N10985

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 14 OF 2022 [IECMS]

IN THE MATTER OF A DISPUTED RETURN FOR
THE KOMPIAM AMBUM ELECTORATE

BETWEEN:
SAMSON PHANNAPHEN
Petitioner

AND:
SIR JOHN THOMAS PUNDARI
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani:  Dingake J
2024:  11th June, 23rd August

ELECTIONS - Filing of Petition and Payment of Security – Section 209 speaks for itself – it must be at the same time – Not different dates – The requirement is strict – National Court bound by decisions of Supreme Court – No discretion for National Court to relax the provisions of section 209 of the Organic Law

 Held
 The security deposit having been paid on a different date to the date the petition was filed renders the petition incompetent.

Cases Cited:
Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Sai-sailon Beseoh v Yuntivi Bao (2003) N2348
Wesley Ora Raminai v Maino Pano (2023) N10248 
Charles Kassman v Justin Tkatchenko (2023) N10213
Evele Kala v Sir Puka Temu (2023) N10364
Jean Parkop v Gary Juffa (2023) N10281
Kuberi Epi v Tony Farapo & Electoral Commission (1983) SC247

Counsel: 
Mr. Samson Phannaphen, in person   
Mr. Paul Othas, for the First Respondent
Mr. Ray William, for the Second Respondent

RULING

23rd August 2024

1.	DINGAKE J:	INTRODUCTION: This is my Ruling on the First Respondent’s Notice of Objection filed on the 4th of April, 2024, that seeks to have the petition dismissed for being incompetent.

Grounds

2.	The First Respondent raised four (4) grounds for his objection, namely, (a) that the Petitioner failed to follow the forms set out in the Election Petition Rules (EPR) in his petition, (b) that the petitioner failed to set out the facts relied on to invalidate the election or return by Section 208(a) of the Organic Law, (c) that the Petitioner failed to set out the grounds (not the facts) upon which he relies to invalidate the election and (d) that the petitioner failed to deposit security for costs required by Section 209 of the Organic Law “at the time of filing the petition”.

Background Facts

3.	It is common cause that the Petitioner and the First Respondent were both candidates in the 2022 National General Elections contesting the Kompiam Ambum Open Electorate in the Enga Province and that at the end of the process the First Respondent was declared the winner, by the returning officer on the 24th of July, 2022.

4.	The Petitioner was aggrieved by the election results and on or about the 1st of September 2022, filed a petition with this Court, utilizing the Integrated Electronic Case Management System (IECMS). It would also seem that receipt for costs evidencing the deposit was presented to the Deputy Registrar Baka Bina on the 1st of September 2022.

Evidence

5.	The evidence in support of the various contentions of the parties is captured in the Affidavits filed of record. The dispositive facts with respect to the dates when the Petitioner paid the deposit and filed the petition are not in dispute. The parties agree that the security deposit was paid on the 31st of August, 2022, whilst the petition was filed on the 1st of September, 2022.

Submissions

6.	On the date set for argument of this matter, learned Counsel for the First Respondent, Mr. Paul Othas, elected to start with ground (d) outlined above, namely whether or not the Petitioner complied with the strict requirements of Section 209 of the Organic Law.

7.	According to learned Counsel for the First Respondent, Mr. Paul Othas, the petition is incompetent as the security deposit was not paid on the same day the petition was filed.

8.	Essentially, the Petitioner contends that the security for costs, in the amount of Five Thousand Kina (K5,000.00) was not paid at the time the petition was filed but was paid prior to the petition being uploaded into the IECMS.

9.	The Second Respondent agrees with the First Respondent’s submissions and prays that the petition be dismissed.

10.	The Petitioner, on the other hand, argues that it complied with Section 209 of the Organic Law as the petition was filed on the 1st of September 2022, and the security deposit was paid on 31st August, 2022.

11.	Before I undertake a discussion and analysis of the law, it is convenient and material to reproduce the provisions of Sections 209 and 210 of the Organic Law and Rule 1 of Election Petition (EP) Rules on the definition of “filed”, as this will frame, shape and inform the general direction of my consideration of the issue in contention.

The Legal Framework

12.	Section 209 of the Organic Law provides that:

“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.”

13.	Section 210 provides that:

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

14.	Rule 1 defines “filed” as follows:

“1.	In these Rules, unless the contrary intention appears:

“filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schedule 1, and sealed with the seal of the Court and endorsed with an election petition number.”

Common Cause

15.	In this case the dispositive facts are not in dispute. The parties agree that the security deposit was not paid on the same day the petition was filed.

16.	Having regard to the common cause facts it seems to me that two (2) issues fall for determination, namely:

i)	Is the payment of security deposit in accordance with Section 209 of the Organic Law strictly required to be paid at the time of the filing of an election petition?

ii)	If the answer to the preceding question is in the affirmative, does an earlier payment of the security deposit before the filing of an election petition render the election petition incompetent.

Consideration

17.	It is convenient in the discussion of the legal framework to discuss the meaning of “filed” in Rule 1 of EP Rules. 

18.	The position of the law is that filing of a petition is complete when the petition is lodged, sealed and endorsed with an election petition number (Paru Aihi v Peter Namea Isoaimo (2015) SC1598, Sai-Sailon Beseoh v Yuntivi Bao (2003) N2348, Wesley Ora Raminai v Maino Pano (2023) N10248; Charles Kassman v Justin Tkatchenko (2023) N10213).

19.	I have already reproduced the legal framework relevant to the determination of the issue of whether the Petitioner’s application complies with Section 209 of the Organic Law.

20.	The operative words of Section 209, being “at the time of filing the petition” have attracted different interpretations by the National Court.

21.	In the case of Evele Kala v Sir Puka Temu (2023) N10364, in dismissing a petition for want of compliance with Section 209 of the Organic Law, I held that security deposit cannot be made prior to or after filing the petition.

22.	Ever since that decision, and acutely mindful of the strictness of that approach, I have kept an open mind on whether it is possible to relax the strictness of Section 209 according to law and looked forward to such an opportunity or “opening” that is in law permissible.

23.	Consistent with the imperative of a judge to always keep an open mind, I reflected further on the different and refreshing perspective by my brother Cannings J, in Jean Parkop v Gary Juffa (2023) N10281, in which he held that the phrase “at the time of filing the petition” does not mean that the security deposit must be filed on the same day, especially having regard to Schedule 1.5(2) and Section 158(2) of the Constitution.

24.	Learned Counsel for the First Respondent, Mr. Paul Othas has submitted that the interpretation of Cannings J is not correct and that I should not follow it.

25.	At paragraph 39 of the above decision, Cannings J elaborates as follows in justification of the “fair and liberal” approach he prefers:

“I consider that it would give proper and paramount consideration to the dispensation of justice, and it would give 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.”

26.	My brother Gavara-Nanu J, in the case of Moses Manwau v Hon. Allan Bird & Electoral Commission (2023) N10249 at paragraph 18 of Manwau v Bird, supra, stated that:

“The operative words in s. 209 are “at the time of filing the petition”, (the petitioner 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 than their plain and ordinary meaning, which is, the prescribed security for costs in the sum of K5,000.00 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 rise to serious absurdity because the Court will then be legislating rather than giving the law its intended meaning by the legislature and applying it.”

27.	In the case of Evele Kala v Sir Puka Temu (2023) SC2453, my brother Anis J, at paragraph 18, weighed in, on the interpretation of Section 209 of the Organic Law and stated that:

“18.  These cases interpret s.209 to mean that at the time of filing a petition, the security for costs, and not the receipt or evidence of its payment, must be paid or deposited with the Registrar of the National Court. The case law states that these two actions or acts (i.e., filing of petition and payment of the security) must occur on the same day together or at the same time. The case law also states that a petition that is filed without the payment of security for costs is incompetent, and it cannot be regarded as a petition at all that is filed in compliance with ss 208, 209 and 210 of the OLNLLGE. Yagi J in Johnson Tuke Ibo, in my view, clarifies the confusion on what is payment and deposit of receipt with his simplistic but pivotal consideration when his Honour at para 38 of his decision stated, a receipt is merely documentary evidence of payment. It is not payment per se.”

28.	Given the differing interpretation by the National Court on the meaning of “at the time of filing the petition” in Section 209, and sympathetic as occasionally I am to a liberal approach, I find that there is no scope for the National Court, to adopt any other approach, other than a strict interpretation, consistent with the binding authorities of the Supreme Court, in a number of cases, such as: Epi v Tony Farapo & Electoral Commission (1983) SC247, Paru Aihi v Peter Namea Isoaimo (2015) SC1598.

29.	I must also indicate that I have read the case of William Hagahuno v Johnson Tuke (2020) SC2018, with profit ad admiration, particularly on the question of “fair and liberal meaning” and “paramount interests of justice”, and its primary teachings are, inter alia, that: (a) Section 217 cannot cure an incompetency premised on Section 209; and (b) that the requirements of Section 209 must strictly be complied with.

30.	Before concluding my Ruling, let me say that I seriously considered invoking the powers of this Court under Section 18(2) of the Constitution to refer the interpretation of s.209 of the Organic Law, especially the phrase: “At the time of filing the petition” to the Supreme Court for interpretation, but having regard to the material authorities of the Supreme Court, discussed earlier, there would be no utility to make such reference and I respectfully decline to do so.

Conclusion

31.	In summation, having regard to the authorities, I am not persuaded that the Petitioner has complied with Section 209 of the Organic Law, as the security deposit and petition were lodged and or filed on different dates. In other words, security deposit was not filed at the time the petition was filed.

32.	Having found that the petition is and or was incompetent for want of compliance with s.209 of the Organic Law, I find that it is not necessary to decide other grounds relied upon by the First Respondent.

33.	It is plain on the authorities that failure to pay security deposit on the same day as the petition as required by Section 209 renders the petition incompetent.

34.	Section 210 of the Organic Law, says a petition that is non-compliant, inter alia, with Section 209 cannot proceed further.

35.	In the result, I make the following orders:

1)	The objection to competency under s.209 of the Organic Law is upheld.

2)	The petition is dismissed in its entirety pursuant to s.210 of the Organic Law.

3)	The Petitioner’s security for cost deposit in the sum of Five Thousand Kina (K5,000.00) paid into the National Court Registrar’s Trust Account is to be paid to the First and Second Respondents in equal amounts.

4)	The Petitioner is to pay the First and Second Respondents’ cost of and incidental to the proceeding on party-party, to be taxed, if not agreed.

5)	The Registrar of the National Cout shall forthwith take appropriate steps to comply with and give effect to the requirement of s.221 of the Organic Law.

6)	The time for the entry of the order is abridged to the time of settlement by the Registrar which shall take place forthwith.

__________________________________________________________________
Lhyrn Lawyers: Lawyer for the Petitioner		 
Paul Othas Lawyers: Lawyer for the First Respondent
Niugini Legal Practice: Lawyer for the Second Respondent