Paru Aihi v Peter Namea Isoaimo

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 28 July 2014
• Citation: (2014) N5691
• Court: National Court
• Year: 2014
• Judgement Number: N5691

Full : EP NO 03 OF 2014; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of Disputed Returns for the Kairuku-Hiri Open Electorate; Paru Aihi v Peter Namea Isoaimo and Electoral Commission of Papua New Guinea (2014) N5691

National Court: Makail, J

Judgment Delivered: 28th July 2014

N5691

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 03 OF 2014

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF DISPUTED RETURNS FOR THE KAIRUKU-HIRI OPEN ELECTORATE

BETWEEN

PARU AIHI

Petitioner

AND

PETER NAMEA ISOAIMO

First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

Waigani: Makail, J

2014: 24th & 28th July

ELECTION PETITION – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient facts – Failure to pay security for costs of K5,000.00 – Mandatory requirements of petition – Effect of – Petition incompetent – Petition dismissed – Organic Law on National and Local-level Government Elections – ss. 208(a), 209 & 210 – National Court Election Petition Rules, 2002 (as amended) – rr. 5 & 15.

Cases cited:

Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2013) N5105

Tom Olga v. Paias Wingti & Electoral Commission (2008) SC938

Walter Schnaubelt v. Hon Byron Chan & Electoral Commission (2012) N4791

Edward Ekanda Alina v. Francis Mulungu Potape & Electoral Commission (2012) N4877

Jimson Sauk v. Don Pomb Polye & Electoral Commission (2004) SC769

Paru Aihi v. Sir Moi Avei and Reuben Kaiulo-Electoral Commissioner of Papua New Guinea (2003) N2330

Paru Aihi v. Sir Moi Avei and The Electoral Commission of Papua New Guinea (2004) N2523

Counsel:

Mr R Habuka, for Petitioner

Ms G Salika, for First Respondent

Mr L Okil, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

28th July, 2014

1. MAKAIL, J: The petitioner petitions the Court to declare void the return of the first respondent as Member for Kairuku-Hiri Open electorate following a by-election in February 2014. He alleges amongst others, that the first respondent bribed voters to vote for him. After parties went through directions hearing and the matter returned to Court on 15th July 2014 for pre-trial conference, the Court after consulting the parties allocated trial dates from 24th July to 01st August 2014. The first respondent also indicated that he had filed and served an application for leave to file a notice of objection to competency out of time. As it was short-served, the Court adjourned the hearing of the application to 21st July 2014. After hearing the parties on the application, the Court granted the application and allowed the objection to be filed for the reason that issues of competency go to the jurisdiction of the Court and must be settled prior to commencing its inquiry. See also Rule 15 of the National Court Election Petition Rules, 2002 (as amended) (“EP Rules”).

Grounds of Objection

2. The objection is based on two grounds:

(a) Insufficient facts; and

(b) Failure to pay security deposit of K5,000.00.

Issues for Consideration

3. The first ground is based on s. 208(a) and the second on s. 209 of the Organic Law on National and Local-level Government Elections (“Organic Law”). I have considered the submissions of parties on each ground. It is the law under s. 210 of the Organic Law that proceedings shall not be heard on a petition unless the requirements of ss. 208 and 209 are complied with. The threshold issue, in my view, is whether the petitioner has complied with the requirement to pay security for costs of K5,000.00. If the answer is no, what is the consequence?

Parties’ Submissions

4. The respondents submit that s. 209 (supra) is very clear as to the time a petitioner is to pay security for costs. It is at the time of filing the petition. The time referred to in s. 209 (supra) is the date of filing the petition. As it is not disputed that the petitioner paid the security a day after the filing of the petition, they submit, he has defaulted in complying with s. 209 (supra). The requirement to pay security for costs is a mandatory requirement under the Organic Law and a failure to comply with it renders the petition incompetent and must be dismissed.

5. They further submit that the failure to pay security at the time of filing the petition is so fundamental that any late payment and explanation for the late payment cannot cure the defect and are of no consequence. In any case, the petitioner is not new to election petitions as he has been a petitioner in the past and should have been well aware of the requirement to pay security at the time of filing the petition and for this reason, any explanation for the late filing should be rejected by the Court.

6. In his affidavit filed on 24th July 2014, the petitioner explains that he had paid K5,000.00 into a wrong bank account on 18th March 2014. That account was the Cash Management Services Account of the National Department of Finance. He was issued a receipt of payment which he presented at the National Court Registry on 20th March 2014 with the petition. It was rejected and he was directed by the Registry staff to pay K5,000.00 into the correct account which was the National Court Registrar’s Trust Account. He did that the next day, 21st March 2014 and presented a receipt of payment to the Registry staff.

7. Based on this explanation, he submits that this is not a case where he has completely failed to pay the security for costs. On the contrary, he did and has sufficiently complied with s. 209 (supra). In addition, he was still within 40 days to file the petition because the first respondent was declared Member on 15th February 2014, that 40 days expired on 26th March 2014, that he filed the petition on 20th March 2014, 6 days before the 40 days expired and the one day late payment of the security for costs was an “administrative error” on the part of the Registry staff. The staff who received the petition for filing should have dated it as 21st March 2014 which was the date he presented the receipt of payment of K5,000.00.

Consideration of Issues

8. The debate here is about the payment of security for costs of K5,000.00. So what is its significance or why are the respondents insisting on its compliance? Initially, it was thought that there would be no need to elaborate on the submissions of the parties as the requirement of s. 209 is very clear, but it has become necessary because there appears to be no judicial pronouncement on the application of s. 209 (supra).

9. Counsel for the first respondent cited the case of Isi Henry Leonard v. Gordon Wesley & Electoral Commission (2013) N5105. That was a case not directly on point but was decided after a debate over whether the Court had power to order a petitioner to pay additional security for costs. In that case, the first respondent applied for additional security for costs on the ground that the petitioner had failed to settle an earlier costs order in an election petition filed back in 2002. The issue was whether the Court had power to order a petitioner to give security for costs over and above the prescribed sum of K5,000.00 under s. 209 (supra). In upholding the application, the Court said that in an election petition:

“...............it is not unusual or extra ordinary as cost of litigation do increase as the case progresses. It depends very much on the complexity of the petition and its duration. There may be cases where costs will increase beyond K5,000.00. In such a case, it would be wrong and mischievous to say that the National Court has no power to order security for costs over K5,000.00. Surely the National Court must have some power and that power is found in section 155(4) of the Constitution. It is the inherent power of the Court to do justice in the circumstances of the case. For these reasons, I am satisfied that I have the power to make an order for security for costs in addition to the prescribed minimum amount of K5,000.00 under section 209 (supra).”

10. In Tom Olga v. Paias Wingti & Electoral Commission (2008) SC938, the Chief Justice Sir Salamo puts it this way when he said at para 42:

“In my view, the mandatory requirement of s 209 (security for cost deposit) is a pre-requisite for the filing of a Petition. The purpose of s 209 and s 210 is two-fold: to ensure a Petitioner is genuine and serious about bringing the Petition and that the costs respondents’ costs of the proceedings are met if the Petition fails. As the hearing on the Petition continues, the issue of costs remains alive throughout the proceedings and even after the conclusion of proceedings because costs of parties must be met. The actual costs in many cases far exceed the security deposit amount because election cases are expensive to run. Costs issues in an election petition proceeding can continue to be litigated after a final decision on a Petition.”

11. The important point to note from these statements is that security for costs must be given by a petitioner at the time of filing the petition as a sign of genuineness and seriousness...