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Ondokoi v Mul [2023] PGNC 246; N10406 (6 July 2023)

N10406


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO.65 OF 2022


IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS


AND:
IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF NORTH WAGHI OPEN ELECTORATE IN THE 2022 GENERAL ELECTION


BETWEEN:
DAISY APORE ONDOKOI
Petitioner


AND:
BENJAMIN NGENTS MUL
First Respondent


AND:
ELECTORAL COMMISSION
Second Respondent


Mt. Hagen: Polume-Kiele, J
2023: 3rd & 6th July


ELECTION PETITION – PRACTICE & PROCEDURE –objection to competency of petition - Organic Law on National and Local-level Government Elections, Sections 208 (e), 209, 210 and 222(1) - National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022, Rules 4,5, 6, 12 and 22 – Rule 6, 9, 10, 11, 12 13 and 14 - Practice Directions (IECMS) No. 1 of 2022.
Cases Cited:
Wesley Ora Raminai v Maino Pano & Electoral Commission (2023) N10248
Francis Mulungu Potape v Philip Undialu & Electoral Commission (Unreported Judgment, 28 June 2023, per Salika CJ)
Charles Kassman v Justin Tkatchenko and Electoral Commission (2023) N10213
Peter Charles Yaama v Jerry Singirok (2020) SC1982
Nukundj v Pim (2023) N10136
Nukundi Nukundj v Pim [2023] N10263
William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018
Ramsey Pariwa v Peter Yama & Electoral Commission [2023] SC2385
Waranaka v Trawen (2012) N4815
Sir Arnold Amet v Peter Charles Yama (2010) SC1064


Legislation Cited:
Organic Law on National and Local-level Government Elections
National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022
Practice Direction (IECMS) No.1 of 2022


Counsel:
Dr. Ben Lomai, for the Petitioner
Mr. James Aku, for the First Respondent
Nil, for the Second Respondent


RULING ON OBECTION TO COMPETENCY OF PETITION


6th July, 2023

  1. POLUME-KIELE J: On 3 July 2023, I heard an objection to the competency of this Petition. The objection was heard in Mt Hagen instead of Minj. This was due to security issues highlighted by the Police personnel on the ground at Minj and Jiwaka generally. This now means that the venue of the hearing is now amended to be heard in Mt Hagen.
  2. The hearing of the objection proceeded at about 1.35 p.m., due to power blackout issues.
  3. Prior to the hearing, the Court was informed by Mr. Aku, counsel for the first respondent that counsel for the second respondent, Ms Kapi was unable to travel due to lack of travel arrangements. In any event, the hearing continued as ample notice had been given for the hearing of EP No.65 of 2022 to commence on 3 July 2023. Furthermore, and no reasonable reasons (by way of affidavit filed and served) has been provided by counsel for the second respondent for her non-attendance.
  4. Counsels for the Petitioner and the first respondent were both in Court and because it was the first respondent’s objection to competency of the petition, it was agreed that the objection be moved, and the Court would be allowed to make a ruling on it.
  5. The Court noted that the first respondent was in Court. However, the Petitioner was unable to be in Court due to reports of tension and roadblocks around the Minj and Jiwaka area. In any event, the Court, allowed Dr. Lomai, counsel for the petitioner to contact the Petitioner as to her instructions as to the continuation of the hearing.
  6. Upon resuming, Counsel for the petitioner informed the Court that the hearing can proceed in the petitioner’s absence.
  7. Mr. Aku then moved the application on the objection to competency of the Petition, which I now make a ruling on.

Brief Background

  1. Both the Petitioner and the First Respondent contested for the North Waghi Open Electorate during the 2022 National Elections. Twenty-five candidates nominated and contested the North Waghi Open electorate.
  2. The First Respondent, Benjamin Ngents Mul as the winning candidate was made on 3 August 2022. A losing candidate aggrieved by such declaration, must file a petition within 40 days from 3 August 2022. In this present case, the 40 days period lapsed on or about 11 September 2022.
  3. The Petitioner in this case, is Daisy Apore Ondokoi, a losing candidate, in the North Wahgi Open. She polled eighth place in the final return of polling. Being aggrieved by the declaration, she filed a Petition challenging the return of the election pursuant to s 206 of the Organic Law, disputing the validity of the election for the North Waghi Open Electorate in the 2022 National Elections, wherein the first respondent was declared on 3 August 2022.
  4. On 9 September 2022, the said Petition with the supporting evidence of payment of the filing fee and security deposit was uploaded onto IECMS by her lawyers. The date affixed to the Petition is 9 September 2022 and it is marked as Document No. 1 on the Court file.

The Petition

  1. The Petitioner alleges grounds of bribery against the first respondent.

Objection to competency

  1. The first respondent objects to the competency of the petition filed and sealed on 9 September 2022. The Notice of objection to competency was filed on 12 June 2023 (Document No. 34) pursuant to s 210 of the Organic Law on National and Local-Level Government Elections (“Organic Law”).
  2. The affidavit in support of the objection to competency is sworn by Mr. James Aku, Counsel for the first respondent on 12 June 2023 and filed on the same date.

Grounds of objection to competency

  1. Three grounds were raised by the first respondent to the competency of the petition:
  2. Other ancillary reliefs sought in the notice of objection are that the petitioner pays the cost of the petition on a party/party basis to be taxed if not otherwise agreed and the forfeiture of the K5,000.00 security deposit to be paid to the first respondent and any other orders as this Court deems appropriate.

The law

  1. Firstly, a challenge relating to the validity of an election or return is commenced by way of a Petition. The provision under which such a challenge be raised is s 206 of the Organic Law. A petition in such case is filed by a person who is aggrieved by the decision of the Electoral Commission in declaring a candidate who run for the 2022 National Elections, the winning candidate. The Organic Law in this regard, provides that such petition must be filed within 40 days from the date of a declaration under s 208 (e) of the Organic Law.
  2. Aside from these two provisions, the Organic Law also provides for other requisites which an applicant has to satisfy in relation to pursuing an election petition such as evidence of the payment of a filing fee, security deposit and lodgement of the Petition at the Registry and service on the parties named in the Petition.
  3. The provisions of the Organic Law relevant to this petition are out below:

“206. METHOD OF DISPUTING RETURNS.

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

“208. REQUISITES OF PETITION.

A petition shall–

(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was is qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) 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)”.

“209 [1]At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs”.

WITH.

“210 Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with”.

  1. In addition, the Organic Law also provide for the Powers of the Court under s 212. Section 212 states that:

“212. POWERS OF COURT.

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things–
(2) The Judges of the National Court may make rules of court with respect to pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election”.
  1. At the same time, s 217 of the Organic Law provides that in its deliberation, the National Court shall be guided by the merits and good conscience of each case. That is, “real justice to be observed”.
  2. Section 217 states:

“217. REAL JUSTICE TO BE OBSERVED.

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.

  1. The Organic Law under s 220 also states that a decision of the National Court is final and conclusive and without appeal and shall not be questioned in any way.
  2. The third ground of objection relates to s 222 (1) of the Organic Law so I will set out the provisions of s 222 as follows:

“222. COUNSEL OR SOLICITOR.

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel appear on behalf of a party.

The National Election Petition Rules 2017 (as amended)

  1. An election petition is also guided by the National Election Petition Rules (2017) as amended. The Election Petition Rules provides for a respondent who wishes to challenge a Petition to file an objection to competency of the Petition. The relevant rules are set out as follows:

“4. The petition shall be in accordance with Form 1

“5. A Petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing and of the security deposit.

“12. A respondent who objects to the competency of the petition shall, within 21 days after service of the petition –

(a) file an objection in accordance with Form 4 giving at least 3 clear days’ notice of intention to mention the objection before the Judge Administrator; and
(b) serve a copy of the objection on the petitioner and each of the other respondents; and
(c) file and serve all affidavits in support of the objection”.
  1. If there are to be any relief to be sought under the Election Petition Rules, this is provided for under Rule 22. Rule 22 of the Election Petition Rules states:

“22. Relief from the Rules

(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.
(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.
(3) No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.
(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, Court shall pay close regard to the requirements of section 217 of the Organic Law.”

Practice Directions (IECMS) No. 1 of 2022

  1. Aside from the Organic Law, Election Petition Rules (2017) as amended and I must add that on February 2022, the Practice Directions (IECMS) No. of 2022 was officially launched and issued by the Chief Justice. The purpose of the introduction of the Electronic system is to implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by replacing the paper-based case filing and recording system by an electronic system and electronic streamlining of case processing, from filing to hearing and final disposal of cases, amongst others. For completeness sake and for the purposes of the issue before this court, I set out these provisions below:

“6. The purpose of the IECMS is to implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by:

(a) replacing the paper-based case filing and recording system by an electronic system.
(b) electronic streamlining of case processing, from filing to hearing and final disposal of cases.
(c) transparency and accountability in case management.
(d) simplification and predictability in each procedural step from filing to listing to prompt final disposal.
(e) better timely reporting to parties, lawyers and government agencies and others as required.
(f) elimination of opportunities for corruption to occur by administrative staff in case filing and management.
(g) improved access by parties and lawyers to filing of court process through electronic means.
(h) increased public and private sector confidence in our judicial process.”

“9. Case Initiation and Response

(1) A case shall be initiated in the National Court or the Supreme Court by use of the “cause form” that has been designed and embedded into the IECMS, pleading the relevant facts succinctly in sequential numbered paragraphs.
(2) A defendant or respondent shall also use the “cause form” by way of defence or response corresponding the matters pleaded by the plaintiff.
(3) The defence or response of a defendant or respondent may include objection to the competency of the matter filed or to any preliminary or interlocutory matter, except that no objection shall be taken as to the use of a court form unless that court form is clearly inappropriate to the procedural circumstances of the case and is prescribed by a constitutional law or an Act of Parliament.
(4) Each “cause form” and response thereto shall be filed with the supporting affidavit evidence, if based on facts.
(5) Unless ordered or directed by a judge or the relevant Court, no motion or interlocutory application (except only for urgent matters and enforcement of judgments or orders), shall be filed on a party’s own initiative.”

• Rule 10 states:

“10. Case initiation and Response Process

(1) All new cases or matters in the National Court and the Supreme Court shall be commenced by way of electronic filing of the “cause form”, with all the supporting evidence in affidavit form in the National Court and in the Supreme Court for causes based on facts or raises factual issues other than for appeal or review causes.
(2) To use IECMS a litigant must register with IECMS.
(3) Upon electronic lodgement, the “cause form” (with all affidavit evidence in support if applicable) will be received and processed by the relevant Registry with notification to the lodging party to be given by the Registry within 48 hours of date and time of lodgement whether the Registrar has approved or rejected the “cause form”, and in the case of rejection, the Registrar’s reasons for the rejection shall be given.
(4) Subject to sub-rule (10), a “cause form” processed by the relevant Registry (with all affidavit evidence in support if applicable) shall be served on the defendant or respondent:

(a) electronically through IECMS; or

(b) by personal service of printed copies on the person to be served

(c) by personal service of printed copies on the registered address for service or registered office of a corporation.

within 30 days of notification to the plaintiff of the Registrar’s approval of the “cause form”.

(5) Subject to sub-rule 6, upon being served a defendant or respondent may file a response using the “cause form” with their supporting affidavit evidence, if applicable, within 30 days after the date of service.
(6) In a National Court matter, where the State is a defendant or respondent, it shall upon being served file a response using the “cause form” with its supporting affidavit evidence if applicable within 90 days after the date of service.
(7) Upon being served, a defendant or respondent must if not yet registered, register with IECMS to gain access to IECMS and then file its response using the “cause form”.
(8) Where there is no electronic access to the IECMS website, the parties and or their lawyers may attend at the relevant Registry with printed copies of their “cause form” and supporting affidavit evidence and shall be assisted by the relevant Registry staff to electronically file their documentation via IECMS with the assistance of staff of the relevant Registry.
(9) A “cause form” served as an initiating document or a response (with the supporting evidence if applicable) shall be evidenced in the IECMS and will be recognised as being duly served under these rules unless the provisions of sub-rule (10) applies.
(10) Where an Act of Parliament prescribes time limits for responses to a claim or service of court proceedings or documents in a certain way, such provisions shall prevail.”

“11. e-filing and Electronic Lodgements

(1) The IECMS enables all case activities from the filing of case initiating documents, responses, pleadings, listings, and decisions to be conducted by means of e-filing and electronic lodgements.
(2) Lawyers and litigants are required wherever possible to use the IECMS from the commencement of a proceeding to final decision and enforcement.
(3) The Courts encourage the exchange of parties’ documents electronically, including the exchange of all pleadings, notices for discovery, lists in response to discovery and documents relevant to discovery, notices under the Evidence Act, documents to be adduced in evidence at trial or court hearing and all others forms of National Court and Supreme Court process.
(4) The Courts will be flexible and will assist all users of IECMS to meet their needs during the continuation of the piloting of the IECMS.”

“12. Filing Fees

(1) The rules governing all filing fees under the SCR and the NCR shall continue to apply unchanged.
(2) Until further notice, filing fees are to continue to be paid at the National Finance Department and a copy of the receipt attached to the “cause form” at the time of lodgement with IECMS.
(3) Eventually, filing fees will be paid direct to the Court’s nominated bank account through the IECMS.”

“13. Funds in Court

Funds paid into the Registrar of the National Registrar’s Trust Account will continue to be processed through the Registrar’s Office, but receipts issued can be attached to the e-file in the IECMS.”

“14. Other documents and processes

(1) Unless the relevant Court otherwise directs or orders and except for the “cause form”, the forms for affidavits, notices and all other court process as prescribed in the SCR and the NCR will continue to be used.
(2) All such documents in their prescribed form can be annexed to the e-Court file in Microsoft Word or in editable PDF format or other compatible format as provided in IECMS.
(3) Where a document is lodged and accepted for filing by the relevant Registry, the appropriate seal and signature of the Registrar or his nominee will be electronically endorsed on the document to signify acceptance by that Registry.
(4) A document identified as such can be served by way of IECMS or by personal service of a printed copy.”
  1. Having outlined the relevant law and Election Petition Pules and Practice Directions, I now consider the objections raised by the first respondent and the responses made in reply by the petitioner, discuss the merits of their submission and the application of the law to the objections and make a determination accordingly.

Evidence

  1. The first respondent did not file any affidavit in support of the Notice of Objection to Competency of the Petition filed on 12 June 2023.
  2. The only affidavit filed in support of the Notice of Objection to Competency is that of his lawyer, Mr. Aku. The affidavit of Mr. Aku was sworn on 12 June 2023 and filed on the same date (Document No. 34).
  3. The petitioner did not file any affidavit in response to the objection to competency of the petition.
  4. Mr. Ryhen Tamarua of Lomai & Lomai Attorneys, lawyers for the petitioner had sworn an affidavit on 29 June 2023 which was filed on 30 June 2023 (Document No. 44). Mr. Tamarua has more or less responded to the matters deposed to in Mr. Aku’s affidavit sworn and filed on 12 June 2023.

Issues before the Court

  1. The issue of whether the uploading of the Petition onto IECMS on 9 September 2022 satisfied the requirements of s 208 (e) and s 209 of the Organic Law, and whether consent of parties or leave of court was obtained for petitioner to be represented by counsel.
  2. A related issue which the Court must address is the issue of whether leave of court has been sought and granted for the filing of the Notice of Objection outside of the 21 days requirement specified under Rule 12 of the Election Petition Rules.

Hearing of the objections and submission of counsels

  1. The Second Respondent was not in attendance and therefore was not heard on the objections.
  2. In any event, the Petitioner and the First Respondent did not take issue with the second respondent not in attendance and the hearing of the objection proceeded.

Ground 1 of Objection to Competency – Petition filed out of time.

  1. The main contention in this objection is that the Petition is filed outside of the 40 days period stipulated under s 208 (e) of the Organic Law. In his affidavit sworn and filed on 12 June 2023, Mr. Aku deposed that the 40 days period is calculated from the day that the first respondent was declared as the winning candidate for the North Waghi Open Electorate. Such declaration was made on 3 August 2022. Calculating the 40 days period under s 208 (e) of the Organic Law from 3 August 2022, this means that the 40-day period lapsed on 11 September 2022.
  2. The first respondent contends that it was filed on 14 September 2022 and is therefore 3 days out of time. Mr. Aku relied on his own affidavit sworn on 12 June 2023 and filed on the same date to substantiate this contention. He submitted that when the Petition was uploaded onto Integrated Electronic Case Management System (IECMS) at about 4.36 p.m.., on 9 September 2022, the Petition was uploaded without any evidence of the payment of the deposit of the security fee in the sum of K5,000.00, contrary to s 209 of the Organic Law. He submitted further that the IECMS records annexed to his affidavit shows that approval was given to the uploading of the Petition on IECMS on 14 September 2022. Consequently, the Petition was filed outside of 11 September 2022 and therefore was 3 days out of time. This means that the uploading onto IECMS on 9 September 2022 of the petition was contrary to the requirements of the Organic Law. He relied on the case of Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10248 to support his claim. In that case, the declaration of the first respondent as member for Kagua Erave Open Electorate was made on 6th August 2022. Forty days from then would be 15th September 2022. On Thursday 15th September 2022, at 10.14pm, Ryhen Tamarua of Lomai & Lomai Attorneys uploaded the petition, the notice of petition, the notice of payment of filing fee, and notice of payment of security deposit through IECMS. The Registry would have been closed at the time. The Registry was also closed on Friday 16th September 2022. On Monday 19th September 2022, Ryhen Tamarua attended the Registry to follow up on the uploaded documents, but he was advised to return on Tuesday 20th September 2022. On Tuesday, Ryhen Tamarua returned to the Registry, but he was advised that the petition and the notices of payment of filing fee and security deposit would not be sealed yet because as an IECMS matter, “the case was yet to be registered.” Long story short, the sealed copy of the petition was picked up on Thursday 22nd September 2022. Ryhen Tamarua was advised to pick up the other documents on Friday 23rd September 2022. Strangely, the petition cover page has 15th September 2022 as the date of filing. If a Registry officer was still in the Registry at 10.14pm to register, seal and endorse the petition, he deserves a pay rise, but it is very unlikely. On the evidence, I find that the entry of 15th September 2022 as the date of filing of the petition was done on 22nd September 2022. His Honour Manuhu J observed at paragraphs [10] and [11] that:

“10. .... Filing of a petition is complete when the petition is lodged, sealed, and endorsed with an election petition number. Merely uploading a petition through IECMS does not satisfy the requirement of filing under ss.208(e) and 209.


11. I find ultimately that the petition and supporting documents regarding the security deposit and filing fee were filed six or seven days out of time. I have considered the possibility of saving the petition pursuant to s.217 of the Organic Law and the ruling in Hagahuno v Tuke (2019) SC2018 but there is no room for that.”


  1. The grounds raised by the first respondent are similar to the above case. Here the first objection was that the petition was filed out of time contrary to s.208(e) of the Organic Law and the alternative objection is that if the petition was filed in time, the petitioner failed to file the petition together with the evidence of the payment of the security deposit of K5,000.00 contrary to s.209 of the Organic Law. The mere uploading of the petition on IECMS on 9 September 2022 does not satisfy the requirements of s 208 (e) and s 209 of the Organic Law. As it is, the records on IECMS shows that approval was granted on 14 September 2022 and therefore the Petition was filed 3 days out of time. Consequently, the Petition must be dismissed.
  2. Mr. Aku submits that the correct law on ss 208 (e) and 209 of the Organic Law is that stated in the case of Wesley Ora Raminai v Maino Pano and Electoral Commission (2023) N10248 and invited this Court to make a finding in favour of the objection to competency of the petition.
  3. I am however not bound by the case of Wesley Ora Raminai v Pano (supra) and I beg to differ.
  4. Further, Mr. Aku also refer to a recent decision (Francis Mulungu Potape v Philip Undialu & Electoral Commission (Unreported judgment, Salika CJ (28 June 2023), where his Honour discussed the purpose of the Practice Directions (IECMS) stated at [14] “Practice Direction is what it is. It is a guide but has no force of law such as the Organic Law. Where there are any inconsistencies between the Practice Direction and the Organic Law, the Organic Law prevail.
  5. Mr. Aku in his submission submitted that given that the Practice Directions are only a guide, as to how the electronic filing is done, then he invites this Court to make a finding in favour of the first respondent.
  6. Dr. Lomai for the petitioner, however, contends that the notice of objection to competency is flawed and irregularly made and should therefore be refused and dismissed. Firstly, in the case of Charles Kassman v Justin Tkatchenko and Electoral Commission (2023) N10213 , the Court observed at [27] that the actual date on the petition was decisive and crucial and in the present case, the petition is dated 9 September 2022 well within the 40-day time period for filing a petition after the declaration of the First Respondent on 3 August 2022, as the winner of the 2022 election for the North Waghi Open Electorate.
  7. Dr. Lomai for the Petitioner submitted that the factual circumstance of the above case is that reliance on the IECMS records is misconceived and unsupported. The Petition was uploaded electronically on 9 September 2022 as per the IECMS record. All documents were uploaded on 9 September 2022. It was sealed by the National Court on 9 September 2022. The sealed documents (Document No.1) on the Court file confirms such lodgement, sealing and endorsement. Dr. Lomai further submitted that there is evidence on the Court file to confirm and these records do show that a receipt of the filing fee of K1,000.00 and the security deposit payment of the sum of K5,000.00 was also received by the National Court, Waigani on 9 September 2022. The documents speak for themselves. The Petition is properly before the Court. Consequently, the grounds of objection in relation to noncompliance with the requirements of s 208(e) and s 209 must be refused.
  8. Further, the application is an abuse of the process of the Court for lengthy or inordinate delay without any reasonable explanation by appropriate evidence to support the proposed objection. Rule 12 of the Election Petition Rules provides a timeframe within which to file an objection to competency of a petition following service of a petition and if not filed within the prescribed period. Service of the Petition was effected by publication in the Post Courier on 22 September 2022. Twenty-one (21) days lapsed on 13 October 2022. However, in this case, the first respondent has filed and served a notice of objection on 12 June 2023 (8 months 1 day) out of time.
  9. Rule 22(1) allows for dispensation with compliance in appropriate cases before or after the occasion for compliance arises as mentioned earlier. In the present case, the First Respondent filed his objection to the competency of the petition pursuant to Rule 12 on 12 June 2023. 8 months 1 day out of time. No leave has been sought and granted for him to file a notice of objection to competency. Further, he has not provided any reasonable explanation for the delay. Consequently, it must be dismissed: see Peter Charles Yaama v Jerry Singirok (2020) SC1982 where an oral objection to competency made by the first respondent there at the hearing was dismissed for abuse of process because it was made after more than two years of being served the application for review.
  10. Firstly, in regard to the case of Wesley Ora Raminai v Pano (supra) I am not bound by that case cited and I beg to differ in this case. The reasons I say this is because, there are Practice Directions issued by the Court in relation to the filing of documents through IECMS. Essentially, the IECMS was officially launched on 16 December 2021 and Practice Direction (IECMS) No.1 of 2022 (Practice Direction IECMS) was issued by the Chief Justice on 1 February 2022 which provides for the purpose of the IECMS and how it allows for the mode of filing of the petition: Nukundi Nukundj v Pim [2023] N10263.
  11. Given that the Practice Directions (IECMS) No. 1 of 2022 (Practice Directions (IECSM) was promulgated to assist with the purpose of progressing the case flow (case management of all civil matters before the Court, I will be guided by these Practice Directions. I am also persuaded by the reasoning in the case of Nukundi Nukundj v Pim [2023] N10263 in which his Honour David J, discussed at length at [37-48] of his judgment, the purpose of the IECMS and how it allows for the mode of filing of the petition, where such mode of filing is not provided for under s 208 (e) of the Organic Law. His Honour David J went on to state at [37]:

“Currently, IECMS is regulated by Practice Direction (IECMS). It is a new case management system for civil cases in the National and Supreme Courts: Rule 1 of Practice Direction IECMS. The Practice Direction IECMS applies to proceedings involving election petitions by virtue of Rule 8”.


  1. Further, His Honour, David J stated at [47]:

“The Organic Law is a superior law. Practice Direction IECMS is subservient to it. The timeframe given for the filing of a petition is 40 days after the declaration of the result of an election in accordance with s.175(1)(a) of the Organic Law. Section 208(e) of the Organic Law does not provide the mode of filing. Practice Direction IECMS does through electronic filing.... “(Underlining mine)

  1. In consideration of the matters raised by the first respondent, I have perused the file and noted that Mr. Ryhen Tamarua of Lomai & Lomai Attorneys has filed an affidavit in response to Mr. Aku’s affidavit explaining the actions taken by the Petitioner’s lawyers in relation to the filing of the Petition.
  2. I take particular note of paragraph 3 of Mr. Tamarua’s affidavit in which he deposed to uploading 4 documents for filing through IECMS. These are: (1) Petition, (2) Notice of Petition, (3) Notice of Payment of Filing Fee, and (4) Notice of Payment of Security Deposit Fee. Further, in paragraph 4, he deposed to lodgement of the hard copies of the 4 documents at the Registry and in paragraph 5, deposed to the Registry, returning the sealed documents to him on 14 September 2022. The date affixed to the Petition is dated 9 September 2022. The documents speak for themselves. In this case I accept that the petition is considered to having been filed, within time and the date affixed to the petition was the date that the Court accepted the document for filing. The date affixed to the Petition is 9 September 2022. Consequently, I accept that the petition must be filed within time and the date affixed on the petition was the date (9 September 2022) the Court should accept.
  3. Further and in addition to all of the above, it is also noted no staff of the Waigani National Court has filed any affidavit relating to the uploading of the Petition onto the IECMS and the sealing of the Petition and supporting evidence of the filing fee and confirmation of payment of the Security Deposit of the sum of K5,000.00, I am minded to say that there is room to save the Petition pursuant to s. 217 of the Organic Law and the ruling in Hagahuno v Tuke (2019) SC2018. The reasons for arriving at this view is that there is compliance with the Election Rules 2022 (“Clauses 4. 5 and 6”) including the Practice Directions (IECMS) (“6” and “10”). The case must be heard and determined without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. I therefore find that the petition and the supporting documents regarding the security deposit and filing fee were filed, sealed, and endorsed on 9 September 2022. Thus, filing is complete: (and it satisfies the requirements of s 208 (e) and 209 of the Organic Law: Charles Kassman v Justin Tkatchenko and Electoral Commission (2023) N10,213. In that case, one of the grounds of objection to competency raised was that the petition was filed out of time contrary to s.208(e) of the Organic Law. The Court held that s.208(e) of the Organic Law is mandatory and non-compliance is fatal and there was no room to argue substantial compliance. The Court also observed that in order for a petition to be considered as having been filed, the complete petition must be filed within time and the date affixed on the petition was the date the Court should accept.
  4. The complete petition was sealed on 9 September 2022. It is marked as Document No.1 on the Court file. I accept that the date affixed on the Petition is 9 September 2022 and therefore the Petition was filed within time. The electronic filing was in compliance with The Practice Directions (No “6” and “10” dealing with the IECMS addresses the issue of the effective date of filing has been followed. The IECMS was officially launched on 16 December 2021 and Practice Direction (IECMS) No.1 of 2022 (Practice Direction IECMS) issued by the Chief Justice on 1 February 2022. Until revoked or superseded by further Practice Direction(s) or rules of Court made by the Judges on the subject, Practice Direction IECMS for now regulates the practice and procedure with respect to all cases initiated or filed through the IECMS in the National Court and Supreme Court: Nukundi Nukundj v Pim (supra).
  5. Currently, there is no evidence from any of the staff at the National Court Registry (either, the Registrar, Deputy Registrar, or the Receiving Officer to demonstrate that the Petitioner did not electronically file the Notice of Petition, Notice of Payment of Filing Fee, and Notice of Payment of Security Deposit together with the petition on 9 September 2022 which were subsequently sealed and had affixed the date, 9 September 2022 on the document. The document speak for itself.
  6. The only affidavit deposes to the Petition being filed on 14 September 2022 is that of Mr. Aku, the first respondent’s lawyer. In his affidavit, he annexed copies of the IECMS record to demonstrate to this Court that the petition was registered on 14 September 2022. However, upon perusal of the affidavit and the copies of IECMS records (annexed), the records do show that the Petition was uploaded at 16.00 p.m., on 9 September 2022. Furthermore, the records clearly show that the Receiving Officer is recorded as a Matthew Bae. As a related matter, there is also no evidence of an entry made or recorded by Matthew Bae that the Petition was lacking the supporting evidence of payment of the filing fee and security deposit of K5,000.00 received together with the Petition.
  7. If however, the Petition has been unsigned or unattested and lack evidence of the payment of the filing fee and security deposit of the sum of K5,000.00, I am sure that these matters would have been pointed out to the Petitioner’s lawyers and or the Petitioner as was evident in the case of Potape v Undialu (supra) where the records entered on the IECMS had been entered twice and the Court held that the petition was filed out of time. In that there was evidence adduced during trial of the petition being filed twice, one on 27 August 2022 (which was without the supporting evidence of payment of the filing fee and security deposit, was unsigned and not attested) and another set of documents or petition were uploaded on 29 August 2022. However, the petition uploaded on 29 August 2022 was backdated to 27 August 2022. This was where the error occurred, and his Honour Salika CJ ruled that both petitions were not filed within time and dismissed the petition.
  8. On the other hand, if the petition had been filing outside of the 40 days period under s 208(2) of the Organic Law, there is basically no evidence adduced into Court from any of the National Court Registry staff as to the procedure and processes involved in the implementation of the IECMS. Further, the first respondent has not tendered into court any evidence from the Registry staff, in this case, the Receiving Officer, Mathew Bae and or the Registrar, Deputy Registrar (National Court) or any other Registry staff involved in administration and operation of the IECMS and how the IECMS system works.
  9. An affidavit from any of the relevant National Court Registry staff would greatly assist this Court to understand how it is being implemented in relation to the Election Petitions filed in the National Court including all Civil proceedings brought before the Court by way of IECMS filing. This is to demonstrate the failure in uploading, filing, sealing and endorsement of this Election Petition.
  10. However, due to the lack of any evidence to the contrary, I must conclude that effective date of filing or lodgement of Petition through IECMS on 9 September 2022 is the effective date of filing, sealing and endorsement of the Petition. This conclusion is in line with the purpose of the IECMS which is outline in Rule 10 of the Practice Directions (IECMS) which states that: “All new cases or matters in the National Court and the Supreme Court shall be commenced by way of electronic filing of the “cause form”, with all the supporting evidence in affidavit form in the National Court and in the Supreme Court for causes based on facts or raises factual issues other than for appeal or review causes”.
  11. In this present case, I accept that in compliance with Rule 6 of the Practice Directions (IECMS), the Petition together with the supporting evidence of the receipts for filing fees and in the case of election petitions receipts for security deposit were uploaded, filed, or lodged electronically on 9 September 2022. The documents speak for itself. The Practice Directions are quite clear in relation to the purpose of the electronic filing, and I am guided by the Practice Directions. Rule 6 states that: “The purpose of the IECMS is to implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by (a) replacing the paper-based case filing and recording system by an electronic system and (b) electronic streamlining of case processing, from filing to hearing and final disposal of cases...”
  12. For this present case, I am of the view, that the IECMS is a system introduced and endorsed by the Court for purposes of better efficiency and effectiveness in case management. In circumstances where parties and litigants exercise their rights to come to Court by way of electronic filing, they should not be penalised due to administrative matters involving the way in which the Registry staff carry out their work, whether during official hours or after hours. This is because the electronic filing (or e-filing) is meant to be made at any of the day (whether at 10.15 p.m., or 4.00 p.m., in the afternoon. The day does not end until 12 midnight. (Until of course, there is a Practice Direction (IECMS) which states that e-filing can only occurred between 7.45 a.m., and 4.06 p.m.,).
  13. Currently, there is no Practice Directions (IECMS) on the time of filing so I can safely say that in the case of e-filing, the day does not end until 12.00 midnight. I make reference to the Interpretation Act 1975, which provides for the computation of time under s 11. Section 11 states:

“11. COMPUTATION OF TIME.

(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.

(2) If the last day of a period prescribed or allowed by a statutory provision for the doing of an act falls on a Sunday or a public holiday, the act may be done on the day next following that is not a Sunday or public holiday.
(3) Where a statutory provision directs or allows an act or proceeding to be done or taken on a certain day, then if that day happens to be 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.
(4) Where a statutory provision directs or allows an act or proceeding to be done or taken within a time not exceeding eight days, Sundays and public holidays shall not be taken into account in the computation of the time.

“12. PROVISION WHERE NO TIME PRESCRIBED.

Where no time is prescribed or allowed within which an act is required or permitted by a statutory provision to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises.

  1. In assessing this evidence, I say that this case can be distinguished from the case of Wesley Ora Raminai v Pano (supra). Administrative issues of the Registry concerning the (uploaded of documents electronically through IECMS) or e-filing of election petitions and supporting documents required under the Organic Law such as notices or receipts evidencing payment of filing fee and security for costs through IECMS are introduced for a purpose. The petitioner in this case has complied with that process. Once, it is implemented and in use, I am of the view that a litigant or in this case, a petitioner should not be penalised for using the IECMS system which has been endorsed by the Court and who has uploaded all the requisite documentation within the time frame stipulated under s 208 (e) of the Organic Law, the Election Petition Rules, and the Practice Directions (IECMS). To be penalised for using a court system is unfair on a litigant or petitioner who has simply done what is required of him or her under the Practice Directions, Rules and or in accordance with the provisions of the Organic Law: Nukundi Nukundj v Pim [2023] N10263.
  2. For all of the above reasons, I am of the view that the uploading of the petition on 9 September 2022 and bearing the affixed date of 9 September 2022 is in compliance with the purpose and overriding objectives of the IECMS and Practice Direction IECMS set out at Rules 6 and 7.
  3. If there are any issues with regard to the uncertainty, omissions, misgivings, or laxity of staff involved in the administration and implementation of IECMS, such actions should not be used to penalise litigants or lawyers who have filed court processes electronically using the IECMS within the time limited by the appropriate Court Rules or law generally: Nukundi Nukundj v Pim (supra).
  4. Consequently, I find that the objection to competency of the petition is in itself incompetent. This ground of objection must be dismissed.

Ground 2 – Petition not supported with evidence of payment of filing fee and security deposit.

  1. Having found that the Petition has been filed in compliance with the requirements of s 208 (e) and 209 of the Organic Law, I consider it unnecessary to address the alternative ground of objection to competency of the petition.

Ground 3 – Consent of parties or leave of Court not sought to be represented by Counsel.

  1. I now consider the third ground of objection to competency relating to the issue of non-compliance with s 222 (1) of the Organic Law. Here, Mr. Aku submitted that the Petition breached s 222 (1) of the Organic Law. In that, the petition was filed without the consent of all parties or by leave of the National Court to be represented by counsel or solicitor and therefore must be dismissed.
  2. In his response to this submission, Dr. Lomai submitted that there is no law which prohibits lawyers from filing petitions on behalf of their clients. A case on point is that of Ramsey Pariwa v Peter Yama & Electoral Commission [2023] SC2385. In that case, the first respondent in an election petition (the successful candidate) applied in the National Court for summary dismissal of the petition on the ground of breach of s 222(1) of the Organic Law on National and Local-Level Government Elections, in that the petition had been drafted by a lawyer without the consent of the other parties or leave of the court. The National Court refused the application. The primary judge decided that the application, made by notice of motion, was an abuse of process and that it lacked a proper jurisdictional basis, and for each of those reasons was dismissed. As to the merits of the application, his Honour ruled that there was no Supreme Court decision on point and that the only National Court case in which the issue had arisen (Waranaka v Trawen (2012) N4815, where it was held that an alleged breach of s 222(1) was not a ground of objection to competency of a petition) was correctly decided, and therefore the primary ground of dismissal of the petition lacked merit.
  3. As this is the current position relating to the alleged breach of s 222 (1) of the Organic Law, I reiterate that an alleged breach of s 222(1) of the Organic Law, is not a ground of dismissal of the petition. The grounds of objection lacks merits and is therefore dismissed.
  4. In the exercise of the Court’s discretion considering that all the considerations discussed above, I find that the notice of objection to competency of the petition is misconceived, incompetent and an abuse of process of the Court and is dismissed in its entirety.

ORDER

73. The orders of the Court are:

(1) The first respondent’s notice of objections to competency of the petition are dismissed.
(2) Costs be in the cause.
(3) Time is abridged.

Ruling and orders accordingly.
________________________________________________________________
Lomai & Lomai Attorneys: Lawyers for Petitioner
Jaku Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent


[1] Section 209 Amended by No. 00 of 2006, s. 50.

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