Potape v Undialu [2023] PGNC 281; N10372 (28 June 2023)

N10372

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP 8 OF 2022 (IECMS)

BETWEEN:
FRANCIS MULUNGU POTAPE
Petitioner

AND:
PHILIP UNDIALU
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Salika CJ
2023:12^th & 28^th June

ELECTION PETITION – Practice and Procedure – Objection to competency of petition – Requirement under s. 208 of OLNLLGE – Unsigned petition filed on time – Signed petition filed outside 40 days – No petition – s. 208 (c) and (e) of the OL – Not complied with – Objection to Competency upheld.

Cases Cited:
Kilroy Genia v Puka Temu and the Electoral Commission, EP 69 of 2022, N10321,
Diane Unagi Koram v John Kaupa and the Electoral Commission, EP 40 of 2022.

Counsel:
Mr J Ole, for the Petitioner
Mr G Gileng, for the First Respondent
Mr N Ninkama, for the Second Respondent

RULING ON OBJECTIONS TO COMPETENCY OF PETITION

28^th June, 2023

1. SALIKA CJ: I heard two objections to competency of the petition on 12 June 2023. Philip Undialu is the First Respondent and the Electoral Commission of PNG is the Second Respondent.
   
2. The First Respondent challenged the competency of the Petition on several grounds, one of which is that the petition is incompetent for being filed outside the required time. This ground, if upheld will affect the competency of the entire petition.
   
3. The Second Respondent challenged the competency of the Petition on the same grounds and other grounds.
   

FACTS

4. The Petitioner and the First Respondent were candidates among a total of thirteen (13) who contested the Hela Regional Seat in the 2022 National General Elections.
   
5. The Electoral Commission of Papua New Guinea is responsible for the conduct of the 2022 National General Elections and is named in that capacity as the Second Respondent.
   
6. The Hela Regional Seat comprises of four Open Electorates namely the Magarima Open Seat, the Komo-Hulia Open Seat, the Tari-Pori Open Seat and the Koroba Kopiago Open Seat.
   
7. Polling was for one day and got underway on 4 July 2022 and counting and the scrutiny process commenced on 11 July 2022 and ended on 19 July 2022. A formal declaration of the winner for the Hela Regional Seat was made on 19 July 2022. Philip Undialu was declared as the duly elected Member for the Hela Regional Seat polling 118,113 votes to the Petitioner Francis Potape, the First Runner Up, who polled 50,771 votes.
   

THE LAW IN RELATION TO PETITIONS

8. Section 206 and Section 208 (e) of the Organic Law on National and Local-Level Government (OL) requires an aggrieved party to challenge an election result by way of a petition within 40 days from the date of the declaration. In this case, Philip Undialu was declared winner of the seat on 19 July 2022. The required forty days to challenge the election results started from the date and day of the declaration. In this instance, all the parties accept that the declaration of the winner for the electorate was on 19 July 2022 and the 40 days started running from that date and day. All parties agree that the 40^th day fell on 27 August 2022. This meant that the petition had to be filed before midnight on 27 August 2022 and before the clock struck 28 August 2022.
   
9. Section 206 of the Organic Law reads:
   

“The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.”

10. Section 208 says:

“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).”

11. Section 209 says:

^“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.”

12. Section 210 says:

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

13. These Organic Law provisions are supplemented by the Election Petition (Miscellaneous Amendments) Rules 2022 (EP Rules 2022). Clauses 4, 5 and 6 of the EP Rules 2022 provide:

“4. Form of Petition

The petition shall be in accordance with Form 1.

5. Filing

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

6. Filing Fees

(1) The filing fee for an election petition shall be K1,000.

(2) The fee shall be paid at the provincial finance office and the official receipt of the payment shall be filed in the Registry with the petition in accordance with Rule 5.

(3) Where circumstances do not permit a petitioner to pay the filing fee at a provincial finance office, the fee may be paid by bank cheque at a registry of the National Court or paid into the National Court Registrar’s Trust Account at the appropriate bank.

14. The IECMS Practice Direction No. 1 of 2022 says:

“6. Purpose of IECMS

The purpose of IECMS is to implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by:

1. Replacing the paper-based case filing and recording system by an electronic system;
   
2. Electronic streamlining of case processing, from filing to hearing and final disposal of cases;
   

100. Transparency and accountability in case management;
     

4. Simplification and predictability in each procedural step from filing to listing to prompt final disposal;
   
5. Better timely reporting to parties, lawyers and government agencies and others as required;
   
6. Elimination of opportunities for corruption to occur by administrative staff in case filing and management;
   
7. Improved access by parties and lawyers to filing of court process through electronic means;
   
8. Increased public and private sector confidence in our judicial process.
   

10. Case Initiation and Response Process.
    

(1) All new cases or matters in the National Court and the Supreme Court shall be commenced by way of the electronic filing of the “cause form”, with all the supporting evidence in affidavit form in the National Court and in the Supreme Court for causes based on facts or raises factual issues other than for appeal or review causes.

(2) To use IECMS a litigant must register with IECMS through.

(3) Upon electronic lodgment, the “cause form” (with all affidavit evidence in support (if applicable) will be received and processed by the relevant Registry with notification to the lodging party to be given by he Registry within 48 hours of date and time of lodgment whether the Registrar has approved or rejected the “cause form”, and in the case of rejection, the Registrar’s reasons for the rejection shall be given.

(4) Subject to sub-rule (10), a “cause form” processed by the relevant Registry (with all affidavit evidence in support if applicable) shall be served on the defendant or respondent:

(a) electronically through IECMS; or

(b) by personal service of printed copies on the person to be served;

(c) by personal service of printed copies on the registered address for service or registered office of a corporation;

within 30 days of notification to the plaintiff of the Registrar’s approval of the “cause form”.

(5) Subject to sub-rule (6), upon being served a defendant or respondent may file a response using the “cause form” with their supporting affidavit evidence, if applicable, within 30 days after the date of service.

(6) In a National Court matter, where the State is a defendant or respondent, it shall upon being served file a response using the “cause form” with its supporting affidavit evidence if applicable within 90 days after the date of service.

(7) Upon being served, a defendant or respondent must if not yet registered, register with IECMS through to gain access to IECMS and then file its response using the “cause form”.

(8) Where there is no electronic access to the IECMS website, the parties and or their lawyers may attend at the relevant Registry with printed copies of their “cause form” and supporting affidavit evidence and shall be assisted by the relevant Registry staff to electronically file their documentation via IECMS with the assistance of staff of the relevant Registry.

(9) A “cause form” served as an initiating document or a response (with the supporting evidence if applicable) shall be evidenced in the IECMS and will be recognized as being duly served under these rules unless the provisions of sub-rule (10) applies.

(10) Where an Act of Parliament prescribes time limits for responses to a claim of service of court proceedings or documents in a certain way, such provisions shall prevail.

11. e-filing and Electronic Lodgments

(1) The IECMS enables all case activities from the filing of case initiating documents, responses, pleadings, listings, and decisions to be conducted by means of e-filing and electronic lodgments.

(2) Lawyers and litigants are required wherever possible to use the IECMS from the commencement of a proceeding to final decision and enforcement.

(3) The Courts encourage the exchange of parties’ documents electronically, including the exchange of all pleadings, notices for discovery, lists in response to discovery and documents relevant to discovery, notices under the Evidence Act, documents to be adduced in evidence at trial or court hearing and all other forms of National Court and Supreme Court process.

(4) The Courts will be flexible and will assist all users of the IECMS to meet their needs during the continuation of the piloting of the IECMS.

12. Filing Fees.

(1) The rules governing all filing fees under the SCR and the NCR shall continue to apply unchanged.

(2) Until further notice, filing fees are to continue to be paid at the National Finance Department and a copy of the receipt attached to the “cause form” at the time of the lodgment with IECMS.

(3) Eventually, filing fees will be paid direct to the Courts’ nominated bank account through the IECMS.”

15. Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law provisions prevail.

GROUNDS OF OBJECTION TO COMPETENCY

Ground 1. Petition Filed Out of Time.

16. The applicant alleges that two petitions were filed, one on 27 August 2022, and one on 29 August 2022. The one uploaded and filed on 27 August 2022 was not signed and not attested to by two witnesses, a mandatory requirement under s. 208 (c) and s. 208 (d) of the Organic Law. The one uploaded and filed on 29 August, 2022 was uploaded and filed with the IECMS, two days outside the required time. He alleged that the petitioner in that regard failed to comply with s. 208 of the Organic Law and that the two petitions are incompetent.

17. The applicant relied on the affidavits of:

1. Mathew Bae – sworn on 8 November 2022 and filed on 11 November 2022.
   
2. Kini Mamis – sworn and filed on 11 November 2022.
   

100. Justin Wohuinangu. Sworn 7 November 2022 and filed on 17 November 2022.
     

18. I have read the three affidavits referred to above. All the deponents say the petition filed within the prescribed 40 days on 27 August 2022, was not signed by the petitioner and not attested to by two attesting witnesses. Section 208 (c) and (d) are very clear in that, the petitioner, who was a candidate, must sign the petition. The petitioner was a candidate and had standing to file a petition. But he never signed the petition. Two attesting witnesses were required to witness him, sign the petition and state their occupation and addresses. This, they never did.

19. Mathew Bae, Kini Mamis and Justin Wohuinangu all deposed in their respective affidavits that the petitioner uploaded and lodged for filing on 29 August 2022, another petition. This petition was signed and attested to by two attesting witnesses. The signed petition was backdated to 27 August 2022 by Kini Mamis. She in paragraph 7 of her affidavit said she processed the petition lodged on 29 August 2022. This means she backed this petition to 27 August 2022, which she had no authority to do.

20. Justin Wohuinangu attached to his affidavit, a petition that was uploaded on 27 August 2022 which is Annexure B. He said this was the petition that was uploaded in time which was to be sealed but was not sealed.

21. He attached another petition to his affidavit which is Annexure D. Annexure D was uploaded on Monday 29 August 2022 but backdated to 27 August 2022, showing as if it was uploaded and filed on 27 August 2022 when in fact it was uploaded and filed on 29 August 2022.

22. With respect, for the Registry Officer to have backdated the petition uploaded on 29 August 2022, to 27 August 2022, is a deliberate distortion of a fact that is and was not true. It should have been dated 29 August as it happened which would have been the truth of the matter. In paragraph 4 of her affidavit, Kini Mamis said: “There are two existing filings of EP shown. An unsigned copy was uploaded on 27 August 2022 to open the file on IECMS, and a signed version was uploaded on 29 August 2022”.

23. Mathew Bae and Kini Mamis both say that their standing instructions are that they are not to reject any defective filings or documents on IECMS for Election Petitions. What they did not say in their respective affidavits is who authorized Kini Mamis to backdate the petition to 27 August 2022. We are now using the Integrated Case Management System (IECMS) and this allowed the applicant’s lawyers to do due diligence checks and find the anomaly. Justin Wohuinangu’s affidavit attaches the record of entries on the system which shows when the signed petition was uploaded and filed, and that was on 29 August 2022.

24. In response the petitioner, Francis Mulungu Potape, filed an affidavit sworn and filed on 3 February 2023. The relevant parts of his evidence are paragraphs 9 to 14 of his affidavit. I reproduce those here for purposes of understanding his evidence:

“9. The election petition was rechecked by one John Ole and his lawyer friend, who is my current lawyer before filing. I also confirmed that I signed the Election Petition, the two attesting witnesses also signed the election petition. I filed the signed election petition together with the copy of the respective receipts on the 27^th of August 2022 at Waigani National Court Registry. This is confirmed by the IECMS systems as the petition was filed on the 27^th August 2022. The election petition was affixed the National Court stamp, it was dated as the 27^th August 2022 and filed through its IECMS system on the 27^th August 2022.

10. The responsible authority or office to depose any affidavit materials to confirm the authenticity and or legality of the petition or any related matter for purposes of court at the National and Supreme Court is the Office of the Registrar or its Deputy. The office of the Supreme and National Court Registrar/Deputy has confirmed that the election petition was filed on the 27^th August 2022 together with the filing fee. As per the Notice of Payment of Filing Fee, the Registrar of the National Court has certified that the Filing Fee of K1,000.00 was paid at Finance cash office (Vulupindi Haus) and the copy of the receipt bearing the No. R00001425613 was presented to him on the 27^th August, 2022 being the date petition was filed.
    
11. There are overwhelming evidence to confirm that I have filed my petition on the 27^th August 2022. There are no direct evidence provided by the First Respondent to prove otherwise to the court, as all assertion of the First Respondent are all mere allegations, assumptions and are mere hearsay evidence. The First Respondent is going on a wild fishing expedition on dry land, its contention are purely based on hearsay, as the First Respondent does not work at the National Court Registry and does not know the process and procedures, neither its lawyers who deposed affidavit materials to that effect.
    
12. The traditional and most practical way of filling any court document as per the definition of filling under the Election Petition (Miscellaneous Amendments) Rules 2022 means; to lodge in a registry of the National Court at Waigani or at a 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. My election petition was filed on the 27^th August 2022, at the Waigani National Court Registry, it was sealed with the National Court seal on the 27^th August 2022 and endorsed with an election petition number 8 of 2022 on the 27^th August 2022. This concludes and confirms that I complied with the requirements under the Election Petition (Miscellaneous Amendments) Rules 2022.
    
13. Any election petition filed at the National Court Registry or sub registry throughout the country may or may not be registered on the IECMS system on time, but that does not render the petition incompetent, the IECMS system is an administrative system to save time and work. The law does not require an election petition to be uploaded and registered on the IECMS system within 40 days, the law is trite and settled here, the law says an election petition must be filed within 40 days from the date of declaration, it does not says, it must be filed and uploaded and registered on the IECMS systems within 40 days. The uploading and registering on the IECMS system is the National Court Registry’s administrative issues which I have no control over.
    
14. I have properly endorsed and signed my election petition, two attesting witnesses also signed the election petition and it was filed together with the copy of the election petition filing fee of K1,000.00 and the security for costs fee of K5,000.00 were filed together at the National Court Registry on the 27^th August 2022. The election petition styled EP No. 7 of 2022 is properly before the Court. The Office of the Waigani National Court Registrar has confirmed same and endorsed my election petition as it was filed on the 27^th August 2022.”
    

25. Two Registry officers; Mathew Bai and Kini Mamis, filed affidavits. Mathew Bai said:

“1. I am an Electronic Filing Officer at the Waigani National and Supreme Court Registry.

2. The facts deposed to in this Affidavit are within my own knowledge except, where stated otherwise.
   
3. On 14 September 2022, and a number of times thereafter, I was queried by Gileng & Co Lawyers as to the registering and approval of this Petition.
   
4. It was put to me that there existed two separate Petitions. When filing was done on the 27^th August 2022 on IECMS, an unsigned Petition was submitted online. This was corrected on the 29^th August 2022 when a signed and sealed copy was uploaded.
   
5. Any Petition filed after this date would be outside the time prescribed by the Organic Law on Local-Level Government Elections (“Organic Law”). IECMS records when the dates of all activities on it, It shows the Petition was filed on the 27^th of August 2022.
   
6. Given that I have been dealing with numerous matters simultaneously, I reviewed the Integrated Electronic Case Management System (“IECMS”) database to refresh my memory.
   
7. Having done so, in so far as this case is concerned, I am able to respond in terms of the paragraphs below.
   
8. On Saturday 27^th August 2022, at about 16.26pm, I was alerted by IECMS that a Petition had been uploaded.
   
9. Our instructions are not to reject documents on EP even if we notice defects but to process them.
   
10. The document I noted was uploaded by the Petitioner’s lawyer, Mr John Ole.
    
11. As is the usual process, I then sent it through for approval and registration. That is the reason why the activity log shows that it was under lodgment.
    
12. Given that it was uploaded late on a Saturday, any approval, would have to be given at a later time by one of the approving Registrars.
    
13. On 29 August 2022, at 11.23 am, I then noticed another version of Petition, this time it was signed, that was uploaded on IECMS by the Petitioner’s Lawyer.
    
14. Usually, I would have given the signed version of the Petition the sealed date of Monday 29 August 2022, noting that the filing date may be different.
    
15. I belief IECMS shows the Petition uploaded on 27 August 2022, is not the same document, is the sealed Petition that was uploaded on 29 August 2022.”
    

26. Kini Mamis said:

“1. I am the track leader for Election Petitions. I supervise the receiving, filing and administration of Election Petitions filings at the Waigani National Court.

2. The facts deposed to in this Affidavit are within my own knowledge except, where stated otherwise.
3. On 10 November 2022, I was asked by Gileng & Co Lawyers about receiving and sealing on IECMS registration of Petition and discrepancies on it. He made reference to EP 8 of 2022.
4. There are two existing filings of EP shown. An unsigned copy was uploaded on 27^th August 2022 to open the file on IECMS, and a signed version was also uploaded on 29^th August 2022.
5. The initial uploading of the Petition was approved on Saturday 27^th August 2022 for processing. This approval ensured an EP number was issued and EP 8 was the number issued.
6. We have standing instructions not to reject any defective fillings or documents filed on IECMS for Election Petitions (EP). So the documents filed on IECMS on the 27^th August were accepted as documents on IECMS.
7. I processed the signed Petition lodged on 29^th August 2022.
8. On IECMS all activities are captured and recorded. The Petition uploaded on 27^th August 2022 is captured. The sealed Petition lodged on 29^th August 2022 is captured. This also shows that one of them is back dated to the 27^th August 2022.”
   

27. None of the two Registry Officers mention which Registry Officer attended to Mr Francis Potape when he went to the Waigani National Court Registry and filed his Election Petition on 27 August 2022 as he claimed in his affidavit. Mr Potape did not state the time he attended at the National Court Registry in his affidavit on 27 August 2022.

28. Mr Potape said his petition was checked by his lawyer, Mr John Ole. He said he confirmed, he signed the Petition and that two attesting witnesses signed as well. Against his evidence, Ms Kini Mamis said the petition uploaded and lodged for filing on 27 August 2022 was not signed and not attested to by two attesting witnesses. She said a signed petition was uploaded and lodged for filing on 29 August 2022. She said she processed his petition on 29 August 2022.

29. If Mr Potape filed his signed and attested to petition at the National Court Registry on 27 August 2022, where is it? Which Registry Officer received him and attended to him to register and file his petition. Mr Potape did not identify the National Court Registry Officer who attended to him. In any case Mr Potape would have had a copy of the filed petition of 27 August 2022, duly signed and sealed and given to him which he could have attached to his affidavit of 3 February 2023. He did not. But we know that Kini Mamis attend to him on 29 August 2022.

30. Considering and balancing the evidence on behalf of all parties in this petition, I am minded to accept the version by the two National Court Registry Officers and Mr Justin Wohuinangu because the documents which were purportedly filed are reproduced in Mr Wohuinangu’s affidavit.
31. This leads me to find that the purported petition document uploaded on 27 August 2022 is invalid as it was not signed by the petitioner and not attested to by two witnesses. I also find that the document uploaded and lodged for filing on 29 August 2022 is invalid for being uploaded and lodged for filing out of the prescribed 40 days under s. 208 (c). As such, s. 210 of the Organic Law is invoked. There is no petition.

32. I have read the decisions by other Judges in Kilroy Genia v Puka Temu and the Electoral Commission, EP 69 of 2022, N10321, Diane Unagi Koram v John Kaupa and the Electoral Commission, EP 40 of 2022 and the factual circumstances in those petitions are different and I distinguish them from this petition.

REMAINING GROUNDS

33. Having made those findings, I find it not necessary to address the grounds raised by the Second Respondent. Similarly, there is no utility to address the other grounds of petition by the First Respondent.

34. The Orders of the Court are that the Notices of Objection to Competency filed by the First and Second Respondents are upheld and the entire Petition is dismissed.

35. Costs follow the event, and as such the petitioner is ordered to pay the costs to First and Second Respondents.

36. Security deposit paid by the petitioner is to be used to pay costs to First and Second Respondents in equal parts.

________________________________________________________________
Redman Lawyers: Lawyer for the Petitioner
Gileng & Co. Lawyers: Lawyer for the First Respondent
Ninkama Lawyers: Lawyer for the Second Respondent