Thomas v Bando [2023] PGSC 123; SC2470 (4 October 2023)

SC2470

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) NO 40 OF 2023

PETRUS NANE THOMAS
Applicant

V

WILLIAM WAI BANDO
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Cannings J
2023: 29^th September, 4^th October

ELECTIONS – application for leave to apply for review by Supreme Court of decision of National Court to uphold election petition and order that successful candidate not duly elected – Constitution, s 155(2)(b) – Supreme Court Rules 2012, Division 5.2 (election petition reviews).

The petitioner in an election petition conducted in the National Court (the successful candidate was first respondent and the Electoral Commission was second respondent) filed an application in the Supreme Court seeking leave to review the decision of the National Court to uphold objections to competency of the petition and dismiss the petition on the ground that it was not filed within 40 days after declaration of the result of the election, contrary to s 208(e) of the Organic Law on National and Local-Level Government Elections.

Held:

(1) To be granted leave to review a decision of the National Court in an election petition, an applicant must show: (a)(i) in so far as the application relates to a point of law, that it is an important point, which is not without merit or (ii) in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and (b) there are exceptional circumstances; and (c) it is in the interests of justice to grant leave.

(2) The proposed grounds of review in the application for leave raised important points of law about the requirements of s 208(e), in circumstances where a petition is lodged at the registry and uploaded on the Court’s Integrated Electronic Case Management System (IECMS) within the 40-day period but not sealed and endorsed with an election petition number by the Registry until after the end of that period, which were not without merit.

(3) There is conflicting National Court authority on whether lodgement on IECMS amounts to filing for the purposes of s 208(e) and whether the definition of “filed” in the Election Petition Rules 2017 (“filed” means lodged in a registry and sealed and endorsed with an EP number) applies to s 208(e). There is no full court Supreme Court authority on point. This fact, together with the decision of the National Court being final in nature, gave rise to exceptional circumstances, making it in the interests of justice that leave be granted.

(4) Leave granted to apply for review.

Cases Cited

The following cases are cited in the judgment:

Aihi v Isoaimo (2015) SC1598
Baindu v Yopiyopi (2019) SC1763
Duma v Puk (2019) SC1817
Kala v Temu & Electoral Commission (2023) SC2453
Kassman v Tkatchenko & Electoral Commission (2023) N10213
Mul v Ondokoi & Electoral Commission (2023) SC2441
Parkop v Juffa & Electoral Commission (2023) N10281
Potape v Undialu & Electoral Commission (2023) SC2440
Pundari v Yakos (2023) SC2345
Raminai v Pano & Electoral Commission (2023) N10248
Raminai v Pano & Electoral Commission (2023) SC2473
Thomas v Bando & Electoral Commission (2023) N10335
Yama v Pariwa & Electoral Commission (2023) N10458

Counsel

A Manase, for the Applicant
D E Doiwa, for the First Respondent
S G Dewe & C Mara, for the Second Respondent

4^th October 2023

1. CANNINGS J: Petrus Nane Thomas applies for leave to apply to the Supreme Court for review under s 155(2)(b) of the Constitution of a decision of the National Court in an election petition case, EP No 7 of 2022.

2. In that case, Mr Thomas petitioned against the return of the first respondent William Wai Bando as successful candidate for the Koroba-Lake Kopiago seat in the 2022 general election. His petition was dismissed on 19 June 2023 when the National Court constituted by Justice Kangwia upheld objections to its competency by Mr Bando and the second respondent, the Electoral Commission (Thomas v Bando & Electoral Commission (2023) N10335).

3. His Honour ruled that the petition was not filed within 40 days after declaration of the result of the election, contrary to s 208(e) of the Organic Law on National and Local-Level Government Elections, which states:

A petition shall ... 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).

4. His Honour found that the petition was hand-delivered to a senior registry officer, Mathew Bae, at the Waigani registry of the National Court on the night of Saturday 27 August 2022, which was the 39^th day after declaration of the result of the election, and later that night uploaded on the Court’s Integrated Electronic Case Management System (IECMS). His Honour acknowledged that both acts occurred within the 40-day period. However, his Honour found that the petition was not sealed and endorsed with an election petition number by another senior Registry officer, the EP track manager Kini Mamis, until the morning of Monday 29 August 2022, which was the 41^st day after declaration of the result. His Honour invoked the definition of “filed” in rule 1 of the Election Petition Rules 2017, which provides:

In these Rules, unless the contrary intention appears ... “filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number.

5. His Honour found that although Ms Mamis backdated the filing date of the petition to show it as 27 August 2022, that was done without authority and was to be disregarded when determining the date of filing. His Honour held:

32. It is settled practice now that a petition is lodged manually by providing the hard copy at the Registry or uploaded on IECMS with the evidence of payments made of the security deposit and filing fee. It is followed by sealing, stamping and giving of petition number.

33. My contribution of “filed” demanded by s 208(e) is that it is a process with starting and finishing lines without any breaks or interventions in between. Strict compliance of s 208(e) must start and finish simultaneously before an election petition is realized to be worthy of satisfying the strict requirement of “filed” under s 208 (e). The “filed” demanded by s 208(e) and recognized by Rule 5 of the Election Petition Rules is satisfied when the petition is lodged, sealed, endorsed, numbered, and stamped all at the same time. Not before and not after. There is no room for partial or substantial compliance (Charles Kassman v Justin Tkatchenko (2023) N10213).

6. His Honour ruled that in this case the process of filing took three days to complete, by which time the 40 days allowed by s 208(e) had expired. He concluded that the petition failed to satisfy the requirements of s 208(e) rendering it incompetent.

PROPOSED GROUNDS OF REVIEW

7. Mr Thomas argues by way of proposed grounds of review that the National Court:

• erred in law by not giving the word “filed” in s 208(e) of the Organic Law its fair and liberal meaning and preferring the definition of the term provided in an inferior law, the Election Petition Rules 2017, which definition is expressly confined to the use of that term in those Rules;
  
• erred in law by disregarding Mr Thomas’s genuine steps to file the petition within the 40-day period by both hand-delivering the petition and supporting documents to a senior officer of the Registry at the Registry on the night of Saturday 27 August 2022 and uploading the petition and supporting documents on IECMS, also on the night of Saturday 27 August 2022, which was one day before the expiry of the 40-day period.
  

CRITERIA

8. There are many cases that have over the years set out the criteria to be considered when determining applications for leave of this nature. The import of those cases was recently summarised by Hartshorn J in Pundari v Yakos (2023) SC2345. His Honour spelt out the criteria for granting leave. The applicant must show:

(a) in so far as the application relates to a point of law, that it is an important point, which is not without merit, or in so far as the application relates to facts, there is a gross error clearly apparent, which is not without merit; and

(b) there are exceptional circumstances; and

(c) it is in the interests of justice to grant leave.

9. I agree with his Honour’s description of the criteria, including the introduction of an exceptional circumstances requirement and the need to show that granting leave would be in the interests of justice.

APPLYING THE CRITERIA

10. The respondents have marshalled an array of arguments to say that the proposed grounds of review are without merit, including that the trial judge did not err in law as:

• it was correct to take into account the definition of “filed” in the Election Petition Rules 2017 as those Rules have been made by the Judges under s 212(2) of the Organic Law and must be read consonantly with the Organic Law, and read into the Organic Law (Baindu v Yopiyopi (2019) SC1763);
  
• it is settled law that filing a petition is a process culminating in sealing and endorsement of the petition with an EP number (Aihi v Isoaimo (2015) SC1598);
  
• uploading on IECMS cannot constitute filing a petition as IECMS has no status under the Rules of Court and the only practice direction authorising its use is of questionable legal status (as it was not issued by the Registrar) but if it is lawful, it cannot override the Election Petition Rules 2017 and in any event the practice direction by its own terms, does not apply to election petitions (Raminai v Pano & Electoral Commission, Supreme Court, unreported decision of Hartshorn J, 2023);
  
• s 217 of the Organic Law cannot be invoked to protect a petition that does not strictly comply with s 208 of the Organic Law (Duma v Puk (2019) SC1817, Kala v Temu & Electoral Commission (2023) SC2453);
  
• though there are some National Court decisions (eg Parkop v Juffa & Electoral Commission (2023) N10281, Yama v Pariwa & Electoral Commission (2023) N10458) and single-Judge Supreme Court decisions (eg Mul v Ondokoi & Electoral Commission (2023) SC2441, Potape v Undialu & Electoral Commission (2023) SC2440) that support the view that uploading on IECMS can amount to filing a petition for the purposes of s 208(e), it is apparent that those decisions were made without the benefit of extensive argument on the special status of the Election Petition Rules 2017 arising from them being made under the Organic Law.
  

11. The respondents therefore submitted that there are no important and worthy points of law raised by the application for leave and there are no exceptional circumstances that warrant the granting of leave.

12. I am not persuaded by those submissions. I am of the view that there are important points of law raised, three in particular stand out, namely:

• whether uploading on IECMS amounts to filing a petition;
  
• whether lodgement of a petition at the registry amounts to filing a petition;
  
• whether a petition is filed on the day that it is sealed and endorsed with an EP number.
  

13. There are conflicting decisions of the National Court on these issues and to some extent conflicting opinions have been expressed by Supreme Court Judges determining leave applications that raise these issues. For example the National Court decisions in Kassman v Tkatchenko & Electoral Commission (2023) N10213 and Raminai v Pano & Electoral Commission (2023) N10248 support the respondents’ contention that uploading on IECMS does not constitute filing for the purposes of s 208(e)).

14. I note that a Supreme Court reference arising from my National Court decision in Parkop v Juffa & Electoral Commission (2023) N10281 has recently been made under s 18(2) of the Constitution by Justice David. It seems that his Honour referred to the Supreme Court questions of constitutional interpretation and application regarding s 208(e) and 209 of the Organic Law but did so in his capacity as a single Judge of the Supreme Court. I respectfully doubt whether this was a valid exercise of power under s 18(2), which appears to only give the power to make a reference to courts and tribunals other than the Supreme Court. Whatever happens to that reference, however, its existence and his Honour’s decision to initiate it only goes to show the significance of the issues raised by this application for leave.

15. The proposed grounds of review in the application for leave raise important points of law, which are not without merit, about the requirements of s 208(e), in circumstances where a petition is lodged at the registry and uploaded on the Court’s Integrated Electronic Case Management System (IECMS) within the 40-day period but not sealed and endorsed with an election petition number by the Registry until after the end of that period.

16. The respondents say that the issues raised by the applicant have been settled, but I disagree. There is no full court Supreme Court authority directly on point. This fact, together with the decision of the National Court being final in nature, gives rise to exceptional circumstances, making it in the interests of justice that leave be granted.

CONCLUSION

17. The application for leave will be granted. Costs will follow the event.

ORDER

(1) The application for leave, filed 28 June 2023, to apply for review of the decision of the National Court of 19 June 2023 in EP No 7 of 2022, is granted.

(2) The respondents shall pay the applicant’s costs of the application on a party-party basis, which shall if not agreed be taxed.

___________________________________________________________
Manase & Co Lawyers: Lawyers for the Applicant
Makap Lawyers: Lawyers for the First Respondent
Jema Lawyers: Lawyers for the Second Respondent