In The Disputed Returns for The Kainantu Open Electorate; Sai–Sail Beseoh v Yuntivi Bao and The Electoral Commission of PNG (2003) N2348

• Jurisdiction: Papua New Guinea
• Judge: Injia J
• Judgment Date: 10 March 2003
• Court: National Court
• Citation: (2003) N2348
• Docket Number: In the Organic Law on National and Local–level Government Elections
• Year: 2003
• Judgement Number: N2348

Full Title: In the Organic Law on National and Local–level Government Elections; In The Disputed Returns for The Kainantu Open Electorate; Sai–Sail Beseoh v Yuntivi Bao and The Electoral Commission of PNG (2003) N2348

National Court: Injia J

Judgment Delivered: 10 March 2003

1 National Election—Petition disputing election—Objection to Competency—Filing of Petition—Meaning of "Petition shall be filed" in s208(e) of the Organic Law on National and Local–level Government Elections—Whether payment of filing fee of K500.00 required by r4 of the National Court Election Petition Rules 2002 should be made within the 40 day period prescribed by s208(e)—Organic Law on National and Local–level Government Elections, s208(e), s210.

2 National Election—Petition—Pleading of relevant facts under s208(a) of the Organic Law on National and Local–level Government Elections—Necessity to plead if "voters" who were denied voting rights as a result of variation of polling schedule were "electors"—Organic Law on National and Local–level Government Elections, s115(1), s115(2), s117, s130(1) and s130(2); s218(1).

3 Holloway v Ivarato [1988] PNGLR 99, SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Daniel Tulapi v Charles Luta (2000) SC653 and Kuberi Epi v Tony Farapo (1983) SC247 referred to

___________________________

N2348

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 01 OF 2002 (EHP)

In the Organic Law on National and Local-Level Government Elections

In the Disputed Returns for the Kainantu Open Electorate

Between:

SAI-SAIL BESEOH

-Petitioner-

And:

YUNTIVI BAO

-First Respondent-

And:

THE ELECTORAL COMMISSION OF PNG

-Second Respondent-

KAINANTU : INJIA, J.

2003 : March 3, 5,10

National Election – Petition disputing election – Objection to Competency - Filing of Petition- Meaning of “Petition shall be filed”in S.208(e) of the Organic Law – Whether payment of filing fee of K500.00 required by rule 4 of the National Court Election Petition Rules 2002 should be made within the 40 day period prescribed by S.208(e) – Organic Law on National and Local-Level Government Elections, S.208(e), S.210.

National Election – Petition - Pleading of relevant facts under S.208(a) of the Organic Law - Necessity to plead if “voters” who were denied voting rights as a result of variation of polling schedule were “electors”- Organic Law on National and Local-Level Government Elections, S115(1), (2), S117, S130(1) & (2; S218(1).

Cases Cited in the Judgement

Delba Biri v Ninkama [1982] PNGLR 342

Daniel Tulapi v Charles Luta & 2 others sc 653(2000)

Kuperi Epi v Tony Farapo & another sc 247(1982)

K. Pilisa for the Petitioner

A Furigi for the First Respondent

I. Mileng for the Second Respondent

10 March 2003

INJIA, J.: Both respondents object to the competency of the remaining grounds of the Election Petition filed by the Petitioner under s.206 of the Organic Law on National and Local-Level Government Elections (“OLNE”), on 28 August 2002 on two grounds, namely:-

1. The Petitioner fails to comply with the mandatory requirements of OLNE s.208(e) because the petition was “filed” outside the 40 days, in that although the petition itself was filed within time and security for costs deposit was also paid within time, the filing fee of K500.00 was paid outside the 40 days.

2. The facts pleaded in Clause 1.1 and 1.2 fail to comply with the mandatory requirements of OLNE s.208(a) to plead facts.

The objections are taken in accordance with principles laid down by the courts in relation to s.210 of the OLNE, that is, no petition proceeds to a substantive hearing unless the requirements of OLNE, s.208 (Requisites of Petition) and s.209 (Deposit as Security for Costs) are first complied with. The practice has developed that if a Petitioner fails to strictly comply with the mandatory requirements of s.208 and s.209, the petition is struck out at the preliminary stage: see Biri v. Ninkama [1982] PNGLR 342.

The principles relating to the meaning of s.208(a) as developed by the courts were extensively covered by all counsel during submissions and I need not re-state them. There is extensive case law authority which set out what is required to be pleaded by way of pleading relevant facts and the standard of pleading of facts in terms of their relevance, sufficiency, conciseness and clarity: see Biri v. Ninkama (supra); Holloway v. Ivarato [1988] PNGLR 99.

Section 208(e) provides:-

A petition shall …(e) be filed at 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)(..)”

The principles under s.208(e) have not been fully established. The principles relating to the filing of the Petition within the mandatory 40 days period are well established (see Biri v. Ninkama (supra), Daniel Tulapi v. Charles Miru Luta, David Basua & The Electoral Commission SC 653 (2000). Section 208(e) and the OLNE generally is silent as to the payment of any filing fee for the petition and the time limit for the payment of that filing fee. The payment of the filing fee is prescribed by the rules of Court: see r.4 of National Court Election Petition Rules 2002 (“EPR”). The issue is whether the word “file” in S.208(e) entails or includes the payment of the “filing fee” prescribed by the rules of the National Court. That same issue arises from the facts of the present case.

The undisputed facts in this case are that on 19 July 2002, the First Respondent was declared the winner of the Kainantu Open Seat in the National Parliament, by 4,800 votes. The Petitioner came second with 3,750, a difference of 1,050 votes. The 40 day time limit period prescribed by s.208(e) for filing an election petition was to expire on 28/8/02. The Petitioner lodged the Petition itself at the National Court Registry at Goroka at 4.55p.m. on 28/8/02 together with a receipt by the Bank of South Pacific showing security for costs depos

it of K2,500.00 which was paid on the same day. The Petitioner did not pay the filing fee of K500.00 prescribed by the “EPR” r.4 at the Provincial Finance Office (“BMS”) on 28/8/02. And so when the petition and receipt for security for costs deposit were lodged with the A/Registrar on 28/8/02, no receipt for the filing fee was produced before the Assistant Registrar. On the next day, 29/8/02, the filing fee was paid and copy of the official receipt produced before the A/Registrar on that day.

The Petitioner’s explanation for the delay in the payment of the filing fee as advanced by his counsel from the bar table, is that on 28/8/02, he wrote to the Assistant Registrar requesting a waiver of the filing fee. Whilst he was waiting for a decision from the Registrar, time ran out. The BMS office was closed by that time and it could not be paid. At 4.55pm, the A/Registrar accepted the petition without the receipt for the filing fee on the basis that the fee would be paid the next day. This explanation is not supported by any evidence. Nonetheless, the respondents do not contest this explanation and I accept this explanation.

The Assistant Registrar’s explanation for accepting the petition without the filing fee is contained in two notations he made in two court documents. These notations are consistent with the Petitioner’s explanation. The first notation which appears on the cover sheet of the petition reads:

“Note: BMS is closed by the time of filing, that is 4.55pm so K500.00 filing fee will be paid later i.e 29/8/02.”

On 29/8/02, the petitioner produced to the Assistant Registrar a BMS receipt for the payment of the filing fee. The pertinent parts of the “Notice of Payment of Filing Fee” issued by the Registrar on 29/8/02 reads:

“A Filing fee of K500.00 was paid at BMS Goroka (Institution) and the copy of the receipt bearing the receipt No. ……… was presented to me on the 29th of August, 2002 not being the date of filing of petition because BMS was closed on the 28/8/2002 at the time of filing.”

These two notations suggest that whilst the petition was filed and the security for costs was paid within the 40 days period, the filing fee was paid and evidence of the payment provided to the registrar outside the 40 day period prescribed by s.208(e).

There is no provision in s.208(e) or any other provision in the OLNE, which prescribes the payment of the “filing fee” and/or the production of evidence of payment of the filing fee to the Registrar within the same 40 day period. A provision of the kind in s.209 with respect to filing fee is wanting in the OLNE. Section 209 provides:

”At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K2,500.00 as security for costs”. (my...