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Thomas v Bando [2024] PGSC 62; SC2593 (28 June 2024)

SC2593


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCA REVIEW (EP) NO. 40 OF 2023 [IECMS]


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:
PETRUS NANE THOMAS
Applicant


AND:
WILLIAM WAI BANDO
First Respondent


AND:
ELECTORAL COMMISSION
Second Respondent


Waigani: Salika CJ, Makail J, Dingake J.
2024: 29th May & 28th June


ELECTION PETITION – Section 208(e) of the Organic Law – no evidence that Petition lodged at the Registry of the National Court in Waigani – held as the Petition was not lodged – the meaning of “filed” in Section 208(e) of the Organic Law does not fall for determination.


ELECTION PETITION – Two modes of filing petition – hand-delivery of petition to Registry – petition registered through CDS – petition uploaded – electronically filed through IECMS – National Court Election Petition (Miscellaneous Provisions) Rules – Rule 1.


Cases Cited:
Paru Ahi v Peter Namea Isoaimo (2015) SC1598
Baindu v Yopiyopi (2019) SC1763
Digicel (PNG) Ltd v Alex Tongayu [2018] PGNC 159; N7237
Puri Ruing v Allan Marat (2012) N4672
Michael Gene v Hamidian Rad [1999] PNGLR 444
Telikom (PNG) Ltd v ICCC & Digicel (2008) SC906
Rabaul Shipping Ltd v Chris Rupen (2008) N3289
Aiten Maniho v Luther Wenge & Chief Magistrate [1999] PNGLR 472
Francis Kawage v Solicitor General & The State [1999] N1875


Counsel:
Mr. Alfred Manase, for the Applicant
Ms. Dakan E Doiwa, for the First Respondent
Mr. Simon Goiye Dewe, for the Second Respondent


28th June 2024


  1. SALIKA CJ & DINGAKE J: INTRODUCTION: This is the unanimous decision of the Court with respect to the application, brought by the Applicant, in which he prays this Court to review a decision of the National Court in an Election Petition (EP No. 7 of 2022) upholding the Respondent’s Objection to Competency of the Petition and dismissing the Applicant’s Petition.
  2. The Review Application is brought pursuant to Order 5 Rule 18 and 19 of the Supreme Court Rules (as amended) and Section 155(2)(b) of the Constitution.

BACKGROUND


  1. To put the issues in this Review Application in sharp perspective, it is imperative to state the background and dispositive facts briefly.
  2. The Applicant filed a Petition on the 27th of August 2022, disputing the election of the First Respondent in the 2022 General Elections pursuant to Section 206 of the Organic Law on National and Local Level Government Elections (OLNLLGE) (“The Organic Law”).
  3. Subsequent to the Petition being filed, in May and June 2023, the First and Second Respondents respectively, challenged the competency of the Applicant’s Petition, on several grounds.

INCOMPETENCY GROUNDS


  1. The grounds upon which the Respondents challenged the competency of the Petition are wide ranging. The Respondents alleged that the Petition was incompetent in that:
    1. It contravenes s.208(a) of the Organic Law when it failed to plead facts supporting the alleged errors and omissions relative to thirteen (13) ballot boxes.
    2. Contravenes s.208(a) of the Organic Law when it failed to plead facts supporting the allegation of failing to comply with Electoral Commissioner’s directives.
    3. Fails to plead facts which constitute the alleged illegal offences contrary to s.208(a) of the Organic Law.
    4. Fails to plead how the results would have been affected by the allegation of illegal acts.
    5. Fails to plead the relief sought in view of the Returning Officer’s decision to include ballot boxes.
    6. Pleading reliefs not entitled to when alleging errors and omissions.
    7. Contravenes s.208(e) of the Organic Law when the petition was filed outside the forty (40) days from the date of declaration.
    8. Contravenes s.209 of the Organic Law when the security deposit of Five Thousand Kina (K5,000.00) was not paid on the same day the petition was filed in the National Court Registry.

THE NATIONAL COURT DECISION


  1. The National Court, per Kangwia J, decided to deal first with ground 7 and 8 above, that implicated the jurisdiction of the Court, as the primary judge took the view that the balance of the other grounds, may only be considered in circumstances where the Court’s jurisdiction is established.
  2. On the 19th of June 2023, the National Court delivered its decision and concluded that the Petition was incompetent because the Petitioner had failed to file his Petition within forty (40) days after the declaration of the results as required by Section 208(e) of the Organic Law and Rule 1 of the Election Petition (Miscellaneous Amendments) Rules 2022 (“the EP Rules”). Accordingly, the Petition was dismissed in its entirety, with costs.
  3. Given its conclusion above, the Court refrained from dealing with the balance of the grounds as it did not have jurisdiction to do so.

GROUNDS RAISED FOR THE REVIEW


  1. The Applicant being aggrieved by the decision of the Court below sought leave before a single judge of the Supreme Court (Cannings J) to review the decision of the National Court (Per Kangwia J).
  2. Leave was granted on the 4th of October 2023.
  3. The Applicant has raised four (4) grounds of review. These grounds are:

CONSIDERATION


  1. In our considered opinion the issue that loomed large, rendering any other issue subsidiary, during the hearing of this Review Application, was whether the Court below erred in law in interpreting the term “filed” in Section 208(e) of the Organic Law to include “sealing”, “stamping” and being “given a Petition Case Number”.
  2. The Applicant contends that the Court below failed to give the word “filed” in Section 208(e), its natural and ordinary meaning and a “fair and liberal meaning” in a way that gives paramount consideration to the dispensation of justice.
  3. The Applicant contends that the Petition was “filed” when it was lodged with the registry officer, Mr. Mathew Bae, at the Court Registry on Saturday 27th August 2022, and/or alternatively was filed when it was uploaded on IECMS on 27 or the 28 August 2022.
  4. The First Respondent on the other hand argues that the Petition failed to demonstrate any identifiable error entitling the Petitioner to succeed in this Review application, and that in any event there was no need to apply a “fair and liberal meaning” because there was no conflict in the law.
  5. The First Respondent argues that the term “filed” is properly captured by Rule 1 of the Election Petition Rules, which requires the Petition to be lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in the Province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number.
  6. The First Respondent contends that there is no ambiguity in the meaning of the word “filed” under Section 208(e) of the Organic Law.
  7. The First Respondent placed heavy reliance on the case of Paru Ahi v Peter Namea Isoaimo (2015) SC1598, that suggested that given that the word “filed” is not defined in Section 208(e) of the Organic Law, the Court should have regard to the meaning of “filed” in the Election Petition Rules as the said Rules are made pursuant to Section 184 of the Constitution and Section 212(2) of the OLNLLGE (see also Baindu v Yopiyopi (2019) SC1763).
  8. Essentially the First Respondent argued that the Petitioner failed to establish the grounds of review and that he complied with Section 208(e), having regard to the meaning of “filed” in the Election Petition Rules.
  9. The Second Respondent objected to the competency of the Applicant’s Application for Review in that the primary relief sought, being an Order in the nature of certiorari, can only be claimed or sought in judicial review proceedings commenced under Order 16 of the National Court Rules.
  10. The Second Respondent argued, further that, the other reliefs sought or claimed by the Applicant were consequential in nature as the grant of those reliefs depends on whether the first relief is granted or not.
  11. The Second Respondent relied on several cases that it contended supported its argument that the Applicant’s Review Application was incompetent.
  12. As a rule, if an application for judicial review is successful, the Court may, in its discretion, grant a remedy, namely, that the decision that has been made unlawfully be quashed (certiorari). Certiorari is one of the prerogative Writs used against unlawful administrative action.
  13. There are a plethora of case authorities which explain in detail the nature and purpose of an order of certiorari, and these cases include: (Digicel (PNG) Ltd v Alex Tongayu [2018]PGNC 159; N7237, Puri Ruing v Allan Marat (2012) N4672, Michael Gene v Hamidian Rad [1999] PNGLR 444, and Telikom (PNG) Ltd v ICCC & Digicel (2008) SC906, Rabaul Shipping Ltd v Rupen (2008) N3289).
  14. Injia J (as he then was) in Application by Aiten Maniho v Luther Wenge & Chief Magistrate [1999] PNGLR 472 and Francis Kawage v Solicitor General & The State [1999] N1875 held that the procedure for a prerogative writ is exclusively set out under O.16 r.1 of the Rules. In the latter case at pages 3-4 he stated:

“I have reservations concerning the regularity of the procedure employed in this application. An application by an interested party for an order for mandamus to compel a statutory authority to perform its statutory duty where it has refused or failed to perform that duty is required to be commenced by an application for judicial review under Order 16 of the National Court Rules. Order 16 Rule 1 provides that: ‘An application for an order in the nature of mandamus, prohibition, certiorari or quo warrant shall be made by way of an application for judicial review in accordance with this Order’. The requirement under O.16 r.1 is mandatory. A person aggrieved by the failure of a statutory authority to perform its statutory duty has no right to seek an order for mandamus in the Courts. He only does so by leave of the National Court; O.16 r.3. This is the normal procedure to be adopted when the Court is asked to intervene to compel an administrative authority to perform its statutory duty functions.”


  1. We have grave reservations whether an order of certiorari is competent, in an application such as the present, given the provisions of Order 16 Rule 1 of the National Court Rules, and several cases that have held that the procedure for a prerogative writ is exclusively set out under Order 16 Rule 1. (Application by Aiten Maniho v Luther Wenge & Chief Magistrate [1999] PNGLR 472 and Francis Kawage v Solicitor General & The State [1999] N1875.
  2. However, we do not wish to base our decision on this narrow technical ground. Consequently, we do not consider it necessary to determine that competency issue raised, as it is more productive and efficient, in our view, to address the main argument with respect to the meaning of the word “filed” in Section 208(e) of the Organic Law, to the extent that it may be necessary to do so.
  3. The Second Respondent’s substantive ground of opposing this application is similar to that of the First Respondent, in that the Second Respondent contends that the Applicant’s Review Application is without merit and therefore liable to be dismissed because the Court below did not commit any error of law in interpreting the word “filed” in Section 208(e) of the Organic Law.
  4. The Second Respondent, shares the submission of the First Respondent that the word “filed” in Section 208(e) of the Organic Law should be interpreted to mean that the Petition is filed when it has completed the following three (3) stage process:
  5. In this matter, the Court below found that the Petition was hand delivered to Mathew Bae the Senior Officer for case docketing system at the National Court Registry on the 27th of August 2022. The Court noted that there were some variances as to the exact timing and location.
  6. In our view the question that arises, having regard to the above findings of the Court below and evidence on record, is whether the Petition was filed and, if so, when was it filed?
  7. The evidence on record sheds some light on whether the Petition was filed or not.
  8. As is clear from the above findings of the Court below, the Court did not make any finding of fact on where the lodgment took place.
  9. In our considered opinion, the burden is on the Applicant to show that he lodged the Petition within forty (40) days as required by law.
  10. The record shows from page 272 – 274 of the Review Book (Volume 2) that Mr. Joseph Allant, the legal clerk employed by Manase & Co Lawyers, had made arrangements with Mr. Mathew Bae to lodge the Petition. Although Mr. Allant was plainly evasive on occasions, when he was cross-examined, what is clear and beyond doubt, from the evidence, is that the documents that were to be filed, including the Petition, were delivered to Mr. Mathew Bae, outside the Registry Office, because the office was closed.
  11. It follows from the above that the Petition was never properly “filed” in a registry at the National Court at Waigani as required by Rule 1 of the Election Petition Rules.
  12. Rule 1 of EPR, provides that:

“1. Definitions


‘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.”


  1. In our considered view, Parties in an election petition must comply with the Election Petition Rules. The EP Rules provide that “filed” means lodged in a registry of the National Court at Waigani, or sub-registry of the National Court in a province.
  2. In this case, as the evidence shows, the Petition was not filed “in a registry of the National Court in Waigani ...”
  3. In our view, as the Petition was clearly not lodged in the Registry as required by the Election Petitions Rules, it becomes futile and unnecessary to interpret the word “filed” in Section 208(e) of the Organic Law. There is no need to interpret “filed” in Section 208(e) of the Organic Law, as nothing was filed.
  4. In our considered opinion, the Election Petition Rules are important in the prosecution of Election Petitions as they provide the details or mechanics of the filing and prosecution of an Election Petition. Litigants in election Petition matters ignore this rules at their peril.
  5. The Organic Law cannot be expected to provide details relating to the steps to be taken to file a Petition. This is mandated by Sections 184 of the Constitution and Section 212(2) of the OLNLLGE. The Election Petition Rules would only be inapplicable in circumstances where they breach the Organic Law, which is not so in this case.
  6. Put differently, the EP Rules are subservient to the Organic Law and to the extent that they are intra-vires the Organic Law, they are legally binding. To this extent, we agree with the remarks of Hartshorn J to the same effect in the case of Baindu v Yopiyopi (2019) SC1763.
  7. Consistent with the view that Election Petition Rules exist to complement and give effect to the OLNLLGE, this Court, in the case of Mai Dop v Wake Goi SC Review (EP) No. 1 of 2018 stated that:

“For election petitions, the general feel and common emphasis is strict compliance and with the provisions of the Organic Law on National and Local-Level Government Elections and the National Court Election Petition Rules and the Supreme Court Election Review Rules. It has been said many times over, a challenge to an election result or return is such a serious matter that the Petitioner must in essence be efficient in his or her approach and compliance to ensure his or her petition is properly drafted, filed and prosecuted. An intending petitioner has that onerous burden in filing and prosecuting his or her petition. Failure to comply may result in the summary dismissal of the petition, unless good cause is shown for the exercise of Judicial discretion to extend time or waive the rule”.


CONCLUSION


  1. In all the circumstances of this case, we are satisfied that this Review Application is liable to be dismissed primarily because the Petition was not filed “in a registry of the National Court at Waigani ...” and consequently the word “filed” is Section 208(e) of the Organic Law, does not fall for determination.
  2. Given the conclusion we have reached on this matter we do not consider it necessary to deal with the other subsidiary issues the Respondents raised.
  3. MAKAIL J (Dissenting): The joint judgment of the Chief Justice and Dingake J outline the background facts giving rise to the decision of the National Court to uphold the respondents’ objection to competency and dismiss the election petition. I adopt them as my own. However, with respect, while I agree with their Honours’ finding that the time limitation of 40 days to file an election petition expired on Sunday 28 August 2022, that Mr Joseph Allant, the legal clerk employed by Manase & Co Lawyers, had delivered the documents including the petition to Mr Mathew Bae, outside the Registry Office, because the office was closed on the night of Saturday 27 August 2022, and that the petition was never properly “filed” at the National Court at Waigani as required by Rule 1 of the National Court Election Petition (Miscellaneous Amendments) Rules (“EP Rules”), the alternative ground at paragraph 5.1(c) of the application for review that the petition was filed when it was uploaded on the Integrated Electronic Case Management System (“IECMS”) on 27 or the 28 August 2022 is upheld.
  4. This is because the petition was also lodged electronically on Sunday 28 August 2022 at 00:48 am. Since 2020, the Court has been operating two case management database systems. First, the Case Docketing System (“CDS”) and the second, IECMS. As to electronic filing of a petition, it is not necessary to comment on the confusion associated with the two modes (CDS and IECMS), save to point out that a petition may be filed using either of them.
  5. In the present case while the EP Rules make no provision for filing of a petition through the IECMS, the Practice Direction (IECMS) No 1of 2022 issued by the Chief Justice on 1 February 2022 provides some “interim” guidelines for filing of court documents using IECMS. Equally important is that while the first respondent makes strong submissions objecting to the use of the Practice Direction on the grounds that it has no force of law because the Chief Justice had no authority to issue it and that it does not apply to petition because EP Rules is excluded, these two propositions should not override the power of the Court to give paramount consideration to dispensation of justice under Section 158 of the Constitution.
  6. In the exercise of this power to do justice in the circumstances together with the guidelines set out in the Practice Direction, a petition may be filed through IECMS in accordance with Rules 9, 10, 11 and 14. Rule 9 provides for “Case Citation and Response”, Rule 10 provides for “Case Citation and Response Process” and Rule 11 provides for “e-Filing and Electronic Lodgments” and Rule 14 provides for “Other documents and processes”.
  7. According to the applicant, his lawyers opened an account through the IECMS on Saturday 27 August 2022 at 23:59 hours and a draft filing number DFT 08 of 2022, was issued to the petition, and on Sunday 28 August 2022 at 00:48 am, the applicant uploaded on IECMS the petition together with filing fee of K1,000.00 and second for costs of K5,000.00 receipts.
  8. On the same day (Sunday 28 August 2022) at 8:45 am the three documents were validated and at 10:39 am that day were approved and filing number was changed from DFT 08 of 2022 to EP No 07 of 2022. All the requirements for registration of the petition on the IECMS were attended to and completed on the fortieth day. Refer to annexure “A” (Log History) to the affidavit of Luther Makap filed 12 June 2023 for further information.
  9. On Monday 29 August 2022 at 11:56 am Mrs Kini Mamis, the EP track leader in the Court Registry, received the petition that was hand delivered to Mr Bae at the Registry on the night of Saturday 27 August 2022 and dated it 27 August 2022.
  10. In the result, while the hand delivered petition to Mr Bae outside the Registry on the night of Saturday 27 August 2022 does not constitute “filed” within the meaning of Rule 1 of the EP Rules because it was not “lodged in a registry of the National Court at Waigani.....”, it was nonetheless, filed electronically through the IECMS on the fortieth day which was Sunday 28 August 2022.
  11. However, this conclusion is contrary to the evidence of the date recorded on the petition of 27 August 2022. This is one of the examples of the confusion associated with the Court running two case management data base systems for filing in relation to the date to be recorded on the petition when the petition was filed at the registry in a case where a petitioner has used the hand-delivery method through the CDS and the other, electronically through IECMS. On my part, Sunday 28 August 2022 was the date the petition was electronically filed. This should have and should be the date of filing of the petition. As the fortieth day fell on Sunday 28 August 2022, the petition was filed within time.
  12. I would uphold the application for review, quash the decision of the National Court of 19 June 2023 and remit the petition for re-hearing.
  13. As to the re-hearing in the National Court, it is common ground between the parties that parties addressed further grounds of objections before the trial judge, one of them being the failure to plead facts supporting allegations of errors or omissions relevant to thirteen ballot-boxes contrary to Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”). However, the trial judge ruled dismissing the petition only on one ground, it being the petition was filed outside the time limitation of 40 days contrary to Section 208(e) of the Organic Law.
  14. The applicant submits that if the Supreme Court upholds the review and quashes the decision of the National Court, the remaining grounds of objections are rendered obsolete, and the petition must progress to substantive trial. As for the respondents, they submit that the remaining grounds of objections should be the first business of the re-hearing before the trial judge because the trial judge made no determination on them.
  15. The respondents’ submissions will be upheld in part because the trial judge made no determination on the remaining grounds, and for this reason, they are not obsolete. As to whether the remaining grounds should be heard by the trial judge or another judge, it is arguable either way. In one case, the trial judge is best placed to reconvene the hearing and proceed to hand down his ruling on the remaining grounds of objection. On the other hand, given the time between the date of the hearing of the objections and date for re-hearing (one year has passed), it is preferrable for a re-hearing of the remaining grounds of objections before either the trial judge or next available judge. This question will be referred to the Election Petition Judge Administrator to decide after hearing the parties.
  16. Lastly, as to the ground on what constitutes “filed” in Section 208(e) of the Organic Law and whether the petition was filed in time, given the finding that the petition was not hand delivered to the Registry, it is not necessary to consider this ground. Similarly, as to the objection that the order in the nature of certiorari not being an appropriate relief for an applicant to seek in an application for review under Section 155(2)(b) of the Constitution, I agree with their Honours’ reasoning that while it is an important procedural point, it is not necessary to consider it. Moreover, it is not correct that the grounds of review are vague and lacking and the objection will be dismissed.
  17. Costs shall follow the event and the security deposit of K5,000.00 shall be paid to the applicant forthwith.

ORDER


  1. In the result, the Court, by a majority, orders that:

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

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