Yaki v Trawen [2007] PGNC 45; N3142 (3 July 2007)

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NAIPET KEAE
RETURNING OFFICER FOR KANDEP OPEN ELECTORATE
Second Defendant

PARLIAMENT – Elections – Nomination – Nomination by third defendant – Allegations of invalid nomination – Whether nomination is the same as qualification - Whether National Court has power to intervene – Whether National Court has jurisdiction to deal with issue of nomination prior to election.

Kevin Masive v. Iambakey Okuk [1985] PNGLR 263.
The Electoral Commission & Ors. v. Pila Niningi (2003), unreported, SC 710, 20th June 2003.
Oscar Pomaleu & Ors. v. William Skate Jr & Anor. (2006), unreported, SC 838, 21st July 2006.
Section 19 Reference by Attorney General (2002), unreported, SC 689, 26th July 2002 (Amet, CJ., Kapi, DCJ., Sheehan, Sakora, Sevua, JJ)
Thomas Niggints v. The Electoral Commission (1992), unreported, N 1072, 24th June 1992 (Woods, J)
Dr. Clement Waine v. Andrew Trawen & Electoral Commission (OS 344 of 2007 EP) (2007), unreported, 29th June 2007 (Sevua, J)
NEC & Luke Lucas v. Public Employees Association of PNG [1993] PNGLR 264

Constitution, ss. 103, 135, Schedule 2.9 (1)
Organic Law on National & Local - Level Government Elections, ss. 19, 83, 87, 88, 89, 92, 97.

P. Ame, for Plaintiff
R. William, for First & Second Defendants
P. Dowa, for Third Defendant

1. SEVUA, J: By way of originating summons filed on 30 May 2007, the plaintiff claimed the following relief:

2. The facts which the plaintiff and the first and second defendants agreed to are these. Writs for the Kandep Open Electorate were issued on 4 May 2007 and closed on 10 May 2007. This is an error of fact because the writs for all electorates are not closed and will return on 30 July 2007. The place of nomination for the Kandep Electorate was the Council Chambers at Kandep Station. The Returning Officer for Kandep is Naipet Keae, the second defendant in these proceedings, who accepted the third defendant’s nomination on an unknown date between 3rd and 10 May 2007. The deposit slip for the nomination fee paid at Bank South Bank, Wabag, has two different dates, 4th and 5 May 2007. The third defendant was at Wabag for the Wabag District Treasury Opening on 4 May 2007 and left for Mt Hagen by road the same day and was later accommodated at the Highlander Hotel on the night of the same day.

3. Facts in dispute are; the third defendant was not in Kandep on 4 May 2007 to nominate in the presence of the Returning Officer for Kandep Open Electorate. The nomination fee of K1, 000.00 was not paid on 5 May 2002 as it was a Saturday and the bank was not open. The third defendant did not nominate at 8:00 am on 5 May 2007 at Kandep as he was not in Kandep. The Returning Officer could not have accepted the third defendant’s nomination because the third defendant was in Mt Hagen on 7 May 2007 at 8:00 am. The third defendant did not nominate at Kandep during the nomination period. He was accommodated in Room 102 at the Highlander Hotel, Mt Hagen from 3rd May to 7 May 2007. And finally, the third defendant was at Kandep on 3rd May for the Kandep District Treasury opening and left Kandep on a chartered plane for Mt Hagen on the same date.

4. The plaintiff’s evidence consisted of his two affidavits sworn on 4 May 2007 and 22 June 2007; the affidavits of Wesley Gau; Steven Aimos, Thomas Lotara, Jerry Katapu, Reuben Sei and Kapit Kamaip. Jerry Katapu and Reuben Sei were cross examined by Mr. Dowa, counsel for the third defendant.

5. The defendants also filed their affidavits and they relied on their own affidavits. The plaintiff’s counsel did not cross examine the second and third defendants who were available and present in Court during the hearing. It was a golden opportunity for the plaintiff to cross examine the second and third defendants because of the disputed facts and the serious allegations made against them for the reason that will become apparent later in the judgment.

6. The plaintiff’s case is depended on the affidavit evidence of his witnesses, two of whom, might have had ulterior motives to give evidence against the third defendant. These are the two witnesses who were cross examined. In essence, the plaintiff’s evidence is that the third defendant was not in Kandep on the date he allegedly nominated, that is, Saturday, 5 May 2007. Serious allegations of impropriety has also been made against the Returning Officer, who is the second defendant in these proceedings. It appears that the plaintiff and his witnesses had kept a strict vigil on the third defendant during the nomination period for whatever reasons they had.

7. However, contrary to the plaintiff’s evidence, the second and third defendants have deposed to in their affidavits that the third defendant had nominated on Saturday, 5 May 2007, and the second defendant had accepted that nomination. The Nomination Form or Form 23 is Annexure "A" to the affidavit of the second defendant. It is necessary to refer to it.

8. On the form itself, the nomination is made to the Returning Officer for the Kandep Electorate and such nomination was made at the Kandep District Office. The third defendant has completed the qualification requirement numerated on paragraphs 1 to 6 inclusive. On paragraph 6 especially, he declared that he is qualified in law to be elected as a member and he consented to act if elected.

9. The plaintiff has taken issues with the substance of declarations in the numerated paragraph 5. In that paragraph there are eight (8) ‘yes’ and ‘no’ answer boxes which a candidate is required to tick either depending on his answer. For that reason, Mr. Ame submitted that the third defendant’s nomination should be rejected because he was not qualified to nominate.

10. The plaintiff’s affidavit and his witness affidavits contain a lot of hearsay evidence which the Court rejects. All the evidence relating to the third defendant’s stay at the Highlander Hotel in Mt. Hagen are hearsay therefore inadmissible. This evidence would have been proper and admissible had they come from staff of the hotel.

11. Furthermore, I consider that the plaintiff’s evidence relating to nomination on 3rd and 4 May 2007 are irrelevant and immaterial because the third defendant never said he nominated on either of those dates. His evidence, supported by that of the Returning Officer is that he (Polye) nominated on the morning of Saturday, 5 May 2007. The contentious issue of time raised by the plaintiff is pure speculation and irrelevant.

12. The fact is that the Returning Officer has annexed Form 23, the nomination form, to his affidavit sworn on 21 June, 2007. It is in evidence because the Returning Officer whose responsibility is to accept nominations, had accepted and endorsed it. It is not correct for Mr. Ame to submit that the third defendant did not consent to act if elected and did not make a declaration. The form itself shows that the third defendant had signed the nomination form which contains the consent and declaration in numerated paragraph No. 6. I hold that for the purposes of s.87 Organic Law, the third defendant’s nomination is valid.

13. I consider that the plaintiff’s counsel’s submissions are misconceived and unmeritorious. The plaintiff and his counsel are confused as to the whole nomination process as opposed to the qualifications and that is reflected in their submissions based on the Supreme Court decision in Kevin Masive v. Iambakey Okuk & Anor [1985] PNGLR 263. Due to their confusion of the law, this Court has been misled by counsel in submitting that the National Court has jurisdiction to deal with the issue of nomination. Therefore I will discuss that decision at some length, however at this juncture, I need to say also that other cases cited by Mr. Ame are not relevant to the issue of nomination, either because the facts are different or the legal principles are inapplicable to the present case. Therefore it will not be necessary to refer to those cases.

14. In Kevin Masive (supra) the Supreme Court in a five men bench considered the following question:

"Once nominations have been declared under s.92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate." (my emphasis)

15. I note that Mr. Ame, who forcefully argued that that five member bench Supreme Court decision has not been overturned by another five men bench or a seven men bench on the issue of nomination and the National Court’s jurisdiction, was in fact misleading the Court and I will correct his misconception of the law in that case.

16. I have already alluded to the question which the Supreme Court in that case was asked to answer. The Supreme Court answered that question in this manner.

"The National Court has jurisdiction to determine a person’s qualification to stand as a candidate in an electorate to the National Parliament after nominations have been declared under the Organic Law on National Elections s.92, and before the commencement of polling," (my emphasis)

17. At this juncture, I wish to traverse and go to the background of that case so that everyone interested in the present case will understand the background and the law.

18. In 1983, Iambakey Okuk won the elections for the Unggai-Bena seat in a By-Election. Kevin Masive who was an unsuccessful candidate challenged that result in an election petition as he claimed that Iambakey Okuk was not residentially qualified to stand for Parliament under s.103 (2) Constitution. Woods, J who heard that petition ruled that Iambakey Okuk was not residentially qualified to contest the Unggai-Bena seat therefore declared the election void.

19. Writ for a By-Election was therefore issued and the Returning Officer declared that Iambakey Okuk and Kevin Masive were two of the four candidates declared. Masive then applied to the National Court by way of originating summons seeking a declaration that Iambakey Okuk was not qualified to stand as a candidate, and an order directing the Returning Officer not to include Okuk’s name in the ballot paper. The sole question referred for the opinion of the Supreme Court has already been referred to.

20. The joint judgment of Pratt & Bredmeyer, JJ discussed what I perceived to be the issue that Mr. Ame has misconceived thus misled this Court. At pages 268 and 269 their Honours referred to disqualifications under s.135(a) and s.103(3) Constitution and said:

"The four kinds of disqualifications mentioned in that Section which in brief are:

21. Their Honours continued at the bottom of p.268 and said what I consider to be relevant to the issue which arises in this present case. At the bottom of that page to the top of p.269, their Honours said:

"On the basis of s.135 and s.103 which we read together, the National Court has jurisdiction to determine the qualifications of a person to be (or to remain) a member of Parliament on these six matters. We stress these six matters because there are other matters which would disqualify a person from being a member of Parliament but which are not stipulated in the Constitution; for example, if he fails in his nomination paper to declare that he is qualified under the laws of Papua New Guinea to be elected, if he fails to get his nomination to the returning officer before the hour of nomination, or if he fails to accompany it with K100.00 in money or in a bankers cheque. These three matters are requirements of the Organic Law on National Elections, s.86, not matters for disqualification listed in the Constitution." (my own emphasis)

23. Section 103 Constitution provides for the qualifications and disqualifications for membership, which I have referred to in summary form from the judgment of Pratt and Bredmeyer, JJ in Kevin Masive (supra).

24. It is relevant to refer to the Constitutional provisions in order to distinguish the issue of qualifications as opposed to nomination because if one reads the above Supreme Court case carefully, he would come to the same conclusion that I have, in the present case.

25. However, at this juncture, I note from the plaintiff’s relief claimed in his originating summons that he is claiming declaratory orders in relation to issues on nomination, NOT qualifications or disqualifications. In his prayer for relief in paragraph 1 of the originating summons, the plaintiff claims a declaration that the third defendant’s nomination on 4 May 2007 is invalid.

26. It is obvious, and I so find that, that issue did not arise at all because there is no evidence that the third defendant nominated on 4 May 2007. The plaintiff has gone to all the troubles of filing affidavits that deposed to the third defendant’s non-nomination on 4 May, however, the third defendant’s evidence is that he nominated on Saturday, 5 May 2007. The above relief is therefore misconceived and irrelevant.

27. The second relief claimed is, also a declaratory order that the third defendant’s nomination on 5 May 2007 is invalid on the grounds that he was not physically present to nominate at the place of nomination. The significance of this relief not being relevant, in my view, is that, it relates to the issue of nomination whereas the Supreme Court decision relied on by the plaintiff determined the issue of qualifications. This Court must reiterate once gain that the plaintiff’s counsel has misled this Court when he maintained his position from the preliminary stage of the hearing that he would show the Court that the National Court has jurisdiction to entertain this case as it is bound by the decision of the Supreme Court in the above case.

28. The third relief is also a claim for a declaration that any purported nomination by the third defendant on 7th May is invalid. In my view, this claim should be dismissed outright because the third defendant did not say he nominated on the 7 May 2007. The third defendant’s evidence which is supported by the evidence of the Returning Officer, the second defendant, is that the third defendant nominated on Saturday, 5 May, 2007. This relief like the first relief is misconceived, irrelevant and must be dismissed for what its worth.

29. The fourth order claimed by the plaintiff is that the third defendant’s name should be removed from the ballot paper and ballot posters for Kandep Open Electorate for the 2007 General Elections.

30. The question that naturally arises is, does the National Court have jurisdiction to intervene in the nomination process of an election? The plaintiff’s counsel has failed to address the Court on this issue because he has confused himself with the question of qualifications for elections.

31. It is my view that the nomination process is not the same as the qualifications set out in s.103(1),(2) & (3) Constitution. Those matters bar a person or intending candidates from nominating in a general election, they do not deal with the nomination process. The nomination process is a matter under the Organic Law on National Elections while qualifications or disqualifications are found in s.103 Constitution. These two matters are quite distinct. They are not the same.

32. As I understood from Mr. Ame’s arguments, because there appears to be errors in the third defendant’s nomination form, the third defendant’s nomination is therefore invalid and thus the basis for the plaintiff’s application for the declarations I have already alluded to. I am of the opinion that, that is a misconception by the plaintiff’s counsel. Because the plaintiff says the third defendant’s answers to numerated paragraph 5 in Form 23 should be in the negative, the third defendant is therefore disqualified from nominating.

33. I consider that, that argument is misconceived. Matters pertaining to nomination are contained in Form 23, which is the nomination form. This form is Annexure "A" to the affidavit of the second defendant, and from the contents of the form the following information appear.

34. The nomination was made to the Retuning Officer; and the place of nomination is stated as Kandep District Office. Under qualification, there are ticks in numbered paragraphs shown as follows:-

35. The candidate’s signature appears on top of page 3 of the form and is dated 5 May 2007. On the bottom of page 3 under ‘RECEIPT BY RETURNING OFFICER’, the nomination is stated as Received by the Returning Officer; Name Naipet Keae, at Kandep District Office on Monday, 7 May 2007 at 8.00 am.

36. At paragraph 7 of his affidavit sworn on 21 June 2007, the Returning Officer, Naipet Keae said he made a mistake regarding the date he received the nomination. He said it should have been 5 May 2007, not 7 May 2007. As I adverted to earlier, the Returning Officer was available in Court, but was not cross-examined by Mr. Ame. Similarly, the third defendant was available in Court, however, Mr. Ame did not cross-examine him. It is trite law that in matters of veracity or in order to confirm or refuse a witness’s statement or evidence, he must be cross-examined.

37. In my view, the plaintiff and his counsel could not, as a matter of law, rely on the plaintiff’s evidence and his witness’s evidence to say that, the Court should accept those evidence. In fact, the plaintiff’s witnesses Jerry Katapu and Reuben Sei were cross-examined by Mr. Dowa, and it seems that those two witnesses have and axe to grind against Mr. Polye. Their motive is quite questionable, in my view. In view of the fact that the plaintiff and his witnesses are saying that the third defendant did not nominate on 5 May 2007, Mr. Ame should have vigorously cross-examined the second and third defendants to refute their evidence. As it were, the Court could not say they were not telling the truth, because their evidence has not been tested in cross examination.

38. I consider that, as far as the issue of nomination is concerned, there is a prima facie case that the third defendant did nominate on 5 May 2007. Form 23, the nomination form, is in evidence and has not been objected to. There is no evidence at all that the contents of Form 23 were not entered or endorsed by the third defendant. His evidence in his own affidavit sworn on 24 June 2007 has not been discredited as he was not cross-examined on his affidavit.

39. Accordingly, I find as a fact that the third defendant did nominate on 5 May 2007 and therefore his nomination is valid.

40. The plaintiff’s submission in relation to the errors in the nomination form itself is cared by s.89 Organic Law, which provides:

No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nomination.....is satisfied that the provisions of this law have been substantially complied with.

41. In my view, that provision is very clear and unambiguous. The Electoral Commission cannot refuse a nomination by reason of error or defect. I consider that the nomination of the third defendant had complied with the requirements of the Organic Law, s.83 to s.88. These are relevant provisions relating to nomination, and I consider that the third defendant has complied with them except some wrong answers under paragraph 5 in the nomination form. I can appreciate the arguments raised by Mr. Ame, however, it is my view that they are misconceived because of the operation of s.89.

42. I am of the opinion that the matters stipulated in s.103 (1), (2) and (3) Constitution are matters pertaining to qualifications, not nomination. Therefore a person who comes to Court to challenge a candidate’s qualification is arguing that that candidate is not entitled to nominate or be elected because he does not qualify under s.103 Constitution, or in other words, he is disqualified by reasons of those matters mentioned in subsections (1), (2) and (3). I agree with, and adopt what Amet, J (as he then was) said in Kevin Masive (supra) at p273:

"It becomes overwhelmingly clear, in my opinion, when s.135(a) and (b) are read with s.103(1), (2) and (3), and with s.206 of the Organic Law, that the qualifications spoken of by s.103 are grounds which do not have to do with the process and procedures of nominations." (my own emphasis)

44. I have referred to the above case extensively to illustrate the fact that the Supreme Court was dealing with the issue of qualifications, not nomination, therefore Mr. Ame had misled the Court when he argued that this Court had jurisdiction to deal with the issue of nomination, however, that is not the case at all. I reiterate that the issue under consideration and determination in that case related to the qualification of Mr. Okuk, which Mr. Masive had questioned. That question has nothing to do with nomination whatsoever. That much is apparent from the question referred to the Supreme Court by the National Court, and also the answer to that question.

45. I have cited the question referred, and the answers by their Honours below will emphasise the fact that the issue of nomination was not being determined by the Supreme Court.

Kidu, CJ	I would answer the question in the affidavit
Pratt & Bredmeyer, JJ	We would answer, yes, to the question referred to us.
Amet, J	In the end result, my answer to the question referred is that the National Court does have jurisdiction under s.135 (a)...
Woods, J	I agree with the reasons of Pratt and Bredmeyer, JJ...

47. There is no ambiguity or doubt as to the answers by their Honours in respect of the referred question. It is a specific question which relate to a specific constitutional issue, namely, qualification. The affirmative answer by each Judge relates to qualifications and not nomination. I reiterate that the Supreme Court did not determine the question of nomination, but qualifications under s.103 (1),(2) and (3) Constitution.

48. On the basis of the Supreme Court decision alone, it is not necessary to canvass the submissions by Mr. William and Mr. Dowa, although I was of the view that the preliminary issue of law which they had wanted to raise at the beginning of the hearing was appropriate. Nevertheless, that issue is no longer relevant due to the final outcome of this case. Whilst the plaintiff was entitled to his day in Court, at the end of the day, it was a complete waste of time, in my view, because the Supreme Court decision he sought to rely on did not assist him at all.

49. As it were, the Supreme Court decision was in respect of the question of qualifications, not nomination. I can appreciate the basis for the Supreme Court decision. Whilst the Supreme Court had held that the National Court has jurisdiction to entertain an application relating to qualifications pursuant to s.135 (a) Constitution, I think the issue could also arise under s.135 (b) in relation to a challenge to the validity of the election after the declaration.

50. In my view, the fact that the Supreme Court did not hold that the National Court has jurisdiction also to deal with the issue of nomination prior to polling is obvious. The decisions of the Supreme Court in three subsequent cases are consistent with the above case.

51. In the first case, Section 19 Reference by Attorney General (2002) unreported, SC 689, 26th July 2002 (Amet, CJ., Kapi, DCJ., Sheehan, Sakora, Sevua, JJ) the Attorney General referred to the Supreme Court questions relating to Failure of Elections under s.97 Organic Law. Although it is acknowledged that the questions referred for the opinion of the Supreme Court are not the same here, I consider that broadly what the Supreme Court determined is relevant and applicable in the present case. I cite the Supreme Court at p8 of its judgment:

"The authority to organize and conduct the elections is given to the Electoral Commission. The National Court is given jurisdiction to enquire into and determine the validity of such elections.

The Constitution and the Organic Law sets out how and when elections shall be held, giving time periods and the limits for the various processes of election sufficient to enable nomination of candidates, polling, scrutiny and returns of writ’s of election."

52. That case was cited in a subsequent Supreme Court case, the Electoral Commission & Ors v. Pila Niningi (2003), unreported, SC 710, 20th June 2007. The Court then, was dealing with extension of polling schedules in the Supplementary Elections for the Imbonggu Open Electorate in the Southern Highlands Province. At p.10 of the judgment, the Supreme Court said:

"Where power is expressly given to the Electoral Commission and its officials, the Courts should not interfere in the election process."

53. In respect of the issue of nomination, the Electoral Commission has the sole discretion to accept or reject a nomination. It is clear from the intention of the Parliament that the Electoral Commission must have that discretionary power and that intention is manifested by s.87 (2) Organic Law –

"Where in relation to a nomination, objection is made by anyone, or the Electoral Commission on its own motive believes, that a person who has nominated is not qualified to be a member of Parliament, the Electoral Commission may reject the nomination." (my emphasis)

54. It s my opinion that, that provision confers no co-current power or jurisdiction to the National Court. The National Court does not have a power to order the acceptance or refusal of nominations. That power vests solely in the Electoral Commission. That is part of the process of nomination and the Court is not entitled to intervene in the decision of the Electoral Commission.

55. The Supreme Court in the above case referred to a decision of Woods, J in Thomas Niggints v. The Electoral Commission (1992), unreported, N 1072, 24th June 1992, where the National Court was dealing with an application by a candidate seeking fresh polling in certain locations. The National Court said at p2:

"The Organic Law itself makes no reference to the National Court stepping in and making orders for the carrying out of the election, however, it does provide the Electoral Commission with fairly powers and discretion to act.

The Electoral Commissioner therefore has fairly powers for dealing with problems. This is an area of Executive Government and Administration.

....a Court should be very careful before it steps in to overrule the discretions and powers of the Commissioner."

56. After the Supreme Court in Pila Niningi (supra) had considered the above cases, Thomas Niggints and Attorney General Reference (supra) the Court went on to say at p.12:

"We consider that those cases accurately set out the proper approach in law in respect of the jurisdiction of the National Court in election matters."

57. These principles were followed in the recent Supreme Court case, Oscar Pomaleu & Ors. v. William Skate Jr & Anor. (2006), unreported, SC 838, 21st July 2006 (Kapi CJ, Injia, DCJ, Salika, J). The Court was dealing with an appeal relating to polling in the National Capital District Regional By-election in which the National Court had ordered that polling be extended for two days.

58. The Supreme Court in that appeal had also referred to the National Court case of Thomas Niggints (supra) and the Section 19 Reference by the Attorney General (supra) and held that the trial Judge had fallen into error. One of the two reasons that the Supreme Court found that the trial Judge fell into error was that he did not follow the decision of the Supreme Court in accordance with Schedule 2.9 (1) Constitution which provides that all decisions of the Supreme Court are binding on all other Courts except itself.

59. Whilst the Supreme Court in William Skate Jr (supra) was dealing with the question of extension of polling schedule by the National Court, it is my view that generally, the Supreme Court has accepted the principle that the National Court has no jurisdiction to intervene in the election processes which remain the domain of the Electoral Commission by virtue of his discretion under the Organic Law on National Elections except only in a disqualification. I consider that, whether the issue is nomination, extension of polling, locations of polling, or any other matter relating to the processes of election, the National Court should not interfere with those processes because the Organic Law on National Elections has given wide powers and discretion to the Electoral Commissioner to exercise. As I have held, the Organic Law does not confer a concurrent power to the National Court to exercise jointly with the Electoral Commissioner in matters of nomination and of elections generally.

60. I adopted the principle that the National Court has no jurisdiction to intervene in the election process in my recent decision in Dr. Clement Waine v. Andrew Trawen & Electoral Commission (OS 344 of 2007 EP) (2007), unreported, 29th June 2007. There is no reason to depart from those principles because as a matter of constitutional law, I am bound by the decisions of the Supreme Court pursuant to Schedule 2.9 (1) Constitution.

61. I reiterate that the Supreme Court decision in Kevin Masive v. Iambakey Okuk (supra) does not apply in the present case because it did not determine the issue of nomination. The Supreme Court was dealing with the issue of qualifications therefore that case has no relevance to the present case. As I have found, Mr. Ame had misled the Court into believing that that decision was relevant to the issue before me in the present case.

62. I am of the opinion, as I had expressed in Dr. Waine’s case, that the National Court has no jurisdiction to intervene in the election processes. In the present case, I conclude that the National Court has no jurisdiction to intervene in the nomination process for the Kandep Open Electorate. The acceptance or rejection of a nomination is at the discretion of a Returning Officer by virtue of s.87 (2) Organic Law (amended) and the Returning Officer is subject to the direction of the Electoral Commissioner pursuant to s.19 (1) Organic Law.

63. Finally in respect of the defendant’s submission that the plaintiff should have come under Order 16 National Court Rules by way of an application for judicial review, I consider that the plaintiff has a choice in the mode of proceedings he wishes to pursue.

64. As I said in Dr. Clement Waine’s case, the Supreme Court in NEC & Luke Lucas v. Public Employees Association of PNG [1993] PNGLR 264 has already settled that issue. A litigant can come to Court either by way of Originating summons under Order 4 or a judicial review application under Order 16 National Court Rules. That is now trite law.

65. This Court therefore declines to grant the relief sought by the plaintiff, and orders that the plaintiff’s application and the entire proceedings be dismissed with costs.

Ame Lawyers: Lawyer for Plaintiff
Nonggorr & Associates: Lawyer for First & Second Defendants
Paulus M Dowa: Lawyer for Third Defendant

National Court of Papua New Guinea

Yaki v Trawen [2007] PGNC 45; N3142 (3 July 2007)