N11729

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP 19 OF 2022

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

IN THE MATTER OF A DISPUTED RETURN 
FOR THE WABAG OPEN ELECTORATE 

BETWEEN
SAMUEL PHILIP KENAI
Petitioner

AND
DR LINO TOM
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

WABAG: ELLIS J
30 JANUARY, 3 FEBRUARY 2026

ELECTION PETITION – Notice of motion for a summons to be issued to six additional witnesses – excessive, unexplained delay – no explanation why affidavit could not be obtained – application made without notice, after petitioner’s case closed – if application granted, petitioner would have no prior notice of evidence to be led – actual and alleged unfairness considered – application refused

Cases cited

Manase v Polye [2008] PGNC 48, N3328

Counsel

C Copland, for the petitioner
A Ninkama, for the first respondent
L Dos, for the second respondent

					RULING
 
1.	ELLIS J:  On 30 January 2026, without prior notice to the petitioner, a Notice of Motion was filed on behalf of the first respondent which sought orders (1) for that motion to be heard immediately, and (2) for a summons to be issued to six named witnesses to attend the Court and give evidence in these proceedings.

2.	The motion was supported by the second respondent but was opposed by the petitioner. After identifying the evidence, providing an opportunity for cross-examination, hearing submissions from each of the parties, and then adjourning to consider whether to grant the request for a summons to be issued to enable the first respondent to call six additional witnesses, the court made the orders set out below and indicated that reasons for those orders would be provided later.  These are those reasons.

Evidence

3.	The first respondent provided an affidavit (Exhibit E) which named six persons, indicated their position and gave a summary of what was said to be the relevant evidence they could provide.  It was suggested those witnesses should “shed light on the allegations” and that, if summoned, they would be available to give evidence between 30 January 2026 and 5 February 2026.

4.	No evidence was led by either the second respondent or the petitioner.

Submissions

5.	Oral submissions for the first respondent began with a bare reference to the numbered judgement N3328.  It was conceded that no request was made for a summons to be issued at a previous directions hearing but said that the first respondent’s current lawyer was not his lawyer at that time.  Further, that the petitioner’s lawyer had said, before the judge previously hearing these proceedings, that she wished to summons witnesses and that the first respondent consented to that.  The intended witnesses were said to be able to give evidence in relation to the shooting at a helicopter that was raised in document number 5 and it was contended that the balance of fairness favoured the first respondent.  An assertion was made that the intended witnesses would assist but it was not explained how that would occur.  Reference was made to s 217 of the Organic Law on National and Local-level Government Elections (the Organic Law). 

6.	The only submission for the second respondent was that the intended witnesses would provide support and go to explaining events.  There was no explanation of the basis for that submission.

7.	The lawyer for the petitioner submitted that all issues had been covered by the witnesses whose evidence had been filed and served.  It was noted that the document which had become Exhibit 9, filed on 16 December 2022, contained a statement from George Waekane in annexure B that attached the photos which were tendered through the witness Nehemiah Tipian.  Any suggestion that the first respondent had not seen those photos was disputed as those photos were included in documents served in 2022.  It was contended that it was not fair to the petitioner to seek to use s 217 in support of this application. 

Relevant law

8.	The power of the Court to “compel the attendance of witnesses and the production of documents" is found in s 212(1)(b) of the Organic Law.

9.	In the Organic Law, s 217 provides as follows:

The National Court shall be guided by the substantial merits and good conscience 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.

10.	Manase v Polye [2008] PGNC 48; N3328 (Manase) was a case in which a petitioner sought to have a summons issued to 11 witnesses.  That request was only granted in relation to one witness and, as to the other 10 intended witnesses, it was said, at [17] with emphasis added:

Now in respect of the other 10 summonses which the Petitioner has issued, if the Petitioner still wishes to call the summonsed witnesses, I direct that the Petitioner shall make application by motion for an order to authorise the summonses issued, setting out in a supporting affidavit the ground of the petition in respect of which the person is to be summonsed to give evidence and the role that it is believed that person played in respect of that ground, why the evidence may be relevant and why the Petitioner has not been able to obtain an affidavit from the person.

11.	While it was suggested in that case that any prejudice could be accommodated by an adjournment, that was a case in which the intended witnesses were not willing to attend court to give evidence, and it was held that there would be no prejudice to the other parties. Hence, that case can be distinguished on the facts from this case.

Consideration

12.	Whether or not a summons ought to issue is a matter which the judge administrator may consider at:
(1) 	any directions hearing under Rule 13 of the Election Petition Rules (the Rules),
(2) 	any pre-trial conference under Rule 14, and 
(3) 	at any Status Conference held pursuant to Rule 15.  

13.	Hence, there were multiple occasions on which the First Respondent was able to seek an order from the judge if a summons is sought, noting that these proceedings:
(1)	were commenced on 2 September 2022, well over three years ago,
(2)	were the subject of ten hearing days between 10 and 27 October 2023,
(3)	were considered by Yagi J on 14 November 2025 when the orders made included:
(a)	dealing with a request of the petitioner for a summons to be issued to each of six witnesses, and
(b)	for the respondents to provide a list of witnesses by 19 December 2025, and 
(4)	a further order in relation to the provision of a list of witnesses was made by the Court on 6 January 2026.

14.	Neither in evidence nor in submissions did the first respondent provide any explanation as to either (1) why the request was not made on any of those earlier occasions or (2) why the request was made now.  That is the first reason which favoured refusing the request.

15.	In this case, there was no explanation, either in the evidence or submissions of the first respondent, as to why an affidavit could not be obtained from any of the six intended witnesses.  In Manase, that was an issue that operated to prevent the issue of a summons to 10 of the 11 intended witnesses and, as indicated in the paragraph quoted above, an affidavit dealing with that issue was required.  In this case there was no utility in doing that because the position is clear.  For example, one of the six intended witnesses, namely Ben Nepao, provided an affidavit in support of the notice of motion that was heard on 27 January, only three days before this application was made.  That is the second reason which favoured refusing the request.

16.	Next, unlike Manase, where it was determined that there would be no prejudice if a summons were to be issued, in this case there would be clear prejudice to the petitioner who has not only closed his case but also would not have any idea of what evidence is being led from any of the six intended witnesses.  The first respondent’s lawyer suggested there would be unfairness if the request was refused but unfairness is not a one-way street.  Weighing up the bare assertion of unfairness to the first respondent, and the clear unfairness to the petitioner, the scales of justice clearly favour the petitioner.   That is the third reason which favoured refusing the request.

17.	In Manase, it was said that an adjournment might be granted to address any prejudice.  However, in this case (1) no adjournment was either sought by the petitioner or suggested by the first respondent, (2) that would not overcome the prejudice of the petitioner not knowing what evidence would be led, and (3) an adjournment is undesirable in this instance as these proceedings are now almost three and a half years old.

18.	Those reasons provide a sufficient basis for dismissing the first respondent’s notice of motion.

19.	It is also noted that granting the order sought in the notice of motion would give rise to the fourth occasion during the short life of the resumed hearing, that the first respondent has ambushed the petitioner.  The first was when three affidavits in support of the Notice of Motion considered on 27 January 2026 were not served until less than two hours before the hearing of that motion,  The second was when, on the afternoon of 28 January 2026, it was indicated that the first respondent wished to make a no case submission but it was not until the commencement of the hearing of that application the next morning that 27 pages of details written submissions were first provided to the respondent and fairness required giving the petitioner’s lawyer the rest of that day to prepare a response.  Thirdly, this Notice of Motion was sprung on the petitioner, without any warning.  Fourth, if the order sought was granted, the petitioner would again be ambushed in that neither the petitioner nor his lawyer would be aware of what evidence any of the six intended witnesses would give.  Litigation by ambush is unjust and should not be condoned by a Court.

20.	There are submissions made by the lawyer for the first respondent that must be rejected.  First, the suggestion that he was not the first respondent’s lawyer at the time of the directions hearing carries no weight as (1) the first respondent is bound by the conduct of his prior lawyer, and (2) there were multiple opportunities for the current lawyer for the first respondent to make the request now made, from at least 14 November 2025 when Yagi J permitted a summons to be issued to six witnesses at the request of the petitioner.  

21.	Secondly, the fact that the first respondent may have consented to that request, which was made more than two months prior to the resumed hearing, does not bind the petitioner to consent to this request, made after the petitioner’s case has been closed.

22.	Thirdly, as to the suggestion that one of the intended witnesses would be able to give evidence in relation to shooting at a helicopter that was raised in document number 5, it must be observed that document number 5 was filed on 10 September 2022, more than 3 years and 5 months ago, and no explanation was provided as to why either (1) an affidavit was not filed and served in response to that evidence, or (2) why the application to lead evidence in response to that evidence is only being made now.

23.	In exercising its discretion in relation to this Notice of Motion, the Court was comfortably satisfied that a consideration of the test of “substantial merits and good conscience”, contained in s 217 of the Organic Law, favoured dismissing the first respondent’s Notice of Motion.

Costs

24.	As the Court did not favour taking further time to deal with the question of the costs of this Notice of Motion, an order was made for the costs of this Notice of Motion to be reserved, so that they may be considered at a late date, presumably at the conclusion of the proceedings.

Orders

25.	It was for the reasons set out above that the following orders were made on 30 January 2026:
1.	The first respondent’s Notice of Motion filed on 30 January 2026 is dismissed.
2.	The costs of that Notice of Motion are reserved.
3.	Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the petitioner: Ashurst PNG
Lawyers for the first respondent: A Ninkama Lawyers
Lawyers for the second respondent: L. Dos