Kiso v Ling-Stuckey [2023] PGNC 128; N10290 (7 June 2023)

N10290

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 12 OF 2022

BETWEEN
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND
IN THE MATTER OF THE DISPUTED RETURN FOR 2022 NATIONAL GENERAL ELECTIONS FOR KAVIENG OPEN ELECTORATE

AND
GLEN KISO
Petitioner

AND
IAN LING-STUCKEY
First Respondent

AND
SIMON SINAI – ELECTORAL COMMISSIONER OF ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Kavieng: Manuhu, J.
2023: 5^th & 7^th June

GENERAL ELECTIONS – Petition – Pleadings – Facts – Security deposit – Adress of attesting witness – ss. 208 (a) (d), 209 and 210 on Organic Law on National and Local Level Government Elections.

Cases Cited:

William Hagahuno v Johnson Tuke [2020] SC2018
Manwau v Bird [2023] N10249

Counsel:

M. Murray, for the Petitioner
I. Shepherd, for the First Respondent
S. Kunai, for the Second Respondent

7^th June, 2023

1. MANUHU, J.: The substantive matter is an election petition which challenges the first respondent’s election as Member for the Kavieng Open Electorate in the 2022 national general elections on grounds of bribery, undue influence, and illegal practice. The respondents filed separate objections to the competency of the petition which was heard on Monday 5^th June and was adjourned to this morning for ruling.
   
2. Among others, the issues arising from the grounds for the objections are:
   
   • Whether the petition failed to comply with the mandatory requirement of section 208 (a) of the Organic Law on National and Local Level Government Elections (“Organic Law”).
     
   • Whether the petition failed to comply with the mandatory requirement of section 208 (d) of the Organic Law.
     
   • Whether the petition failed to comply with the mandatory requirement of section 209 of the Organic Law.
     
3. Section 208 (a) requires the petition to plead material facts and grounds relied upon to invalidate the election. In this petition, some of the pleadings may be unnecessary and confusing. Preferably, pleadings on bribery should be separated from pleadings on undue influence and illegal practice. That notwithstanding, each ground is ultimately simplified under the headings Case 1 to Case 7.
   
4. In Case 1 for instance, day, date, place, person and spoken words or promises are sufficiently pleaded. The same observation can be made in relation to Case 2, Case 3, Case 4, Case 5, Case 6 and Case 7. As pleaded, the trial can proceed without much difficulty.
   
5. Comparatively, the pleadings in this petition are, in my view, clearer than the pleadings in the petition in William Hagahuno v Johnson Tuke [2020] SC2018, which was held to be competent.
   
6. I am therefore satisfied that the petition has complied with the mandatory requirement of section 208 (a).
   
7. In relation to the second issue, the law requires the two attesting witnesses to state their addresses in the petition. Under section 208 (d), “A petition shall be attested by two witnesses whose occupations and addresses are stated.” Rule 4 of the Election Petition Rules requires a petition to be in accordance with Form 1, which is reproduced below:

__________________________________________________________________
In the National Court of Justice EP No ...... of ..........
at ... (insert place of filing)

PETITION

IN THE MATTER OF A DISPUTED RETURN
FOR THE ......................... ELECTORATE

(insert name of petitioner)
PETITIONER
And
(insert name of successful candidate)
FIRST RESPONDENT

ELECTORAL COMMISSION
SECOND RESPONDENT

(add other respondents if leave granted by the Court)

A: THE PETITIONER petitions the National Court against the election or return of the first respondent as the successful candidate for the (insert name of electorate) electorate.


B: THE FACTS relied on to invalidate the return of the first respondent are set out as follows:
(set out the facts in numbered paragraphs)


C: THE GROUNDS upon which the petitioner relies are:
(set out the grounds in numbered paragraphs)


D: THE RELIEF to which the petitioner claims to be entitled is:
(specify the relief sought in numbered paragraphs)


SIGNED BY: (petitioner to sign his or her signature)


..........................................................
PETITIONER (being a candidate at the election in dispute or by a person who was qualified to vote at the election, in accordance with Section 208(c) of the Organic Law), on ......................................... (insert date on which petition signs the petition) at ............................ (insert place at which the petition is signed)


IN THE PRESENCE OF:


FIRST ATTESTING WITNESS:


I, ............................. (insert name of first attesting witness), ............................ (insert occupation of first attesting witness), of ................................. (insert address of first attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.


...................................................
(signature of first attesting witness)


SECOND ATTESTING WITNESS:


I, ............................. (insert name of second attesting witness), ............................ (insert occupation of second attesting witness), of ................................. (insert address of second attesting witness: state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town), WHOSE SIGNATURE APPEARS BELOW, ATTEST THAT I HAVE WITNESSED THE SIGNING OF THE PETITION BY THE PETITIONER.


...................................................
(signature of second attesting witness)


THE PETITIONER’S ADDRESS FOR SERVICE IS: ....................................
(state address precisely by section and lot number or where no section and lot number by street name or in the case of a village or settlement, state name of place precisely by referring to province, district and nearest town)

NOTICE BY THE REGISTRAR

ALL PARTIES TO THE PETITION TAKE NOTICE THAT THE FIRST DIRECTIONS HEARING FOR THIS PETITION WILL BE HELD AT WAIGANI ON ....................... (insert date) at ............... (insert time).


................................
REGISTRAR
________________________________________________________________

8. The relevant parts of the form are in italics and underlined. The addresses required are street addresses, not postal addresses.
   
9. The attesting witnesses in this petition are Tom Bais and Chris Alickson. Tom Bais does not state his street address. Post Office Box 1790 Waterfront, National Capital District is not a proper address for the purpose of section 208 (d). Chris Alickson’s address is Post Office Box 684 Kavieng. He did not state his street address. His postal address is not recognised by section 208 (d).
   
10. The petition failed to comply with Rule 4 of the Election Petition Rules. I am accordingly satisfied that the petition failed to comply with the mandatory requirement of s. 208 (d) and I have no discretion to waive or ignore the failure.
    
11. The petition is liable for dismissal for failure to comply with section 208 (d) but for completeness’ sake, I will address the third issue. Section 209 of the Organic Law requires the security deposit and the petition to be lodged at the same time. It cannot be paid before or after the filing of a petition: Manwau v Bird [2023] N10249.
    
12. In this case, the petition was filed on 29^th August 2022. The security deposit was paid into the Registrar’s Trust Account on 25^th August 2022. The notice of payment of security deposit is dated 30^th August 2022. The notice has the Deputy Registrar’s certification, thus:
    

“Security Deposit of K5,000 was paid into National Court Registrar’s Trust Account No. 1000583618 at BSP on 25^th August 2022 and a copy of the receipt was presented to me on 29^th August 2022 being the date the Petition was filed.”

13. I note the strong submission by counsel but, with due respect, I beg to differ. When a security deposit is paid into the Registrar’s Trust Account, legally, it is nothing more than money held in trust on behalf of an intending litigant. It is not yet a security deposit for the purpose of section 209. The legal status of the money held in trust changes when the intending litigant files his petition together with the deposit receipt. At that instant, the money that was earlier deposited becomes security deposit for the purpose of section 209.
    
14. In conjunction with the certification by the Deputy Registrar, I make a finding of fact that the security deposit is deemed to have been paid at the time when the petition was filed. Therefore, I am satisfied that there was compliance with section 209.
    
15. Ultimately, the petitioner must account for not complying with section 208 (d). Section 210 of the Organic Law states:
    

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

16. The five requirements under section 208 are not optional. They must all be complied with. If a requirement is not met, section 210 bars the petition from further progress. The Court has no overriding power to ignore that requirement.
    
17. Accordingly, I find that this petition is incompetent and, for that reason, is dismissed with costs which, if not agreed, shall be taxed. The security deposit shall be paid to the respondents in equal shares.
    

Orders accordingly.
________________________________________________________
Murray & Associates Lawyers: Lawyers for the Petitioner
Ashurst Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent