Sohia v v Semoso [2015] PGNC 173; N6072 (22 September 2015)

N6072

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

(EP) NO 02 OF 2015

IN THE MATTER OF THE BOUGAINVILLE ELECTIONS ACT, 2007 AND IN THE MATTER OF DISPUTED RETURNS FOR TSITALATO CONSTITUENCY

BETWEEN

COSMOS SOHIA
Petitioner

AND

FIDELIS SEMOSO
First Respondent

AND

GEORGE MANU in his capacity as the Acting Electoral Commissioner for the Office of Bougainville Electoral Commission
Second Respondent

AND

THE BOUGAINVILLE ELECTORAL COMMISSION
Third Respondent

Waigani: Makail, J
2015: 21st & 22nd September

ELECTION PETITION – Autonomous Region of Bougainville Election – Objection to competency – Grounds of – Petition filed out of time – Time limitation of one month – Failure to pay security deposit – Security for costs – Prescribed sum of K2, 000.00 – Security deposit must be paid at time of filing petition – Whether petition competent – Bougainville Elections Act, 2007– Sections 205(e) & 206 – National Court Election Petitions Rules, 2002 (as amended) – Rule 5.

Cases cited:

Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247
Patrick Leslie v. Christopher Kena & Bougainville Electoral Commission: EP No 1 of 2015 (Unreported & Unnumbered Judgment of 22nd September 2015)
Paru Aihi v. Peter Isoaimo & Electoral Commission: SC Rev (EP) No 7 of (2014) (Unnumbered & Unreported Judgment of 05th June 2015)
Paru Aihi v. Peter Isoaimo & Electoral Commission (2014) N5691
Sai-Sail Beseoh v. Yuntuvi Bao (2003) N2348

Counsel:

Mr. N. Yalo, for Petitioner
Mr. P. Mawa, for First Respondent
Mr. K. Iduhu, for Second & Third Respondents

RULING ON OBJECTION TO COMPETENCY

22nd September, 2014

1. MAKAIL, J: This is the second petition filed at the National Court at Buka following the election of members of the House of Representatives for Autonomous Bougainville Government. It is in relation to the election of the first respondent Mr. Fidelis Semoso as member-elect of Tstalato Constituency. It is brought before the National Court under Section 203 of the Bougainville Elections Act 2007 ("the Act"). As I point out in the other case of Patrick Leslie v. Christopher Kena & Bougainville Electoral Commission (2015) N6073, Section 203 states that in the event that a Bougainville High Court has not been established, the validity of an election, recall, poll or return under this Act may be disputed by petition addressed to the National Court. It is on that basis that the petition is before this Court for determination.

2. Mr. Semoso and the other respondents are represented by lawyers and have filed separate objections to the competency of the petition. Essentially, there are two grounds of objection:

2.1. Petition is filed outside one month after the declaration of result contrary to Section 205(e) of the Act; and

2.2. Failure by the petitioner to pay a sum of K2,000.00 as security deposit at the time of filing the petition on 29th June 2015 contrary to Section 206 of the Act.

Time Limitation

3. As to the first ground, Mr. Semoso contends that the date of declaration of his success was on 30th May 2015. Pursuant to Section 206 (e) of the Act, the petition must be filed by 30th June 2015. The petition was filed on 02nd July 2015. The date of 29th June 2015 found on the cover page of the petition is incorrect. It should be 02nd July 2015 because that was the date certified by the Deputy Registrar and further entered in the data entry form as noted from annexures "A" and "B" to the affidavit of Mark Piam filed on 19th August 2015.

4. The other respondents did not press this point. Mr. Sohia contends that this ground is misconceived because the date of filing is 29th June 2015. If one month is computed based on 30 days, time to file a petition would have expired on 30th June 2015. The petition was filed on 29th June 2015 and within time. The reference to the date of 02nd July 2015 by Mr. Semoso should be ignored because it is not relevant. It is an in-house matter for the administration of the Court Registry to sort out the allocation of case number and open up a file but he should not be held responsible for those matters.

5. Nonetheless, in so far as the question of filing is concerned, the petition was delivered at Buka National Court Registry on 29th June 2015 and that is sufficient compliance with Section 205(e) (supra). He relies on the decision of the Supreme Court in Paru Aihi v. Peter Isoaimo & Electoral Commission: SC Rev (EP) No 7 of 2014 (Unnumbered & Unreported Judgment of 05th June 2015) where the Court observed that "The delivery and surrender of the documents at the registry constitutes the act of filing."

6. Section 205(e) states that:

"A petition shall –

(a) .........

(b) .........

(c) .........

(d) .........

(e) be filed in the Registry of the Bougainville High Court at Buka, or elsewhere as directed by the Bougainville High Court, within one month after the declaration of the result of the election in accordance with Section 145(a) or the result of the recall poll under section 176(1)(a)." (Emphasis added).

7. Paragraph 7 of the petition states that the declaration of Mr. Semoso was made on 30th May 2015. I go by what is pleaded in the petition and compute the one month from that date. There is no serious contest as to the computation of one month. Parties seem to accept that it is 30 days. It is calculated based a period of time between the same dates in successive calendar months: The Oxford Advanced Learner's Dictionary.

8. Proceeding on this basis, 30 days from 30th May 2015 would have expired on 30th June 2015. The petition was delivered on 29th June 2015 and the date on the cover page of the petition bears 29th June 2015.

9. I accept Mr. Sohia's submission. I also follow my earlier decision in the Patrick Leslie case (supra) where I adopted and endorsed the view expressed by the Supreme Court in the Paru Aihi case (supra) which affirmed the National Court decision that delivery and surrender of the documents at the registry constitutes act of filing.

10. Conversely, I reject Mr. Semoso's contention that the date of filing was 02nd July 2015. The reliance on the data entry form obtained from the National Court Registry and from which the certificate was issued by the Deputy Registrar are internal records of the Court Registry and are irrelevant to the question of time of filing a petition. I also agree with Mr Sohia's submission that the allocation of case number and opening up of a file are internal administrative matters for the Court Registry and he should not be held responsible for those matters.

11. For these reasons, I accept that the petition was filed on 29th June 2015. It follows the petition was filed within one month (30 days) after the declaration of result. This ground is dismissed.

Security for Costs

12. As to the second ground, Mr. Semoso and the other respondents jointly contend that Mr. Sohia failed to pay security for costs at the time of filing the petition. They contend that if Mr. Sohia filed the petition on 29th June 2015 then he paid the security for costs on 02nd July 2015 which was not at the time he filed the petition. This is contrary to Section 206 of the Act. Section 206 states:

"206. DEPOSIT AS SECURITY FOR COSTS

At the time of filing the petition the petitioner shall deposit with the Bougainville High Court the sum of K2, 000.00 as security for costs."

13. They refer to the receipt of payment of K2, 000.00 dated 02nd July 2015 annexed as annexure "D" to the affidavit of Mark Piam (supra) and contend that it confirms that security for costs was paid on 02nd July 2015. They rely on the cases of Paru Aihi v. Peter Isoaimo & Electoral Commission (2014) N5691; Sai-Sail Beseoh v. Yuntuvi Bao (2003) N2348 and Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247 to support their submission. These cases held that security for costs must be paid at the time of filing a petition.

14. The second and third respondents add that the Court should reject the evidence of Mr. Sohia that he delivered cash of K2, 000.00 to the Assistant Registrar on 29th June 2015, because it is not corroborated by the Assistant Registrar.

15. Relying on his affidavit filed on 21st August 2015, and a further affidavit filed on 15th September 2015, Mr. Sohia contends that he delivered the petition and cash of K2, 000.00 as security for costs to the Assistant Registrar at Buka National Court Registry on 29th June 2015. The Assistant Registrar received the petition but informed him to hold on to the money until he confirmed the sum payable with his superiors at Waigani National Court. That was done and the Assistant Registrar informed him to pay K2, 000.00 on 02nd July 2015 which he did on the same day. He further contends that the deferment of the payment on the advice of the Assistant Registrar is matter beyond his control and he should not be penalised for that.

16. As I found in relation to the question of filing a petition, the petition was filed on 29th June 2015. The issue is whether the security for costs was also paid on 29th June 2015. I further found in the Patrick Leslie case (supra) that Mr Leslie's evidence that he delivered cash for payment of security for costs at the National Court Registry at the time he delivered the petition was uncontroverted. In this case, the evidence by Mr. Sohia on the issue of payment of security for costs is almost identical to Mr. Leslie's evidence and following that decision, I find that Mr. Sohia's evidence is uncontroverted. Accordingly, I find Mr. Sohia delivered cash of K2, 000.00 to the Assistant Registrar on 29th June 2015 but for the reason given by the latter, he held onto it until 02nd July 2015 and then paid it.

17. As I also found in the earlier case (supra), Rule 5(1)(&(2) of the National Court Election Petitions Rules, 2002 (as amended) ("EP Rules") allows a petitioner to either pay cash or bank cheque for security for costs at the National Court Registry. Further, I am satisfied that the deferment of the payment until the sum payable is confirmed is irrelevant. It is an administrative matter for the Assistant Registrar to sort out. Based on above findings, I am satisfied that Mr. Sohia complied with the requirement of Section 206(supra) and Rule 5(1)&(2) (supra). This ground is dismissed.

Order

18. The formal orders are:

1. The respondents' objections to competency are dismissed.

2. Costs of the objections shall be in the petition.

3. The petition is adjourned for directions hearing on a date and time to be fixed.
________________________________________________________________
Nemo Yalo Lawyers : Lawyers for the Petitioner
Mawa Lawyers : Lawyers for the First Respondent
Fairfax Legal Lawyers : Lawyers for the Second and Third Respondents