Damaru v Yoto [2023] PGNC 329; N10483 (4 October 2023)

N10483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 58 OF 2022 (IECMS)

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

MATTHEW DAMARU
Petitioner

V

THE HON. TABOI AWI YOTO, MP
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Carey J
2023: 3^rd & 4^th October

ELECTIONS – Petitions – Objection to Competency of Petition based on section 208(a) and section 209 of the Organic Law on National and Local-Level Government Elections – whether a question raised in reference to interpretation of a Constitutional provision should be referred to the Supreme Court – whether petitioner complied with s. 209 of the Organic Law

The applicable matter before the Court is an election petition. However, before a matter proceeds to trial there may be Objection to Competency of the Petition as is in this instance. The First and Second Respondents objected to the competency of the petition on the grounds of section 208 (a) of the Organic Law on National and Local-Level Government Elections stating that the Petitioner failed to plead the facts properly. The second grounds for objection to competency by the First and Second Respondents was that the petition did not comply with section 209 of the Organic Law on National and Local-Level Government Elections because the Petitioner did not deposit with the Registrar of the National Court the sum of K5,000 as security costs at the time of filing the petition.

Held:

1. The petition was not filed in accordance with section 209 of the Organic Law on National and Local - Level Government Elections.
2. The Petitioner has failed to comply with section 210 of the Organic Law on National and Local-Level Government Elections and cannot be heard.
3. The petition is dismissed.
4. The security deposit of K5,000 be paid to the Respondents in equal portions.
5. The Petitioner shall pay the costs of the proceedings for the First and Second Respondents, to be taxed if not agreed.
   

Cases Cited
Aihi v Isoaimo [2015] SC1598
Amet v Yama [2010] PGSC 46; SC1064
Epi v Farapo [1983] SC247
EP No 61 of 2022 – Jean Eparo Parkop v Garry Juffa & Electoral Commission (2023) N10336
Hagahuno v Tuke & Electoral Commission [2020] SC2018
Lowa v Wapula Akipe [1992] PNGLR 399; SC430
SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405

Legislation Cited
National Constitution of PNG
Organic Law on National and Local – Level Government Elections

Counsel:
K. Kulip, for the Petitioner
P. Tamutai, for the First Respondent
N. Onom, for the Second Respondent

JUDGMENT

4^th October, 2023

1. CAREY J: This is a ruling on two Notices of Motion with regard to Objection of Competency by the First and Second Respondents.

2. Mr. Matthew Damaru (the Petitioner) was a candidate for the Western Provincial Electorate (the WPE) in the 2022 National General Election.

3. The Petitioner disputes the election result in which the Hon. Taboi Awi Yoto (the First Respondent) was successful and is the Member for WPE.

4. The First Respondent objected to competency under section 208 (a) of the Organic Law on National and Local – Level Government Elections (the OLNLE).

5. Further, the First Respondent objected to competency under section 209 of the OLNLE.

6. The First Respondent argued that as a result of the Petitioner not complying with section 208 (a) and section 209 of the OLNLE, the proceedings could not be heard per section 210 of the OLNLE.

7. The Electoral Commission (the Second Respondent) adopted the First Respondent’s submission in terms of the Objection to Competency under section 208 (a) of the OLNLE.

8. The Petitioner filed a Notice of Motion objecting to the Notice of Motion filed and served on 29^th June 2023 by the Second Respondent on the basis that the Second Respondent had failed to file a proper Notice of Motion based on non-compliance of Rule 12 of the Election Petition (Miscellaneous Amendments) Rules 2022 (the Rules) for Notices of Objection to Competency.

9. In an oral judgment specifically related to paragraph 8, that Notice of Motion was refused applying Amet v Yama [ 2010] PGSC 46; SC 1064 that in the interest of justice warrants the exercise of the Courts discretion and also Rule 22 of the Rules states that, “The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.”

(1) WHETHER THE PETITIONER HAS SET OUT THE FACTS THAT CONSTITUTE A GROUND OR GROUNDS UPON WHICH THE RETURN OF WPE MAY BE INVALIDATED AS REQUIRED UNDER SECTION 208(a) OF THE ORGANIC LAW?

10. The Petitioner argued applying Hagahuno v Tuke & EC [2020] SC2018 and Section 217 of the OLNE that “the National Court shall be guided by the merits and good conscience of each case without regard to legal forms or technicalities”.

11. The First Respondent’s submission that the Petitioner has not set out facts that constitute a ground upon which the return of WPE may be invalidated as required under section 208(a) is not accepted.

12. The Petitioner has indicated an illegal practice known as Bribery which can invalidate an election or return.

13. The First Respondent’s argument that the Petitioner’s submission does not comply with Section 208 (a) of the OLNLE fails and is rejected.

(2) WHETHER RELIEFS SOUGHT UNDER PARAGRAPHS D1 to D6 IN THE PETITION ARE INVALID FOR NON-COMPLIANCE WITH SECTION 212 OF THE ORGANIC LAW?

14. The First Respondent submits that a breach of constitutional duties does not have relevance in terms of being a ground under the OLNLE to vitiate the return of an election.

15. The Petitioner sought an order under section 18(2) of the Constitution to refer questions to the Supreme Court for interpretation.

16. The First Respondent argues that interpretation of a constitutional provision under section 18(2) of the Constitution cannot form a cause of action in the National Court applying Lowa v Wapula Akipe [1992] PNGLR; SC430.

17. Further, the First Respondent contends that the Court of Disputed Returns does not have the powers to review an administrative decision of a Provincial Government given its remit to comply with section 212 (1) of the OLNLE.

18. The Court should only make references under section 18(2) of the Constitution when it is necessary to do so SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405. In this instance it is not necessary to do so.

19. The submission by the First Respondent that reliefs sought under paragraphs D1 to D6 in the Petition are invalid for non-compliance with Section 212 of the OLNLE are not material to the objection to competency hurdle save paragraph D1 which if the Petition were successful would be compliant.

20. It is therefore not substantive for any further discussion by the Court on this particular question.

(3) WHETHER THE PETITIONER FAILED TO COMPLY WITH THE PREREQUISITE OF SECTION 209 OF THE ORGANIC LAW WHEN FILING THE PETITION?

21. Section 209 of the OLNLE states that “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 costs”.

22. The Petitioner submits that the security deposit of K5,000.00 was paid into the National Court Registry’s Trust Account on 9^th September 2022, and copy of the receipt was filed with the petition on 12 September 2022.

23. As indicated by EP No 61 of 2022, the National Court is not bound to follow any decision of the National Court (Constitution, Schedule 2, Part 5, 9(2)).

24. I accept that real justice must prevail as stated in Section 217 of the OLNLE. For emphasis:

“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.”

25. Applying paragraph 22 and being bound the Supreme Court case of Epi v Farapo [1983] SC247 which was also followed in Aihi v Isoaimo [2015] SC1598, the argument that the Second Respondent submits is accepted.

26. The word “shall” mean shall and to add to or take away from the intention of section 209 when read with section 217 of the OLNLE is not within the purview of this court.

27. This court accepts that it is bound by the decision of the Supreme Court that has applicability without deviation.

28. It then follows, that the petition was not filed in accordance with section 209 of the OLNLE.

29. The Petitioner has failed to comply with section 210 of the OLNLE and therefore the proceedings cannot be heard.

CONCLUSION

30. It is instructive to other litigants to ensure that they comply with the requirements of the OLNLE.

31. In my view the National Court has limited ability to deviate from the requirements as set out in the OLNLE.

32. Relief from the Rules is distinct from vitiating the need to comply with the OLNLE.

33. The petition is incompetent and therefore dismissed.

ORDERS

It is ordered that:

1. The petition is dismissed.
2. The security deposit of K5,000 be paid to the Respondents in equal portions.
3. The Petitioner shall pay the costs of the proceedings for the First and Second Respondents, to be taxed if not agreed.

________________________________________________________________
Young & Williams Lawyers: Lawyers for the Petitioner
Tamutai Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent