Aihi v Isoaimo [2014] PGNC 146; N5691 (28 July 2014)

N5691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 03 OF 2014

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KAIRUKU-HIRI OPEN ELECTORATE

BETWEEN

PARU AIHI
Petitioner

AND

PETER NAMEA ISOAIMO
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2014: 24th & 28th July

ELECTION PETITION – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient facts – Failure to pay security for costs of K5,000.00 – Mandatory requirements of petition – Effect of – Petition incompetent – Petition dismissed – Organic Law on National and Local-level Government Elections – ss. 208(a), 209 & 210 – National Court Election Petition Rules, 2002 (as amended) – rr. 5 & 15.

Cases cited:

Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2013) N5105
Tom Olga v. Paias Wingti & Electoral Commission (2008) SC938
Walter Schnaubelt v. Hon Byron Chan & Electoral Commission (2012) N4791
Edward Ekanda Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877
Jimson Sauk v. Don Pomb Polye & Electoral Commission (2004) SC769
Paru Aihi v. Sir Moi Avei and Reuben Kaiulo-Electoral Commissioner of Papua New Guinea (2003) N2330
Paru Aihi v. Sir Moi Avei and The Electoral Commission of Papua New Guinea (2004) N2523

Counsel:

Mr R Habuka, for Petitioner
Ms G Salika, for First Respondent
Mr L Okil, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

28th July, 2014

1. MAKAIL, J: The petitioner petitions the Court to declare void the return of the first respondent as Member for Kairuku-Hiri Open electorate following a by-election in February 2014. He alleges amongst others, that the first respondent bribed voters to vote for him. After parties went through directions hearing and the matter returned to Court on 15th July 2014 for pre-trial conference, the Court after consulting the parties allocated trial dates from 24th July to 01st August 2014. The first respondent also indicated that he had filed and served an application for leave to file a notice of objection to competency out of time. As it was short-served, the Court adjourned the hearing of the application to 21st July 2014. After hearing the parties on the application, the Court granted the application and allowed the objection to be filed for the reason that issues of competency go to the jurisdiction of the Court and must be settled prior to commencing its inquiry. See also Rule 15 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules").

Grounds of Objection

2. The objection is based on two grounds:

(a) Insufficient facts; and
(b) Failure to pay security deposit of K5,000.00.

Issues for Consideration

3. The first ground is based on s. 208(a) and the second on s. 209 of the Organic Law on National and Local-level Government Elections ("Organic Law"). I have considered the submissions of parties on each ground. It is the law under s. 210 of the Organic Law that proceedings shall not be heard on a petition unless the requirements of ss. 208 and 209 are complied with. The threshold issue, in my view, is whether the petitioner has complied with the requirement to pay security for costs of K5,000.00. If the answer is no, what is the consequence?

Parties' Submissions

4. The respondents submit that s. 209 (supra) is very clear as to the time a petitioner is to pay security for costs. It is at the time of filing the petition. The time referred to in s. 209 (supra) is the date of filing the petition. As it is not disputed that the petitioner paid the security a day after the filing of the petition, they submit, he has defaulted in complying with s. 209 (supra). The requirement to pay security for costs is a mandatory requirement under the Organic Law and a failure to comply with it renders the petition incompetent and must be dismissed.

5. They further submit that the failure to pay security at the time of filing the petition is so fundamental that any late payment and explanation for the late payment cannot cure the defect and are of no consequence. In any case, the petitioner is not new to election petitions as he has been a petitioner in the past and should have been well aware of the requirement to pay security at the time of filing the petition and for this reason, any explanation for the late filing should be rejected by the Court.

6. In his affidavit filed on 24th July 2014, the petitioner explains that he had paid K5,000.00 into a wrong bank account on 18th March 2014. That account was the Cash Management Services Account of the National Department of Finance. He was issued a receipt of payment which he presented at the National Court Registry on 20th March 2014 with the petition. It was rejected and he was directed by the Registry staff to pay K5,000.00 into the correct account which was the National Court Registrar's Trust Account. He did that the next day, 21st March 2014 and presented a receipt of payment to the Registry staff.

7. Based on this explanation, he submits that this is not a case where he has completely failed to pay the security for costs. On the contrary, he did and has sufficiently complied with s. 209 (supra). In addition, he was still within 40 days to file the petition because the first respondent was declared Member on 15th February 2014, that 40 days expired on 26th March 2014, that he filed the petition on 20th March 2014, 6 days before the 40 days expired and the one day late payment of the security for costs was an "administrative error" on the part of the Registry staff. The staff who received the petition for filing should have dated it as 21st March 2014 which was the date he presented the receipt of payment of K5,000.00.

Consideration of Issues

8. The debate here is about the payment of security for costs of K5,000.00. So what is its significance or why are the respondents insisting on its compliance? Initially, it was thought that there would be no need to elaborate on the submissions of the parties as the requirement of s. 209 is very clear, but it has become necessary because there appears to be no judicial pronouncement on the application of s. 209 (supra).

9. Counsel for the first respondent cited the case of Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2013) N5105. That was a case not directly on point but was decided after a debate over whether the Court had power to order a petitioner to pay additional security for costs. In that case, the first respondent applied for additional security for costs on the ground that the petitioner had failed to settle an earlier costs order in an election petition filed back in 2002. The issue was whether the Court had power to order a petitioner to give security for costs over and above the prescribed sum of K5,000.00 under s. 209 (supra). In upholding the application, the Court said that in an election petition:

"...............it is not unusual or extra ordinary as cost of litigation do increase as the case progresses. It depends very much on the complexity of the petition and its duration. There may be cases where costs will increase beyond K5,000.00. In such a case, it would be wrong and mischievous to say that the National Court has no power to order security for costs over K5,000.00. Surely the National Court must have some power and that power is found in section 155(4) of the Constitution. It is the inherent power of the Court to do justice in the circumstances of the case. For these reasons, I am satisfied that I have the power to make an order for security for costs in addition to the prescribed minimum amount of K5,000.00 under section 209 (supra)."

10. In Tom Olga v. Paias Wingti & Electoral Commission (2008) SC938, the Chief Justice Sir Salamo puts it this way when he said at para 42:

"In my view, the mandatory requirement of s 209 (security for cost deposit) is a pre-requisite for the filing of a Petition. The purpose of s 209 and s 210 is two-fold: to ensure a Petitioner is genuine and serious about bringing the Petition and that the costs respondents' costs of the proceedings are met if the Petition fails. As the hearing on the Petition continues, the issue of costs remains alive throughout the proceedings and even after the conclusion of proceedings because costs of parties must be met. The actual costs in many cases far exceed the security deposit amount because election cases are expensive to run. Costs issues in an election petition proceeding can continue to be litigated after a final decision on a Petition."

11. The important point to note from these statements is that security for costs must be given by a petitioner at the time of filing the petition as a sign of genuineness and seriousness about bringing the petition. The minimum amount is K5,000.00 and its purpose is to cover costs of the respondents in the event that the petitioner is unsuccessful.

12. Unlike ordinary civil cases where the National Court Rules does not fix a prescribed sum for security for costs and it is left to the Court to determine an appropriate sum at its own discretion and in this regard, I refer specifically to O. 14, r. 25, in an election petition, s. 209 (supra) provides specifically for the payment of security for costs of K5,000.00. It states:

"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."

13. There is further provision in the EP Rules on security for costs. The pertinent Rule is Rule 5. It states:

"5. SECURITY FOR COSTS

(1) The security deposit of K5, 000.00 required by Section 209 of the Organic Law on National & Local-level Government Elections must be paid in cash or by bank cheque.

(2) The deposit shall be paid at the registry at the time of filing.

(3) Where a petition is filed at a place other than at a registry, the deposit shall be paid into the National Court Registrars Trust Account, (PNGBC/BSP Account No. 202-006-5551) and evidence of the payment shall be immediately forwarded to the Registrar."

14. In my view Rule 5 supplements s. 209 (supra) because it provides additional information in relation to firstly the form of payment, that is the K5,000.00 is paid by cash or bank cheque, secondly, place and time of payment, that is at the time of filing and at the Registry and finally, place of payment if the petition is filed at a place other than a Registry, that is it is paid into the National Court Registrar's Trust Account and evidence of payment must be immediately forwarded to the Registrar.

15. On a plain reading of s. 209 (supra) and Rule 5(1)&(2) (supra), the petitioner is not required to personally pay the K5,000.00 into the National Court Registrar's Trust Account and produce a receipt of payment at the registry. The petitioner is only required to pay it at the Registry at the time of filing the petition and it can be by cash or by bank cheque. The only occasion where the petitioner is required to pay the K5,000.00 into the National Court Registrar's Trust Account is under Rule 5(3) (supra) where the petition is filed at a place other than a Registry. For instance, the petition is filed in a province that does not have a National Court Registry by using the District Court Registry services. In that case, the evidence of payment (receipt of payment) must be immediately forwarded to the Registrar.

16. But it seems that the practice that has developed and adopted by petitioners is that they pay cash or bank cheque into the National Court Registrar's Trust Account at the nominated bank and present the receipt of payment at the Waigani National Court Registry with the petition. A direct payment by cash or by bank cheque into the nominated account is perfectly understandable for security reasons because it prevents the risk of cash or bank cheques from being stolen from the Registry. But this practice appears to be inconsistent with s. 209 (supra) and Rule 5(1)&(2) (supra). I have laboured to point this out because instead of paying cash or bank cheque at the Waigani National Court Registry when he presented the petition for filing, the petitioner paid cash of K5,000.00 into a wrong account and produced a receipt of payment to the Registry staff. It was rejected. As a result, he is now confronted with a challenge to the competency of his petition.

17. As he has paid the K5,000.00 into the National Court Registrar's Trust account a day after the filing of the petition, the issue is when does filing occur under s. 209 (supra). I consider that the key word in s. 209 (supra) is "filing". The Oxford Advanced Learner's Dictionary (8th ed, 2010) Oxford University Press, Oxford at page 572 defines the word "filing" as "the act of putting documents, letters, etc. into a file; something that is placed in an official record." The verb "file" means "to put documents, etc. in a particular place and in a particular order so that you can find them easily; to put a document into a file; to present something so that it can be officially recorded and dealt with."

18. Applying the above definitions to the present case when a petition is presented at the National Court Registry for filing, it is intended that it be put into the file of the Court; that it is officially recorded in the Court's file and to be dealt with by the Court. The act of filing occurs at the time the petition is presented at the Registry, received by the Election Petition Registry staff and placed in the file. It should also be noted that the Court maintains a physical file and when the petition is presented for filing, it is placed in the file. A date is written on the petition to indicate when it is filed. The date of filing is the date the petition is received. It is also at this time that the security for costs must be paid. In other words, the filing of the petition and payment of security for costs must occur at the same time and I do not think s. 209 (supra) and Rule 5 (supra) envisaged that they occur at different times. This being the case, I am satisfied that the petitioner failed to pay security for costs at the time of filing this petition.

19. The petitioner's submission that it was an "administrative error" because the Registry staff who received the petition on 20th March 2014 should have dated the petition as 21st March 2014 needs to be clarified to set the record straight. This submission misses the whole point and the point is that Rule 5 (supra) is very clear on what account the security must be deposited into; it is the National Court Registrar's Trust Account. It follows that it is not the Registry Staff's responsibility to advise the petitioner as to what account he should deposit the money into. It is his responsibility to ensure that the security is paid into the correct account.
20. Petitioners and lawyers representing them have been constantly reminded of their obligation to prosecute election petitions with due diligence and expeditiously because a petition is a direct challenge to the wishes of the majority to elect a representative to Parliament. In the recent past election, there have been cases where petitioners have not been diligent in prosecuting their petitions and as a result, the petitions have been dismissed or struck out for non compliance with the EP Rules or Court directions.

21. Let me cite some examples; in Walter Schnaubelt v. Hon Byron Chan & Electoral Commission (2012) N4791, the petition was dismissed because the petitioner served the petition on a person other than the Member and at his office contrary Rule 6 of the EP Rules. This Rule requires either personal service or service at the residential address of the Member as stated in the nomination form. Similarly, in Edward Ekanda Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877, the Court dismissed the petition on the ground that the petitioner failed to file and serve affidavits within time as directed by the Court. These cases and many others emphasise the importance of compliance and consequences of non compliance with the EP Rules and Court directions.

22. With respect to complying with the requirements of the Organic Law and specifically s. 209 (supra), the observation made by the Supreme Court in Jimson Sauk v. Don Pomb Polye & Electoral Commission (2004) SC769 is pertinent and I quote it to emphasise the point that failure to comply with them renders the petition incompetent. The Supreme Court said:

"Absence of or non-compliance with any one or more of the requisites will render the petition incompetent. Similarly s 209, where, at the time of filing the petition, if no deposit of the sum of K2,500.00 is made with the Registrar of the National Court, the National Court cannot exercise jurisdiction over the challenge to the election or return. It is not a valid petition."

23. In this case, the petitioner is represented by a lawyer from the firm of Twivey Lawyers. Twivey Lawyers prepared the petition because its name appears on the cover page of the petition. It establishes that the petitioner is not self-represented and at the very least, some consideration can be given to him. On the contrary, he is represented by a law firm and it was the duty of the lawyer having conduct of the petition to properly advise the petitioner as to how the petition is to be prosecuted, what the requirements are and what needs to be done to successfully prosecute it.

24. In any case, I accept the respondents' submission that the petitioner is not someone new to election petitions and would not have known much about the "rules of the game". He has been a petitioner in the past and should have been well aware of the requirements of the Organic Law and EP Rules and one simply has to go back to the Court's records to confirm this position. The records reveal that after the 2002 General Election, he challenged the election of Sir Moi Avei and I refer parties to the reported cases of Paru Aihi v. Sir Moi Avei and Reuben Kaiulo-Electoral Commissioner of Papua New Guinea (2003) N2330 and Paru Aihi v. Sir Moi Avei and The Electoral Commission of Papua New Guinea (2004) N2523.

25. The petitioner and his lawyers cannot now shift the blame to the Registry staff for making an "administrative error." The onus is on petitioner and his legal advisers to ensure that the requirements of the Organic Law and EP Rules are strictly complied with, in particular the requirement to pay security for costs. Anything falling short of meeting these requirements invites trouble and this is exactly what has happened in this case. It follows that the explanation for the late payment is unacceptable.

Conclusion

26. I am satisfied the petitioner failed to comply with s. 209 (supra) and Rule 5 (supra). The consequence is the petition is incompetent. I uphold the objection and dismiss the petition as being incompetent with costs. The requirement to pay security for costs is so fundamental and basic that its failure renders the whole proceeding invalid such that this Court cannot even begin its inquiry into the allegations and it also renders it unnecessary to consider the ground on insufficiency of facts. The belated security deposit of K5,000.00 shall be released by the Registrar to the respondents to be shared equally.

Ruling and orders accordingly.
_____________________________________________________________
Twivey Lawyers: Lawyers for the Petitioner
Young & Williams Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second Respondent