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Lambu v Ipatas [1997] PGNC 190; [1998] PNGLR 414 (22 September 1997)

[1998] PNGLR 414

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAVID LAMBU

V

PETER IPATAS;
EDWARD KONU; AND
THE ELECTORAL COMMISSION

WAIGANI: WOODS J
22 September 1997

Facts

The petitioner was a losing candidate for the Enga Regional seat in the 1997 National elections. After the declaration of the election result the petitioner filed a petition disputing the election of the first respondent as the elected member for Enga Province.

At the preliminary hearing the petitioner objected to the representation of the respondents by practicing lawyers. This objection was made pursuant to s 222 of the Organic Law on National and Local-level Government Elections (OLNLGE).

Held

1. The process of disputing an election result as set out by the OLNLGE is simple because it was designed for ordinary citizens.
   
2. The aim of s 222 is to enable the parties to an election dispute an equal footing so that no party is disadvantaged by the appearance of legal counsels.
   
3. Where the petitioner is an experienced legal practitioner, it would not be fair to the other parties if they are not given leave by the count pursuant to s 222 to be represented by practicing lawyers.
   

Counsel

(undisclosed)

24 September 1997

WOODS J. This matter has come before me by way of compulsory conference in accordance with the Practice Directions to enable the court to have relevant matters planned and all necessary steps for the eventual trial of the matter are sorted out and, to ensure that the trial comes on as early as possible.

The petitioner is appearing for himself without the assistance of a practicing lawyer and is objecting to the respondents appearing through practicing lawyers. This objection is being made by virtue of the requirement in s 222 of the Organic Law on National and Local-level Government Elections (OLNLGE) which says:

"(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."

At this compulsory conference, the respondents to the petition are appearing through the representation of practicing lawyers. I have given these lawyers leave to appear today and make submissions on this objection.

Petitions to dispute the election of representatives to the Parliament of the country are creatures of statute. And they are treated very seriously because they challenge the representation of the people in the Parliament. Therefore, the whole procedure as laid down in the OLNLGE for the hearing and resolution of such a dispute, points to a speedy resolution of such matters with no provisions for lengthy pleadings and opportunity for delay. And because the representation of people in the Parliament is a matter that concerns every citizen, the procedure has been made as simple as possible for all citizens to undertake if they feel that such is warranted. Thus, it is felt that the ordinary aggrieved citizen should not have to avail themselves of the cost of lawyers, but should be able to make the complaint or petition themselves and then present it to the court.

Section 222 of the Organic Law requires the court to consider the representation of the parties at the very beginning of the proceedings and a petitioner who has filed a petition himself and who intends to prosecute the petition himself is therefore, quite entitled to object to the other parties having separate representation.

The petitioner has submitted that the first respondent in this matter is an educated man of great experience and status and should be quite able to give the court all the assistance needed to answer the petition. And further why should the petitioner run the risk of substantial legal costs against him if he fails whereas the respondent will not have that risk. The petitioner is asking for all things to be equal before the court and for the spirit of the Organic Law to be enforced.

The petitioner is making the same application in respect of all the respondents. It was submitted that whilst the Electoral Commission is a statutory office it could still be represented by an officer of that office duly appointed to appear as the representative of the Commission for the purpose of the petition.

Now if all things were equal then I may consider acceding to the applicant’s request.

I note here that the question of the level of costs for a losing party when a party is not represented by a lawyer is a separate matter to be considered in due course at the conclusion of the case and obviously the equality of representation may have some bearing on the way the costs are allocated or ruled upon.

However, it is well known, and the petitioner does not deny, that he is a graduate in law with many years experience as a practising lawyer although he is not registered at present with a practicing certificate. In the circumstances therefore, recognising the qualifications and experience of the petitioner and to ensure that matters do appear fair before the court and to assist with the expeditious hearing of this petition I grant leave to the respondents to each be represented by a lawyer.

Lawyers: undisclosed