Semoso v Sohia [2016] PGSC 23; SC1507 (26 May 2016)

SC1507

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR (EP) No. 6 of 2015

APPLICATION UNDER SECTION 155(2) (b) OF THE
CONSTITUTION AND IN THE MATTER OF PART XVIII
OF THE ORGANIC LAW ON NATIONAL AND LOCAL
LEVEL GOVERNMENT ELECTIONS

BETWEEN:
FIDELIS SEMOSO
Appellant

AND:
COSMOS SOHIA
First Respondent

AND:
GEORGE MANU, BOUGAINVILLE
ELECTORAL COMMISSION

Second Respondent
AND:
THE BOUGAINVILLE ELECTORAL COMMISSION

Third Respondent

Waigani: Hartshorn, Ipang and Higgins JJ

2016: 25^th April & 26^th May

ELECTION PETITION – Bougainville Elections Act 2007 – Petition & fee presented to Registry – not then accepted – accepted later after time for filing petition had expired – discretion of Assistant Registrar – error by Registry – whether petition validly filed

Cases Cited:

Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247
Paru Aihi v. Peter Isoaimo & Electoral Commission (2015) (Unreported) SC Ref (EP) no.7 of 2014 delivered 5/6/15

Patrick Leslie v. Christopher Kena & Anor (2015) N6073
Specko Investment Ltd and Peandui Koyati v. Shell (PNG) Limited and The Registrar Supreme Court (2011) unreported SCA 22 of 2008 delivered 2^nd September 2011

Counsel:
P. Mawa, for the Appellant
N. Yalo, for the 1st Respondent
M. Kipa, for the 2nd & 3rd Respondent

JUDGMENT

26^th May, 2016

1. BY THE COURT: The applicant is the candidate declared elected to represent the Isitalato Electorate in the Bougainville House of Representatives. The first respondent is the candidate who was declared to have received the second highest total of votes.

2. The poll was declared on 30 May 2015, pursuant to s.203 of the Bougainville Elections Act 2007 (the Act). Pending the establishment of the Bougainville High Court, the National Court has jurisdiction to entertain petitions disputing such an election under s.203(2) of the Act.

3. On 29 June 2015, the first respondent presented a petition to the registry of the National Court at Buka, challenging the validity of the election of the applicant, alleging that the applicant had, in eight specified instances, bribed electors to vote for him.

4. Pursuant to s.205 (e) of the Act, such a petition must be filed “within one month" after the declaration of the poll. It is further provided that:

“At the time of filing the petition, the petitioner shall deposit with the ... Court the sum of K2000.00 as security for costs” (s.206)

5. Further, under s.207 “Proceedings shall not be heard unless the requirements of Section 205 and 206 are complied with”

6. It was the applicant’s contention, supported by the second and third respondents, that the petition was filed out of time and that it had, in any event, not been accompanied by the security payment of K2000.00.

7. The Assistant Registrar, Nekents Tombe, deposed that, between 10:00am and 11:30am on 29 June 2015, he received the election petition from the first respondent. However, he could not seal it with the seal of the court because he:

(i) was not able to contact and receive the EP number from Waigani National Court, and

(ii) had yet to verify the correct amount of money to be deposited as security costs. He did not return to work until 2 July 2015.

8. 29 June 2015 was a Monday. On 2 July 2015 Mr Tombe obtained an EP number and then sealed and dated the petition as received and filed on 29 June 2015. He informed the first respondent that K2000.00 was the correct sum and invited him to re-tender that sum. The first respondent did so.

9. The applicant sought to object to the petition as incompetent by reason of failure to comply with s.205 (e) and s.206 of the Act. He relied, in support of that contention, upon the Court records showing the payments to have been received on 2 July 2015.

10. The first respondent deposed that he attended the Buka Registry of the National Court on 29 June 2015 to file the petition. He was advised that he would need to deposit K2000.00 to the Trust a/c of the National Court at the Bank Of South Pacific, Buka Branch and to pay the K500.00 filing fee at the Autonomous Bougainville Government Finance Office.

11. There was a deposit slip stub annexed to the applicant's affidavit dated 29 June 2015 for the sum of K2000.00. However the Bank Date Stamp is clearly "02 Jul". The Bougainville Provincial Governments (BPG) receipt for K500.00 for the filing fee was dated 29 June 2015 but it has been altered from 02 July 2015. The Cash officer has made a Statutory Declaration, also annexed to the first respondent’s affidavit asserting that the alteration reflects the true date of payment of K500.00. The form of the receipt does, of course, raise support for a contention that it was not paid till 2 July 2015. It is clear that the K2000.00 was deposited on 2 July 2015.

12. To an Affidavit of Search of 11 August 2015 filed on behalf of the applicants, there is annexed a copy BPG receipt no. 56125 recording K500 received from the first respondent dated 2 July 2015. The receipt which was annexed to the first respondent’s affidavit is no: 56128. Both bear the same signature.

13. In a later affidavit (Tab19, p.158), the first respondent sought to correct "errors" in his first affidavit.

14. He stated that he attended the Court registry with the petition and K2000.00. The Assistant Registrar rejected the tender of the K2000.00 as he was unsure of the correct amount and had yet to get an EP number. He advised the first respondent that he would advise the correct sum as soon as he had advice from Waigani and said "I should deposit the money at the Buka Branch of the Bank of South Pacific Ltd in the National Court Registry Trust Account".

15. On 2 July 2015, the first respondent was advised by the Assistant Registrar by phone that he should deposit the K2000 in the Court Registry Trust Account at BSP and provide the receipt to the Registry.

16. That he did on 2 July 2015. On those facts the applicant sought leave to dispute the competency of the petition.

17. The Notice of Objection to Competency came before Makail J on 21 & 22 September 2015 (the judgment says “2014” but that is clearly an error – p87).

18. His Honour found that the petition was in fact delivered to the Registry on 29 June 2015.

19. Citing Paru Aihi v. Peter Isoaimo & Electoral Commission (2015) (Unreported) SC Ref (EP) no.7 of 2014 delivered 5/6/15, his Honour held that:

“The delivery and surrender of the documents at the registry constitutes the act of filing”.

20. His Honour also noted that he had made a similar observation in Patrick Leslie v. Christopher Kena & Anor (2015) N6073.

21. It was acknowledged that the security for costs was received into the Registrar’s Trust Account on 2 July 2015. The mandatory nature of the terms of s.206 of the Act was also acknowledged. It suffices to note that the Supreme Court has so held for the almost identical provision in the Organic Law on National and Local – Level Government Elections (ss.208-210).

22. The meaning of the provision was thoroughly examined by Kidu CJ and Pratt J in Kuberi Epi v. Tony Farapo & Electoral Commission (1983) SC247.

23. The effect of that decision is that the sum to be deposited for security for costs must be tendered at the time of filing the petition. The tender may be by cash or cheque provided the cheque is met on presentation and is not post-dated.

24. The fact that the cheque is not presented till a later date is irrelevant. Bredmeyer J dissented on the issue of a post-dated cheque but otherwise agreed with the majority. It was emphasised that it was a matter for the Registrar’s discretion whether or not to accept a personal cheque. The Rules for national elections now provide for cash or bank cheque only.

25. In this case, Makail J accepted as fact the evidence given by the first respondent that the sum of K2000.00 was tendered with the petition on 29 June 2015. The Assistant Registrar declined to accept the money at that time being unsure of the correct sum required. He did not inform the first respondent of the sum required until 2 July 2015. The first respondent then re-tendered the K2000.00 and it was received into the Registry’s Trust account at BSP on that day.

26. A petitioner can do no more than tender the petition and security deposit to an appropriate officer, in this case, an Assistant Registrar. If the latter refuses to take either or both the petitioner will nevertheless have complied with ss.205 & 206 if the tender was made within one month from the declaration of the poll. As Makail J noted, a petitioner cannot control what the Assistant Registrar chooses to do or what records are created within the registry.

27. It is open to a judge to direct the correction of the record if a filing date has been wrongly recorded. For example, if the date of filing was recorded, not on the day the document is left at the registry with an appropriate officer, but on the date a number was allocated to it, that may be corrected.

28. That is analogous to the situation here where the Assistant Registrar deferred receiving the security deposit until he had informed himself of the correct sum to be tendered.

29. It follows that his Honour was correct to hold that the petition was validly filed and the security deposit validly tendered on 29 June 2015.

30. Mr Mawa, however, though those matters alone were relied upon in the application for Judicial Review, further contended that the filing fee of K500 was not paid on 29 June 2015 and that the act of filing without simultaneous tender of the filing fee was invalid and hence, ineffective in law.

31. There is no provision in the Act which prescribes the payment of a filing fee. That was accepted as being provided for under the National Court Rules. It was paid to the Bougainville Provincial Government. Proof of payment was then forwarded to the Assistant Registrar. That proof was received on 2 July 2015. There was an issue as to the date of tender of the K500.00. There were two receipts which were inconsistent as to their dates. The first of the two receipts by number is dated 2 July 2015. The second is dated 29 June 2015 but corrected from 2 July 2015. The cash officer has made a Statutory Declaration that explains the alteration. It does not explain the issuing of two receipts for the one payment.

32. Makail J makes no reference to the filing fee issue in his judgment. Thus, Mr Mawa submitted his Honour fell in an error.

33. However, whilst the Assistant Registrar, in accepting a document for filing, should have satisfied himself that the Bougainville Provincial Government had received the K500.00 filing fee, there is nothing in the Act or the Rules which mandates that.

34. It follows that even if, for whatever reason, the Assistant Registrar did not, on 29 June 2015 satisfy himself that the Bougainville Provincial Government had received the K500.00 filing fee and even if the true date of receipt of the fee was 2 July 2015, that would not forbid proceedings upon the petition if it was in fact accepted as filed on 29 June 2015.

35. Acceptance or deferral of the filing fee was not a matter that went to the competence of the proceedings upon the petition. It was a matter for the Assistant Registrar's discretion to satisfy himself that the filing fee was paid. It was not payable to the Registry. The Assistant Registrar has considerable discretion so far as filing fees are concerned both as to the evidence of payment and the timing thereof. If he or she chooses to accept a petition for filing without proof of payment of the filing fee that does not invalidate the filing.

36. For these reasons the decision of Makail J holding the petition not to be incompetent, should be upheld. The matter should be remitted to Makail J to be heard according to Law.

37. The applicant should pay the 1st Respondent's costs of this review application to be taxed if not agreed.

38. There is one further matter. An affidavit of the Assistant Registrar annexed an exchange of e-mails with the resident judge, Sir Kina Bona. This was entirely inappropriate. Communications between judges and their staff or registry staffs are privileged communications albeit that the privilege is not absolute.

39. We note that in the Supreme Court Case of Specko Investment Ltd and Peandui Koyati v. Shell (PNG) Limited and The Registrar Supreme Court (2011) unreported SCA 22 of 2008 delivered 2^nd September 2011 (Injia CJ, Gavara Nanu and Davani JJ), the Court directed the Registrar at [25] to:

“... take appropriate steps including issuing practice directions or instructions designed to protect privileged Court information and documents from being disclosed by Court staff to parties or their lawyers and/or from being accessed by unauthorised Court staff and by parties or their lawyers.”

40. As to whether the Registrar has complied with this direction, we are unaware.

41. Given what has occurred in this case, we order and direct that no officers or staff of any Judge or of the Supreme or National Courts or their Registries shall give evidence orally or by affidavit of any communications between a Judge or anyone else or of any internal information or documentation concerning or relating to any of the Courts and their operation and administration, to or on behalf of a third party without the express written permission of the Chief Justice. The Registrar is directed to ensure that all officers and staff of the Judges, the Courts and the Court Registries are made aware of this order and direction.

___________________________________________________________________
Mawa Lawyers: Lawyers for the Appellant
Nemo Yalo Lawyers: Lawyers for the 1^st Respondent
Fairfax Legal: Lawyers for the 2^nd & 3^rd Respondents