Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Namai v Kansol [2025] PGNC 449; N11594 (10 November 2025)

N11594

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (EP) NO. 1 0F 2025

BETWEEN:
MUNUNGA NAMAI for himself and on behalf of other contestants for Mt Giluwe LLG Elections whose names appear on the schedule attached to the Originating Summons
Plaintiff

AND:
Philip Kansol as the Returning Officer for TAMBUL-NEBILYER ELECTORATE
First Defendant

AND:
PHILIP TELAPE as Provincial Returning Officer to Western Highlands Province
Second Defendant

AND:
SIMON SINAI as Electoral Commissioner of Papua New Guinea
Third Defendant

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Defendant

MT. HAGEN: ELIAKIM J
10 NOVEMBER 2025

LLG ELECTIONS - Application seeking orders to restrain counting– Powers of Returning Officer under Section 148 OLPLLG– seeking declaratory order under ordinary civil proceeding circumvents the electoral process - Protecting integrity of the electoral process - proceeding dismissed as it is premature and amounts to abuse of process.

Cases cited
Embel v Harisol (2012) N4732
Peter Waranaka v Kila Ralai & Ors (2017) N6809
Tulapi v Gamato (2018) N7575
Wereh v Cajetan (2019) N8086

Counsel
Mr. K. Kil, for the plaintiffs/applicants
No Appearance for the first, second, third & fourth defendants

RULING

1. ELIAKIM J: The plaintiff, representing himself and 24 other candidates in the Mt Giluwe LLG elections, filed an urgent application seeking to restrain the defendants, their servants or agents from conducting counting of ballots for Mt Giluwe LLG Elections at the Kimininga Police Barracks pending conclusion of the substantive matter. They rely solely on the inherent jurisdiction of the court in s.155(4) of the Constitution.
   
2. The Originating Summons filed 05 November 2025 pleads as follows:
   

“The plaintiff claims the following relief:-

1. Pursuant to s.148 of the Organic Law on National & Local Level Government Elections, an Order Declaring that the Council Chamber at Tambul Station in the Tambul-Nebilyer Electorate is the appropriate venue for Counting of Ballots for Mt. Giluwe LLG Elections to be conducted.
2. Consequent to Order 1, an Order that the Defendnats shall immediately transport the 15 Ballot Boxes of the Upper-Nebilyer Consituency, which are kept at Kimininga Police Barracks, to Tambul Station Council Chamber for counting.
3. Pursuant to s.155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, an Interm Order Staying the Counting of Ballots for Mt. Giluwe LLG Elections at Kimininga Police Barracks, pending conclusion of the substantive matter.”
   
3. At the hearing’s outset, plaintiffs’ counsel Mr. Kil, was asked to address the court on jurisdiction - Whether this court possesses the requisite jurisdiction to entertain the originating summons and accompanying application seeking to restrain the counting of votes in Local-level Government (‘LLG’) election. This issue arises in view of section 287(3) Organic Law on Provincial Governments and Local-level Governments (OLPLLG’), which expressly provides that any dispute arising subsequent to an election or the return of writ is to be addressed by way of an election petition filed in the District Court. Furthermore, should this court find that the originating summons is properly before it, the secondary issue for consideration is whether, and if so, where under the provisions of the OLPLLG, the National Court is vested with jurisdiction or authority to grant injunctive relief to restrain or stop the counting process in an LLG election.
   
4. I heard the application earlier today and now deliver my ruling.
   

Background

5. The lead plaintiff Mininga Namai deposes that he is the incumbent Ward Councilor for Pulumong -1 Council Ward, Mt Giluwe LLG, Tambul-Nebilyier Electorate, WHP.
   
6. In his affidavit filed 05 November 2025, he deposed that polling in the Upper Kagul Constituency peacefully took place on 30 October 2025. Thereafter, ballot boxes were kept in the council chambers, Tambul and later transported down to Kimininga Police Barracks for counting which is yet to commence.
   
7. He further states that counting for Mt Giluwe in previous LLG Elections used to take place at Tambul Station Council Chambers.
   
8. He states at paragraph 10 of his sworn affidavit:
   

“I and my fellow contestants in the Upper Kagul Constituency have disagreed with the arrangement about the council venue. We want counting of ballots for Mt Giluwe LLG Elections to take place at the Council Chamber at Tambul Station, which has been usual Counting Centre.”

9. Reasons for their disagreement are:
   
   • (a) Polling was conducted peacefully without any disturbances. They therefore anticipate counting at the Council Chamber at Tambul Station to be the same.
   • (b) All candidates in Mt Giluwe LLG elections are villagers and thus are financially incapable of affording transport, accommodation, daily allowances for themselves and their respective scrutineers and supporters.
   • (c) It is risky for candidates, scrutineers and their supporters to travel daily from Tambul to Kimininga Police Barracks for the counting.
   • (d) There is no exceptional circumstance to warrant the change of venue from Tambul Council Chamber to Kimininga Police Barracks.
     
10. The plaintiff attached copy of a purported petition letter dated 30 October 2025 and addressed to Emmanuel Pindau, Assistant Returning Officer, Mt Giluwe LLG, Tambul Nebilyer Electorate. The letter contains 5 pages of handwritten names and signatures. It is claimed that there has not been any favorable response to their petition.
    

Issues for determination

11. The plaintiff in its Originating Summons is alleging a breach of s.148(2) of the OLPLLG, specifically taking issue with the venue for scrutiny and counting of votes for the Mt Giluwe LLG election. Section 148 of the OLPLLG provides that:

“(1) The scrutiny shall be conducted at such places, to be known as “counting centres”, as are appointed by the Returning Officer for the purpose.

(2) The counting center shall be within the electorate where the election was held.

(3) Where circumstances make it difficult for the counting centre to be located within the electorate, the Returning Officer may appoint a place outside the electorate to be the counting centre.”

12. Adhering to the precedent set by prior similar cases on point, I would like to advert to the essential point of law:
    
    • (i) OLPLLG clearly prescribes an election ‘petition’ as the exclusive mechanism for challenging any breaches in the election process.
      • (a) Court of disputed returns for the National elections is the National Court.

‘The validity of an election may be disputed by petition addressed to the National Court and not otherwise”. (s.206 OLPLLG)

(b) Court of disputed returns for the Local Level Government elections is the District Court.

“A petition to dispute an election or return shall be filed at the District Court in the town in which are situated the headquarters of the Provincial Government of the Province which includes the area of the Local Level Government in respect of which the election was held.” (s.287(3) OLPLLG)

13. The only other avenue to protest a decision of the Returning Officer (‘RO’), during the election process, is through internal objections procedure, however this is only as expressly provided for in the OLPLLG. An example is under Part XIV, where section 153A provides an avenue for a formal objection on the exclusion of ballot box from scrutiny and a decision by the RO which cannot be challenged other than by way of a petition (subsection 4). This court adopts what was held at paragraph 10 of the case Embel v Harisol (2012) N4732:
    

“With respect, these submissions are misconceived. Section 153A is explicit. In cases where there is a dispute in relation to a ballot box, the Returning Officer may refuse to count it after considering the objection and response from the concerned parties. His decision may not be challenged other than by way of a petition.”

14. Furthermore, this is the only provision that allows for objections ‘after a writ is issued’ and ‘before the writ is returned’.
    
15. Section 148 of the OLPLLG however does not provide such an avenue for objections or challenge to a decision of the RO. This in my view does not necessarily mean that the decision of the RO cannot be challenged administratively, which is not the case before me.
    
16. In the ordinary civil jurisdiction, the proper mode of commencing proceedings depends on the nature of the relief sought. The plaintiffs herein have filed an Originating Summons challenging a decision (no evidence of a decision by RO) of the RO who has statutory authority to appoint place of scrutiny and counting in the elections (Section 148 of the OLPLLG).
    
17. A decision by the RO of the Electoral Commissioner can be challenged, however only through the mechanisms the law itself provides. Outside of the petition route provided for under s.287(3) of the OLPLLG, the ordinary courts have very limited scope to intervene in my view. This was also the view taken in the case Waranaka v Ralai (2017) N6809.
    
18. The plaintiffs are seeking declaratory orders under an ordinary civil suit to compel the RO to change a decision that is governed by the OLPLLG. A declaratory order is a remedy that the courts can grant only when they have jurisdiction over the subject matter.
    
19. The OLPLLG provides an exclusive statutory scheme as referred to above in my judgement on objections under Part XIV. Where the objection is rejected or an unfavorable response is given then the next step is the filing of a petition to the District Court as the court of disputed returns. I make reference to the Waranaka case in which the applicant, a candidate in the national elections, filed an ordinary civil proceeding by way of an OS under Order 4 of the NCR to stop counting of ballots. I adopt the court’s view in that case - outside an election petition, this Court has no power or jurisdiction to stop an election process.’ His honour further held at paragraph 11 of his judgment:
    

“Only the Electoral Commissioner has the power to stop the election process and section 170 of the OLNLLGE is an example of such power that the possesses. Electoral Commissioner wields very wide powers in an election. This Court cannot usurp that function of the EC to conduct an election by directing him to stop mid-stream in a count or scrutiny of the ballot with no good reason, or else the right of the majority choice to be declared is unnecessarily prolonged or delayed as the result of interferences in the process by the Court in response to complaints from disgruntled candidates outside of the avenue available to them under the Organic Law. They can have their say in the Court of Disputed Returns through a duly filed petition pursuant to Section 206 OLPLLG’’.

20. Mr. Kil for the plaintiffs, although acknowledges that the OLPLLG vests the RO with the authority to appoint a scrutiny and counting venue, he insisted that there was no exceptional circumstance to appoint another venue outside of the Tambul Council Chamber. He however fell short of addressing the court on the constitution of ‘exceptional circumstance’ except to say that his clients collectively agree that Tambul Council Chamber should be the venue and that they anticipate a trouble-free counting if held there.
    
21. In support of his application, he relied on two (2) case laws which in my view, do not benefit his client’s case in any way. The issue before the court in Tulapi v Gamato (2018) N7575 was in relation to the resurrection of a case that had been discontinued. This has absolutely no bearing on the application before me. The case of Wereh v Cajetan (2019) N8086, is distinguished from this case. The issue before the court was a conflict over the venue of the meeting to elect the head of the Ialibu Urban LLG. This was a meeting following a declaration and return of writs and not prior, as in the current case. I therefore don’t see how that case has any relevance to the plaintiffs’ case.
    
22. When the court posed the question to counsel as to where in the OLPLLG is the National Court given authority to grant an injunction to stop or restrain counting of LLG elections, counsel cited the section 155(4) of the Constitution. He did not cite any relevant case authorities to support his submission except to say that this court has inherent jurisdiction.
    

The Inherent Jurisdiction of the Court

23. Section 155(4) of the Constitution confers jurisdiction on the court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute. It is therefore not the source of primary jurisdictional power. (SCR No.2 of 1981 [1982] PNGLR 150; Peter Makeng & Ors v Timbers (PNG) Ltd & Ors [2008] N3317)
    
24. The Supreme Court in the case of Powi v Southern Highlands Provincial Government (2006) SC844, (also adopted in the case of Medaing v Ramu Nico Management (MCC) Ltd [2011] PGSC 44; SC1156) in its view stated that there are about (5) five important features of Section 155 (4):
    
    • (i) “The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make "such other orders as are necessary to do justice in the particular circumstances of each case" before the Court;
    • (ii) Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
    • (iii) Where remedies are already provided for under other law, the provision does not apply;
    • (iv) The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number (sic) it is constituted, except as may be provided for by any law; and
    • (v) A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law."
      
25. In applying the Powi case, the plaintiffs’ case falls within the ambits of features (iii) and (v). Based on what has been presented before me, the plaintiffs in my view have failed to demonstrate that they benefit from the court’s inherent jurisdiction under s.155(4) of the Constitution.
    

Conclusion

26. The OLPLLG governs exclusively election matters covering both national and local-level government polls. Consequently, it confines post-election disputes to a petition, and there are two main reasons for that:
    
    • (i) Preservation of the election process as the issue and return of the writs are time sensitive. The strict deadlines imposed by the OLPLLG leave little or no room for a separate interlocutory track. The election process therefore is meant to run its course before any court steps in.
    • (ii) Finality and stability in the election process is vital so as to prevent endless litigation that could drag the government into perpetual uncertainty. Thus, objections to the RO and a decision from him/ her filters out frivolous complaints that could unnecessarily hold up the election process.
      
27. National or LLG elections are meant to be swift and unified. By channeling all grievances raised either before or after a declaration, through a single petition, the law aims to protect the integrity of the electoral process while limiting the scope for protracted court battles.
    
28. I therefore find that seeking a declaratory order in an ordinary civil proceeding circumvents the electoral process as established under the OLPLLG and the Constitution. The Originating Summons filed 05 November 2025 is therefore dismissed as it is premature and amounts to an abuse of process.
    

ORDERS

1. The plaintiffs’ Notice of Motion seeking urgent restraining orders is refused and the Originating Summons filed 05 November 2025 is dismissed in its entirety.
2. Each party to pay their own costs.
3. File is to be archived forthwith.
4. Time shall be abridged to time of settlement to take place forthwith.
   

Judgement and orders accordingly.
_______________________________________________________________
Lawyers for the plaintiffs: Kilburn Kil Lawyers