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Auwi v Donald [2017] PGNC 359; N7062 (29 December 2017)

N7062
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 71 OF 2017

BETWEEN
SAM BOB AUWI
Petitioner

AND
JAMES DONALD
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Waigani: Makail, J
2017: 29^th December

ELECTION PETITION – Objection to competency of petition – Grounds of – Late filing of petition – Computation of time – Prescribed time limit of 40 days – Whether public holiday not counted – Organic Law on National and Local-level Government Elections – Section 208 (e) – National Court Election Petition Rules, 2017 – Rule 12

Cases cited:

Alfred Pogo v. Guao Zurenuoc (2003) N2351
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6^th March 2015)
Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29^th May 2015)
Andrew Kumbakor v. Joe Sungi & Electoral Commission: EP No 27 of 2017 (Unnumbered and Unreported Judgment of 8^th December 2017 by Nablu J)
Jamie Maxton-Graham v. Dr. William Tongamp & Electoral Commission (2014) SC1377
Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712
Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569
Kila v. Hegele (2007) SC885
Labi Amaiu v. Andrew Mald (2008) N3334
Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004
Sir Julius Chan v. Ephraim Apelis [1998] PNGLR 408

Counsel:
Mr. R. Lains, for Petitioner
Mr. D. Igolena, for First Respondent

Mr. J. Simbala, for Second Respondent

RULING

29^th December, 2017

1. MAKAIL, J: With the abled assistance of counsel for the respective parties, I have considered their submissions and decided not to delay my ruling any further than to this afternoon, which I now deliver.
   
2. It is the first respondent’s objection to the competency of the petition that needs to be decided. It is based on the ground that the petition was filed outside the mandatory time limit of 40 days prescribed by Section 208 (e) of the Organic Law on National and Local-level Government Elections (“Organic Law on Elections”).
   
3. The objection is being made pursuant to the Court’s discretionary power under Rule 12 of the National Court Election Petition Rules, 2017. There are other grounds of objection which were not considered until the determination of this ground. If the petition survives, the balance of the grounds will be fixed for hearing on a later date.
   
4. There is no contest that the time limitation of 40 days to file a petition is a requisite of a petition under Section 208 (e). This provision reads:
   

“208. Requisites of petition.

A petition shall—

(a) .........; and

(b) .........; and

(c) .........; and

(d) .........; and

(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)”. (Emphasis added).

5. To determine whether the petition is filed within time, as it was observed in the case of Labi Amaiu v. John Kaupa & Electoral Commission (2017) N7004, “Two dates are critical to compute the time limit of 40 days. First is the date of declaration of the successful candidate. Second is the date of filing of the petition.”
6. There is no contest that 28^th July 2017 was the date of declaration of the first respondent as the successful candidate. That is the date written on the Writ although it should be stated that 29^th July 2017 was pleaded in the petition as the date of declaration.
7. Secondly, there is no contest that the petition was filed on 7^th September 2017.
8. There is also no contest that 40 days runs from the date after the date of declaration. This position is consistent with the view expressed by the Court in the recent decision in Labi Amaiu v. John Kaupa (supra). That decision was reached after considering the cases of Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) SC569; Kelly Kuliyali Kalit v. John Pundari & Electoral Commission (1998) N1712; Labi Amaiu v. Andrew Mald (2008) N3334; Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: EP No 37 of 2012 (Unnumbered & Unreported Judgment of 6^th March 2015); and

Aluago Alfred Kaiabe v. Anderson Agiru & Electoral Commission: SCRev (EP) No 2 of 2015 (Unnumbered & Unreported Judgment of 29^th May 2015).

9. The real contest is whether the days that fall on public holidays are not counted or excluded from computing the 40 days. This issue was raised by the petitioner and argued, the petitioner contending that 26^th August fell on a public holiday, it been, the National Repentance Day and should not be counted.
10. For that, the respondents do not contest that 26^th August was National Repentance day and was a day declared as a public holiday.
    
11. First, the petitioner referred to the case of Jamie Maxton-Graham v. Dr. William Tongamp & Electoral Commission (2014) SC1377 and contended that that case stood for the proposition that time does not run on public holidays and supports his case that 26^th August being a public holiday should not be counted. If that is applied, he would have a day extra in which to file the petition, which was the case when he filed it on 7^th September.
    
12. That Supreme Court case does not assist the petitioner because the question of whether time is inclusive of public holiday or not was decided in the context of Rule 14 of Order 5 of the Supreme Court Rules, which is not a requisite of a petition under Section 208 (e) of the Organic Law on Elections.
    
13. Second, the petitioner relied on Section 11 of the Interpretation Act which provides for computation of time. In such a case, where an act or proceeding to be done or taken on a certain day falls on a Sunday or public holiday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the day next following that is not a Sunday or public holiday.
    
14. There, the petitioner contended that since there was a public holiday on 26^th August, he had an extra day to file the petition and that was on 7^th September. What he did was also consistent with what the Supreme Court ruled when refusing an objection to competency of an appeal, that appeal as being filed out of time (outside the 40 day statutory period) under the Supreme Court Act. That was on the case of Kila v. Hegele (2007) SC885.
    
15. Again, that case does not assist him nor does Section 11 of the Interpretation Act. The time limitation of 40 days under the Supreme Court Act is not a requisite of a petition under Section 208 (e) of the Organic Law on Elections where Section 11 of the Interpretation Act has application. Both a distinct and separate requirements and must be understood in that context.
    
16. The other reason is that Section 208 (e) does not expressly exclude public holidays. Courts are bound when interpreting legislation to proceed on the assumption that the legislature does not make mistakes. This is an accepted and trite principle of statutory interpretation: Garo v. Police [1985] PNGLR 320.
    
17. If it was intended to be so, it would have expressed so. So the petitioner is not protected by a public holiday.
    
18. A further reason is that, Section 11 of the Interpretation Act applies to “statutory provision” and not “Constitutional provision”. The Organic Law on Elections, being a constitutional law and Section 208 (e) being a provision in that Organic Law renders Section 11 inapplicable.
    
19. The case of Sir Julius Chan v. Ephraim Apelis [1998] PNGLR 408 and recently, the case of Andrew Kumbakor v. Joe Sungi & Electoral Commission: EP No 27 of 2017 (Unnumbered and Unreported Judgment of 8^th December 2017 by Nablu J) put it beyond argument that the 40 day time limitation under Section 208 (e) cannot be relaxed to include public holidays.
    
20. What is the consequence of the non-compliance or failure to meet the requirement under Section 208 (e)? As the Court observed in Alfred Pogo v. Guao Zurenuoc (2003) N2351:
    

“That period of 40 days following the declaration of the result of an election in which a petition can be filed is a rigid time limit. Failure to comply with any requisite in s. 208 means that the petition cannot proceed because of s. 210 of the Organic Law. This petition must therefore be terminated here and at this stage.”

21. It follows that the petition must be terminated here and there will not be any need to consider the other grounds of the objection.
    
22. It is dismissed with costs, to be taxed, if not agreed. The security deposit in the sum of K5,000.00 held by the Registrar shall be paid and divided equally between the respondents.
    

Ruling and orders accordingly.
________________________________________________________________
Hardy & Stocks Lawyers : Lawyers for Petitioner
Centurion Lawyers : Lawyers for First Respondent
Harvey Nii Lawyers (Town Agent for Kongri Lawyers): Lawyers for Second Respondent