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Simitab v Isifu [2023] PGNC 319; N10480 (28 April 2023)

N10480

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 26 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

BETWEEN:
JIM SIMITAB
Petitioner

AND:
KEVIN ISIFU
First Respondent

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Kariko, J
2023: 31^st March & 28^th April

ELECTION PETITION – PRACTICE & PROCEDURE – application to dismiss petition – elected member died after filing & serving of the petition – vacancy in the seat, s 104(2)(g) Constitution – Electoral Commission obliged to conduct by-election, s 106 Constitution – right to file election petition contained in Organic Law on National and Local Level Government Elections - Constitution is the supreme law - vacancy under s 104(2)(g Constitution not subject to any Organic Law –– petition abates on the death of a member – relief sought untenable, cannot be sustained – inherent jurisdiction of the court to control its proceedings – continuation of the petition serves no practical utility

An elected member to the Parliament died after an election petition disputing his election was filed and served on him. The Electoral Commissioner applied to have the petition dismissed as its continuation served no utility.

Held:

(1) Where a seat of the Parliament becomes vacant upon the death of its member (s 104(2)(g) Constitution), there shall be a by-election which shall elect a new member (s 106 Constitution).
(2) The right to dispute an election result by petition provided for in the Organic Law on National and Local Level Government Elections cannot override the Constitution, which is the supreme law. Application by Amin [1991] PNGLR 1 referred to.
(3) A petition disputing the election of a member to the Parliament, abates upon the death of the member.
(4) In the exercise of its inherent jurisdiction, the court may dismiss an election petition where its continuation would serve no practical utility (where the relief sought is untenable; cannot be sustained).

Cases Cited:
Papua New Guinean Cases

Application by Amin [1991] PNGLR 1
Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085
Kenni v Trawen (2013) N5135
Special Reference by East Sepik Provincial Executive (2011) SC1154

Overseas Cases

Amar Nath v Ashta Bhuja Prasad AIR 1964 A11 431

Legislation:

Constitution
Organic Law on National and Local Level Government Elections
Organic Law on Duties and Responsibilities of Leadership

Counsel:

Mr S Renewa, for the Petitoner
Mr N Onom, for the Second Respondent

28^th April 2023

1. KARIKO, J: This is an application to dismiss an election petition on the basis that it serves no utility because the disputed seat in the Parliament, Wewak Open, is now vacant after the death of the member of the Parliament for that seat.
   

BACKGROUND

2. In the 2022 national general elections, both the petitioner (Jim Simitab) and the first respondent (Kevin Isifu) contested as candidates the Wewak Open seat.
   
3. Upon the return of the writ on 30 July 2022, Mr Isifu was declared the duly elected member for the seat, with Mr Simitab as his runner-up.
   
4. Aggrieved by the result, Mr Simitab filed this election petition on 6 September 2022.
   
5. The petition challenges the validity of the election of the first respondent, claiming that errors and omissions were committed by servants and agents of the second respondent, the Electoral Commission, in the conduct of the election which affected the result of the election.
   
6. After the petition was duly served on the respondents, Mr Isifu sadly passed away in hospital on 13 September 2022.
   
7. Initial legal representation for Mr Isifu in this proceeding was subsequently withdrawn, and the petition was progressed and pre-trialled before Yagi J, the Election Petitions Judge Administrator.
   
8. After hearing from parties on the question whether this court has jurisdiction to continue the hearing given the demise of the first respondent, his Honour decided the question in the affirmative.
   
9. In that hearing, the parties agreed with his Honour that:
   
   • the seat held by Mr Isifu in the Parliament became vacant upon his death by virtue of s 104(2)(g) of the Constitution, and
   • the Electoral Commission is obliged under s 106 to conduct a by-election for the vacant seat.
     
10. His Honour noted that a by-election is a matter for the Electoral Commission, and the petitioner advised that he would reconsider his position if the by-election was to proceed.
    
11. On 17 March 2022, the Electoral Commission filed a notice of motion seeking as principal relief, dismissal of the petition. It relies on s 212(1)(i) and (3) of the Organic Law on National and Local Level Government Elections (the OLE), to contend that the petition is of no utility as the Wewak Open seat is now vacant by operation of the Constitution, s 104(2)(g).
    

CONSTITUTION

12. I consider ss 10, 11, 12, 50, 104, 105, 106, 126 and 135 of the Constitution to be relevant in discussing the issue raised by the Electoral Commission in its application.
    
13. I set out these provisions in full, with emphasis added:
    

10. CONSTRUCTION OF WRITTEN LAWS.

All written laws (other than this Constitution) shall be read and construed subject to—

1. in any case—this Constitution; and

(b) in the case of Acts of the Parliament—any relevant Organic Laws; and

(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

11. CONSTITUTION, ETC., AS SUPREME LAW.
    

(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

12. ORGANIC LAWS.

(1) Subject to Subsection (4), for the purposes of this Constitution, an Organic Law is a law made by the Parliament that is—

(a) for or in respect of a matter provision for which by way of an Organic Law is authorized by this Constitution; and

(b) not inconsistent with this Constitution; and

(c) expressed to be an Organic Law.

(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(3) Nothing in this section prevents an Organic Law from—

(a) making any provision that might be made by an Act of the Parliament; or

(b) requiring any provision to be made by an Act of the Parliament that might otherwise be so made,

but any such provision may be altered by the same majority that is required for any other Act of Parliament.

(5) Where this Constitution authorizes an Organic Law to make provision for any matter, the Organic Law may—

(a) make full provision for all aspects of that matter notwithstanding that all such aspects have not been expressly referred to in the provision authorizing the Organic Law except where this Constitution expressly limits the aspects of that matter for which provision may be made in an Organic Law; and

(b) may impose conditions, restrictions or modifications in respect of that matter or any aspect of it, except where this Constitution expressly states that conditions, restrictions or modifications shall not be imposed in respect of that matter.

50. RIGHT TO VOTE AND STAND FOR PUBLIC OFFICE.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or

(ba) has dual citizenship of another country,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

104. NORMAL TERM OF OFFICE.

(1) An elected member of the Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2) The seat of a member of the Parliament becomes vacant—

(a) if he is appointed as Governor-General; or

(b) upon the expiry of the day fixed for the return of the writs, for the general election after he last became a member of the Parliament; or

(c) if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or

(d) if he is absent, without leave of the Parliament, during the whole of three consecutive meetings of the Parliament unless Parliament decides to waive this rule upon satisfactory reasons being given; or

(e) if, except as authorized by or under an Organic Law or an Act of the Parliament, he directly or indirectly takes or agrees to take any payment in respect of his services in the Parliament; or

(f) if he becomes disqualified under Section 103 (qualifications for and disqualifications from membership); or

(g) on his death; or

(h) if he is dismissed from office under Division III.2 (leadership code).

(3) For the purposes of Subsection (2)(d), a meeting of the Parliament commences when the Parliament first sits following a general election, prorogation of the Parliament or an adjournment of the Parliament otherwise than for a period of less than 12 days and ends when next the Parliament is prorogued or adjourned otherwise than for a period of less than 12 days.

105. GENERAL ELECTIONS.
     

(1) A general election to the Parliament shall be held—

(a) within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or

(b) if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—

(i) a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or

(ii) the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or

(c) if the Parliament, by an absolute majority vote, so decides.

(3) The Head of State, acting with, and in accordance with, the advice of the Electoral Commission, shall fix the first and last days of the period during which polling shall take place and the date by which the writs for a general election shall be returned.

(4) In advising the Head of State under Subsection (2), and in conducting the election, the Electoral Commission shall do its best to ensure that—

(a) in a case to which Subsection (1)(a) applies—the date for the return of the writs is fixed as nearly as may reasonably be to the fifth anniversary of the date fixed for the return of the writs for the previous general election; and

(b) in a case to which Subsection (1)(b) or (c) applies—the date for the return of the writs is fixed as soon as may reasonably be after the date of the relevant decision of the Parliament.

106. BY-ELECTIONS.
     

If the office of an elected member of the Parliament becomes vacant otherwise than by virtue of Section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurs—

(a) within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or

(b) after the writ has been issued for an election under Section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first-mentioned writ shall be deemed to have been revoked.

126. ELECTIONS.
     

(1) Elections to the Parliament shall be conducted, in accordance with an Organic Law, by an Electoral Commission.

(2) General elections shall be held in accordance with Sections 105 (general elections) and 106 (by-elections), as required.

(3) The members of the Parliament (other than the nominated members) shall be elected under a system of universal, adult, citizen suffrage in accordance with Section 50 (right to vote and stand for public office) and the other Constitutional Laws, and the voting age is 18 years.

(4) A citizen's right to vote in an election to the Parliament is as provided by Section 50 (right to vote and stand for public office).

(5) No non-citizen may vote in an election for the Parliament.

(6) The Electoral Commission is not subject to direction or control by any person or authority.

(7) An Organic Law shall make provision for and in respect of—

(a) the appointment, constitution and procedures of the Electoral Commission, and for safeguarding its independence; and

(b) the electoral system; and

(c) safeguarding the integrity of elections; and

(d) appeals to the National Court in electoral matters.

(8) An Organic Law relating to provinces or provincial government may confer or impose on the Electoral Commission powers, functions, duties or responsibilities in relation to provincial elections.

135. QUESTIONS AS TO MEMBERSHIP, ETC.
     

The National Court has jurisdiction to determine any question as to—

(a) the qualifications of a person to be or to remain a member of the Parliament; or

(b) the validity of an election to the Parliament.

ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (OLE)

14. The preamble of the OLE states that it is a law to implement, among others, s 126 (Elections) of the Constitution.
    
15. The prime function of the Electoral Commission is to conduct elections; s15.
    
16. The writs for general elections (s 105 of the Constitution) and by-elections (s 106 of the Constitution) are issued by the Head of State acting with, and in accordance with, advice of the Electoral Commission; s 73 and s 74.
    
17. Part XVIII Division 1 deals with disputed elections and returns with respect to elections to the Parliament. Provisions in this Part that are relevant in discussing the issue at hand are ss 206, 207 and 212 which I set out, again with emphasis added:
    
    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.

207. JURISDICTION OF NATIONAL COURT EXERCISABLE BY SINGLE JUDGE.
     

The jurisdiction of the National Court in relation to any matter under this Part may be exercise by a single Judge.

211. RIGHT OF RETURNING OFFICER TO BE REPRESENTED.
     

The Electoral Commission may, by leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition.

212. POWERS OF COURT.
     

(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a) adjourn; and

(b) compel the attendance of witnesses and the production of documents; and

(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and

(d) order a re-count of ballot-papers in an electorate; and

(e) examine witnesses on oath; and

(f) declare that a person who was returned as elected was not duly elected; and

(g) declare a candidate duly elected who was not returned as elected; and

(h) declare an election absolutely void; and

(i) dismiss or uphold a petition in whole or in part; and

(j) award costs; and

(k) punish contempt of its authority by fine or imprisonment.

(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.

(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

SUBMISSIONS BY THE ELECTORAL COMMISSION

18. The Electoral Commission argued that this proceeding is futile as it cannot be sustained.
    
19. Its counsel, Mr Onom, first submitted that the interests of Mr Isifu as a respondent in the petition does not survive upon his death given the special nature of an election petition as opposed to ordinary civil suits, nor can the deceased be substituted by another person.
    
20. Counsel cited for persuasive value, the Indian case authority of Amar Nath v Ashta Bhuja Prasad AIR 1964 A11 431 for the proposition that if the right to sue does not survive on the death of a deceased defendant, there can be no substitution nor can there be continuation of the dispute. That case dealt with an election petition filed pursuant to s 81 of the Representation of People Act which disputed the election of the sole respondent as the member of the Uttar Pradesh Legislative Assembly. Under s 116 of the Act other persons could apply to be substituted for a sole respondent upon his death while the petition was being tried. The petition was dismissed and after an appeal was lodged, the respondent died. The right to have the respondent substituted by another upon his death was not provided for in the case of an appeal. The court held that the appeal therefore abated on the death of the respondent.
    
21. Mr Onom stressed that the Wewak Open seat in the Parliament became vacant upon the death of Mr Isifu pursuant to s 104(2)(g) of the Constitution, and consequently, the Electoral Commission is obligated under s 106 of the Constitution to conduct a by-election.
    
22. It was further argued that the principal relief sought in the petition, which is an order that “the First Respondent is not duly elected”, is untenable – that it cannot now be granted for the reason that the Mr Isifu has died and is no longer the elected member.
    
23. In relation to the other relief sought, namely that the petitioner be declared the duly elected member instead, Mr Onom suggested the court does not have jurisdiction under s 212 of the OLE to make such declaration.
    
24. Lastly, it was submitted that while s 135(b) of the Constitution grants jurisdiction to the National Court to determine disputes regarding the validity of an election to the Parliament, it must be read in harmony with s 104(2)(g) and s 106 such that the right to challenge an election of a member ceases upon the death of the member.
    
25. While Mr Onom acknowledges that there are no case authorities in this jurisdiction directly on point regarding the issue before the court, he mentioned the case of Kenni v Trawen (2013) N5135 which involved a similar fact situation, that is, an elected member of the Parliament died while a petition disputing his election was pending trial. In that case however, the petitioner agreed to withdraw the petition upon learning of the death of the member.
    
26. Mr Onom also cited the case of Application by Amin [1991] PNGLR 1 which he submitted is a useful reference in this discussion.
    
27. In that case, a member of the Parliament resigned his seat in writing to the Speaker. Under s 104(2)(c) of the Constitution when a member so resigns, his seat becomes vacant. The resignation letter was duly submitted while the member was on suspension following his referral to a Leadership Tribunal appointed under the Organic Law on Duties and Responsibilities of Leadership (the OLL) on charges of misconduct.
    
28. The main issue before the Supreme Court was whether the member’s right to resign was suspended by the fact that he was under suspension from duties, thereby rendering the resignation not effective, meaning that the tribunal should continue its hearing. The affirmative argument was that the power of suspension of a leader (the member) provided for in s 28 of the OLL overrides the leader’s right to resign.
    
29. By a 4-1 majority, the Supreme Court held that pursuant to s 104(2)(c), an elected member of the Parliament, even under suspension, ceases to be a member upon his resignation, and a Leadership Tribunal ceases to have jurisdiction to continue the hearing into the referral of the member.
    
30. Mr Onom highlighted that the Constitution s 104(2)(c) prevailed in the Application by Amin because upon his resignation, the leader ceased to be subjected to the Leadership Tribunal established under an Organic Law, the OLL. Counsel submitted that similarly the Constitution s 104(2)(g) overrides the hearing of the election petition, which is provided for also by an Organic Law, the OLE.
    

SUBMISSIONS BY THE PETITIONER

31. The petitioner acknowledged that:
    

(1) under s 104 (2)(g) of the Constitution, a vacancy in the seat of the Parliament is created upon the death of a member of the Parliament; and

(2) pursuant to s 106 of the Constitution, a by-election shall be conducted to fill the vacancy.

32. However, it was argued that a by-election would provide an “easy way-out” for the Electoral Commission from having to answer to the serious allegations made against its servants and agents, which form the grounds of the election petition.
    
33. Mr Renewa, for the petitioner, further stressed that disputing election results by way of a petition is a legal process established by an Organic Law, which is a Constitutional Law. This law recognizes the rights of a petitioner to challenge an election result and seek a declaration of the disputed seat in his favour.
    
34. Furthermore, there is nothing in the law and ss 104 and 106 of the Constitution that says that a pending election petition against a member of the Parliament is “abandoned” upon the death of the member.
    
35. It was also argued that because the petition was properly filed under s 206 of the OLE, the National Court still has jurisdiction granted to it under s 207 to hear the petition to its conclusion notwithstanding the death of Mr Isifu.
    
36. While accepting that ordinarily a by-election would necessarily follow the occurrence of a vacancy, and that the Electoral Commission has the power to conduct a by-election, Mr Renewa urged the court to note that in the present matter, the petition was already afoot before Mr Isifu died, and the all the grounds of the petition are levelled against the Electoral Commission, and not the deceased member. He explained that his client would not have persisted with the petition had the member died before the filing of the petition. In these circumstances therefore, Mr Renewa submitted that this petition be considered a “special case” and the petitioner be allowed to continue to exercise his right to challenge the election of Mr Isifu.
    

CONSIDERATION

37. I first state that I am satisfied proper jurisdictional basis has been cited in the notice of motion.
    
38. As to the backdrop to this application, there is no disagreement – the duly elected member for the Wewak Open seat in the Parliament following last year’s general elections, died after the election petition disputing his election was filed and served on him.
    
39. Pursuant to s 50 of the Constitution, the petitioner and the deceased member exercised their right to be elected to the Parliament, and the constituents of the Wewak Open exercised their right to vote for their member.
    
40. The Electoral Commission, responsible for conducting elections pursuant to s 126 of the Constitution and the OLE, ran the 2022 general elections as provided for in s 105 of the Constitution and therefrom, Mr Isifu was declared the duly elected member for Wewak Open.
    
41. Mr Simitab then challenged the election by filing this petition under s 206 of the OLE in the National Court which has jurisdiction to determine questions regarding the validity of an election to the Parliament; s 135(b) of the Constitution and s 207 of the OLE.
    
42. As the petition had been properly filed, the National Court is still seized of the matter.
    
43. When Mr Isifu passed away, the seat he held for Wewak Open became vacant by virtue of s 104(2)(g) of the Constitution, and the Electoral Commission is obliged to conduct a by-election for the vacant seat; s 106 of the Constitution.
    
44. To my mind, the issue to be determined is whether the vacancy in a seat of the Parliament created by s 104(2)(g) of the Constitution is subject to a pending election petition filed pursuant to s 206 of the OLE.
    
45. s 11 of the Constitution declares supremacy of the Constitution. It is the supreme law, and all other written laws are subject to it and accordingly all other laws including an Organic Law are measured against it; see also s 10 of the Constitution.
    
46. I agree with Mr Onom that the case of Application by Amin (supra) is instructive.
    
47. As noted earlier, that case involved the resignation of a member of the Parliament (a vacancy under s 104(2)(c) of the Constitution). It was argued that the member was suspended from duties under s 28 of the OLL and as he might ultimately be removed from office which would create a vacancy in the seat of the member (s 104(2)(h) of the Constitution), his right to resign was subject to the suspension. To this, Kapi DCJ observed:
    

Under what provision of the Organic Law can it be implied that suspension of a member of Parliament under section 28 of the Organic Law takes away the right of resignation?

..............................................

Section 104 of the Constitution deals with the normal term of office of a Member of Parliament and how a Member may vacate his seat. Amongst other ways of vacating the seat, a Member may:

(a) resign: s 104(2)(c) of the Constitution; or

(b) be dismissed from office: s 104(2)(h) of the Constitution.

These ways of vacating the office are put in the alternative. The latter method of vacating the seat involves proceedings for removal from office under the Organic Law. If the proceedings for removal (including suspension) were intended to affect the right of resignation, the legislature would have expressly made the right to resign subject to proceedings for removal under s 104(2)(h) of the Constitution. Absence of this from s 104 of the Constitution supports the view that suspension does not affect a Member’s choice of resigning from the seat.

This conclusion is confirmed when the Organic Law construed in the light of s 10(a) of the Constitution which states that all written laws must be read and construed subject to the Constitution. This means that the operation of the provisions of the Constitution cannot be affected or overridden by the provisions of the Organic Law.....

[Emphasis added]

48. Bredemeyer, J stated:
    

The Constitution is a superior law to an Organic Law. By s 10 of the Constitution all written laws, which includes the Organic Laws, must be read subject to the Constitution. This is reinforced by s 12(1)(b) of the Constitution; an Organic Law cannot be inconsistent with the Constitution. These two provisions are unaffected by s 11 of the Constitution which is made expressly subject to s 10....

[Emphasis added]

49. Garjzwic, J agreed with Kapi, DCJ and Bredmeyer J that the Constitution is superior law and that the Organic Law must be read subject to the Constitution.
    
50. Clearly then, the OLE must be read subject to the Constitution. While the petitioner has the right to challenge the election of Mr Isifu, that right is provided for in an Organic Law which is subject to the Constitution. Mr Isifu is now deceased, the Wewak Open seat is therefore vacant, and there is nothing now to challenge. The Constitution does not state that a vacancy created by s 104(2)(g) is conditional or subject to any matter, including a pending election petition.
    
51. By s 106 of the Constitution the Electoral Commission is mandated to conduct a by-election for a seat of the Parliament that is vacant. The petitioner accepts that this constitutional function or duty cannot be stopped, stayed or affected by the fact there is this pending election petition.
    
52. In Special Reference by East Sepik Provincial Executive (2011) SC1154, Injia CJ noted at [145] that some of the vacancy situations listed in s 104 (2) are:
    

... by their very nature, uncontroversial such that they do not give rise to a serious question. In those situations, Parliament itself will take cognition of the situation when it is informed of it by the Speaker .... The vacancy situations that come under this category are as follows:

(a) member is appointed Governor-General;

(b) upon the expiry of day fixed for return of writ for the general election after he last became a member of the Parliament);

(c) resignation;

(d) death; and

(e) dismissal under leadership code.

[Emphasis added]

53. To my mind, there is no controversy in the present matter. Upon the death of Mr Isifu, the seat he held in the Parliament became vacant. By law, the person to next represent the seat will be determined through a by-election, whereby qualified persons may contest for the seat and eligible persons may vote for a member in the exercise of their democratic rights provided under s 50 of the Constitution. The petitioner’s right to contest for the seat is not prejudiced.
    
54. I add that while the Indian case cited by Mr Onom is not binding on this court, I consider the proposition that an election petition abates if the person whose election is disputed dies is a sound principle which I endorse.
    
55. An election petition challenges the validity of the election of a member to the legislature, the Parliament in this case. The dispute is between the petitioner and the elected member, and it is not against the Electoral Commission, even though the petition might contain allegations against the Electoral Commission as grounds for disputing the election. This view is supported by the fact that the Electoral Commission can only appear in a petition with leave of the court; s 211 of the OLE.
    
56. It is also quite clear that an election petition is indeed of a special nature and is not an ordinary civil suit. Where the elected member dies, he cannot be substituted by another person in the petition. In fact, Mr Isifu should have been removed as a respondent after he died. I have no doubt that if that had happened, the petitioner would have realized then that there was no practical utility in continuing the petition, and Mr Simitab would have taken the course adopted in Kenni v Trawen (supra).
    
57. In my view therefore, an election petition abates upon the death of an elected member.
    
58. I also bear in mind the entrenched principle that the court has an inherent jurisdiction to control proceedings before it. This has been stated in many cases including Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority – Lae (2001) N2085 where Injia, J (as he then was) stressed that the Court must ensure proceedings are conducted fairly and in an orderly fashion and timely manner so justice is done, and that any claims that are an abuse of process or are irregular must be weeded out. This discretionary power to dismiss summarily is obviously available where the claim and the relief sought is untenable and cannot succeed. In my opinion, the same applies where the claim is of no practical utility.
    
59. For the foregoing reasons, I consider the continuation of the hearing of the petition is of no practical utility, and I therefore dismiss it.
    
60. Given the circumstances of this case, I believe the parties (Mr Simitab and the Electoral Commission) should bear their own costs except for the costs of and incidental to this application, and the security deposit should be equally shared between them.
    

ORDER

(1) The second respondent’s notice of motion filed 17 March 2023 is granted.
(2) This election petition is dismissed as it serves no practical utility.
(3) The parties shall bear their own costs except that the petitioner shall pay the second respondent’s costs of and incidental to the notice of motion.
(4) The security deposit of K5,000 paid into court shall be equally shared by the petitioner and the second respondent.

________________________________________________________________
Kawat Lawyers: Lawyer for the Petitioner
Palem Onom Lawyers: Lawyer for the Second Respondent