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Onglo v Dilu [2023] PGNC 449; N10595 (22 November 2023)

N10595

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


EP NO 76 OF 2022


WILLIAM GOGL ONGLO
Applicant


V


MUGUWA DILU
First Respondent


And:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent


Goroka: Kandakasi DCJ
2023: 20th & 22nd November


ELECTIONS – National Elections - Objection to competency of petition – requirement for filing petitions within 40 days after the declaration of the results – Computation of time commences the next day after the declaration – Section 208 (e) Organic Law on National and Local-level Government Elections (Organic Law).


ELECTIONS – Objection to competency of petition – Meaning of the term “filed” as used in ss. 208 (e) and 209 of the Organic Law, rr. 5 and 7 of Election Petition Rules 2022 (EP Rules) and as defined in r. 1 of the EP Rules – Fair large and liberal interpretation per s. 217 of the Organic Law and William Hagahuno v. Johnson Tuke (2020) SC2018 (Hagahuno v.Tuke) must be given – The term “filed” means lodgement of the petition at the registry by uploading into the Integrated Electronic Case Management System (IECMS) the petition, notice of deposit of security deposit and payment of filing fee into National Court Registrar’s Trust Account.


ELECTIONS – Objection to competency of petition – Section 208 (a) of the Organic Law – Requirement is to plead facts – What is pleaded must be viewed through s. 217 of the Organic Law dictate – Viewing what is pleaded through the strict, highly technical and nitpicking approach overturned by the decision in Hagahuno v. Tuke – Petition to be read as whole – Applying the Hagahuno v. Tuke test and reading the petition as a whole facts disclosing lack of proper scrutiny and ascertaining of the results and declaration of winner arrived at - Possible breaches of provisions of the Constitution, the Organic Law and other laws disclosed – Requirements of s. 208 (a) meet – Objection dismissed.


Facts


Aggrieved by the outcome of the election for the Kundiawa/Gembogl Open Electorate in the 2022 National General Elections (2022NGE), the Petitioner filed a petition. He did so by using the Integrated Electronic Case Management System (IECMS) to upload his petition together with a Notice of Deposit for Security for Cost as required by s. 209 of the Organic Law and notice of payment of filing fee, on 14 September 2022. That was 2 days before the 40 days deadline of 16th September 2022. Although registration of the petition took place on the 15th, the documents were not sealed until 21st September 2022.


In his petition, the Petitioner alleged, through collusion and compromises between certain named counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent allowed into the counting room by the RO, the scrutiny and counting of votes was seriously compromised. It was conducted without proper scrutiny, to get the 1st Respondent declared as the winner of the relevant election. The specific acts amongst others included:


(a) The RO allowing more than 180 – 200 not properly authorised pursuant to s. 150 of the Organic Law were allowed into the counting room and allowing the 1st Respondent 7 scrutineers with none for the Petitioner.
(b) Allowing the 1st Respondent to removing the Petitioner’s marked ballot papers into the exhaust ballot box or stuffing them into the 1st Respondent’s box to decrease the number of votes the Petitioner received.
(c) Stuffing up the 1st Respondent’s ballot box with ballot papers not marked for him but other candidates and the Petitioner to increase the 1st Respondent’s votes.
(d) Seriously threatened, disturbed, blocked, assaulted, and prevented the Petitioner’ scrutineers from properly scrutinizing the counting and allocation of votes to each of the candidates at each of the counting stages especially at the elimination and distribution of eliminated candidates votes.
(e) Refusing requests by the relevant Provincial Election Manager and the Provincial Police Commander and a reverend to suspend or stop counting to allow for proper scrutiny.
(f) Though not expressly pleaded it was clear from reading the whole petition that, the number of votes that were deliberately placed in the wrong boxes where more than the winning margin and hence the results were affected.
(g) There was also an allegation of offer of a bribery of K50,000.00 to cause the Petitioner’s scrutineers to leave the counting room and placing the Petitioner’s votes into the 1st Respondent’s box.

The Respondents filed two separate objections to the competency of the petition. The 1st Respondent’s objection was grounded on a claim that: (1) the petition was not filed in accordance with the requirements of ss. 208 (e) and 209 of the Organic Law as well as rr. 5 and 7 of the Election Petition Rules 2022 (EP Rules 2022) in that, the petition was not filed within the 40 days stipulated in s. 208 (e) and (2) the petition did not meet the requirements of s. 208 (a) of the Organic Law in not pleading the facts disclosing a ground capable of upsetting the election outcome. The 2nd Respondent’s objection was also based on two grounds. The first was based on s. 208 (a) of the Organic Law and was like that of the 1st Respondent. The second ground was based on s.208 (b) of the Organic Law. This ground was not pursued at the hearing and in any case the Court found the petition did plead the reliefs sought. In the circumstances, that ground was dismissed. The Respondents relied upon Delba Biri v. Bill Ninkama [1982] PNGLR 342 line of cases and argued for a dismissal of the petition because the petition did not strictly meet the requirements of ss. 208 and 209 of the Organic Law and the relevant EP Rules. They did not press on an argument that computation of time for the purposes of s. 208 (e) should commence from the day of the declaration, upon the Court drawing their attention to the Supreme Court decision in William Hagahuno v. Johnson Tuke (2019) SC1776. The Petitioner argued for the Court to adopt and apply the fair and liberal approach as required by s.217 of the Organic Law, to produce the result that the Petition met all of the requirements. The objections should therefore be dismissed, and the petition should be allowed to proceed to trial.


Held


  1. The 5-member Supreme Court decision in William Hagahuno v. Johnson Tuka (2020) SC2018 (Hagahuno v.Tuke (No. 2), s. 217 changed the legal landscape both on the substantive and procedural law when dealing with election petitions from the Delba Biri v. Bill Ninkama [1982] PNGLR 342 line of cases to a more fair, large, and liberal approach in accordance with the dictates of s. 217 of the Organic Law which applies at all levels of dealing with an election petition, from directions hearing to objections to competencies and trial of a petition.
  2. Applying Hagahuno v. Tuke (No.2) and giving the word “filed” as used in s. 208 (e), rr. 5 and 7 and as defined in r.1 of the EP Rules, a fair, large and liberal meaning, an election petition is “filed” with the IECMS as of the day when the petitioner uploads his or her petition together with notice of deposit of the payment of the Security for Costs required by s. 209 and payment of the filing fee: Adopted and applied Jean Eparo Parkop v. Garry Juffa & Anor (2023) N10281.
  3. The petition in this case was for the purposes of s. 208 (e) Organic Law and rr. 5 and 7 of the EP Rules, filed within time on 14 September 2023, when the Petitioner uploaded his Petition, the Notice of Payment of the Security for Costs and notice of payment of the filing fee: Adopted and applied Jean Parkop v. Garry Juffa (supra).
  4. Applying Hagahuno v. Tuke (No.2) and reading the petition as a whole and allowing itself to be “guided by the substantial merits and good conscience of the case without regard to legal forms or technicalities” as required by s. 217 of the Organic Law and taking into account the provisions of rr.5 and 7 and the definition of the term “filed” by r. 1 of the EP Rules the requirement for Security for Costs under s. 209 of the Organic Law was read largely, fairly and liberally to hold that the requirement is met when the deposit and the filing fees are paid into the National Court Registrar’s Trust Account prior to a filing of a petition to produce evidence of having met the requirements as at the time of filing a petition.
  5. Applying Hagahuno v. Tuke (No.2) and reading the petition as a whole and allowing itself to be “guided by the substantial merits and good conscience of the case without regard to legal forms or technicalities” as required by s. 217 of the Organic Law, the petition was found to have met the requirements of s. 208 (a) of the Organic Law raising serious allegations which warranted a trial and not a dismissal on a technical ground.
  6. Thus, the objections were found to be without merit and were both dismissed with costs and the petition was ordered to proceed to trial.

Cases Cited:
William Hagahuno v. Johnson Tuke (2020) SC2018.
William Hagahuno v. Johnson Tuke (2019) SC1776.
Delba Biri v. Bill Ninkama [1982] PNGLR 342.
Sir Barry Holloway v. Iva Ivarato [1988] PNGLR 99.
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.
in Powi v. Kaku & Electoral Commission (2022) SC2290.
Bali Tulapi v. Aiya James Yapa Lagea (2013) N5235.
Pila Niningi v. Francis Awesa & Electoral Commission (2013) N5322.
Johnson Tuke v. William Hagahuno & Electoral Commission (2023) EP No. 62 of 2022 (unreported), per Yagi J.
Moses Manwau v. Hon. Allan Bird & Electoral Commission (2023) N10249.
Mathew Minape v. John Rosso & Electoral Commission, EP No. 03 of 2022 (unreported), per Gavara-Nanu J.
Andapanga Alfred Nelson Baliawe v. Hon. John Kaupa & The Electoral Commission, per Kassman J.
Peter Dominic v. Hon. John Kaupa & Electoral Commission, per Kassman J.
Evele Kila v. Sir Puka Temu & Electoral Commission, EP No. 74 of 2022 (19 June 2023), per Dingake J.
Diane Unagi Koiam v. Hon John Kaupa & Electoral Commission (6 and 14 June 2023), per Kassman J.
Petrus Nane Thomas v. William Bando & Electoral Commission, EP No. 7 of 2022 (11 & 19 June 2023), per Kangwia J.
Epi v. Farapo (1983) SC247.
Paru Aihi v. Peter Isoaimo & Electoral Commission (2015) SC1598.
Puril Kunjil v. PNG Power Limited (2007) N3879.
Steven Pirika Kamma v. John Itau & Ors (2008) N3261.
John Wan & Ano v. Engineering Management Pty Ltd & Anor (2010) N4187.
Lee & Song Timber (PNG) Co Limited v. Burua [2003] PNGLR 237.
Jean Eparo Parkop v. Garry Juffa & Anor. (2023) N10281.
Peter Yama v. Ramsey Pariwa & Anor. (2023) N10458.
John Simon v. Gabriel Lenny Kapris & Anor. (2022) N10103.


DECISION ON OBJECTION TO COMPETENCY


22nd November 2023


  1. KANDAKASI DCJ: This is a petition by Mr. William Gogl Onglo (the Petitioner) challenging the First Respondent Mr. Muguwa Dilu’s (1st Respondent) election victory for the Kundiawa-Gembogl Open Electorate’s seat in Parliament in the 2022 National General Elections (22NGE). The Respondents responded with two separate objections to competency of the petition, which I heard on Monday 20th November 2023.

Amendment to Petition and other preliminaries


  1. Before the hearing on the objections, I heard and determined on the same day the Petitioner’s application to amend his petition in terms of the draft annexed to his affidavit, sworn, and filed on 14 November 2023, document number 115. Leave was granted with the consent of the Respondents for the Petitioner to amend the opening paragraph in the first page of his petition. Other amendments were also allowed to paragraph 1, 13, 28 and 25 as these amendments were considered cosmetic. But in respect of applications to also amend paragraph 14, 15, 20, 34, 53, 59, 60, 64, 66, 67, 69, 71 - 73, 75 - 79 (3.2.2), 80 – 84, 87, 90 and the prayer for relief, they were not allowed, as they were considered material changes with some of them being the subject of the Respondent’s objections.
  2. After the determination of the application to amend, the lead submissions on the objections and at reply, learned Counsel for the 2nd Respondent, Mr. Williams, made two additional submissions. Firstly, s. 206 of the Organic Law on National and Local-Level Government Elections (Organic Law), provides for the only way to dispute an election outcome is by a petition as opposed to a writ. Consequently, it would not be correct to use language that is often used in a writ of summons, which the petitioner has employed. Secondly Counsel referred to s. 208 (d) of the Organic Law and submitted a petition would not be correctly before the Court if it is not properly attested by two witnesses. Proceeding on that basis, Counsel submitted, an amendment would not be validly sought and permitted without the attesting witnesses also attesting to the proposed amendments.
  3. I thought both submissions were interesting points, but I indicated that I would decline to take those points into account when determining the objections. This was based on both points not being raised prior to the decision on amendment and during counsel’s submissions in chief. I pointed out that, the issues could be appropriately raised in an appropriate case in the future. At the same time, I indicated, such points can only be raised if they are not injuncted by the decision in William Hagahuno v. Johnson Tuke (2020) SC2018, per Kandakasi DCJ, Kirriwom J (as he then was), Mogish, Manuhu & Makail JJ, (Hagahuno v. Tuke (No.2), which stand against highly technical points being raised against election petitions. Consistent with that, I will not allow these points to be part of what I must consider and determine in respect of the objections based on the issues fairly raised by the parties.

The Objections


  1. The objections by the 1st Respondent are based on three grounds which are in turn based on three provisions of the Organic Law. These are:
  2. The 2nd Respondent’s objections are based on s. 208 (a) and s. 208 (b) of the Organic Law.
  3. In their respective submissions, the 1st Respondent deals with the first two grounds of objection together. I note however, that the 1st Respondents submissions cites numerous Supreme and National Court decisions only in respect of the objection based on s. 209, but nothing covering the objection based on s. 208 (e). The submissions do, however, cover the relevant objection without the support of any case authority on point.
  4. Regarding the objection based on s. 208 (a) both Respondents submissions are similar. I will therefore deal with them as one. As for the 2nd Respondents objection based on s. 208 (b), there is no submission at all in neither of the Respondents’ written submissions nor in their respective oral submissions. I take it that the 2nd Respondent abandoned this objection. In any case, I note the petition does clearly plead the reliefs he is seeking. These are:

“1. The Petition is upheld.

  1. Pursuant to Section 212 (l)(d) of the Organic Law there shall be a recount of votes casted for the Kundiawa-Gembogl Open Electorate in the 2022 National General Elections.
  2. The Second Respondent shall conduct the recount of votes starting from exclusions 19, 20, 21 and 22 of candidates Samuel Kupo, Peter Kama, Stanley Enn Alphonse and Tobias Kulang.
  3. The Second Respondent and its officials should come from outside Simbu and shall conduct the recount under the supervision of the Registrar of the National Court.
  4. The recount shall be conducted in Goroka, Eastern Highlands Province in order to avoid the circumstances encountered in the last election.
  5. The Registrar of the National Court shall present a report of the recount duly certified by the Returning Officer of the recount back to the National Court within 7 days after the completion of the recount.
  6. The Second Respondent shall pay the costs of the petitioner to be taxed, if not agreed.
  7. The Petitioner shall be entitled to the refund of the security deposit of K5,000.00 held in the National Court Trust Account.
  8. Such further or other Orders the Court deems necessary.”
  9. In the light of those pleadings, the objection would not be sustained. For these reasons, I dismissed the objection based on s.208 (b) by the 2nd Respondent.
  10. This leaves me to deal with the objections based on s.208 (a) and (e) and s.209 of the Organic Law. I will follow the lead provided by the parties and deal with the two grounds of the 1st Respondent’s objections based on s.208 (e) and 209 together. Thereafter, I will deal with the remaining objections based on s.208 (a) of the Organic Law.

Relevant background and facts


  1. The relevant factual background according to what is pleaded in the petition and the parties’ summation of the facts in their respective submissions for the purposes of the hearing on objections to the competency of this petition are not disputed. This starts with both the Petitioner and the 1st Respondent being candidates in the 2022 National General Elections (22NGE) for the Kundiawa-Gembogl Open Seat. The Petitioner was the former holder of the Seat and was a former Minister for Police immediately before the 22NGE. He lost that seat to the 1st Respondent in the 22NGE. The Petitioner polled 21, 158 votes compared to that of the 1st Respondent who polled 25, 290, giving a winning margin of 4, 132 votes. The absolute majority (50% plus 1) was 23, 194 +1. The relevant declaration was made on 6 August 2022, at the Dickson’s Oval Counting Centre, Kundiawa.
  2. Being aggrieved by that election outcome the Petitioner filed this petition. In summary he alleges that, through collusion and compromises between certain counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent, the scrutiny and counting of votes was compromised. He alleges in that regard that the counting was conducted without scrutiny or proper scrutiny, which was orchestrated to affect the result of the elections amongst others by:
  3. As for the filing of the Petition, on 13 September 2022, the Petitioner paid his security deposit of K5,000.00 into the National Court Registrar’s Trust Account at the Bank South Pacific.[1] The Petitioner uploaded his petition for filing and return of sealed copies for service in the Integrated Electronic Case Management System (“IECMS”) after 7.00pm on 14 September 2022. The registry sealed the Petition and uploaded it into the IECMS after 6.00pm on 21 September 2022 and dated it 14 September 2022. The Notice of Payment of Security was sealed and dated 16 September 2022.[2] The Notice of Payment of Filing Fee was also sealed and dated 16 September 2022. On 21 September 2022, the petition, notice of payment of the security and filing fees were sealed and uploaded onto the IECMS.
  4. With these facts in mind, I now turn to a consideration of the issues presented starting with the first two issues first.

Sections 208 (e) & 209 – Filing outside 40 days.


  1. For the purposes of s.208(e) of the Organic Law in terms of computing the required 40 days, the Respondents initially took the position that, the computation of the period could commence from the date of the declaration being 06 August 2023 or the day after the date of the declaration being 07 August 2023. However, on the Court drawing Counsels’ attention to the decision of the Supreme Court in William Hagahuno v. Johnson Tuke, (2019) SC1776 (Hagahuno v. Tuke (No.1)) they conceded to the 40 days’ time limit under s.208(e) being computed from the next day after the declaration, which in this case was 07 August 2022. That meant the deadline for the filing of the Petition fell on 15 September 2022.

Given legal position


  1. Section 210 of the Organic Law stipulates that no proceeding can be heard on a petition unless the requirements of ss.208 and 209 are complied with. Section 208 provides for requisites of an election petition while s. 209 provides for the security deposit requirement. The requisites under s. 208 are:

“(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 qualified to vote at the election; and


(d) to 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 declaration of the result of the election in accordance with Section 175(1)(a).”


  1. Section 209 then adds:

“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.”


  1. Another important provision in the Organic Law is s.217. That provision reads:

“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.”


Respondents’ Submissions


  1. In his submissions on the law, the 1st Respondent’s learned Counsel firstly, submits the Supreme Court decision in Delba Biri v. Bill Ninkama [1982] PNGLR 342 (Biri v. Ninkama) its line of Supreme Court decisions such as Sir Barry Holloway v. Aita Ivarato [1988] PNGLR 99 and Sir Arnold Amet v. Peter Charles Yama (2010) SC1064, is still good law which has stood the test of time. These decisions stand for the proposition that an election petition disputing the validity of an election outcome must strictly comply with the requirements of ss. 208 and 209. This is necessary because a petition that fails to comply with any one or more of the requirements under ss. 208 and 209, renders no proceeding capable of proceeding to a hearing because of s. 210. In this respect, he submits, it is trite law that a petition must clearly plead both the legal grounds and the facts that support the grounds.
  2. Secondly, learned counsel submits, the 5-member decision in William Hagahuno v. Johnson Tuke (2020) SC2018 (Hagahuno v. Tuke (No.2)), did not water down the requirement for strict compliance of the requirements under ss. 208 and 209 of the Organic Law. The submission goes on, that decision only overturned the Biri v. Ninkama (supra) line of cases which stand for the proposition that s. 217 of the Organic Law applies when the Court is dealing with the substantive merits of a petition and not at the interlocutory and or at the competency stages. In support of that proposition my decision in Powi v. Kaku & Electoral Commission (2022) SC2290, where I discussed the effect of the decision in Hagahuno v. Tuke (No.1) is cited.
  3. Thirdly, learned Counsel for the 1st Respondent cited the decisions of Injia CJ (as he then was) in Bali Tulapi v. Aiya James Yapa Lagea (2013) N5235 and Pila Niningi v. Francis Awesa & Electoral Commission (2013) N5322, which stand for the proposition that, an election petitions grounds and facts pleaded must be read as a whole. If through such a reading the essential facts are pleaded in a clear and concise manner, that would meet the requirements of s. 208 (a) of the Organic Law. Such a petition should be allowed to proceed to trial. But where the opposite is the case, the Court should not hesitate to strike down the petition.
  4. Applying the law as stated in their submissions to the present case, the 1st Respondents submits firstly in relation to the security requirement under s. 209, that the requirement was not met “at the time of filing the petition”. In support of that submission, they refer to a number of National Court decisions namely, Johnson Tuke v. William Hagahuno & Electoral Commission (2023) EP No. 62 of 2022 (unreported), per Yagi J, Moses Manwau v. Hon. Allan Bird & Electoral Commission (2023) N10249, per Gavara-Nanu, Mathew Minape v. John Rosso & Electoral Commission, EP No. 03 of 2022 (unreported), per Gavara-Nanu J, Andapanga Alfred Nelson Baliawe v. Hon. John Kaupa & The Electoral Commission, per Kassman J, Peter Dominic v. Hon. John Kaupa & Electoral Commission, per Kassman J, Evele Kila v. Sir Puka Temu & Electoral Commission, EP No. 74 of 2022 (19 June 2023), per Dingake J, Diane Unagi Koiam v. Hon John Kaupa & Electoral Commission (6 and 14 June 2023), per Kassman J and Petrus Nane Thomas v. William Bando & Electoral Commission, EP No. 7 of 2022 (11 & 19 June 2023), per Kangwia J.
  5. Of these National Court judgments, the decision in Manwau v. Bird (supra), per Gavara-Nanu J., is cited as the best representation of what these judgments stand for. The relevant part of the judgment is paragraph 18, where his Honour stated:

“The operative words in s. 209 are “at the time of filing of the petition”, (the petition shall deposit with the Registrar of the National Court, the sum of K5,000.00 security for costs). These words are critical and determinative, they are crystal clear in their meaning and leave no room for the Court to give any other meaning other than their plain and ordinary meaning, which is, the prescribed security for costs had to be paid in full on 7th September, 2022, when the petition was filed with the Registrar of the National Court. To give any other meaning to the words would not only result in this Court striking down the mandatory constitutional law, but it would also give serious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.”


  1. The 1st Respondent goes on to submit, the above National Court decisions took their cue from the Supreme Court decisions in Epi v. Farapo (1983) SC247, per Kidu CJ, Pratt & Bredmeyer JJ (as they then were) and Paru Aihi v. Peter Isoaimo & Electoral Commission (2015) SC1598, per Injia CJ, (as he then was) Kariko J and Poole J (as he then was). Both these decisions came to the same conclusion.
  2. In Epi v. Farapo (supra), the petitioner lodged three petitions in the morning part on a Friday together with security deposit and filing fees in one cheque for four petitions. The petitioner advised the National Court Registry that he will bring the fourth petition in the afternoon of that Friday and the amount of money in that cheque will be apportioned between the four petitions for the filing fees and security deposit. The fourth petition was delivered to the Registry that afternoon. This fourth petition was subject of dispute by the First Respondent on the basis that the security deposit was not paid “at the time of filing the petition...” pursuant to Section 209 of the Organic Law.
  3. The Court held:

“...Whilst the Court must strive to avoid sophistry, the act of filing petition and lodging deposit must be part of one act, an act of filing which is manifestly one and the same, not two separate and distinct acts requiring two separate and distinct visits to the Registry, one with the cheque and another with the petition... The language is clear and unambiguous. “At the time of filing” means what it says – neither more nor less, and behoves petitioners and their legal advisers to act upon what they read and not adopt a course simply because it is more personally convenient.”


  1. In Aihi v. Isoaimo (supa) the Court came to a similar reasoning as in Epi v. Farapo (supra). It held, filing the petition at the registry separately from and paying the security deposit by bank deposit into the Registrar’s Trust Account a day later did not meet the strict requirements under s.209 of the Organic Law. In arriving at that decision, the Court noted:
  2. The 1st Respondent then cited the provisions of Rules 5 and 7 of the Election Petition (Amended Miscellaneous) Rules 2022 (“EP Rules”) which he submits compliments the provisions of the Organic Law. These provisions respectively provide for the filing of a petition, filing fees and payment of security for costs in respect of election petitions. The definitions of the words “filed” and “Registrar” in Rule 1 of the EP Rules are also cited.
  3. The 1st Respondent then submits, since the introduction of the IECMS and its Practice Directions 2022, two lines of thought concerning the filing of documents have developed in the National Court in election petition cases. He goes on to submit, many of the National Court Judges have followed the Supreme Court decisions in Epi v. Farapo (supra) and Aihi v. Isoaimo (supra). They submit, the decision in Manwau v. Bird, represents those line of cases and repeat their quotation of his Honour’s judgment that is already set out at [23] above. The submissions also go into a discussion of the decisions in the other National Court decisions they rely upon, which I need not go into in any respect given the representation by the decision in Manwau v Bird (supra).
  4. Unfortunately, Counsel for the 1st Respondent does not assist with submissions concerning the second school of thought. That vacuum is filled by the Petitioner’s submissions, which I will get to soon.
  5. Finally, the 1st Respondent submits the petition in the present case should be found as incompetent and should therefore be dismissed because:
  6. These facts and or chronology of events the 1st Respondent submits are confirmed by the IECMS records, which speak for themselves. As such, he submits, no extrinsic evidence can be called to contradict the written record. In support of that submission, reliance is placed on my decisions in Puril Kunjil v. PNG Power Limited (2007) N3879 and Steven Pirika Kamma v. John Itau & Ors (2008) N3261 as well as the decision of Makail J in John Wan & Anor v. Engineering Management Pty Ltd & Anor (2010) N4187 and my decision in Lee & Song Timber (PNG) Co Limited v. Burua [2003] PNGLR 237.

Petitioner’s Submissions


  1. The petitioner’s response to the 1st Respondent’s submissions through his learned Counsel Mr. Issac, starts with the definition that must be given to the word “filed” as used in s.208 (e) of the Organic Law and rr. 1 and 5 of the EP Rules. He submits, the word being a term used by the Constitution, it should be given a “fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit” as dictated by the provisions of s.109(4) Sch 1.5 of the Constitution. Reliance is also placed on s.158(2) of the Constitution, which obligates the Courts to “give paramount consideration to the dispensation of justice”, when interpreting laws.
  2. Turning then to the IECMS case filing and management system, and the relevant Practice Direction, the Petitioner points out, these rules were made by the Judges under s.184 of the Constitution and were implemented by the National and Supreme Courts in Waigani for the purposes of making filing and management of cases relatively easy and efficient to Court users and the Court alike. The submissions go on to point out that, as is made clear by the Affidavits of Kini Mamis (Track leader Election Petition matters), Mathew Bae (CDS and IECMS OIC registry functions) and Baka Bina (Deputy Registrar-National Court), all Petitions were filed using IECMS electronically by uploading the relevant initiating and other requisite documents first. No physical attendance and lodgement at the Court Registry were accepted.
  3. Critically then, the petitioner asks a most relevant and practical question. The question is, giving the word “filed” a liberal, fair and large meaning and to dispense justice, does that word in the context of s.208(e) of the Organic Law mean the lodgement of the document by the Petitioner electronically through IECMS or includes the steps the Registry would take in accordance with their internal case management processes to register the case and or to seal the documents, which probably may happen a day later in accordance with their case management processes over which the Petitioner has no say?
  4. The decision of Cannings J., in Jean Eparo Parkop v. Garry Juffa & Anor. (2023) N10281 is cited as a decision that correctly followed the dictates of the Constitution by ss.109(4), Sch 1.5, 158(2) and 217 of the Organic Law and gave a fair large and liberal meaning to the word “filed” as used in s.208(e) of the Organic Law. That case also concerned the kinds of issues presented in this case. The following passage from that decision is cited:

“21. The word “filed” in the Organic Law should be given its natural and ordinary meaning, and in the event of ambiguity in its meaning, it must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).


22. I take into account that there is a practice direction issued by the Chief Justice, and it is an administrative requirement imposed by the Registrar, that election petitions filed in the Waigani Registry must be electronically lodged through IECMS. If I am wrong in saying that, then at least it is the case that petitioners or their lawyers are encouraged and invited to lodge petitions through IECMS.


23. That is what the petitioner did. Her petition was lodged through IECMS just before midnight on 12 September 2022. Giving the word “filed” in s 208(e) of the Organic Law its natural and ordinary meaning, and giving paramount consideration to the dispensation of justice, and giving the word its fair and liberal meaning, I consider that lodging an election petition through IECMS amounts to filing of the petition.


24. Interpreting the provision any other way could result in perverse consequences. What will happen if IECMS is down, or the internet is down or the Registry is flooded due to a downpour and is out of action for a week? The petitioner has done what is required to be done and lodged her petition before the end of the 39th day, but the Registry, through some lack of diligence on the part of its officers or through an act of God or whatever reason, good or bad, does not seal and allot a file reference until after the 40th day. I consider it is unjust in such circumstances for the court to say that the petition has been filed late.”

(Underlining mine)


  1. Applying the definition his Honour arrived at to the case before him, his Honour held at [37] – [39]:

“37. I consider the present case on its merits. I have to give the phrase “at the time of filing the petition” in s 209 of the Organic Law its ordinary and natural meaning. Does that mean that the security deposit has to be made on the same day that the petition is filed? I do not think so. As already seen in this case, if the second respondent’s arguments on the first ground of objection were to be sustained, the petitioner would not know the date of filing as that is something over which she had no control. But I have rejected that argument. The date of filing is clear. I have determined it to be 12 September 2022.


38. Does it matter that the deposit was made four days earlier, on 8 September 2022? No, not in my reckoning. I can see that there is some ambiguity in the meaning of “at the time of filing the petition”. But there is no express requirement that the date of making the deposit must be the same date as filing the petition. The phrase must be interpreted in a way that gives “paramount consideration to the dispensation of justice” (Constitution, s 158(2)). It must be given a “fair and liberal meaning” (Constitution, schedule 1.5(2)).


39. I consider that it would give proper and paramount consideration to the dispensation of justice and it would give the phrase “at the time of filing the petition” a fair and liberal meaning, to regard a deposit that is made four days, or even five days before filing of a petition as being made at the time of filing the petition. Interpreting the phrase that way does no prejudice to anyone. Interpreting it in the way contended for by the second respondent would lead to an injustice.”

(Underlining mine)


  1. Learned Counsel for the Petitioner also drew the Court’s attention to Cannings J.’s decision in Peter Yama v. Ramsey Pariwa & Anor. (2023) N10458. There is Honour repeated his reasoning and decision in the Parkop v. Juffa (supra) case.

Consideration & decision on 1st and 2nd Ground of Objections


  1. Couple of points are clear. Firstly, the Biri v. Ninkama (supra) and Holloway v. Ivarato (supra) line of cases, was the prevailing law on competence of election petitions and how to deal with election petitions. On the question of filing within the meaning of s.208(e) of the Organic Law and the rest of the requirements under s.208, that line of authorities supported a strict and restricted interpretation that led to decisions requiring strict compliance and pleadings. That resulted in what I observed in my decision in Hagahuno v. Tuke (No. 2) (supra) at [9] that:

“Sadly however, this strict approach has resulted in many good petitions questioning the integrity of both the election process and its results have been getting knocked out technically at the objection to their competency stages. Some of these decisions, added more requirements to those under s. 208 of the Organic Law. This has meant that, the petitions have not been allowed to reach a hearing on their substantive merits and have therefore, been denied the opportunity of a hearing on their substantive merits. The strict approach has taken the nation to a point where the quality and integrity of both the electoral system and the election process with election results being seriously compromised.”

(Underlining supplied)


  1. In the succeeding paragraphs at [10] – [66] in that judgment, I elaborated on the above and reviewed almost all the decisions that followed the Biri v. Ninkama (supra) line of authorities and those that signalled a departure from those line of authorities. I repeat them here for the purposes of a decision on the issues presently before this Court. It is important however, that I quote the conclusions I reached in that case at [66] – [69] in the following terms:

“...Carefully considering this and all of the foregoing discussions including, the observations I made in Kamma v. Itanu case, there is good reason now to depart from Biri v. 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.


67. For clarity the requirement 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 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).


68. 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 of 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 can only be raised against a petition which on its face fails to meet any of the requirements under s. 208 (a) to (d) and 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 by a statement of the facts (regardless of however poorly or well drafted the petition might be) at least a known ground for invalidating an election or return; or

(b) state the occupation of the attesting witnesses as was the case in Biri v. Ninkama; or

(b) state both or either of the required two attesting witness’ addresses;

(c) specify the relief sought; or

(d) sign the petition by the petitioner; or

(e) file the petition within 40 days after declaration of the relevant election results.


69. 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 a petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filing an election petition.”

(Underlining supplied)


  1. My learned brother Yagi J, in his decision in John Simon v. Gabriel Lenny Kapris & Anor. (2022) N10103 in my view, correctly summarised my decision in the Hagahuno v. Tuke (No. 2), case and the views of the other Judges constituting the Court. The relevant part of his Honour’s judgment is at [24] – [28] which reads:

“24. However, recently the Full Court comprising 5-member Bench of the Supreme Court (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J) in William Hagahuno v Johnson Tuke & Electoral Commission of Papua New Guinea (2020) SC2018 in a unanimous decision overruled Delba Biri v Bill Ninkama (supra) and changed the legal position in terms of the strictness or rigidness in the application of the law and rules or the procedural law in dealing with election petitions. The Supreme Court held that s. 217 of the Organic Law must be applied in every stage of the hearing process, that of course includes directions hearing, pre-trial conference, and status conference. It is instructive to quote from the headnotes to the judgment of the Court which states:


‘(2) Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the country.’


25. Deputy Chief Justice Kandakasi in that case ... undertook, in my view, a comprehensive and diligent review of the previous decisions of the Courts and dissected the differing schools of thought, including his Honour’s own decisions, surrounding the strict interpretation and application of the law dealing with election petitions particularly ss. 208, 209 and 210 of the Organic Law. His Honour noted the earlier cases led by the decision in Delba Biri v Bill Ninkama (supra) including few more recent cases that subscribe to the strict approach and the later decisions such as Jimson Sauk v Don Pomb Polye (2004) SC769, Ginson Saonu v Bob Dadae (2004) SC763 and Philip Kikala v Electoral Commission and Nixon Koeka Mangape (2013) SC1295 which questioned the correctness and appropriateness of the strict approach. His Honour’s meticulous analysis reached a conclusion that those cases that followed the strict approach did not give due and proper regard to the imperative of s. 217 of the Organic Law resulting in many election petition cases being dismissed due to “nit-picking” and “far too many technical objections”. His Honour went on to express support and agreement for a “fresh approach” with the following statement [at 20] of the Supreme Court in Philip Kikala v Nixon Koeka Mangape (supra):


‘With respect we consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.’


26. It should be noted that in the same case Justice Kirriwom expressed very similar views and conclusion with the Deputy Chief Justice Kandakasi. His Honour stated [at 138] the following:


‘In conclusion I want to state that in Section 217 where the Organic Law speaks about “Real Justice To Be Observed”, it is the Constitution speaking and calling for real justice to be observed, which starts from the word go, when the Court is seized of an election petition. There should be no distinction between procedural and substantive issues as was determined in Biri v Ninkama (supra) which, with respect, was a misconception.’


27. The other 3-members of the Court (Mogish J, Manuhu J and Makail J) all agreed with the statements of the Deputy Chief Justice Kandakasi and Justice Kirriwom.


28. Given this there can be no doubt William Hagahuno v Johnson Tuke (supra) has now changed the landscape in the law from strict interpretation and application to the need to observe the real justice of the case and be guided by substantial merits and good conscience without regard to legal forms or technicalities envisaged by s.217 of the Organic Law.”


(Underlining mine)


  1. As can be seen from the above, the decision in Hagahuno v. Tuke (No. 2), overturned and changed the landscape in the law from strict interpretation and application to the need to observe real justice of the case and be guided by substantial merits and good conscience without regard to legal forms or technicalities as dictated by s.217 of the Organic Law. Hence, Biri v. Ninkama (supra) and its line of cases are no longer good law and must therefore, be not followed.
  2. Secondly, given the change in the legal landscape, the 1st Respondent’s submissions should have started with the decision in Hagahuno v. Tuke (No. 2) (supra). Such submissions should then have gone onto pointing out why that decision should or should not be followed in the present case. This the 1st Respondent who is objecting to the competency of this petition has failed to do. The only reference to the decision in Hagahuno v. Tuke (No. 2) (supra) is as noted at [20] in this judgment. Those submissions suggest erroneously that, the decision in question did not change the strict approach per the Biri v. Ninkama (supra) line of cases, when in fact the decision changed the legal landscape for election petitions and not just the question of when does s. 217 of the Organic Law apply. In this respect, the Petitioner’s submissions also fail to note the change in the law and practice by the decision in Hagahuno v. Tuke No. 1 (supra). Consequently, learned Counsel for the petitioner fails to address the Court on how, the decision in question should be applied to the present case.
  3. Thirdly, the failure to accept the decision in Hagahuno v. Tuke (No. 2) as changing the legal landscape for election petitions has caused the 1st Respondent to continue to rely on decisions that pre-date the decision in Hagahuno v. Tuke (No. 2) and thereby an outdated legal position. The decisions in Epi v. Farapo (supra) and Aihi v. Isoaimo (supra), which the 1st Respondent cites and relies upon as did the various National Court decisions dealing with 22NGE related petitions cited by the 1st Respondent fall into that now outdated and changed legal position. They are therefore inapplicable.
  4. Relying on the outdated law has caused the 1st Respondents to adopt the strict interpretation to define what is meant by the word “filed” as used in s. 208 (e) of the Organic Law and rr.5 and 7 of the EP Rules and the word “filing” as used in s. 209 of the Organic Law instead of taking the liberal approached as was done by Cannings J in his decision in Parkop v. Juffa (supra).
  5. Fourthly, only the Petitioner despite not citing and relying on the decision in the Hagahuno v. Tuke (No. 2), advocates for a fair, large and liberal approach to interpreting the words “filed” as used by 208 (e) of the Organic Law and r. 5 and 7 of the EP Rules and the word “filing” as used in s. 209 of the Organic Law. This requires an ascertainment of the intend and purpose behind the provisions in question to resolve the controversy between the parties. That in turn, can be ascertained from the words employed by the provisions in question and giving them their fair large and liberal meaning.
  6. The relevant provision of the Organic Law is s.208 (e) which reads:

“A petition shall –

....

(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).”


  1. In my humble view, the intend and or purpose of s. 208 (e) is obvious, and in respect of which there is not much of a controversy. Going by the fair large and liberal meaning of the words used, it is now settled law that an election petition challenging an election return must be filed within 40 days after the declaration of results.[3] As earlier noted, the computation of time for the purpose of this provision starts the next day after a declaration of an election result.
  2. The matter in controversy now is what is meant by the word “filed”. The term “filed” is the past tense of the word “file”. That word has several meanings. But in the legal context according to dictionaries like, Merriam Webster Dictionary, the word “file” is defined to mean amongst others “to initiate (something, such as a legal action) through proper formal procedure.” A similar but a clearer definition is given by the free online dictionary in these terms: “to deposit with the clerk of the court a written complaint or petition which is the opening step in a lawsuit.”[4]
  3. Within the context of the election petitions in PNG, r. 1 of the EP Rules, defines the word “filed” 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, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number.”


  1. This definition in my respectful view includes the acts of: (1) lodging or depositing with the registry a petition; (2) which the registry officer processes; (3) and if all is in order, allocate a petition number; and (4) seal the petition with the Court’s seal.
  2. It should follow therefore that, a petitioner’s duty would be discharged upon the lodgement of his or her petition within the 40 days stipulated by s.208(e) of the Organic Law together with evidence of depositing into the Registrar’s Trust Account the required filing fee (r. 5 and 6 of the EP Rules) and a payment of the required security deposit (r. 7 of the EP Rules) also by way of depositing into the Registrar’s Trust Account. Clearly, the filing fee and deposit requirements cannot be met simultaneously with the lodging of a petition because the rules require them to be deposited into the Registrar’s Trust Account and produce at the time of filing, evidence of having met the filing fee and security for costs deposit requirements. That happens prior to lodging the documents. After lodging a petition in this manner, the duty falls upon the relevant registry officers to process the documents that have been lodged. Then, if all is in order, the registry officer will allocate the petition a number, seal the documents with the Court’s seal and return them to the petitioner for service on the respondents. This accords well with the practical realities of filing through the IECMS.
  3. The IECMS is the new system for filing and management of civil cases including election petitions for the PNG Judiciary. Presently, it is being piloted, a process which had commenced during the 2020 Covid-19 Pandemic, only for the Waigani Registry. This pilot project is being guided by a practice direction, namely, Practice Direction (IECMS) No 1/ 2022 (Practice Direction). The purpose of introducing and piloting the IECMS is as stated in r.6 of the Practice Direction. That rule states:

“...implement better efficiency and effectiveness in case management and to expedite case disposal at less cost by [amongst others]:

(a) replacing the paper-based case filing and recording system with an electronic system;
(b) electronic streamlining of case processing starting from filing to hearing and final disposal of cases.
(c) being transparent and accountable in case management;
(d) being simple and predictable in each procedural step from filing to listing to prompt final disposal;
(e) timely reporting to parties, lawyers and government agencies and others as required;
(f) eliminating opportunities for corruption to occur by administrative staff in case filing and management.”

(Underlining mine)


  1. As stated in r. 9 (1) of the Practice Direction, a case can 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, which pleads the relevant facts succinctly in sequentially numbered paragraphs. Then per r. 10 (1), all new cases or matters in the National Court are to be commenced by way of the electronic filing of the “cause form”, with all the supporting evidence in affidavit form, for causes based on facts or where they raise factual issues.
  2. Finally, and most importantly, r. 11 of the Practice Direction clearly states:

“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, ..
(4) The Courts will be flexible and will assist all users of the IECMS to meet their needs.”

(Underlining mine)

  1. At present, not all the Judges are familiar with how the IECMS system works and can use it with ease. Only I as Judge Administrator of the IECMS have a working knowledge of how the system works and use it with ease. A few other Judges are being introduced to the system. Over time, it is anticipated that they will become familiar with the system and will be able to use it with much ease. Apart from a few, many lawyers are in the same position as the Judges. This is why the pilot has not progressed to formal adoption and application. But that does not mean it will be abandoned. Instead, it will become the system nationwide. That will sooner or later replace the paper-based filing system, the Case Docketing System (CDS).
  2. As may be gathered from the purpose of introducing the IECMS, the Judicial leadership made a deliberate decision to introduce the IECMS system with a view to making case filing and judicial management of cases faster, efficient, and effective. A necessary and critical part of the system is to replace paper filing with electronic filing from anywhere in PNG or elsewhere in the world, without the parties and lawyers physically visiting the Court registries as is the case with paper filing and this way, meet the convenience of parties and lawyers, minimise, or avoid wastage of time and costs to the parties, the Judiciary, and all stakeholders. That will lead us to a modern 21st Century eJudiciary, that is paperless, which saves trees, minimise costs, free up physical space, contribute to environmentally friendly operations and avoid corruption in court case filing and management.
  3. The PNG Judiciary is not alone on the employment and use of IECMS. The system is being applied in full in several other countries worldwide. That includes Rwanda.[5]
  4. Given the fact that not many Judges and lawyers are familiar with the IECMS system, and as an interim measure to enable a smooth transition from paper-based filing to paperless e-filing, parties are allowed to file through a lodgement of “cause forms” or initiating documents, by uploading the relevant documents electronically. A registry officer would then ideally within 48 hours access the document and have it processed.[6] If the document is in order, the matter gets registered, a file number is allocated, sealed, and returned by uploading the sealed documents in the relevant electronic file for the initiating party to access and serve on the defendants or respondents. If, however, the documents lodged are not in order, they would be rejected with reasons given and returned to the initiating party.
  5. As could be gathered from the foregoing, the lodgement of case initiating documents, including election petitions, electronically through the IECMS is being encouraged and promoted by the Judiciary. The IECMS Practice Direction confirms this. Consistent with that piloting of the IECMS system, the Petitioner in this case lodged his petition on 14th September 2022. The case details in the IECMS records for this petition reveals first up the following:

“Case Filed: 14/09/2022 19:23 Case Registered:15/09/2022 09:49”

  1. Then when we turn to the documents that were filed, we find the following:
Petition
Charles Mende / 14/09/2022 19:36
Notice of Petition
Charles Mende / 14/09/2022 19:37
Security Deposit Fee for Election Petition K5000
Charles Mende / 14/09/2022 19:38
National Court Filing Fee - Election Petition Fee K1000
Charles Mende / 14/09/2022 19:38
Seal copy
Kini Mamis(2) / 21/09/2022 18:17
Seal copy
Kini Mamis(2) / 21/09/2022 18:18
Seal copy
Kini Mamis(2) / 21/09/2022 18:18
Seal copy
Kini Mamis(2) / 21/09/2022 18:19

  1. This clearly shows that the Petitioner lodged his Petition together with the Notice of Petition, Notice of Payment of Filing Fee, and Notice of Payment of Security Deposit all at the same time on 14th September 2022 between 19:36 to 19:38. The system therefore noted 14th September 2022 at 19:36 as the date and time when the petition was filed. Formal registration as opposed to filing took place on 15th September 2022 at 09:49, which was the deadline for the filing of the petition. By then, the Petition together with the Notice of Petition, Notice of Payment of Filing Fee, and Notice of Payment of Security Deposit were already lodged and filed with the IECMS system. Only the formal numbering and sealing of the documents took place after the 15thSeptember 2022 on 21st September 2022.
  2. With this I now turn to the question presented, as to when did the petitioner file his petition for the purposes of s. 208 (e) of the Organic Law and rr. 5 and 7 of the EP Rules and s. 209 of the Organic Law? To answer that question, s.217 of the Organic Law dictates that I must allow myself to be guided by the substantial merits and good conscience of the case before me on the facts as presented without regard to legal forms or technicalities, or whether the evidence before me is in accordance with the law of evidence or not. This necessarily requires an adoption and application of the fair, large and liberal interpretation to the term “filed” as used in s. 208 (e) of the Organic Law and rr. 5 and 7 of the EP Rules, s. 209 of the Organic Law and as defined by r. 1 of the EP Rules. In my humble view, the approach by Cannings J in Parkop v. Juffa (supra) is the correct one to adopt and apply to the circumstances of this case. The approach per the decision in Manwau v. Bird (supra) and the rest of the National Court decisions relied upon by the 1st Respondent, with respect, are consistent with the strict approach per Biri v. Ninkama (supra) and that line of cases, which the decision in Hagahuno v. Tuke (No. 2) expressly overturned and is no longer good law.
  3. Regardless of the status of the IECMS Practice Direction, the fact of the matter is that the Judiciary is requiring parties in all civil cases including election petitions going through the Waigani Registry to file their initiating or “cause forms” or petitions by lodging them as defined by r. 1 of the EP Rules. Applying that to an election petition, this is done by a petitioner uploading into the IECMS electronically his or her petition as required by r.10 (3) of the Practice Direction. As already noted, the rest of the process thereafter from formally registering the case, allocating a number, sealing, and returning the sealed documents to a petitioner belongs to the registry officers. A petitioner has no control over the rest of the process. Hence, it is neither fair, nor right to hold a petitioner responsible or cause him or her to suffer for any delays caused by registry officers as was the case here. Consistent with the definition of the word “filed” as defined by r. 1 of the EP Rules and used in s.208(e) Organic Law and rr.5 and 7 of the EP Rules and going by the dictates of s. 217 of the Organic Law as discussed above, I find the petition in this case was filed when the Petitioner uploaded into the IECMS his Petition together with the Notice of Petition, Notice of Payment of Filing Fee, and Notice of Payment of Security Deposit all on the same day on 14th September 2022 between 19:36 to 19:38. That met the requirements of s. 208 (e) and 209 of the Organic Law and rr. 5 and 7 of the EP Rules and hence come within the definition of the word “filed: in r. 1 of the EP Rules. To find otherwise as suggested by the 1st Respondent will take us back to the old Biri v. Ninkama line of authorities that are strict, restrictive, highly legalistic, technical and “nitpicking” which is contrary to dictates of s. 217 of the Organic Law and Hagahuno v. Tuke (No.2).
  4. I make a few additional comments on the requirements of s. 209 of the Organic Law. Firstly, I repeat my earlier observation that, rr. 5 and 7 of the EP Rules, require payment of the filing fee prescribed under r. 6 and the Security for Costs deposit to be paid into the National Court Registrar’s Trust Account and produce evidence of making these payments. Hence, the requirements for filing fee and Security for Costs Deposit needs to be made prior to the filing of a petition to produce evidence of meeting these requirements at the time of filing the petition and not at the same time as filing of the petition, especially when the Registry does not operate as a cash office.
  5. Secondly, I note s.209 was introduced by an amendment to the Organic Law in 2006. That change was brought in due to successful respondents to petitions not being able to recover their costs. In all other litigation, costs are a matter that usually arises at the end of a proceeding, be it substantive or interlocutory. Where the initiating party succeeds, such a party will be entitled to a costs order. The same will apply if a party responding to a proceeding succeeds. As to how much a party thus entitled to costs can recover, is often left for parties to agree and failing any agreement, taxation. Failing any settlement of any agreed or taxed costs, the party entitled to costs will be entitled to seek judgment in the amounts taxed or agreed and enforce it in the usual way of enforcing judgments.[7]
  6. The only time the issue of costs usually comes up earlier than a final decision on a substantive or interlocutory matter is in cases where an application for security for costs is made under Order 14, rr. 24 – 25 of the National Court Rules 1989. Where these rules are employed, the court would usually grant the application in cases where a plaintiff is resident outside Papua New Guinea.[8] In each of these cases, the issue of costs, is considered on a case-by-case basis at the end of a process or when a specific application is made for security for costs.
  7. Given the above position on costs in other litigation, any question as to whether the requirements of s. 209 of the Organic Law has been met, needs to be viewed with much flexibility. This should particularly be the case, where a petitioner has taken all steps necessary to meet the requirement either prior to or as at the time of filing his or her petition. This would accord well with the dictates of s. 217 of the Organic Law as interpreted and applied by the 5-member Supreme Court decision in Hagahuno v. Tuke (No.2). Proceeding on that basis, I have no difficulty in finding in this case, the Petitioner meeting the requirements of s. 209 of the Organic Law when he paid into the Registrar’s Trust Account the required amount of money on 13th September 2023.
  8. For the foregoing reasons, I find no merit in the objection of the 1st Respondent based on ss. 208 (e) and 209 of the Organic Law and rr. 5 and 7 of the EP Rules. Accordingly, I dismiss these grounds of objection.

Objection Based on s. 208 (a).


  1. I now turn to a consideration of the remaining ground of objection based on s. 208 (a) of the Organic Law. Objection on this basis is taken by both the 1st and 2nd Respondents. Going by the Biri v. Ninkama line of cases, both the Respondents submit that the Petitioner has failed to plead the facts he relies upon sufficiently and clearly. They further submit that the Petitioner’s pleadings are convoluted, unclear and goes into pleading the evidence as opposed to pleading the facts disclosing a ground capable of upsetting the outcome of the election of the 1st Respondent. They therefore submit the Petition must be dismissed.
  2. Countering those arguments, the Petitioner submits, his petition clearly pleads facts which disclose through collusion and compromises between certain named counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent, the scrutiny and counting of votes was seriously compromised. He submits further that his pleadings disclose the counting was conducted without proper scrutiny. That resulted amongst others in:
  3. I repeat my discussions on the change of the legal landscape from the one set by Biri v. Ninkama line of cases to the 5-member Supreme Court decision in Hagahuno v. Tuke (No. 2). Included in that repetition is the fact that, none of the Counsels for the Respondents as well as that of the Petitioner assisted with any submission based on Hagahuno v. Tuke (No.2). The change was completely from one of strictness, or rigidity with technicalities and nitpicking in the application of the substantive and the procedural law in dealing with election petitions to one of being fair, liberal and being flexible, thereby, going by the dictates of s. 217 of the Organic Law. However, that decision did not remove the need for a petitioner to ensure the requirements of s. 208 (a) to (d) and s. 209 of the Organic Law are met. As I pointed out in the Hagahuno v. Tuke (No.2) decision, what matters is:

“As long as a petitioner addresses and or meets all of these [ss.208 and 209] 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 of 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 can only be raised against a petition which on its face fails to meet any of the requirements under s. 208 (a) to (d) and 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.”

(Underlining mine)


  1. Applying the law to the present case, the relevant question to ask is, does the Petitioner disclose in his pleadings a ground that can overturn the election outcome for the Kundiawa-Gembogl Open Electorate in the 22NGE? I agree with learned Counsels for the Respondents that the pleadings appear to be convoluted, storytelling and pleading the evidence rather than succinctly pleading the facts disclosing his ground or grounds for his Petition. But is that a good reason to uphold the objections as to the competency of the Petition and have it dismissed? To answer that question, we need to answer another related question of, has the Petitioner pleaded any ground capable of upsetting the relevant election result?
  2. I accept submissions of all learned Counsels that to answer these questions I must read the Petition as a whole. If at the end of doing so, the Court is not able to find at least one ground capable of upsetting the relevant election outcome, the objections must be upheld, and the petition must consequently be dismissed. If, however, the Court finds at least one ground capable of upsetting the election outcome is presented, the objections will be without merit and must therefore be dismissed with the Petition allowed to proceed to trial.
  3. After carefully reading the matters pleaded and the respective Counsel’s submissions I find the Petition, clearly discloses the following:
  4. In summary, the Petitioner alleges that, through collusion and compromises between certain named counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent, the scrutiny and counting of votes was seriously compromised. He alleges the counting was conducted without scrutiny or proper scrutiny, which was orchestrated to affect the result of the elections by amongst others:
  5. These are serious allegations. They clearly amongst others, point to a possible breach of the various provisions of the Constitution, the Organic Law and the Election Regulations as pleaded in the petition. Each National General Elections are getting worse and worse. This is contributed to by the Electoral Commission and the persons the Commission appoints as returning officers and other polling officials who are not impartial and are instead, hijacking election outcomes for their chosen winner. Various provisions of the Constitution starting with s. 50, various provisions of the Organic Law, the Election Regulations the Criminal Code and the Summary Offences Act and others are being repeatedly breached by those aspiring or wanting to enter the peoples honourable house, the National Parliament.
  6. The above bad development has been encouraged by the ready dismissal of election petitions applying the strict approach established by Biri v. Ninkama and its line of cases. That tide has now turned by the decision in Hagahuno v. Tuke (No. 2). Where the pleadings disclose possible breaches of the Constitution, the Organic Law and other laws leading to an election outcome, the Court should not easily and readily dismiss such a petition. Instead, the petition must be allowed to go to trial where all parties will have the opportunity to go into evidence and based on the evidence thus called, the Court will come to a decision on the substantive merits of the case. Taking such an approach will let all person’s intent on breaking the relevant provisions of the Constitution, the Organic Law and other laws to be on notice that their conduct will be open for scrutiny by the Courts and any election victory they secure illegally and or in breach of the laws of the land, will be undone. With such knowledge they will hopefully be encouraged not to breach the relevant provisions of the Constitution, the Organic Law and other laws and have respect for the due process of elections and generally the rule of law. In that way, they seek to be elected lawfully, openly, and honestly through fair and proper run elections from nominations to ascertaining the results through proper scrutiny of votes and thereby earn the title of an honourable member of Parliament.
  7. The pleadings in the present case, sufficiently discloses the various possible breaches alleged. They suggest the level of illegal conduct and unacceptable conduct at counting and ascertaining of election results by improper scrutiny and ascertainment of results of elections has worsened. Only a trial will establish the truth or otherwise of these allegations. Dismissing the petition as called for by the Respondents will deny the people of Kundiawa-Gembogl Open Electorate and the nation the opportunity to get to the truth or the bottom of the allegations.

80. For these reasons, I find the objection based on s. 208 (a) is without merit. Accordingly, I order a dismissal of that ground as well.


81. The final result therefore is, I have decided to dismiss all grounds of the Respondents objections. The petition will thus proceed to trial in accordance with orders earlier issued with appropriate modifications as may be required. Costs of the objections are ordered to follow the event against the Respondents to be taxed, if not agreed.


___________________________________________________________
Emmanuel Layers: Lawyers for the Petitioner
Gileng & Co Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent


[1] See Annexure GG2 to Affidavit of Goiye Gileng filed on 15 June 2023
[2] Doc number 4 on the Court file: See Annexure GG3 to Affidavit of Goiye Gileng filed on 15 June 2023.
[3] See Hagahuno v. Tuke (No. 1).
[4] https://legal-dictionary.thefreedictionary.com/filed. See also the definition by Readers Digest Word Power Dictionary, Readers Digest Association Limited, London, 2001, p.356.
[5] For more information on this go to for example, https://old.judiciary.gov.rw/fileadmin/IECMS_Info/About_IECMS_-Final.pdf
[6] See r.10 (3) of the Practice Direction.
[7] See Order 22 of the National Court Rules 1989.
[8] See for example, Driver v. Swanson [1977] PNGLR 30 and Yarlett v. New Guinea Motors [1984] PNGLR 155.

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