Bawa v Parkop [2024] PGNC 310; N10987 (23 August 2024)

N10987

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 100 OF 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR THE NATIONAL CAPITAL DISTRICT PROVINCIAL ELECTORATE

BETWEEN:
ANDY BAWA
Petitioner

AND:
POWES PARKOP
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Lae: Dingake J
2024: 13^th May, 23^rd August

ELECTIONS -Filing of petition and payment of security – Section 209 speaks for itself – It must be at the same time – Not different dates – The requirement is strict – National Court bound by decisions of Supreme Court – No discretion for National Court to relax the provisions of section 209 of the Organic Law

Held:
The security deposit having been paid on a different date to the date the petition was filed renders the petition incompetent.

Cases Cited:
Mathew Damaru v Hon. Taboi Awi Yoto [2024] PGSC 43; SC2576
Peter Nupiri v William Powi (2023) SC2459
Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249

Counsel:
Mr. Ralph Diweni, for the Petitioner
Mr. Dawidi Timwapa, for the First Respondent

RULING

23^rd August 2024

1. DINGAKE J: INTRODUCTION: This is my Ruling on a contested objection to competency application by the First Respondent, in which he contests the competency of the petition by the Petitioner, Mr. Andy Bawa.
   

Background

2. The Petitioner and the First Respondent were candidates who contested the National Capital District Provincial Electorate in the 2022 General Elections.
   

Grounds of Objection to Competency

3. The First Respondent raises several grounds in contending that the petition is incompetent. The grounds include the following:
   
   1. That the Petitioner did not comply with Section 209 of the Organic Law on National and Local-Level Government Elections (“Organic Law”), in that the security deposit was paid on a different date to the date to the petition was filed.
      
   2. Failure to plead facts as required by Section 208(a) the Organic Law.
      

Dipositive Facts

4. The Dipositive facts in this matter are not in dispute. There is no need to embellish the judgment with irrelevant facts relating to the main issue that falls for determination in this case, namely, was the petition incompetent for the reasons that the security deposit was not paid on the same day the petition was filed?
   
5. On the evidence it is common cause that the security deposit by the Petitioner was paid on the 7^th of October, 2022 and the petition was filed on the 10^th of October, 2022. In other words, the security deposit was not paid the same day the petition was filed.
   

Submissions of the Parties

6. The First Respondent contends that the petition is incompetent and ill-suited to proceed to trial as contemplated by Section 210 of the Organic Law, on a number of grounds outlined earlier.
   
7. The Second Respondent supports the submissions of the First Respondent.
   
8. The Petitioner argues that there is no merit in any of the grounds advanced by the First Respondent and that the petition should proceed to trial.
   
9. It is convenient to deal first with the alleged non compliance with Section 209, of the Organic Law, as this is the issue that loomed large at the hearing and also because, if this Court determines the issue in favour of the First Respondent, there would be no utility in considering and determining other grounds raised by the First Respondent.
   

The Law

10. I turn now to consider the law in the backdrop of the common cause facts that I outlined earlier.
    

Consideration

11. I propose to deal with the alleged non-compliance with Section 209 of the Organic Law first, because, if this ground succeeds, it will not be necessary to deal with the other grounds raised by the First Respondent.
    
12. It is proper to remark at this stage that the Justices of this Court have taken divergent views on the interpretation of Section 209 of the Organic Law. Suffice to say that the Justices of this Court are oath bound to always keep an open mind and determine each case on its facts, circumstances and the law.
    
13. It is a requirement of Section 209 of the Organic Law, that security for costs be deposited at the time of filing the petition and not before or after.
    
14. Section 209 of the Organic Law bears stating in full:
    

“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.”

11. In the case of Epi Farapo v Electoral Commission (1983) PGSC1 SC247, the Court, stated that:
    

“Whilst the Court must strive to avoid sophistry, the act of filing petition and lodging deposit must be part of one act, an act of filing which is manifestly one and the same, not two separate and distinct acts requiring two separate and distinct visits to the Registry, one with the cheque and another with the petition... The language is clear an unambiguous. “At the time of filing” means what it says – neither more or less, and it behooves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.”

15. I have, in the course of preparing this ruling -reconsidered the divergent views of this Court on the interpretation of Section 209 of the Organic Law. I have considered and taken into account a line of authorities that embrace a strict and less strict approach.
    
16. I must say, with respect that there is a lot that is admirable about a line of cases that adopt a less strict approach as the quest for substantive justice is plain in those decisions. I find however, that this quest is frustrated by the operation of Schedule 2.9 of the Constitution, which provides that:
    

“Sch.2.9. Subordination of Courts

(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself...” (emphasis mine)

17. The Supreme Court cases of Farapo (supra) and Peter Nupiri v William Powi (2023) SC2459, which are binding or this Court held that security deposit be deposited at the time of filing the petition.
    
18. In the case of Moses Manwau v Hon. Allan Bird and Electoral Commission (2023) N10249, Gavara-Nanu J, at paragraph 18 stated that:
    

“The operative works 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 cots 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. In the result, based on the evidence on record, I am satisfied that the security deposit was not paid at the time the petition was filed, as required by Section 209 of the Organic Law.
    

Order

20. In the result, it is ordered that:
    
    • (1) The objection to competency under s.209 of the Organic Law is upheld.
      
    • (2) The petition is dismissed in its entirety pursuant to s.210 of the Organic Law.
      
    • (3) The Petitioner’s security for cost deposit is in the sum of Five Thousand Kina (K5,000.00) paid into the National Court Registrar’s Trust Account is to be paid to the First and Second Respondents in equal amounts.
      
    • (4) The Petitioner is to pay the First and Second Respondents’ cost of and incidental to the proceeding on party-party basis, to be taxed if not agreed.
      
    • (5) The Registrar of the National Cout shall forthwith take appropriate steps to comply with and give effect to the requirement of s.221 of the Organic Law.
      
    • (6) The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
Diwenis Lawyers: Lawyer for the Petitioner
Dawidi Lawyers: Lawyer for the First Respondent