Parkop v Juffa [2023] PGNC 109; N10281 (31 May 2023)

N10281

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 61 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR THE
NORTHERN PROVINCIAL ELECTORATE

JEAN EPARO PARKOP
Petitioner

V

GARY JUFFA
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 30^th, 31^st May

ELECTIONS – petitions – objection to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(e): whether petition filed within 40 days after declaration of result of election – s 209: whether petitioner lodged K5,000.00 security for costs at the time of filing the petition – s 217 (real justice to be observed) – s 217 to be applied when determining objections to competency – whether questions relating to interpretation or application of provisions of a Constitutional Law should be referred to Supreme Court, Constitution, s 18(2).

The second respondent to an election petition (the Electoral Commission) filed a supplementary notice of objection to competency, by which it objected to competency of the petition, on two grounds. First, that the petition failed to comply with s 208(e) of the Organic Law on National and Local-level Government Elections as it was filed late, beyond the 40-day period after declaration of the result. Secondly, that the petition failed to comply with s 209 of the Organic Law as the K5,000.00 security for costs was not deposited with the Registrar at the time of filing the petition. The first respondent supported the objection, and the contention that the entire petition was incompetent and should be dismissed; and alternatively suggested that if the petition were not dismissed, the National Court should refer, under s 18(2) of the Constitution, the constitutional questions arising from the objection to the Supreme Court for its opinion. The petitioner opposed the objection to competency and the suggestion of a reference to the Supreme Court, and argued the preliminary point that the objection was itself incompetent as the supplementary notice of objection to competency failed to set out a proper jurisdictional basis for the relief sought.

Held:

(1) The supplementary notice of objection to competency was filed in accordance with directions of the Court under s 185 of the Constitution and was in a form substantially compliant with the Election Petition Rules, rule 12 and form 4. The supplementary notice of objection to competency was not incompetent.

(2) The petition was “filed” when it was lodged electronically, as required by the Court, and uploaded on the Integrated Electronic Case Management System (IECMS) just before midnight on Monday 12 September 2022, which was the 39^th day after the date of declaration of the result, Thursday 4 August 2022. It was filed within the 40-day period. The ground of objection based on s 208(e) failed.

(3) The petitioner deposited the K5,000.00 security for costs with the Registrar, by depositing that sum in the Registrar’s Trust Account in accordance with rule 7 of the Election Petition Rules, on 8 September 2022, and identified the deposit in such a way that it obviously related to the petition filed on 12 September 2022, the consequence being that it was lodged “at the time of filing the petition”. The ground of objection based on s 209 failed.

(4) Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency. Upholding either of the two grounds of objection to competency would be to disregard the requirements of s 217, and this reinforced the conclusion that both grounds of objection should be refused.

(5) Though the decision in this case is at variance with other recent National Court decisions on similar grounds of objection to competency, those decisions are not binding, and the present objection has been determined on its merits. Any conflict in National Court decisions can be resolved by the Supreme Court if any party in this case or those other cases seeks recourse under s 155(2)(b) of the Constitution. In these circumstances, it was unnecessary to refer any constitutional questions to the Supreme Court.

(6) The petition will proceed in accordance with previous directions.

Cases Cited

The following cases are cited in the judgment:

Alois Kingsley Golu v Regett Marum (2013) N5104
Amet v Yama [2010] 2 PNGLR 87
Hagahuno v Tuke (2019) SC1776
Hagahuno v Tuke (2020) SC2018
Haiveta v Wingti (No 1) [1994] PNGLR 160
Isaac Lupari v Sir Michael Somare (2008) N3476
Kassman v Tkatchenko (2023) N10213
Kikala v Electoral Commission (2013) SC1295
Lowa v Akipe [1992] PNGLR 399
Minape v Rosso & Electoral Commission, EP 3 of 2022 re Lae Open, 16 May 2023, unreported
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Parkop v Juffa & Electoral Commission (2023) N10153
Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479
Ramanai v Pano (2023) N10248
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405
SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379
Yama v Yagama (2012) N4928

Counsel

D L Dotaona, for the Petitioner
A W Jerewai, for the First Respondent
N Tame, for the Second Respondent
31^st May, 2023

1. CANNINGS J: This is a ruling on an objection by the second respondent, the Electoral Commission, to competency of an election petition. The petition was filed by unsuccessful candidate Jean Eparo Parkop (the petitioner) disputing the election of first respondent Gary Juffa as member for Northern Provincial in the 2022 general election.
   
2. I have already ruled, on 9 March 2023, on two objections to competency of the petition (Parkop v Juffa & Electoral Commission (2023) N10153). I partially upheld the objections, the result being that, at this stage, three of the ten grounds of the petition will go to trial, which is due to commence in Popondetta on 19 June 2023.
   
3. The present objection to competency has been filed very late, well outside the time limit prescribed by rule 12 of the Election Petition Rules 2017. However, I ordered yesterday, 30 May 2023, that it can be made, considering the principle in the leading case, Amet v Yama [2010] 2 PNGLR 87, that a respondent can make an objection to competency at any time. I gave directions under s 185 of the Constitution that the supplementary notice of objection to competency, deemed to have been filed on 30 May 2023, shall be heard forthwith.
   
4. The second respondent objects to competency of the petition, on two grounds. First, that the petition fails to comply with s 208(e) of the Organic Law on National and Local-level Government Elections as it was filed late, beyond the 40-day period after declaration of the result. Secondly, that the petition fails to comply with s 209 of the Organic Law as the K5,000.00 security for costs was not deposited with the Registrar at the time of filing the petition.
   
5. The first respondent supports the objection, and the contention that the entire petition is incompetent and should be dismissed; and alternatively suggested that if the petition were not dismissed, the National Court should refer, under s 18(2) of the Constitution, the constitutional questions arising from the objection to the Supreme Court for its opinion.
   
6. The petitioner opposes the objection to competency and the suggestion of a reference to the Supreme Court, and argues a preliminary point that the objection is itself incompetent as the supplementary notice of objection to competency fails to set out a proper jurisdictional basis for the relief sought.
   

PETITIONER’S PRELIMINARY POINT

7. The petitioner argues that the supplementary notice of objection to competency is defective as it fails to state which Organic Law the petition allegedly fails to comply with. It describes the grounds of objection in these terms: “Failure to comply with section 208(e) of the Organic Law” and “Failure to comply with section 209 of the Organic Law”.
   
8. I agree that the supplementary notice would have been better drafted if it had expressly stated that the grounds of objection were based on alleged failure to comply with ss 208(e) and 209 of the Organic Law on National and Local-level Government Elections, rather than just “the Organic Law”. But I don’t think that means there is a flaw in the supplementary notice. It is not something that makes the notice defective. Nor does it affect the jurisdiction of the court to determine the objection.
   
9. The supplementary notice is compliant with rule 12(a) and form 4 of the Election Petition Rules. Indeed, form 4 does not specify that the name of the Organic Law should be given in full.
   
10. There is no prejudice to anyone by the failure of the supplementary notice of objection to competency to provide the full name of the Organic Law. It is plain and obvious to everyone that the notice is alleging that the petition fails to comply with ss 208(e) and 209 of the Organic Law on National and Local-level Government Elections.
    
11. The petitioner’s preliminary point in connexion with the first respondent’s supplementary notice of objection to competency of the petition, is refused.
    

FIRST GROUND OF OBJECTION: FAILURE TO COMPLY WITH SECTION 208(e) OF THE ORGANIC LAW

12. The second respondent, supported by the first respondent, argues that:
    

(i) the 40-day period, imposed by s 208(e) of the Organic Law, within which the petition had to be filed, expired at midnight on 13 September 2022;

(ii) the petition was not filed until 14 September 2022;

(iii) the petition therefore does not comply with s 208(e) of the Organic Law and is incompetent and should be dismissed.

13. Section 208 (requisites of petition) states:
    

A petition shall—

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

14. I agree with the second respondent’s first proposition. The result of the election was declared on 4 August 2022. That day is excluded in computation of the 40 days (Hagahuno v Tuke (2019) SC1776). The 40-day period expired at midnight on 13 September 2022.
    
15. I also agree with the third proposition, that if the petition was not filed until 14 September 2022, it would have been late. As s 208(e) imposes a mandatory requirement and it is in the Organic Law, strict compliance with it is necessary. Substantial compliance is insufficient. Failure to comply with it means the petition is incompetent and must be dismissed. A petition filed one day late is too late and will be dismissed.
    
16. So, what about the second proposition, that the petition was filed on 14 September 2022? I find the facts as follows:
    

• The petition was uploaded on the National Court’s Integrated Electronic Case Management System (IECMS) just before midnight on Monday 12 September 2022, which was the 39^th day after the date of declaration of the result. The exact time it was uploaded is unclear. According to a screenshot annexed to the affidavit of the second respondent’s witness, Thompson Kama, filed on 29 May 2023, the petition was uploaded at 2344 hours (11.44 pm). According to a screenshot annexed to the affidavit of the petitioner’s witness, Charlie Arua, filed on 30 May 2023, it was uploaded at 2303 hours (11.03 pm). Whether it was 2344 or 2303, I find that the petition was uploaded before midnight on 12 September 2022.
  
• The petition was recorded in IECMS as “Case Registered” on the date and time “13/09/22 08:17”. The receiving officer was “Mathew Bae”. Evidence of these facts is in the screenshot annexed to the affidavit of Charlie Arua, filed on 30 May 2023. I take judicial notice of the fact that Mr Bae is a senior officer in the National Court Registry.
  
• The petition was then further processed and a sealed copy of the petition was recorded as being uploaded on IECMS by Kini Mamis on the date and time “14/09/22 08:57”. I take judicial notice of the fact that Ms Mamis is a senior officer in the National Court Registry.
  
• The original of the petition bearing the seal of the National Court is date-stamped “12.09.22”.
  

17. Mr Tame, for the second respondent, argues that the petition was not filed until it was processed and sealed through IECMS on 14 September 2022. He relies on the recent decision of Manuhu J in Ramanai v Pano (2023) N10248 in support of that argument. His Honour held:
    

Filing is complete when the petition is lodged, sealed and endorsed with an election petition number. Merely uploading a petition through IECMS does not satisfy the requirement of filing under ss 208(e) and 209.

18. I note that in drawing that conclusion, and finding that the petition (EP 89 of 2022 re Kagua-Erave Open) had been filed late, even though it had been uploaded through IECMS before the expiry of the 40-day period, his Honour took into account the definition of “filed” in rule 1 of the Election Petition Rules. That rule states:
    

“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.

19. I acknowledge that if that is the approach to be taken in the present case, I would find that the petition was filed on 14 September 2022. That is the date on which the petition was sealed and endorsed with an election petition number. Though the petition was dated 12 September 2022, that date was not affixed and the seal was not affixed until 14 September 2022. The petition would be filed one day late and be incompetent and be dismissed.
    
20. However, I am not bound by the decision of the National Court in that case and I respectfully decline to follow the approach that led to that decision. The definition of the word “filed” in the Rules of Court does not govern the meaning of that word in the Organic Law, which is a Constitutional Law and a superior law to the Election Petition Rules.
    
21. The word “filed” in the Organic Law should be given its natural and ordinary meaning, and in the event of ambiguity in its meaning, it must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).
    
22. I take into account that there is a practice direction issued by the Chief Justice, and it is an administrative requirement imposed by the Registrar, that election petitions filed in the Waigani Registry must be electronically lodged through IECMS. If I am wrong in saying that, then at least it is the case that petitioners or their lawyers are encouraged and invited to lodge petitions through IECMS.
    
23. That is what the petitioner did. Her petition was lodged through IECMS just before midnight on 12 September 2022. Giving the word “filed” in s 208(e) of the Organic Law its natural and ordinary meaning, and giving paramount consideration to the dispensation of justice, and giving the word its fair and liberal meaning, I consider that lodging an election petition through IECMS amounts to filing of the petition.
    
24. Interpreting the provision any other way could result in perverse consequences. What will happen if IECMS is down, or the internet is down or the Registry is flooded due to a downpour and is out of action for a week? The petitioner has done what is required to be done and lodged her petition before the end of the 39^th day, but the Registry, through some lack of diligence on the part of its officers or through an act of God or whatever reason, good or bad, does not seal and allot a file reference until after the 40^th day. I consider it is unjust in such circumstances for the court to say that the petition has been filed late.
    
25. I distinguish the facts of the present case with those in the recent case of Kassman v Tkatchenko (2023) N10213, in which part of the petition was lodged through IECMS before the end of the 40^th day after the result was declared, and the balance was lodged the next day. Narokobi J held that filing was not complete until the whole of the petition was lodged through IECMS, so that petition, EP No 30 of 2022 re Moresby South Open, was dismissed as incompetent.
    
26. In the present case, the whole of the petition was lodged through IECMS just before midnight on 12 September 2022. This means the petition was filed just before midnight on 12 September 2022.
    
27. If I am wrong in that view, I would find that it was filed on 13 September 2022 at 0817 when it was processed as a Case Registered in IECMS by Mathew Bae.
    
28. Either way, the petition was filed in time. There was no failure to comply with s 208(e) of the Organic Law. I refuse the first ground of the objection to competency.
    

SECOND GROUND OF OBJECTION: FAILURE TO COMPLY WITH SECTION 209 OF THE ORGANIC LAW

29. The second respondent, supported by the first respondent, argues that:
    

(i) there is a requirement under s 209 of the Organic Law for a petitioner, at the time of filing a petition, to deposit with the Registrar the sum of K5,000.00 as security for costs;

(ii) this petition was filed on 14 September 2022;

(iii) the petitioner deposited the security for costs on 8 September 2002;

(iv) the security for costs was not deposited at the time of filing the petition;

(v) the petition therefore does not comply with s 209 of the Organic Law and is incompetent and should be dismissed.

30. Section 209 (deposit as security for costs) 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.

31. I agree with the second respondent’s first proposition. It is a mandatory requirement to deposit the security for costs at the time of filing the petition
    
32. I also agree with the third proposition, that the deposit was made into the Registrar’s trust account (as per rule 7 of the Election Petition Rules) on 8 September 2022. I find that as a fact.
    
33. I also agree with the fifth proposition, in that if the deposit of K5,000.00 was not made at the time of filing the petition, the petition would be incompetent and be dismissed. The s 209 requirement is mandatory and strict compliance with it is necessary. Substantial compliance is insufficient.
    
34. So, what about the second proposition, that the petition was filed on 14 September 2022? I have already found that the petition was filed on 12 September 2022; and if I am wrong on that point, I have found that the petition was at least filed on 13 September 2022.
    
35. So where does that leave the fourth proposition, that the security for costs deposit was not made at the time of filing the petition? The second respondent argues that even if the petition is regarded as being filed on 12 or 13 September 2022, the fact remains that the deposit was made early, on 8 September 2022, and not at the time of filing the petition. In support of the argument he relies on the recent (16 May 2023) unreported decision of Gavara-Nanu J in Minape v Rosso & Electoral Commission in EP 3 of 2022 re Lae Open. His Honour apparently upheld a similar argument about an early deposit not being at the time of filing the petition, and found that there was a failure to comply with s 209 of the Organic Law and upheld an objection to competency and dismissed the petition.
    
36. I understand that his Honour gave oral reasons for decision and has not yet published a written decision. However, I note that the decision has been reported in the mass media and the way Mr Tame has described it is probably a correct summary of it. Whatever the decision of his Honour was, I would respectfully have regard to it, but I make the same point that I made in relation to Manuhu J’s decision in Raminai v Pano: I am not bound to follow any decision of the National Court (Constitution, schedule 2.9(2)).
    
37. I consider the present case on its merits. I have to give the phrase “at the time of filing the petition” in s 209 of the Organic Law its ordinary and natural meaning. Does that mean that the security deposit has to be made on the same day that the petition is filed? I do not think so. As already seen in this case, if the second respondent’s arguments on the first ground of objection were to be sustained, the petitioner would not know the date of filing as that is something over which she had no control. But I have rejected that argument. The date of filing is clear. I have determined it to be 12 September 2022.
    
38. Does it matter that the deposit was made four days earlier, on 8 September 2022? No, not in my reckoning. I can see that there is some ambiguity in the meaning of “at the time of filing the petition”. But there is no express requirement that the date of making the deposit must be the same date as filing the petition. The phrase must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).
    
39. I consider that it would give proper and paramount consideration to the dispensation of justice and it would give the phrase “at the time of filing the petition” a fair and liberal meaning, to regard a deposit that is made four days, or even five days before filing of a petition as being made at the time of filing the petition. Interpreting the phrase that way does no prejudice to anyone. Interpreting it in the way contended for by the second respondent would lead to an injustice.
    
40. The deposit slip and other documents evidencing the deposit of 8 September 2022 bear the name of the petitioner. Obviously it was a deposit made in connection with this petition. It was recorded as such by the Registry.
    
41. The petitioner deposited the K5,000.00 security for costs with the Registrar, by depositing that sum in the Registrar’s Trust Account in accordance with rule 7 of the Election Petition Rules, on 8 September 2022, and identified the deposit in such a way that it obviously related to the petition filed on 12 September 2022. I find that the deposit was made “at the time of filing the petition”. The second ground of objection to competency is refused.
    

SECTION 217 OF THE ORGANIC LAW

42. In refusing the two grounds of objections to competency I have not mentioned or applied s 217 (real justice to be observed) of the Organic Law, which states:
    

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

43. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies to the hearing of objections to competency, and not only to the trial of the petition (Hagahuno v Tuke (2020) SC2018, Kikala v Electoral Commission (2013) SC1295, Yama v Yagama (2012) N4928).
    
44. In my view, upholding either of the two grounds of objection to competency would be to disregard the requirements of s 217. This reinforces the conclusion that both grounds of objection should be refused.
    

SECTION 18 OF THE CONSTITUTION

45. Mr Jerewai, for the first respondent, suggested that in view of the uncertainty arising from recent National Court decisions on ss 208(e) and 209 of the Organic Law, I should refer the constitutional questions arising in this case to the Supreme Court under s 18(2) of the Constitution, which states:
    

Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

46. I note that there is no formal application or motion before me, requiring determination. There is a suggestion only, that I could and should refer constitutional questions to the Supreme Court. It is not an unreasonable suggestion, and I have carefully considered it.
    
47. However, I am mindful of the Supreme Court’s urging in several cases that the power to make references under s 18(2) should only be exercised when it is necessary to do so. I refer to the Supreme Court decisions to that effect, and some National Court decisions to like effect, in SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v J Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104.
    
48. Though my decision in this case is evidently at variance with recent National Court decisions on similar grounds of objection to competency in other cases, those decisions are not binding on the National Court, and the present objection has been determined on its merits.
    
49. Any conflict in National Court decisions can be resolved by the Supreme Court if any party in this case or those other cases seeks recourse under s 155(2)(b) of the Constitution. In these circumstances, I think it is unnecessary to refer any constitutional questions to the Supreme Court. In the language of s 18(2) of the Constitution any such questions (which have not been drafted or proposed by any of the parties) are “irrelevant” in the circumstances of this case. I decline to make a reference to the Supreme Court.
    

CONCLUSION

50. The objection to competency fails, and the petition shall be heard in accordance with and subject to previous directions of the court.
    
51. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that costs follow the event. The second respondent will pay the petitioner’s costs.
    

ORDER

(1) The second respondent’s objection to competency of the petition, made under the supplementary notice of objection to competency filed 30 May 2023, is refused.

(2) The second respondent shall pay the petitioner’s costs of and incidental to the supplementary notice of objection to competency, on a party-party basis, which shall, if not agreed, be taxed.

(3) The petition shall proceed to hearing in accordance with directions of the Court.

_____________________________________________________________
Dotaona Lawyers: Lawyers for the Petitioner
Jerewai Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent