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Mawa v Daki [2023] PGNC 445; N10591 (21 November 2023)

N10591

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 77 OF 2022
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL & LOCAL LEVEL GOVERNMENT ELECTIONS

AND
IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULT FOR THE TAMBUL NEBILYER OPEN ELECTORATE IN THE 2022 GENERAL ELECTIONS

BETWEEN:
PAUL MAWA
Petitioner

AND:
WIN BAKRI DAKI
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Mt Hagen: Murray J
2023:14^th, 15^th & 21^st November

GENERAL ELECTIONS- Petitions- Objection to Competency- Mandatory requirement of s. 208 (e) Organic Law on National and Local-Level Government Elections (Organic Law) considered – What is considered “filed “pursuant to Section 208 (e ) of the Organic Law – Definition of - National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 considered applicable – Practice Directions (IECMS) No. 1 of 2022 considered – inapplicable to filing of Election Petitions- Petition not filed in accordance with Section 208 (e) of the Organic Law – Petition incompetent.

Cases Cited:
Biri vs. Ninkama [1982] PNGLR 342
Sir Arnold Amet -vs- Peter Yama (2010) SC1064
Potape vs. Undialu & Electoral Commission (2023) SC2240
Jean Eparo Parkop v. Gary Juffa and Electoral Commission (2023) N10281
Kilroy Genia v. Puka Temu and Electoral Commission (2023) N10321
Kassman v. Tkatchenko and Electoral Commission (2023) N10213
Paru Aihi v. Peter Isoaimo and Electoral Commission (2014) N5691
Wesley Ora Raminai vs. Maino Pano & Electoral Commission (2023) N10248
Charles Kassman vs. Justin Tkatchenko & Electoral Commission (2023) N10213
Petrus N Thomas vs. William W Bando & Electoral Commission EP 7 of 2022,
Nasam vs. Sungi & Electoral Commission (2023) N10404
Koiam vs Kaupa & Electoral Commission (2023) N10330
Dominic vs. Kaupa & Electoral Commission (2023) N10361
Dola vs. Alua & Electoral Commission (2023) N10464
Nukundi vs. Pim & Electoral Commission (2023) N10263
Ondokoi vs. Mul & Electoral Commission (2023) N10406
Yama vs. Pariwa & Electoral Commission (2023) N10458
Jeffrey Sasuwo vs. Tambua & Electoral Commission (2023) N10544

Counsel:
Mr Mawa, Petitioner in Person
Mr P Othas, for First Respondent
Mr P Kuman, for Second Respondent

RULING ON OBJECTION TO COMPETENCY OF PETITION

21^st November 2023

1. MURRAY J: This is a decision on two Objections to Competency of the petition by Mr Paul Mawa, the petitioner, disputing the validity of the Election result for the Tambul Nebilyer Open Electorate in 2022 General Elections.

Background

2. The petitioner, Mr Paul Mawa and the first respondent, Mr Win Bakri Daki were candidates who contested for the Tambul Nebilyer Open Electorate seat in the 2022 National Elections. On 5^th August 2022, Philip Kansol, the returning officer, declared Mr Daki, who had polled 41, 503 votes, the winner and duly elected member for Tambul Nebilyer Open Electorate seat, whilst, Mr Mawa, polled a total of 36, 301 votes. The difference of votes between them was 5, 207 votes. Aggrieved by the results, Mr Mawa filed this Petition, EP 77 of 2022.

Petition

3. There are two grounds pleaded in the petition by Mr Mawa, upon which he seeks to invalidate the election of Mr Daki. Those grounds are:

1. Illegal Practices committed by the first Respondent’s supporters and polling officials (Paragraphs 10 – 12 of the Petition) and
   
2. Error and Omissions committed by Electoral Officials (Paragraphs 122-144 of the Petition)
   

Objections to Competency of the Petition

4. Both Respondents filed separate notices of objections to competency of the Petition. The first Respondent’s initial objection was filed on 5 December 2022 which was later amended and filed on 27 June 2023, with leave of Court. The second Respondent filed its initial objection on 7 February 2023. An amended one with leave of Court was filed on 5 May 2023 and again, with the leave of Court, it was further amended and filed on 28 June 2023. That was the objection that was before me together with the first Respondent’s amended Objection filed on 27^th June 2023.
   
5. Pursuant to their respective notices of objections, both respondents seek to dismiss the Petition on the basis of non – compliance of the mandatory requirement of Section 208 and 209 of the Organic Law on National and Local Level Government Elections (Organic Law). With respect to Section 208, they specifically seek to dismiss under Section 208 (a) and (e).
   

Relevant Law in general

6. Section 210 of the Organic Law reads:
   

No proceedings unless requisites complied with.

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

7. Sections 208 and 209 of the Organic Law reads:
   

208. Requisites of a Petition

A Petition shall –

1. set out the facts relied on to invalidate the election or return; and
2. specify the relief to which the petitioner claims to be entitled; and

100. be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

4. be attested by two witnesses whose occupations and addresses are stated; and
5. 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 the accordance with Section 175 (1)(a) and
   

209. Deposit as security for cost.

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 costs.

8. The Supreme Court in the case of Biri vs. Ninkama [1982] PNGLR 342, the leading authority on the requirements of Sections 208, 209 and 210 of the Organic Law on National and Local level Government Elections ( Organic Law), at 345 unanimously said:
   

“In our view it is clear that all the requirements in section 208 and section 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless section 208 and section 209 are complied with.

In our opinion it is beyond argument that if a petition does not comply with all the requirements of Section 208 of the Organic Law on National Election, than there can be no proceedings on the Petition because of Section 210”.

9. The Court described the rationale behind the mandatory nature of
   the Section 208 requirements in the following terms at page 345:

“Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with Section 208, it is not difficult to see why. An election petition is not an ordinary cause and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority”.

10. In Sir Arnold Amet -vs- Peter Yama (2010) SC1064 the Supreme Court endorsed the principle enunciated in Delba Biri v Bill Ninkama [1982] PNGLR 342 as follows:
    

“It is often stated that the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of allegation relied upon.

This is the underlying principle of law behind s. 208 of the Organic Law as adverted to be the Supreme Court in Delba Biri vs. Bill Ninkama [1982] PNGLR 342.”

11. And recently in Hagahuno vs. Tuke (2020) SC 2018, the Supreme Court, per the leading judgment of Kandakasi DCJ, stated:

“In careful consideration of all the foregoing discussions including the observations I made in Kamma –vs- Itanu case, there is good reason now to depart from Biri –vs- Ninkama in all that it stands for except only where it states that the requirement of s.208 and 209 are mandatory because of s.210 of the Organic Law and those requirements must therefore be strictly met [Emphasis Ours).

For clarity the requirements to strictly meet the requirements of s.208 of the Organic law is in: -

(a) setting out sufficient facts disclosing a known ground that can invalidate an 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 qualified to vote at the election; and
(d) be attested by two witnesses whose occupation 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).

As long as a petitioner addresses and or meets all of these requirements, his or her petition should qualify to progress to trial. In other words, if a petition on its face reveals a meeting of all these requirements that should be sufficient for the purposes of s.210 of the Organic Law. It should follow therefore that, objections to competency of petitions under s.208(a) to (d) and (e) is something that cannot be cured by appropriate amendments either before or after the expiry of the time period stipulated under s.208(e) of the Organic Law.

An incurable defect, error or omission in an election petition could be a complete failure to:

(a) disclose a statement of facts (regardless of however poorly or well drafted the petition might) at least a known ground for invalidating an election or return;
(b) state the occupation of the attesting witnesses as was the case in Biri-vs- Ninkama; or
(c) state both or either of the required two attesting witness addresses;
(d) specify the relief sought; or
(e) sign the petition by the Petitioner; - or
(f) file the petition within 40 days after the declaration of the relevant election result.

Also, a petition that fails to meet the condition precedent of the deposit requirement under s.209 of the Organic Law could correctly attract an objection to the competency of the petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filling an election petition.”

12. In the light of that, it is now settled that a petition will not proceed to hearing if the requirement of both Sections 208 and 209 of the Organic Law are not complied with. In other words, a petition will be dismissed for being incompetent if the requirements of those 2 provisions are not met.
    
13. More relevant to the present case are Sections 208 (a) and (e) and Section 209. The case law of each of these requirements will be set out under the respective objections when that objection is being addressed.
    

Consideration

14. I propose to consider, the objection under Section 208 (e) first, followed by the objection under Section 209 as both raise threshold issues which in my view must be determined in that order before the objection under Section 208 (a) which involves the question of sufficiency of pleadings. A consideration of that, in my view can only proceed if the petition is properly before the Court.
    

First Objection: Noncompliance of Section 208 (e) of the Organic Law

15. -Before I proceed to consider the first objection. I consider it necessary to set out the facts or chronology events that gave rise to the objections raised under Section 208 (e) and Section 209 of the Organic Law. The facts or chronology of events which are uncontested are taken from several affidavits filed by the Respondents in support of their objections. Those affidavits include:
    
    • (a) Affidavit of Baka Bina sworn 26 June 2023 and filed 27 June 2023.
    • (b) Affidavit of Yeki Karle sworn 17 June 2023 and filed the same day.
    • (c) Affidavit of Nicholle Bitas sworn 26 May 2023 and filed 29 May 2023.
    • (d) Affidavit of Philip Konsol sworn 6 April 2023 and filed 1 May 2023.
      
16. Chronology of events.
    

Submissions

17. Mr Othas for the first Respondent submitted, the last day for filing a petition, following the declaration of his client as the winner, is 14 September 2022. According to the IECMS record, the Petition was filed on 21 September 2022 and not 14 September 2022 as is shown on the sealed cover page of the Petition itself and as claimed by the Petitioner.
    
18. Relying on the following cases, namely; Wesley Ora Raminai vs. Maino Pano & Electoral Commission (2023) N10248, Charles Kassman vs. Justin Tkatchenko & Electoral Commission (2023) N10213, Andapanga AN Baliawe vs. Hon. John Kaupa & Electoral Commission (2023) N10357, Petrus N Thomas vs. William W Bando & & Electoral Commission EP 7 of 2022, Nasam vs. Sungi (2023) N10404, Koiam vs Kaupa (2023) N10330, Dominic vs. Kaupa (2023) N10361, Dola vs. Alua (2023) N10464, it was Mr Othas’ further submission that, what the Petitioner did on the 14 September 2022 at around 8.24 pm when the Registry was closed, was merely lodging the petition. The petition was not filed as stipulated in Section 208 (e) of the Organic Law which, although silent on what ‘filed’ means, is defined in Rule 1 of the Election Petition (Miscellaneous Amendment) Rules 2022 (EP Rules) and not in the IECMS Practice Direction 1 of 2022. Mr Othas submits further that, by definition in Rule 1, a petition is filed, when it is lodged, sealed with the seal of the National Court and registered with an election petition number.
    
19. In this case, Mr Othas submits, the petition was lodged on the 14 September 2022, endorsed with the EP 77 of 2022 on the next day (15 September 2022) but was not sealed with the seal of the National Court until 21 September 2022. By application of the definition, Mr Othas, submits, the petition was not filed until the 21 September 2022. By then the petition was 7 days outside the required period, making the petition incompetent. Inspite of that, the petition was recorded as being filed on the 14 September 2022 by Mrs Kini Mamis who had no authority to do that, (See Potape vs. Undialu and EC) and as such the petition is deemed as filed on 21 September 2022 which is outside the prescribed period. Hence, the requirement of Section 208(e) of the Organic law was not met. Therefore, by operation of Section 210 of the Organic Lae, the petition is incompetent and must be dismissed.
    
20. Furthermore, it was also Mr Othas’ submission, in the alternative that, if this Court finds that a petition is filed when it is registered with an election petition number, the petition in this case would still be outside the 40 days period, in that, the petitioner lodged his petition on 14 September 2022, but was registered on 15 September that is one day late. Accordingly, the petition would still be incompetent for being filed out of time.
    
21. Mr Kuman for the second Respondent fully adopted and endorsed the submissions by Mr Othas on the main argument and in addition submits that, by virtue of Rule 8 of the IECMS Practice Directions, the IECMS Practice Directions Rules do not apply to Election Petition, matters where the Election Petition Rules specifically provide for. In this case, he submits, the Election Petition Rules defines what ‘filed’ means. As such, IECMS Practice Direction Rules does not apply.
    
22. As to the alternative argument by Mr Othas, Mr Kuman has a slight variation. He submits that if this Court is not minded to uphold the main argument that, the petition in this matter was filed on 21 September 2022, and instead find that, it was filed on 14 September 2022, at 8:24pm it is his argument that the petition will still be late, by some hours, because, the 40 days period which will start to run from 12 midday on 6 August 2022 and will lapse on 12 midday on 14 September 2022.
    
23. In the light of the decision in Hagahuno vs. Tuke (2020) SC 2018, the Supreme Court in upholding the appeal against my decision of 22 June 2018 where I held that 40 days to lodge a petition starts on the same day of declaration, I find alternative argument by Mr Kuman misleading and would dismiss this alternative argument as, the Supreme Court Judgment which is binding on this Court, did not say that, when computing the 40 days period, one must start on the specific time (emphasis mine) of the next day of declaration. The Supreme Court simply held that, the period starts running on the next day after the declaration is made.
    
24. In response to the main contention by the Respondents that, his petition was filed outside the 40 days period under Section 208 (e) of the Organic Law, Mr Mawa submitted that, I should not rely on the definition of ‘filing’ under Rule 1 of Election Petition Rules to find that his petition was filed out of time, and instead I should apply the IECMS Practice Direction Rules and find that his petition was filed on 14 September 2022 when it was uploaded on the IECMS. He submits further that, to apply the definition of ‘filing’ under Rule 1 of Election Petition Rules would be unfair because it involves three (3) stages, two (2) of which he as the Petitioner, has no control over. For that reason, this Court should find that a petition is filed when it is uploaded on the IECMS. In his case, that was done on 14 September 2022. Accordingly, he submits, his petition was filed in time.
    
25. In support of his submissions Mr Mawa refers to and relied on the following cases:
    
    • (i) Jean Eparo Parkop v. Gary Juffa and Electoral Commission (2023) N10281.
    • (ii) Kilroy Genia v. Puka Temu and Electoral Commission (2023) N10321.
    • (iii) Kassman v. Tkatchenko and Electoral Commission (2023) N10213.
    • (iv) Paru Aihi v. Peter Isoaimo and Electoral Commission (2014) N5691.
      

Issue

26. The main issue or question that emerged from submissions from all counsel is: when is a petition considered ‘filed’ for purposes of Section 208(e) of the Organic Law. In other words, what constitutes filing. Is it when the petition is uploaded onto IECMS or is it when it has gone through the following process: lodgement at the Registry, sealed with the seal of the National Court and registered with or given an Election Petition number.
    

Reasons for Decision

27. Currently National Court decisions are split on this issue of what constitutes filing.
    
28. One view which I will refer to as the first view, is that, a petition is filed when it is electronically uploaded on the IECMS. This view is held in the following cases:
    
    • (a) Nukundj vs. Pim (2023) N10263
    • (b) Ondokoi vs. Mul (2023) N10406
    • (c) Yama vs. Pariwa (2023) N10458
    • (d) Parkop vs. Juffa (2023) N10281
    • (e) Genia vs. Temu (2023) N10321
      
29. A summary of the reasons for the Courts in the cases above holding the first view are as follows:
    
    • In Nukundj v Pim, and Ondokoi v Mul, the Courts were of the view that, because Section 208(e) of the Organic Law did not provide the mode of filing they turned to the Practice Direction IECMS which they considered did provide a mode of filing through electronic filing. There was no consideration of the definition of ‘filed’ in Rule 1 of the Election Petition Rules.
    • In Yama v Pariwa and Parkop v Juffa, the Court held that, the date on which a petition is uploaded onto IECMS is effectively the filing date. His Honour’s primary reason for that view is that, he considers the definition of the word ‘filed’ in the Petition Rules did not govern the meaning of that word used in Section 208(e) of the Organic Law.
    • And in Genia v Temu, the Court noting firstly that, the Election Petition Rules and National Court Rules do not make provisions for filing through IECMS and secondly that, where documents are uploaded onto IECMS, it would take time for vetting, checking, downloading, sealing and numbering before they are uploaded again onto the IECMS, the Court was of the view that it would be appropriate to find the date a document is uploaded onto to the IECMS to be the date of filing.
      
30. The other view which I will refer to as the second view is that, a petition is filed when it has completed a 3 stage process. First is the lodgement of the petition at the Registry. Second is sealing of the petition with the seal of the National Court and lastly, the endorsement or registration of the petition with an Election Petition number. Once that process is completed then a petition is considered filed. This view is held by the Court’s in the following cases:
    
    • (a) Wesley Ora Raminai vs. Maino Pano & Electoral Commission (2023) N10248
    • (b) Sasuwo vs. Tambua & Electoral Commission (2023) N10544
    • (c) Petrus N Thomas vs. William W Bando & & Electoral Commission EP 7 of 2022
    • (d) Nasam vs. Sungi (2023) N10404
    • (e) Koiam vs Kaupa (2023) N10330
    • (f) Dominic vs. Kaupa (2023) N10361
    • (g) Dola vs. Alua (2023) N10464
      
31. A summary of the reasons by the Court in those cases that hold the second view are similar, in that, they all considered Section 208(e ) of the Organic Law, followed by the definition of ‘filed’ in Rule 1 of the Election Petition Rules which they all agree give effect to the term ‘filed’ in the Organic Law which they further agree does not include the mere uploading of a petition on to the IECMS.
    
32. For instance, In Raminai v Pano, the Court having considered the provisions of Sections 208 (e) and 209 of the Organic Law, and further considering the definition of ‘filed’ in the Election Petition Rules 2022, held that view that, the filing of a petition is complete when the petition is lodged, sealed and endorsed with an election petition number.
    
33. And in Thomas v Bando, the Court said:
    

“the Petitioner need not go far to satisfy the requirement of ‘filed’ under Section 208 (e ). The Rule 1 of the Election Petition Rules defines what ‘filed’ is. ..... it means lodged in a registry of the National Court....and sealed with the seal of the Court and endorsed with an election petition number’’

34. And further in Sasuwo v Tambua, the Court said:
    

“it is pertinent to refer to the law and process on filing an election petition under the Organic Law and the Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022, (EP Rules as consolidated).

The term, “filed,” is defined in Rule 1 Definitions section of the EP Rules as consolidated, as follows:

“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 in Scheduled 1, and sealed with the seal of the Court and endorsed with an election petition number.” (Underlining added)

This definition gives meaning to and clarifies what is intended under s 208 (e) of the Organic Law. It is clear, the process of filing an election involves three essential steps, namely:

• Lodgement of the document in a registry of the National Court,
• Sealing of the document with the seal of the National Court,
• The document is allocated an election petition number”.
  

35. As all those cases cited are all National Court Judgments, I am not bound by any of them. However, having considered the reasons in each of those cases, I am persuaded by the judgements of their Honours, Batari J, Manuhu J and Kangwia J in the respective cases they each dealt with, which together with the other cases cited stood for the second view, which is: a petition is considered filed after it has completed the 3 steps process, namely:
    
    • Lodgement of the Petition at a National Court Registry.
    • Sealing of the Petition with seal of the National Court and
    • The Petition is given an election petition number.
      
36. Justice Cannings in, Parkop v Juffa & EC (supra) at [20] of his judgement, in declining to follow the approach by Justice Manuhu in Ramanai v Pano (supra) stated:
    

“The definition of the word “filed” in the Rules of Court does not govern the meaning of that word in the Organic Law, which is a Constitutional Law and a superior law to the Election Petition Rules.’’

37. With the greatest respect to my brother Judge, I do not agree with the view that, the word “filed’’ in the Rules do not govern the meaning of that word in the Organic Law. Rather, I am of the view that it does. The Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022, is the foundation of the second view, which I respectfully consider is the correct one. The Election Petition Rules were made by Judges pursuant to Section 212 of the Organic Law to give effect to the Organic Law dealing with Election Petitions.
    
38. The Election Petition Rules clearly defined the phrase “The Petition shall be filed” as set out in Section 208(e) of the Organic Law to mean:
    

“Lodged in a Registry of the National Court at Waigani or at a Registry or sub – Registry of the National Court in a Province, a set in schedule 1, and sealed with the seal of the Court and endorsed with an election petition number”

(emphasis added)

39. Given this definition, there cannot be in my view, any room to turn to the IECMS Practice Direction Rules which have been considered applicable by various Judgements of the Courts that hold the first view that a petition is filed when it is electronically uploaded to the IECMS.
    
40. With respect, I do not agree that IECMS Practice Direction is applicable to Election Petitions. It only applies to all cases initiated or filed through IECMS where no specific rules are in place. Where there are specific rules in existence such as the Election Petition Rules, IECMS will not apply.
    
41. That is provided in Rule 8 of the IECMS Practice Direction No.1 of 2022:
    

Rule reads:

8. Applicable Rules

(1) These rules shall apply to all cases initiated or filed through the IECMS.

(2) Except for any matter specifically provided for in these rules, the:

(a) Supreme Court Rules 2012 as amended and consolidated to 2013 (SCR)
(b) National Court Rules 1982
(c) (c) Rules Relating to the Accreditation, Regulation and Conduct of Mediators (ADR Rules);
(d) Election Petition Rules 2017;
(e) Judicial Review (Amendment) Rules 2005.
(f) Probate Rules;
(g) and such other rules applicable in the Supreme Court and the National Court will continue to apply to all cases initiated or filed through the IECMS.

(3) Where there is a conflict between these rules and any of the rules under sub-rule (2) above, which of the rules will best achieve the overriding objectives of the IECMS and this Practice Direction shall prevail.

42. All those cases that support the position that a petition is filed when it is electronically lodged, did not consider Rule 8 of the IECMS Practice Direction.
    
43. Rule 8 of the Practice Directions (IECMS) Rules is clear. It states, it will apply to all cases, except- for any matter that are specifically provided for by other rules in existence of the list of existing rules provided, Election Petition Rules 2017 is included, which will continue to apply to those petitions that have been initiated through IECMS.
    
44. Based on Rule 8 of IECMS Practice Directions Rules No.1 of 2022. I find IECMS Practice Directions cannot dictate when a petition is filed. That is a matter that is specifically provided for in the Election Petition Rules and by definition in Rule 1, a Petition is filed when it is lodged at a National Court Registry, sealed with the seal of the Court and given an Election Petition number.
    
45. Merely uploading a Petition through IECMS does not satisfy the requirement of filing under Section 208(e) of the Organic Law (Raminai vs. Panu & EC).
    
46. In the present case, the undisputed facts according to Baka Bina’s affidavit is that, the Petition was uploaded on 14^th September 2022 at 8.24pm and was considered a draft (Draft EP 80 of 2022) No staff of the registry was available to attend to it, as the registry was closed. Then on 15 September 2022, the Deputy Registrar National Court approved the petition after the Petition together with the filing fee, and receipt of the security deposit were checked and validated by the IECMS team led by Mathew Bae and about 10.19 am, the petition was given a number – (EP 77 of 2022) resulting in a change in the status of a draft petition to EP 77 of 2022.

After that, it was not sealed until 21 September 2022 at about 11.19 am. Once it was sealed, it was uploaded onto IECMS.

47. By application of the definition of ‘filed’, in Rule 1 of Election Petition Rules, I find the Petition was not filed until 21 September 2022, when it was sealed with the seal of the National Court.
    
48. The argument by Mr Mawa that, I should accept the 14 September 2022 as the date of filing because that is the date registered on the Petition, is rejected for the reason that by definition, a petition is filed upon completion of the 3 steps. The first step was done on the 14 September 2022, at a time when the Registry was closed. The second step was done on the 15 September 2022, when the Election Petition number (EP 77 of 2022) was given. But the final step was not done until 21 September 2022, when the Petition was lodged. Clearly, the Petition could not have been filed on 14 September 2022. The date 14 September 2022 was inserted by Ms Kini Mamis on the date the Petition was sealed. This was done without any authority. (see case of Potape v Undialu & Electoral Commission (2023) SC2240)
    
49. As I have found that the Petition was filed on 21 September 2022, it was filed 7 days out of time.
    

45. As to whether the Petition could be saved by application of Section 217 of the Organic Law, I have considered the competing arguments, including the authority on point, but I am convinced that non-compliance of the strict requirement of Section 208(e) of the Organic Law cannot be relaxed.

50. For the following reasons, I find the Petition is incompetent and should be dismissed with costs on that basis alone.
    

Conclusion

51. Having found the Petition was filed outside of 40 days period and has been dismissed, it is not necessary for me to consider the alternative arguments by the Respondents, nor the other ground s of objections.
    

Orders

52. The Court orders that:

1. The respondents’ objections to competency of the Petition are upheld.
2. The Petition, EP 77 of 2022 is dismissed in its entirety.
3. The Petitioner shall pay the respondents costs of the proceedings, to be taxed if not agreed.
4. The security deposit of K5000.00 shall be apportioned equally between the respondents.
   

______________________________________________________________
The Petition appearing in Person
Paul Othas Lawyers: Lawyers for First Respondent
Kuman Lawyers: Lawyers for Second Respondent