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Marus v Maneke [2024] PGNC 20; N10665 (22 February 2024)

N10665

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 42 OF 2022

BETWEEN:
FRANCIS MARUS
Petitioner

AND:
HON. FRANCIS GALIA MANEKE
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Kimbe: Makail, J
2024: 20 & 22 February

ELECTION PETITION – Practice & Procedure - Objection to competency – Grounds of – Failure to deposit security for costs at time of filing of petition – Failure to plead facts – Allegations of bribery – Organic Law on National and Local-level Government Elections – Sections 208(a) & 209.

WORDS & PHRASES – Time of filing petition – Deposit of K5,000.00 to Registrar of National Court – Act of filing petition – Act of depositing security for costs – Construction of – Literal interpretation – Contextual interpretation – Organic Law on National and Local-level Government Elections – Section 209 – National Court Election Petition Rules, 2017 (as amended) - Rules 5 & 7.

Cases Cited:
Parkop v. Juffa (2023) N10281
William Hagahuno v. Johnson Tuke (2020) SC2018

Counsel:
Mr G. Kult, for the Petitioner
Mr S. Ranewa, for the First Respondent
Mr W. Pep, for the Second Respondent

RULING ON FIRST RESPONDENT’S OBJECTION TO COMPETENCY

22nd February 2024

1. MAKAIL, J: This is the first respondent’s objection to competency of the petition made pursuant to an amended notice of objection to competency filed on 5 September 2023. The first respondent moves the Court for an order for dismissal of the petition pursuant to the Court’s power under Rule 12 of the National Court Election Petition Rules 2017 as amended (“EP Rules”).
   
2. A second amended notice of objection to competency filed by the second respondent on 18 September 2023 was summarily dismissed on 20 February 2024 for want of attendance by the second respondent and/or its counsel with costs to the petitioner.
   
3. As to the first respondent’s objection to competency, he relies on two grounds based on Sections 208(a) and 209 of the Organic Law on National and Local-level Government Elections (“Organic Law”).
   

(a) Ground 1 - Failure by the petitioner to pay a sum of K5,000.00

as security for costs at the time of filing the petition under Section 209 of the Organic Law; and

(b) Ground 2 - Failure by the petitioner to plead facts relevant to the eleven allegations of bribery under Section 208(a) of

the Organic Law.

4. It goes without saying that this objection has been brought for the first time to contest the petition challenging the election of the first respondent as inaugural member for the newly created open electorate of Nakanai in the West New Britain Province following the 2022 National General Elections.
   

Ground 1 – Failure to Comply with Section 209 of the Organic Law

5. I deal with grounds of the objection in the order as put by the counsel for the parties. The first ground is the failure to comply with Section 209 of the Organic Law.
   
6. Section 209 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”.

7. As to the facts giving rise to this ground of objection, it is common ground between the petitioner and the first respondent that:
   
   • (a) The deposit of the security for costs of K5,000.00 was made to the National Court Registrar’s Trust Account at BSP Bank on 7 September 2022; and
     
   • (b) The petition was delivered to the National Court Registry and filed on 8 September 2022.
     
8. According to the first respondent, Section 209 of the Organic Law is very clear. It requires that at the time of filing the petition, the petitioner must deposit to the Registrar of the National Court a sum of K5,000.00 as security for costs. The act of filing the petition and the act of depositing the sum of K5,000.00 as security for costs to the Registrar of the National Court must occur at the same time.
   
9. On the other hand, the petitioner submits that construing Section 209 in the way the first respondent has done will lead to an absurd result because practically speaking filing of the petition occurs at a different location namely at the National Court Registry and deposit of the K5,000.00 occurs at the BSP Bank. When a deposit has been done, a copy of the receipt from the BSP Bank is presented to the Registrar of the National Court together with the petition as evidence of payment.
   
10. I also note both counsel referred to various decisions of the National Court and Supreme Court deciding the question of payment of security for costs at time of filing the petition either as proposed by the first respondent or as submitted by the petitioner. I have considered them. What it boils down to is the first respondent invites the Court to literally interpret Section 209 whilst the petitioner seeks a contextual interpretation of Section 209.
    
11. A literal interpretation requires the Court to give a literal or grammatical meaning to the words of the statutory provision, in this case the Organic Law. But it is not always the case that there is one meaning to a word if the natural and ordinary meaning is given. It is also equally important that when applying a literal or grammatical meaning to the word, it must not result in absurdity.
    
12. A contextual interpretation is used to address an ambiguity in the word or text of a statutory provision. First, the Court looks at the intention of the legislature which may include use of extrinsic materials such as Hansards of parliament and secondly, addresses any mischief discoverable by the use of the extrinsic materials.
    
13. Applying these principles of statutory interpretation to this case, I accept the submissions of the petitioner that to apply a literal interpretation to Section 209 will result in absurdity because practically speaking, an act of filing the petition occurs at the National Court Registry while the act of depositing the sum of K5,000.00 as security for costs occurs at the BSP Bank where the Registrar’s National Court Trust Account is held. It does not make sense that both acts must occur at the same time. To read Section 209 literally will result in absurdity.
    
14. Reading Section 209 in its context makes a lot of sense and is compelling because it recognizes the need to file a petition and deposit the sum of K5,000.00 as security for costs as being two separate acts but necessary for the purpose of Section 209. To expect both acts to occur simultaneously in every case lies the mischief and should not be allowed. I think this was what the National Court sought to avoid in the case of Parkop v. Juffa (2023) N10281 when it relied also on Section 217 of the Organic Law and refused to dismiss the petition for not complying with Section 209 of the Organic Law and to give paramountcy to dispensation to justice.
    
15. Rule 5 of the EP Rules reinforces the contextual interpretation by requiring petitioner to file a petition “...... together with the official receipt or stamped bank deposit slip as evidence of payment of the filing fee and of the security deposit.”
    
16. Similarly, Rule 7 of the EP Rules require that the security deposit “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”. The Registrar’s Trust Account is held with the BSP Bank and which the petitioner deposited the K5,000.00.
    
17. Finally, from the cases/decisions of the National Court and Supreme Court which both counsel have referred to in their respective submissions, it is noted that there is no Supreme Court decision which authoritatively and conclusively held that Section 209 must be construed literally and in the way the first respondent had construed it. Given this, I uphold the contextual interpretation of Section 209 and find that it was open to the petitioner to deposit the sum of K5,000.00 as security for costs to the Registrar’s National Court Trust Account a day prior to the presentation and filing of the petition on the next day, being 8 September 2022. The important requirement for payment of security for costs has been satisfied which paved the way for the Registrar to accept and file the petition on 8 September 2022.
    
18. This ground of objection has no merit and is dismissed.
    

Ground 2 – Failure to comply with Section 208(a) of the Organic Law

19. I turn to deal with Ground 2. The first respondent alleges that the petitioner failed to plead facts to establish the allegations of bribery. It is common ground between the petitioner and the first respondent that there are eleven allegations of bribery. The allegations are divided into two parts, one, those allegedly committed by the first respondent in person and two, those committed by persons other than the first respondent but with the first respondent’s knowledge or authority under Section 215 of the Organic Law and Section 103 of the Criminal Code.
    
20. The first respondent’s objection based on this ground is divided into two parts:
    
    • (a) Lack of material facts; and
    • (b) Convoluted and confusing pleading of facts.
      
21. According to the petitioner, the petition must be read in its context and when so read, shows facts establishing each offence identified in Section 103 of the Criminal Code because Section 103 sets out numerous offences of bribery.
    
22. In addition, I have considered the various points of contention by each counsel in respect of each allegation of bribery and my response is as follows:
    
    • (a) Allegation No. 1
      

The objection is, the alleged words spoken by the first respondent are not pleaded or missing. It is necessary to plead them to establish by evidence the element of inducement in Section 103(a)(iii) of the Criminal Code.

I reject this submission. It is not necessary to do that because when the petition is read from paragraphs 9 to 11 with allegation No.1, the act of giving of K5,000.00 during the election period at the United Church ground at Kavui is also sufficient to show inducement and to be back-up by evidence at trial.

The objection is dismissed. This allegation will progress to trial.

(b) Allegation No.2

The objection is, wrong persons have been identified as being bribed by a person other than the first respondent but with the first respondent’s knowledge and authority.

Consequently, this allegation is convoluted and confusing.

The Petitioner’s responses that a convoluted and confusing pleading is not a proper ground of objection.

I consider that where pleading of facts are convoluted and confusing such that it is difficult to identify the material facts to support an allegation such as bribery, an objection taken on that basis constitute a proper ground of objection and a convoluted and confusing allegation is liable to be struck out.

In the present case, I am not satisfied that the claim of poor drafting of the allegations of fact can be put as high as being convoluted and confusing. Rather, it could have been drafted better to allow for coherency and comprehension.

That said, reading paragraphs 9 to 11 together with Allegation No. 2 at paragraph 13 of the petition, it is clear that the petitioner alleges that a group of people gathered at the United Church ground at Kavui. Some of the people have been named/identified at paragraphs 9, 10, 11, 13, 16, 18, 20, and 22 of the petition.

According to the allegations at paragraphs 9 and 13, it was Rusiat Iara, a campaign coordinator of the first respondent who received K5,000.00 from the first respondent and gave in small amounts ranging from K20.00 to K100.00 to persons named/identified on 28 and 29 June 2022 at paragraphs 10, 11, 16, 18, 20 and 22 of the petition.

The element of inducement under Section 103(a)(iii) and Section 103(d) of the Criminal Code is manifested in the act of giving money at an election period and as well as words being spoken/uttered by Rusiat Iara. It will be a matter of evidence to establish it.

This ground of objection is without merit and is dismissed. The Allegation No. 2 will progress to trial.

(c) Allegation No. 3

The objection is based on the same ground of objection to Allegation No.1, in that no words spoken/uttered were pleaded or are missing and there are no facts to show the element of inducement.

For the reasons given in relation to Allegation No.1, this ground of objection is without merit and is dismissed. Allegation No.3 will progress to trial.

(d) Allegation No. 4

This objection is based on three grounds:

(i) Tony Akui is not pleaded or missing.
(ii) It is repetitious.
(iii) No words spoken/uttered are pleaded or missing to show element of inducement.

For the reasons given at Allegation Nos. 1 and 2, where the allegations at paragraphs 9, 10, 11, 13, 16, 18, 20 and 22 of the petition are read together with Allegation No.4 at paragraph 15, Tony Akui was in the group at Kavui, the allegation is not repetitious and it is sufficient that the giving of money to persons named/identified at paragraph 15 demonstrates the element of inducement subject to proof by evidence at trial.

This objection has no merit and is dismissed. Allegation No. 4 will progress to trial.

(e) Allegation No. 5

The objection is that Rusiat Iara with the knowledge and authority of first respondent gave K100.00 to Robert Wani and “told him to go buy drinks” is insufficient to establish the requisite ‘intention’ or ‘purpose’ to constitute the element of inducement. A peripheral issue is that there are two conflicting dates of the alleged offence of bribery; 28^th June 2022 and 29^th June 2022.

I consider that while there are apparently two conflicting dates being pleaded as the date of the alleged offence, the prejudice to the respondent is minimal as it can be resolved when evidence will be led at trial to settle it.

As to the claim of lack of facts pleaded to establish the element of inducement, I am not satisfied that it is insufficient. It is also the act of giving money during the election period that must be determined whether it amounted to inducement in addition to the alleged words spoken/uttered. Whether the act and words spoken/uttered will be sustained is matter of evidence to be adduced at trial.

This objection has no merit and is dismissed. Allegation No. 5 will progress to trial.

(f) Allegation No. 6

The objection is based on three grounds:

(i) No words spoken/uttered to constitute element of inducement.
(ii) No facts pleaded to constitute with knowledge or authority of the first respondent; and
(iii) Convoluted and confusing pleading of names of persons/identity allegedly bribed.

For the reasons given in relation to Allegations Nos. 1 and 2, I am not satisfied that this objection has merit. In addition, I stress that the allegations in each paragraph of the petition must be read as a whole to appreciate that each allegation is based on money distributed at the United Church ground at Kavui on 28 June 2022 and 29 June 2022. This was during the election period and from the first respondent to Rusiat Iara to the persons named/identified in the petition.

This objection is dismissed. Allegation No. 6 will progress to trial.

(g) Allegation No. 7

This objection is based on the three grounds advanced to dismiss Allegation No. 6. For the reasons given in dismissing the objection in relation to Allegation No. 1, Allegation No. 2 and Allegation 6, I adopt here and dismiss the objection as having no merit. Allegation No. 7 will progress to trial.

(h) Allegation No. 8

The objection is this allegation of bribery of Robert Wani by the first respondent through a ‘Mr Sui’ whom the first respondent claims is a mysterious person because his identity has not been fully disclosed, is a repetition of Allegation No.5 and is confusing. It was submitted for the same reasons in support of the objection to Allegation No.5, this allegation should be dismissed.

However, I adopt the reasons in dismissing the objection to Allegation No.5 and dismiss the objection as having no merit. Allegation No. 8 will progress to trial.

(i) Allegation No. 9

The objection is based on no facts pleaded to show a connection/link between the first respondent and David Sui receiving money from the former and giving K50.00 to Cathy Joe.

However, there are two material facts pleaded which the first respondent failed to acknowledge. First is that it is alleged by the petitioner at paragraph 24 of the petition that David Sui is a campaign committee member of the first respondent. This is the first allegation of a connection/link between them. Secondly, at paragraph 11 of the petition, the petitioner alleges that “The First Respondent also handed K100.00 cash to electors around the Church ground, including little children”. This is the second connection/link between the two of them. Evidence will be laid at trial to establish if David Sui received K100.00 from the first respondent at that time. When the allegations in paragraphs 11, 24 and 9 are read together, I am satisfied that there is sufficient material facts showing a connection/link between the first respondent and David Sui and Cathy Joe.

This objection has no merit and is dismissed. Allegation No. 9 will progress to trial.

(j) Allegation No. 10

The objection is based on the ground that no allegations of fact have been pleaded to show the connection/link between the first respondent and David Sui/Hui, in that the latter had acted with the knowledge or authority of the first respondent to give iron roofing sheets to the persons named/identified at paragraph 26 of the petition.

However, I uphold the petitioner’s submissions. Given that David Sui has been identified as a campaign committee member of the first respondent and had acted on the instructions of the first respondent to give the iron roofing sheets to the named persons at the election period is sufficient to show these nexus or link between the first respondent and David Sui. The specifics of the nexus/link which the first respondent asserts as lacking/missing is a matter for evidence at trial.

This objection lacks merit and is dismissed. Allegation No. 10 will progress to trial.

(k) Allegation No. 11

The objection is based on the same ground relied upon by the first respondent to dismiss Allegation No. 10.

The allegation here is that Pastor Stanley Maiduo gave K20.00 to Moses Gumbira with the knowledge or authority of the first respondent. The first respondent asserts that there are no facts pleaded to show the nexus/link between him and Pastor Maiduo.

However, I adopt the reasons given in relation to the objection to Allegation No.10 and dismiss the objection as having no merit. Allegation No. 11 will progress to trial.

Conclusion

23. In conclusion, in my view the grounds of objection relied upon by the first respondent to dismiss the eleven allegations demanded specific details from the petitioner and in real time are matters of proof by way of evidence at trial. This is where the Court will be realistic and liberal in its approach under Section 217 of the Organic Law and as reinforced by the recent 5-man Supreme Court decision in William Hagahuno -v- Johnson Tuke (2020) SC2018 to refuse objections based on grounds which are technical and evidentiary in nature.
    

Order

24. The final terms of the Order are:
    
    1. All the grounds of objection under Section 208(a) and Section 209 of the Organic Law are dismissed.
       
    2. The first respondent’s Amended Notice of Objection to Competency filed 5 September 2023 is dismissed.
       
    3. All the Allegations of Bribery from Allegation 1 to Allegation 11 will progress to trial forthwith.
       
    4. The first respondent shall pay the petitioner’s cost of the objection to be taxed, if not agreed.
       
    5. Time shall be abridged.
       

____________________________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner
Kawat Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent