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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 7 OF 2022
BETWEEN:
PETRUS NANE THOMAS
Petitioner
AND:
WILLIAM WAI BANDO
First Respondent
AND:
ELECTORAL COMMISSION
Second Respondent
Waigani: Kangwia J
2023: 11th & 19th June
ELECTION PETITION – Objection to competency – filed meaning of pursuant to s208 (e) Organic Law – hand delivery of petition & uploading on IECMS done within 40-day time frame – lodging, endorsing & allocating petition number done outside 40 day timeframe – not permitted by s208 (e) – petition incompetent.
PRACTICE AD PROCEDURE - Objection to competency - security deposit paid prior to filing of petition – not permitted by s 209 – Rule 7 best guide on security deposit for practical purposes – objection to competency made out.
Cases Cited:
Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342
Hagahuno v Tuke (2020) SC2018
Paru Aihi v Peter Naime Isoaimo (2015) SC1598
Sai Sail Beseoh v Yuntivi Bao (2003) N2348
Kuberi Epi v Tony Farapo (1983) SC247 EP No 89 of 2022
Wesley Raminai v Maino Pano (2023) N10248
Parkop v Juffa (2023) N10281
Kassman v Tkatchenko (2023) N10213
Kuberi Epi v Albert Farapo & Anor (1983) SC247
Sai Sail Baseo v Yuntivi Bao (2003) N2348
Paru Aihi v Peter Naema Isoaimo (2015) SC1598
Moses Manwau v Hon Allan Bird [2023] N10249
Hagahuno v Tuke (2023) N10322
EP 3 of 2022 Mathew Minape v John Rosso (Unreported Decision).
Counsel:
I. Molloy, for the Petitioner
B. Doiwa, for the First Respondent
S. Dewe & C. Mara, for the Second Respondent
19th June, 2023
1. KANGWIA J: This is the decision on the Respondents objections to competency. By amended notices of motions the Respondents object to the competency of the election petition which sought to invalidate the declaration and return for Koroba Kopiago Open Electorate in the 2022 National Elections.
2. The petition alleges that errors and omissions were committed by electoral officials when they failed to count 13 ballot boxes, failed to comply with Electoral Commissioner’s directives not to count identified ballot boxes and instead allowed counting, and illegal practices were committed when ballot boxes containing ballot papers for Maria and Gunu 1 polling places were hijacked and filled in by named persons.
3. The background briefly is that Petrus Nane Thomas (Petitioner) and William Wai Bando (First Respondent) were among 29 candidates who contested the Koroba Kopiago Open Electorate in the 2022 National Elections. On 19 July 2022 the Returning Officer declared the First Respondent as duly elected member of parliament representing the Koroba Kopiago Open Electorate. Aggrieved by the declaration and return, the Petitioner who came third in the race challenged the declaration and return, by way of an election petition the subject of this objection to competency.
4. An objection to competency is a jurisdictional challenge more than a determination of the merits or threshold issues of the petition which are open for determinations if the objection surpasses the competency issues.
5. The threshold law governing Election Petitions is s 210 of the Organic Law on National and Local Level Government Elections. That section states:
210. No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
This provision is mandatory, and a petitioner must strictly comply with s 208 and 209 before a petition can be heard by the Court. To better appreciate what is to be complied with under s 208 and 209 those provisions are also reproduced here.
208. Requisites of 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 courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
209. Deposit as security for costs.
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.
6. The five requirements under s 208 and the single requirement under 209 of the Organic Law are mandatory and strict compliance is demanded of a petitioner because s 210 says a failure to comply with them renders a petition incompetent.
7. Counsels have through elaborate submissions covered the principles developed by Courts on the mandatory requirements of s 208 and 209 and 210 of the Organic Law. Without delving into the merits or otherwise of the arguments advanced it suffices to incorporate the arguments on what the mandatory requirements are constituted.
8. The mandatory nature of the requirements under s 208, 209 & 210 of the Organic Law is settled in this jurisdiction. The Supreme Court in Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342, laid down the law when it interpreted ss 208,209 & 210 which interpretation has been embraced in subsequent Election Petition cases. The court there at page 344 said:
“... The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 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 proceeding unless s. 208 and s. 209 are complied with...
In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s. 208 of the Organic Law on National Elections, then there can be no proceedings on the petition because of s. 210.”
9. By that enunciation and pursuant to s 210 of the Organic Law the National Court has no jurisdiction to entertain a petition filed pursuant to s 206 of the Organic Law if the requirements under s 208 and 209 are not fully complied with. The bottom line is that the mandatory requirements impose on a Petitioner an obligation to be vigilant if he or she was serious about invoking the Courts powers to void an Election Return.
10. However, some consolation was accorded a petitioner in the recent case of Hagahuno v Tuke (2020) SC2018 when a five-man Supreme Court Bench held that in deciding whether a petition meets the requirements of s 208 of the Organic Law the National Court must have have regard to Schedule 1.5 of the Constitution which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning” in particular to s 217 to be guided by the substantial merits and good conscience of each case without regard to forms and technicalities.
11. With respect, the enunciation did not completely relieve a petitioner of the obligation to meet the mandatory requirements
in an Election Petition. In my view the decision was another reminder to the Court having carriage of an election petition that strict
compliance can be relaxed through the existing legislative framework.
12. In the present case the grounds relied on by the Respondents objections to competency in brief state that the petition:
13. I propose to deal with grounds 7 and 8 first because they invoke the jurisdiction of the Court. I cannot deal with the other grounds devoid of jurisdiction.
14. Under those grounds the relevant facts not in dispute are that on 19 July 2022 the First Respondent was declared duly elected member for Koroba Kopiago. The Petitioner had 40 days from that day to file his petition at the Registry of the National Court. The 40 days was to lapse on 28 August 2022.
15. On 25 August 2022 the Petitioner deposited K5000 as security for costs into the Registrars Trust Account. On 27 August 2022 between 10 and 10.38 pm through prior arrangement Mr. Joseph Allant a legal Clerk with Manase & CO Lawyers hand-delivered a hard copy of the Election Petition attached with the filing fee and security deposit receipts to Mr. Mathew Bae who is the Senior Officer for IECMS and CDS electronic filing systems at the Court Registry. Upon receipt of the petition documents Mr. Bae left it in the in-tray for the EP track officers to attend.
16. According to IECMS records contained in the affidavit of Cynthia Mara the petitioner opened an account through IECMS on 27 August 2022 at 23.59 am a second before the end of the 24-hour day and a draft filing number DFT 08 of 2022 was issued to it. On 28 August 2022 commencing 12.24 am the Petitioner uploaded on IECMS the petition, filing fee, and security for cost receipts.
17. At 8.41 am of the same day the three documents were validated and forwarded for approval which was approved at 10.19 am and the filing number changed from DFT 08 of 2022 to EP 07 of 2022. On 29 August 2022 at 11.56 am Ms. Kini Mamis the EP track Manager received the petition, checked for compliance, gave a register number and sealed it backdated to 27th August 2022 being the date the petition was hand delivered to Mr. Bae.
18. The main issue to be determined therefrom is whether the Petition suffers the requirements of filing under s 208 (e) and security deposit under s 209 of the Organic Law rendering the petition incompetent.
Ground 7 - Filing outside 40 days.
19. In addressing the ground relating to filing of the petition both counsels for the Respondents support each other and advance similar arguments that the Petition is incompetent because it was filed outside the 40-day time limit set by s 208 (e) of the Organic Law. They submit that despite the petition being uploaded with the receipts on 27 August 2022 the petition was physically lodged, endorsed and registered with Election Petition number on 29 August 2022. Therefore, according to Rule 1 of the Election Petition Rules this petition was filed 1 day outside the 40-day period and is incompetent to go to trial.
20. On the definition of “filing” the Court has been led to the cases of Paru Aihi v Peter Naime Isoaimo (2015) SC 1598; Sai Sail Beseoh v Yuntivi Bao (2003) N2348 and Kuberi Epi v Tony Farapo (1983) SC247 EP No 89 of 2022; Wesley Raminai v Maino Pano (2023) N10248 as demonstrating what “filing” constituted.
21. For the Petitioner Mr. Molly submits that the Court should accept that the petition correctly endorsed the filing date as 27 August 2022. It was filed on 27 August 2022 at 10.30 pm when it was physically lodged at the Court Registry with Mathew Bae and electronically filed the same day at 11.59 pm. It makes no practical difference whether the electronic lodgment was shortly before midnight or the following day because the petition had already been filed between 10 and 10.30 pm on 27 August which is within time. The other submission is that the definition of “filed” under the rules has no relevance to the interpretation of “filed” in the Organic Law. He referred to the cases of Parkop v Juffa (2023) N10281 and Kassman v Tkatchenko (2023) N10213 as the correct approach in this respect.
22. The submissions of counsels are consistent with the facts stated earlier on what happened on 27 August 2022. The Petition was hand delivered to Mathew Bae the Senior Officer for case docketing system at the National Court Registry on 27 August 2022. There are variances and accusations in the exact timing and the location, but it suffices to say it was between 10 and 10.30 pm that the hardcopy petition documents changed hands between Joseph Allant and Mathew Bae. On 29 August 2022 Ms. Kini Mamis the Manager for EP track entered in IECMS the lodgment, sealing and endorsement with EP number and backdated the entry to 27 August 2022 being the date on the hard copy.
23. The main question that arises from submissions of counsel is, when was the Election Petition “filed” to be realized as a petition pursuant to s 208 (e).
24. The Organic Law under s 208 (e) requires that a petition should be filed at the Registry of the National Court within 40 days after the Declaration. The 40 days is computed from the next day after the declaration. The next day in my view would start after the day of declaration ends at 12 midnight. (Hagahuno v Tuke)
25. The requirement under s 208 (e) is complimented by Rule 5 of the Election Petition Rules this way:
5. Filing
A petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.
26. The combined effect of the two provisions is that they are to be strictly complied with. A petition must be filed together with the official receipt of the filing fee and the deposit slip of the security deposit as evidence that the payments have been made.
27. However, the law under those provisions is silent on what constitutes “filed”. Whether “filed” is satisfied when the petition together with the official receipt or stamped bank deposit slip is hand delivered to a registry staff at the counter or carpark or uploaded in the IECMS database.
28. Court decisions on filing of an Election petition and security deposit are at variance with what “filed” under s 208 (e) constitutes.
29. One stands for the proposition that the lodging of the petition and the production of evidence of payment of filing fee and security deposit must be part of the one act and not separate. (Kuberi Epi v Albert Farapo & Anor (1983) SC247; Sai Sail Baseo v Yuntivi Bao (2003) N2348).
30. The other proposition is that a petition is filed when it is lodged electronically and uploaded on IECMS so long as it is within the 40-day time frame. (See Jean Parkop v Gary Juffa (2023) N10281)
31. In my view a Petitioner need not go far to satisfy the requirement of “filed” under s208 (e). The Election Petition Rules under Rule 1 defines what filed is in this way:
Definitions.
In these Rules, unless the contrary intention appears:
“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.
32. It is settled practice now that a petition is lodged manually by providing the hard copy at the Registry or uploaded on IECMS with the evidence of payments made of the security deposit and filing fee. It is followed by sealing, stamping and giving of petition number.
33. My contribution of “filed” demanded by s 208 (e) is that it is a process with starting and finishing lines without any breaks or interventions in between. Strict compliance of s 208 (e) must start and finish simultaneously before an election petition is realized to be worthy of satisfying the strict requirement of “filed” under s 208 (e). The “filed” demanded by s208 (e) and recognized by Rule 5 of the Election Petition is satisfied when the petition is lodged, sealed, endorsed, numbered, and stamped all at the same time. Not before and not after. There is no room for partial or substantial compliance. (Charles Kassman v Justine Tkatchenko (2023) N10213).
34. Uploading a petition through IECMS alone does not satisfy the requirement of “filed” under s. 208 (e). (Raminai v Pano).
35. In the present case the Petition was physically delivered to Mathew Bae and uploaded on IECMS on 27 August 2023 one second before 28 August 2022. The face of the petition shows 27 August 2022 as the date of filing. It was within the 40 days’ time frame.
36. On 28 August 2022 the filing fee receipt, and petition were uploaded, validated, and forwarded to IECMS for approval. That was also within the 40-day time frame.
37. On 29 August 2022 Ms. Kini Mamis sealed, stamped, and gave the petition case number. That was done one day outside the 40-day period. She then backdated her entries to 27 August 2022 to align with the date appearing on the petition. The Organic Law does not recognize backdating of documents in an Election Petition. Where and how Ms. Mamis derived the authority to backdate documents in an Election Petition remains a mystery.
38. It is clear from the observations that the process took three days. One part of the filing was done on 27 & 28 of August, which fell within the 40-day time limit. The other part was completed on 29 August 2022 which fell one day outside the 40 days.
39. To satisfy the mandatory requirements of “filed” under s 208 (e) there can never be part compliance with requirements within the 40 days and the other part outside of the 40 days. All requirements must be met on the same day within the 40 days prescribed by s 280 (e) of the Organic Law. Merely uploading a petition on IECMS does not constitute “filed” under s208 (e) of the Organic Law. It must be accompanied by sealing, stamping, and giving of file number to be fully compliant with what “filed” demands.
40. That did not happen in the current petition. The Petitioner allowed working days to pass by and chose a weekend a few minutes short of the 40 days through prior arrangement with Mathew Bae to file his petition. He was not diligent enough in timing. No matter how diligent the Court Registry might sound like, it is not fully manned by computers. Humans man them. The Petitioner’s poor timing caused full compliance to fail. Full compliance renders a petition competent to go to trial.
41. The current petition has failed to satisfy the requirements of s208 (e) rendering the petition incompetent to go to trial.
Ground 8 - Security for costs deposit.
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.
45. The Organic Law under s 209 states that “at the time of filing the petition” the Petitioner shall deposit with the Registrar of the National Court the sum of K5000 as security for costs. It is a standalone mandatory provision requiring strict compliance. Any deposit outside the time of filing the petition is not permitted.
46. In this case the Petitioner deposited K5000 with the Registrar on 25 August 2022. That date was not the date of filing the petition. The security deposit was made on a date other than the dates the petition was purportedly filed.
47. Case law embraces a strong view that the security for costs must be deposited with the Registrar at the time of filing the petition and not before or after the filing. The cases cited by counsels for the Respondents attest to this and I need not venture further than to say that the strict approach is preferred because of the mandatory nature of the requirement under s 209.
48. I have some reservations on the strict approach and agree with Mr. Molloy that application of the phrase “deposit at the time of filing” should be guided by Rule 7 of the Election Petition Rules which in my view is a better guide than s209 itself. Rule 7, though inferior to s 209, was not just slotted into the Rules. It serves a useful practical purpose.
49. Attaching a receipt on the petition as evidence of deposit into the Registrars Trust Account is in my view substantial compliance, which s 209 can accommodate pursuant to s 217 of the Organic Law. Whether the deposit was made outside the day of filing the petition is in my respectful view irrelevant so long as the deposit made falls within the boundaries of the 40 days. On the back of my reservation, I would have ruled that the objection under this ground was incompetent.
50. However, a ruling on this ground would have no significant impact in the earlier ruling that the petition was incompetent when it was filed outside the required 40 days. The earlier ruling voided the jurisdiction of the Court. Therefore, the relevance of any determination under this ground of objection fades into insignificance.
51. In view of the foregoing determinations, I would be doing grave injustice to delve into the remaining grounds of objections to competency without jurisdiction.
________________________________________________________________
Manase & Co Lawyers: Lawyers for the Petitioner
Makap Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2023/126.html