Manwau v Bird [2023] PGNC 94; N10249 (2 March 2023)

N10249

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

E.P. NO. 37 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND:
IN THE MATTER OF A DISPUTED RETURN FOR THE EAST SEPIK REGIONAL ELECTORATE

BETWEEN:
MOSES MANWAU
Petitioner

AND:
HON. ALLAN BIRD
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Gavara-Nanu, J
2023: 2^nd March

ELECTION PETITION – Objection to competency – Organic Law on National and Local-level Government Elections – ss. 208; 209; 210 and 217 – Constitutional laws - Mandatory provisions – Need for strict compliance – Non-compliance – Payment of security for costs under s. 209 – Payment to be made at the time of filing petition – Payment not made at the time of filing petition - Petition incompetent – Section 217 not a remedy to incompetency of a petition for non-compliance with mandatory requirement under s. 209 of the Organic Law on National and Local-level Government Elections.

ELECTION PETITION – Organic Law on National and Local-level Government Elections; s. 209 – Payment of security for costs – Statutory definition of security for costs – Fair and liberal meaning - Intention of the Legislature paramount – Constitution; Sch. 1.5 (1) and (2).

Cases Cited:
Aihi v. Isoaimo (2015) SC1598
Amet v. Yama (2010) SC1064
Application By Dr Kereme v. Hon. Peter O’Neil & Ors (2010) SC1781
Brian Kramer v. Nixon Duban & Andrew Traven, Electoral Commissioner of PapuaNew Guinea (2013) N5688
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Gavera Rea v. Mahuru Rarua Rarua [1977] PNGLR 338
Hagahuno v. Tuke [2020] PGSC 105; SC2018
Malipu Balakau v. Paul Torato [1983] PNGLR 242
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Paru Aihi v. Sir Moi Avei (N0.2) (2003) SC720
Peter Charles Yama v. Anton Yagama (2012) N4928
Ref No.1 of 1977 [1977] PNGLR 362
SCRev. No. 5 of 1988; Kasap v. Yama [1988-89] PNGLR 197
The Independent Tribunal; Ex-parte Moses Sasakila [1976] PNGLR 491
Tom Olga v. Pius Wingti (2005) SC938

Counsel:
M. Murray, for the Petitioner
P. Kuman, for the First respondent
H. Nii, for the Second Respondent

2^nd March, 2023

1. GAVARA-NANU J: Before the Court are two objections filed by each of the respondents (objections) challenging the competency of the petition.
   
2. The first respondent raises four grounds of objection. The first two grounds allege the petitioner and the two attesting witnesses failed to sign the petition as required under s. 208 (c) and (d) of the Organic Law on National and Local-level Government Elections (OLNLGE). The third ground alleges the petitioner failed to deposit the required K5,000.00 security for costs with the Registrar of the National Court at the time of filing the petition as required under s. 209 of the OLNLGE. The fourth ground alleges the petitioner failed to plead facts regarding three bribery allegations made against the first respondent.
   
3. The second respondent raises two grounds of objection. The grounds allege the petitioner failed to plead facts properly and adequately regarding certain allegations made against both respondents.
   
4. The parties agreed that both objections should be heard together given that second respondent raises same grounds of objection raised by the first respondent. The first respondent made his submissions first, then the second respondent, essentially supporting the first respondent’s arguments.
   
5. During submissions by counsel, the first respondent’s third ground of objection, viz; the petitioner not paying the required K5,000.00 security for costs with the Registrar of the National Court at the time of filing the petition on 7^th September, 2022, as required under s.209 of the OLNLGE became the principal and the determinative issue.
   
6. Thus, the arguments by counsel were mainly centred around the issue of whether the petitioner paid the security for costs at the time of filing the petition with the Registrar of the National Court on 7^th September, 2022.
   
7. The main argument by Mr Peter Kuman of counsel for the first respondent was that because the petitioner did not pay the required K5,000.00 security for costs at the time of filing the petition with the Registrar of the National Court on 7^th September, 2022, the petition is in breach of s. 209 of the OLNLGE and is incompetent. He argued that the petition should be dismissed in its entirety. He relied on the documentary evidence which show that petition was filed on 7^th September 2022, but the security for costs was paid the day after on 8^th September 2022, which he said is contrary to the mandatory requirement under s. 209 of the OLNLGE.
   
8. Mr Harvey Nii of counsel for the second respondent supported Mr Kuman’s arguments.
   
9. Mr. Moses Murray of counsel for the petitioner in reply initially argued that whilst it is true that the K5,000.00 security for costs was not paid and deposited with the Registrar of the National Court at the time the petition was filed on 7^th September, 2022, he said he personally deposited K3,000.00 in part payment for the security for costs with the Registrar of the National Court on 7^th September, 2022. He told the Court that he personally made repeated attempts to pay the K5,000.00 security for costs in full on 7^th September, 2022, but could not because the BSP EFTOS machines could not authorize withdrawal of the full K5,000.000 from his wife’s BSP account. Thus, he only managed to make part payment of K3,000.00 on 7^th September, 2022. He argued that the Court should note his genuine efforts to pay the K5,000.00 security for costs on 7^th September, 2022, to comply with the requirements of s. 209. He submitted that, in those circumstances the security for costs should be deemed or treated by the Court as having been paid and deposited with the Registrar of the National Court on 7^th September, 2022. He submitted that adopting such an approach by the Court would be in harmony with the requirements of s. 217 of the OLNLGE.
   
10. After further arguments by counsel and exchanges between the bar and the bench, Mr Murray sought a short adjournment to consult his client. After the adjournment, Mr Murray informed the Court that his client was conceding that the security for costs was not paid at the time the petition was filed on 7^th September, 2022, as required under s. 209 of the OLNLGE and conceded that the petition is incompetent.
    
11. Before the petitioner conceded the incompetency of the petition, the Court stressed the mandatory nature of ss. 208; 209 and 210 of the OLNLGE, thus requiring strict compliance with their requirements. It was stressed that in respect of s. 209, the requirement for strict compliance related to the payment of the security for costs at the time of filing the petition. The Court took this approach to assist parties appreciate the issues at hand and the strength of their respective arguments. That prompted Mr Murray to consult his client which resulted in the petitioner conceding the incompetency of the petition.
    
12. Although the petitioner has conceded the incompetency of the petition, thus putting an end to the matter, the parties raised issues regarding s. 209 which are important. I would therefore like to make some observations regarding requirements of s. 209, hence s, 210.
    
13. It is instructive to set out ss. 208, 209 and 210 of the OLNLGE. The provisions are in these terms:
    

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 courthouse 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.

14. Part of Mr Murray’s initial argument was that although he only made a part payment of K3,000.00 for security for costs on 7^th September, 2022, given his genuine efforts to pay the required K5,000 for security for costs in full that day, the Court should adopt a subjective test and accept that such efforts constituted compliance, if not sufficient compliance with the substantial merits and good conscience of the case as required under s. 217 of the OLNLGE. He submitted that the Court should therefore accept that the petitioner complied with or is deemed to have sufficiently complied with s. 209 of the OLNLGE.
    
15. It is also instructive to set out s. 217 of the OLNLGE, it is in these terms:
    

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.

16. Pursuant to Schedule 1.2 of the Constitution, ss. 208, 209 and 210 of the OLNLGE are constitutional laws. They are in mandatory terms; therefore, the Court is required to apply and enforce them strictly. The court has no power to strike these provisions down in anyway, to do so would amount to abuse of power thus affecting the jurisdiction of the Court to determine the petition. It would also result in diluting the mandatory nature of the provisions. See, Application By Dr Kereme v. Hon. Peter O’Neil & Ors (2010) SC1781. The provisions of the OLNLGE may be struck down but only if they are inconsistent with the Constitution. See, Malipu Balakau v. Paul Torato [1983] PNGLR 242 and SCRev. No.5 of 1988; Kasap v. Yama [1988-89] PNGLR 197. The need for strict compliance with these mandatory provisions and any other mandatory provisions of the OLNLGE for that matter, goes to the jurisdiction of the Court as they confer power on the Court to among others, hear and determine election petitions. The mandatory requirements under s. 210 put it beyond doubt that failure by a petition to comply strictly with the mandatory requirements of ss. 208 and or 209 would automatically render a petition incompetent and the Court would lack jurisdiction to hear and determine such petitions. See, Delba Biri v. Bill Ninkama [1982] PNGLR 342 and Amet v. Yama (2010) SC1064.
    
17. It follows that once a petition is rendered incompetent for non-compliance with the mandatory requirements of ss. 208 and or 209, that is the end of the matter, because the Court would be prohibited by the mandatory requirements of s. 210 from hearing and determining the petition. In my opinion, s. 217 cannot remedy the incompetency of a petition for non-compliance with the requirements of ss. 208 and 209 of the OLNLGE. Section 210 would put an end to the matter for non-compliance with ss. 208 and 209. See, Aihi v. Isoaimo [2015] SC 1598. The full payment of the prescribed K5,000.00 security for costs at the time of filing the petition with the Registrar of the National Court is proof that the petitioner is serious in challenging the result of the election and that the petition is genuine. See, Paru Aihi v. Sir Moi Avei (No.2) (2003) SC720 and Tom Olga v. Pius Wingti (2005) SC938. In this case, the petitioner breached this fundamental requirement.
    
18. The operative words in s. 209 are “at the time of filing the petition”, (the petitioner shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for costs). These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning than their plain and ordinary meaning, which is, the prescribed security for costs in the sum of K5,000.00 had to be paid in full on 7^th September, 2022, when the petition was filed with the Registrar of the National Court. To give any other meaning to the words would not only result in this Court striking down the mandatory constitutional law, but it would also give rise to serious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.
    
19. Sections 9 and 10 of OLNLGE are intended by the legislature to protect the integrity of the electoral process by making them mandatory for the petitioner to strictly comply with. The requirement under s.209 for a petitioner to pay and deposit the security for costs with the Registrar at the time of filing the petition is therefore not without significance. The provision ensures that the Registrar is also aware that the petitioner had also paid the security for costs. This requirement signifies the special nature of election petition proceedings, and it goes to the jurisdiction of the Court to hear and determine the petition. It also signifies the special nature of the electoral process in a democratic system which allows the community a free and fair opportunity of electing the candidate that the majority prefers. As part of that process, the OLNLGE creates strict provisions for compliance for the purposes of controlling and regulating any challenge by an election petition against the expression of the will of the majority. Such a process is inherently alien to the ordinary judicial process but is of a special nature and the courts may only interfere with the process upon proof of a very high standard of certain well-established principles. See, Neville Bourne v. Manesseh Voeto [1977] PNGLR 298; Brian Kramer v. Nixon Philip Duban & Andrew Traven, Electoral Commissioner of Papua New Guinea (2013) N5688 and Malipu Balakau v. Paul Torato (supra).
    
20. The need for strict compliance with ss. 209 and 210 in this instance is dictated by their mandatory terms.
    
21. When considering the requirements of s. 208 and 209, the Court is also required throughout the entire election petition proceeding to have regard to the requirements of s. 217 for guidance. See, Gavera Rea v. Mahuru Rarua Rarua [1977] PNGLR 338 and Hagahuno v. Tuke [2020] PGSC 105; SC2018.
    
22. It is also instructive to set out Schedule 1.5 of the Constitution. It is in these terms:

Sch. 1.5 Fair meaning to be given to language used.

(1) Each Constitutional Law is intended to be read as a whole.

(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.

23. Section 217 being a key provision of the OLNLGE, the Court must have full regard to its requirements throughout an election petition proceeding and give effect to its legislative intent to “observe real justice”. See, Ref. No. 1 of 1977 [1977] PNGLR 362 and The State v. The Independent Tribunal, Ex-parte Sasakila [1976] PNGLR 491; Hagahuno v. Tuke (supra) and Peter Charles Yama v. Anton Yagama (2012) N4928) and Gavera Rea v. Mahuru Rarua Rarua (supra). Thus, the courts must be guided by the terms of s. 217 in their deliberations in any election petition proceeding.
    
24. Returning now to s. 209, giving the words “security for costs” in the provision their fair and liberal meaning in my judgment must mean the prescribed amount of K5,000 which must be paid at the time the petition is filed with the Registrar of the National Court, which in this instance was on 7^th September, 2022. Section 209 in essence imposes a duty on the petitioner to deposit the K5,000.00 security for costs in full at the time the petition is filed. The word “time” in s. 209 is critical, it relates to the full K5,000.00 being paid at the same “time” the petition is filed with the Registrar of the National Court. That is the clear intention of the legislature in s. 209 and the Court’s duty is to apply and give full effect to it. Section 209 therefore lays down the criterion a petitioner must meet, viz; to deposit the full K5,000.00 security for costs at the time the petition is filed with the Registrar of the National Court. This will prove that the petitioner is serious and genuine in challenging the election of the winning candidate, who has the mandate and the right given to him by the voting majority to hold public office pursuant to s.50 of the Constitution as a Member of Parliament. See, Tom Olga v. Pius Wingti (supra). Thus, the full payment of the prescribed K5,000.00 security for costs by the petitioner at the time of filing the petition with the Registrar is a serious matter and is the condition precedent to a petition being competent. See, Application for Review by Kasap v. Yama (supra).
    
25. It is therefore a fundamental requirement under ss. 209 and 210 that the prescribed K5,0000. 00 security for costs is paid in full at the time of filing a petition with the Registrar of the National Court. It follows that the security for costs cannot be paid at any other time, viz; either before or after a petition is filed with the Registrar of the National Court. This is made clear by the mandatory terms of s. 210, which is, if the requirements of s. 209 are not complied with strictly, the Court will as I alluded to above lack jurisdiction to hear and determine the petition.
    
26. As a result, in this instance, the failure by the petitioner to pay the K5,000.00 security for costs at the time of filing the petition with the Registrar of the National Court on 7^th September, 2022 is fatal to the petition.
    
27. For the foregoing reasons, the petition is incompetent and is dismissed in its entirety.
    
28. It is not necessary for me to consider other three grounds in the first respondent’s objection and the grounds of objection raised in the second respondent’s objection.
    
29. The petitioner will pay the respondents’ costs of and incidental to these applications on party/party basis, which are to be taxed, if not otherwise agreed.
    
30. The security for costs is to be paid to the respondents in equal portions.
    
31. Orders accordingly.

________________________________________________________________________

Murray & Associates: Lawyers for the Petitioner

Kuman Lawyers: Lawyers for the First Respondent

Harvey Nii Lawyers: Lawyers for the Second Respondent