Home | Databases | WorldLII | Search | Feedback Papua New Guinea Law Reports

Saonu v Electoral Commission of Papua New Guinea [2004] PGLawRp 20; [2004] PNGLR 166 (1 October 2004)

SUPREME COURT OF JUSTICE

REVIEW PURSUANT TO CONSTITUTION S 155(2)(B) BETWEEN GINSON GOHEYU SAONU; AND BOB DADAE; AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA

WAIGANI: SEVUA, GAVARA-NANU & DAVANI JJ

1 October 2003; 1 October 2004

ELECTION – Practice and procedure – Parliamentary elections – Election petition – Address – Whether an election petition addressed to the respondents instead of the National Court comply with s.206 of the Organic Law on National & Local Level Government Elections – Whether s.206 is a strict or requisite requirement as s.208.Whether a petition addressed to the respondents is incompetent.Organic Law on National & Local-Level Government Elections; ss 206, 208, 210

Facts

The applicant sought judicial review of the decision of the Court of Disputed Returns pursuant to Section 155 (2) (b) of the Constitution relating to the election of the first respondent as the elected Member of Parliament for the Kabwum Open Electorate in Morobe Province during the 2002 National Elections. The applicant's petition challenging the return of the first respondent in EP15 of 2002 was dismissed on the basis that, it was not "addressed to" the National Court as required by s.206 of the Organic Law on National and Local Level Government Elections (hereinafter the Organic Law) and therefore incompetent. Their applicant outlined six (6) grounds for review and sought orders, inter alia, that the decision dismissing the petition be quashed, that the petition be reinstated, and that all the grounds of petition proceed to the substantive trial.

Held

1. The trial Judge erred in fact and in law in implying that the applicant, in his petition, was seeking the respondents to exercise their powers.

2. The petition entitled "In the National Court of Justice", invokes the jurisdiction of the National Court under s4 of the Organic Law, not the jurisdiction of the District Court or any other Court or tribunal and the reliefs sought are from the National Court in accordance with the powers of the National Court under s.212.

3. Section 206 is not a requisite of a petition therefore there is no requirement for a strict compliance. As long as the petition is brought in the National Court and heard by that Court, and not any other Court or tribunal, it is not incompetent. (Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea, (EP 68 of 2002) and Rimbink Pato v. Miki Kaeok and the Electoral Commission, (EP65 of 2002) unreported and unnumbered, 16th June 2003 approved).

4. The trial Judge had misconstrued s.206 of the Organic Law by holding it to be a provision that must be strictly complied with thereby reaching an erroneous conclusion that the applicant's petition was incompetent.

5. It is trite law that petitions must comply with s.208 of the Organic Law otherwise, the petition is precluded from proceeding to trial because of s.210. (Supreme Court Reference No. 4 of 1982: Re: Delba Biri v Bill Ginbogl Ninkama & 3 Ors [1982] PNGLR 342 applied).

6. It is a constitutional dictate that Courts must give paramount consideration to the dispensation of justice pursuant to s158 (2) of the Constitution. We consider that injustice was done to the applicant when the National Court dismissed his petition because of a minor defect which was not crucial to the overall form and substance of the petition.

7. The trial Judge had not given a fair and liberal meaning to s.206 of the Organic Law pursuant to Schedule 1.5 of the Constitution.

Papua New Guinea cases cited

Ginson Saonu v. Bob Dadae and Electoral Commission; (02/04/03) unreported and unnumbered, (EP 15 of 2002).
Herowa Agiwa v. The Electoral Commission and Benias Peri; unreported, (OS 29 of 2003) 18 February 2003.
Jimson Sauk v. Don Pomb Polye and Electoral Commission; unreported and unnumbered, (EP 3 of 2002) 23 May 2003.
Masket Iangalio v. Yangakun Miki Kaeok and Electoral Commission (EP68 of 2002) and Rimbink Pato v. Reuben Kaiulo, Electoral Commissioner of Papua New Guinea and Miki Kaeok; (EP 65 of 2002), unreported and unnumbered, 16 June 2003.
Mathias Ijape v. Bire Kimisopa and Electoral Commission; unreported N2344, 6 March 2003.
The Independent State of Papua New Guinea v. Zachary Gelu and Manoburn Earthmoving Limited, unreported, N2322, 13 December 2002.

Counsel

G. Sheppard with H. Leahy for applicant.
A. Manase with T. Dawidi for first respondent.
R. William for second respondent.

1 October 2004

By the court. This is an application for review pursuant to Section 155 (2) (b) of the Constitution relating to the election of the first respondent as the elected Member of Parliament for the Kabwum Open Electorate in Morobe Province during the 2002 National Elections.

The applicant challenged the return of the first respondent in EP15 of 2002. The petition was heard by Salika, J in Lae on 2 April 2003. His Honour dismissed the petition and ordered that the applicant pay the respondents' costs. The basis for dismissing the petition was that, it was not "addressed to" the National Court as required by s.206 of the Organic Law on National and Local Level Government Elections (hereinafter the Organic Law). There are six (6) grounds for review.

1. The learned judge erred in law and in fact in dismissing the petition by finding that the petition was not properly addressed to the National Court by reference to Section 206 of the Organic Law on National and Local Level Government Elections.

2. The learned judge in his finding failed to consider that:

(a) The form of the petition that was filed in the National Court at Waigani contained backing sheets, which were sufficiently addressed to be in the National Court.

3. The learned judge in making the findings and conclusions, in paragraph 1 failed to properly apply:-

(b) Section 217 of the Organic Law, when Section 208 (a) deals with the legal form (technicalities).

(c) The learned judge failed to read in conjunction with Section 217, Section 158 and Schedule 1.5 of the Constitution and apply a fair and liberal meaning of the law.

4. The learned judge ought to have considered that Section 217 of the Organic Law is not applicable to the form of the petition and therefore ought not to have allowed the first respondent's objection on that basis.

5. Circumstances warranting the review.

The Organic Law on National Elections makes the decision of the National Court final. The only avenue available is the review procedure under Section 155 (2) (b) of the Constitution.

The applicant seeks the following orders:-

1. That the decision of the learned Justice Salika be quashed.

2. That the petition be reinstated.

3. That all the grounds of petition proceed to the substantive trial.

4. That the applicant has his costs in the National Court and of this application.

The decision of Salika, J followed that of Kandakasi, J in EP 4 of 2002: Mathias Ijape v. Bire Kimisopa and the Electoral Commission, unreported, N2344, 6 March 2003. In that case, the trial Judge found that the petition was not properly before the National Court because it had been addressed to Mr. Kimisopa and the Electoral Commission instead of the National Court as prescribed by s 206 of the Organic Law. Therefore the Court did not have before it, a petition that was addressed or directed to it for a proper hearing and determination. The Court therefore found that the petition was incompetent and accordingly dismissed it.

The Organic Law on National and Local Level Government Elections sets out Section 206 as follows:-

206. METHOD OF DISPUTING RETURNS

The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.

In dealing with this issue in EP15 of 2002, Salika, J agreed with Kandakasi, J in Ijape v. Kimisopa and the Electoral Commission (supra) that, where a petition is not addressed to the National Court, there is effectively no petition. Salika, J further held that, by addressing the petition to the National Court which is the only Court that has the power to deal with National Election Petitions, the Petitioner asks the National Court to invoke its jurisdiction and powers to deal with the petition. Bob Dadae and the Electoral Commission had no powers to be invoked to deal with a petition. They are respondents. They cannot do anything other than defend themselves from any allegations that may be made by the petitioner against them. These matters are alluded to on pages 4 and 5 of the Court's judgment.

With respect, we consider that these statements amounted to errors of fact and law. Firstly, the petition itself, though addressed "To: Bob Dadae And To: The Electoral Commission", did not ask that they exercise their power to deal with EP15 of 2002. They have no power to exercise. This is an error of fact because nowhere in the petition is there a request by the applicant to the respondents to exercise a power.

In fact, leaving aside the address issue for the moment, the petition states that it is the petition of the applicant who disputes the validity of the election for the Kabwum Open Electorate in the 2002 General Elections. Then the applicant sets out the background of the petition and then goes on to plead the allegations he relied on to invalidate the election. There is nothing at all in the petition that the applicant had asked the respondents to exercise a power. What power? It is clearly an erroneous statement of fact that the trial Judge had found that the respondents are asked by the applicant to invoke their powers to deal with his petition. Of course, we agree with the trial Judge that the respondents have no power to exercise. However, we find that as a matter of fact, he erred in finding that the applicant had asked the respondents to invoke their power to deal with the petition.

The point to note here is that the Organic Law sets out the powers of the Court in s.212. The Court in s.212 is the National Court and the Organic Law empowers the National Court to do any of the things enumerated under s.212 (1). There is nothing in that provision which refers to any power to be exercised by a respondent or the respondents in this case for that matter. Accordingly, we find that the trial Judge erred in fact and in law in implying that the applicant, in his petition, EP 15 of 2002, was seeking the respondents to exercise their powers.

In respect of the issue of address to the National Court, the trial Judge said he did not consider the words, "In the National Court of Justice at Waigani, Papua New Guinea," to be significant for the purpose of addressing the petition to the National Court. He considered that the significant part for the purpose of addressing a petition is the part that reads:

"TO: Bob Dadae

First Respondent

AND TO: The Electoral Commission of Papua New Guinea

second respondent"

This is the part he said, that must be specifically addressed to the National Court, failing which the validity of the petition may be raised.

For these reasons, the trial Judge said he reached the same conclusion as Kandakasi, J did in Ijape v. Kimisopa and the Electoral Commission (supra). Accordingly, the trial Judge held that the petition was incompetent as it was not properly before the Court and therefore dismissed it.

We wish to allude briefly to Ijape's case because the trial Judge in the petition, the subject of this review, had followed the decision in Ijape's case. In Ijape's case, the trial Judge, after breaking down s.206 of the Organic Law into parts, analysed it in the following manner. The first part creates the right to dispute an election or return. The second describes the method to be used, that is, by way of a petition, and the third part provides who the petition should be addressed to. By the third part, the National Court is given the exclusive jurisdiction to deal with election petitions. We say s.4 of the Organic Law also gives jurisdiction to the National Court. Kandakasi, J relied on his own decision in Herowa Agiwa v. The Electoral Commission and Ben Peri, unreported and unnumbered (OS 29 of 2003), 18 February 2003, and also The State v. Zacharry Gelu and Manoburn, unreported, N.2322, 13 December 2002. However, those two decisions are not the authorities and therefore not binding on other National Courts and the Supreme Court therefore this Court is not bound by those decisions.

The Court found in Ijape's case that s.206 is a strict requirement therefore addressing the petition to the respondents in that case is not presenting an election in accordance with the requirements of s.206 of the Organic Law, "which has to be strictly met" (our emphasis). In the end, the petition was held to be incompetent and was dismissed because in the opinion of the trial Judge, the Court did not have a petition addressed or directed to it for a proper hearing and determination.

There is also the decision of Los, J in Jimson Sauk v. Don Pomb Polye and Electoral Commission, unreported and unnumbered, (EP 3 of 2002) 23 May 2003, where His Honour ultimately followed Kandakasi, J and Salika, J. In that case, His Honour referred to the arguments of the parties on the issue of address to the National Court and said the petitioner's arguments accorded with his initial reaction. However, in the end, he had to follow the decisions of Kandakasi, J and Salika, J. He said at page 5 –

"Having said that, however, on the face of the case authorities now, I have to go along with the waves, so to speak. I therefore find this clause incompetent."

With respect, the decisions of Kandakasi, J and Salika, J are not binding authorities in the Supreme Court.

Having read and considered those judgments and the reasons ascribed to the dismissal of those petitions as incompetent pursuant to s.206 of the Organic Law; and having heard submissions from all parties, we consider with respect, that the trial Judge erred in his reasons in the application of s.206. With respect also, the decision in Mathias Ijape is not the authority in respect of the construction and or application of s.206 of the Organic Law. We are of the view that the trial Judge erred in following Kandakasi, J in Mathias Ijape's case.

We start with the premise that despite the petition not being specifically addressed "To: The National Court" as contended by the respondents, the whole document is titled, "In the National Court of Justice". We prefer the submissions of Mr. Sheppard of counsel for the applicant herein, (similar to Mr. Ijape's in EP 4 of 2002) that the petition was "addressed", or "directed", "despatched" or "presented" to the National Court. In our view, the petition was a National Court document not a document filed or heard in a District Court or any other tribunal. We prefer the contention by the applicant that the petition entitled, "In the National Court of Justice", invokes the jurisdiction of the National Court under the Organic Law, not the jurisdiction of the District Court or any other Court or tribunal. As we alluded to earlier on, the relief sought are from the National Court in accordance with the powers of the National Court under s.212. They are not relief sought from the respondents or the District Court or any other Court or tribunal.

The fact that the petition states: "To: Bob Dadae, and To: The Electoral Commission of Papua New Guinea", in our view, simply and plainly means that the petitioner is giving notice of the petition to the respondent. We accept the applicant's submission on this aspect. Apart from the petitioner issuing notice to the respondents in the manner the applicant argues, which we have just alluded to, the whole petition does not invoke the jurisdiction of the respondents, they have no power or jurisdiction to be invoked. It did not seek any relief from them because they have no power to grant any relief in the Organic Law, they are not the National Court. The petition did not seek or request the respondents to invoke their powers to deal with it as was erroneously held by the trial Judge. Therefore, it is our opinion that despite the petition being "addressed" to the respondents as contended by the respondents, this whole petition is a document which invokes the jurisdiction of the National Court and seeks relief from that Court.

We have adverted to these matters on the basis that we consider that the petition was intended to be drawn up by a lay person as a petitioner having no legal background, and presented to the National Court by that lay person and that is the intention of the Organic Law, until the day when the Court first allowed representation by lawyers in an election petition. If we accept the intent of the legislature then all the arguments that are being raised by lawyers on forms and technicalities of a petition should never be allowed to be entertained at all. And with respect, the Courts have, over the years, allowed this to happen thereby defeating the intention of the legislature.

We consider that the error in both cases lies in importing a strict compliance interpretation of s.206 when that provision is not a strict compliance provision. If it were, the Parliament would certainly have made it a requisite of a petition. Furthermore, s.210 of the Organic Law would specifically exclude a petition from proceeding to trial if non-compliance with s.206 as a strict compliance requirement is not met. In our view, the legislature, by not making s.206 a requisite of a petition, meant and intended that it is not a strict compliance provision. As long as the petition is brought in the National Court and heard by that Court, and not any other Court or tribunal, it is not incompetent. In our view, the fact that the petition identifies the National Court by the words, "In the National Court of Justice", means that the petition is a document or a matter that the National Court has jurisdiction over, to the exclusion of all other Courts or Tribunals.

His Honour, Hinchliffe, J had the occasion to deal with the same issue in Masket Iangalio v. Yangakun Miki Kaeok and The Electoral Commission of Papua New Guinea, (EP 68 of 2002) and Rimbink Pato v. Miki Kaeok and the Electoral Commission, (EP65 of 2002) unreported and unnumbered, 16 June 2003. We agree with His Honour's view that s.206 is more to do with "no other Court dealing with a petition" than it being addressed to the respondents. We are of the view that, that is the correct approach in law to this issue. It is also our view that it is an error of law for a Court to hold that s.206 is a strict compliance provision for three reasons. Firstly, the legislature has not described s.206 as a mandatory requisite of a petition. Secondly, if it is, it is not included in s.208. And finally, s.206 is not a strict compliance provision as it does not come under the exclusion provision of s.210 of the Organic Law.

We consider that the petition, the subject of this review, should not have been dismissed as incompetent simply because it does not contain the words, "To: The National Court of Justice", but states, "To: Bob Dadae And To: The Electoral Commission of Papua New Guinea." To have a petition dismissed on that ground, in our view, is not doing real justice as prescribed by s.217 of the Organic Law. To that extent, we agree with the learned Hinchliffe, J who said in the above cases that the petitioner would not think he has had a fair hearing.

We reiterate our view that had Parliament intended that a petition addressed to the respondents instead of The National Court is incompetent, it would have expressly stated so in s.206 that such a petition is incompetent and should not proceed to trial. In other words, Parliament would have expressly included such a requirement in both s.208, the requisite provision, and the exclusion provision of s.210. We are of the view also that this approach is consistent with s.206 not being a strict compliance provision.

This view is consistent with s.210 of the Organic Law. It specifically refers to s.208 and s.209. In view of what we have alluded to, it is not difficult to see why s.206 is not referred to in s.210. We set out those provisions in full here.

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 K2,500.00 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.

It is our opinion that nothing can be clearer than s.210 of the Organic Law. It is crystal clear that Sections 208 and 209 are the only requisites of a petition. A petitioner must comply with those two provisions. So long as a petitioner complies with those mandatory requirements, the Court must allow his petition to proceed to trial. Section 206 is not a requisite of a petition therefore a petition is not incompetent by reason of not specifically stating the words or phrase "To: The National Court or Justice" or "To: The National Court".

In the Iangalio and Pato case (supra), His Honour, at page 4 said:

"It would seem to me that developments in recent years have created a situation that I must say I do not totally agree with. Strict compliance with Section 208 (a) appears to have developed into very, very strict compliance and I doubt if I would be incorrect in saying that because of the extremely strict compliance it is becoming more and more difficult to get an election petition off the ground. Many of them do not get past the competency stage and are thrown out, at times, on mere technicalities. We hear and read time and again that an election petition if one reads Section 222 (1) and (2) of the Organic Law, was really intended for a non-lawyer to draft and in fact a lawyer cannot appear for a party to a petition unless by consent of all parties or with leave from the National Court. If that is the case then it seems quite bizarre to me that if a non-lawyer was to draft his own petition then I have no doubt at all that it would be torn to pieces, so to speak, by lawyers for the sitting member and the Electoral Commission. In fact I would be brave enough to say that under those circumstances a non-lawyer's petition would never get past the first base because it would certain to be found to be incompetent. To that extent we seem to have gone the wrong way because it seems to me that most petitions which are found to be incompetent (and there are many of them) are in fact drafted by lawyers........."

Although His Honour in those statements was addressing the need to plead material facts required by s.208 (a) of the Organic Law, his reference to Section 222 in our view, is quite relevant here.

It is our view therefore that the trial Judge's finding that s.206 was not complied with is wrong in law because s.206 is not a requisite provision, the non-compliance of which, would render it incompetent and the petition precluded from proceeding to trial. If it were, s.210 would include it. Furthermore, we are of the view that whilst s.206 stipulates the method of challenge, it does not stipulate the form of the challenge and we agree with the applicant's submission.

The leading authority in election petitions in respect of the form of petition and the compliance with requirements is, Supreme Court Reference No. 4 of 1982: Re: Delba Biri v. Bill Ginbogl Ninkama & 3 Ors [1982] PNGLR 342. The Supreme Court said (in the head note) the following:-

"An election petition disputing the validity of an election addressed to the National Court and filed pursuant to s.206 of the Organic Law on National Elections must comply with each and every requirement of s.208 of that Law."

At page 345, the Court went on to say:-

"Furthermore, it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s.208........."

"In our opinion, it is beyond argument that if a petition does not comply with all of the requirements of s.208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s.210,"

It is pertinent to note here, and we do not hesitate to say, that it is trite law that petitions must comply with s.208 of the Organic Law otherwise, the petition is precluded from proceeding to trial because of s.210. Interestingly enough, the Supreme Court in that case did not say that the petition must also strictly comply with s.206 of the Organic Law. In our view, it is not difficult to see why. In simple terms, s.206 is not a requisite of a petition therefore there is no requirement for a strict compliance.

Notwithstanding the fact that s.206 provides for the method of challenging a return, it does not specify the form of the petition, nor does it specify where the petition is to be filed. It will be noted that the requirement of filing a petition is a requisite of petition under s.208. If the form of the petition is to be construed as a requirement, it lacks that clear specific intent of the legislature in s.206 itself. Even then if s.206 was intended to be a requisite of a petition which requires strict compliance, it is not excluded by s.210, so there must be very good reasons why the legislature had left matters as they are:
We now refer to s.222 which provides as follows:-

222. COUNSEL OR SOLICITOR

(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.

(2) In no case shall more than one counsel appear on behalf of a party.

We believe that the legislature did not intend that lawyers get involved in election petitions. Our reading of s.222 of the Organic Law makes it obvious that lawyers were not permitted to appear in Court in prosecuting or defending parties to a petition without all parties agreeing to that, or the National Court granting leave. In other words, election petitions should be left to the parties themselves to prosecute and defend in the National Court. Again, our view is fortified by that of His Honour, Hinchliffe, J, and we are in agreement with him in Benias Epe Peri v. Nane Petrus Thomas and Acting Electoral Commissioner, (EP73 of 2003) unreported and unnumbered, 20th April 2004, where the Court said at page 4 –

We are making it more and more difficult for petitions to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by a Counsel then it had to be with leave of the Court (see s.222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all to turn into a nightmare...."

We consider that if it was the intention of the Legislature that petitioners themselves appear to present their petitions in Court and lawyers are not involved, all these technical arguments like strict compliance, objections to competency, etc. etc. would not creep into election petition trials. The petitioners would normally be lay people who would have no idea about pleading relevant facts or, competency or otherwise of the petitions, and, as in the present case, whether the petition is addressed to the National Court or the respondents. With respect, we agree with Hinchliffe, J that, the Courts have allowed objections into election petition trials, and therefore the Courts are now faced with more objections to competency arguments now more than they ever had. We doubt if this is what the Legislature had contemplated or intended. With respect, the Courts have allowed all manner of applications into the election petition trials. What was originally intended for the lay people themselves to argue a petition in Court has now turned out to be long drawn out battles between lawyers. Certainly the petitioners and the lay people involved in a petition would not know that they could raise objections to the competency of a petition, just by the fact that a petition is not addressed to the National Court, but to the respondents.

We are of the view, based on decided cases, that the Courts have been granting leave at will to lawyers who have raised all manner of issues and made many and varied applications in election petition trials. In our view, the legislature never intended these things to happen in election petitions. Perhaps it is time the National Court reviewed its discretion in the granting of leave to counsel as is the implication of s.222. If lawyers are left out in election petitions, we may have election petitions proceed to trial quickly and the Courts will then make one decision at the end of the day. We say this without in any way, attempting to suppress the right to legal representation, but we emphasise that s.222 should be considered seriously.

The applicant has also raised s.217 of the Organic Law, and s.158 and Schedule 1.5 of the Constitution.

s.217 of the Organic Law provides that real justice should be observed in election petition cases. The National Court is not bound by strict rules of legal forms and technicalities. Unfortunately, the three decisions that have been referred to, dealt with strict legal forms and technicalities in s.206, and in our view, this offends the spirit and purpose of the Organic Law.

Whilst the respondents have referred to other legislations and the prescribed forms in those legislations, we consider that election petitions come under a special jurisdiction. An election petition is not an ordinary civil matter that can adopt legal forms in other legislations. That is why in election petitions trials, provisions of the National Court Rules are not relevant or applicable: See Delba Biri v. Bill Ginbogl Ninkama & Ors (supra). The Organic Law is the only constitutional law which regulates the conduct of elections and any subsequent challenge to a return. The requisite of a petition are provided for in s.208 so the Courts should not read what was not intended by the legislature into other provisions of the Organic Law.

Furthermore, it is a constitutional dictate that Courts must give paramount consideration to the dispensation of justice. S.158 (2) of the Constitution provides this and the Courts are bound by this mandate. It is part of the overall exercise of judicial power granted to the Courts by the Constitution. We consider that injustice was done to the applicant when the National Court dismissed his petition because of a minor defect which was not crucial to the overall form and substance of the petition.

With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start. This is not dispensation of justice, and we consider that the National Court, in the present case, was not mindful of this important constitutional mandate.

Schedule 1.5 of the Constitution provides that Courts must give fair and liberal meaning to all the provisions of the Constitution. In our view, the trial Judge had not given a fair and liberal meaning to s.206 of the Organic Law. His conclusion followed that of the trial Judge in Ijape's case, which with respect, we find is misconceived as it were. We reiterate that, the Court in that case also failed to give a fair and liberal meaning to s.206, even though it did discuss this issue.

It is our opinion therefore that this application must succeed for all the reasons that we have alluded to. There was clearly an error of law when the trial Judge considered the form and technicalities of a petition in s.206 when that provision does not specifically provide so. That is one reason we hold that the fair and liberal meaning to be given to s.206, has not been given.

In summary, we find that the trial Judge had misconstrued s.206 of the Organic Law by holding it to be a provision that must be strictly complied with thereby reaching an erroneous conclusion that the applicant's petition was incompetent. We conclude that s.206 is not a requisite of a petition for the reasons that we have given, and in particular, because of s.208, s.209 and s.210 of the Organic Law.

It is the judgment of the Court therefore that the trial Judge fell into error in his findings and conclusion. The applicant is therefore entitled to the relief he seeks in his application.

Accordingly, we make the following orders:-

1. The decision of the National Court is quashed.

2. The Petition, EP 15 of 2003, is reinstated.

3. All grounds of the petition proceed to substantial hearing.

4. The applicant shall have his costs of the proceedings both in this Court and the National Court.

5. The deposit of K5,000.00 paid as security for costs on 23 April 2003 on receipt No. 14545 shall be refunded to the applicant.

6. The orders are abridged to the date of settlement which shall take place forthwith.

We direct that parties appear before the National Court on 7 October for Directions Hearing for the purpose of listing the petition for hearing, without any further delay.

Orders accordingly.

Lawyer for applicant: Maladinas.
Lawyer for first respondent: Pato Lawyers.
Lawyer for second respondent: Nonggorr & Associates.