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Hagahuno v Tuke [2018] PGNC 215; N7330 (22 June 2018)

N7330

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 OF 2017

IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE KAINANTU OPEN IN THE 2017 NATIONAL ELECTIONS

BETWEEN:
WILLIAM HAGAHUNO
Petitioner

AND:
JOHNSON TUKE
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Lae: Murray J
2018: 4 & 22 June

ELECTION PETITIONS - PRACTICE & PROCEEDURE - Objection to competency- Requirements of s.208 (e) to file a Petition within 40 days after declaration of the result of election - What does it mean - When does counting of the 40 days start.

Cases Cited:

Biri vs. Ninkama [1982] PNGLR 342
Thomas Apa -v- Hon. Richard Medani and Electoral Commission of Papua New Guinea (SCA 1 EP 41 of 2017)
Jimson Sauk -v- Don Polye (2004) SC769
Kelly Kilyali Kalit -v- Jonh Pundari and Electoral Commission (1998) SC569
Labi Amaiu -v- Andrew Mald (2008) N3334
Labi Amaiu -v- John Kaupa (2017) N7004

Counsel:

Mr. M. Philip, for the Petitioner
Mr. P. Mawa, for the First Respondent
Mr. J. Simbala, for the Second Respondent

DECISION
(Objection to Competency)

22^nd June, 2018

1. MURRAY J: This is a Decision on two Objections to Competency of the petition by Mr. William Hagahuno, the petitioner, disputing the validity of the Election for the Kainantu Open Seat, Eastern Highlands Province in the recent (2017) National Elections.

Background

2. The petitioner, William Hagahuno and the first respondent, Johnson Tuke were candidates who contested for the Kainantu Open Electorate seat in the 2017 National Elections. On 20 April 2017, the writs for the 2017 National Elections were issued. The first respondent nominated on 21 April 2017, whilst the petitioner nominated on 27 April 2017. The polling was set to start on 26 June 2017, however, due to protests by candidates and boycotting of polling by the candidates' scrutineers on that day, it did not start till the next day, 27 June 2017 and ended on 28 June 2017. The scrutiny and counting of votes started on 10 July 2017 and ended on 26 July 2017. Then between the hours of 2 and 4 on the same day, the Returning Officer, George Manjiban, declared Johnson Tuke, (first respondent), the winner and duly elected member for Kainantu Open Seat, polling a total of 12 921 votes, whilst, William Hagahuno, the petitioner polled a total of 7 615. The difference of votes between them was 5 306 votes. Aggrieved by the final outcome of the election, William Hagahuno filed his petition on 4 September 2017.

The Petition

3. There are three grounds of petition pleaded in the petition by the petitioner, upon which he seeks to invalidate the election of the first respondent. Those grounds are:

1. Breach of section 87 (1) (c) of the Organic Law;
2. Bribery under section 215 (1) of the Organic Law and
3. Undue Influence under section 215 (1) of the Organic Law.
   

4. In the ground of bribery the petitioner alleges seven instances of bribery. Two of which were alleged to have been committed by persons other than the first respondent. The petitioner made these allegations under s.101 of the Criminal Code Act.

5. The third ground of the petition was abandoned at the hearing of the objections

Objections to the competency of the petition

6. The respondents, both object to the competency of the petition. The first respondent filed his Notice of Objection on 22 December 2017, whilst the second respondent filed its Notice of Objection on 21 November 2017.

7. Pursuant to their respective notices of objections, both respondents seek to dismiss the petition on the basis of non compliance of mandatory requirement of s.208 of the Organic Law on National and Local Level Government Elections (Organic Law). To be more specific, the first respondent seeks to dismiss the petition on the basis of non compliance with s.208 (a), (d) and (e) whilst the second respondent seeks to dismiss the petition on the basis of non compliance of s. 208 (a) and (d).

8. The jurisdictional basis of raising an Objection to the Competency of the Petition filed is not in issue in this case. All parties agree that Section 210 of the Organic Law is very clear. It in no uncertain term states; that a petition cannot proceed and be heard if the mandatory requirements of both s.208 and s.209 are not strictly complied with.

Relevant Law in general

9. I am grateful to all the lawyers for their assistance. They all provided written submissions citing case authorities, both from the Supreme and National Courts on the application of the relevant law, which is now settled in this jurisdiction as to the essential elements of an Election Petition filed pursuant to Section 206 of the Organic Law.

10. Section, 208 of the Organic Law provides the pre requisites of a Petition. It reads:

“208. Requisites of a 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)."

11. The mandatory nature of each of the requirements, is illustrated by the use of the imperative term “shall” and Section 210 states in no uncertain term that a Petition will not proceed and be entertained if the requirements of both Subsection 208 and 209 of the Organic Law are duly complied with”.

12. Section 209 of the Organic Law read as follows:

“209. Deposit as Security for Cost.

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.”

13. The Supreme Court in the case of Biri v. Ninkama [1982] PNGLR 342, the leading authority on the requirements of ss. 208, 209 and 210 of the Organic Law on National and Local Level Government Elections (Organic Law), at 345 unanimously said:-

“In our view it is clear that all the requirements in section 208 and section 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless section 208 and section 209 are complied with.

....

In our opinion it is beyond argument that if a petition does not comply with all the requirements of Section 208 of the Organic Law on National Election, than there can be no proceedings on the Petition because of Section 210”.

14. The Court described the rationale behind the mandatory nature of the Section 208 requirements in the following terms at page 345;

“Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with Section 208, it is not difficult to see why. An election petition is not an ordinary cause and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority”.

15. And, in Jimson Sauk vs. Don Polye (2004) SC769, the Supreme Court, having cited the leading authority, said:

“It is pertinent to note here, and we do not hesitate to say, that it is trite law that petitions must comply with s.208 of the Organic Law otherwise, the petition is precluded from proceedings to trial because of s.210. Interestingly enough, the Supreme Court in that case did not say that the petition must also strictly comply with s.206 of the organic law. In our view, it is not difficult to see why. In simple terms, s.206 is not a requisite of a petition therefore is no requirement for a strict compliance”

16. The Court, still referring to the leading authority, went on to say:

The Supreme Court interpreted ss.208, 209 and 210 and laid down the law that unless a party (Petitioner) strictly complies with requirements of ss 208 and 209, pursuant to s.210, the National Court laid had no jurisdiction to entertain and grant relief (s) under the Organic Law. A Petition could be filed pursuant to s.206 (Method of Disputing Returns), but unless each and every requirement of ss 208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return.

17. It is now settled that, each of the five requisites in s.208 of the Organic Law, is an essential element of a petition that must be complied with because of s. 210. A non compliance of one or more of the five (5) requisites, is fatal to the petitioner. The petition will be dismissed.

Addressing the objections

18. In the present case, both Respondents, argue in essence that, the petition filed herein, must be dismissed as being incompetent in that, the petition has failed to comply with all the essential elements of a petition. More specifically, the petition has failed to comply with the requirement of s.208 (a), (d) & (e).

19. I will deal with the objection under s.208(e) first as it raises a threshold issue, which in my view must be determined before the other objections. Objections under s. 208(a) and (d), involve the question of sufficiency of pleadings and sufficiency of particulars of an attesting witness respectively. A consideration of those in my view can only proceed if the Petition is properly before the Court. That is, if it was filed within time. If I uphold the objection under s.208(e), then, that would be the end of the matter, as it will serve no purpose to consider the other objections, if the petition has not been filed within time.

Is the Election Petition filed outside the 40 days period and therefore incompetent?

20. Mr. Mawa, counsel for the first respondent submitted that, Section 208 (e) of the Organic Law requires in mandatory terms that a Petition shall be filed at the National Court Registry within 40 days after the declaration of the result of the election. The formula for computation of 40 days for filing of Election Petition pursuant to Section 208 (e) of the Organic Law is that it starts from the date of declaration of the result and not after the date of declaration.

21. In support of that submission, Mr. Mawa relied on the Supreme Court Judgement in the case of Kelly Kilyali Kalit v John Pundari and Electoral Commission (1998) SC 569 and Labi Amaiu v Andrew Mald and 2 Ors (2008) N3334.

22. Although, Mr. Simbala, of counsel for the second respondent did not specifically raise any objection under s.208 (e), he fully supported the submissions by Mr. Mawa.

23. On the other hand, Mr. Philip, counsel for the Petitioner, relying on Section 11 of the Interpretation Act 1975, submitted that, the computation of the 40 days period stipulated in s.208 (e), does not start on the day of the declaration, but rather, on the next day. That is, the day after the declaration was made. Applying this, the Court will find that his client's Petition was filed within 40 days as required.

24. To further support his argument, Mr. Philip also relied on an unreported, unnumbered decision of the Supreme Court in the case of Thomas Apa vs. Hon. Richard Medani and Electoral Commission of Papua New Guinea (SCA EP 41 of 2017).

Decision

25. The issue here is, when does one start counting the 40 days period requirement set out in Section 208 (e) of the Organic Law? Is it on the day the declaration is made or is it on the next day?

26. I deal firstly with Mr. Philip's first part of his submission, where he relies on the Interpretation Act, in particular section 11(1). Section 11(1) is in the following terms:

"Section 11: Computation of Time

(1) In computing time for the purpose of a statutory provision, a period of time from;

(a) a certain day; or

(b) the happening of the event; or

(c) the doing of an act or thing

shall be deemed to the exclusive of the certain day, or the day on which the event happen or the act or thing it is done."
27. There is no dispute that, where an Act is silent on something, the starting point would be the Interpretation Act. However, the question that arises is, does the Interpretation Act apply to the provisions of the Organic Law. Mr. Mawa submitted, it doesn't because an Organic Law is not an Act or a Statute. I agree with Mr. Mawa's submission. Section 11 (1) is very clear as to where it is applicable. The start of this provision, states that, it is for the purpose of a statutory provision (underlining mine). Section 208(e) of the Organic Law is not a statutory provision, because the Organic Law is not a Statute, but rather a Constitutional Law. The Interpretation Act is therefore of no assistance here as it is not applicable.
28. I now turn to the second part of Mr. Philip's submission, where he submitted that, I should follow the decision in the case of Thomas Apa. Mr. Philip did not provide me with a copy of the decision in that case, and nor was I able to find one. However, as I understand from submissions by both Mr. Philip and Mr. Mawa, that case dealt with the application of Rule 8(1) of the Election Petition Rules 2017 which specifically stipulates that a Petition must be served on the respondents 14 days after the date of filing. The argument by Mr. Philip is that, I should compute the 40 days period in s.208(e) by simply following Rule 8(1) of the EP Rules. In this case, we are dealing with a provision of Organic Law on National And Local Level Government, which is superior than the Rules of the Court. The Court in Thomas Apa dealt with a provision of the Rules. Not the same thing as the Organic Law. In the circumstances, I agree with Mr. Mawa that the case of Thomas Apa is also not applicable in this case.

29. I prefer the argument by the respondents that, the 40 days period for filing of a petition would start from the date of declaration of the result of the election.

30. Section 208 (e) states that, a petition is to be filed in the registry of the National Court at Port Moresby or at the court in any Provincial headquarters within 40 days after the declaration of the result of the election (underlining mine) in accordance with Section 175 (1) (a).

31. Justice Makail, in his decision in the case of Labi Amaiu vs. John Kaupa, N7004, held the view that, in computing the 40 days within which a Petitioner must file his petition, one must start counting on the next day and not the same day, the declaration was made. His Honour concluded that, that was consistent with the wording and dictate of section 208(e).

32. With the greatest respect, to my Brother Judge, to read section 208(e) as he has done would in my view be reading too much into that provision and I do not think that was the intention of the legislator. Section 208(e) simply says the Petitioner has 40 days after the declaration (underlining mine) to file his petition. The word "after", by any dictionary, has one or more of the following meanings: following; or following in time, place or order; or subsequent to; or at the close of; or in the period of time following an event. Looking at these definitions of what the word "after" means I am of the view that, the wording of section 208(e), in particular, the phrase, within 40 days after the declaration of the result of an election, could not mean anything more than what it is. The counting of the 40 days will start following the declaration of the result. That could only mean on the same day of the pronouncement of the declaration.

33. This was the view of the Late Chief Justice, Sir Mari Kapi in the case of Labi Amaiu vs. Andrew Mald (supra). In that case, His Honour, following the decision of the Supreme Court in Kelly Kilyali Kalit vs. John Pundari (supra), at paragraph 12 of the judgment said:

In order to compute the 40 days, the date of the declaration of the result of the election must be determined. Both counsels have agreed that the computation of the 40 days is calculated from the date of the declaration of the result of the election (including the date of the declaration.) This method of calculating the 40 days was approved by the Supreme Court in Kelly Kilyali Kalit vs. John Pundari and the Electoral Commission (Unreported Judgment of the Supreme Court dated 7^th October 1998, SC569).

34. Then at paragraph 19 and 20, His Honour went on to say:

19. I do not accept the proposition put forward by counsel for the first respondent. The proper approach is as adopted by Salika J and approved by the Supreme Court in Kelly Kilyali Kalit vs. John Pundari and Electoral Commission (supra). The issue of when the result of the election was declared is a question of fact and needs to be determined by evidence.

20. In this matter, I did not have to hear evidence on the issue as it was accepted by all parties that the result of the election was declared on the 24 July 2007. The 40 days is to be computed from the day of declaration (that is 24 July). This method of computing the 40 days as I have pointed out before, can be deducted from the Supreme Court decision in Kelly Kalit vs. John Pundari (supra).

35. In Labi Amaiu vs. John Kaupa,(supra), Justice Makail, departed from the decision by the Supreme Court in Kelly Kilyali Kalit. The basis of His Honour's departure was that, he was of the view that, the computation of the 40 days period in s.208 (e) was not an issue before the Supreme Court in Kelly Kilyali Kalit and thus, reached a conclusion that the issue was not yet settled.

36. I have read the judgement by the Supreme Court in Kelly Kilyali Kalit, and I agree that, the issue now before this Court was not raised as an issue per se before the Supreme Court. However, in reviewing the decision of the trial Judge, Salika J as he then was in the National Court case of Kelly Kilyali Kalit v John Pundari, which dealt with the preliminary issue of whether the petition was filed within the prescribed period of 40 days from the date of declaration, the Supreme Court, found no error by the trial Judge and approved his findings. The findings of the Trial Judge were, firstly, His Honour found that, 4^th of July was the date of declaration of the winning candidate and secondly, in computing the 40 days, the trail Judge started counting from the 4^th of July and finally, found the petitioner's petition was filed 1 day outside the 40 days period, resulting in a dismissal.

37. In my opinion, the Supreme Court in Kelly Kilyali Kalit, has settled this issue and in the absence of any other Supreme Court decisions to the contrary, I am bound by the decision in Kelly Kilyali Kalit, which says, the computation of the 40 days is calculated from the date of the declaration of the result of an election petition, including the date of the declaration.

38. In the present case, there is no issue as to the date of declaration. All parties, agree that the declaration of the first respondent as the winning candidate was made on 26 July 2017. Given that, the last day of the 40 days counting from the 26^th July 2017 is the 3^rd of September 2017. The petition was filed on 4^th September 2017, a day late. The petition is therefore incompetent and must be dismissed on this basis alone.

39. Having found the Petition was filed outside the 40 days period and has been dismissed, it is now not necessary for me to consider the other objections.

40. My formal Orders are-

(1) The Petition in EP Number 52 of 2017 is dismissed as being incompetent, on the basis that it failed to comply with section 208 (e) of the Organic Law on National & Local Level Government Election.

(2) The Petitioner shall pay the First and Second Respondents’ costs.

(3) The security deposit of K5,000.00 shall be apportioned equally between the First and Second Respondents.
________________________________________________________________

Korerua & Associates Lawyers: Lawyers for the Petitioner

Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent