Kala v Temu [2023] PGNC 255; N10364 (23 June 2023)

N10364

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 74 OF 2022

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

IN THE MATTER OF A DISPUTED RETURN FOR ABAU
OPEN ELECTORATE

BETWEEN:
EVELE KALA
Petitioner

AND:
SIR PUKA TEMU
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Dingake J
2023: 19^th June

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

Case Cited:
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ginson Goheyu Soanu v Bob Dadae (2004) SC763
Jimson Sauk v Don Pomb & Electoral Commission (2004) SC769
Johnson Tuke Ibo v William Hagahuno and Electoral Commission (2023) N10322
Kurberi Epi v Tony Farapo and Electoral Commission (1983) SC247
Moses Manwau v Hon. Allan Bird and Electoral Commission (2023) N10249
Paru Aihi v Peter Namea Isoaimo (2015) SC1598

Counsel:
Ms. Gloria Salika, for the Petitioner
Mr. Wesley Bigi, for the First Respondent
Mr. Joppo Simbala, for the Second Respondent

RULING

23^rd June 2023

1. DINGAKE J. On the 14^th of September 2022, the Petitioner filed a petition disputing the declaration of the First Respondent, as duly returned for Abau Open (Central Province) in the National Government Elections held between 12^th May 2022 and August 2022 on various grounds, including illegal practices, undue influence, and bribery.
   
2. On the 21^st of September 2022, the First Respondent filed a Notice of Objection with this Court alleging that the First Respondent’s petition was incompetent for the reasons stated in the Notice of Objection (Court Document No. 11).
   
3. On or about the 29^th of May 2023, the First Respondent filed a Notice of Motion to amend the original grounds of objection to add the following grounds:
   
   1. The alleged incidences of bribery and inducements pleaded at paragraph 23 to paragraph 32 of the Petition filed on 14^th September 2022, occurred at a date when the First Respondent was not a candidate of the Abau Open Electorate within the meaning of Section 3 and 215 (1) of the Organic Law on National and Local Level Government Elections (“the Organic Law”) and are therefore not proper facts and/or grounds to be used to invalidate the First Respondent’s election.
      
   2. The petitioner paid his Security for Costs seven (7) days before filing the petition thereby breaching Section 209 of the Organic Law. Consequently, the petition filed herein is incompetent pursuant to Section 210 of the Organic Law.
      
4. The application to amend was not opposed, save that Ms. Gloria Salika, learned Counsel for the Petitioner, prayed that the Petitioner be granted costs as the application for amendment was made late and was opportunistic in nature, as the First Respondent seeks to jump on the bandwagon and take advantage of the most recent cases on compliance with Section 209 of the Organic Law on National& Local Level Government Election (OLNLGE) (“the Organic Law”).
   
5. Since the application was not opposed and there was in my mind no legal impediment to granting it, the amendment was allowed. I then ordered that costs of the said application to amend shall be in the cause.
   
6. During the submissions by Counsel on the 19^th of June 2023, the First Respondent’s ground, that the petition was incompetent for offending Section 209 of the Organic Law, as the security deposit was paid before the petition was filed, took the center stage, becoming effectively the main and determinative issue.
   
7. As a consequence of the above, the arguments advanced by Counsel centered around, whether the Petition was incompetent for want of compliance with Section 209 of the Organic Law in that the Petition was filed on the 14^th of September 2022, but the security deposit made prior to that, on the 7^th of September 2022.
   
8. I propose to deal with this ground first and if necessary, the balance of the other grounds of objection to competency, thereafter.
   
9. The factual basis upon which the fate of this application turns is not in dispute and may be stated briefly. The petition was filed on the 14^th of September 2022 and the security deposit in the amount of K5,000.00 was paid into the National Court Registrar’s Trust Account No. 1000583618 at Bank of South Pacific Ltd (“BSP”), on the 7^th of September 2022 and the copy of the receipt was presented to the Deputy Registrar on the 14^th of September 2022.
   
10. Based on the above undisputed facts, the issue that sharply falls for determination is whether the petition is incompetent for non-compliance with Section 209 of the Organic Law and perhaps more precisely, whether the production and presentation to the Registrar, of a copy of the stamped BSP deposit form receipt at the time of filing the petition on the 14^th of September, 2022 constitute a “deposit” within the meaning of Section 209 of the Organic Law.
    
11. Mr. Wesley Bigi, learned Counsel for the First Respondent, argued that because the Petitioner failed to pay the required K5,000.00 security for costs, “at the time of filing the petition” as required by Section 209 of the Organic Law, the petition is incompetent and should accordingly be dismissed in its entirety. He relied on the Affidavit of the First Respondent filed with this Court on the 29^th of May 2023 that showed that the security deposit was paid into the National Court Registrar’s Trust Account, referred to earlier on the 7^th of September 2022.
    
12. Mr. Joppo Simbala, learned Counsel for the Second Respondent, associated himself with Mr. Bigi’s arguments.
    
13. Ms. Gloria Salika, learned Counsel for the Petitioner, did not dispute that the security deposit was paid on the 7^th of September 2022, but argued that such payment was in anticipation of the petition being filed and, in any event, evidence of payment that the security deposit was paid was presented on the 14^th of September 2022. She urged the Court to apply a fair and liberal interpretation to Section 209 and find that such presentation of evidence of payment of security deposit on the 14^th of September 2022, substantially complied with Section 209 of the Organic Law.
    
14. It is convenient to reproduce the governing legal framework, for ease of analysis.
    
15. Section 208, 209 and 210 of the OLNGE provides that:
    

“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.”

16. In the line up of the above trilogy provisions, Section 210 is perhaps the high watermark that draws the line in the sand by making it clear that proceedings shall not be heard on a petition that offends Sections 208 and 209.
    
17. The jurisprudential pathway that is applicable to this objection is well trodden and the verdict of the justices of this Court, singularly at the level of the National Court, or collectively at the Supreme Court level, on the fate of a petition that does not comply with Section 209, is near unanimous.
    
18. In consequence of the above, there is a plethora of authorities of respectable lineage, emanating from the Supreme Court, that establish that strict compliance with Section 209 is required and that failure to comply therewith is fatal.
    
19. Some of the authorities referred to above that are binding on this Court include the following: Kurberi Epi v Tony Farapo and Electoral Commission (1983) SC247; Paru Aihi v Peter Namea Isoaimo SC1598; Delba Biri v Bill Ninkama [1982] PNGLR 342; Ginson Goheyu Soanu v Bob Dade (2004) SC763; Jimson Sauk v Don Pomb & Electoral Commission (2004) SC769.
    
20. In the course of 2023, the National Court considered several objections on the meaning and effect of Section 209 of OLNGLE. The majority concluded that the security for costs required by Section 209 must be paid at a time the petition is filed not before or after (Johnson Tuke Ibo v William Hagahuno and Electoral Commission (2023) N10322; Moses Manwau v Hon. Allan Bird and Electoral Commission (2023) N10249.
    
21. In the case Paru Aihi v Peter Namea Isoaimo (supra) a petition was dismissed for non-compliance with the provisions of Section 209 of the OLNGLE. This case, considered with other decisions of the Supreme Court cited earlier, laid down the law on what would constitute a valid election petition.
    
22. The cumulative preponderance of Supreme Court authorities and those of the National Court, referred to earlier, establish what may be referred to as the minimum ten golden rules or commandments that must be followed to achieve a valid petition. These minimum commandments, as far as I can discern, from the case law, are as follows:
    
    • (1) That the onus of ensuring that the requirements of the rules are strictly adhered to in filing the petition primarily rests with the Petitioner.
      
    • (2) The petition must be filed at the Registry.
      
    • (3) That the requirements of Section 209 of the Organic Law are mandatory.
      
    • (4) The deposit in the prescribed form must be paid at the Registry, “in cash or bank cheque”.
      
    • (5) 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.
      
    • (6) The security deposit must be paid for in full.
      
    • (7) The Act of filing the petition is complete upon the delivery of the petition, security deposit and filing the petition.
      
    • (8) That the security costs cannot be paid at any other time, either before or after a petition is filed with the Registrar of the National Court.
      
    • (9) A receipt of payment of security deposit is merely documentary evidence of payment, it is not payment per se.
      
    • (10) That if the requirements of Section 209 are not complied with the Court would not have jurisdiction to hear and determine the petition.
      
23. It is plain from the authorities cited above that strict compliance with Section 209 of the Organic Law is mandatory.
    
24. In a recent decision of Moses Manwau, cited supra, my brother Gavara-Nanu J. at paragraph 18, in a beautiful rendition of the law captured the defining essence or the kernel of Section 2019 in the following terms:
    

“The operative words in s. 209 are “at the time of filing of the petition”, (the petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for costs). These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for costs had to be paid in full on 7^th 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 serious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.”

25. Having regard to the provisions of Section 209 of the Organic Law and bearing in mind Schedule 1.5 of the Constitution, I agree with my brother Yagi J. that “a fair and liberal meaning of the word “deposit” means paying to the Registrar of the National Court the sum of K5,000.00 as security for costs at the time of filing the petition (Johnson Tuke Ibo, supra).
    
26. It is clear to me, based on the authority of Paru Aihi v Peter Namea Isoaimo, supra, that payment cannot be made prior to or after filing the petition.
    
27. Learned Counsel for the Petitioner, Ms. Gloria Salika has sought to persuade me that the presentation to the Registrar, of a copy of the Bank of South Pacific deposit, in the manner it was done in this case, on the 14^th of September 2022, constitutes a “deposit” within the meaning of Section 209 of the Organic Law.
    
28. I confess that in a moment of deep reflection and anxiety, I have pondered and explored the possibility of accepting Ms Salika’s argument, namely, that a presentation of a security deposit receipt evidencing payment on the day the petition is filed, in circumstances where actual payment was made earlier, constitutes substantial compliance. In my considered opinion such an approach risks blurring separation of powers between the Legislature and the Judiciary and may be seen as the Court legislating. Additionally, such an approach would go against the authorities that are binding on this Court. It was on account of these considerations that I refrained from following this route.
    
29. I have earlier indicated the meaning I ascribe or attach to the word “deposit” in Section 209 of the Organic Law.
    
30. In my considered opinion, presentation of BSP deposit, as was done in this case on the 14^th of September 2022, does not comply with Section 209. In my mind, and to adopt the words of my brother Yagi J, “... a receipt is merely documentary evidence of payment. It is not payment per se” (para 38, Johnson Tuke Ibo, supra)
    
31. In this case, I find that payment of security was made on the 7^th of September 2022. This payment was made when the petition had not been filed, and therefore not in existence. It does not comply with the mandatory provisions of Section 209 of the Organic Law.
    
32. Order 7 of the Election Petition Rules (EPR) seeks to make it clear how payment should be made. It states that:
    

“1. 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.”

33. In all the circumstances of this case, this petition is incompetent for offending Section 209 of the Organic Law, and liable to be dismissed, as I shall in due course do.
    
34. In consequence of my conclusion above, it is not necessary to consider the other grounds of objection raised by the First Respondent, supported by the Second Respondent.
    
35. The Orders of this Court are as follows:
    
    1. The objection to competency under Section 209 of the Organic Law is found to be meritorious and it is upheld.
       
    2. The petition is accordingly dismissed in its entirety.
       
    3. The Petitioner’s security for costs deposit in the sum of K5,000.00, paid into the National Courts Registrar’s Trust Account No. 1000583618 is to be paid to the First and Second Respondents in equal amounts.
       
    4. The Petitioner is ordered to pay the Respondents’ costs of and incidental to this application on party/party basis, which are to be taxed, if not agreed.
       

_______________________________________________________________

GFS Lawyers: Lawyers for the Petitioner

Henaos Lawyers: Lawyers for the First Respondent

Harvey Nii Lawyers: Lawyers for the Second Respondent