Epi v Farapo and Electoral Commission [1983] PGSC 1; SC247 (28 March 1983)

Unreported Supreme Court Decisions

SC247

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

M.P. 149 OF 1982
S.C.R. NO. 6 OF 1982
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS
AND
IN THE MATTER OF SECTION 18(2) OF THE NATIONAL CONSTITUTION
AND
IN THE MATTER OF KUBERI EPI
PETITIONER
AND
TONY FARAPO
FIRST RESPONDENT
AND
ELECTORAL COMMISSION
SECOND RESPONDENT

Waigani

Kidu CJ Pratt Bredmeyer JJ
19-20 October 1982
28 March 1983

LODGEMENT OF ELECTORAL PETITION WITH FILING FEE AND SECURITY FOR COSTS UNDER S.209 OF ORGANIC LAW ON NATIONAL ELECTIONS - payment of such security by cheque - does not constitute a valid deposit when cheque is post-dated or cheque not paid on presentation - section does not require payment by bank cheque.

Legislation

Organic Law on National Elections SS.65, 86, 208(e), 209 & 210

Bills of Exchange Act Ch. No. 250 SS.4, 12 & 18

Central Banking Act Ch. No. 138 SS.44 & 50

Cases Cited

In the Matter of Delba Biri - Unreported Supreme Court Judgment SC 235 dated 5 October 1982

Colquhoun v. Brooks [1887] UKLawRpKQB 150; (1887) 19 Q.B.D. 400

Reg. v. Page (1971) 2 All E.R. 870

Reg. v. Charles (1977) 2 A.C. 177

Fabre v. Ley [1972] HCA 65; (1972) 46 A.L.J.R. 718

Magill v. Bank of North Queensland (1895) 6 Q.L.J. 262

Pollock v. Bank of New Zealand (1902) 20 N.Z.L.R. 174

Shapiro et al v. Gleenstein (1970) 10 D.L.R. (3d) 746

KIDU CJ PRATT J: The petitioner under the present matter of reference had until the 28th August 1982 in which to file his petition against the first respondent’s election to the Gulf provincial seat. On the morning of Friday the 27th August counsel for the petitioner attended at the office of the Registry and presented a cheque for K814 together with three petitions. The Registrar’s clerk however was advised that the cheque was also to cover a fourth petition when it was received in the Registry later that day. That was the petition which has formed the subject matter of the present reference and was in fact filed on the Friday afternoon, having been brought to the Registry by the petitioner himself.

The cheque therefore represented four lots of K200 deposit together with four lots of filing fees. It was drawn by the Pangu Party although the receipt written out by the Registrar’s clerk shows in addition the name of the petitioner to which each part of the cheque related. The problem of dating the receipts does not require any resolution in this matter. Four receipts were issued in respect of the individual amounts of K200. On the following Monday, the 30th August, the Registrar’s clerk was instructed by the Registrar to request a replacement cheque from Mr. Donigi to cover the petitions and a separate cheque to cover the filing fees as it was against Registry practice to pay both security for costs and court fees into the same account. Although no evidence was given on the matter, obviously where security is paid into the Registry such sums would be placed in a trust account in accordance with the requirements of the Trustee Act and the Public Finance Act, whereas filing fees would be paid into the normal treasury funds. On the same day Mr. Donigi was advised of the instruction and fresh separate cheques covering the four lots of security and the four lots of filing fees were handed to the Registrar’s clerk on the 6th September. That cheque bore a date the 3rd September. It goes without saying that the original cheque was never banked by the Registrar’s Office and indeed the replacement cheque was not banked until the 9th September.

The original cheque handed in on the 27th August was in fact postdated the 28th August 1982 - that is the last day upon which the petition and deposit could be received under s.209 of the Organic Law on National Elections (hereafter called the Elections Act). The petition came on for hearing before the National Court on Tuesday, the 19th October and counsel for the first respondent took a number of preliminary points which have led to the reference now before the Supreme Court under s.18(2) of the Constitution. The first matter of reference is as follows:

“Does the deposit of a cheque (not being a bank cheque) with the Registrar covering the amount of K200, constitute a valid deposit within the terms of s.209 of the Organic Law on National Elections?”

A number of further matters of reference were set out which would require an answer in the event of an affirmative answer being handed down to the matter we have just set forth. We shall deal with those in due course.

S.209 of the Election Act says:

“At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K200 as security for costs.”

We think there is some considerable merit in Mr. Donigi’s warning to keep in mind exactly what is being required of the petitioner in such a case - namely to deposit an amount by way of security for the purpose of covering at least part of the respondent’s costs in defending the election petition if the petitioner is unsuccessful. There is no immediate requirement for the money to be put to any use and indeed one would expect some weeks at the very minimum to pass before the petition would in the normal course of events come on for hearing. Indeed no public act is committed until the first day of hearing arrives although there is no doubt an amount of discussion concerned with a first hearing date. The deposit is paid into a trust account and will lie there until it is required, either to contribute to the respondent’s costs or to be repaid to the petitioner.

Dr. Nwokolo for the first respondent submits that the deposit of a personal cheque to cover the sum of K200 amounts to no more than the deposit of a piece of worthless paper which may or may not at a time subsequent to the final day for lodging the petition be credited to the account of the Registrar in the sum of K200 moneys worth.

The matter before the Court is therefore one of straightout statutory interpretation. The respondent on the one hand says that where the figures “K200” appear in the section, that means K200 in cash or money as legal tender, whereas the petitioner claims the requirement for cash has not been stipulated and may equally be met by the filing of a personal cheque prior to the last day on which filing of the petition must be made, irrespective of whether demand for payment of the cheque is made prior to or after the expiry date. In the recent Supreme Court decision of Delba BiriSC247.html#_edn183" title="">[clxxxiii]¹, the Court ruled that the provisions of s.210 requiring compliance with the previous two sections before proceedings could be heard meant a strict compliance with those requirements. The Court however did not say that strict compliance with the requirements necessitated strict interpretation of such sections and there is nothing in the judgment which we can find which supports any contention that the Supreme Court departed from the duty laid upon it under Schedule 1.5 of the Constitution to read each constitutional law as a whole and to give such laws “their fair and liberal meaning”. As was said during argument however, we do not for one moment consider this duty carries with it an encouragement to abandon the normal principles of interpretation as set out in that part of our underlying law known as the common law. For indeed, those principles are valuable aids to construction when attempting to obtain clarity from what admittedly in the eyes of at least one party is ambiguous. That the principles are aids only was once again brought out by Lopes L.J. in Colgohoun v. BrooksSC247.html#_edn184" title="">[clxxxiv]² when discussing the maxim “expressio unius”:

“I agree with what is said in the court below by Wills J. about this maxim. It is often a valuable servant but a dangerous master to follow in the construction of statutes or documents.”

The maxims however are designed to give assistance in particular types of situation and particular circumstances, and with respect to the submissions made before us we do not think that any particular maxim is of assistance in the present case other than perhaps the general maxim set out at p.252 of Odgers (supra (2)), namely:

“General statutes will be prima facie presumed to use the words in their popular sense ... If they are used in connection with some particular business or trade, they will be presumed to be used in a sense appropriate to or usual to such business or trade.”

Inherent in any resolution of the problem before the Court lies an appreciation of what a cheque is, what it does, and the implications which flow from the presentation and acceptance of a cheque. Let us state at the outset that although a number of authorities referred to by learned counsel for the first respondent deal with cheques and the debtor/creditor relationship created between the parties, we do not consider that the present situation is analogous to that of debtor and creditor in the true sense. The plain facts are that presuming a cheque comes within the terms of the section, then any failure to meet payment will not either necessitate or even suggest the Registrar pursuing the drawer of the cheque in some civil claim. The effect of a failure to meet the cheque would simply be to make the petition inoperative. No doubt if the petitioner were in a position to draw another cheque before the expiry date, he could do so and refile his petition together with a new cheque. On the other hand, if the expiry date had passed then a failure to meet the cheque within time would automatically conclude the entire proceedings. We doubt very much whether there is any contractual arrangement between the Registrar and the depositor in circumstances where the person depositing money is complying with a statutory requirement.

Of itself the definition of a cheque in the Bills of Exchange Act is not very helpful to the layman, even when taken in conjunction with the definition of a bill of exchange. Perhaps a composite definition of “cheque” is:

“an unconditional order drawn on a banker and payable on demand.”

Thus a cheque must be distinguished not only from a bill of exchange but a promissory note. The latter has been defined as:

“an unconditional promise in writing made by one person to another, signed by the maker, engaging to pay, on demand or at a fixed or determinable future time, a sum certain in money, to or to the order of a specified person, or to the bearer.” (3rd ed., Australian Mercantile Law by Yorston & Fortescue, p.166)

One particular feature which distinguishes a cheque from promissory notes and bills of exchange is that the former is payable on demand only, whereas both the latter instruments may be payable on demand or at some future date.

In R. v. PageSC247.html#_edn185" title="">[clxxxv]³, Phillimore L.J., giving judgment on behalf of the Court of Appeal, Criminal Division, cited a quote from Kenny’s Outlines of Criminal Law to demonstrate a number of features about a cheque:

“Similarly the familiar act of drawing a cheque (a document which on the face of it is only a command of a future act) is held to imply at least three statements about the present:

(1) that the drawer has an account with that bank;

(2) that he has authority to draw on it for that amount;

(3) that the cheque, as drawn, is a valid order for that amount (i.e. that the present state of affairs is such that, in the ordinary course of events, the cheque will on its future presentment be duly honoured).

It may well be to point out however, that it does not imply any representation that the drawer now has money in the bank to the amount drawn for, inasmuch as he may well have authority to overdraw, or may intend to pay in (before the cheque can be presented) sufficient money to meet it.”

The Court in this case was concerned with certain sections of the Theft Act 1968 which covered the effect of a cheque being “referred to drawer” in relation to obtaining pecuniary advantage and evading debts. It was these aspects of the law to which his Lordship was directing his attention, and the analysis must be read within the context in which it was made. This statement of the law on cheques was not accepted in its entirety by the House of Lords in Reg. v. CharlesSC247.html#_edn186" title="">[clxxxvi]⁴. Indeed the House considered that representations (1) & (2) of Kenny “were supererogatory in the light of representation (3) which embraced both of them”. Viscount Dilhorne summed up the situation at p.186:

“The reality is in my view that a man who gives a cheque represents that it will be met on presentment, and if a cheque is accepted by the payee it is in the belief that it will be met.” (Our emphasis.)

Of course the use of cheques in our everyday life has become quite common place, although as the learned authors of The Banking Law and Practice in Australia (Weerasooria and Coops, 1976) point out at p. 146:

“...few pause to consider its advantages and the chaos that would prevail if the cheque system was abolished overnight...”

They proceed then to deal with Lord Chorley’s observation that by the present day the cheque has become “the usual method of discharging debts and other monetary obligations”. If one does pause to consider, it is obvious that in all instances a personal cheque is received because the recipient believes it will be met and trusts that the drawer will have his account in such a state that upon presentment of the cheque to the bank, the amount on the face thereof will be properly credited to the payee. In the vast majority of instances this trust is not misplaced. But it is the payee who decides to take the risk, and no doubt is guided by many factors in coming to a final decision.

Returning however once again to our original composite definition, what the payee receives is, in the first place an order which is unconditional and in the second place an order which must be met on demand by the payee (leaving aside for the present discussion the additional questions of endorsement, non-negotiability and so forth). It is not a promise to do something at some future time but an immediate order to pay the face value of the cheque on demand. To adopt the words of Pollock B. quoted by Lord Edmund-Davies in Reg. v. Charles (supra (4)) at p.191:

“I think the real representation made is that the cheque will be paid. It may be said that that is a representation as to a future event. But that is not really so. It means that the existing state of facts is such that in the ordinary course the cheque will be met.”

In the present matter before the Court therefore, the Registrar has received an instrument which is payable on demand. When the Registrar chooses to exercise the demand is a matter entirely for him, leaving aside the necessity to present within a reasonable time. Of course the Registrar may insist on receiving a bank cheque and such demand would not be unreasonable where the circumstances surrounding the transaction are such as to make it undesirable for the issue of a receipt prior to clearance of the cheque. It is entirely in the discretion of the Registrar but an insistence by him in the present circumstances on receiving either cash or a bank cheque would in our view create quite unnecessary problems inconsistent with the normal commercial functions of the present day, at least where a solicitor’s own cheque is presented.

A bank cheque is no different from a personal cheque in that the same principles apply to drawer, drawee and payee, and the instrument is still neither more nor less a cheque. From a practical and commercial point of view however, there is a vast difference because the drawee and drawer are one and the same and the whole reputation of the bank lies behind the cheque. Over the many years of commercial usage, a truly reputable banker’s cheque is really regarded as the equivalent of money but that is not because of any difference in principle but simply because the person receiving the cheque knows it will not be dishonoured. It may well be however that this absolute guarantee of payment is something which the legislation seeks and therefore stipulates in certain circumstances. Such a requirement may be found in s.86(c) of the Elections Act which directs that when delivering a nomination paper to the returning officer the nominee must deposit at the same time either cash or a banker’s cheque in the amount of K100. We shall return to this section shortly, for lying within its particularity may be found the most compelling answer to the matter under reference.

The High Court of Australia was called upon to interpret a counterpart of this very section in the Commonwealth Electoral Act in the case of Fabre v. Ley SC247.html#_edn187" title="">[clxxxvii]⁵ where we find the following:

“Therefore, in the expression ‘banker’s cheque’, the word ‘banker’s’ must add something to the description of a cheque. A cheque of which s.78 of the Bills of Exchange Act speaks is what counsel for the plaintiff said would be known as a personal cheque, a cheque drawn by an individual on his bank. Thus it is, in our opinion, clear that the description ‘a banker’s cheque’ will not be satisfied by ‘a personal cheque’.”

A little later the Court goes on to note that the legislation has used the term “banker’s cheque” rather than the normal commercial term “bank cheque” and suggests that the former may be slightly wider in its commercial application than the latter insofar as the banker’s cheque may be a cheque drawn by one bank on another as opposed to the bank cheque which is a cheque drawn by the bank on itself. The point we are concerned with here however is the fact that a bank cheque is receivable without qualm because practice has inculcated in the payee a full expectation of payment on presentation.

A further complicating feature of the present case however stems from the fact that the cheque received by the Registrar was post-dated, being received on the 27th August but dated the 28th August. That date was the last upon which the petition could be received in the Registry. As is pointed out in the 7th edition of Paget’s “Law of Banking” (p.201), a post-dated cheque is somewhat of an anomaly and after some hesitation as to whether it constituted a cheque at all, the matter was cleared up by legislation. Section 18(2) of our Bills of Exchange Act, Ch. No. 250, reads as follows:

“A bill is not invalid by reason only of the fact that it is ante-dated or post-dated, or that it bears the date of a Sunday.”

The difficulty arises from the fact (put rather boldly), that such cheque is not a true promissory note and yet it is not payable on demand before the day appearing on the face of the cheque. Even this state of affairs has been the subject of conflict. The Full Court of Queensland decided in Magill v. Bank of North QueenslandSC247.html#_edn188" title="">[clxxxviii]⁶ that a bank was justified in clearing and paying a post-dated cheque before the date stipulated on the face. A Full Court of six judges in New Zealand however decided in Pollock v. Bank of New ZealandSC247.html#_edn189" title="">[clxxxix]⁷ that Magill’s case was incorrectly decided and ruled that a bank is not entitled to meet a post-dated cheque before the date appearing on the face. Nor must it hold funds to meet that cheque on the due date and thereby run the risk of dishonouring other cheques which may be presented in the meantime. It seems now that the matter has bean resolved in favour of the New Zealand Court’s decision (see for example ‘Banking Law and Practice in Australia, p. 154 ff. and ‘Commercial Law in New Zealand, 5th ed., p.371, where reference is also made to the case of Shapiro et al. v. GreensteinSC247.html#_edn190" title="">[cxc]⁸. With great respect to their Honours of the Full Court of Queensland, we would adopt the New Zealand and Canadian approach which is consonant with the approach adopted by the learned author of Paget (see p.204 ff., 7th Edition). We are of the view that the demand must be made on the day appearing on the face of the cheque and not before, at least insofar as demand is made upon the drawer’s actual account. It is for this reason however that a post-dated cheque runs into difficulties when one enquires as to whether or not it amounts to a deposit under the terms of s.209 of the Elections Act. By that section the deposit must be made at the time of filing the petition. Granted there is an element of futurity in any ordinary cheque but at least demand may be made and payment obtained on the same day if the payee so desires. Arrangements for special clearance are not uncommon. Should any problems be created as to time of payment because for example the cheque is paid in at the end of a business day, s.4 of the Bills of Exchange Act would seem to cover such matters adequately (as well as excluding non business days for calculation and likewise bank holidays). The order in a non post-dated cheque is unconditional. Despite the existence of s.12(2) of the Bills of Exchange Act however, a post-dated cheque is not unconditional. It is governed by the date written thereon and such date may be one day or six months after deposit. The cheque itself proclaims that it should not be presented for payment until a specified date, and in so doing fails to be a deposit at the time of filing. It is only a promise that at some future time payment will be made. Whether that time be inside or outside the period for lodging a petition is irrelevant. As the paper bears on its face a date later than the day of deposit of the petition, it cannot be on any approach be regarded as a deposit of money contemporaneous in time with the filing of the petition.

Although the question will not now require decision, one point was raised in argument concerning contemporaneous filing and we consider it proper to deal with it in the present case. The cheque was paid into the Registry several hours before the petition was filed and thus, says the respondent, failed to comply with the requirement under s.209 that at the time of filing the petition the petitioner must deposit the sum of K200 as security. The argument is that “at the time of filing” means both acts must be done exactly together. We do not believe however that it was the intention of the legislature in a case where the petition was handed in at the counter and taken up by the clerk a second or so before the cash or cheque was handed in and received, there was a failure thereby to comply with s.209 of the Act. Again it seems to us that reason and good sense must prevail in order to ensure that an interpretation is not put on the section which gives rise to claims that either it was impossible to hand over physically or receive physically two items at exactly the same time or that milliseconds were a matter of indifference to the Court whereas seconds were of significance. More importantly however, on the facts of this case it was said that at the time of receipt of the petition some hours after payment of the cheque, the two documents then amalgamated to make a common time for filing both the deposit and the petition. The cheque itself covered four petitions and was deposited in the morning. The petition was filed in the afternoon and up until that time a quarter of the cheque had not been strictly allocated to any particular petition although it was indicated at the time of deposit that when the petition was physically filed a quarter of the cheque was to be set off against that petition. The amalgamation may be said to occur immediately the petition was accepted into the Registry, with the effect that the balance of the K800 would have become attached immediately on presentation of the petition.

Such an amalgamation however is completely outside the scope of s.209 and cannot be supported by the words of that section. 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 and another with the petition. The confusion which can arise from such double acts is indeed exemplified in the present case where three receipts were issued when the cheque was originally paid in and the fourth was obviously written out at some subsequent stage and as a result was given a completely erroneous date which caused considerable trouble at the start of proceedings. The Act and the section concerned herewith attempt to lay down a simple straightforward clear-cut method of procedure with a view to avoiding as much as is humanly possible the proliferation of error. The language is clear and unambiguous. “At the time of filing” means what it says - neither more nor less, and it behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.

As indicated a little earlier the wording of s.86 of the Elections Act is we believe, vitally important to an appreciation of what the draftsman meant when using the term “K200” in s.209 of the Act. It has been made crystal clear in s.86 that what must be deposited with the returning officer is either money or a banker’s cheque, which is in effect equivalent to money. That this would be so is not surprising when one considers the tremendous confusion which could arise if a nomination were accepted and the cheque was subsequently dishonoured. Such dishonouring may indeed take some time, bearing in mind the fact that a number of offices occupied by the returning officer could be some considerable distance away from any bank let alone the bank upon which the drawer has drawn his cheque. In the meantime, electoral posters could have been distributed and any subsequent withdrawal of the nomination could throw a large number of electors into a state of very considerable confusion. Furthermore, as Bredmeyer J. pointed out during argument, under s.95 of the same Act where one candidate only is nominated, then the returning officer “shall declare that candidate duly elected”. Had such candidate deposited a cheque which was subsequently dishonoured, the returning officer’s declaration would be highly embarrassing to say the least. I would wholeheartedly adopt the words of the High Court of Australia in Fabre v. Ley (supra (5)) at p.720 where their Honours say:

“The plain intention of the Parliament in enacting s.73(c) (ii) is that cash or its equivalent shall be deposited with the nomination paper. When the divisional returning officer declares the nominations, as required by s.79(2), there must be no question that the amount of the deposit is or will without doubt be in hand.”

Consequently the deposit of a personal cheque as opposed to a banker’s cheque did not comply with the requirements of the Act. Dr. Nwokolo maintained however, that the term “in money” appearing in s.86 of our Elections Act was in effect somewhat tautologous and was merely inserted as literary balance for the following phrase - “or a banker’s cheque”. We must admit to being somewhat attracted by this argument at the time but on further reflection our original misgivings have resurfaced and underlined the considerable doubt which we have when observing that a like distinction had not been placed in s.209. Indeed there are a considerable number of sections in the Act where a specific sum is mentioned and no mention is made of “in money or a banker’s cheque”. The short position is that if the legislature desired the K200 to be paid in cash as they have specified in s.86, then why have they not said so. Likewise, is there any reason why a banker’s cheque should be excluded from s.209 when the consequences which flow from depositing such amount are nowhere near as potentially catastrophic as they could be under s.86? Indeed the very use of the phrase “in money or a banker’s cheque” in s.86 almost forces one to the conclusion that the draftsman did not intend such strictures to apply under s.209 and was perfectly happy for a personal cheque to be deposited, provided that such cheque was acceptable to the payee, namely the Registrar. Whether the cheque be personal or bank, it still will not be met until it is actually presented at the bank itself. What is done by the petitioner however is to deposit an unconditional order to cover a security which security may be called upon at some future date to be utilized.

Of course Dr. Nwokolo did lay considerable emphasis on the fact that the term “200 K” is the expression of a monetary unit set up by s.44 of the Central Banking Act, Ch. No. 138, which likewise sets out by s.50 the appropriate sums which constitute legal tender. The Act however is directed to the creation of monetary units within the country and the stipulation of the quantity of such units which may constitute legal tender. If one sees an item displayed in a store at a particular price marked in kina, there is nothing to prevent one from approaching the store owner and tendering an item other than money which is equivalent in value to the price marked. Whether of course it will be received is a matter for the storekeeper. But the Central Banking Act is certainly not directing that wherever the figure K200 appears then satisfaction can be met only by receipt of actual money. What the Act does do is stipulate for certain situations that the tender of money in the required amounts is legal and therefore must be accepted, other conditions being complied with. If all the parties to a particular case for example were Tolai people who were desirous of becoming possessed of tambu shell, and provided the Registrar was not dissuaded by the problems of evaluating and keeping such shell as security, it may well be that the deposit of tambu shell to the value of K200 would be adequate. But it is not legal tender and the Registrar is not obliged to take it. Any refusal by him therefore to receive the amount would have to be accepted by the paying party. In our view there is nothing in the Central Banking Act which assists the first respondent in his interpretation of s.209 of the Elections Act.

ANSWER TO QUESTION 1

The deposit of a cheque (not being a bank cheque), is a valid deposit within the terms of s.209 of the Organic Law on National Elections.

QUESTION 2

If the answer to Question 1 above is in the affirmative, then:

(a) does a return of such cheque by the Registrar to the drawer or its agents and replacement of such returned cheque by another cheque affect the issue, where both the return and replacement occur after the expiration of two months from the date of declaration specified in Section 208(e) of the said Organic Law?

Answer: No answer required

(b) what is the effect, if any, where the original cheque is post-dated and

(i) such date falls due before the expiration of the said two months period,

(ii) such date falls due after the expiration of the said two months period?

Answer: A post-dated cheque lodged with a petition is not a valid deposit within the terms of the section, irrespective or whether such date falls due before or after the expiry date.

(c) what effect, if any, follows where clearance of the said cheque for payment by the drawer’s bank occurs after the expiration of the said two months period?

Answer: The fact that the cheque is not cleared for payment by the drawer’s bank until after the expiration of the two months period does not have any effect on the issue. This is an act performed purely at the discretion of the payee and is of no concern or consequence to the drawer.

(d) what effect, if any, follows from the fact that the drawer of the cheque is a person other than the petitioner?

Answer: Although it is not necessary to determine this question, counsel spent some time on urging the Court to rule that a drawer, other than the petitioner, would invalidate the transaction. Frankly we cannot see any merit in such submission. What difference it makes whether the drawer of the cheque is the petitioner or some other party completely eludes us. The only relevant fact is that the cheque is paid in on behalf of the petitioner and is credited against his particular petition. In case the matter is raised again we consider it desirable in this case to state our views.

QUESTION 3

Where the final day under s.208(e) of the said Organic Law falls on the day on which the Registry is closed, then is the last day for filing the petition deemed to occur on the day before such date or the first day upon which the Registry re-opens?

Answer: In our view it is not necessary to determine this question.

BREDMEYER J:

QUESTION 1

When a statute requires the payment of money the receiver of public moneys may accept cash or a cheque, the choice lies in his discretion. This rule arises from statute and the common law. The Central Banking Act establishes the Kina as the unit of currency for Papua New Guinea. Section 50(1) of that Act provides that currency notes are legal tender at their face value for any amount; subsection (2) provides that certain coins are legal tender up to certain amounts. Thus 20t coins are legal tender only up to an amount of K10; a creditor can thus legitimately refuse to accept payment in 20t coins of a debt in excess of K10 - the rationale of that provision being the inconvenience to the creditor and ultimately to the bank and the Central Bank in using large number of small coins to pay debts.

The Bills of Exchange Act regulates the use of cheques but nowhere does it provide that a cheque is legal tender. At common law the tender of a cheque or a bill of exchange is not a valid tender: see Chitty on Contracts (General Principles) 24th ed., para 1325, and Chalmers, Sale of Goods, 16th ed., p.190. The receiver of public moneys entitled to receive moneys payable under a statute, a judgment creditor, and a creditor under a private contract are in the same position; they are entitled to insist on payment in cash but they may accept a cheque. In practice a receiver or creditor will frequently accept a banker’s cheque, commonly accept an ordinary cheque which is an order payable on demand, and less frequently accept a promissory note which is payable at a future date.

A draftsman drafts a statute against a knowledge of the general law and it should be interpreted against that knowledge. The Organic Law on National Elections contains over 40 references to sums of money in the forms of fines and three references to deposits. If an offender is fined under the Act I consider that the general rule applies, that the receiver of public moneys may in his discretion accept a cheque. Similarly I consider that the general rule applies to two of the sections on deposits: a deposit of K4 to the Returning Officer under s. 65, and a deposit of K200 to the Registrar of the National Court under s. 209. Those two sections do not specify how the deposit is to be paid. Thus the Returning Officer and the Registrar may accept a cheque under those sections but may insist on cash. On the other hand, the express words providing for the payment of a deposit required under s. 86 override the general rule and the Registrar may only accept the payment of the deposit referred to therein “in money or in a banker’s cheque.” For these reasons I consider that the Registrar may accept a cheque not being a banker’s cheque for K200 as a deposit under s. 209 of the Organic Law. Whether the cheque once accepted is a valid deposit or not depends on what happens to it. The Registrar has no right to accept such a cheque unconditionally; it is implied that he accepts the cheque conditionally on it being met upon presentation. If it is not met the consequences spelt out in s. 210 follow: no proceedings can be had on the petition. In the same way if the Registrar allows a fine for an electoral offence to be paid by cheque and if the cheque is not met upon presentation a warrant of imprisonment issues. In neither case does the Registrar have to re-present the cheque, refer it to the drawer, or to sue upon it.

QUESTION 2

I consider that the Registrar was very foolish in accepting a post-dated cheque for a deposit under s. 209: as a matter of prudent administration he should refuse to accept any post-dated cheques under s. 209 and, I think, in payment of any other fee, deposit or debt. But in this case he did accept a post-dated cheque, he later asked for and received substitute separate cheques covering the deposit and filing fees which were presented to the bank and honoured. I appreciate the difference in kind between an ordinary cheque and a post-dated cheque. The former is an order on a bank payable on demand; the latter is like a promissory note in that it is only payable on the day it bears. Nevertheless the post-dated cheque was accepted by the Registrar when lodged with the petition and the Registrar’s trust account was later credited with K200 on behalf of the petitioner and in those circumstances I see no breach of s. 209. In this view I have the misfortune of differing from my learned brothers. I believe that the difference in the two kinds of cheques is insignificant. Let me give an example. Suppose a Thursday is the last day for lodging petitions in an electorate. Two petitioners have their petitions ready for filing. Neither has the necessary cash for the deposit nor sufficient money in his cheque account but can get the money on Friday. Let us suppose each man files his petition at 3.30 p.m. on Thursday the banks having already closed at 2.00 p.m. One dates his cheque Thursday sure in the knowledge that it will not be banked until Friday; the other tenders a cheque post-dated Friday which the Registrar accepts. I do not think it fair that the former is a valid deposit and the latter is invalid.

To summarise: for a cheque to be a valid deposit under s. 209, it must be deposited at the time of filing the petition, the Registrar must accept the cheque (acceptance or not lies in his discretion), and the cheque must be met on presentation. In this case these three things occurred - complicated by the intervention of a substitute cheque - and I see no breach of the section.

ANSWER TO QUESTION 1

The Registrar may in his discretion accept a cheque (not being a bank cheque) for K200 as a deposit under s. 209 of the Organic Law on National Elections. His acceptance is conditional on the cheque being met when he presents it in the normal course of business. If the cheque is not met for whatever reason it is not a valid deposit and s. 210 applies.

ANSWER TO QUESTION 2(A)

On the facts of the case, No.

ANSWER TO QUESTION 2(B)

If the Registrar accepts a post-dated cheque as a deposit under s. 209 that acceptance is conditional on the cheque being met when presented to the bank in the normal course of business. If the cheque is honoured when so presented, it amounts to a valid deposit.

ANSWER TO QUESTION 2(C)

I agree with the answer of the Chief Justice and Pratt, J.

ANSWER TO QUESTION 2(D)

It is of no consequence who pays the cheque.

ANSWER TO QUESTION 3

It is not necessary to answer this question.

Lawyers for Petitioner: Peter D. Donigi & Co.

Counsel: P. Donigi

Lawyers for First Respondent: Dr. Ikenna Nwokolo & Co.

Counsel: I. Nwokolo

Lawyer for Electoral Commission: State Solicitor

Counsel: J. Everingham

SC247.html#_ednref183" title="">[clxxxiii]^{Unreported Supreme Court Judgment. SC 235 dated 5th Oct. 1982}

SC247.html#_ednref184" title="">[clxxxiv]^{Odgers’ “Construction of Deeds and Statutes”, 5th ed., p.269}

SC247.html#_ednref185" title="">[clxxxv] ^{(1971) 2 All E.R. 870 at 874}

SC247.html#_ednref186" title="">[clxxxvi] ^{(1977) A.C. 177 at 190 per Edmund-Davies L.J.}

SC247.html#_ednref187" title="">[clxxxvii]^{[1972] HCA 65; (1972) 46 A.L.J.R. 718 at 720}

SC247.html#_ednref188" title="">[clxxxviii]^{(1895) 6 Q.L.J. 262}

SC247.html#_ednref189" title="">[clxxxix] ^{(1902) 20 N.Z.L.R. 174}

SC247.html#_ednref190" title="">[cxc] ^{(1970) 10 D.L.R. (3d) 746}