SC2459
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 52 OF 2023 (IECMS)

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION
And in the Matter of Part XVIII of the Organic Law on National and Local Level Government Elections

BETWEEN:
PETER NUPIRI
Applicant

V

WILLIAM TITPE POWI
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Anis J
2023: 17th August, 18th September

APPLICATION FOR LEAVE TO REVIEW – s.155(2)(b) – Constitution – Leave sought premised on s.220 – Organic Law on National and Local-level Government Elections - Intended review against final decision of the National Court that dismissed election petition – dismissal premised on notice of objection to competency of petition – challenge raised was on non-compliance with s.209 of the Organic Law on National and Local-level Government Elections – payment of security for costs made on a separate date to the date of filing of petition – objection ground upheld by the Court below – consideration of criteria for grant of leave to review election petition – whether leave should be granted – ruling

Cases Cited:
Peter Nipiri v. William Powi and Electoral Commission (2023) N10398
Avia Aihi v The State [1981] PNGLR 81
Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345
Eric Ovake v. Bony Oveyara (2008) SC935
Application by Herman Joseph Leahy (2006) SC855
Application of Ludwig Patrick Shulze (1998) SC572
Kasap v Yama [1988-89] PNGLR 81
Kelly Kalit v John Pundari [1998] SC569
Application by Ben Semri (2003) SC723
Epi v. Farapo and Electoral Commission (1983) SC247
Paru Aihi v Peter Namea Isoaimo (2015) SC1598
Delba Biri v Bill Ninkama [1982] PNGLR 342
Ginson Goheyu Soanu v Bob Dade (2004) SC763
Jimson Sauk v Don Pomb & Electoral Commission (2004) SC769
William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018
Evele Kala v. Sir Puka Temu and Electoral Commission (2023) SC2453
Tulip Wesu Dola v. Hon Francis Alua and Electoral Commission (2023) N10464

Counsel:
E Waifaf, for the Applicant
A Baniyamai, for the First Respondent
H Nii, for the Second Respondent

RULING

18th September, 2023

1.	ANIS J:  What returned before me on 17 August 2023 was the applicant’s Application for Leave to Review filed 19 July 2023 (leave application).  The application was contested by the respondents, and having heard it, I reserved my decision to a date to be advised.

2.	This is my ruling.

BACKGROUND

3.	The applicant, the first respondent, and 17 others were contestants in the 2022 General Elections for the Southern Highlands Provincial Electorate Seat (SHPE).  On 25 August 2022, the second respondent declared the first respondent as the wining candidate for the SHPE under “Special Circumstances” pursuant to s.175(1A)(b) of the Organic Law on National and Local-level Government Elections (OLNLLGE/Organic Law).  The applicant, aggrieved by the decision, filed an election petition on 24 September 2022 (Petition).  In the Petition, the applicant alleged illegal practices and unlawful payments against the first and second respondents during the 2022 General Elections.  He claimed that their actions were, amongst others, criminal in nature and thus breached s.97B of the Criminal Code and s.215(3)(a) of the OLNLLGE.  

4.	On 20 October 2022, the respondents filed 2 notices of objections to competency of the Petition.  The first respondent later sought and was granted leave to amend his notice of objection on 3 July 2023 (Objection).  

5.	The Objection was heard on 6 July 2023.  The main contest concerned the filing of the Petition and the payment of the Security for Costs (Security).  It was not disputed that the Security was paid on 15 September 2022 and that the Petition was filed on 23 September 2022 together with the receipt of payment of the Security.  The respondents had argued that because the Petition and the Security were filed and paid respectively on separate dates, that that had infringed s.209 of the OLNLLGE therefore that the Petition was incompetent by virtue of s.210 of the Organic Law thus should be dismissed as incompetent.  The applicant, on the other hand, had argued in response that he did not breach s.209 because the Petition was lodged together with the receipt of the Security on 23 September 2022, which he claimed was compliant with s.209.  He had argued therefore that the petition was competent, and that the Objection should be dismissed.

6.	On 7 July 2023, his Honour Miviri J handed down his decision.  His Honour upheld the Objection and dismissed the Petition as incompetent.  The decision is unreported, that is, Peter Nipiri v. William Powi and Electoral Commission (2023) N10398.  The applicant was aggrieved by the decision, so, on 19 July 2023, he filed the leave application.

INTENDED GROUNDS FOR REVIEW

7.	The applicant pleads in his leave application, 3 grounds of review that he intends to raise with the review Court if leave is granted.  I summarise them herein as follows:

(i)	Error on interpretation and application of Section 209 of the OLNLLGE;

(ii)	Security for Costs of K5,000 was deposited with the Registrar of the National Court in compliance with s.209 of the OLNLLGE;

(iii)	Section 209 is not offended by notices issued by the Registrar of the National Court after filing the Petition via the Integrated Electronic Case Management System (IECMS).

8.	I also set out the applicant’s proposed issues and reasons why he says leave should be granted, as pleaded in the leave application, as follows:

3.  THE ISSUES INVOLVED
3.1	The issues that arise from the ruling of the primary judge delivered on 7th July 2023 are:
i.	Whether the Primary Judge erred in law and mixed facts and Law to apply the strict approach without having any regard to Sections 217 and 222 of the Organic Law and Schedule 1.5 and Section 158 (2) of the Constitution to find that the Petitioner offended Section 209 of the Organic Law by paying the Security Deposit on 15th September 2022, which was 8 days early and filed the Petition on 23rd September 2022 despite the Petitioner complying with Rules5, 6 and 7 of the Election Petition Rules 2017 as Amended and Rules 11, 12 and 13 of the  Practice Directions (IECMS) No. 1 of 2022?

ii.	Whether a Petitioner breaches Section 209 of the Organic Law when a Security Deposit and the National Court Filing Fee are paid few days earlier and all (the Petition, Filing Fee Receipt and Security Deposit Receipt) are filed together on the date of filing within the 40 days from the date of the declaration of the wining candidate, pursuant to Section 208 (e) of the Organic Law?

iii.	Whether the Petitioner breached Section 209 of the Organic Law when a Security Deposit and National Court Filing Fee receipts were filed with the Petition in compliance with Rules 5, 6 and 7 of the Election Petition Rules 2017 as Amended and Rules 11, 12 and 13 of the Practice Directions (IECMS) No. 1 of 2022 and the Forms Issued by Registrar/ Assistant that are NOT prescribed by the Organic Law, Election Petition Rules 2017 as Amended and the Practice Directions (IECMS) No. 1 of 2022 and Practice Directions(IECMS) No. 1 of 2022 namely Notice of Filing Fee and Notice of Security Deposit are done only for administrative convenience of the Registry Staff of Election Petition Track can be a reason to penalize the Petitioner and hold as offending Section 209 of the  Organic Law to determine the Petition?

iv.	Whether the Primary Judge erred when he dealt with the issue of late filing of Notices of National Court Filing Fee and Notice of Security Deposit for Costs dated 26th September 2022 as per the Court file, which were matters not properly pleaded in the Amended Notice of Objections filed 3rd July 2023 or any of the Notice of Objections filed by the Respondents and argued before the Court as competency grounds?

v.	Can objections against Petition be raised at any time between filing and service of the Petition until or during trial as decided by the Supreme Court in  Amet v. Yama (2010) SC1064 (Salika, DCJ & Batari, J) and is relevant to present circumstances and time after Rule 12 of the  Election Petition Rule 2017 as Amended superseded the Election Petition Rule 2002?

vi.	Whether a special circumstances declaration of a winning candidate made by the Second Respondent under Section 175 (1A) (b) of the Organic Law can be subject to the requirements of Section 208 (a) and (b) of the  Organic Law considering the special nature of the election dispute and on the basis that this is a challenge against the declaration of the candidate without completing the scrutiny and counting of election results under the Limited Preferential System of Elections prescribed by the Organic Law?

4.  REASONS WHY LEAVE SHOULD BE GIVEN
4.1	Section 220 of the Organic Law on National and Local-Level Government Elections (“the Organic Law”) provides that a decision of the National Court [Court of Disputed Returns] is final and the only avenue available for the Applicant is the review procedure under Section 155(2)(b) of the Constitution.
4.2	The Applicant being aggrieved by the decision of the primary judge described in paragraph s 1.1 above. However, the Applicant is precluded by Section 220 of the Organic Law and hence a review under Section 155(2)(b) of the Constitution is the only avenue available to the Applicant.
4.3	The proposed grounds of Application demonstrate that there are more important and meritorious points of law to be determined, particularly, on the issue of early payment of security deposit was never considered and determined by the full Supreme Court.
4.4	It is in the interest of justice that leave be granted so the Supreme Court, a 5 member, can consider and determine the above proposed grounds of the Application.

SECTIONS 208, 209, 210 & 217

9.	Sections 208, 209, 210 and 217 of the OLNLLGE state:

“208.  REQUISITES OF PETITION.

A petition shall–

(a)	set out the facts relied on to invalidate the election or return; and
(b)	specify the relief to which the petitioner claims to be entitled; and
(c)	be signed by a candidate at the election in dispute or by a person who was 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 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).

209.  DEPOSIT AS SECURITY FOR COSTS.

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.

210.  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.”
……

217.  REAL JUSTICE TO BE OBSERVED.

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

CRITERIA FOR GRANT OF LEAVE – EP MATTERS

10.	Case law appears settled on what criteria to apply when considering an application for leave to review a final decision of the National Court on election petition.  

11.	Section 220 of the OLNLLGE states that, A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.  This section eliminates the rights of parties in election petition matters to appeal directly to the Supreme Court. 

12.	However, s.155(2)(b) of the Constitution makes it possible for one to seek review against a decision of the National Court that arise out of an election petition that is filed under PART XVIII. – DISPUTED ELECTIONS, RETURNS, ETC. of the Organic Law.  It reads, The Supreme Court … has an inherent power to review all judicial acts of the National Court.  The genesis of s.155 (2) (b) is to be found in Avia Aihi v The State [1981] PNGLR 81.  Moving on, Division 2, Order 5 of the Supreme Court Rules 2012 as amended (SCR) sets out the appeal process and requirements for election petition matters.  Rule 9 in particular states that, An application for an election petition review in respect of a decision referred to under Rule 8 lies to the Court with leave only.  

13.	The criteria for the grant of leave to review of this nature are summarised by Hartshorn J in the case of Sir John Pundari v. Peter Yakos and Electoral Commission (2023) SC2345.  His Honour adopted and restated the 2 criteria that were applied by Injia DCJ, as he then was, in Eric Ovake v. Bony Oveyara (2008) SC 935.  His Honour also added an additional criteria.  I summarise them herein as follows:

(a)	First, insofar as the application relates to a point of law, the only criteria to be satisfied is that there is an important point of law to be determined and that it is not without merit: Application by Herman Joseph Leahy (2006) SC 855; Application of Ludwig Patrick Shulze (1998) SC 572.

(b)	Second, insofar as the application relates to facts, there is a gross error clearly apparent or manifested on the face of the evidence before the Court: Kasap v Yama [1988- 89] PNGLR 81, Application of Ludwig Patrick Shulze (1998) SC572, Kelly Kalit v John Pundari [1998] SC 569; or where on the face of the finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC 723; and such that a review of the findings of fact is warranted; or

(c)	in any event (or regardless), whether there are exceptional circumstances showing a manifestation of substantial injustice and that a review is warranted in the interests of justice.

CONSIDERATION

14.	I note the submissions made by the parties.

15.	With that, I make the following observations.  I observe that the applicant’s main intended contention for the review Court is premised on the criteria important point of law and as a consequence of that, he also intends to impress upon this Court under the third criteria that there are exceptional circumstances that show substantial injustice that interest of justice demands or requires that leave should be granted.

16.	I note that the material facts are not in dispute.

17.	The applicant intends to primarily argue that if a petitioner files a receipt of payment of his or her security for costs, together with an election petition, that it shall constitute compliance with (and not in breach of) the mandatory requirement of s.209 of the OLNLLGE.  If leave is granted, the applicant intends to bring his interpretation of s.209 to the review Court to consider and determine.

18.	So, I ask myself this question.  “Is that an important point of law that should require further consideration by the review Court thus leave should be granted.”  I would answer this question in the negative.  In so doing, I would refer to a recent case, that is, Evele Kala v. Sir Puka Temu and Electoral Commission (2023) SC2453.  In that case, I adopt herein what I had said therein at part of para 17, and para 18:

17….The Supreme Court first addressed this issue 30 years ago regarding the application of s.209, that is, in Epi v. Farapo and Electoral Commission (1983) SC247.  Supreme Courts later have followed or ruled similarly in these cases, Paru Aihi v Peter Namea Isoaimo (2015) SC1598, Delba Biri v Bill Ninkama [1982] PNGLR 342, Ginson Goheyu Soanu v Bob Dade (2004) SC763, and Jimson Sauk v Don Pomb Polye & Electoral Commission (2004) SC769.  Recent National Court decisions that addresses this point point include Moses Manwau v. Hon Allan Bird and Electoral Commission (2023) N10249 and Johnson Tuke Ibo v. William Hagahuno and Electoral Commission (2023) N10322.  

18.	 These cases interpret s.209 to mean (paraphrase/summarise) 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.

19.	The material facts in Evele’s case are similar to the present case.  The applicant in that case filed his security for costs 7 days earlier to the date he filed his petition.  The trial Court, upon hearing a notice of objection to competency of the petition, dismissed the petition.  The trial Judge upheld the submissions of the first respondent on the main premise that the filing of the petition and the payment of the security for costs, had occurred on different dates and time thus breached of s.209 of the OLNLLGE.

20.	The contentions by the parties herein are very similar as I have summarised above earlier.

21.	I therefore do not see nor find the intended arguments by the applicant raised in his proposed grounds of review, to constitute important points of law that are not without merit.

22.	The applicant also intends to bring the review Court’s attention to the application of s. 217 of the OLNLLGE and determine whether it should have been applied to cure defects or the uncertainties and thus whether the trial Judge erred in law in that regard.  In consideration, I refer to the Supreme Court case of William Hagahuno v. Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018.  At paras 68 and 69, his Honour Kandakasi DCJ, stated and I quote:

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) 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 and bold lettering mine]

23.	When I consider the undisputed facts, I note that the applicant herein paid the Security, as required under s.209, 8 days prior to him lodging his Petition.  He paid K5,000 into the National Court Trust Account held at Bank South Pacific Ltd, on 15 September 2022.  Then on 23 September 2022, the applicant filed his Petition with the receipt of payment of the Security through the Integrated Electronic Case Management System (IECMS).  

24.	I will adopt herein what I have stated in Evele’s case at para 23 as follows:

In applying Hagahuno’s case, on the face of the petition, the serious defect or flaw is the separate filing dates (i.e., payment of security and filing of the petition) or the occurrence of the 2 separate events, which, in my view, cannot be cured even by the power that is bestowed upon the Court by s.217 of the OLNLLGE.  No amendments or exercise of discretion will alter the fact that the security for costs and the petition were made and filed respectively at different dates.  Let me also say this.  Section 217 does not give any power to a National Court judge to, in the exercise of his or her discretion under it (i.e., s.217), override other provisions in the OLNLLGE such as ss 208 and 209.  The requirements of ss.208 and 209 are mandatory and must be strictly complied with and that is that.

25.	I also find against the applicant on the intended question of law that he intends to raise if leave is granted, that is, in relation to the application of s.217 under the circumstances of the case.

26.	In summary, I do not see an important point of law that arises from these proposed grounds that should warrant a review.  The facts also do not support this argument to say that it would be a worthwhile consideration for hearing before a review Court.  In regard to the applicant’s intention to ask the review Court to consider the Registrar’s action after the lodgement of the petition through the IECMS, I make these observations.  First, I note that this was not a judicial review challenge on the actions of the Registrar by the applicant.  The primary cause of action was an election petition challenge.  And the jurisdictional challenge that was raised and that was upheld by the trial Judge concerned compliance or want of it by the petitioner, of ss.208(e) and 209 of the Organic Law.  My second observation is this.  The proposed point of law may be considered as subsidiary compared to the first 2 proposed grounds of review.  I have, however, refused them as important points of law, thus this proposed ground of review becomes frivolous or shall follow suit.

27.	In regard to the third criteria, I must say that I find no exceptional circumstances herein that should warrant a review of this matter.  What the applicant is seeking to review which he considers as important points of law, have been established in the case law and have been in existence for decades.  I therefore do not find that a review is warranted in the interest of justice.  

28.	I will also say this in ending.  Section 209 is express.  It is not ambiguous.  An applicant who wishes to be heard on an election petition must, amongst others, follow this provision, that is, the applicant must, on a single day within the 40 days required period, (i), first pay the K5,000 security for costs, (ii), then lodge or file the petition together with the receipt of payment of the security for costs.  The 2 events (i.e., payment of security for costs and lodging the petition with the receipt of payment of security) need not occur instantaneously.  However, they must occur on the same day together.  If payment is made separately directly into the National Court Trust Account and a receipt is produced, the receipt and the petition must be lodged together on the same day that payment is made to the bank, whether it be through IECMS or otherwise.  See case: Tulip Wesu Dola v. Hon Francis Alua and Electoral Commission (2023) N10464 at paras 26 and 27).  An applicant must not attend to the 2 events on separate dates because to do so will constitute a breach of s.209, and a petition that is lodged with this deficiency shall not constitute a valid petition that is filed under ss.208(e) and 209 for it to proceed to a hearing under s.210, and it shall be incompetent.  

29.	Further, practice directions or Court rules must follow the law or provisions of the OLNLLGE and not the other way around.  And so, if an applicant fails to comply with the express requirement of s.209, arguments such as (i), meritorious petition, (ii), Courts to take a liberal approach, (iii), reliance on s.217 or (iv) claim that security for costs was nevertheless filed within 40 days either before or after the date the petition was lodged, are inconsequential and frivolous. 

SUMMARY

30.	In summary, I will refuse to grant leave in regard to the applicant’s leave application.

COST

31.	A cost order is discretionary.  I will order costs to follow the event.

ORDERS OF THE COURT

32.	I make the following orders:

1.	The applicant’s Application for Leave to Review filed 19 July 2023 is refused.

2.	The applicant shall pay the respondents’ costs of the application on a party/party basis to be taxed if not agreed.  Security deposit paid by the applicant shall be used to offset costs incurred by the respondents as ordered.

The Court orders accordingly.
________________________________________________________________
Edward Waifaf:	Lawyers for the Applicant
Baniyamai:	Lawyers for the First Respondent 
Harvey Nii:	Lawyers for the Second Respondent