N10322

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE ]

EP. NO. 62 OF 2022

IN THE MATTER OF A DISPUTED RETURN FOR
THE KAINANTU OPEN ELECTORATE

BETWEEN:
JOHNSON TUKE IBO
Petitioner

AND:
WILLIAM HAGAHUNO
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Goroka/Waigani: Yagi J
2023: 07th & 12th June

ELECTION PETITION – Objection to Competency – non-compliance with mandatory requirements of s. 209 of the Organic Law on National and Local Level Government Elections – deposit for security for cost paid to National Court Registrar’s Trust Account prior to filing of the petition – objection upheld – petition dismissed with cost.

Cases Cited:
Delba Biri v Bill Ninkama [1982] PNGLR 342
Paru Aihi v Sir Moi Avei (No. 2) (2003) SC720
Ginson Goheyu Saonu v Bob Dadae (2004) SC763
Jimson Sauk v. Don Pomb Polye & Electoral Commission (2004) SC769
Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249  
Mathew Minape v John Rosso & Electoral Commission – EP No. 03 of 2022 (unreported judgment of Gavara-Nanu J in Waigani)
Robert Sandan Ganim v Lino Tom Moses (2018) N7233
Fidelis Semoso v Cosmas Sohia (2016) SC1507
Kuberi Epi v Tony Farapo & Electoral Commission (1983) SC247
Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Counsel:
Mr R. Raka, the Petitioner
Mr L. Tangua, for the First Respondent
Mr D. Kints, for the Second Respondent

RULING
12th June, 2023

1.	YAGI J:	On 12 September 2022 the petitioner filed a petition disputing the declaration of the first respondent as the duly elected member of the National Parliament for the Kainantu Open Electorate following the 2022 National General Elections.

2.	The petition is structured with, among others, the following key elements –

•	the facts of the case, 
•	the grounds for disputing the declaration of the election result, and 
•	the reliefs that the petitioner seeks.

3.	The structure of the petition is in accordance with Form 1 of the Election Petition (Miscellaneous Amendments) Rules 2022 (EPR).

4.	The EPR which regulates the practice and procedure in respect to litigation of an election petition in the National Court provides, among others, that a respondent named in a petition may challenge the competency of a petition. This is provided by Rule 12 and is expressed in the following terms:

“12.	Objection to Competency
A respondent who objects to the competency of the petition shall, within 21 days after service of the petition -
(a)	file an objection in accordance with Form 4 giving at least three clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b)	serve a copy of the objection on the petitioner and on each of the other respondents; and
(c)	file and serve all affidavits in support of the objection.”

5.	In that regard both respondents filed and served their respective objections. Both respondents filed their objections on 11 October 2022. However, on 05 June 2023, the Court granted leave to the second respondent to file and serve an amended notice of objection to competency.

6.	Rule 16 of the EPR directs that the National Court shall deal with objections to competency of the petition and the petition itself at the trial of the petition. The trial of this petition was initially fixed for 3 weeks hearing commencing on 22 May 2023. However, due to circumstances the commencement was deferred to 05 June 2023. After hearing and ruling on the second respondent’s application, the Court adjourned to 07 June 2023 for hearing of submissions on the competency of the petition. The parties made submissions on the grounds of objection and the ruling was reserved to today.

7.	The first respondent’s objection raised six (6) grounds:

	1.	Legal representation and standing to file the petition (s. 222(1))

	2.	Non-compliance with process (s. 208(a))

	3.	Insufficient facts on undue influence (s. 208(a))

4.	Insufficient facts on errors and omissions & illegal practices (s. 208(a))

5.	Insufficient facts on illegal practices by other candidates (s. 208(a))

	6.	Inappropriate reliefs sought (s. 208(b))

8.	As for the second respondent the following grounds are raised:

	1.	Non-compliance with Form 1 (Rule 4, EPR)

2.	Insufficient facts on undue influence by the first respondent and his servants and agents (s. 208(a))

3.	Insufficient facts on illegal practices by other candidates, their servants and agents (s. 208(a))

	4.	Failure to comply with s. 209 of the Organic Law.

10.	I heard counsels for the respective parties make extensive oral submissions the whole day on 05 June 2023. The submissions have been reduced into written format. I express my gratitude to counsels for their very helpful submissions. Without restating the obvious, those submissions are dealt with in my reasons for decision. 

11.	The Organic Law is emphatic, unequivocal, and plain in its terms as to competency of a petition that is filed under Part XVIII of the Organic Law. The relevant provisions are ss. 208, 209 and 210 of the Organic Law. I reproduce these three provisions in their entirety below:

“208.	Requisites of petition.
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 court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

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.

210.	No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

12.	Sections 208 and 209 are mandatory pre-requisites to a valid petition. In other words they are conditions precedent. A combined reading of ss. 208, 209 and 210 of the Organic Law means that where a requirement of either s. 208 or s. 209 or both are not complied with the petition cannot proceed to a hearing. It will be deemed incompetent, and the petition must as a matter of law be dismissed forthwith: Delba Biri v Bill Ninkama [1982] PNGLR 342; Paru Aihi v Sir Moi Avei (No. 2) (2003) SC720; Ginson Goheyu Saonu v Bob Dadae (2004) SC763 and Jimson Sauk v. Don Pomb Polye & Electoral Commission (2004) SC769.

13.	In this case, the grounds of objection to competency of the petition by respondents, among others, are based on alleged non-compliance with the requirements of s. 208 and s. 209. The respondents say firstly that the requirement of s. 208(a) was wanting in that the pleading of relevant and material facts pertaining to the grounds for invalidating the election are deficient. Secondly, the requirement of s. 209 was also not satisfied in that the K5,000.00 security deposit for cost was not made to the Registrar of the National Court at the time of filing the petition.

14.	I propose to consider the competency grounds under s. 208 and 209 ahead of the other grounds. In my view this is proper and appropriate given that all other grounds are secondary in nature.

15.	I start with the s. 209 because this requirement gives formality to a petition. Without this step, that is, filing of a petition, there is no petition before the Court for determination.

16.	This ground is raised by the second respondent. It is submitted the petition is incompetent because the security deposit for cost in the sum of K5,000.00 was not made “at the time of filing the petition”. Counsel relied on recent judgments by Gavara-Nanu J in Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249 and Mathew Minape v John Rosso & Electoral Commission – EP No. 03 of 2022 (unreported). 

17.	The first respondent supports the second respondent’s submission.

18.	Counsel for the petitioner submits the petition is competent and this ground of objection be dismissed because the K5,000.00 security for cost was paid into the National Court Registrar’s Trust Account on 09 September 2022 and a copy of the bank deposit form and receipt were presented to the Registrar of the National Court at the time of filing the petition 3 days later. This payment is acknowledged and received by the National Court Registrar at the time of filing the petition on 12 September 2022 as evidenced by the document entitled “NOTICE OF PAYMENT OF SECURITY DEPOSIT” signed by the Registrar dated 13 September 2022 (court document # 04) which attached a stamped copy of the Bank South Pacific, Waigani Drive Branch, bank deposit transaction forms and receipt dated 09 September 2022.
The petitioner relies on the judgment of Makail J in Robert Sandan Ganim v Lino Tom Moses (2018) N7233.

19.	In this case, the evidence is not disputed. On 09 September 2022 the petitioner made a deposit transaction with Bank South Pacific, Waigani Branch, Port Moresby, National Capital District (BSP) in the sum of K5,000.00 in cash into the “National Court Registries” account number 1000583618. The petition in this proceeding was filed on 12 September 2022 and numbered as document number 01. A stamped copy of the BSP deposit form and a computer-generated receipt issued by BSP dated 09/09/22 were presented to the National Court registry on 12 September 2022. This is evidenced by the “NOTICE OF PAYMENT OF SECURITY DEPOSIT” signed by or on behalf of the Registrar dated 13 September 2022. This notice by the Registrar states that a copy of the stamped BSP deposit form and receipt were presented to the Registrar on 12 September 2022 being “the date when the Petition was filed.”

20.	The evidence in this case demonstrates clearly that the bank deposit transaction of K5,000.00 was made on 09 September 2022. The deposit was made into an account that purports to belong to the Registrar of the National Court. Although there is no evidence of the correct account name and number there is no evidence otherwise and the respondents have not disputed the account name and number. The Registrar also appears to accept the stamped bank deposit form and receipt at the time of filing the petition. I therefore accept that the deposit was made into the correct nominated bank account, namely, “National Court Registrar’s Trust Account”, as directed by Rule 7 of the Election Petition (Miscellaneous Amendments) Rules 2022 (EPR).

21.	The issue, in my view, is whether the production or presentation to the Registrar of a copy of the stamped BSP deposit form and receipt at the time of filing the petition on 12 September 2022 constitute a “deposit” within the meaning of s. 209 of the Organic Law.

22.	To determine the issue, it is necessary to ascertain the meaning of “deposit”. The Organic Law provides no definition or meaning of the word “deposit”. The word “deposit” has been used in other provisions under the Organic Law. There are two other provisions where the word is used. The word is used under s. 264(2) and s.287(4), relating to Local-level Government elections under Part XIX of the Organic Law. I set out these provisions in their entirety:

“264.	Names on Roll may be objected to.
(1)	A name on a Roll may be objected to by objection in writing lodged with or made by the Returning Officer.
(2)	A sum of K4.00 shall be deposited in respect of each objection lodged by a person other than an electoral officer, to be forfeited to Papua New Guinea if the objection is held by the Returning Officer to be frivolous.

287.	Disputed elections and returns.
(1)	Subject to this section, the provisions of Part XVIII of this Law, other than Sections 208(e), 209, 210, 212(2), and 213, shall apply as the provisions of this law relating to disputed Local-level Government elections and returns.
(2)	References in Part XVIII to—
(a)	"Clerk of Parliament" shall be read as to "clerk of the Local-level Government"; and
(b)	"electorate" shall be read as to a "ward"; and
(c)	"member" shall be read as to "member of the Local-level Government"; and
(d)	'National Court" shall be read as to "District Court"; and
(e)	"Registrar of National Court" shall be read as to "Clerk of the District Court"; and
(f)	"Speaker" shall be read as to "head of the Local-level Government.
(3)	A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local-level Government in respect of which the election was held.
(4)	At the time of filing the petition the petitioner shall deposit with the Clerk of the District Court the sum of K50.00 as security for costs.
(5)	Proceedings shall not be heard on a petition unless the requirements of Subsections (3) and (4) and Section 208(a) to (d) inclusive are complied with.”

23.	By virtue of Schedule 1.2 the Constitution an Organic Law is a constitutional law and Schedule 1.5 of the Constitution directs that a constitutional law must be read as a whole and all words, expressions or propositions in a constitutional law be given their fair and liberal meaning. 

24.	The Oxford Advanced Learners Dictionary provide various meaning of the word “deposit”. However, the dictionary gives the general meaning to the word “deposit” as to pay a sum of money into a bank account for a purpose. 

25.	Reading of s. 209 as a whole I consider that a fair and liberal meaning of the word “deposit” to mean paying to the Registrar of the National Court the sum of K5,000.00 as security for cost. The provision, that is, s. 209 of the Organic Law, therefore require that a payment in the sum of K5,000.00 must be made to the Registrar of the National Court “At the time of filing the petition”. 

26.	The phrase “at the time of filing the petition” has been subject of judicial consideration. There appears to be differing views as to the interpretation and application of the phrase. One view is led by the decision of Makail J in Robert Ganim v Lino Tom (supra) and the other is by the Supreme Court in Kuberi Epi v Tony Farapo & Electoral Commission (1983) SC247.

27.	In Robert Ganim v Lino Tom (supra), objection to competency of a petition was taken on the ground that security deposit of K5,000.00 was not paid “at the time of filing the petition”. The facts are that the petitioner paid a sum of K5,000.00 into the National Court Registrar’s Trust Account a day prior to the filing of the petition. The petition was filed on 05 September 2017. At the time of filing the petition, the petitioner tendered a BSP Bank deposit slip as evidence of payment of the security deposit. The National Court held that the presentation of bank deposit slip in the sum of K5,000.00 was [at 27] “proper and compliant of Section 209 of the Organic Law”. In reaching that conclusion the Court said s. 209 does not prescribe the form and method of payment of the security deposit, however, these are provided by Rule 7 of the EPR. The Court held [at 25] that evidence of payment of security for cost “may be made prior to or on the date of filing of the petition” but [at 26] not after the filing of the petition. In deciding the issue, the National Court distinguished the facts in that case from the facts in the earlier Supreme Court decision in Kuberi Epi v Tony Farapo (supra).

28.	A similar decision by Makail J can be found in Patrick Leslie v Christopher Kena (2015) N6073. In that case, the petitioner delivered the security deposit of K2,000.00 in cash to Buka National Court registry at the time of filing his petition. The Assistant Registrar advised the petitioner to retain the security deposit amount until certain issues are sorted out. Upon resolving the issues, the Assistant Registrar advised the petitioner to pay the security deposit which the petitioner forthwith paid. It was paid after the date of filing the petition. The Court held that the delay in payment of the security for cost is not the fault of the petitioner and he should not be held responsible for the non-compliance with the statutory requirement. It should be noted that the decision is based on Bougainville Elections Act, 2007, which has equivalent provisions to the Organic Law.

29.	In Fidelis Semoso v Cosmas Sohia (2016) SC1507 the Supreme Court upheld a similar decision of Makail J under the Bougainville Elections Act, 2007. In that case the petitioner attended the National Court Registry in Buka on 29 June 2015 to file a petition. He was advised by the Assistant Registrar, subject to confirmation, to pay K2,000.00 as security for cost into the Registrar’s Trust Account at the Bank South Pacific Ltd, Buka Branch and also pay K500.00 as filing fee at the Autonomous Bougainville Government Finance Office. On 02 July 2015 the Assistant Registrar telephoned the petitioner to confirm the payment of the security deposit and the filing fee. The petitioner attended the National Court Registry on the same day (02/07/2015) and presented a BSP bank receipt dated 02 July 2015 for payment of K2,000.00 and official Autonomous Bougainville Government Finance Office receipt dated 02 July 2015. The filing fee receipt was amended by someone by changing the date to 29 June 2015 which was the date for filing of the petition. 

30.	In Kuberi Epi v Tony Farapo (supra) the deadline for filing of a petition fell on 28 August 1982. In the morning of 27 August 1982 the lawyer for the petitioner attended the National Court Registry and presented 3 petitions and a post-dated cheque of K814.00. The cheque represented payment for the filing fee for 4 petitions; 3 of the petitions were delivered at the same time in the morning whilst the fourth petition was delivered by the petitioner in person in the afternoon on 27 August 1982. The filing fee for each petition was K200.00. Each receipt was dated 27 August 1982 and each petition was noted as filed on 27 August 1982. On 30 August 1982 the petitioner was advised by the registry officers to present a fresh cheque of K200.00 for each petition due to statutory (the Trustee Act and the Public Finance Act) and banking requirements. The fresh separate cheques covering the four lots of security deposit and the four lots of filing fees were handed to the registry official on the 06 September 1982. The replacement cheques were not banked until 09 September 1982. The last day or deadline for the filing of the petition was 28 August 1982. The original cheque of K814.00 delivered to the court registry on the 27 August 1982 was in fact postdated to the 28 August 1982 — that is the last day upon which the petition and deposit could be received under s. 208(d) and s.209 of the Organic Law. The matter went before the Supreme Court by way of a reference on the question:

"Does the deposit of a cheque (not being a bank cheque) with the Registrar covering the amount of K200, constitute a valid deposit within the terms of s.209 of the Organic Law on National Elections?"

31.	In discussing the meaning and effect of s. 209 of the Organic Law the Supreme Court by majority said:

“Whilst the Court must strive to avoid sophistry, the act of filing petition and lodging deposit must be part of one act, an act of filing which is manifestly one and the same, not two separate and distinct acts requiring two separate and distinct visits to the Registry, one with the cheque and and another with the petition. The confusion which can arise from such double acts is indeed exemplified in the present case where three receipts were issued when the cheque was originally paid in and the fourth was obviously written out at some subsequent stage and as a result was given a completely erroneous date which caused considerable trouble at the start of proceedings. The Act and the section concerned herewith attempt to lay down a simple straightforward clear-cut method of procedure with a view to avoiding as much as is humanly possible the proliferation of error. The language is clear an unambiguous. "At the time of filing" means what it says — neither more nor less, and it behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.” [Emphasis added]

32.	The ratio decidendi in Kuberi Epi v Tony Farapo (supra) was adopted and applied in Paru Aihi v Peter Namea Isoaimo (2015) SC1598. In that case a petition was dismissed on the basis of s. 210 of the Organic Law because of non-compliance with the requirement of s. 209 of the Organic Law. The facts were that on 18 March 2014 the petitioner paid the filing fee and K5,000 security deposit at BMS Waigani and was issued receipts for those payments. Two days later, on 20 March 2014, he presented at the National Court Registry in Waigani his petition together with the BMS receipts for the filing fee and security deposit payment. [It should be noted that in the judgment the month was incorrectly referred to as May 2014]. He was advised by the registry officer that the security deposit had been wrongly paid as the payment should be made to the National Court Registrar’s Trust Account at the Bank of South Pacific. He was then advised that the petition would be kept at the registry until he made the correct payment. By then the banking hours had closed and so the petitioner paid the security deposit the next day (21 March 2014) and took the bank deposit slip to the registry and presented it over to the registry officer. The endorsements on the court file showed that the petition was filed on 20 March 2014; the receipt for the filing fee was filed on 20 March 2014; the receipt for the security deposit was filed on 21 March 2014; and the date of filing endorsed on the petition was 20 March 2014. On review, the Supreme Court dismissed the review and upheld the decision of the National Court. In discussing the matter, the following pertinent statements [at 22 – 26] were made by the Court:

“22.	It is long held that the mandatory requirements of the Organic Law and the rules of Court that make provision for filing a petition must be complied with and complied with strictly. In the case before us, the filing in the case at hand failed to comply with those mandatory requirements in several respects. Firstly, the Petitioner visited the Court registry on two different days 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 document at the registry constitutes the act of filing. 
 
23.	Secondly, the petition is filed at a registry, as in this case, the deposit is paid in the prescribe form of payment at that registry, that is, “in cash or bank cheque”.  The payment must not be made in any other way at any other place and any other time. Payment of the security deposit in the Registrar’s Trust Account prescribed by   r 5(3) applies only to a situation where the petition is filed at a place other than at a registry. Court registry staff and petitioners should not get confused with these two distinct methods of filing a petition and payment of the security deposit. Petitioners should, when they present the petition at the court registry for filing, deliver the “cash or bank cheque” to the court staff at the registry.  If the staff were to insist on the payments being made in the Registrar’s Trust Account at the Bank where it is operated, the petitioner should resist the advice or instruction form the court staff. If the court staff become stubborn and persist with their instruction, the petitioner should seek direction from the Registrar or a Judge to review that instruction. Upon delivery of the petition and the security deposit (and receipt for the filing fee), the act of filing the petition is complete there and then.
 
24.	The onus of ensuring that the requirements of the rules are adhered to strictly in filing the petition primarily rests with the petitioner.  Petitioners should be made to take full responsibility for any administrative error made by court staff occasioned by the petitioner’s own lack of compliance with the rules of court pertaining to filing a petition in the first place. 

25.	In the case at hand, the petitioner mistakenly lodged the petition at the registry without the cash or bank cheque for the security deposit. He had paid the security deposit to the wrong person, at the wrong time, at the wrong place. He should have recalled the document and returned to the registry the next day and lodged the petition with the security deposit in cash or bank cheque. 

26.	Thirdly, on the next day, the payment for security deposit was wrongly paid to the registrar’s trust account. This sounds superfluous and gratuitous, many would argue, because after all, the payment ends up with the same person, through the same account and serves the same purpose. However there is an important purpose to be served by insistence on strict obedience to these rules found in r 5. That is, to achieve administrative efficacy in the court’s management of this litigation regime that historically has proven to be arduous for the courts.” [Emphasis added]

33.	The National Court per Gavara-Nanu J in Moses Manwau v Allan Bird (supra) applied the principles of law propagated in Delba Biri v Bill Ninkama [1982] PNGLR 342 and followed and applied in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 where the Courts have consistently emphasized the need for strict compliance with the mandatory requirements of ss. 208 and 209 of the Organic Law. In that case a petition was filed on 07 September 2022, however, the payment of security for cost was made the following day (08 September 2022).

34.	In deliberating on the issue whether requirement of s. 209 of the Organic Law was complied with the Court discussed the meaning of the phrase “at the time of filing the petition” used in that provision. The Court said:

“The operative words in s. 209 are “at the time of filing the petition”, (the petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for cost. These words are critical and determinative, they are crystal clear in their meaning and leaving no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for cost in the sum of K5,000.00 had to be paid in full on 7th September, 2022, when the petition was filed with the Registrar of the National Court. To give any other meaning to the words would not only result in this Court striking down the mandatory constitutional law, but it would also give rise to srious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.”

36.	The Court further went on to say that:

“It is therefore a fundamental requirement under ss. 209 and 210 that the prescribed K5,000.00 security for cost is paid in full at the time of filing a petition with the Registrar of the National Court. It follows that the security for cost cannot be paid at any other time, viz; either before or after a petition is filed with the Registrar of the National Court. This is made clear by the mandatory terms of s. 210, which is, if the requirements of s. 209  are not complied with strictly, the Court will as I alluded to above lack jurisdiction to hear and determine the petition.” [Emphasis added]

37.	It appears that the Court in Moses Manwau v Allan Bird (supra) did not consider the decisions of the Courts in Robert Ganim v Lino Tom (supra); Patrick Leslie v Christopher Kena (supra) and Fidelis Semoso v Cosmas Sohia (supra). Be that as it may, by virtue of Schedule 2.9(1) of the Constitution, this Court is bound by the preponderance of the Supreme Court authorities such as Delba Biri v Bill Ninkama (supra); Paru Aihi v Sir Moi Avei (No. 2) (supra); Ginson Goheyu Saonu v Bob Dadae (supra) and Jimson Sauk v. Don Pomb Polye & Electoral Commission (supra). In that regard I agree with Gavara-Nanu J in Moses Manwau v Allan Bird (supra) that on a proper construction of the meaning and effect of s. 209 security deposit must be made by cash or bank cheque to the Registrar of the National Court at the time of filing the petition. The payment cannot be made prior to or after the filing of the petition. The principle is also clearly stated by the Supreme Court in Paru Aihi v Peter Namea Isoaimo (supra).

38.	These case authorities and in particular the Supreme Court in Paru Aihi v Peter Namea Isoaimo (supra) essentially say that the K5,000.00 security deposit must be made at the time of filing a petition at the registry of the National Court. In this case the K5,000.00 security deposit was made on 09 September 2022, 3 days prior to the filing of the petition. It was not made at the time of filing of the petition. Although a stamped bank slip form and computer-generated receipt dated 09 September 2022 issued by the bank was presented together with the petition on 12 September 2022, with respect, in my view, that does not comply with the mandatory requirement of s. 209 because a receipt is merely documentary evidence of payment. It is not payment per se. The actual payment was made on 09 September 2022. 

39.	Rule 7 of the EPR does not state that the payment of the security for cost may be paid prior to filing of the petition. The Rule stipulates as follows:

“7.	Security for costs
The security deposit required by section 209 of the Organic Law shall be paid in cash or by bank cheque into the National Court Registrar’s Trust Account at the appropriate bank and evidence of the deposit shall be filed with the petition.”

40.	Rule 7, in my view, is consistent with the mandatory terms of s. 209 and the case authorities mentioned earlier. It simply says that evidence of payment of security for cost must be filed with the petition. 

41.	Therefore, in this case, the petitioner should have paid the security for cost on 12 September 2022 and tender or file evidence of payment at the time of filing the petition on 12 September 2022. It follows that the requirements of s. 209 was breached, and hence, not complied with. Consequently, by virtue of s. 210, I find that the petition is incompetent to proceed to a hearing.

40.	That being the case, in my view, it would be a futile exercise to consider other grounds of objection raised by the first and second respondents. 

41.	The following orders are therefore made:

1.	The objection to competency under s. 209 of the Organic Law is upheld.

2.	The petition is dismissed in its entirety pursuant to s. 210 of the Organic Law.

3.	The petitioner’s security for cost deposit in the sum of K5,000.00 paid into the National Court Registrar’s Trust Account No. 1000583618 is to be paid to the first and second respondents in equal amounts.

4.	The petitioner is to pay the first and second respondents’ cost of and incidental to the proceeding on party-party basis under Schedule 3 of the EPR, to be taxed, if not agreed.

5.	The Registrar of the National Court shall forthwith take appropriate steps to comply with and give effect to the requirement of s. 221 of the Organic Law.

6.	The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.
 
__________________________________________________________________
Nelson Lawyers: Lawyers for the Petitioner
Tangua Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent