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Yakos v Pundari [2024] PGNC 309; N10986 (23 August 2024)

N10986

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 16 OF 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE

BETWEEN:
PETER YAKOS
Petitioner

AND:
SIR JOHN THOMAS PUNDARI
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Dingake J
2024: 10^th June, 23^rd August

ELECTIONS - Filing of petition and payment of security – Section 209 speaks for itself – It must be at the same time – Not different dates – The requirement is strict – National Court bound by decisions of Supreme Court – No discretion for National Court to relax the provisions of section 209 of the Organic Law

Held

The security deposit having been paid on a different date to the date the petition was filed renders the petition incompetent.

Cases Cited:
Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249
Johnson Tuke Ibo v William Hagahuno & Electoral Commission (2023) N10322
Evele Kala v Sir Puka Temu (2023) N10364
Kuberi Epi v Tony Farapo (1983) SC247
Paru Aihi v Peter Namea Isoaimo (2015) SC1598

Counsel:
Mr. Solomon Wanis, for the Petitioner
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING

23^rd August 2024

1. DINGAKE J. INTRODUCTION: This is my Ruling on the contested application by the First Respondent, seeking that this petition be dismissed for being incompetent.
   

Grounds

2. In his Amended Notice of Objection filed on the 4^th of April, 2024 (Document No. 238 filed of record) the First Respondent outlines six (6) grounds of objection. These grounds are summarized below:
   
   • (1) The whole Petition herein be dismissed as being incompetent for want of form for noncompliance with Rule 4 and Form 1 of the Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments Rules 2022 (hereafter referred to as “the EP Rules”) which is a prerequisite under Section 208 of the Organic Law on the National and Local-Level Government Elections (hereafter referred to as “the Organic Law”).
     
   • (2) The purported First Attesting Witness John Mupal, does not exist and is not a registered voter in any Ward in Kompiam Ambum Electorate or anywhere in Papua New Guinea as his name is not recorded on the common roll. This is prerequisite under Section 208(d) of the Organic Law and is not met so the entire Petition must be dismissed not be heard because of Section 210 of the Organic Law.
     
   • (3) The whole Petition herein be dismissed in whole (or alternatively in part) as incompetent for failure to set out in Part C the facts relied on to invalidate the election or return in accordance with Section 208(a) of the Organic Law and Rule 4 and Form 1 of the Rules.
     
   • (4) The Petition, from pages 12 to 16 of the Petition, paragraph 40, pleads facts when facts are supposed to be pleaded in Part B of the Petition in accordance with Section 208(a) of the Organic Law and Rule 4 and Form 1 of the Rules.
     
   • (5) The Petition did not meet the requirement of Section 208(e) of the Organic Law meaning it was filed outside of the forty (40) days period.
     
   • (6) The Petition did not meet the requirement of Section 209 of the Organic Law, because the “deposit” for Security for Cost was not done at the time of filing the petition as required by law.
     

Background Facts

3. The Petitioner and the First Respondent were both candidates in the 2022 National General Elections contesting the Kompiam Ambun Open Electorate in the Enga Province. The First Respondent was the winner of the said elections and was so declared by the returning officer, on the 24^th of July, 2022.
   
4. The petition was registered and sealed on the 6^th of September 2022.
   
5. It is not in dispute that the security for costs in the sum of Five Thousand Kina (K5,000.00) was not deposited at the time of filing the petition but five (5) days prior to the petition being registered and sealed on the 5^th of September, 2022.
   
6. In terms of Document No. 3 in Court file the security for costs was deposited on the 1^st of September 2022. At paragraph 4 of its submission on (Amended Objection to Competency) the Petitioner accepts that “the fee was paid on the 1^st of September 2022.
   
7. Section 209 of the Organic Law provides that:
   

“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.”

8. Section 210 of the Organic Law provides further that:
   

“Proceedings shall not be heard on a petition unless the requirements of Section 208 and 209 are complied with.”

9. The law is clear that a petition is considered filed once the petition has been registered, sealed and allocated a registration number. Rule 1 of Election Petition Rules states that:
   

“1. Definition

“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.”

Submission of the Parties

10. The First Respondent submits that the petition offends Section 209 of the Organic Law as it was not filed, “at the time of filing the petition”, and that in terms Section 210 of the Organic Law the proceedings cannot be heard and that the Court should dismiss the said petition as incompetent.
    
11. In response learned Counsel for the Petitioner argues that this Court should take a liberal approach to Section 209 of the Organic Law and conclude that the payment of security complied with the provisions of the aforesaid Section.
    
12. The Second Respondent’s written submission did not address specifically the ground pertaining to Section 209 of the Organic. Instead, the Second Respondent supports the objection to competency of the petition on the basis that the Petition does not comply with requirements of Section 208 of the Organic Law, and therefore by virtue of Section 210 not entitled to proceed to a hearing.
    

Consideration

13. The issue relating to the meaning of “at the time of filing the petition” has been settled by a preponderance of National Court decisions that have held that the payment of the security deposit and filing of the petition must not take place on different dates. (Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249; Johnson Tuke Ibo v William Hagahuno & Electoral Commission (2023) N10322; Evele Kala v Sir Puka Temu (2023) N103364).
    
11. The decisions of the National Court that have held that the security deposit must be paid at the time of filing the petition, are consistent with the decision in the case of Epi Farapo v Electoral Commission (1983) PGSC1; SC247, where the Court, stated that:
    

“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...”.

14. In the case of Moses Manwau v Hon. Allan Bird (supra) at paragraph 18, Gavara-Nanu J stated the position as follows:
    

“The operative words in s.209 are “at the time of filing the petition”, (the Petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for costs). These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for costs in the sum of K5,000.00 has to be paid full on 7^th September, 2022, when the petition was filed with the Registrar of the National Court. To give any other meaning to the words would not only result in this Court striking down the mandatory constitutional law, but it would also give rise to serious absurdity because the Court till then be legislating rather than given the law its intended meaning by the legislature and applying it.”

15. My brother, Anis J sitting as a single judge of the Supreme Court in Evele Kala v Sir Puka Temu (2023) SC2453 at paragraph 18 stated that:
    

“18. These cases interpret s.209 to mean that at the time of filing a petition, the security for costs, and not receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court. The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time. The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss.208, 209 and 210 of the OLNLLGE. Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when His Honour at paragraph 38 of his decision stated, a receipt is merely documentary evidence of payment. It is no payment per se.”

16. The Supreme Court in the case of Hagahuno v Tuke (2020) PGSC 105 SC2018, has held that the requirements of Section 209 of the Organic Law, are mandatory and should be strictly complied with.
    
17. On the basis of the above authorities, it is my considered opinion that the security deposit done prior to the filing of the petition, as happened in this case is contrary to the mandatory provisions of Section 209 of the Organic Law.
    
18. It follows from the above that by operation of Section 210 of the Organic Law, the petition is incompetent and liable to dismissal.
    
19. Having regard to the conclusion I have reached, it is not necessary to consider the other grounds relied upon by the First Respondent as outlined earlier.
    

Conclusion

20. In summation, I make it clear that this Court is bound by the Supreme Court case of Epi v Farapo (1983) SC247, which was also followed in the case of Paru Aihi v Peter Namea Isoaimo (2015) SC1598.
    
21. I am satisfied that the payment of security in this case earlier than the date of the filing of the petition offended Section 209 of the Organic Law. In terms of Section 210 a petition that fails to comply with Section 209 of the Organic Law cannot proceed to a hearing.
    

Orders

22. In the result, it is ordered that:
    
    • (1) The objection to competency under s.209 of the Organic Law is upheld.
      
    • (2) The petition is dismissed in its entirety pursuant to s.210 of the Organic Law.
      
    • (3) The Petitioner’s security for cost deposit in the sum of Five Thousand Kina (K5,000.00) paid into the National Court Registrar’s Trust Account is to be paid to the First and Second Respondents in equal amounts.
      
    • (4) The Petitioner is to pay the First and Second Respondents’ cost of and incidental to the proceeding on party-party basis to be taxed, if not agreed.
      
    • (5) The Registrar of the National Court shall forthwith take appropriate steps to comply with and give effect to the requirement of s.221 of the Organic Law.
      
    • (6) The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
Solomon Wanis Lawyers: Lawyer for the Petitioner
Paul Othas Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second Respondent