Baliawe v Kaupa [2023] PGNC 253; N10357 (22 June 2023)

N10357

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 85 OF 2022 (IECMS)

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

AND:
IN THE MATTER OF A DISPUTED RETURNS FOR THE PORT MORESBY NORTH-EAST OPEN ELECTORATE

BETWEEN:
ANDAPANGA ALFRED NELSON BALIAWE
Petitioner

AND:
HONOURABLE JOHN KAUPA, MP
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kassman J
2023: 8^th, 20^th and 22^nd June

ELECTIONS – objection to competency of petition – signing, witnessing and filing of petition – filing of notices of payment of filing fee and security deposit – Organic Law on National and Local-Level Government Elections section 208(c)(d) and (e) – Election Petition Rules 2022 rules 1, 5, 6 and 7.

The Petition was filed on 15 September 2022 and Notice of Payment of the Filing Fee receipt and the Notice of Payment of the Security Deposit Fee were registered as filed in the court file in the National Court Registry on 20 September 2023.

Held:

1. The Petition must always be signed and witnessed when the Petition is filed.
2. The Petition, Notice of Payment of the Filing Fee Receipt and the Notice of Payment of the Security Deposit Fee must always be filed together on the same day and not separately or on different days.
3. The Petition was filed on 15 September 2023
4. Notice of Payment of the Filing Fee Receipt and the Notice of Payment of the Security Deposit Fee were filed on 20 September 2022.
5. The Petition is dismissed for being incompetent.
   

Cases Cited:

Biri v Ninkama [1982] PNGLR 341
Epi v Farapo [1983] SC247
Aihi v Isoaimo [2015] SC1598
Wesley Raminai v Maino Pano & Electoral Commission N10248
Sai-Sail Beseoh -v- Yuntivi Bao & The Electoral Commission (2003) N2348
Johnson Tuke -v- William Hagahuno and the Electoral Commission (2023) N10322
EP 85 of 22 Robert Sandan Ganim -v- Dr. Lino Tom Moses and the Electoral Commission of Papua New Guinea (2018) N2733
Jean Eparo Parkop -v- Gary Juffa & Electoral Commission of Papua New Guinea (2023) N10281

Legislation Cited:

Constitution ss 9, 10, 11, 184, Schedule 2.9(1)
Organic Law on National & Local-level Government Elections s. 139, 175(1)(a), 208(a), 209, 210, 212(2).
Election Petition (Miscellaneous Amendments) Rules 2022 s. 5, 6, 7, 21

Counsel:

B. Lai, for the Petitioner
P. Mawa, for the First Respondent
A. Serowa, for the Second Respondent

DECISION
OBJECTIONS TO COMPETENCY OF THE PETITION

22^nd June, 2023

1. KASSMAN J: This is the court’s ruling on two objections to the competency of the Petition by Andapanga Alfred Nelson Baliawe which was apparently filed on 13 September 2022. The “filing” of the petition is a ground of objection which will be addressed below.
   

Abbreviation

2. In this decision, for convenience, the following abbreviations are applied. The Organic Law on National & Local-level Government Elections is referred to as “the Organic Law”, the Election Petition (Miscellaneous Amendments) Rules 2022 is referred to as “the EP Rules”, The Electoral Commission of Papua New Guinea is referred to as “the EC”, John Kaupa is referred to as “Kaupa”, Andapanga Alfred Nelson Baliawe is referred to as “Baliawe”, Diane Unagi Koiam is referred to as “Koiam” and Peter Dominic is referred to as “Dominic”.
   

Introduction

3. The Papua New Guinea National General Elections to the National Parliament was held in the year 2022 with the issue of writs by the Governor-General for all seats in the National Parliament including the Moresby North-East Open Electorate situated in the National Capital District. A total of 77 candidates nominated and stood in the Moresby North-East Open Electorate. Among the candidates were Kaupa, Baliawe, Koiam and Dominic. Kaupa was declared Member Elect on 12 August 2022, having polled 18,365 votes which exceeded the “absolute majority” of votes of 18,034 votes. Baliawe was the first runner-up having polled 17,508 votes.
   
4. Baliawe, Koiam and Dominic who were the first, second and third runners-up respectively have each filed petitions challenging the election and declaration of Kaupa as the winner of the election. Baliawe’s petition is EP 85 of 2022, Dominic’s petition is EP 88 of 2022 and Koiam’s petition is EP 90 of 2022. Koiam’s petition was dismissed on 14 June 2023 for being incompetent on the court finding Koiam’s petition was filed out of time on 23 September 2022 when the 40^th day for filing of petitions expired at midnight on 21 September 2023. Kaupa was declared Member Elect on 12 August 2022 and 40 days from that date fell on 21 September 2022.
   

Baliawe’s Petition

5. Briefly, Baliawe alleges the EC committed errors and omissions at polling and at the counting of votes which affected or are likely to have affected the outcome of the election.
   

Notices of Objection to Competency

6. The EC’s two earlier Notices of Objection filed on 10 October 2022 and 19 October 2022 were superseded by the EC’s third Notice of Objection filed with leave on 28 February 2023. Kaupa filed Notice of Objection on 13 December 2022. There was no preliminary issued raised by Baliawe questioning the filing of both objections or questioning the court’s jurisdiction to hear and determine the objections. Many documents were relied on at the hearing of both objections.
   
7. The first category are the Petition filed 13 September 2022 [document number 1], the IECMS Petition Attachment 2 Notice of Payment of Filing Fee 20 September 2022 [document number 2], the IECMS Petition Attachment 3 Notice of Payment of Security Deposit 20 September 2022 [document number 3], the Notice of Petition filed 20 September 2022. Petitioner’s case outline filed 6 June 2023 [document number 88]. The second category are the notices of objection being the EC’s Notice of Objection to Competency filed 28 February 2023 [document number 56] and Kaupa’s Notice of Objection to Competency filed 13 December 2022 [document number 31]. The third category are the submissions of the parties being the EC’s Submissions on Objection to Competency (handed up in court) by Mr Serowa (which supersedes) submissions filed 06 June 2023 [document number 86]. Kaupa’s Submission on Objection to Competency filed 6 June 2023 [document number 84] and Andapanga’s Submission on Objection to Competency filed 6 June 2023 [document number 84]. The fourth category is the affidavit relied on or referred to by the parties on the objections being the Affidavit of Andapanga Alfred Nelson Baliawe filed 29 May 2023 [document number 78]. The fifth category are other documents relied on and referred to by the parties being Kaupa’s case authorities (volumes 1 & 2) handed up in court by Mr Mawa on 8 June 2023 and Andapanga’s list of case authorities filed 6 June 2023 [document number 87]. The sixth category are the court’s Chamber Direction issued 17 June 2023 and submissions of all three parties dated 19 June 2023.
   

Grounds of objection to competency

8. In addition to the grounds of objection to the competency of the petition raised by Kaupa and the EC, the court also raised queries by a Chamber Direction dated 17 June 2023 which were addressed by the parties on 20 June 2023.
   
9. The grounds of objections raised are common to both Kaupa and the EC and each counsel for the three parties addressed the grounds of objection together. I will address the grounds of objection together and in this order.
   
   1. The first challenge is that when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner. In his affidavit sworn and filed 29 May 2023, the Petitioner states he signed the Petition on 15 September 2022.
      
   2. The second challenge is that when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner and/or the Petitioner’s signing of the Petition was not attested to by the two attesting witnesses on 13 September 2022. In his affidavit sworn and filed 29 May 2023, the Petitioner states he signed the Petition on 15 September 2022 and his signing of the Petition was attested to by the two attesting witnesses who also signed the Petition on 15 September 2022.
      
   100. The third challenge is that the receipt for the payment of the security deposit of K5,000 was not filed in the court registry on the same day the petition was filed (whether 13 September 2022 or 15 September 2022) but was filed on 20 September 2022, either 7 or 5 days after the date the petition was filed and that contravened the mandatory requirements of section 209 of the Organic Law and Rules 5 and 7 of the EP Rules. This ground was not raised by Kaupa and the EC in their respective Notices of Objection to Competency or during oral submission on 8^th June 2023 but was raised by the court (after the hearing on 8 June 2022) by a Chamber Direction issued on 17 June 2023.
        
   4. The fourth challenge is that the receipt for payment of the filing fee of K1,000 was not filed in the court registry on the same day the petition was filed (whether 13 September 2022 or 15 September 2022) but was filed on 20 September 2022, either 7 or 5 days after the date the petition was filed and that contravened the mandatory requirements of section 209 of the Organic Law and Rules 5 and 7 of the EP Rules. This ground was not raised by Kaupa and the EC in their respective Notices of Objection to Competency or during oral submission on 8^th June 2023 but was raised by the court (after the hearing on 8 June 2022) by a Chamber Direction issued on 17 June 2023.
      
   5. Other challenges to the competency of the petition are that the petition failed to plead or set out the facts relied on to invalidate the election or return and contravened the mandatory requirements of Section 208(a) of the Organic Law. Detailed grounds were raised separately by Kaupa and the EC.
      
   6. The final challenge to the competency of the petition is that the relief sought in the petition are not pleaded with clarity when considered with the facts pleaded in the petition and that the relief sought in the petition contradict and conflict with each other.
      

The court’s power and duty – competency of the petition

10. By section 210 of the Organic Law, “proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with.” That is the constitutional basis that not only empowers this court and but also directs this court to ensure the contents of the petition and the filing of the petition meet the mandatory requisites of sections 208 and 209 of the Organic Law before the court proceeds to the hearing of evidence on the petition.
    
11. The Supreme Court in Biri v Ninkama [1982] PNGLR 341 said “...The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on national Elections it is a constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with...”
    

The law – Constitution, Organic Laws and Rules of the Courts

12. The Constitution section 9 describes the laws of Papua New Guinea and provides in section 10 the Constitution takes precedence before Organic Laws and all other subordinate laws such as Acts of Parliament and subordinate legislation follow. Section 11 provides the Constitution and Organic Laws are the “Supreme Law of Papua New Guinea” and “all acts (whether legislative, executive or judicial) that are inconsistent with them are, to that extent of the inconsistency, invalid and ineffective.” Section 184(1) provides “The Judges of the Supreme Court and the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or the National Court, as the case may be.” Section 212(2) of the Organic Law provides “The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this part.”
    
13. The relevant and critical law are found in the Organic Law and the EP Rules. There are no Practice Directions issued by the Registrar pursuant to Rule 21 of the EP Rules on election petition matters in the National Court to complement the Rules “to clarify the procedure and application or to otherwise explain or regulate any matter concerning the Rules.”
    

The law - Contents of petition, fees payable and filing of petition

14. In the Organic Law, Section 208 is titled “Requisites of petition” and provides “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).”
    
15. In the Organic Law, Section 209 is titled “Deposit as security for costs” and provides “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.”
    
16. I consider the following rules of court are relevant to the issues raised in the grounds of objection which I recite in full. By the EP Rules:
    
    1. Rule 1 is titled “Definitions” where the word “filed” is defined to mean “lodged in the 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.”
       
    2. Rule 5 is titled “Filing” and provides “A petition shall be filed with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.”
    100. Rule 6 is titled “Filing fees” and provides “(1) The filing fee for an election petition shall be K1,000; (2) The fee shall be paid at a provincial finance office and the official receipt of the payment shall be filed in the Registry with the petition in accordance with Rule 5.”
         
    4. Rule 7 is titled “Security for costs” and provides “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.”
       

The “filing” of the Petition

17. I deal firstly with grounds of objection that go to the “filing” of the petition because the filing gives life to the petition which then enables or invites any challenge to the filing. I will then deal with the grounds of objection that go to the contents of the petition. The validity of the “filing” of the petition is challenged in several respects.
    

Different dates - Petition “signed”, “attested” and “filed” in court

18. The first challenge claims that when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner. In his sworn affidavit, Baliawe states he signed the Petition on 15 September 2022. The second challenge claims when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner and/or the Petitioner’s signing of the Petition was not attested to by the two attesting witnesses on 13 September 2022. In his sworn affidavit, Baliawe states he signed the Petition on 15 September 2022 and his signing of the Petition was attested to by the two attesting witnesses who also signed the Petition on 15 September 2022. For these two challenges, I have perused two documents.
    
19. I refer firstly to the Petition. I note the cover page of the petition is marked as being dated 15 September 2022 and as being filed on 13 September 2022. I also note on the cover page the rectangular court stamp has hand-written “13.09.22” and that indicates the petition was filed on 13 September 2022. I then note page 15 has the signature of Baliawe and below that it states, “Date of signing:” and handwritten is “15^th/09/2022”. On page 15 of the petition at the bottom under the heading “First Attesting Witness” is a signature apparently of Haguai Alibu with the date handwritten “15^th/09/2022”. On the next page numbered 16 of the petition at the top under the heading “Second Attesting Witness” is a signature apparently of Robert Palana with the date handwritten “15^th/09/22”. My observation of the cover sheet to the petition tells me the petition was filed on 13 September 2022. My observations of pages 15 and 16 of the petition tell me the Petition was signed by Baliawe and his two attesting witnesses on 15 September 2022.
    
20. The second document is the affidavit of Baliawe sworn and filed 29 May 2023 [document number 78] and I set out in full the contents “1. Except where stated to be on information of belief I have personal knowledge of the facts deposed to in this Affidavit and I believe such facts to be true in every particular. 2. I am the Petitioner in these proceedings as such I am duly authorized to depose to the statements as contained in this my Affidavit explaining the confusion as to the filing date of the petition being 13^th September, 2022 and not 15^th September, 2022. 3. The copy of the petition was signed by me and the two (2) attesting witnesses on 15^th September, 2022 and lodged over the counter at the National Court House at Waigani. The signed copy of the petition dated and lodged on 15^th September, 2022 was an amendment to an earlier copy lodged by my lawyer on IECMS. 4. The date of filing being 13^th September, 2022 as shown on the petition was done by the Registry clerks and not me or my lawyer. I lodged my signed petition along with my two (2) attesting witnesses on 15^th September, 2022. The filing date is an error on the part of the Registry clerks and not me. 5. I have complied with the requirements of the Organic Law and paid the security deposit of K5,000.00 into the Registrar’s Trust Account within time. I have also signed and lodged my petition within time. The National Court filing fee of K1,000.00 was also paid in time. 6. The First Respondent was declared on 12^th August 2022 as such the 40 days to file the petition expired on 21^st September, 2022. The copy of the receipts for payment of the filing fee and security deposit was lodged on 13^th September, 2022 by my lawyer on the IECMS. The finalized copy of the signed petition that I wished to rely on to pursue in these proceedings was lodged for filing on 15^th September, 2022. 7. The Court Registry clerks have made the error in filing the petition on 13^th September, 2022. The signed petition was filed by me on 15^th September, 2022.”
    
21. Baliawe swears the petition was signed by him and his two attesting witnesses on 15 September 2022, the same day the petition was lodged at the counter at the National Court Registry. He swears that the signed petition was lodged to replace the petition that was uploaded to IECMS by his lawyer on 13 September 2022. Baliawe did not annex to his affidavit a copy of the petition uploaded to IECMS by his lawyer on 13 September 2022. Baliawe also avoids explaining if the petition uploaded by his lawyer to IECMS was in fact signed by him and his two attesting witnesses. If there was an affidavit sworn by Baliawe’s lawyer addressing these issues, that would have provided clarity but that was not done.
    
22. Kaupa and the EC failed to file any sworn affidavit addressing these issues, particularly to support their contentions the petition uploaded to IECMS on 13 September 2022 by or on behalf of Baliawe was not signed by Baliawe and whether the two attesting witnesses signed that petition or not. To my surprise, the issue was put to rest by counsel for Baliawe who states in paragraph B2 in his submission filed 19 June 2023 that the petition lodged or uploaded to IECMS on 13 September 2022 was not signed by Baliawe. That admission results in the conclusion that there was no petition filed on 13 September 2022 and I make a finding accordingly.
    
23. Baliawe had until 21 September 2022 to file his petition. I am prepared to accept his uncontested evidence that he signed his petition on 15 September 2022, his two attesting witnesses personally witnessed his signing of the petition on 15 September 2022, the two attesting witnesses both signed the petition on 15 September 2022 and the petition was filed in the National Court Registry on 15 September 2022. Further, the petition was physically lodged in the registry and sealed with the seal of the National Court and endorsed with an election petition number on 15 September 2022 in compliance with Rule 1 of the EP Rules. For those reasons, I dismiss the first and second challenges or grounds of the objections to competency.
    

The filing of the “Notice of Payment of Filing Fee” and the filing of the “Notice of Payment of Security Deposit” on dates before and/or after the filing of the petition.

24. The third challenge or ground of objection to the competency of the petition concerns the date of the “filing” of the receipt or deposit slip as evidence of payment of the filing fee of K1,000.
    
25. The fourth challenge or ground of objection to the competency of the petition concerns the date of the “filing” of the receipt or deposit slip as evidence of payment of the security deposit of K5,000.
    
26. In Baliawe’s affidavit sworn and filed on 29 May 2023 which I referred to above, Baliawe said in paragraph 6 of his affidavit “6. ... The copy of the receipts for payment of the filing fee and security deposit was lodged on 13^th September, 2022 by my lawyer on IECMS. The finalized copy of the signed petition that I wished to rely on to pursue in these proceedings was lodged for filing on 15^th September, 2022.” Baliawe’s sworn evidence is that those payment receipts were filed in the National Court Registry on 13 September 2022. But that is not consistent with the records on the court file. I have looked at two documents from the court file.
    
27. The first document was the IECMS form entitled “Attachment 2 Notice of Payment of Filing Fee” which is dated “200922” which I understand to mean 20 September 2022. That document is also marked with the court stamp as “Dated, 20.09.22” and was marked as Document number 2. The filing fee receipt confirms the sum of K1,000 was paid by Baliawe at Vulupindi Haus on 12 September 2022 and that is verified by the Notice signed by Baka Bina who certifies “the copy of the receipt was presented to me on the 13^th September 2022”. However, that receipt was attached to the Notice and lodged or filed in the Registry on 20 September 2022.
    
28. The second document was the IECMS form entitled “Attachment 3 Notice of Payment of Security Deposit” which was dated “20922” which I understand to mean 20 September 2022. That document is also marked with the court stamp as “Dated 20.09.22” and was marked as Document number 3. The security deposit receipt attached to the Notice is a computer-generated receipt issued by Kina Bank confirming the sum of K5,000 was paid to the National Court Registrar’s Trust Account at BSP on 12 September 2022 and that is verified by the Notice signed by Baka Bina who certifies “the copy of the receipt was presented to me on the 13^th September 2022”. However, I note that receipt was attached to the Notice and lodged or filed in the Registry on 20 September 2022.
    
29. Those court records and details tell me that the Notice of Payment of the Filing Fee and the Notice of Payment of the Security Deposit were formally filed in the National Court Registry on 20 September 2022.
    

Deputy Registrar, National Court Mr Baka Bina

30. The Deputy Registrar National Court Mr Baka Bina was invited by the court at the request of counsel for Baliawe to address any questions by the court and the parties arising from the court’s Chamber Direction of 17 June 2023. He was duly sworn in. In evidence, Mr Bina said essentially the new IECMS system was introduced to facilitate swift filing and processing of court documents at any time 24 hours or, in other words, during and outside of business hours and the registry is doing its best to achieve the desired objectives but that is always subject to the usual risks or challenges in doing business in PNG with frequent electricity outages, frequent internet outages and the court computer system failures sometimes for hours or a day or more. Further, there are system capacity limitations experienced when clients using IECMS want to upload documents with numerous pages or when registry officers are unable to download and open files. Furthermore, I understood Mr Bina to also say the Registry does not have staff working in shifts to cover the entire 24 hours but they do their best to attend to lodgements or uploading on or to IECMS as swiftly as possible.
    
31. Addressing specific questions, Mr Bina was shown the Petition and said the date, 13 September 2022 appearing on the cover page of the Petition is correct as stating the date of filing at that date 13 September 2022. When asked whether the Petition was signed by Baliawe when it was uploaded to IECMS, Mr Bina said he could not answer that question but he could only assume the Petition was duly signed and uploaded. Mr Bina was then shown Baliawe’s affidavit filed 29 May 2023 where Baliawe swears he signed his Petition, and his attesting witnesses likewise signed the Petition on 15 September 2022 and the Petition was filed on 15 September 2022 and Mr Bina correctly answered saying that is a matter for Baliawe and his lawyer. Then to the surprise of the court and all lawyers, Mr Bina then said he had closely examined IECMS records before coming into court to give evidence and he noted the Petition was successfully unzipped and viewed on IECMS in the Registry on 18 September 2022. Mr Bina explained although the Petition was uploaded to IECMS by the Petitioner’s lawyer on 13 September 2022, the Petition could not be opened due to computer system capacity issues. Addressing the dates of filing of the notices of payment of the filing fee and security deposit, Mr Bina said the records can be taken to be accurate as to the actual dates of banking or deposits on 12 September 2022 and the filing of both notices on 20 September 2022.
    
32. Counsel for Kaupa and the EC then argued Baliawe has failed to definitively explain the conflicting dates of filing on 13 September 2022 and 15 September 2022 and now the date stated by Mr Bina 18 September 2022. I maintain my finding that the Petition was signed by Baliawe and his two attesting witnesses on 15 September 2022 and was filed in the Registry on that same date 15 September 2022.
    
33. The question remains was the petition filed within the meaning of the law provided in the Organic Law and the EP Rules. Section 209 of the Organic Law provides “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.” And Rule 5 of the EP Rules provides “A petition shall be filed with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.”
    
34. The Supreme Court in Epi v Farapo [1983] SC247 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 another with the petition... The language is clear and unambiguous. “At the time of filing” means what it says – neither more nor less, and behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.”
    
35. The Supreme Court also said in Aihi v Isoaimo [2015] SC1598:
    

“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 20^th 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”. 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.
    

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.”

36. What is the rationale for the requirement by Parliament that a petitioner must file the petition with the filing fee and security deposit on the same day? I have not had the benefit the hansard or transcript of proceedings of the National Parliament when the Organic Law was discussed or debated and passed or enacted. Apart from the fact the Organic Law is a Constitutional law and a Supreme Law of Papua New Guinea and that its provisions must be strictly observed, interpreted and applied, is there any other reason why the Supreme Court has persistently insisted on strict compliance with the Organic Law and EP Rules?
    
37. With respect, I hold the view, a court must always be able to deal with a proceeding the moment the proceeding is commenced by the filing of the originating process on application by a party or on the court’s own initiative. The court is not expected to check every aspect of the filing process in the registry at every stage of the proceeding. In election petition matters where a declaration of the winner of the election is challenged, a court must be able to deal with an election petition from the moment the petition is filed if a party so wishes. An election petition could be filed the day after the declaration or on the fortieth day following the declaration. In the absence of formal “filing” of the petition, the court of disputed returns will lack jurisdiction. The court must be able to act with certainty the moment the petition is filed. That can only occur where the petition is filed with evidence of payment of the filing fee and security deposit as provided by section 209 of the Organic Law and Rules 1, 5, 6(2) and 7 of the EP Rules. It would be a major embarrassment if the court promptly sits and makes certain preliminary or interim orders and later finds the filing fee and security deposit have not been deposited and banked or funds have not cleared. The court must act and indeed the parties must expect only to appear in duly commenced and formally filed proceedings.
    
38. With respect, I adopt the discussions cited above in the two Supreme Court decisions in Epi v Farapo and Aihi v Isoaimo which I am obliged to follow pursuant to Schedule 2.9(1) of the Constitution which provides “All decisions of law by the Supreme Court are binding on all other courts but not on itself.” Those discussions by the Supreme Court in Epi v Farapo and Aihi v Isoaimo were followed by the National Court on numerous occasions. I refer only to the decision of Injia J, as he then was, in Sai-Sail Beseoh -v- Yuntivi Bao & The Electoral Commission (2003) N2348 and recently by Yagi J in Johnson Tuke -v- William Hagahuno and the Electoral Commission (2023) N10322.
    
39. Baliawe’s lawyer urged me to follow alternative views and approach taken by my colleague judges including Cannings J in Jean Eparo Parkop -v- Gary Juffa & Electoral Commission of Papua New Guinea (2023) N10281 but with respect, I decline to follow for the reasons discussed above and also below.
    
40. Kaupa’s lawyer urged me to follow the approach of Makail J in EP 85 of 22 Robert Sandan Ganim -v- Dr. Lino Tom Moses and the Electoral Commission of Papua New Guinea delivered on 2 May 2018. I recite in full what counsel quoted from His Honour’s judgement and, with respect, I agree that is good law:
    

“23. It should be noted that Section 209 does not prescribe the form or method of payment of a security deposit. It is found in Rule 7 of the National Court Election Petition Rules, 2017. Rule 7 states:

“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.

24. The form or method of payment of security is cash or bank cheque. The cash cheque must be paid to the National Court Registrar’s Trust account at an appropriate bank. Finally, evidence of the deposit shall be filed with the petition.

25. In my view, Rule 7 of the EP Rules complements Section 209 of the Organic Law because it gives details of the form or method of payment, place of payment and delivery of evidence of payment. Reading Section 209 in conjunction with rule 7 and given that payment of security for costs must be made to a nominated bank account, it may be made prior to or on the date of filing of the petition. Secondly, the evidence of payment must be presented with the petition on the date of filing of the petition.
    
26. It would be a case of non-compliance if the security deposit was paid on a date after the filing of the petition or after the 40^th day. Another case is where the evidence of payment of security deposit is not presented with the petition on the date of filing the petition. In these circumstances the Registrar has no discretion to receive the petition for filing. The petition should be rejected.
    
27. In this case, the payment security deposit was made on 4^th September, 2017. The payment was by cash which was one form or method of payment allowed by Rule 7. The case was deposited into the nominated bank account at BSP Bank a day prior to the filing of the petition that is, 4^th September, 2017. The evidence of the payment in the form of a Bank Deposit Slip was tendered at the time of filing of the petition on 5^th September, 2017. This is proper and compliant of section 209 of the Organic Law.”
    
41. Baliawe’s lawyer also submitted that the courts must be guided by section 217 of the Organic Law which provides “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.”. I note the five-man bench of the Supreme Court in William Hagahuno -v- Johnson Tuke & Electoral Commission SC2018 said section 217 applies from the filing of the petition, at the competency stage and at the hearing of the evidence and that was a departure from Belba Biri (supra) which said section 217 only applies after the competency stage and at the hearing of evidence on the petition.
    
42. The view I take is that a Petitioner must file the petition along with evidence of payment of the filing fee and the security deposit. That must occur together at the same time and on the same day. That is strictly required by Section 209 of the Organic Law which is complemented by Rules 1, 5, 6(2) and 7 of the EP Rules. Proof of payment of the filing fee and security deposit is not difficult to organise. That imposition does not create any insurmountable hurdle. It is a requirement of the Organic Law complemented by the EP Rules. An organic law is a supreme law in Papua New Guinea and must be strictly observed, interpreted and applied by a petitioner seeking the intervention of the National Court sitting as the court of disputed returns.
    
43. In summary, I understand the Organic Law and EP Rules provide for the following. Firstly as to the filing of petition, the petition may be filed in person by the petitioner or through a lawyer as provided by section 222 of the Organic Law and “filed” means lodged in the 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 [r.1]. The EP Rules Schedule 1 lists 23 National Court Registries and Sub-Registries in every province in PNG starting (in alphabetical order) with Alotau and ending with Wewak. Rule 5 provides the Petition together with official receipt or stamped bank deposit slip evidence of payment of the filing fee and the security deposit shall be filed together. Petitioners must also observe the National Court Rules Order 2 Rules 5, 10, 11, 12, 15 and 19 particularly rule 11 registry opening hours are 8am to 12noon and 1pm to 3:30pm Business days Monday to Friday.
    
44. Secondly, as to payment of the filing fee, the fee is K1,000 as provided by Rule 6(1) and the petitioner must pay the filing fee at a provincial finance office as provided by Rule 6(2) and the petitioner shall file evidence of payment of the filing fee in the registry with the petition as provided by Rule 6(2).
    
45. Thirdly, as to payment of the security deposit, the fee is K5,000 and that is set by the Organic Law section 209 which also provides the fee must be deposited with the Registrar of the National Court. Rule 7 provides the fee can be paid by cash or bank cheque into the National Court Registrar’s Trust Account at the appropriate bank. By Rule 7, the petitioner shall file evidence of payment of the security deposit with the petition.
    
46. The court must bear in mind when considering the requirements as to the filing of evidence of payment of filing fee and security deposit with the petition that not every provincial or sub-registry is within reasonable distance from a provincial finance office such that payments are best made the day or days before filing of the petition and on filing of the petition, the petitioner also files evidence of payment of the filing fee and security deposit. In this day and age, technology has advanced with internet access embraced by government, business and the general population and that has enabled access to banking by direct online internet transactions such that a petitioner can make instantaneous deposit of the security deposit and payment of the filing fee. The concerns of the past with personal cheques being dishonoured are now over as the National Court and Government Finance Department or offices have embraced the technology that is readily available for all forms of payments for government and court fees. With the advancements in technology, it is not difficult to make online payments of the filing fee and security deposit at 7am and then print the receipts for those payments and then proceed to the National Court Registry and file the Petition on the same day.
    
47. In summary, my findings on the pertinent facts are:
    
    1. The declaration of Kaupa as the member elect was made on 12 August 2022.
    2. The period of 40 days for the filing of a petition to lawfully challenge the election and declaration of Kaupa on 12 August 2022 expired at midnight on 21 September 2022.
    100. Baliawe’s Petition was signed by Baliawe and his two attesting witnesses and was filed in the National Court Registry on 15 September 2022.
    4. Baliawe’s Notice of Payment of the Filing Fee receipt and Baliawe’s Notice of Payment of the Security Deposit Fee were registered as filed on the court file in the National Court Registry on 20 September 2022.
       
48. As a result of my findings on the pertinent facts, I am satisfied the Petition, the Notice of Payment of the Filing Fee receipt and the Notice of Payment of the Security Deposit Fee were not filed together on 15 September 2022 as required by section 209 of the Organic Law and Rules 1, 5, 6(2) and 7 of the EP Rules which are cited and discussed above. The Petition was filed on 15 September 2022 and the Notice of Payment of the Filing Fee receipt, and the Notice of Payment of the Security Deposit Fee were filed on 20 September 2022.
    
49. For the reasons stated above, I dismiss grounds one and two of objections that when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner, and neither was the Petitioner’s signing of the Petition attested to by the two attesting witnesses on 13 September 2022. I find Baliawe signed his petition on 15 September 2022, his two attesting witnesses personally witnessed his signing of the petition on 15 September 2022, the two attesting witnesses both signed the petition on 15 September 2022 and the petition was filed in the National Court Registry on 15 September 2022. It is confirmed this filing of the petition on 15 September 2022 was made within time as time expired on 21 September 2023.
    
50. The third and fourth challenges or grounds of objection to the competency of the petition, I am satisfied that notice of payment of the filing fee and the notice of the payment of the security deposit were filed on 20 September 2022 which was five days after the filing of the petition on 15 September 2022.
    
51. The determination of the third and fourth grounds of the objections to competency of the petition renders it unnecessary to consider the remaining grounds of the objections. I uphold the third and fourth grounds of objections to the competency of the Petition.
    
52. I dismiss the petition for being incompetent. As costs follow the event, I order the Petitioner shall pay the costs of the First and Second Respondents, such costs to be assessed on a party and party basis and to be taxed if not agreed. Further, I will also order the security deposit of K5,000 shall be released and paid to the Respondents in equal shares.
    
53. The court orders that:
    
    1. Grounds one and two of the objections to competency of the petition (that when the Petition was filed on 13 September 2022, the Petition was not signed by the Petitioner and the two attesting witnesses) are dismissed as the court finds the petition was signed by the Petitioner, signed by the two attesting witnesses and filed on 15 September 2022.
       
    2. Grounds three and four of the objection to competency of the Petition are upheld as the court finds that the notice of payment of the filing fee and the notice of the payment of the security deposit were filed on 20 September 2022 which was five days after the filing of the petition on 15 September 2022.
       
    3. The Petition is dismissed for being incompetent.
       
    4. The security deposit of K5,000 shall be released and paid to the Respondents in equal shares.
       
    5. The Petitioner shall pay the costs of the First and Second Respondents, such costs to be assessed on a party and party basis and to be taxed if not agreed.
       

Decision accordingly
__________________________________________________________________
B.S. Lai Lawyers: Lawyers for the Petitioner
Mawa Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent