Aigilo v Ipatas [2023] PGNC 324; N10467 (11 September 2023)

N10467

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 21 OF 2022 (IECMS)

IN THE MATTER OF A DISPUTED RETURN FOR THE ENGA PROVINCIAL ELECTORATE

BETWEEN
LAKEN LEPATU AIGILO
Petitioner

AND
SIR PETER IPATAS
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J.
2023: 4^th & 11^th September

ELECTION PETITION – Competency – Form – Dating of – Whether failure to date the petition renders the petition incompetent - Rules 4 and 22 of Election Petition Rules.

Cases Cited:
Glen Kiso v Ian Ling-Suckey (2023) N10290
Rumet v Marat (2023) N10203
Talita v Ipatas [2016] SC1603
William Hagahuno v Johnson Tuke [2020] SC2018

Counsel:

Petitioner in person
G. Manda with M. Alyata, for the First Respondent

A. Serowa with N. Onom, for the Second Respondent

11^th September 2023

1. MANUHU, J.: This is an election petition disputing the first respondent’s victory in the 2022 National General Election for the Enga Provincial Seat where the first respondent surpassed the absolute majority with 172,652 votes while the petitioner was running second with 30,352 votes. Before me are the respondent’s objections to the competency of the petition.
   
2. The grounds are numerous, but I wish to deal with two that raise threshold issues which, if successful, could terminate the petition. It is alleged firstly that the petition is not dated and, secondly, the petitioner wasn’t qualified to nominate as a candidate for Enga Regional Seat.
   
3. It is not disputed that the petition is not dated. Proof of absence of date in the petition is reproduced hereunder:
   

“PETITIONER (being a candidate at the election or by a person who was qualified to vote at the election, in accordance with section 208 (c) of the Organic Law), on ............ September 2022, at WAIGANI National Capital District, Papua New Guinea.”

4. The obvious question is whether failure to date the petition renders the petition incompetent.
   
5. It was submitted by the respondents that when a critical part of the petition is not met, such as the date of signing by the petitioner and the attesting witnesses, the petition is defective because it is not a petition in accordance with Form 1 of the Election Petition Rules (“The Rules”). The petitioner simply submitted that the failure is not a requirement of section 208 of the Organic Law on National and Local Level Government (“The Organic Law”) and, presumably, is not fatal.
   
6. Under section 9 of the Constitution, the laws of Papua New Guinea consist of the Constitution, the Organic Laws, Acts of Parliament, Emergency Regulations, provincial laws, laws made under or adopted by or under the Constitution or any of those laws, including subordinate legislative enactments made under the Constitution or any of those laws, the underlying law and none other.
   
7. Election petition form is provided for in the Rules, which is a subordinate legislation. It is law. If petitions comply with the Rules, and the Organic Law, there would be less objections to competency.
   
8. Unfortunately, after every national general election, the courts have had to deal with a high number of election disputes and objections to competency. In the process, some of us took a strict approach while others took a liberal approach. With due respect, the hardline approach resulted in petitions getting dismissed for very simple errors such as misspelling of names. There were differing views also in relation to the application of section 217 of the Organic Law. Some were of the view that it applies during the trial only while others were of the view it applied throughout the proceeding.
   
9. Given the political condition in the country, the growing concern was for the courts to try to be consistent in their decisions. In 2018, a five-member bench was constituted in William Hagahuno v Johnson Tuke (2020) SC2018 to try to reconcile the differing views. The decision speaks for itself. In 2022, Judges amended the Rules to, among other things, accommodate the decision of the five-men bench.
   
10. Rule 22 is one of the provisions that was amended. It now reads:

“22 Relief from the Rules

“(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

“(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.

“(3) No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

“(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirements of s 217 of the Organic Law.”

11. Therefore as a matter of procedural law, a petition is safe when it meets the requirements of law in the Organic Law and the Rules. Where any issue arises as to want of form or want of better pleadings, which are usually raised in an objection to competency, Rule 22 avails a petitioner a second chance. Thus, if a defective petition can’t be saved by Rule 22, it would be open to the court to dismiss the petition for being incompetent.
    
12. This is a case where Rule 4 provides in mandatory terms that a petition “shall” be in accordance with Form 1. In Form 1, a petition must be signed and dated by the petitioner. In my view, the mandatory force of these requirements is derived from Rule 4.
    
13. It is not disputed that the petition is not dated. Can the petition be saved by Rule 22? The petitioner could have relied on Subrule (1) but he didn’t apply for a waiver. He maintained that dating is not a requirement of the Organic Law. Consequently, no arguments were heard in relation to whether the court should dispense with the requirement. In the circumstances, I am not prepared to dispense with the requirement.
    
14. Under subrule (2), substantial compliance is sufficient compliance. Thus, where town and Province are not stated by a witness, it is sufficient compliance if village, Ward and LLG are stated: Rumet v Marat (2023) N10203 and Talita v Ipatas [2016] SC1603. In this case, even if I were to take a liberal approach, stating only the month and year is still unsatisfactory. It does not disclose when the petition was signed.
    
15. A petition, like other originating processes in this jurisdiction, becomes a legal document when it is signed and dated. The signature legally binds the signatories. The date in a document is when it became a legal document. The legal document is binding on the signatories from that date. Dating a petition is therefore an important requirement in the Rules.
    
16. I am therefore unable to make the finding that there is sufficient compliance when only the month and year are stated.
    
17. In relation to subrule (3), Form 1 requires the petition to be dated when the petition here is effectively undated. In Glen Kiso v Ian Ling-Stuckey (2023) N10290, the petition was dismissed on the basis that the petition pleaded postal addresses of attesting witnesses when Form 1 requires street addresses. In the circumstances, I also find that failure to date the petition is a substantial non-compliance.
    
18. Subrule (4) is not applicable. The alleged failure does not directly concern any provision of the Organic Law.
    
19. In the final analysis, with no date, the petition is defective, and it cannot be saved by Rule 22. It leaves me with only one option and that is to dismiss the petition. I so order with costs which, if not agreed, shall be taxed. The security deposit shall be paid in equal shares to the respondents.
    
20. It is not necessary to deal with the remaining grounds.
    

Orders accordingly.

Lawyer for the Petitioner: In Person
Greg Manda Lawyers: Lawyer for the First Respondent
Palem Onom Lawyers: Lawyer for the Second Respondent