Ludger Luker Mond v Kerenga Ben Okoro, Leo T Tualir and The Electoral Commission [1992] PNGLR 501

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 30 November 1992
• 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

Full Title: 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 [1992] PNGLR 501

National Court: Sakora AJ

Judgment Delivered: 30 November 1992

1 Elections—Parliament—election petition—application to strike out—failure to comply with Organic Law on National Elections s208—failure to set out "facts" relied on for petition

2 Practice and procedure—interlocutory application—facts to be pleaded in ground by petition—no need to set out evidence—facts to be provided given normal meaning—National Court Rules O8 r8

3 Words and phrases—"facts"

4 SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, Siaguru v Unagi [1987] PNGLR 372, Holloway v Ivarato [1988] PNGLR 99, Thompson v Pokasui [1988] PNGLR 210, Torato v Balakau [1988–89] PNGLR 83, JT Stratford & Son Ltd v Lindley & Ors [1964] 2 WLR 1002, Vagi Mae v Jack Genia (1992) N1105 and Iambakey Okuk v John Nilkare [1983] PNGLR 28 referred to

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Sakora AJ: The petition the subject of this preliminary application has been brought pursuant to s206 of the Organic Law on National Elections (Organic Law on National Elections) 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 scoring 1450 votes which was 82 votes less than the winning candidate, Mr Kerenga Ben Okoro, who polled 1532 votes.

The petition has a two–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, on the grounds 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 but 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 the 29th 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 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 s208 of the Organic Law on National Elections. Such an application was made before me and I reserved my decision till now.

Counsel advised the Court at the outset that they were appearing by consent of the parties, thereby complying with s211 and s222 of the Organic Law on National Elections. All three counsel 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 s206 Organic Law on National Elections. Firstly, the statutory provision under s208 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 s176(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 s210 stating in no uncertain language that a petition will not proceed and be entertained if the requirements of both .s208 and s209 (deposit as security for costs) are not duly complied with. This was accorded judicial blessing by the Supreme Court in the case of SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where at 345 the unanimous joint judgment said:

"In our view it is clear that all the requirements in s208 and s209 must be complied with. S208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. S210 simply precludes any proceedings unless s208 and s209 are complied with."

The Court went on to state that the right to dispute an election is given by statute, and that the Organic Law on National Elections gives no power to dispense with any of the s208 requirements, not even s217 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 s217 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 s208 or s210.

The Court described the rationale behind the mandatory nature of the s208 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 s208. It is not difficult to see why. An election petition is not an ordinary cause [In Re The Norwich Election Petition, Birbeck 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."

(underlining mine).

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