erred in finding that: 

(1)	the election petition was filed on 20th March 2014 and the security deposit paid on the next day 21st March 2014; and 

(2)	the filing was in breach of section 209 of the Organic Law.

Issues

7.	The issues for this Court to answer are:

(1)	Did the trial judge err in finding that the election petition was filed on 20th March 2014 and the security deposit paid the next day?

(2)	Did the trial judge wrongly apply the law in determining that Aihi failed to comply with section 209 of the Organic Law?  

Relevant facts

8.	The relevant facts before the trial judge and indeed this Court are not in dispute. Those facts are:

(1)	On 18th May 2014, the applicant paid the K500 filing fee and K5,000 security deposit at BMS Waigani for filing of his election petition and was issued receipts for those payments.

(2)	On 20th May 2014, he presented the petition together with the BMS receipts for the payments at the National Court Registry at Waigani.

(3)	The applicant was apparently advised by the Registry staff that he had incorrectly paid the security deposit as he should have had it paid into the National Court Registrar’s Trust Account at the Bank of South Pacific. He was then advised that the petition would be kept at the Registry until he made the correct payment.

(4)	As the banks had closed for the day, the applicant had the security deposit paid the next day 21st March 2014 and took the butt of the bank deposit slip back to the Registry and handed it over to the staff. 

(5)	The endorsements on the cover of the court file show that:
 
(a)	the petition was filed on 20th March 2014;

(b)	the receipt for the filing fee was filed on 20th March 2014; and

(c)	the receipt for the security deposit was filed on 21st March 2014.     

(6)	The date of filing endorsed on the petition reads 20th March 2014.

Submissions by the applicant

9.	Mr Kipa of counsel for the applicant argued that the trial judge ought to have found that the Registry staff mistakenly noted the date of filing the petition as 20th March 2014 when the correct date of the filing was 21st March 2014. Mr Kipa submitted that this was an “administrative error” for two reasons:

(1)	This was contrary to their advice by staff that they would hold onto the petition until the security deposit was properly paid; and 

(2)	the law states there can be no “filing” of a petition until the petition, the filing fee and the security deposit are together presented at the Registry, and this only occurred on 21st March 2015.

10.	Counsel urged this Court to find that the trial judge erred in fact and law in not correcting the “administrative error” and deciding that the “filing” of the petition occurred on 21st March 2014 and not the day before.

Submissions by the respondents

11.	Counsel for the respondents led by Mr Sheppard argued that the evidence speaks for itself – the petition was filed at the Registry on one day and the security deposit a day later. The deposit was not made “at the time of filing the petition” contrary to the requirements of section 209 of the Organic Law and therefore the primary judge was correct in dismissing the petition as incompetent. 

Determination of the application for review

12.	This is an application for review as opposed to an appeal. In relation to the distinction between the two processes, we note the instructive statement by the Supreme Court (Hinchliffe, Sheehan & Jalina, JJ) in the case of Moi Avei & Electoral Commission v Charles Maino [2000] PNGLR 157 at 161-162 expressed in the following terms:

"It is common ground that there are fundamental differences between appeals and review. They are in fact different jurisdictions.

In the appeal process an aggrieved person may, as of right, created by the Constitution or statute, call on a higher court or authority to examine the findings of fact and law of a determination against him. In the hearing of that appeal, the appellate Court may consider both facts and law, forming its own judgment of the issues. If error is found it will deliver the judgment it considers that should have been given in the court or by the authority below. That is, the appellate court may substitute its own findings for that of the court or authority appealed from.

Review on the other hand is not an appeal procedure. It is concerned not with the decision itself but with the decision making process. It is the supervisory jurisdiction of the ... Supreme Court empowering it to intervene, at its discretion, to ensure that the decisions of inferior courts or authorities made are within the limits of, and in accordance with, duties imposed on them by law. But it is not part of this jurisdiction for the Court to substitute its own findings or opinions for that of the authority that Parliament has appointed to determine the matters in question. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the Court as the decision maker.

As Lord Brightman stated in R v Hillingdon London BC. ex. P. Pulhofer (1986 AC484)

'where .....fact is left to the judgment of a public body, and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power ...'

Nonetheless the Court may intervene by judicial review where a Court or authority acts outside the jurisdiction given it by law, that is where it makes determinations it is not authorised to make. It can intervene where there is error of law on the face of the record, procedural irregularity or when it is plain that the decision reached is such as to be unsustainable in law or reason. Further no conflict of jurisdiction arises even with legislation excluding Court challenges such as s.220 of the Organic Law, because review is not an appeal procedure but rather a protection of the integrity of the decision making process.” (our emphasis)

13.	In Peter Wararu Waranaka v Gabriel Dusava (2009) SC980, the Supreme Court (Kandakasi, Lay & Gabi, JJ) referred to the quoted passage and remarked at [9] and [10]:

“We endorse these views as a correct statement of the law and add that a review should only be granted where there is an important point of law which clearly has merit or on points of evidence where there is an error clearly manifest on the face of the record. See Application of Ludwig Patrick Shulze (1998) SC572.

Bearing this important difference in mind, we remind ourselves that, we are here not concerned with the correctness or otherwise of the findings of fact as in an appeal which entitles the appellate court to conduct a hearing de novo on the record and substitute its own finding, if need be, but it concerns correctness of the procedure adopted and applied to arrive at the decision, the subject of this review.” (our emphasis)

14.	In support of the submissions for the applicant, reliance was placed on the cases of Kuberi Epi v Albert Farapo & Anor (1983) SC247 and Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348. 

15.	In the Epi case, the petitioner filed the relevant petition on one day and then paid the security deposit the next day as in this present matter, although in that case the fee was paid outside the prescribed time-limit for filing a petition. The Supreme Court held that the filing of the petition and payment of the security deposit must be part of the one act of filing. Kidu CJ and Pratt J in their joint judgement stated:

“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…..The language is clear and unambiguous.  “At the time of filing” means what it says, - neither more nor less…” (our underlining)

16.	Beseoh’s case involved the filing of a petition and the filing fee on different days. In that case, his Honour Injia. J (as he then was) elaborated on the principle enunciated in Epi’s case and defined the term “filing”. His Honour discussed the relevant provisions of the National Court Election Petition Rules 2002 (EP Rules) and the Organic Law and stated that under rr2,3,4 and 5, the act of filing the petition involves the filing of the petition, payment of the filing fee and payment of the security deposit at a specified location are part of the same act or series of acts constituting the filing and they must take place at the same time in the same registry before the same Registrar.

17.	His Honour reiterated the principle in Epi’s case that the lodging of the petition plus the production of the receipts of the two payments “must be part of the one act, an act of filing which is manifestly one and the same, not two separate acts requiring two separate and distinct visits to the Registry”. His Honour concluded his discussion of this issue by stressing that the EP Rules do not empower the Registrar to accept a petition without evidence of payments of the filing fee and the security deposit.

18.	The evidence is unchallenged that the Registry staff accepted the petition on 20th March 2014 without proof that the security deposit had been paid. 

19.	The Epi case and the Beseoh case were not referred to by the parties before the National Court. The trial judge referred to the Oxford Advanced Learner’s Dictionary (8th ed, 2010) for definitions of the words for the verb “to file” and the act of “filing” and decided the issue which incidentally is in line with the principles stated in the cited case authorities. At [18] of his judgement, his Honour said:

“Applying the above definitions to the present case when a petition is presented at the National Court Registry for filing, it is intended that it be put into a file of the Court; that it is officially recorded in the Court’s file and to be dealt with by the Court. The act of filing occurs at the time the petition is presented at the Registry, received by the Election Petition Registry staff and placed in the file. It should also be noted that the Court maintains a physical file and when the petition is presented for filing, it is placed in the file. A date is written on the petition to indicate when it was filed. The date of filing is the date the petition is received. It is also at this time that the security for costs must be paid. In other words, the filing of the petition and payment of security for costs must occur at the same time and I do not think s. 209 (supra) and Rule 5 (supra) envisaged that they occur at different times. This being the case, I am satisfied the petitioner failed to pay security costs at the time of filing this petition.”  (our underlining)
	
20.	Rule 5 of the EP Rules which gives effect to section 209 provides that the security deposit shall be paid at the Registry “at the time of filing” of the petition but where a petition is filed at a place other than a Registry, the deposit shall be paid into the National Court Registrar’s Trust Account. Earlier in his judgement at [16], the trial judge noted that the practice had developed at the Waigani Registry whereby petitioners are requested by Registry staff to pay the security deposit into the National Court Registrar’s Trust Account instead of the Registry contrary to Rule 5. The trial judge then remarked at [19]: 

“The petitioner’s submission that it was an “administrative error” because the Registry staff who received the petition on 20th March 2014 should have dated the petition as 21st March 2014 needs to be clarified to set the record straight. This submission misses the whole point and the point is Rule 5 (supra) is very clear on what account the security must be deposited into; it is the National Court Registrar’s Trust Account. It follows that it is not the Registry Staff’s responsibility to advise the petitioner as to what account he should deposit the money into. It is his responsibility to ensure the security is paid into the correct account.” (Our underlining)

21.	The trial judge’s reasons for decision do not depart from the established principles of practice and procedure regarding filing a petition disputing an election or return under the Organic Law on National and Local Level Government Elections.
 
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 Court 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. 
 
23.	Secondly, the petition is filed at a registry, as in this case, the deposit is paid in the prescribe form of payment at that registry, that is, “in cash or bank cheque”.  The payment must not be made in any other way at any other place and any other time. Payment of the security deposit in the Registrar’s Trust Account prescribed by   r 5(3) applies only to a situation where the petition is filed at a place other than at a registry. Court registry staff and petitioners should not get confused with these two distinct methods of filing a petition and payment of the security deposit. Petitioners should, when they present the petition at the court registry for filing, deliver the “cash or bank cheque” to the court staff at the registry.  If the staff were to insist on the payments being made in the Registrar’s Trust Account at the Bank where it is operated, the petitioner should resist the advice or instruction form the court staff. If the court staff become stubborn and persist with their instruction, the petitioner should seek direction from the Registrar or a Judge to review that instruction. Upon delivery of the petition and the security deposit (and receipt for the filing fee), the act of filing the petition is complete there and then.
 
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. 

26.	Thirdly, on the next day, the payment for security deposit was wrongly paid to the registrar’s trust account. This sounds superfluous and gratuitous, many would argue, because after all, the payment ends up with the same person, through the same account and serves the same purpose. However there is an important purpose to be served by insistence on strict obedience to these rules found in r 5. That is, to achieve administrative efficacy in the court’s management of this litigation regime that historically has proven to be arduous for the courts.  

Conclusion

27.	For these reasons, we are unable to find any error in the reasoning and conclusions of his Honour the trial judge. We therefore find no merit in the grounds for review, and accordingly dismiss this application for review with costs in favour of the respondents.

________________________________________________________________
Twivey Lawyers: Lawyer for the Applicant
Young & Williams Lawyers: Lawyer for the First Respondent 
Parua Lawyers: Lawyer for the Second Respondent