Leslie v Kena [2015] PGNC 174; N6073 (22 September 2015)

N6073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 01 OF 2015

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

BETWEEN:

PATRICK LESLIE
Petitioner

AND

CHRISTOPHER KENA
First Respondent

AND

SAMUEL ROROGA in his capacity as the Returning Officer for South Bougainville
Second Respondent

AND

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

AND

THE OFFICE OF BOUGAINVILLE ELECTORAL COMMISSION
Fourth Respondent

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

ELECTION PETITION – Autonomous Region of Bougainville Election – Objection to competency – Grounds of – Failure to pay security deposit – Security for costs – Prescribed sum of K2,000.00 – Security deposit must be paid at date of filing petition – Whether petition competent – Bougainville Elections Act, 2007– Section 206 – National Court Election Petitions Rules, 2002 (as amended) – Rule 5.

Cases cited:

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

Counsel:

Mr. M. Nandi, for Petitioner
No appearance, for First Respondent
Mr. K. Iduhu, for Second, Third & Fourth Respondents

RULING ON OBJECTION TO COMPETENCY

22nd September, 2014

1. MAKAIL, J: This petition against the member-elect for Lato Constituency in the Autonomous Region of Bougainville is brought before the National Court under Section 203 of the Bougainville Elections Act, 2007. 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. This is how this petition is before this Court. The petitioner Mr. Patrick Leslie disputes the election of Mr. Christopher Kena as member-elect for Lato Constituency.

2. Mr. Kena has not attended any of the preliminary hearings before this Court even though he is said to have been served the petition. The rest of the respondents have and have objected to the competency of the petition. The objection is based on the failure by Mr. Leslie to pay a sum of K2,000.00 as security for costs at the time of filing the petition on 29th June 2015. The prescribed sum for security for costs is K2,000.00. The respondents contend that payment of security for costs is a mandatory requirement under Section 206 of the Bougainville Elections Act, 2007. Unless it is complied with, the Court would lack jurisdiction to inquire into the election of the successful candidate.

3. 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."

4. They also rely on Rule 5 of the National Court Election Petitions Rules, 2002 (as amended) ("EP Rules") which 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. "

5. They contend that Rule 5 of the EP Rules gives effect to Section 206 of the Act. The next effect of both provisions is that the sum of K2,000.00 as security for costs must be paid at the time of filing the petition. The evidence based on the copy of the cheque of K2,000.00 paid to the National Court Trust Account and BSP Bank Deposit Slip show that it was paid on 02nd July 2015 while the petition was filed on 29th June 2015. As to the basis of reliance on 29th June 2015 as the date of filing, it is taken from the cover page of the petition which they contend is the date when the petition was filed.

6. They rely on past decided cases of Paru Aihi v. Peter Isoaimo & Electoral Commission (2014) N5691; Paru Aihi v. Peter Isoaimo & Electoral Commission: SC Rev (EP) No 7 of 2014 (Unnumbered & Unreported Judgment of 05th June 2015); Sai-Sail Beseoh v. Yuntuvi Bao (2003) N2348 and Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247 and contend that those cases had held that security for costs must be paid at the time of filing a petition.

7. Mr. Leslie contends that the petition is competent because he has paid the security for costs at the time of filing it. He relies on his affidavit sworn and filed on 24th August 2015, affidavit of Nekents Tombe sworn and filed on 18th August 2015 and affidavit of Adriana Billy sworn and filed on 18th August 2015 and contends that the petition was delivered at Buka National Court Registry on 29th June 2015 along with cash of K5,500.00 being K500.00 for filing fee and K5,000.00 for security for costs. The Assistant Registrar received the petition but not the money and informed him that he needed to confirm the correct amount for the security for costs.

8. On 02nd July 2015 he was informed by the Assistant Registrar to pay K2,000.00 as security for costs which he did on the same day. He contends that the correct date of filing should have been 02nd July 2015 and not 29th June 2015. However, the date of filing was back-dated to 29th June 2015 after an "EP Number" was allocated for the case from Waigani National Court. The Court should find that the correct date of filing of the petition is 02nd July 2015 because that was the date the security for costs was paid. If the Court were to so find, the Court should further find that the security for costs was paid at the time the petition was filed and the petition is competent.

9. There is no contest between the parties that security for costs must be paid at the time of filing the petition. The cases referred to by the respondents support this legal position. The prescribed sum is K2,000.00. The issue of contention is the date of filing the petition. Its determination will resolve the issue of when the security for costs was paid. When was the petition filed? The corresponding question is what constitutes an act of filing?

10. The National Court in Paru Aihi case (supra) remarked at [18]:

"........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."

11. The Supreme Court affirmed the observation of the National Court at [22] as follows:

"Firstly, the Petitioner visited the Court registry on two different dates to lodge the Petition and the payment of the filing fee and the security deposit respectively. There were two visits to the registry on two different days. On 20th March 2014, the Petition was lodged and left at the registry. If it were intended that the Petition were to be "filed" the next day, the Petition should not have been lodged at the registry and left there. All too often, litigants deliver documents intended for filing through the court registry in the supposed act of filing and left there. Litigants ought not and should not take the registry as if it were their repository to hold documents for them to collect or view at their own discretion and timing. The delivery and surrender of the documents at the registry constitutes the act of filing." (Emphasis added).

12. These statements were made in the context of Section 209 of the Organic Law on National and Local-level Government Elections which is the equivalent of Section 206 of the Act and which prescribes a sum of K5,000.00 as security for costs to be paid at the time of filing a petition to challenge an election result in a General Election.

13. However, I consider that they are pertinent to the case at hand and I adopt them. Basing my reason on the view expressed by the Courts in those cases (supra) that delivery and surrender of the documents at the registry constitutes the act of filing, I reject Mr. Leslie's contention that the petition was filed on 02nd July 2015. I find that the petition was filed on 29th June 2015. That was the date Mr. Leslie delivered the petition to the Registry at Buka National Court. As to the allocation of an "EP Number" for the case, the back-dating of the date of filing etc, are irrelevant because they are internal administrative matters of the Court registry of which are beyond Mr. Leslie's control and for which he should not be held responsible.

14. Rule 5(1) (supra) states that the security deposit "must be paid in cash or by bank cheque." This Rule provides for two modes of payment. First is by cash and secondly, by bank cheque. So it gives a petitioner options. Rule 5(2) states that the deposit shall be paid at the registry at the time of filing. This means that the petitioner must either pay cash or bank cheque at the registry at the time of filing the petition.

15. There is no dispute that Buka National Court has a Registry. So the cash or cheque for the security deposit must be paid at Buka National Court Registry. In his affidavit, Mr. Leslie explains why he paid K2,000.00 on 02nd July 2015. On 29th June 2015 he delivered cash of K5,500.00 with the petition to the Assistant Registrar. This was at Buka National Court Registry. He was advised by the Assistant Registrar to hold on to the money until the latter confirmed the sum payable for security for costs. The latter subsequently confirmed it on 02nd July 2015 and he paid it on the same day. There is no evidence refuting Mr. Leslie's evidence.

16. The respondents contend that Mr. Leslie's evidence is uncorroborated because the Assistant Registrar did not depose in his affidavit that Mr. Leslie delivered cash to him on 29th June 2015. Further, that there is no evidence of a receipt of payment issued by the National Court to verify payment. Mr. Leslie's affidavit is a sworn deposition and unless there is evidence to the contrary, it must stand uncontroverted. For this reason, I accept Mr. Leslie's evidence that he delivered cash of K5,500.00 as payment for security for costs and filing fee at the time he delivered the petition for filing.

17. The contention that there is no evidence of receipt of payment to verify that payment has been made is untenable because the Assistant Registrar told Mr. Leslie to hold on to the money until further notice. Thus, it is pointless to ask Mr. Leslie to produce one.

18. As to the deferment of payment on the advice of the Assistant Registrar pending confirmation of sum payable, it is irrelevant because it is an internal matter for the Assistant Registrar to sort out and a matter beyond the control of Mr. Leslie and for which he should not be held responsible. I am further satisfied that the delivery of the cash was sufficient for the purpose of complying with Rule 5(1)&(2) (supra). I conclude the petition is competent.

19. The orders are:

1. The second, third and fourth respondents' objection to competency is dismissed.

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

3. The petition is adjourned for directions hearing on a date and time to be fixed.

______________________________________________________________
Nandi Lawyers: Lawyers for the Petitioner
Fairfax Legal Lawyers: Lawyers for the Second, Third and Fourth Respondents