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Kangapun v Tole [2025] PGNC 480; N11625 (2 December 2025)

N11625

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 352 OF 2025

LONDE PETER KANGAPUN
Plaintiff

v

ROBIN TOLE, BENSON MICHAEL, KOREN LAKO
First Defendants

STEVEN KYAKAS
Second Defendant

SEMISON LALE
Third Defendant

SANDIS TASKA
Fourth Defendant

WABAG: ELLIS J
2 DECEMBER 2025

LOCAL-LEVEL GOVERNMENT ELECTIONS – Plaintiff seeking restraining order to prevent elected councillors from being sworn in – balance of convenience considered - application refused

Cases cited
American Cyanamid v Ethicon [1975] UKHL 1; [1975] 1 All ER 504
Employers Federation v PNG Waterside Workers (1982) N393
Robinson v National Airlines Corporation [1983] PNGLR 476

Counsel
C. Talipan for the plaintiff
No appearance for the defendants

JUDGMENT

1. ELLIS J: Earlier today the Plaintiff filed an originating summons which sought orders which included restraining three elected councillors (the first defendants) from (1) being sworn in, and (2) holding themselves out as councillors.
   

2. Together with that Originating Summons was filed a Notice of Motion which sought the following orders (errors in spelling and grammar not corrected):
   
   1. Leave be granted to dispense with the requirement of service of the originating summons, Notice of Motion, Affidavit in-support and Undertakings as to damage pursuant to Order 1 Rule 7 and Order 4 Rule 49(5) of the National Court Rules.
   2. Pursuant to Order 12 Rule 1 of the National Court Rules that the First Defendants to be restrained from swearing in as dully elected councilors of the respective Council Wards namely, Leptapus Ward Number 32, Sopas Ward Number 27 of the Mai Local Level Government Council in the Enga Provincial Assembly.
   100. And are to be restrained from being a councilor or member under the Mai Local Level Government Council in the Enga Provincial Assembly.
   4. The matter be adjourned to another date for inter-party hearing and further direction.
   5. Costs of the application to be in the cause of the substantive proceeding.
      
3. An affidavit in support, sworn by the Plaintiff, sworn today, was also filed, together with an undertaking as to damages.
   

Evidence

4. The Plaintiff’s affidavit said he was a candidate and that the first defendants were currently public servants with the contended result that they were not eligible for be elected
   

Submissions

5. Oral submissions did not add to what was set out in the documents that had been filed.
   

Relevant law

6. It is well-established that a request for an interim injunction will only be granted if two tests are satisfied: (1) that the plaintiff has a prima facie case, and (2) that the balance of convenience favours granting the request for an injunction: Robinson v National Airlines Corporation [1983] PNGLR 476 at 480 and Employers Federation v PNG Waterside Workers (1982) N393, which adopted what was said in American Cyanamid v Ethicon [1975] UKHL 1; [1975] 1 All ER 504.
   
7. In the Organic Law on National and Local-level Government Elections (the Organic Law), s 287(3) provides as follows:

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.

Consideration

8. Even assuming the Plaintiff has a prima facie case, the balance of convenience does not favour making any interim order because (1) the election process appears to have been finalised, (2) there is a facility available to the Plaintiff to challenge the outcome of the election, namely to file an election petition in the District Court, and (3) it is not appropriate for this Court to provide an alternative remedy. For that reason, the Notice of Motion is dismissed.
   
9. There is no utility in permitting these proceedings to continue when the proper course is for any challenge to the local-level government elections to be pursued by an election petition in the District Court. This Court is not persuaded that the plaintiff should be permitted to by-pass that remedy which is available to him.
   

Costs

10. As the Plaintiff has not been successful, he is not entitled to any order for costs in his favour. Since there was no appearance by or for any of the Defendants, they are not entitled to any order for costs in their favour. In those circumstances, the appropriate order is that each party bear their own costs of these proceedings.
    

Orders

11. For the reasons set out above, the orders of the Court will be as follows:
    
    1. The Notice of Motion and Originating Summons are dismissed.
    2. Each party is to bear their own costs of these proceedings.

3. Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the plaintiff: Kortal Lawyers