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Tongamp v Kaiwi [2025] PGSC 57; SC2774 (9 September 2025)

SC2774

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV (EP) NO 14 OF 2024

WILLIAM TONGAMP
Applicant

V

SIMON KAIWI
First respondent

ELECTORAL COMMISSION
Second respondent

WAIGANI : SALIKA CJ, CANNINGS J,
KARIKO J, MURRAY J, AUKA J

29 AUGUST, 9 SEPTEMBER 2025

ELECTION PETITIONS – requirements for filing – requirement to pay security for costs of K5,000.00 – Organic Law on National and Local-level Government Elections, s 209 – whether necessary to pay security for costs on the same day that the petition is filed.

The applicant applied to the Supreme Court for review of the decision of the National Court to dismiss his petition against the election of the first respondent. The National Court held that the petition was incompetent as the security for costs was not deposited on the same day that the petition was filed. It was paid nine days earlier. This was held to be in breach of s 209 of the Organic Law on National and Local-level Government Elections, which states “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”. The applicant argued that the National Court erred as s 209 is complied with by proof of payment of the security for costs being filed with the petition. The first respondent argued that the National Court did not err as it was bound to follow two earlier Supreme Court decisions, Epi v Farapo (1983) SC247 and Aihi v Isoaimo (2015) SC1598, which held that it is necessary to deposit the security on the same day that the petition is filed. The Electoral Commission, the second respondent, supported the first respondent.

Held:

(1) Section 209 of the Organic Law on National and Local-level Government Elections does not expressly state that the security for costs must be deposited with the Registrar on the day of filing the petition. It requires only that the security be deposited “at the time of filing the petition”. The requirement is met by depositing with the Registrar, at the same time the petition is filed, proof of payment of the security for costs.

(2) Neither Epi v Farapo (1983) SC247 nor Aihi v Isoaimo (2015) SC1598 support the proposition that the security for costs must be paid on the same day the petition is filed. Each case involved payment of the security for costs on a day after filing the petition.

(3) The National Court erred in its insistence that the security deposit be paid on the same day the petition was filed.

(4) The application was granted, the decision of the National Court was quashed and the petition was remitted to the National Court for hearing. Costs followed the event.

Cases cited
Aihi v Isoaimo (2015) SC1598
Epi v Farapo (1983) SC247

Counsel
G Manda & A Manda for the applicant
J Kolo for the first respondent
N Tame for the second respondent

1. BY THE COURT: William Tongamp, the applicant, applies to the Supreme Court for review of the decision of the National Court of 5 July 2024 to dismiss his petition, EP 73 of 2022, against the election of Simon Kaiwi, the first respondent, as member for Jiwaka Provincial in the 2022 general election.

2. The National Court held that the petition was incompetent as the security for costs of K5,000.00 was not deposited with the Registrar on the same day that the petition was filed, 14 September 2022. It was deposited nine days earlier. This was held to be in breach of s 209 of the Organic Law on National and Local-level Government Elections, which states:

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.

3. The applicant argues that the National Court erred as s 209 is complied with by proof of payment of the security for costs being filed with the petition.

4. The first respondent argues that the National Court made the correct decision as it was bound to follow two earlier Supreme Court decisions, Epi v Farapo (1983) SC247 and Aihi v Isoaimo (2015) SC1598, which show that it is necessary to deposit the security for costs on the same day that the petition is filed.

5. The Electoral Commission, the second respondent, supports the first respondent.

IS IT NECESSARY FOR THE SECURITY FOR COSTS TO BE DEPOSITED ON THE SAME DAY THAT THE PETITION IS FILED?

6. This is the issue raised by the primary ground of review. It is the same issue that arose in a related case we heard on 29 August 2025 immediately before the present case, SCREV (EP) 13 of 2024, Patrick Nema v Simon Kaiwi & Electoral Commission.

7. The primary judge, Justice Yagi, was the same in each case. His Honour heard two separate petitions against the return of the same person, Simon Kaiwi, as the successful candidate at the same election for the Jiwaka Provincial seat at the 2022 general election. His Honour heard objections to competency of each petition and upheld one ground of objection in each case and dismissed each petition.

8. In the present case his Honour dismissed EP 73 of 2022 in his decision of 5 July 2024. His Honour noted that though the National Court had taken different approaches to resolution of the issue, he was not bound by those decisions. His Honour regarded himself as bound to adopt the approach taken by the Supreme Court in Epi v Farapo (1983) SC247 and Aihi v Isoaimo (2015) SC1598.

9. His Honour cited dicta of the majority (Kidu CJ and Pratt J) in Epi, who held:

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 confusion which can arise from such double acts is indeed exemplified in the present case where three receipts were issued when the cheque was originally paid in and the fourth was obviously written out at some subsequent stage and as a result was given a completely erroneous date which caused considerable trouble at the start of proceedings. The Act and the section concerned herewith attempt to lay down a simple straightforward clear-cut method of procedure with a view to avoiding as much as is humanly possible the proliferation of error. The language is clear and unambiguous. “At the time of filing” means what it says - neither more nor less, and it behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.

10. In Aihi the security deposit was paid into the Registrar’s trust account the day after the petition was filed. The Supreme Court held that that did not meet the requirements of s 209 of the Organic Law.

11. In determining the issue of whether it is necessary for the security for costs to be deposited on the same day that the petition is filed, the first thing to note is that s 209 of the Organic Law does not expressly state that the security for costs must be deposited with the Registrar on the day of filing the petition. It requires only that the security be deposited “at the time of filing the petition”.

12. We consider that, giving those words a fair and liberal meaning, as required by schedule 1.5(2) of the Constitution, the requirement as to timing of the deposit with the Registrar is met if, at the time the petition is filed, proof of deposit of the security for costs is provided to the Registry.

13. We note that the Election Petition Rules 2017 requires that evidence of the deposit into the Registrar’s trust account be filed with the petition, not that the deposit be made on the day of filing the petition. Rule 7 states:

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.
14. While the provisions of Rules of Court cannot govern the interpretation of the provisions of an Organic Law, we consider that rule 7 provides a good pointer to the practicalities of filing a petition. The significant requirement is that proof of payment of the deposit is filed with the petition. It matters not when the deposit is paid, as long as it is paid on the day of or any day before the petition is filed.

15. It makes no sense to insist that petitioners pay their security for costs on the day of filing of the petition. Prudence dictates that it should be paid well before the filing day, provided that proof of the payment is provided when the petition is filed.

16. Neither Epi v Farapo (1983) SC247 nor Aihi v Isoaimo (2015) SC1598 support the proposition that the security for costs must be paid on the same day the petition is filed. Each case involved payment of the security for costs on a day after filing the petition. The facts of each of those cases are different to those of the present case, where the deposit was paid into the Registrar’s trust account nine days before the petition was filed and proof of the deposit was provided when the petition was filed.

17. It is not necessary for the security for costs to be deposited on the same day that a petition is filed.

18. We find that the learned primary judge erred in considering that he was bound by the Supreme Court’s decisions in Epi and Aihi to insist that the security deposit be paid on the same day the petition was filed and upholding an objection to competency of the petition and dismissing the petition on that basis.

CONCLUSION

19. The application for review will be upheld. Costs will follow the event. The petition will be reinstated and remitted to the National Court.

ORDER

(1) The application for review of the decision of the National Court of 5 July 2024 in EP 73 of 2022 is granted.

(2) The decision of the National Court is quashed.

(3) The petition is reinstated and remitted to the National Court for hearing in accordance with the Election Petition Rules 2017.

(4) The respondents shall pay the applicant’s costs of the review on a party-party basis, which shall if not agreed be taxed.

_____________________________________________________________
Lawyers for the applicant : Greg Manda Lawyers
Lawyers for the first respondent : Kolo & Associates Lawyers
Lawyers for the second respondent : Nicholas Tame Lawyers