N11641

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

EP NO. 65 OF 2022 (IECMS)

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

BETWEEN:
DAISY APORE ONDOKOI
Petitioner

AND
Hon. BENJIMEN NGENTS MUL
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

WAIGANI: POLUME-KIELE J
8 AUGUST, 10 DECEMBER 2025

PRACTICE & PROCEDURE: - Application to discontinue election petition - Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendment Rules) 2022  makes no provision for discontinuance of an election petition – Applicant relies on s 185 Constitution and Order 8 Rule 61 (1) b) and (c ) – National Court Rules as jurisdictional basis to discontinue proceeding – alternatively reliance is also placed on s 155 (4) and Rule 18 (c) for leave to discontinue the proceedings -  s 217 – Organic Law on National & Local-Level Government Elections – “Real justice to be observed” – All parties deserve to be heard on matters concerning the real controversy between them – Leave is refused to adopt procedure under Order 8 Rule 61 (1) (b) & (c ) – National Court Rules

Cases cited
Tarsie v Ramu Nico Management (MCC) Ltd [2010] N4142
Lunga v Lelang [2018] PGNC 121; N7215 
Nukundj v Pim [2023] PGNC 111; N10263
Mul v Ondokoi (2023) SC2441
Mul v Ondokoi [2024] SC2654
Tulapi v Niggins (2011) SC1111
 Madang Timbers Ltd v Kabori (2009) SC992
Jack Kariko v Dr. Ken Ngangan [2023] PGSC 34; SC2379
Petroleum Resources Moran v Moran Oil Ltd (2023) SC2417
In Aihi v Isoaimo [2023] PGSC 56
Hagahuno v Tuke [2020] PGSC 105; SC2018
Menyamya Open Parliamentary Elections [1977] PNGLR 298 
Maino v Avei [1998] PNGLR 178
SCR 2 of 1982 Supreme Court Ref. No 1 of 1992 [1992] PNGLR 73
Onglo v Dilu [2024] N10844

Counsel
Dr. Ben Lomai for the petitioner
Mr. L. A. Jurth for the first respondent
Ms S Kapi for the second respondent

RULING ON LEAVE TO DISCONTINUE PETITION

1.	POLUME-KIELE J: On 8 August 2025, I heard an application by way of a Notice of Motion (NOM) (Document No. 94) filed on 22 May 2025. The applicant, the Petitioner, Diasy Apore Ondokoi sought leave of court to discontinue this Election Petition. 

2.	The application is supported by two affidavits sworn and filed by the petitioner on 10 June 2025, and 7 August 2025 respectively. 

Relief sought in the Notice of Motion

3.	Essentially, the petitioner seeks orders that:

(i)	Pursuant to Rule 22(1) of the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendment Rules) 2022 (“EP Rules”), the requirement for service of this notice of motion and supporting document (3) clear days before hearing be dispensed with.

(ii)	Pursuant to Rule 22 (1) of the EP Rules, compliance of Rule 16 be dispensed with and this notice of motion be heard forthwith.

(iii)	Pursuant to Section 155 (4) of the Constitution, Section 212 of the Organic Law on National and Local-Level Government Elections, and Rule 18 (c) of the EP Rules, the Petitioner be granted leave to discontinue this proceeding, and or, alternatively, leave be granted to the Petitioner to withdraw this proceeding in its entirety.

(iv)	Alternatively, pursuant to Section 185 of the Constitution, in the absence of any provision in the EP Rules for withdrawal and discontinuance of the Petition, a direction that the procedures under Order 8 Division 5 of the National Court Rules be adopted and pursuant to Order 8 Rule 61(1) (b) (c ) of the National Court Rules the proceedings is discontinued with consent of all parties and/or leave of the Court

(v)	Costs of and incidental to this proceeding be borne by parties

(vi)	Any other orders this Honourable Court deems fit.

Affidavits in support of the Notice of Motion

4.	The Petitioner rely on two affidavits in support of her application to discontinue this proceeding: 

(i)	Affidavit of Daisy Apore Ondokoi filed on 22 May 2025.

(ii)	Affidavit of Daisy Apore Ondokoi filed on 7 August 2025

5.	Essentially, the matters deposed to in the affidavits of the petitioner attest to the following:

(i)	The time factor in pursuing the petition and the eventual outcome which will determine whether or not a by-election would be possible given the period allowed under the Constitution;

(ii)	whether there will be any budgetary allocation for a by-election if successful;

(iii)	being a woman where social hierarchy is always defined by man, the proceeding has stirred a lot of controversy including her future in the electorate;

(iv)	finally, and most importantly, there have been many incidents of election related violence in the electorate and in my village, including threat and intimidation, actual physical confrontation and violence in my village mostly perpetrated by supporters of the candidates contesting the election in 2022 and by supporters of the first respondent;

(v)	further that if the hearing of the petition proceeds with submission, I am of the firm belief that there will be violence because I was earlier threatened and even assaulted by people claiming to be supporters of the first respondent and thus does not wish to be the centre of any controversy and also wants to avoid potential liability;

(vi)	I have now moved to Cairns to concentrate on their physical and mental health and for my own safety. Besides I am also of the view that even if the petition is successful, I feel that my chances of success in the coming 2027 national elections is unlikely and therefore will peacefully allow the first respondent to complete this term;

(vii)	Further, people (voters) in my LLG and Village are complaining every now and then that there has been no service delivery to my people because the first respondent is punishing them for my decision to challenge his election to Parliament. This issue alone can escalate into tribal conflicts which is prevalent in the upper highlands, especially Jiwaka, Western Highlands, Enga, Hela and Southern Highland Provinces; 

(viii)	In addition, she deposed that whilst this proceeding is ongoing, I have been receiving many threats and been intimidated at many occasions and as a result, I decided to move down to and live in Cairns, Australia. This is because, I did not want to be potentially implicated for any election related violence which may affect my family or clan members in the village; and

(ix)	Finally, she also deposed that I am now also receiving death threats from both the defendant’s supports and my witnesses and their supporters saying that they have risked their lives to support me as witnesses.

(x)	I take particular note of the attachment “A” of her affidavit sworn on 29 July 2025 and filed on 7 August 2025. In that affidavit, she attached a print out of threats messages which she received at around 1.23 pm, 11.18 (a.m. or p.m., it is not captured, 05.45 a.m.. Whilst I note that the date of the actual communication is not disclosed, I note that there is a reference to the attendance in Court on 8 August 2025. Other instances of the threats are disclosed in the attachments attached to her affidavit, but I only refer to one, the details are set out below.

(xi)	So, from the passage, I can reasonably assume that the communication related to the hearing of the matter on 8 August 2025 in which the applicant was threatened not to attend the hearing on 8 August 2025. It reads 

“Daisy court em time pinis 2027 is near for new elections, mipla ol boys stap wantaim member laikim u lo withdraw case. Ol boys plan lo kilim wanpla brata blo u na even kilim u tu. Lo gutpla blo yumi olgeta u withdraw displa court case. U winim court too bai nogat by-elections coz gavman nogat money. Savim u yet na family blo u long Bagarap bai kam. ‘Noken tingting lo kamap long court house long 8 August, bai u kisim bullet. For everyone’s safety just withdraw the case” 

6.	In summary, the petitioner's application is to discontinue an election petition against the declared election results of the North Wahgi Open Electorate, Jiwaka Province in Papua New Guinea. ​ If granted leave, the applicant relies on Order 8 Rule 61 of the National Court Rules regarding discontinuance of proceedings. She is inviting this Court to invoke jurisdiction under Order 8 Rule 61 (1) (b) of the National Court Rules, to discontinue this proceeding with consent of all other parties and or alternatively under Order 8 Rule 61 (1) (c) of the National Court Rules, to discontinue this proceeding with leave. Reliance on the court's discretion in granting leave to discontinue is highlighted in the case authority of Tarsie v Ramu Nico Management (MCC) Ltd [2010] N4142, where the Court per Canning J stated and I quote: 

“1.	If a Plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all the defendants, leave should generally be granted. it being in the interests of justice to encourage parties to reach an out of court settlement of their disputes.

(2)	To refuse leave to discontinue would constitute a restriction on a plaintiff's right to freedom bestowed on law under Section 32 of the Constitution and the right to the full protection of the law under section 37(1) of the Constitution and such a restriction ought only to be imposed in extreme circumstances.”. (Eton Pakui v The State (2006) N3001).

Relief Sought

7.	The petitioner requests the court to endorse the consent to discontinue the proceeding. ​
8.	Alternatively, the petitioner seeks leave to discontinue and a timeline for filing the Notice of Discontinuance. ​
9.	The petitioner asks for costs to be borne by each party and for the security deposit to be converted into costs

The Petition

10.	This proceeding is not an ordinary proceedings under the National Court Rules. The proceeding is an election petition filed pursuant to s 206 of the Organic Law on the National & Local-Level Government Elections. The appropriate applicable Rules are the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendment Rules) 2022 (“EP Rules”). 

11.	There is no provision under the EP Rules regarding discontinuance of a petition proceedings. Thus, reliance under s 185 of the Constitution. 

12.	In any case, the only provision relating to early termination of a petition is provided for under Rule 18 of the EP Rules and this involves summary determination.

13.	Rule 18 of the EP Rule (as amended) 2022 provides that:

“18.	Summary determination

Where a party has not done any act required to be done by or under rules or otherwise has not complied with any direction, the Court may on its own motion or on the application of a party, at any stage of' the proceeding: 

(a)	order that the petition be dismissed where the defaulting party is the petitioner. or 

(b)	where the defaulting party is the respondent. the petition shall be set down for expedited hearing or

(c)	make such other order as it deems fit”. 

14.	Further,  Rule 22 of the Election Petition Rules states:

“Relief from the Rules

(1) 	The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

(2)	 Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.

(3) 	No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

(4) 	Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, Court shall pay close regard to the requirements of section 217 of the Organic Law.”

15.	Section 185 of the Constitution, which reads:

“185. 	Lack of procedural provision.

“If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

16.	Rule 22 grants the Court wide discretionary power to dispense with compliance with any requirement of the Election Petition Rules either before or after the occasion for compliance arises. Such discretion to be exercised on proper basis. Thus, it is open for an applicant to invoke this rule in appropriate cases. It is clear from the rule that the Court has no power to dispense with any requirement of the Organic Law: see Nukundj v Pim [2023] PGNC 111; N10263 (17 May 2023).

Consideration of application
17.	The Petitioner Daisy Apore Ondokoi is one of 35 candidates who contested the North Waghi Open Electorate in Jiwaka Province during the 2022 National General Elections. She came eighth (8th). 

18.	The Petitioner, being aggrieved by the declaration filed this Petition on 9 September 2022. The petition challenged the return of the election under Section 206 of the Organic Law disputing the validity of the election for the North Waghi Open Electorate in the 2022 National Elections alleging 4 grounds of bribery against the first respondent. 

19.	The ground of bribery is brought under section 103 of the Criminal Code Act and section 215(1) of the Organic Law on National and Local Level Government Elections (OLNLGE).

Grounds of Bribery

20.	The alleged 4 grounds of bribery are set below:

(i)	Bribery by the first respondent with intention to cause or induce elector(s) to vote for him contrary to s 103 (a) (iii) of the Criminal Code Act 1974 Chapter 262 (thereafter the “Criminal Code Act”).  In that on 4 July 2022 near Banz Hardware Store, Banz, North Waghi, Jiwaka Province, between 10 am and 11 am, on the street passing between Banz Hardware Store and the residence of the first respondent, at Banz Town, North Waghi, Junior Enn, Kapil Tumun and Malngan Maliye (registered voter ID Nos, 22047785, 220100134 and 220096928 respectively) were met by the first respondent who approached them and gave them K200 cash, (all in K100) bank notes to distribute amongst them and uttered the words (in their local Waghi dialect to the effect that “you take this money, go and give me your second (2nd preference vote”); 

(ii)	The second ground of bribery is that on 11 July 2022, at Banz Police Station, Banz Town, North Waghi Electorate, Jiwaka Province, between 4 pm and 5 pm; whilst Mond Palme was pre-polling and pre-counting preparation conducted by the second respondent, the first respondent approached Mond Palme (Registered Voter Identification No. 22084301) and offered him K100 cash in a K100 bank note and insisted that he take the money and uttered the words in their local Waghi dialect “Take it, go and give me vote”.

(iii)	The third ground of bribery is that on 14 July 2022, outside the Banz Hardware Store, Banz Town, North Waghi Electorate, Jiwaka Province, at about 1.30 pm; the first respondent approached Ape Emp (Registered Voter Identification No. 220076219) and offered him K500 cash in a K20 bank note and insisted that he take the money and uttered the words in their local Waghi dialect “you take the money, go and give me your second (2nd) preference vote”. On trial, this ground of the allegations was abandoned. 

(iv)	The fourth ground of bribery is that on 15 July 2022, at Banz Town Main Market Polling Area, Banz Town, North Waghi Electorate, Jiwaka Province, at around 12 noon and 12.30 pm; Goi Dasinga ((Registered Voter Identification No. 220073505) approached the first respondent who was in his vehicle, a Toyota V8 Maroon colour station wagon, which was parked about 50 metres from the said polling place, and the first respondent gave him K500 in case all in K20 bank notes, which Goi accepted and uttered the words in their local Waghi dialect “It is you and Paul Hare’s area so get this money and give me your second (2nd) preference vote”. 

(v)	Only grounds 1, 2 and 4 of the allegations of bribery remain to be pursued in the Petition. 

21.	The petitioner sought the following orders/reliefs:

(i)	The Petition be upheld in its entirety pursuant to Section 212(1) (i) of the Organic law on the National and local-level Government Election.

(ii)	Pursuant to Section 212 (1) (i) of the Organic law on National and Local-level Government Flection, a declaration that the election and return of the Respondent as a duly elected Member for North Waghi Open Electorate in the 2022 National Election is absolutely void. 

(iii)	A declaration pursuant to Section 212 (1) of the Organic Law on National and Local-Level Government Election, that the First Respondent was not duly elected as a for North Waqhi Open Electorate in the 2022 National Election.

(iv)	Consequently. an order that a By-Election for North Waghi Open Electorate be conducted by the Second Respondent.

(v)	In the circumstance; that the Court finds that the First Respondent committed acts of bribery, an order that the Registrar of the National Court shall promptly report the Court's finding to:

(a)	The Speaker of the National Parliament.
(b)	The Electoral Commission.
(c)	The Public Prosecutor and
(d)	The Commissioner of Police

(vi)	And order that the Petitioner be entitled to refund of the K5,000.00 security deposit as paid in the National Court Registrar’s Trust Account.

(vii)	The first respondent shall pay to the Petitioner the cost of and incidental to the petition to be taxed, if not agreed.

(viii)	Such further orders that the Court deems necessary.

Chronology of Events and Legal Representation

22.	On 3 July 2023, I heard the first respondent’s objection to competency of the petition, which I reserved to 6 July 2023. On 6 July 2023. the objection to competency was dismissed. 

23.	The first respondent then sought a review of the decision of 6 July 2023. This review was dismissed on 16 August 2023: see Mul v Ondokoi (2023) SC2441

24.	Aside from the above review application, on 10 July 2023, an application for recusal was heard. It was dismissed on 28 September 2023. 

25.	Trial of the matter was to commence on 28 September 2023, however due to other applications pending before the Court, trial did not proceed as planned. During the course of the period between September 2023 and 25 December 2023, the first respondent did file a notice of motion pursuant to s 155(4) of the Constitution and s 212 (1) (e ) of the Organic Law on National and Local-Level Government Elections seeking leave to allow several persons or individual to give oral evidence and be examined on oath and also to seek extension of time to file affidavits within 21 days from the date the order amongst other reliefs. The Court heard the first respondent on his motion on 25 December 2023. The first respondent’s motion was dismissed on 15 February 2024, and the matter was ordered to proceed to an expedited trial. The First Respondent being aggrieved by the decision of 15 February 2024, filed another review application which was dismissed on 29 October 2024: see Mul v Ondokoi [2024] SC2654.

26.	In any case on 16 Febraury 2024, the matter proceeded to an expedited trial, and the first respondent was called to give evidence in response to the allegations of bribery. At the conclusion of his evidence, parties were directed to file and serve written submissions by 15 March 2024. 

27.	On 13 March 2024, the second respondent filed its written submission on bribery in elections (Document No. 85). 

28.	The petitioner filed and served her written submission on 28 May 2025, about a year later. 

29.	The first respondent failed to file and served written submissions by 15 March 2024, and this failure continues to date. In fact, on or about 12 June 2025, Counsel for the first respondent did intimate to the Court that it was very likely that they will be making submissions on the allegations of bribery in elections.  I will address this aspect of the contention in the later part of this ruling. 

30.	In any event, the progress of this proceeding, has now taken a turnaround. The petitioner has now filed a Notice of Motion seeking to discontinue the Petition. The Motion was filed on 22 May 2025. Her reasons for taking this step are set out in her affidavits sworn and filed on 22 May 2025 and 7 August 2025 respectively. 

31.	I take particular note of her affidavit of 7 August 2025 in which she did provide details of the allegations of threats directed at her and members of her family. More so, the threats received by a person by the name of Paul Nake (attached to her affidavit) in which he did threat her not to appear for the hearing of the application on 8 August 2025 and if she does, a bullet will be waiting for her”

32.	The Motion was moved on 8 August 2025; ruling was reserved which I now deliver. . 

Legal Representation

33.	Lomai & Lomai Attorneys were the original lawyers on this Petition and had taken carriage of the trial through to close of the Petitioner’s evidence. 

34.	On 21 February 2024, orders or directions were issued with regard to the filing of submissions, and the matter was schedule for hearing on 21 March 2024.  During the course of the hearing of the hearing on 21 February 2024, counsel for the petitioner, Dr Lomai alerted the Court to incidents of threats being issued whilst the proceedings were running before the Court. The transcripts of the hearing conducted on 21 February 2024 would confirmed these allegations. As to who exactly these threats were directed, it was not clear. But the Court did address the parties on this matter whilst the matter was in Court. In that the Court intimated to counsel that such an allegation is only known to the person who the subject of the alleged threats and only they can depose to such incident. The matter was then adjourned to 21 March 2024 for hearing of submissions on bribery in elections.

35.	The matter did not proceed on 21 March 2024 as scheduled due to a Review filed by the first respondent. 

36.	Lomai & Lomai Attorneys filed a Notice ceasing to act dated 17 April 2024 and filed on 22 April 2024. 

37.	On 12 May 2025, when the matter returned to Court, Mr. Dupre of Universal Law (Barristers & Advocates) appeared as counsel for the petitioner. A Notice of Change of Lawyers dated 6 May 2025 had been filed on 7 May 2025.

38.	Mr. Jurth appeared on a brief from Jema Lawyers for the first respondent.

39.	Mr. Sua of Sua & Sons Lawyers did  enter an appearance for the second respondent. I understand that a Notice of Change of Lawyers had been filed on 18 March 2024.

40.	 However, given that Mr. Dupre was not ready to make submission on bribery in elections, as Lomai & Lomai Attorneys had ceased to act for the petitioner.  The Court then adjourned the matter to 19 May 2025 to allow counsel to address the court on the allegations of bribery in elections. In addition, the parties were again directed to file written submissions on the allegations of bribery in elections prior to the hearing on 19 May 2025. 

41.	Further, an order was also issued for the production of the transcript by 23 May to assist Mr. Dupre with his submission. 

42.	It must be pointed out at this stage of the proceedings that there has been no mention of a Notice ceasing to act being filed by Niugini Legal Practice, the previous law firm who acted for the second respondent in the early trial of this proceeding. It was yet to be confirmed.

Twist to the proceeding

43.	On 28 May 2025, when the matter was called, there was a twist, the petitioner has again changed lawyers. There were two law firms now on record acting for the petitioner. This time, a notice of change of lawyers to Raynett & Kaki Lawyers dated 22 May 2025 had been filed. So now two firms were representing the Petitioner, through two different counsel, Mr. Dupre of Universal Law (Barristers & Advocates) and Mr. Kaki of Raynett & Kaki Lawyers. 

44.	To add further to the twist, Mr. Kaki had filed a Notice of Motion seeking to discontinue the proceeding (for which this ruling is based) and seeking to hand up a draft consent order to discontinue the entire proceeding. 

45.	Mr. Dupre on the other hand, opposed the application to discontinue and insisted that the matter continue on with the hearing of submission on bribery in elections as trial of the matter had concluded and that the Court continue to conclude the petition.

46.	This contention then led me to briefly peruse the content of the notice of motion and affidavit in support of the motion, I noted that the reason for discontinuance is based mainly on grounds of threat, intimidation and physical violence and thus queried as to how it can be a matter of consent when the grounds for seeking to discontinue is otherwise then genuine consent of the petitioner’s on her own freewill. 

47.	Given this concern, the Court directed that it is more relevant for the petitioner to be present in Court to provide more clarity firstly to the confusion of legal representation and secondly, that her decision to discontinue is that of her own freewill and the genuineness of her consent.

48.	Thus, the date of hearing of submission was adjourned to 11 June 2025. It was impressed upon counsel that they were required to ensure the attendance of their respective clients. Their attendance is necessary for purposes of ascertaining the genuineness of consent and confirmation of legal representation. 

49.	When the matter returned on 11 June 2025, the petitioner failed to appear before the Court. The matter was then adjourned to 12 June 2025. 

50.	On 12 June 2025, the petitioner failed to attend before the Court yet again, however, Mr. Kaki did appear and informed the court that he now acts for the petitioner in the absence of Mr. Dupre and handed up an affidavit purporting to confirm instructions of change of lawyers. At that relevant time, no notice ceasing to act had been filed by Universal Lawyers and Advocates. 

51.	The Court also raised concerns relating to the threats issued by counsel for the first respondent regarding the attendance of Mr. Dupre of Universal Lawyers and Advocates in relation to costs against Mr. Dupre and the law firm on an indemnity basis.

52.	In any case, to progress the petition, the court directed that both Mr. Kaki for the petitioner (sic) and Mr. Jurth for the first respondent ensure the attendance of their respective clients. Failing their attendance, the court will proceed to consider the written submissions already filed by the Petitioner and Second Respondent in the court file and determine the petition on papers in their absence. 

53.	The hearing was adjourned to 8 August 2025.

54.	On 8 August 2025, another twist emerged. This time, the petitioner changed legal representation yet again. The petitioner re-engaged her original lawyers, Lomai & Lomai Attorneys. Lomai & Lomai Attorneys filed a Notice of Change of Lawyers dated 4 August 2025 which was filed on 7 August 2025. 

55.	In the course of the Court seeking appearances for the parties, Ms Kapi of Niugini Legal Practice did enter an appearance for the second respondent. Ms Kapi informed the Court that her firm, Niugini Legal Practice are still the lawyer on record, acting for the second respondent. The firm had not ceased acting for the second respondent. She went on to  clarify that Mr. Sua did not have authority to enter an appearance for the second respondent, in this proceeding.

56.	At this stage, Mr. Sua did raise some objections to Ms Kapi assertions so the matter was stood down to 1.30 p.m., so that this issue can be confirmed. 

57.	When the matter returned to Court at 1.30 p.m., it was confirmed that Sua & Sons Lawyers really had no instructions to act for the second respondents in the National Court, but they did act for the second respondent in the review application.  As to why, Sua & Sons Lawyers purported to file a notice of change of lawyers when the firm did not have the authority or instruction/brief to act for the second respondent, that defeats me. 

58.	By then, it become obvious that the law firm Sua & Sons Lawyers were in fact not brief to act for the second respondent at the material time and really had no mandate to act for the second respondent, hence, any actions purportedly taken by the law for and on behalf of the second respondent in terms of signing the draft consent order to discontinue the proceedings is questionable, given the submission of Ms Kapi that Niugini Legal Practice continues to hold instruction to act for the second respondent 

59.	At this point, the Court informed Mr. Sua that the Court will recognise Ms Kapi as counsel for the second respondent and that his standing as counsel for the second respondent is not recognised. His purported appearance as counsel for the second respondent is not valid and that the court will hear Ms Kapi in respect of submission on the motion before the Court. Given this finding, it must be pointed out that any actions undertaken by Mr Sua of Sua & Sons Lawyers for and on behalf of the second respondent lacks any authorisation and authenticity. It is the duty of a lawyer to act only on instructions. In this case, Mr. Sua purports to act for the second respondent. However, has failed to adduced evidence in Court as to his authority to act. Several case authority cases relate to this point, and I refer to the case of Haiyot v David [2018] PGNC 289; N7367 (6 July 2018) where the Court reiterated the statement of law in relation to the duty of lawyer to act only on instructions in the case of Smith Alvi v Andake Tepoka (2006) SC1151 where the Supreme Court stated: 

“Honest and professional conduct by lawyers is pivotal to the proper administration of justice in Papua New Guinea. The critical role of lawyers was highlighted in the case of Council of Legal Education v Awaita [1987] PNGLR 38 in which Sir Mari Kapi stated: We have adopted an adversarial court system, so everything that happens in the courtroom turns on how the lawyers conduct the case. Lawyers have an onerous responsibly to their clients and to the court of which they are officers to prepare and conduct their cases carefully and transparently. Things must be done ‘above board’. When a Judge hears a case, the Judge must be able to tell from looking at the documents who the parties are and what the dispute is about and who the lawyers are representing”.

Further at paragraph 22, the Supreme Court stated: “A related and basic principle of the administration of justice and of a proper lawyer/client relationship is that lawyers act only on instructions of their clients. Instructions may be express or implied, oral or in writing; but there must be instructions in place. If there are no instructions, whatever the lawyer does must be regarded as being in excess of authority. Many PNG cases have highlighted this principle ...”

The Supreme Court in Smith Alvi v Andake Tepoka (2006) SC1151, went on to state further that:

“for a lawyer to institute proceedings in any court in the name of a person without obtaining instructions from that person is an abuse of the processes of the court and renders the proceedings a sham (Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042). This case involved an application for leave to appeal against the judgment of the National Court filed by Paul Paraka Lawyers using the names of persons who had given no instructions to them. The application for leave to appeal was therefore a sham and an abuse of process and was dismissed. The Supreme Court in paragraph 20 stated:

“20- Mr Tame, however, could not provide any evidence that Paul Paraka Lawyers had appropriate instructions. Nor did he give details of who specifically gave the instructions or when they were given. We are of the view that if the principal plaintiff, Mr Alvi, did not give instructions to file an application for leave to appeal against Davani J’s orders, it is unlikely that the other plaintiffs would give separate instructions. Mr Tame’s response was tantamount to an admission that Paul Paraka Lawyers had no instructions to file the application for leave. As a matter of law, a lawyer requires instructions to institute court proceedings in the name of a particular person. A lawyer who has  instructions to act  for someone in the National Court does not automatically have  instructions to act  for that person in the Supreme Court. We were not impressed with Mr Tame’s response and find as a fact for the purposes of determining the application now before the court that Paul Paraka Lawyers had no instructions, express or implied, to file the application for leave to appeal” (underlining mine)

In Frank A Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 352, the Court (at paragraph 9) stated:

“It is clear law that any lawyer admitted to practice law cannot act in a matter unless he has  instructions to act  in the matter. We need not refer to any authority to support this proposition” (underlining mine)

60.	In Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042) in which the national court in dealing with such situation have held that:

“For a lawyer to institute proceedings in any court in the name of a person without obtaining instructions from that person is an abuse of the processes of the court and renders the proceedings a sham” 

61.	In applying the evidence of the plaintiff, I note that the law firm Sua & Sons does not have the brief to act for the second respondent

Compliance with directions/order of the Court

62.	Regarding compliance with the directions issued by the Court on 21 February 2024 and 19 May 2025 respectively,  I confirm that the Universal Law (Barristers & Advocates) acting for the petitioner did file written submission on 28 May 2025 not 15 March 2024 as directed by the Court. 

63.	The second respondent on the other hand did file its written submission on 13 March 2024. It was filed by Niugini Legal Practice. 

64.	Essentially, the first respondent has failed to file his written submission as directed by the Court and continues to be in default. 

65.	As a related matter, to this date, I am yet to sight a notice of ceasing to act filed by Raynett & Kaki Lawyers and or Universal Law (Barristers & Advocates). I must also state that I have not sighted any notice of ceasing to act from the law firm Niugini Legal Practice, the original lawyers acting for the second respondent. So, I accept that Niugini Legal Practice continues to represent the second respondent. Their brief is current. 

Notice of Motion filed on 22 May 2025

66.	In any event, on 8 August 2025, I heard Dr. Lomai for the petitioner on the understanding that Mr. Kaki was to file a notice ceasing to act in due course.

67.	 Here, counsel for the petitioner, Dr. Lomai relied on the provision of s 185 of the Constitution to submit that this court has powers to exercise discretion issue ad hoc directions where there is a lack regarding procedure relating to discontinue and thus invited the Court to invoke Order 8 Rule 61 of the National Court Rules to exercise discretion to discontinue the proceeding given the “consent of the parties” and or with leave.  

68.	Whilst I note that such procedure has been deliberated upon and granted by the Court:(See Tulapi v Niggins) (2011) SC1111, Madang Timbers Ltd v Kabori (2009) SC992 and Jack Kariko in his capacity as Secretary for National Judicial Staff Services (NJSS) v Dr. Ken Ngangan in his capacity as Secretary for Department of Finance & Department of Finance (2023) PGSC34; SC2379; Petroleum Resources Moran v Moran Oil Ltd (2023) SC2417, all these matters however were not Election Petition related proceedings. 

69.	Essentially, Section 185 of the Constitution states:

“185. 	Lack of procedural provision.

If in the circumstances of a particular case before a court no provision, or no adequate provision, is made in respect of a matter of practice or procedure, the court shall give ad hoc directions to remedy the lack or inadequacy.”

70.	Section 185 of the Constitution provides that this Court may give directions to remedy the lack of provisions on matters of procedure of practice. In determining whether to grant an application to give directions, the Court would take into consideration several factors amongst others, including whether the proceeding has been prosecuted with due diligence and whether the interest of justice warrants that the applicant be granted leave. In this present case, the calling of evidence by the applicant has concluded on 16 February 2024. The applicant has prosecuted her case with due diligence. 

71.	On 21 February 2024, the first respondent closed its case. It must be pointed out during the course of the proceedings, on 21 February 2024, counsel for the petitioner did inform the court during session that threats had been issued during the course of the trial that day. The Court did somewhat addressed the issue in Court. and intimated that if there were any threats, these matters are only known to the person, the subject of these threats and only they can depose to such matters if they wish to. 

72.	In any case, the matter proceeded, and orders were made relating to the filing and service of written submissions on the allegations raised in the petition and the matter was adjourned to 21 March 2024 to allow counsel to make oral submission  on behalf of their respective clients.

73.	The Court did not sit on 21 March 2024 to hear submissions due to the fact that the first respondent had filed a review of the decision of 15 February 2024 to the Supreme Court. This review was dismissed on 29 October 2024: see Mul v Ondokoi [2024] SC2654.

74.	The matter return to Court on 19 May 2025 respectively but legal representation became an issue, and it was adjourned to and 28 May 2025. On 28 May 2025, a motion was filed seeking discontinuance of the petition, the subject of this ruling including that of legal representation. 

75.	 Legal representation continued to be an issue and the matter was adjourned to 11 and 12 June 2025 respectively to seek verification of standing instructions and the matter was adjourned to 8 August 2025  submission for hearing of submission on bribery in elections. 

76.	On 8 August 2025, legal representation continued to be an issue, however it was sorted out. The Court accepted that Ms Kapi continues to act for the second respondent and Dr. Lomai is now counsel for the applicant. 

77.	During the course of the proceeding, Dr. Lomai instead of addressing the Court on allegations of bribery in elections, he informed the Court that he was moving the motion filed on 22 May 2025 seeking several reliefs the subject of this ruling. Dr. Lomai in his submission invited this Court to consider the application on its merits given the level of threats directed at the applicant as she deposed to in her affidavits filed on 22 May 2025 and 7 August 2025 respectively. I noted that in spite of the parties informing the Court that the parties had consented to discontinue the proceedings, the level of threats directed at the petitioner was now more apparent and disclosures names of the perpetrators in communications addressed to the petitioner, even threatening her not to attend the hearing on the morning of 8 August 2025. 

78.	So, in this regard, issues of threats being levelled against the Petitioner continue up to the hearing on 8 August 2025.  Hence the question to ask, again, is the decision to discontinue taken due to the petitioner’s own “free will” and informed “consent”? . I will come to this later. 

79.	I now refer to application to discontinue the petition and the relies on s 185 of the Constitution to utilise Order 8 Rule 61 of the National Court Rules to discontinue the petition. Here counsel refer to the case of Tarsie v Ramu Nico Management (MCC) Ltd [2010] N4142, where the Court said and I quote: 

“1.	If a Plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all the defendants, leave should generally be granted. it being in the interests of justice to encourage parties to reach an out of court settlement of their disputes.

(2)	To refuse leave to discontinue would constitute a restriction on a plaintiff's right to freedom bestowed on law under Section 32 of the Constitution and the right to the full protection of the law under section 37(1) of the Constitution and such a restriction ought only to be imposed in extreme circumstances.”. (Eton Pakui v The State (2006) N3001).

80.	Firstly, I noted the submissions made by counsel on this application and am thankful for their assistance. 

81.	However, I must point out that this is not an ordinary proceedings under the National Court Rules. The proceeding is an election petition, and the appropriate applicable Rules are the Election Petition Rules 2017 Consolidated to Election Petition (Miscellaneous Amendment Rules) 2022 (“EP Rules”) and the requirements of s 217 of the Organic Law on the National & Local-Level Government Elections equally applies. Essentially s 217 entails that “Real Justice shall be observed. I underline the word ‘shall”. 

82.	 I accept that Section 32 – (Right to Freedom) of the Constitution provides for freedom based on law which means that there be least restriction placed on the activities of an individual which is consistent with the Constitution and in particular with the National Goals and Directive Principles and the Basic Social Obligations. The same protection applies to the applicant in pursuing an Election Petition. The allegations of threats level against her which has led to this application for discontinue runs counter to the arguments raised under s 32 of the Constitution and equally s 37 (1) of the Constitution.

83.	So faced with these situation, should this Court grant the reliefs sought in the notice of motion and condone the issues of threats, intimidation and mental anguish suffered by the applicant. On this subject, whilst I note that there is no specific mention of the first respondent being the perpetrator of the issuance of the threats and the like, it is acknowledged that his supporters are involved. In her affidavit of 7 August 2025, an attachment has been attached which disclosed an excerpts of digital communication directed at the deponent (Petitioner) by a person identified as Paul Nake, whether a real person or a pseudo, it remains to be confirmed but the threats are very explicit and specific. I refer to such and quote:

84.	Such issuance of threats, intimidation and harassment goes beyond the purported submission of counsel for the first respondent that the decision to discontinue the petition is made out of “her own free will”). I find that the issuance of threat even to the extend to threatening the petitioner not to attend on 8 August 2025 is beyond the genuineness of the parties in purporting to consent to the resolution of their dispute. The threats here continued to the hearing of the motion on 8 August 2025. The threats is still a very serious issue and an offence in itself. Here, an actual perpetrator is named. Thus, it is up to the petitioner to take appropriate action must be taken against the individual so identified. The onus is on the applicant to identify the real identity of the perpetrator so named so that a complainant can be lodged with the relevant authority accordingly.

85.	I now come to the protection provided for under Section 32 of the Constitution, states:

“32.	Right to freedom

(1)	Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2)	Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

does not injure or interfere with the rights and freedoms of others; and

is not prohibited by law,

and no person—
(c )	is obliged to do anything that is not required by law; and

(e)	may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b)...

86.	So, given the above statement of law, the question I pose here should leave be granted to discontinue the proceeding when the petitioner here is being threatened, intimated and subjected to physical violence, assault and as a result of such threats and intimidation suffering mental anguish and anxiety including those of clan members? I think not. It runs counter to the right to freedom, s 32 and furthermore also runs counter to s 37(1) of the Constitution as envisioned in Tarsie v Ramu Nico Management (MCC) Ltd (supra). However, I would draw attention to the deliberation of his Honour Cannings J in particular paragraph 7 where he stated and I quote:

“7.	The present circumstances are unusual, special, exceptional and, to a degree, suspicious (what really has led to the plaintiffs sacking their lawyers on the eve of the trial and seeking leave to discontinue on the day of the trial – have they been intimidated? threatened? paid off? – these being the sorts of questions reasonable people will legitimately ask) but they are not sufficiently extreme to warrant the court forcing the plaintiffs to continue their case. I do not see any sufficient reason to refuse leave, so the application will be granted.” 

87.	In contrast to this present case, and here, I quote the statement of his Honour above, where he stated- “the present circumstances are unusual, special, exceptional and to a degree, suspicious”. Hence the question to ask is what has really led to the applicant changing her lawyers on the eve of making submission on bribery in election and seeking leave to discontinue on the date of hearing submission. In this case, the applicant has filed two affidavits deposing to threats, intimidation levelled against her personally, her family and clan members. Although in her affidavit of 22 May 2025, she has not given specific time and dates of the incidents nor identified the perpetrators by name. She even went to state that she has migrated to Australia due to the alleged threats and intimidation. 

88.	However, in her subsequent affidavit filed on 7 August 2025, she did provide evidence of communication through the social media of threats being levelled against her and family members. There is evidence of messages from a person named Paul Nake (whether a real person or pseudonym. So given the extreme level of threats, questions must now be asked as to whether these threats warrant the court forcing the applicant to discontinue her case, I must say that these are not sufficient reasons in the interest of justice to discontinue their case. To condone the threats would defeat the notion of the very law upon which she relies to move this application, s 32 (2) (3) and s 37 (1) of the Constitution. 

89.	It is also relevant to also point out that s 217 of the Organic Law is also relevant consideration to the issue of whether Order 8 Rule 61 would be invoked in the summary disposal of the matter. In this, I refer to the discussion of the Supreme Court in Mul v Ondokoi [2024] SC 2654 where the Court stated at [28} and I quote:

“28. 	In Aihi v Isoaimo [2023] PGSC 56, at paragraph 49, it states:

“49. It is settled law now that, once an election petition has progressed to trial, the provisions of s. 217 comes into operation. [40] Pursuant to this provision, the Courts have allowed themselves for instance to consider all evidence before them, whether admissible or not, or whether hearsay or not, in order to do real justice on the substantive merits of the case. This means in my view that, once a matter has progressed to trial, however that was allowed, the Court must proceed to consider the evidence before it, make the relevant findings of fact and arrive at a decision on the substantive merits of the case. Hence, the technical questions of whether there is foundation in the pleadings or not or whether or not an election petition is incompetent do not apply. This was made abundantly clear in the National Court decision by Amet CJ., in Maino v. Avei, which was endorsed by this Court’s decision in the Application by Ben Semri (confirming the approach of Injia J (as he then was) in Assik Tommy Tomscoll v Ben Semri, [41] which I followed in my own decision in the Steven Pirika Kamma v. Itanu, Electoral Commission and Laimo [42] and Steven Pirika Kamma v. John Itanu & Others (No 2). [43]”

 In this regard, I am minded to find that the application of Order 8 Rule 61 of the National Court Rules do not apply. In this case, s 217 of the Organic Law on National & Local-Level Election applies from the commencement of the proceeding right through to the end. The reasons being that Mr. Sua of Sua & Sons lacked the ostensible authority to act for and on behalf of the second respondent. 

90.	In addition, essence it is accepted that some serious level of threats have been levelled against the applicant in some form or other. However, the Court is seized of the proceedings, and the proceedings in before the Court and s 217 of the Organic Law applies throughout the proceedings to the end. I also note that counsel for the first respondent in his response to the application whilst noting the issue of threats being levelled against the applicant, he impressed upon the court that one of the applicant’s other reasons is that she (applicant) may not be successful if this court were to make an order for a by-election or that the issue of costs of the proceedings will be an issue for her financially. 

91.	In regard to the application for discontinuance, the issue for the Court to consider is whether the interest of justice favour the application being granted or refused is a judicial evaluation that, in my view should lean in favour of the need to deal with matters before this Court on the merits rather than technicalities. In evaluating where the interests of justice lie the subject matter of the substantive application is a relevant consideration and so is the conduct of the parties, especially the party who seeks the indulgence of the Court. I consider the matters with respect to the substantive petition weighty and important to be considered on the merits rather than to shut the door in a final fashion. See Petroleum Resources Moran v Moran Oil Ltd (2023) SC2417. 

92.	Whilst I find that Section 185 is one of the correct avenues to bring an application for Directions where no procedure is provided by the EP Rules. The other avenue, of course, is Rule 18 of the EP which in my view can be invoke to bring this proceeding to finality where there is default on the party of the petitioner to progress the matter to trial or on the part of the respondents for failure to comply with certain directions or orders of the Court and or where the Court thinks fit . 

93.	In this case I am minded to rely on Rule 18 of the Rules for the reasons that evidence of threats being issued against the petitioner, as detailed in her affidavits filed on 22 May 2025 and 7 August 2025 respectively. Given the level of threats issued and directed at the petitioner is well documented which are raised as reasons for her decision to file this application for discontinuance, I am minded to refer to the case of In Aihi v Isoaimo [2013] PGSC 56; SC1276 where the Court at paragraph 49, stated:

“49. 	It is settled law now that, once an election petition has progressed to trial, the provisions of s. 217 comes into operation. [40] Pursuant to this provision, the Courts have allowed themselves for instance to consider all evidence before them, whether admissible or not, or whether hearsay or not, in order to do real justice on the substantive merits of the case. This means in my view that, once a matter has progressed to trial, however that was allowed, the Court must proceed to consider the evidence before it, make the relevant findings of fact and arrive at a decision on the substantive merits of the case. Hence, the technical questions of whether there is foundation in the pleadings or not or whether or not an election petition is incompetent do not apply. This was made abundantly clear in the National Court decision by Amet CJ., in Maino v. Avei, which was endorsed by this Court’s decision in the Application by Ben Semri (confirming the approach of Injia J (as he then was) in Assik Tommy Tomscoll v Ben Semri, [41] which I followed in my own decision in the Steven Pirika Kamma v. Itanu, Electoral Commission and Laimo [42] and Steven Pirika Kamma v. John Itanu & Others (No 2). [43]”

	(Underlining mine)

94.	Section 217 provides for real justice to be observed in the determination of the dispute by injuncting the National Court to; "be guided by the substantial merits and good conscious of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.": see Hagahuno v Tuke [2020] PGSC 105; SC2018

95.	I am of the view that to not address the level of threats level at the applicant, including the unlawful behaviour and conduct of persons who are alleged to be the supporters of the first respondent have directed the threats at the applicant is uncalled for. The alleged assaults are unlawful and must be condone here and now. This Court would be condoning lawlessness and conduct unbecoming of persons who now stand on and make a mockery of the principle of a “right to freedom” and “protection of the law” to be interfering with the petitioner’s right to freedom and protection of the law to pursue this petition to the end, whatever the outcome. 

96.	To threaten her to achieve an end to this petition is to my respectful view unlawful, illegal and unjustified in a democratic society where all are equal and must be protected under the law. It is not right to pursue an end to this petition through unlawful means.

97.	It is at this juncture that I refer to the judgement of his Honour Kirriwom J (then) in Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020) which involve an appeal following an objection to competency of a petition, I am of the view that the statement is very relevant to this application which I adopt and apply more so in regard to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. His Honour Kirriwom J at [134], stated:

“134.	In rejecting and dismissing the objection to competency of the petition, this was my observation in my judgment:

“44.	 At this juncture of choosing grounds for trial and discarding those without merits, the trial judge has the ultimate discretion which of course must be exercised judicially. The discretion is exercised within the bounds of law and common sense.
...
46.	Only one act of bribery needs to be proven for a petition to succeed, and an entire election declared void. That is the law. Woods, J (as he then was) in Michael Mel v. William Ekip Wii [1993] N1178 reiterated this statement of the Law.

47.	The Organic Law in making bribery and undue influence as the most serious of illegal or corrupt practices at elections which justified nullification of an election result secured through bribery and undue influence clearly reinforces the democratic principle of fairness and free exercise of franchise and is determined to forego the result reached under such evil and corrupt circumstances. Therefore, whilst election is a serious matter and the majority wish must be revered and respected, the law prescribes the means by which an aspirant for an elective including political office must get there. End does not justify the means. 

48.	In this regard I endorse the sentiments expressed in Jimson Sauk v. Don Pomb Polye (2004) SC769 by the Supreme Court in a review application following dismissal of petition at the preliminary hearing when it said:

‘We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) when commenting on another National Court decision that had been relied on and referred to him:

“With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way, then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel, then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately, we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause, but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases, whether justice was ever done or not will never be known because the case was never heard.” (Underlining ours.)

This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of His Honour. Because of the frequent nit-picking technical objection raised in the guise of real substantive issues of competency or jurisdiction (based either on ss.208, 209 and 210 Organic Law, supra, or ss. 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility is to organise, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the election.’

49. 	This is a very powerful statement that the Supreme Court has ever made in defence of election petitions, and this Court is bound by what the Supreme Court has expressed. The Supreme Court justified its reasoning by examining the history of election petitions since the First National Elections after Independence where the then Chief Justice Frost then said in the Menyamya Open Parliamentary Elections [1977] PNGLR 298 at 300:

“The Organic Law thus givens full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void.” 	(Underlining mine). 

98.	 Both are authoritative statements of law and wisdom that this Court is bound to pay heed to without reservation.

(Emphasis mine) 

99.	Whilst I am minded to warn myself that I am yet to hear counsel on their submissions on the allegations of bribery in election, I have perused the submissions filed by the Petitioner and the Second Respondent respectively. 

100.	I also point out that Mr Jurth for the first respondent intimated to the Court that the first respondent will not be making submissions on bribery in elections. Given that statement, the issue for this Court is whether to the Court should allow counsel to make oral submissions and then this will also allow the first respondent to respond oral to the submission. Alternatively invite the first respondent to address the Court orally since failure to file written submissions as ordered by the Court. 

OTHER CONSIDERATIONS

101.	Other matters taken into consideration involved the protection of the law under the Constitution which is very relevant to this case. 

102.	Essentially, freedom based on law consists in the least amount of restrain on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and in particular with the National Goals and Directive Principles and the Basic Social Obligations.

103.	Section 32 of the Constitution, states:

(i)	Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(ii)	Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a) 	does not injure or interfere with the rights and freedoms of others; and 

(b) is not prohibited by law,

and no person—

(c) is obliged to do anything that is not required by law; and

(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b)...

104.	Would the court be interfering with the applicant’s right to freedom based on law if this court were to order the applicant to continue with the trial of the petition where the application is being made under some level of threats or intimidation? Literally, it would be against the grain of freedom envisioned under the Constitution. The decision is not of her own free will and hence the notion of the “protection of the law” would be defeated

105.	Constitution s. 37. Protection of the law states:

“(l) 	Every person has the right to the full protection of the law. and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with an offence. 

106.	Mr. Jurth for the first respondent in response to the application submitted that the reasons deposed to in the applicant affidavit should be given its due weight and more so, that even if a by-election is ordered, the applicant has provided evidence in her affidavit that she does not consider that she will be successful even if this Court were to order a by-election. Furthermore, the applicant has thought about the consequences of these proceedings, and she had determined that she will not be successful. He submitted further that rather than inconvenience, the judge in writing a judgment, she has taken this consideration including costs and etc. She is more or less asking the court to discontinue and so she can conserve her energy for the 2027 elections. Mr. Jurth more or less is pressing on with his submission that the applicant’s is of the view that she will not be successful in any by-election or other application. The financial costs involved is also another reason for the application to discontinue the proceedings and the Court should not push that party to continue with the proceedings. 

107.	Ms Kapi for the second respondent submitted that the second respondent has no issues with regard to the progress of the petition being pursued with due diligence and ask for costs of the application. 

Consideration of the application

108.	As I have made a ruling that Order 8 Rule 61 of the National Court Rules do not apply to Election Petitions, I need not consider the other submissions of counsel given that the paramount interest here is the administration of justice and rule of law.

109.	In this case, I am inclined to rely more on the order of business of the Court regarding the directions issued, compliance with the directions or orders of the court and legal representation at the relevant period. I must firstly state the following:

(i)	First and foremost, the petitioner here was aggrieved by the decision of the second respondent to declare the first respondent as the elected member for the North Waghi Open Electorate, and therefore filed this proceeding. 

(ii)	This proceeding is a way of seeking justice and thereby upholding the rule of law and fairness in the legal system regarding the election processes.  It is her personal decision. Similarly, the decision to withdraw and or discontinue such proceedings remains her personal decision made on her own free will, based on reasonable grounds. 

(iii)	Where threats are being levelled against the Petitioner personally with such impunity, it is something else that this Court must condone in the strongest terms. It is also a matter which must be referred to the Commissioner of Police for appropriate criminal charges to be laid against the perpetrators. In this case, there is evidence of a person namely Paul Nake who issued threats against the applicant, these threats implicate the first respondent and other unnamed boys. 

(iv)	Besides, these threats in themselves go against the notion of the applicant willingly exercise her rights to withdraw the case. Here the threats continued on until to the 8 of August 2025 on the hearing of this notice of motion to discontinue. So given this conduct, the question to ask is should the court condone such a threat or behaviour, and does it serve the purposes of good administration of justice, and it is in the best interests of justice? I think not. 

110.	Furthermore, after a lengthy trial and two unsuccessful applications for review of this court’s decision on objection to competency dated 6 July 2023 and application to extend and to call oral evidence dated 15 February 2024.  I am inclined to accept and infer that to my view, it seems that in effect, the applicant (petitioner) is inviting this court to summarily determine this petition in the absence of any provisions allowing for discontinuance of the proceedings under the EP Rules. There is no corresponding rule in the Election Petition on ‘discontinuance” and or “withdrawal of petition”. The only reference to early termination is Rule 18 of the EP Rules  and to my mind is therefore inviting this Court to invoke Rule 18) of the EP Rules. This is supported by the submission of counsel, Dr Lomai who submitted that the Court should exercise discretion in the interest of justice pursuant to Rule 18 (c) of the EP to determine the application. .

111.	If this is the path to take that this Court would be minded to follow than there will be an outcome which I will come to later in this judgment. 

112.	Whilst this Court recognises that the Constitution provides for the rights of the petitioner and guarantees her the protection of law to act within the law and in accordance to law. The petitioner purports to exercise her right under s. 32 and 37(1) of the Constitution to discontinue this proceeding pursuant to Order 8 Rule 61(b) and (c) of the National Court Rules.

113.	I have read her reasons deposed to in her two affidavits sworn and filed on 22 May 2025 and 7 August 2025 respectively and am minded warranting the exercise of discretion dealing with the proceeding relying under 217 of the Organic Law to pursue this outcome. 

114.	Given that there are no provisions under the EP Rules allowing for a petitioner to discontinue proceedings for whatever reason. I am minded to exercise discretion to consider the application under Rule 18 of the EP Rules to determine this proceeding. The approach taken here is essentially based on the following:

(i)	This is a matter where allegations of bribery have been raised against the first respondent. The evidence adduced before the Court is essentially unchallenged. 
(ii)	Bribery in election is a criminal offence under s 103 (a) (iii) of the Criminal Code Act 1974 Chapter 262. 

(iii)	There is no room for withdrawal or discontinuance under the EP Rules.  Upon the face of the records, it is clearly no existent. Where there is no provision, should this Court look elsewhere to accommodate such a lack? 

115.	Here reliance is s 185 of the Constitution to address this lack is appropriate, and whilst noting the authority convened under such provision, I am however minded to rely on s 217 of the Organic Law to reject the application of ad hoc procedure under Order 8 Rule 61 (1) (b ) & (c) of the National Court Rules to cure this lack. 

116.	I find that  due to the lack of instructions to the law firm Sua & Sons to act for the second respondent therefore this endorsement of the draft consent to discontinue is invalid and improper: see Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042) in which the national court in dealing with such situation have held that:

“For a lawyer to institute proceedings in any court in the name of a person without obtaining instructions from that person is an abuse of the processes of the court and renders the proceedings a sham” (Kopen Yanda and Others v Apostolic Church Properties Association of PNG Inc (2006) N3042).

117.	Further the exercise of discretion to grant leave lies in the court and here interest of justice does not warrant grant of leave given the explicit and specific levels of threats issued against the petitioner. A decision to discontinue is not of her own free will and informed consent. 

118.	Here, the application is being pursued by the petitioner under duress, threats to her life, family, her own mental health including those of her clan members. These level of threats, intimidation and anguish is a distraction from the core functions of this court in hearing the petition and can be terms as an abuse of the Court process. Further and in addition, the application to discontinue is not of her own free will. 

119.	I must commend the Petitioner for standing up for her Constitutional Rights as guaranteed by the Constitution to stand for public office under s 50 of the Constitution and to speak up when the level of threats have been summating on her general well-being and that of her tribesmen and family members. 

120.	I must again reiterate the statement in Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020) where the Court in its deliberation on the objection to competency of the petition in the judgment of Kirriwom J  where he stated at 134 more so, statement  that the Supreme Court has ever made in defence of election petitions, and this Court is bound by what the Supreme Court has expressed.  I refer and adopt statement made by  the  Supreme Court where it  justified its reasoning by examining the history of election petitions since the First National Elections after Independence where the then Chief Justice Frost then said in the Menyamya Open Parliamentary Elections [1977] PNGLR 298 at 300:

“The Organic Law thus givens full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void.”  (Underlining mine). 

121.	The arguments raised that the Court must accept that the applicant aside from raising issues and or elements of threats raised against her personally, her family, and clan members including that she has already assessed and evaluated her chances of success in winning a by-election is misconceived. A proceedings can be brought to finality based on the evidence adduced during trial on its own merits. A litigant or an applicant for that matter cannot pre-empt the discretion of the Court.

122.	Furthermore, I also consider that s 212 (3), read in conjunction with s 217 empowers the Court to administer "real justice" and to make any of the orders under s 212 (1) on such grounds as the court in its discretion thinks just and sufficient. Section 217 provides for real justice to be observed in the determination of the dispute by injuncting the National Court to; "be guided by the substantial merits and good conscious of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not."

123.	By reasons of the foregoing, I am not persuaded that the application for discontinuance due to levels of threats being directed on the applicant, her family and clan members; including the likely success of a by-election if ordered by the court are genuine grounds for discontinuance. 

124.	I find that the applicant has not established to my entire satisfaction, that the result of the election petition is likely to affect her success if a by-election is ordered by the Court or that the issue of costs is a necessary obstacle to her chances of success in a by-election. 

125.	Section 50 of the Constitution allows any person to stand for public office and in this regard, any potential candidates from the North Wahgi Open Electorate is eligible to stand for public office.  

126.	I am however, entirely satisfied that the circumstances and incidences of threats  which amounted to punishable offence under the law are so serious that circumstances of threatening behaviour which are unlawful acts or omissions as amounting to such grounds, which in my discretion, pursuant to Rule 18 (c ) of the EP Rules I consider just and sufficient that I should exercise the Court’s power under s 212 (1) (d) to issue orders and directions that the applicant take seriously her rights under s 32 and 37 (1) of the Constitution and lay a complaint with the Commissioner of Police and the Ombudsman Commission against the perpetrators of the threats, intimidation level against the applicant, her family and tribesmen and clan members and allow due criminal processes to take effect.

127.	This Court strongly condemns these type of behaviour and conduct which has no place in our societies. Papua New Guinean, especially aspiring women leaders must be given their due respect and protection of the law to pursue their aspirations to be future leaders of this country. They should not be subjected to harassment, duress, threats and intimidation from their fellow citizens irrespective of their status. 

128.	Section 50 of the Constitution gives special rights to citizens of this country. The rights guaranteed under s. 50 are special rights given to all citizens, except those specified by s. 50 (1)(a)(b). As Kapi J (as he then was) expressed in SCR 2 of 1982 at 233 – 234:

"The right guaranteed under s. 50 is a special right given to all citizens. Every citizen has this right except those persons who are excepted under s. 50 (1)(a), (b). Section 50 not only gives the right but gives an enabling provision so as to give the citizens "a reasonable opportunity" to meaningfully exercise that right... It is clear from the provisions of  s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principal which directs the law-making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.”

The reasonable opportunity to exercise the right under s. 50(1) may be regulated by a law under s. 50(2) of the Constitution. For a law to be within the provisions of s. 50(2):

(a)	to the extent that it regulates, it must be a law that is "reasonably justifiable for the purpose the democratic society that has proper regard for the rights and dignity of mankind";

(b)	can only regulate the exercise of the right but cannot prohibit or take away the rights from any class or group of citizens. A law, which has this effect, is not allowed; (see schedule 1.20 of the Constitution".

129.	Section 50 of the Constitution gives the women folk as citizens of Papua New Guinea, the right to stand for public office. 

130.	The Supreme Court in Supreme Court Ref. No 1 of 1992 [1992] PNGLR 73 confirmed this view. The Court at pp 76 - 77 said:

"Section 50(1) of the Constitution commences with the words:

"Subject to the express limitations imposed by this Constitution, ..." and provides as a special right of citizens of full capacity and who have reached voting age (subject to some exceptions) that they have the right, and shall be given a reasonable opportunity to be elected to public office at genuine, periodic, free elections. By s. 50(2) this right 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.

The wording of s. 50, "Subject to the express limitations imposed by this Constitution", is important because it means that the special rights of citizens contained in s. 50 can only be limited by the Constitution itself. Sections 8, 9 of the Constitution in defining the laws of Papua New Guinea draw a distinction between "This Constitution" and the Organic Laws and all other laws. Whilst an organic law is a constitutional law (Sch 1.2), it cannot expressly limit the rights in s. 50 of the Constitution although it may regulate those rights due to s. 50(2)."

The rights under s. 50 are qualified rights of citizens. Only a citizen is entitled to exercise these rights and are entitled to seek their enforcement where there is a breach.

The right to stand for and hold public office is a qualified right and therefore Parliament may enact appropriate legislation to regulate that right. However, it cannot by legislation prohibit or take away those rights.

The special rights given to the citizens may be regulated by a law that is reasonably justifiable for the purpose in a democratic society. A law that is intended to regulate any of those special rights in s. 50 must state the right that is to be regulated, and state the purpose why it intends to do so. It must also state why it is "reasonably justifiable in a democratic society" to do so.

Such a law cannot prohibit or take away any of those rights - if it does so, then it would contravene s. 50(2) and thus would be invalid” 

131.	In my opinion this court exists to serve substantive justice for all parties to a dispute before it. All parties deserve to be heard on matters concerning the real controversy between them. In Hagahuno v. Tuke (supra) which I am led to be guided and to accept that the principles enunciated in that case and directive in s. 217 to mean, the Court of Disputed Returns’ decision-making process is to focus on the fundamental principles and fairness of a petition at hand. It emphasises the need for the Court to look beyond procedural or technical aspects of the law and instead consider the essence and substance of the petition before it. Approaching a petition in this way would ensure that judgments are based on the underlying principles of justice and fairness rather than being limited by strict adherence to legal forms, processes and procedures or technicalities. Ultimately, this allows for a more flexible and equitable interpretation of the relevant laws, which would enable the Court to reach a just and equitable outcome based on the individual circumstances of each case: see Onglo v Dilu [2024] N10844 at [128].

132.	Regarding the issue of whether the parties be given an opportunity to make oral submission on the allegations on bribery in elections. I note that the petitioner and the second respondents have filed written submissions which are on file, which I have had an opportunity to read. 

133.	I note on the other hand that the first respondent has not filed any written submission on the allegation on bribery in elections as directed by the Court on 21 February 2024, 19 May 2025 and 28 May 2825 respectively. I add further that counsel for the first respondent did intimate to the Court that the first respondent will likely not be making any submissions on allegations on bribery in elections. 

134.	 I have given these matters some thoughts and am minded to accept that the first respondent be given an opportunity to be heard on the allegations of bribery in election although has elected not to file written submission on the allegations of bribery in election.

135.	So given this circumstance, should this Court proceed to deliver a decision on the papers as pointed out to counsel in previous hearings or mentions before the Court, in the event that counsel do not attend to the matter or fail to comply with directions issued on 21 February 2024, 19 May 2025 and 28 May 2025 by the Court respectively. 

136.	It is important to be guided by the general intent and the spirit of s 217 which injuncts the court to be "guided by the substantial merits and good conscience of its case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. Here, the trial has concluded, the only outstanding matter before the Court was for counsel to address the Court on the allegations of bribery in election. Hence, the I will adopt a very liberal and purposive interpretation of s 217: see Maino v Avei [1998] PNGLR 178; and allow myself time to read the submission of the second respondent and the petitioner which have already been filed as directed by the Court. Regarding the  objections  raised by counsel for the first respondent as to the right of legal representation entered by Universal Lawyers & Advocates as lawyers for the petitioner, I must point out that Mr. Dupre was present in court when his law firm were directed to file written submission which they did, irrespective of a further change of lawyers being filed thereafter as the law firm was yet to file a notice ceasing to act, at the relevant time.

137.	In any case, relying on the provisions of s 217 of the Organic Law, I am of the view that the first respondent be allowed to address the court on the allegations of bribery in elections. In this regard, the first respondent to is given the opportunity to make submissions on the allegations of bribery in election. 

138.	The Orders of the Court are as follows:

(1)	Leave is refused to adopt the procedure under Order 8 Rule 61 of the National Court Rules to discontinue the petition and therefore decline to grant the application moved by the applicant to discontinue the petition.

(2)	The Court will hear oral submissions on allegations of bribery in elections on 16 February 2026 at 9.30 a.m. 

(3)	The first respondent to file and serve written submission on allegations of bribery in election by Friday, 6 February 2026.

(4)	Should any party fail to appear on 16 February 2026 at 9.30 a.m. to address the Court on allegations of bribery in elections, the Court will proceed to determine the matter on papers and make a ruling accordingly.

Orders accordingly 

Lawyers for the petitioner: Lomai & Lomai Attorneys 		
Lawyers for the first respondent: Jema & Associates 			
Lawyers for the second respondent: Niugini Legal Practice