In the Matter of the Organic Law on National Elections and Disputed Returns for the Sinasina–Yonggamugl Open Electorate; Ludger Luker Mond v Kerenga Ben Okoro, Leo T Tualir and The Electoral Commission

• Jurisdiction: Papua New Guinea
• Judge: Sakora AJ
• Judgment Date: 30 November 1992
• Court: National Court
• Citation: [1992] PNGLR 501
• Docket Number: In the Matter of the Organic Law on National Elections and Disputed Returns for the Sinasina–Yonggamugl Open Electorate
• Year: 1992
• Judgement Number: N1123

National Court: Sakora AJ

Judgment Delivered: 30 November 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE ORGANIC LAW ON THE NATIONAL ELECTIONS AND DISPUTED RETURNS FOR THE SINASINA-YONGGAMUGL OPEN ELECTORATE; LUDGER LUKER MOND

V

KERENGA BEN OKORO, LEO TUALIR AND THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Waigani

Sakora AJ

30 October 1992

30 November 1992

ELECTION PETITION — Application to strike out petition — Alleged failure to comply with s 208 of the Organic Law on National Elections — Alleged failure to set out "facts" relied on for the petition — Meaning of "facts".

PRACTICE AND PROCEDURE — Interlucutory application — Facts to be pleaded in ground by petition — No need to set out the evidence — Facts to be provided given normal meaning — National Court Rules O 8 r 8.

Facts

This is a preliminary application in respect of the validity of the election and return of the Sinasina-Yonggamugl Open Electorate for the 1992 national elections. The respondents applied to have the petition struck out for non-compliance with s 208 of the Organic Law on National Elections, in particular, that grounds 5, 6 and 7 of the petition do not contain or demonstrate sufficient facts to support the allegation contained in the petition.

Held

1. There is sufficient factual basis to support the petition.

2. The particulars and details insisted upon by the respondents are, in fact, the evidence necessary to establish the allegation.

3. The applications by the respondents to have the petititon struck out for non-compliance with s 208 of the Organic Law on National Election are not entertainable.

Cases Cited

Papua New Guinea cases cited

Biri v Ninkama [1982] PNGLR 342.

Holloway v Ivarato [1988] PNGLR 99.

In re Simbu Provincial Election [1983] PNGLR 28.

Siaguru v Unagi [1987] PNGLR 372.

Thompson v Pokasui [1988] PNGLR 210.

Torato v Electoral Commissioner [1988-89] PNGLR 83.

Mae v Genia (1992) unreported N1105.

Other cases cited

In Re The Norwich Election Petition, Birkbeck v Bullard (1886) 2 TLR 273.

J T Stratford & Son Ltd v Lindley [1964] 2 WLR 1002.

Philipps v Philipps (1878) 4 QBD 127.

Prince v Gregory [1959] 1 WLR 177.

Counsel

D Lambu, for petitioner.

P Niningi, for first respondent.

J Bray, for second and third respondents.

Cur adv vult

30 November 1992

SAKORA AJ: The petition, the subject of this preliminary application, has been brought pursuant to s 206 of the Organic Law on National Elections (OLNE) disputing the validity of the election and return of the Sinasina-Yonggamugl Open Electorate in this year's general elections. The seat attracted a total of 47 candidates, with the petitioner, Mr Ludger Luker Mond, being the runner-up. He received 1450 votes, which was 82 votes less than the winning candidate, Mr Kerenga Ben Okoro, who polled 1532 votes.

The petition has a 2-pronged attack on the election and result: firstly, it disputes the result on the grounds that the election was not conducted and concluded properly by the third respondent, in that the electoral officers were guilty of errors and/or omissions and/or illegal practices, and, secondly, that the first respondent committed certain illegal practices.

The grounds of the petition appear at paragraphs 5, 6 and 7, set out in the following manner:

"5. The petitioner is not accepting the election results on the grounds that the election was not conducted and concluded properly by the second and third respondents themselves and through their agents and servants who committed a number of actions, errors and omissions which are both illegal and improper which in whole affected the overall election result. The particulars of these illegal and improper actions, errors and omissions which the petitioner relies on to invalidate the election are as follows:

(a) The second respondent, unlawfully allowed a Second day of polling at Dumun polling place on the 23rd June, 1992 to allow some 350 persons whose names were not on the electoral roll by using a typed list which was not officially prepared by the third respondent as a supplementary electoral roll.

(b) The second respondent during the counting wrongly declared 243 informal votes contained in Ballot Boxes 0564 and 0565 formal, by initialling them at the back. Most of these votes were for the first respondent.

(c) The second respondent did not account for more than 2,000 cast ballot papers and yet he went ahead and declared the first respondent as the winner.

(d) The second and third respondents did not make any declaration in public and the public does not know when and where the declaration was made.

6. On 29 June, 1992, the first respondent forced himself into the counting room and threatened and intimidated the counting officials as a result of which the counting officials were under pressure to ensure that he obtained more votes than the other candidates through irregular means and this resulted in the counting not being scrutinised properly up to the time of declaration.

7. Whilst the first respondent was in the counting room as referred to in the preceding paragraph, he also interfered with the counting process."

There is no pagination of the petition.

When this petition last came before Sheehan J on 23rd October 1992, a compulsory conference was scheduled one week hence. It was indicated then that the respondents would apply to have the petition struck out for non-compliance with s 208 of the OLNE. Such an application was made before me, and I reserved my decision till now.

Counsels advised the Court at the outset that they were appearing by consent of the parties, thereby complying with ss 211 and 222 of the OLNE. All three counsels made detailed submissions on the pertinent law, supported by well-canvassed case law in this jurisdiction.

The law is now well settled in this jurisdiction as to the essential elements of an election petition filed pursuant to s 206 OLNE. Firstly, the statutory provision under s 208 reads as follows:

"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 within 40 days after the declaration of the result of the election in accordance with Section 176 (1) (a)."

As if the mandatory nature of each of the requirements, illustrated by the use of the imperative term "shall", needed further emphasis and elaboration, we have s 210 stating in no uncertain language that a petition will not proceed and be entertained if the requirements of both ss 208 and 209 (deposit as security for costs) are not duly complied with. This was accorded judicial blessing by the Supreme Court in the case of Biri v Ninkama [1982] PNGLR 342 at 345 where the unanimous joint judgment said:

"In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with."

The Court went on to state that the right to dispute an election is given by statute, and that the OLNE gives no power to dispense with any of the s 208 requirements, not even s 217, which enjoins the Court to 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". The Court placed s 217 in its proper perspective when it declared at p 346 that the provision becomes relevant when the Court comes to determine the merits of the petition and when dealing with the evidence before it as relevant to the merits. It said that the provision is only procedural, thus it cannot be used to qualify either s 208 or s 210.

The Court described the rationale behind the mandatory nature of the s 208 requirements in the following terms at p 345:

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficult to see why. An election petition is not an ordinary cause [In Re The Norwich Election Petition, Birkbeck v Bullard (1886) 2 TLR 273], and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority." (italics mine).

It re-emphasised that it was beyond argument that, if a petition does not comply with all of the...