N10464

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 71 OF 2022 (IECMS)
IN THE MATTER OF A DISPUTED RETURN FOR THE KARIMUI-NOMANE OPEN ELECTORATE

BETWEEN:
TULIP WESU DOLA
Petitioner

V

FRANCIS YORI ALUA
First Respondent

AND
THE ELECTORAL COMMISSION
Second Respondent

Goroka: Anis J
2023: 4th & 6th September

APPLICATIONS – two notices of objections to competency – s.210 – Organic Law on National and Local-level Government Elections – objections premised on alleged breaches of ss 208(e) and 209 – Organic Law on National and Local-level Government Elections – payment of security for costs and filing of petition occurred at different dates and time – other grounds premised on ambiguity or insufficiency of pleading of material facts to sustain or assert allegations raised and the relief sought – considerations - ruling

Cases Cited:

EP No. 71 of 202, Tulip Dola v. Francis Alua and Electoral Commission (2023) N10456
Delba Biri v Bill Ninkama [1982] PNGLR 342
Epi v. Farapo and Electoral Commission (1983) SC247
Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Ginson Goheyu Soanu v Bob Dade (2004) SC763
Jimson Sauk v Don Pomb Polye & Electoral Commission (2004) SC769
Moses Manwau v. Hon Allan Bird and Electoral Commission (2023) N10249
Johnson Tuke Ibo v. William Hagahuno and Electoral Commission (2023) N10322
Evele Kala v. Sir Puka Temu and Electoral Commission (2023) N10364
Evele Kala v. Sir Puka Temu and Electoral Commission (2023) SC2453
Wesley Raminai v. Maino Pano and Electoral Commission (2023) N10248
Robert Ganim v. Dr Lino Moses and Electoral Commission (2018) N7233
Peter Charles Yama v. Ramsey Pariwa (2023) N10458
Jean Eparo Parkop v. Garry Juffa and Electoral Commission (2023) N10281
Daisy Aporo Ondokoi v. Hon. Benjamin Mul and Electoral Commission (2023) N10406
William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018

Counsel:

B Lomai, for the Petitioner
G Gileng, for the First Respondent
M D Ninkama, for the Second Respondent

DECISION

6th September 2023

1.	ANIS J:  The election petition hearing for this matter commenced at 9:30am on Monday 4 September 2023.  At that time, I dealt an application for adjournment which had been filed by the petitioner.  The petitioner sought leave to have his application withdrawn.  There was consensus by the parties thus leave was granted for that.  Cost of the application was ordered to remain in the petition.

2.	After that, and at 1:30pm on that day, I proceeded to hear 2 notices of objections to competency of the petition filed by the first and second respondents (2 objections).  I heard submissions from the parties and reserved my decision thereafter to today at 11am.

3.	This is my ruling.

BACKGROUND

4.	The petitioner Mr Dola (the petitioner) is challenging the election of the first respondent who was declared the winner for the Karimui-Nomane Open Electorate Seat in the 2022 General Elections.  He alleges 1 ground in his Petition filed 13 September 2022 (Petition) claiming alleged errors, omissions, and irregularities committed under ss. 215(3) and 218 of the Organic Law on National and Local-level Government Elections (OLNLLGE/Organic Law).

5.	Subject to my findings in regard to the 2 objections, I will proceed to hear the allegations raised in the petition and make a determination.

APPROACH

6.	I refer to the 2 objections.  For the first respondent, his notice of objection to competency of the petition was filed 10 October 2022.  He later sought leave of Court to amend his petition.  Leave was granted on 24 August 2023, and following that, the first respondent filed an amended notice of objection to competency of the petition, on 25 August 2023 (First Objection).  The Court’s decision that granted leave is described as EP No. 71 of 202, Tulip Dola v. Francis Alua and Electoral Commission (2023) N10456.

7.	The second respondent’s notice of objection to competency of the petition was filed 13 October 2022 (Second Objection).  The second respondent’s position is this.  It first supports the first respondent’s objection.  Secondly, it moves on the grounds as pleaded in the Second Objection which are similar to those raised the First Objection.  The only main difference between the 2 objections is the additional ground that was added into the First Objection, which is this.  The first respondent alleges that the petition is incompetent by virtue of s.210 of the OLNLLGE because it infringed ss 208(e) and 209 of the Organic Law.  The first respondent claims that the petition and the security for costs were paid on separate dates and not together as required under s.209.  As such, he claims that the petition therefore cannot constitute a valid petition that is filed under s.208(e) thus is incompetent by operation of s.210 (first ground).

8.	The petitioner admits, and it is not disputed, that the actual payment of security for costs (Security) was made on a separate date from the date when he lodged his petition through the Integrated Electronic Case Management System (IECMS).  He, however, disputes that his actions breached ss.208(e) and 209 of the Organic Law as alleged by the respondents.  He submits the petition was lodged consistent with the requirements of ss. 208(e) and 209 of the Organic Law and Rules 1, 5 and 7 of the Election Petition Rules 2017 as amended (EP Rules).  

9.	I will approach the 2 objections this way.  I will first deal with the first ground in the First Objection separately.  Subject to my finding and ruling, I will proceed to deal with the balance of the grounds in the First Objection together with those grounds raised in the Second Objection.  And subject to my findings and ruling, I will then proceed to hear the petition and the allegations that are raised therein.

REAL ISSUE

10.	Having considered the first ground, I must say that what it all comes down to, in my view, is this main issue, that is, whether s.209 of the OLNLLGE is express, and if so, (ii), what does it require of a petitioner, or what must a petitioner do for his or her petition to be regarded as compliant, that is, in terms of a petitioner lodging his or her petition for filing and making payment for security for costs (the 2 events), as required by ss.208(e) and 209 of the OLNLLGE.

OLNLLGE and EP RULES

11.	I begin by setting out the relevant provisions of the OLNLLGE and the EP Rules.  Sections 208, 209, 210 and 217, and rules 1, 5 and 7, read:

“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.”
……

217.  REAL JUSTICE TO BE OBSERVED.

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.
……

1.  Definitions

In these Rules, unless the contrary intention appears:
……
“filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number;
……

5.  Filing

A petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.

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.

[Underlining mine]

CONTENTIONS

12.	I note the evidence, submissions and case law that have been presented by counsel for the parties on this issue.  I have had regard to them and am grateful for counsels’ assistance especially with the relevant case authorities.  

CONSIDERATION

13.	And I begin by asking myself this question.  Did the Supreme Court consider this issue in the past, and if so, what is its view?  

14.	The answer to this question is this, “yes, the Supreme Court has considered this issue in the past.”  The Supreme Court first addressed this issue about 30 years ago in regard to the application of s.209, that is, in Epi v. Farapo and Electoral Commission (1983) SC247.  I also note that Supreme Courts have followed or ruled similarly in various cases including, Paru Aihi v Peter Namea Isoaimo (2015) SC1598,  Delba Biri v Bill Ninkama [1982] PNGLR 342, Ginson Goheyu Soanu v Bob Dade (2004) SC763, and Jimson Sauk v Don Pomb Polye & Electoral Commission (2004) SC769.  Recent National Court decisions that address the issue include Moses Manwau v. Hon Allan Bird and Electoral Commission (2023) N10249, Johnson Tuke Ibo v. William Hagahuno and Electoral Commission (2023) N10322, Evele Kala v. Sir Puka Temu and Electoral Commission (2023) N10364, Wesley Raminai v. Maino Pano and Electoral Commission (2023) N10248 and Robert Ganim v. Dr Lino Moses and Electoral Commission (2018) N7233.

15.	Mr Gileng, counsel for the first respondent, also drew the Court’s attention to a recent Supreme Court decision that I had presided on as a single judge, which is Evele Kala v. Sir Puka Temu and Electoral Commission (2023) SC2453.  The material facts in the case are similar to the those in the present case.  The petitioner therein lodged his petition at the Registry through the IECMS and paid for his security for costs, within 40 days, however, the 2 events occurred on separate dates.  The 2 events occurred 7 days apart, that is, the security for costs was paid prior to the lodgement of the petition into the IECMS.  The trial judge that heard the objection to competency in that matter upheld the objection and dismissed the petition.  Aggrieved by the decision, the petitioner therein sought leave of the Supreme Court to challenge the decision of the National Court.  I dealt with the leave application, and on 1 September 2023, I refused leave and dismissed the application.  I adopt herein para 18 where I gave a summary of the rulings of above Supreme Court cases as follows:

18.	These cases interpret s.209 to mean (paraphrase/summarise) that at the time of filing a petition, the security for costs, and not the receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court.  The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time.  The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss 208, 209 and 210 of the OLNLLGE.  Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when his Honour at para 38 of his decision stated, a receipt is merely documentary evidence of payment.  It is not payment per se.

16.	In this present case, and sitting as a National Court Judge, I am bound by the Supreme Court case precedents:  Paru Aihi v Peter Namea Isoaimo (supra),  Delba Biri v Bill Ninkama (supra), Ginson Goheyu Soanu v Bob Dade (supra) SC763, and Jimson Sauk v Don Pomb Polye & Electoral Commission (supra).

17.	Premised on these authorities, I would be in a position to uphold the First Objection.

18.	However, let me continue.  At the hearing, I asked Mr Gileng whether, given the existence of the IECMS and rules 5 and 7 of the EP Rules, whether a petition may be regarded as compliant with ss.208(e) and 209 if a security for costs was paid into the National Court Trust Account at the bank and receipt of its payment was lodged together with the petition on the same date when payment was made to the bank.  Mr Gileng answered the question in the affirmative.

19.	Mr Lomai, however, maintains that his client’s interpretation and application of ss. 208(e) and 209 together with the rules 1, 5 and 7 of the EP Rules, is the correct one.  Counsel urged that the Court to follow the approach.  Counsel referred to National Court cases that supports the petitioner’s submissions including Peter Charles Yama v. Ramsey Pariwa (2023) N10458, Jean Eparo Parkop v. Garry Juffa and Electoral Commission (2023) N10281 and Daisy Aporo Ondokoi v. Hon. Benjamin Mul and Electoral Commission (2023) N10406.  These cases, in summary and on the issue, say that as long as the security for costs is paid within the 40 days period for filing a petition and evidence of receipt of payment is lodged together with the petition for filing, that that is compliant with ss. 208(e) and 209 of the Organic Law and rules 5 and 7 of the EP Rules.  The cases also say that a petition shall not be incompetent if the security for costs is filed before or after the date when the petition is lodged within the filing period.  The cases also say that the term “at the time of filing the petition” under s.209 may be interpreted to mean the 40-day period for filing a petition.

20.	I note the submissions of the parties on this.  Evidence adduced by both parties show that the first respondent was declared as the successful candidate for the Karimui-Nomane Open Electorate Seat on 8 August 2022.  The 40th day computing from the next day or as of 9 August 2022, was 17 September 2022.  Undisputed evidence shows that the petitioner paid his K5,000 Security into the National Court Trust Account, which is held at Bank South Pacific Ltd, on 12 September 2022.  Undisputed evidence also shows that on 13 September 2022, which was a day after the Security was paid, the petitioner lodged his petition via the IECMS together with the receipt of the payment of the Security (deposit of payment as it is called) and other documents.  So, it is not disputed nor denied that the Security was paid earlier and separately from the date when the petition was lodged.

21.	My view, however, is to follow the Supreme Court’s view as I have summarised above.  I am of the opinion that the long-established view regarding ss 208(e) and 209 is the correct one.  I also note that even if I were to agree with the view of the petitioner herein, I would be obliged by Schedule 2.9 of the Constitution to uphold the Supreme Court’s view.  Schedule 2.9 states:

Sch.2.9.  SUBORDINATION OF COURTS.

(1)  All decisions of law by the Supreme Court are binding on all other courts but not on itself.
……

SECTION 217

22.	In regard to considering application of s.217, given the Supreme Courts’ position that ss. 208(e) and 209 are express and mandatory, I cannot see any basis for utilizing it in this case.  The fact of the matter in the present case is this.  The 2 events had occurred separately (i.e., actual payment of the Security and lodgment of the petition) thus created or constituted fundamental flaws to the petition to an extent where the petition cannot be cured even by exercising powers under s.217.  See cases:  William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018, at paras 68 and 69, his Honour Kandakasi DCJ, and Moses Manwau v. Hon Allan Bird and Electoral Commission (supra) by Gavara-Nanu J.  Kandakasi DCJ, in Hagahuno’s case stated at para 68 and 69, which I adopt as follows:

68.  As long as a petitioner addresses and or meets all of these requirements, his or her petition should qualify to progress to trial. In other words, if a petition on its face reveals a meeting of all of these requirements that should be sufficient for the purposes of s. 210 of the Organic Law. It should follow therefore that, objections to competency of petitions can only be raised against a petition which on its face fails to meet any of the requirements under s. 208 (a) to (d) and is something that cannot be cured by appropriate amendments either before or after the expiry of the time period stipulated under s. 208 (e) of the Organic Law. An incurable defect, error or omission in an election petition could be a complete failure to:

(a)	disclose by a statement of the facts (regardless of however poorly or well drafted the petition might) at least a known ground for invalidating an election or return; or
(b)	state the occupation of the attesting witnesses as was the case in Biri v. Ninkama; or
(b)	state both or either of the required two attesting witness’ addresses;
(c)	specify the relief sought; or
(d)	sign the petition by the petitioner; or
(e)	file the petition within 40 days after declaration of the relevant election results.

69.  Also, a petition that fails to meet the condition precedent of the deposit requirement under s.209 of the Organic Law could correctly attract an objection to the competency of a petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filing an election petition.

[Underlining and bold lettering mine]

RULES 1, 5 and 7 – EP RULES

23.	I note that interesting scenarios were discussed at the hearing in regard to the application of the IECMS and its filing system and how it may practically apply when reading the definition of filing under Rule 1, and also when applying or taking into account rules 5 and 7 of the EP Rules.

24.	In regard to the definition of the term ‘filing”, I find Manuhu J’s interpretation to be accurate, that is, in Wesley Raminai v. Maino Pano and Electoral Commission (supra).  His Honour stated in part at para 10 of his decision as follows:

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

[Underlining mine]

25.	Recapping the definition of ‘filing’ under s.1, it states, “filed” means (a) lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and (b) sealed with the seal of the Court and (c) endorsed with an election petition number. [Underlining and lower-case lettering are mine].  These 3 things must occur before a document may be regarded as filed in the National Court through the IECMS.

26.	And recapping s.209 which states, At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.  So, it simply means that at the time when the petitioner is lodging, sealing and obtaining a petition number in regard to his or her petition (at the time of filing), he or she is also required to, during that time and pursuant to s.209, deposit his or her security for costs of K5,000 to the Registrar of the National Court.  This is where rules 5 and 7 comes into play, in my view, that is, where the petitioner will commit the legal act of paying the Registrar the K5,000 as required by s.209, by depositing the money into the National Court Registrar’s Trust Account which is provided for under ruled 7 of the EP Rules.  The EP rules are not created to set new pathways or give a new meaning to compliance with s.209, but rather, its purpose, amongst others, is to facilitate compliance with the new change of system of payment of funds that are intended for the Registrar of the National Court (i.e., to be paid into the National Court Registrar’s Trust Account held at the Bank South Pacific Limited ) as well as to accommodate the IECMS which is currently being rolled out throughout the Courts.

27.	Therefore, and in summary, what all these means is that a petitioner is required to, before he or she lodges a petition into the IECMS, pay K5,000 security for costs into the National Court Registrar’s Trust Account held by the bank.  After that, step 2 is to lodge the petition with the receipt of payment of the K5,000 into the IECMS for filing, and this must also occur on the same date after the petitioner has deposited the K5,000 security for costs into the Registrar’s Trust Account.  The 2 events must occur on the same day within the 40-day period for lodging a petition.

28.	In the present matter, however, the Security was paid on 12 September 2022 ahead of the petition which was filed later on 13 September 2022.  That therefore constitutes a fundamental breach of the requirements under s.209 of the OLNLLGE.  And s.217 cannot be invoked at all.  To try to correct this using my power under s.217 will be to try to override a provision of an organic law or to try to make an exception to the requirements of s.209, such power which this Court simply does not have.  And with that, I would adopt and echo the same concern and warning as stated by Dingake J in Evele Kala v. Sir Puka Temu and Electoral Commission (supra).  At para 28, His Honour stated:

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.

SUMMARY

29.	Therefore, and in summary, I will uphold the first ground in the First Objection of the first respondent.  The petitioner’s petition filed 13 September 2022 is incompetent having been filed in breach of ss.208(e) and 209 of the OLNLLGE.  Thus, the hearing cannot proceed pursuant to s.210 of the OLNLLGE.

30.	Given my decision, it is not necessary to consider the rest of the grounds in the First Objection as well as to deal with the grounds in the Second Objection.

COST

31.	I will order cost of the proceeding to follow the event on a party/party basis to be taxed if not agreed.  I will also make an order that the K5,000 deposit of the petitioner shall be divided equally between the first and second respondent to pay for their costs.

ORDERS OF THE COURT

32.	I make the following orders:

1.	The first respondent’s amended notice of objection to competency filed 25 August 2023 is upheld on its first ground.

2.	Consequently, the petitioner’s petition filed 13 September 2022 is dismissed as incompetent.

3.	The K5,000 security deposit shall be withdrawn and paid equally between the first and second respondents to recover their costs which is awarded in their favour against the petitioner, to be assessed on a party/party basis and be taxed if not agreed.

4.	Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.

The Court orders accordingly.

________________________________________________________________
Lomai & Lomai Attorneys:	Lawyers for the Petitioner
Gileng & Co:	Lawyers for the First Respondent
Harvey Nii:	Lawyers for the Second Respondent