Nupiri v Powi [2023] PGNC 423; N10390 (3 July 2023)

N10390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 91 OF 2022 [IECMS]

IN THE MATTER OF DISPUTED RETURN FOR THE
SOUTHERN HIGHLANDS PROVINCIAL ELECTORATE

BETWEEN
PETER NUPIRI
Petitioner

AND:
HON. WILLIAM POWI
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Miviri J
2023: 03^rd July

ELECTION – Parliamentary – Petition – Notice of Motion Pursuant to Rule 22 (1) Election Petition Rules 2017 (As Amended) & Inherent Powers of Court, Section 212 (1) OLNLLGE –Application for Leave to Include An Additional Ground To Earlier Filed Objection – Discretionary – Section Security Deposit Paid Before Filing of Petition – Section 209 OLNLLGE Breached – Section 210 OLNLLGE No Proceedings – Incompetency of petition – Jurisdictional Grounds – No Prejudice Leave Granted – Cost will follow Event in the Cause.

Facts
The First Respondent seeks leave to include an additional ground in the Notice of Objection filed originally on 20^th October 2022 invoking section 209 of the Organic Law on National & Local Level Government Elections contending 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 for costs. The security Deposit was paid before the petition and so it offended against section 209 of the OLNLLGE. Both not having been done one and at the same time together there and then, but 8 eight days apart of each other. National & Supreme Court support making it law. Leave be granted to amend and include.

Held
Leave granted to amend as applied on the basis of Rule 22 (1) of Election Petition Rules 2017 (As Amended) requirements of Rule 12 dispensed with read in accordance with section 212 (1) OLNLLGE.
Leave granted to amend in accordance with Draft affidavit of Applicant First Respondent. Cost in cause.

Cases Cited:
Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC1064
Nobert Kubak v Malakai Tabar [2012] PGNC 286; N4992
Andrew Kumbakor v Joseph Sungi [2012] PGNC 287; N5002
Yagama v Ugoro [2018] PGNC 68; N7134
Ibo v Hagahuno [2023] PGNC 132; N10322
Aihi v Isoaimo & ECPNG [2015] SC1598
Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247
Manwau v Bird & ELPNG [2023] N10249
Delba Biri v Bill Ninkama [1982] PNGLR 342

Counsel:

E. M. Waifaf, for the Petitioner
A. Baniyamai, for the first Respondent
H. Nii for the second Respondent

RULING

03^rd July 2023

1. MIVIRI J: This is the ruling on the notice of motion of the 20^th June 2023 by the first Respondent who seeks leave of the Court pursuant to Rule 22 (1) of the Election Petition Rules 2017 (As Amended) and the inherent powers of the Court that the requirements of Rule 12 of the Election Petition Rules be dispensed with and leave be granted him to raise an additional ground to his Objection initially filed of the 20^th October 2022 in the following terms:
   
   • (i) Pursuant to Rule 22 (1) of the Election Petition Rules 2017 (As Amended), and the inherent powers of the Court, the requirements of Rule 12 of Election Petition Rules be dispensed with and leave be granted to the First Respondent to raise an additional ground to his objection to competency filed on 20^th October 2022 in the following terms; “ The petition was filed on 23^rd September, 2022, 8 days after payment or deposit of the security for costs into the National Court Registrar’s Trust Account No. 1000583618 with Bank of South Pacific Ltd on 15^th September, 2022, and hence offends against section 209 of the Organic Law.”
     
   • (ii) Pursuant to section 212 (1) Organic Law on National & Local level Government Elections, and the inherent powers of the Court, the First Respondent be granted leave to file and serve an amended Notice of objection inclusive of the proposed amendment as per paragraph 1 above forthwith.
     
   • (iii) Pursuant to section 212 (1) and (3) Organic Law on National & Local Level Government Elections, and the inherent powers of the Court, the First Respondent be allowed to make submissions in support of the proposed additional grounds to his notice of Objection as per paragraph 1 above at the commencement of the trial on 03^rd July 2023.
     
   • (iv) Each Party shall meet their own costs of the petition.
     
2. He formally entered a notice of objection to the petition on the 20^th October 2022 putting the petitioner on notice that he was objecting. And this is seeking leave to add a further ground set out by the facts and circumstances here clearly not parallel with the Organic Law in particular section 209. Which in itself is a serious fact and matter of Jurisdiction of the Court and can be raised at any time. It is by that fact open to the scrutiny of the Court at any time, and it only takes to look at the formal documents filed in court to ascertain that fact. The records of the Court will speak. In that regard it is not new ground in that sense as notice is given by itself on record in court. It is documents that are filed by the Petitioner by requirements set out by section 209, “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.”
   
3. In my view leave can be granted because this issue posed rises from the petition dated the 23^rd September 2022 by the Petitioner. It is to be read together with when the K5000.00 was paid by the petitioner into the National Court Registrar’s trust Account and that is the security deposit that has been deposited to by the Notice of Payment of Security Deposit signed by the Registrar of the Court Ian Augerea.
   
4. It is based on the official court records held by the registry of the Court at the discretion of the Court to use in the use of the determination of the matter before it. It is not a surprise or an ambush and would not prejudice the petition given he was the one who laid those documents into the records of the Court. And that is the record upon which the first respondent invokes to comprise one of its grounds in addition to what it has already filed 20^th October 2022. It is therefore a very relevant matter as the Court must follow and apply the law in all that it does. And it is no different given here by the facts and circumstances now apparent. This view is undisputed as reaffirmed in Sir Arnold Amet v Peter Yama [2010] PGSC 46 SC 1064 (9 July 2010); Nobert Kubak v Malakai Tabar [2012] PGNC 286; N4992 (15 November 2012); Andrew Kumbakor v Joseph Sungi [2012] PGNC 287; N5002 (7 December 2012). Because section 210 of the Organic Law is the pillar that runs through this dispute authoritatively sanctioning whether or not a petition will proceed or not by the application of the mandatory requisites under Section 208 and 209 of the Organic Law if not fully complied with.
   
5. Here is an application that has been filed the 20^th June 2023. In my view following Yagama v Ugoro [2018] PGNC 68; N7134 (20 February 2018) dispensation can be granted given that this is application made ontop of the original notice of objection to competency filed 20^th October 2022. It is not late filing because it is not the record here. There is no prejudice to the petitioner because should leave be refused costs will remedy any prejudice. And in any event, it is a jurisdiction issue that goes to the heart of the petition and must be heard as there are Supreme Court decisions that are relevant and lay out the law here followed in many National Court decisions: Ibo v Hagahuno [2023] PGNC 132; N10322(12 June 2023); Aihi v Isoaimo & ECPNG [2015] SC1598; Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 (28 March 1983) and Manwau v Bird & ELPNG [2023] N10249.
   
6. And this is so because the word used at the outset is “shall” as opposed to “May”, it is therefore mandatory invoking strict compliance. This is confirmed by Section 210. No Proceedings unless requisites complied with, “Proceedings shall not be heard on a petition unless the requirements of section 208 and 209 are complied with.” Section 209 relates to K 5000 as security for costs.
   
7. This view is affirmed by the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 at p 345:
   

“it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause ... and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right, and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority."

8. In my view it is arguable and a very strong position in law. The discretion is open in view of the law to grant as applied. This is not a question of determining whether it is a strict or liberal interpretation, it is a necessary point of law that must be addressed to see whether the Court has jurisdiction to hear the matter inclusive of the issue now raised. And whether leave has been demonstrated by the facts relied on in the affidavits of Hon. William Powi sworn of the 19^th June 2023 filed of the 20^th June 2023, with that of Dawah Kelebi also sworn and filed same. Both documents evidence prima facie real basis for the discretion to be granted to include additional ground. The dates posed in both evidence raise issues that align with the inclusion of the question raised by the Notice of Motion. And Leave will be granted in the terms of that notice of motion set out above.
   
9. And I make the following orders:
   
   • (i) Pursuant to Rule 22 (1) of the Election Petition Rules 2017 (As Amended), and the inherent powers of the Court, the requirements of Rule 12 of Election Petition Rules be dispensed with and leave is now granted to the First Respondent to raise an additional ground to his objection to competency filed on 20^th October 2022 in the following terms; “ The petition was filed on 23^rd September, 2022, 8 days after payment or deposit of the security for costs into the National Court Registrar’s Trust Account No. 1000583618 with Bank of South Pacific Ltd on 15^th September, 2022, and hence offends against section 209 of the Organic Law.”
     
   • (ii) Pursuant to section 212 (1) Organic Law on National & Local level Government Elections, and the inherent powers of the Court, the First Respondent is now granted leave to file and serve an amended Notice of objection inclusive of the proposed amendment as per paragraph 1 above forthwith.
     
   • (iii) Pursuant to section 212 (1) and (3) Organic Law on National & Local Level Government Elections, and the inherent powers of the Court, the First Respondent is now allowed to make submissions in support of the proposed additional grounds to his notice of Objection as per paragraph 1 above at the commencement of the trial on 03^rd July 2023.
     
   • (iv) Each Party shall meet their own costs of the petition.
     

Orders accordingly.

______________________________________________________________
Edward M. Waifaf Lawyers: Lawyer for the Petitioner
Baniyamai Lawyers: Lawyer for First Respondent
Harvey Nii Lawyers: Lawyer for the Second Respondent