Hagahuno v Tuke [2019] PGSC 12; SC1776 (1 March 2019)

SC1776

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO 34 OF 2018

WILLIAM HAGAHUNO
Applicant

V

JOHNSON TUKE
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J, Kassman J, Logan J
2019: 28 February, 1 March

ELECTIONS – objection to competency of petition – requirement that petition be filed within 40 days after the declaration of the result of the election – calculation of 40 days – whether 40-day period runs from the date of the declaration or the next day – Organic Law on National and Local-level Government Elections, Section 208(e)

The National Court upheld an objection to competency of an election petition and dismissed the petition on the ground that it had not been filed within 40 days after the date of the declaration of the result of the election contrary to Section 208(e) of the Organic Law on National and Local-level Government Elections. The declaration was made on 26 July 2017. The petition was filed on 4 September 2017. The National Court decided that calculation of the 40-days started on 26 July 2017, and ended on 3 September 2017. The petition was filed one day late, which rendered it incompetent. The petitioner sought and was granted leave to apply for review of the National Court decision.

Held:

(1) On its true construction, s 208(e) of the Organic Law requires that the date of the declaration is excluded from calculation of the 40-day period allowed for filing a petition. The period commences to run from the next day.

(2) In the present case calculation of the 40-day period ran from 27 July 2017 and ended on 4 September 2017.

(3) The petition was filed on 4 September 2017. It was within time.

(4) The National Court erred in law. The application for review was granted and the petition was reinstated.

Cases Cited

The following cases are cited in the judgment:

Papua New Guinea Cases

Felix Bakani v Rodney Daipo (2002) SC699
Kalit v Pundari (1998) N1712
Labi Amaiu v John Kaupa (2017) N7004
William Hagahuno v Johnson Tuke (2018) N7330

Overseas Cases

Associated Beauty Aids Pty Ltd v Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662
Dodds v Walker [1981] 1 WLR 1027

APPLICATION

This was an application for review of a decision of the National Court to uphold an objection to competency of an election petition.

Counsel

L Tangua, for the Applicant
P N Mawa, for the First Respondent
J O Simbala, for the Second Respondent

1^st March, 2019

1. BY THE COURT: The Applicant/Petitioner, Mr William Hagahuno, and the First Respondent, Mr Johnson Tuke, were each candidates who contested the Kainantu Open Electorate, Eastern Highlands Province in the 2017 general election.

2. It is common ground that, on 26 July 2017, Mr Tuke was declared the elected Member of Parliament for that seat with Mr Hagahuno being the runner-up.

3. On 4 September 2017, Mr Hagahuno filed a petition in the National Court (proceeding EP No 52 of 2017) by which he disputed Mr Tuke’s election as Member.

4. Mr Tuke and the Second Respondent, the Electoral Commission of Papua New Guinea, each later filed objections to the competency of the Petition.

5. Placed in issue by the objections was whether the Petition was filed within or outside of the forty (40) days period specified by s 208(e) (requisites of petition) of the Organic Law on National and Local-level Government Elections, which provides:

A petition shall—

(a) ... ....

(b) ... .....

(c) ... .....

(d) ... .....

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).

6. Suffice it say, if, as the objectors each contended (and as the respondents maintained before us), “within 40 days after the declaration of the result” were to be construed as inclusive of 26 July 2017, the day of the declaration, Mr Hagahuno filed his petition one day after the period specified in s 208(e) of the Organic Law. If, on the other hand, that provision is to be construed as exclusive of 26 July 2017 (as Mr Hagahuno has consistently maintained), then the last day for filing a petition was 4 September 2017, the date on which he filed the Petition.

7. The learned primary judge upheld the objections to competency and dismissed the Petition accordingly (William Hagahuno v Johnson Tuke (2018) N7330). Her Honour construed s 208(e) of the Organic Law as requiring that the date of declaration be included in the calculation of the 40-day period. Her Honour considered that she was bound to construe s208(e) of the Organic Law in this way by this Court’s judgment in Kelly Kilyali Kalit v John Pundari and the Electoral Commission (1998) SC569 (Kalit’s Case).

8. Mr Hagahuno has secured the requisite grant of leave for the review by this Court, pursuant to s 155(2)(b) of the Constitution, of the National Court’s order dismissing the Petition The question of law at issue is the true construction of s 208(e) of the Organic Law.

9. The learned primary judge was not alone in the National Court considering that Kalit’s Case was authority for the construction of s208(e) of the Organic Law that she adopted. There are cases to be found in the National Court in which a like construction of s 208(e) of the Organic Law was adopted, each based on an understanding that this was dictated by Kalit’s Case. Yet there are other cases in the National Court, including Labi Amaiu v John Kaupa (2017) N7004, with which her Honour expressly differed, which do not regard Kalit’s Case as dictating such a construction and which hold that the 40-day period is to be calculated excluding the date of declaration. In short, there are conflicting lines of authority in the National Court.

10. We mean no disrespect to the learned judges who have opted for one construction or the other by not exhaustively identifying each and every National Court case in these lines of authority to which, thanks to the industry of counsel, we were taken. For if, truly, Kalit’s Case were a considered judgment of this Court on the construction of s 208(e) of the Organic Law, it would be a considerable thing for us to depart from it, especially as it has stood for many years on a subject as centrally important in a democracy as the law of elections.

11. But, on analysis, Kalit’s Case is not the authority some have thought it to be in relation to the construction of s 208(e) of the Organic Law. This is best demonstrated by regard to the judgment of Salika J (as the Chief Justice then was), the trial judge in that case: Kalit v Pundari (1998) N1712. His Honour stated:

The petitioner contends that the declaration was made on the 5th July 1997 while the first and the second respondents contend it was done on the 4th July 1997. If the declaration was made on the 5th of July 1997, the petition will stand because it would have been filed within 40 days after the declaration of the result of the election. On the other hand if the declaration of the result was made on the 4th July 1997 the petition may not stand because it would have been filed outside the 40 day period allowed under s 208(e) of the Organic Law on National and Local Level Government Elections. The petition in this matter was filed in the National Court Registry at Waigani on the 14th August 1997.

12. There was never any controversy in Kalit’s Case of the present kind about how s 208(e) of the Organic Law was to be construed. It was common ground between the parties and accepted by his Honour in the hearing of the petition that, on its true construction, that provision would have the effect described by Salika J in the passage quoted. That construction is exactly the construction for which Mr Hagahuno contends in the present case. The controversy in Kalit’s Case was about what was the date of declaration. This Court’s judgment in that case provides authoritative guidance as to what is required to disturb a returning officer’s certification on the Writ as to the date of the declaration and conclusions reached at trial as to the date of the declaration.

13. In dismissing the subsequent review application in Kalit’s Case, this Court stated:

The trial judge dealt with the preliminary issue of whether the petition was filed within the period of forty days commencing from the date of declaration of the result of the election as required by section 208(e) of the Organic Law or National and Local-Level Government Elections. At the preliminary hearing before Salika J the First Respondent contested the date of the declaration stated in the petition and raised the issue of time bar under ... s 208(e). In the petition, the applicant had stated that the declaration was made on 5th July 1997 whereas the First Respondent maintained it was made on the 4th of July 1997. If the First Respondent’s contention was to be upheld, the whole Petition would fail for failing to comply with ... s 208 (e) in that the Petition which was filed on 14 August 1997 was filed outside 40 days. After hearing the evidence and submissions from counsel, the trial judge decided the issue in favour of the First Respondent and dismissed the petition.

14. This, with respect, was an accurate summary of the issues and result before Salika J at trial. It was not a considered conclusion in respect of competing contentions as to the true meaning of s 208(e) of the Organic Law, because there were none. To regard it otherwise, as some, with respect, have evidently done in the National Court, is to give the passage quoted more weight than it can bear. In truth, the point is one free from direct authority in this Court.

15. Materially, s 11 (computation of time) of the Interpretation Act 1975 provides:

(1) In computing time for the purposes of a statutory provision, a period of time from–

(a) a certain day; or

(b) the happening of an event; or

(c) the doing of an act or thing,

shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done.

16. Were this provision directly applicable, it would dictate that the review be resolved in Mr Hagahuno’s favour. But each party accepted, in our view correctly, that it had no direct application to the construction of an Organic Law.

17. Absent the influence of an Interpretation Act provision such as s11, the common law, while recognising the possibility of a contrary conclusion arising from a very particular context, has generally favoured, where it is necessary to compute a period of time “from” or “after” a particular event, to calculate that period as excluding the date of that event. This general position at common law has the same rationale, grounded in practical difficulties attending any contrary construction, as does a provision such as s 11 of the Interpretation Act. An authoritative statement of that rationale is to be found in Pearce & Geddes, Statutory Interpretation in Australia, 6.46, pp 296-297:

The thinking underlying the Interpretation Act provision owes much to the difficulties that arise if the time is to run from the day of the event. If it is to commence at the first moment of time on that day, there is then an effective backdating of the period. If it is to commence from the time of the triggering event there are practical problems in identifying that precise time. It is for these reasons that the general approach has been adopted by courts of not paying credence to parts of days: see the discussion in Associated Beauty Aids Pty Ltd v Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662 at 669.

18. As Pearce & Geddes highlight, at 6.46, p 297, this approach to construction informed by practicalities has been adopted even where an Interpretation Act is not applicable. The authority cited in the passage quoted, Associated Beauty Aids Pty Ltd v Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662, was just such a case, in which, at 668-669, Barwick CJ stated:

There is no general rule as to the consequences of the use of the preposition "from", whether it be in the computation of the period of time, or in any other connexion. In general, in computing a period of time from a date, the period will commence at the end of the day of that date, but there is no universally operating rule to that effect, see, for example, the illustration given in the note at page 1068 of the report of R v Stevens and Agnew [1804] Eng R 251; (1804) 5 East 244 (102 ER 1063), and Wilkinson v Gaston [1846] EngR 737; (1846) 9 QB 137 (115 ER 1227). When, as here, a change is to take place from a stated time, the general "rule" as to the computation of a period of time is not of direct significance, though it is illustrative of the separating effect of the preposition "from". In my opinion, it does not usually have an inclusive but rather an exclusive or separatist quality. But unquestionably it may have either. Thus, the preposition derives its relevant quality from the context in which it is found, which includes the purpose which the document in which it is found is evidently designed to effect.

Lord Esher said in In re North; Ex parte Hasluck [1895] UKLawRpKQB 95; (1895) 2 QB 264 : "No general rule exists for the computation of time . . . where time is mentioned in a contract, the rational mode of computation is to have regard . . . to the purpose for which the computation is to be made" (1895) 2 QB, at p 269. Generally in the case of the commencement of a term under a lease, where it is expressed to commence from a date, it commences at the end of the day of that date though it may be otherwise if no date of commencement of the term is expressed.

In this case, it seems to me impossible to construe the article so that a notice of election should be operative before the actual time it was given. The impractical consequences of such a construction are quite obvious and of a kind not to be contemplated in the business affairs of a company. Thus the paragraph of the article ought not to be read as providing for an operation of a notice of election at the earliest moment of the day on which it is left at the Company's office.

There are also great practical difficulties if the paragraph is construed as giving an operation to the notice of election from the moment of its delivery. This time in the ordinary course would be difficult to establish with certainty.

19. A judgment to like effect was delivered by Owen J in that case.

20. In this jurisdiction Associated Beauty Aids Pty Ltd v Commissioner of Taxation is particularly persuasive, because of the summary it offers of the position at common law in England and of the place of English common law in the underlying law of Papua New Guinea. A consistent statement of a position which usually prevails at common law in relation to the reckoning of time after a specified event was offered by Lord Diplock in Dodds v Walker [1981] 1 WLR 1027, a case to which we were helpfully referred by counsel for Mr Hagahuno:

It is also clear under a rule that has been consistently applied by the courts since Lester v Garland [1808] EngR 326; (1808) 15 Ves Jun 248 that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning.

21. Similar considerations of practicality attend why it is that it is inherently unlikely that it was ever intended that s 208(e) of the Organic Law would require that the day of the declaration would be included in the calculation of the specified 40-day period.

22. Once it is understood that a like rationale attends both the common law position when considerations of practicality predominate and that found in s 11 of the Interpretation Act, in the absence of some contrary intention, the assistance offered by Felix Bakani v Rodney Daipo (2002) SC699, a case to which we drew attention in the course of submissions, becomes apparent. That case concerned the computation of time for the purposes of s 17 of the Supreme Court Act 1975. That provision also requires that time be calculated within 40 days after a particular event (date of judgment). In Felix Bakani v Rodney Daipo this Court held that time was to be computed excluding the date of the judgement. The respondents in the present case sought to draw a distinction between the reference, for example, in s 17 of the Supreme Court Act, to “the date of” an event and the specification of the event itself, as with the specification in s 208(e) (“the declaration of the result”). But, in the present context, that construction is attended with the practical difficulties mentioned. It is truly a distinction without a difference.

For these reasons, our view is that, on its true construction, s 208(e) of the Organic Law must be construed as excluding the date of the declaration; in other words, as Barwick CJ put it, as having an “exclusive or separatist quality”. It follows that the learned primary judge was in error in holding that the Petition was not filed within the specified time. It will be necessary to return the case to the National Court so that it may be further heard according to law.

ORDER

For these reasons, we order as follows:

1. The decision and order of the National Court dated 22 June 2018 in EP No 52 of 2017, William Hagahuno v Johnson Tuke and the Electoral Commission (Petition), is quashed.
   
2. The Petition is reinstated and remitted to the National Court for further hearing according to law.
   
3. If any portion of the deposit of K5,000.00 has been paid to them, the Respondents are forthwith to repay that amount to the Registrar of the National Court. The Registrar is to retain the deposit and any portion thereof refunded by the Respondents, to abide the order of that court on the hearing and determination of the Petition.
   
4. The Respondents are to pay the Applicant’s costs of and incidental to the review in this Court and of and incidental to the hearing and determination of their objections to competency in the National Court, to be taxed if not agreed.
   

Judgment accordingly.
__________________________________________________________
Baniyamai Lawyers: Lawyers for the Applicant
Mawa Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second Respondent