SC2825

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO. 7 OF 2024 (IECMS)

BETWEEN:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Applicant

AND:
WERA MORI
First Respondent

AND:
HON. JAMES NOMANE, MP
Second Respondent

SC REVIEW (EP) NO. 8 OF 2024 (IECMS)
JAMES NOMANE
Applicant

AND:
WERA MORI
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

WAIGANI:  YAGI J, FRANK J,  LIOSI J
30 JULY 2024; 12 DECEMBER 2025

SUPREME COURT CONSTITUTION s155(2)(b) REVIEWS - ELECTION PETITIONS – death of petitioner after close of petitioner’s case at the trial in the National Court - National Court ruled that the trial continue – application for review of National Court ruling – Constitution, ss 103, 206, 208(c), 212 & 222 -  Organic Law on National and Local-level Government Elections ss 83, 87(1)(a) - Electoral Law (National Elections) Regulation 2007, section 44
Case Background Summary

Following the close of the petitioner’s case at the trial of his petition and prior to the resumption of trial when the petition respondents were to make their No Case To Answer submissions, the petitioner died.  When the trial resumed the primary judge, upon being informed of the death, directed counsel to address the trial court on the issue whether the trial should continue notwithstanding the death of the petitioner. After hearing submissions on the issue, the primary judge ruled that it must in the absence of the petitioner.  Aggrieved by that ruling and order, in these reviews the petition respondents seek, amongst others, an order to quash that order on the ground that the petition abated on the death of the petitioner.

Held

(1)	The right to petition under sections 206 and 208(c) of the Organic Law is a personal claim which does not survive the death of its petitioner.
(2)	A petition disputing the election of a member to the Parliament abates upon the death of the petitioner.
(3)	Substitution of a deceased petitioner is not available as a matter of law.

Cases cited
Biri v Ninkama [1982] PNGLR 342
Damena v Lowa [1997] PNGLR 448
Mune v Poto (1996) SC508
Nukunj v Pim (EP 66 of 2022; 7 February 2024)
Nukunj v Pim & Electoral Commission (2025) SC1756
Powi v Kaku (2022) SC2290
Simitab v Isifu (2023) N10480
The State v Cain Wosae (2017) N7652
Thompson v Pokasui [1988] PNGLR 210
Tobewa v Steven (2018) N7139
Tulapi v Luta (2000) SC653
Thomson v Lord Clanmorris [1900] 1 Ch.718; [1901-3] All E.R. 804
WorkCover Queensland v AMAC Pty Ltd 241 CLR 420

Counsel
Mr N. Tame for the applicant, Electoral Commission
Mr Harvey Nii for the applicant, James Nomane, MP
Mr. C. Gagma, for the late Wera Mori, petitioner in EP 56 of 2022

1.	YAGI J:  I have the benefit of reading the draft judgment of his Honour Justice Frank and I concur entirely with the reasons and conclusion including the orders proposed. However, I wish to add few remarks of my own.

2.	The facts in this case have been succinctly set out in the judgment [at 9 and 10] of his Honour. I do not propose to traverse them. I adopt them for the present purposes.

3.	This is a case where the petitioner died during the currency of the proceeding and prior to the final determination and disposition of the substantive issues in the petition. The issue is what should become of the proceeding midstream? Should the proceeding continue, and if so, should the principles for substitution of a party in ordinary litigation under Order 5 of the National Court Rules 1983 (NCR) apply? The primary judge appeared to accept this proposition by applying the dictate of Order 5 Rule 10(1) of the NCR.

4.	The answer to the issue in not clear as a day. Neither is it expressly provided by the governing laws - Organic Law on National and Local-level Government Elections (Organic Law) and the Election Petition Rules 2017 (as mended).
	
5.	In a situation where the first respondent (who is the elected member of the National Parliament) passes on in life, the law is that a By-Election must take place by virtue of s. 104(2)(g) and s. 106 of the Constitution. I reproduce both provisions for convenience as follows:

“104. Normal term of office
(1)	An elected member of Parliament takes office on the day immediately following the day fixed for the return of the writ for the election in his electorate.
(2)	The seat of a member of the Parliament becomes vacant –
	(a)	……………
	(b)	……………
	(c)	……………
	(d)	……………
	(e)	……………
	(f)	……………
	(g)	on his death; or
	(h)	……………”

“106.	By-Elections
If the office of an elected member of the Parliament becomes vacant otherwise than by virtue of Section 104(2)(b) (normal term of office), an election shall be held to fill the vacancy unless the vacancy occurs -
(a)	within the period of 12 months before the fifth anniversary of the date fixed for the return of the writs for the previous general election; or
(b)	after the writ has been issued for an election under Section 105(1) (general elections) and before the day fixed for the return of that writ, writs for a general election are issued, the first-mentioned writ shall be deemed to have been revoked.”

6.	The Courts have recently held that the effect of the demise of the sitting member of Parliament, as the first respondent in the proceeding, in the context of an election petition proceeding, is that the proceeding must be abated: Simitab v Isifu (2023) N10480 and Nukundj v Pim & Electoral Commission (2025) SC1756.

7.	The answer to the conundrum in this case, in my opinion, should be no different as in the case of the death of the first respondent (sitting member of the National Parliament). I concur with Justice Frank; the proceeding should also be abated in the circumstance. The following, among others, are the reasons why the proceeding should be abated:

(i)	The petitioner was an unsuccessful candidate. His right to challenge or dispute the “election or return” is personal, inalienable and non-transferable. It cannot be assigned, transmitted or bequeathed in any shape or form under any circumstances. When the petitioner dies his right under the Organic Law also automatically ceases to exit and is otherwise extinguished.
(ii)	The petitioner must satisfy various stringent eligibility and qualification requirements such as age, place of birth, place of residency, enrolment, solvency, mental sanity and free from criminal conviction and sentence. Third parties are not subjected to this stringent scrutiny.
(iii)	The substantive reliefs claimed by the petitioner in the petition cannot be granted by the Court to a third party.
(iv)	The right vested in the petitioner is a special and unique right because of its characteristics under the Constitution and the Organic Law. 
8.	For these brief reasons I agree that both substantive applications for review should be granted with costs to be borne personally by the lawyer for the deceased petitioner for the reasons that will be made clear later.

9.	FRANK J: The two applications to review in these proceedings, one by the Electoral Commission and the other by Hon. James Nomane, MP (“Mr Nomane) (together referred to herein as the applicants”) seek, amongst others, orders to quash the decision of the National Court made on 28 February 2024 in the election petition  proceedings EP 56 of 2022:  Wera Mori vs James Nomane, MP & The Electoral Commission (“Petition”), in which the primary judge  made these orders (hereafter “orders under review”):

1.	The trial in the petition shall continue to finality in the absence of the petitioner.
2.	The pending no case to answer submissions shall be heard on a date to be fixed unless the respondents choose otherwise.
3.	Parties shall bear their own costs of the proceeding relating to the demise of the petitioner.
4.	The matter is adjourned to Monday 25th March 2024 at 1:30 pm for No Case to Answer Submission.

10.	In the Petition, Mr Nomane was the first respondent, the Electoral Commission was the second respondent and Wera Mori, now deceased, was the petitioner (“Deceased Petitioner”). These reviews were filed against this background:

(a)	Mr Nomane and the Deceased Petitioner were both candidates at the National General election for the seat in the National Parliament for the Chuave Open Electorate;
(b)	Mr Nomane was declared winner on 8 August 2022 on 11,899 votes, 494 votes ahead of the Deceased Petitioner as the runner up on 11,405 votes;
(c)	Three of the initial five grounds of the Petition progressed to trial; one alleged illegal practices during polling at Ward 22, Siane LLG, and two alleged errors or omissions at the counting centre – one concerning scrutiny of the subject ballot box from Ward 22, and the other made general allegations of errors or omissions at the final exclusion;
(d)	At the trial, following the close of Deceased Petitioner’s case the applicants (as Petition respondents) elected to make No Case to Answer Submissions so the primary judge directed that submissions on the No Case be filed and adjourned the proceedings for hearing on the No Case;
(e)	On 4 December 2023 the Deceased Petitioner died;
(f)	When the trial resumed, Mr Gagma, who had been counsel for the Deceased Petitioner, informed the trial court of the death of the Deceased Petitioner, and his instructions from the Deceased Petitioner’s family members that the trial should continue, which the applicants (as Petition respondents) opposed and submitted that the Petition should be dismissed as a matter of course as there was no practical utility in maintaining the proceedings;
(g)	Given these opposing positions, the primary judge directed parties to file and serve submissions on whether the trial of the Petition should continue after the death of the Deceased Petitioner and adjourned for the hearing of those submissions which the primary judge received on 22 February 2024;
(h)	On 28 February 2024, the primary judge made the orders under review.

11.	In these applications for review, the grounds for review are prolix, however, I consider that the primary grievance which the applicants have is that the primary judge ought to have dismissed the Petition as it abated on the death of the Deceased Petitioner.  They advanced this in Ground 5.2 of the Electoral Commission’s Review and Ground 5.1.5 of Mr Nomane’s Review.

12.	The issue which the primary judge put to counsel for submissions was whether the trial should continue notwithstanding the death of the Deceased Petitioner. Put another way; what is the effect of the death of the Deceased Petitioner, if any, on the Petition or does the Petition, the trial of which was part-heard, survive the death of the Deceased Petitioner.

13.	The applicants contend that the primary judge erred when, in breach of section 208(c) and 222 of the Organic Law on National and Local-level Government Elections (Organic Law), he ordered the trial to continue after having concluded that there was no law which provided for the situation that was before him.

14.	For Mr Nomane, it was submitted before the primary judge that a petition does not survive the death of its petitioner for these reasons:
(a)	first, the intent of the law as reflected in section 222 of the Organic Law is that the right to file and prosecute a petition is given to a candidate; and
(b)	second, a petition can only be competent if it is of a petitioner as required by section 208(c) of the Organic Law and not of another person in the name of a petitioner: Biri vs Ninkama [1982] PNGLR 342; Tobewa vs Steven (2018) N7139.

15.	For the Electoral Commission, it was submitted before the primary judge that upon the death of the Deceased Petitioner, his Petition abated and therefore the primary judge ought to have issued an appropriate order to conclude the Petition proceedings and that such an order is for the dismissal of the Petition as to make any other order would be an abuse of the process against which a Court must protect its processes for these reasons:

(a)	a petition is a special personal claim that does not survive under section 34 of the Wrongs (Miscellaneous Provisions) Act Ch. 297 (“Wrongs Act”);
(b)	a petition is a special proceeding for the reasons described in Simitab vs Isifu (2023) N10480 paras.55 and 56; 

16.	Mr Gagma, who had sought the orders effectively for the continuation of the trial of the Petition submitted before the primary judge that the Petition should be allowed to continue to finality for these reasons:

(a)	first, it is in the interest of justice to do so as serious allegations are raised in the Petition for which this Court should find or declare that the cause of action in the Petition survives the death of the Deceased Petitioner;
(b)	second, the hearing of the Petition would ensure that the integrity of the elections are protected by exposing illegal practices raised in petitions; and
(c)	third, such relief (continuation of a petition to its determination on its merit) was granted in Nukunj vs Pim & EC (EP 66 of 2022; 7 February 2024).

17.	To facilitate the continuation of the trial, Mr Gagma submitted before the primary judge that an order for substitution should be made in favour of persons including members of the family of the Deceased Petitioner. No authority was cited to support this submission.

18.	Addressing Nukunj v Pim (EP 66 of 2022) first, although Mr Gagma did not provide a copy of the decision in that case for this Court to fully appreciate the reasons for the decision, it is doubtful that the issue as to whether the cause of action survives the death of a petitioner was considered there as it was the successful candidate who died in that case. In any event, this Court has since declared that upon the death of successful candidate pending decision following trial of a petition, the petition abated by force of the law in section 104(2)(g) of the Constitution: Nukunj v Pim & Electoral Commission (2025) SC1756.

19.	As to the second point that allowing the trial of the Petition to continue so that the illegal practices pleaded in the Petition are exposed, this point is premised and contingent on the success of the Petition upon its determination at trial when the issue the primary judge had to overcome first, and which this Court is now to determine in these reviews is whether the cause of action survived the death of the Petitioner.

20.	I am not persuaded by and do not accept the submission that this Court should declare that the Petition survived the death of the Deceased Petitioner.  No authority has been cited for it. Nor has any authority been cited for the propositions that the cause of action in a petition survives the death of its petitioner or that this Court should find that it does simply on the basis that it pleads a serious allegation.

21.	Seriousness of an allegation alone is not a sufficient foundation for the trial court or this Court to find that a petition survives the death of its petitioner.   So, for instance, in an ordinary civil action for defamation, under section 34 (2) of the Wrongs Act, however serious and meritorious it might be, it does not survive for the benefit of the estate of the person allegedly defamed.

22.	In any case, a petition is itself a serious matter: Biri v Ninkama (supra).  There is no suggestion that the Petition does not raise a serious allegation.  Otherwise, it might not have reached trial.

23.	I turn now to the issue whether the Petition survived the death of the Deceased Petitioner. 

24.	The principles on standing, survival of actions and accruals of causes of action at common law also form part of the laws in this jurisdiction.

25.	At common law, by reason of the rule expressed in the maxim actio personalis moritur cum persona most actions in tort died with the person whether the person dying was the injured person or the wrongdoer: Clerk & Lindsell on Torts, Thirteenth Edn., Sweet & Maxwell, London, 1969, para. 4 p. [255]. However, this position was varied by the English Law Reform (Miscellaneous Provisions) Act 1934 and The Fatal Accidents Acts which vested in the estate of the deceased and dependants of the deceased the rights to seek compensation based on the cause of action the deceased had: Clerk & Lindsell (supra) para.413 p. [255].

26.	Justification for the maxim, according to Fleming on Torts, 3rd Edition, as noted by the High Court of Australia in WorkCover Queensland vs AMAC Pty Ltd 241 CLR 420, para.42 fn.52 is that damages for pain and suffering, bodily or mental harm and the curtailment of expectation of life were being paid to persons who had not suffered those injuries.  That is, that the injury which gives rise to the cause of action is to the body of the person wronged, that is, to his dignity and personal experience.

27.	In WorkCover (supra), the High Court observed at para.47 that “it is apparent that the limitations on the recovery for pain and suffering, bodily or mental harm and the curtailment of expectation of life… were directed to a particular, perceived problem: that the recovery by the estate of damages of heads of loss it had not, or would not, suffer was contrary to the rationale of compensatory damages.”

28.	Aside from the expressions of its justification, the law in this jurisdiction reflects the common law as it is evident in the Wrongs Act although this Act relates to torts and those statutory wrongs and breaches provided for in it.  It recognizes that certain claims do not endure or survive death, some of which are excepted by statutory intervention.

29.	In the context of election petitions under the Organic Law, the interest which a candidate seeks to acquire is the right to be appointed by declaration following selection by election as the parliamentary representative of the electorate (“Office”) for which he nominated and in which he participated as a candidate.

30.	It is this right to hold the Office which is at stake in a petition disputing the validity of a return or an election.

31.	Pursuant to section 206 of the Organic Law, a petition is the originating process by which the validity of an election or return may be disputed. If such a challenge succeeds it may affect the declaration which concluded the election process by which the successful candidate was declared as duly elected: Organic Law sections 212(1)(f), (g) and (h) and section 215.

32.	This right to petition is vested only in an unsuccessful candidate or a person qualified to vote at the election: Organic Law, sections 206 and 208(c). 
33.	At the time of a candidate’s successful nomination, he was accepted as having the following qualities:

(a)	he was not less than 25 years of age: Constitution, section 103(1);
(b)	he was born in the electorate for which he nominated or had resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time: Constitution, section 103(2); 
(c)	he had paid his nomination fee: Constitution, section 103(2).
(d)	he was entitled to vote in elections to the Parliament: Constitution, section 103(3)(a);
(e)	he was not of unsound mind: Constitution, section 103(3)(b); 
(f)	he was not under sentence of death or imprisonment for a period of more than nine months: Constitution, section 103(3)(c);
(g)	he was not an undischarged insolvent under any law: Constitution, section 103(3)(d);
(h)	he had not been convicted under any law of an indictable offence committed after 25 June 2002: Constitution, section 103(3)(e); Electoral Law (National Elections) Regulation 2007 (Electoral Regulation), section 44 (e)
(i)	he had not in the three years prior to the polling date been dismissed from office under the Leadership Code: Electoral Regulation, section 44 (i);
(j)	he had been duly nominated as a candidate: Organic Law, Part XI section 83; 
(k)	he had, by his consent and declaration to act form under section 87(1)(a) of the Organic Law, consented to act and declared his willing to take on and discharge the duties and responsibilities of the Office if elected.

34.	Section 96 of the Organic Law amplifies the significance of a candidate’s consent and declaration under section 87 (1) (a) of the Organic Law to act, if elected, as the parliamentary representative of an electorate. It provides that where only one candidate has been nominated, he is entitled under section 96 of the Organic Law to be declared the member-elect for the electorate.

35.	Those qualities in section 103 (3) (b), (c), (d) and (e) of the Constitution and section 44 of the Electoral Regulation concern the personal capacity, liberty and the character of a candidate. These together with his reputation, educational and professional qualifications, life skills and experiences, associations, birth or residence and his personal declaration of commitment to take on and discharge the duties and responsibilities of the Office attach to the person of each candidate. By their nature, on the death of a candidate these statutory and personal qualities cannot be assumed by any other person.

36.	Thus the status of an unsuccessful candidate and right to file a petition pursuant to section 208 (c) of the Organic Law define the standing of and distinguish each candidate from any other person for the purpose of section 206 of the Organic Law.

37.	Therefore, when a petitioner dies that right ceases with its holder; there is no longer a person clothed with those qualities in whom the right to hold such Office may vest should a petition succeed, and it be determined that its petitioner be declared as duly elected.

38.	For these reasons, as a matter of law, the right of action in a petition is a personal claim. The rights to seek Office and to petition do not survive the death of the candidate.

39.	With the deliberate personal desire of a candidate to stand for Office, it would also, with respect, be contrary to the constitutional law requirements and intent of the law for a person not so qualified to be permitted by substitution to prosecute a petition following the death of its petitioner.

40.	It follows for the reasons given that the issue of substitution could not arise.

41.	The remarks of the trial judge in Tobewa (supra) reflects the spirit and intent of these constitutional law provisions discussed.

42.	When the issue whether the claim subsists following the death of the Deceased Petitioner is considered by reference the cause of action mentioned by the Electoral Commission in their submissions, the conclusion as to the law is same as explained earlier.

43.	As noted in Clerk & Lindsell (supra) para.614 at p. [322], there can be no cause of action if there is not in existence both a potential plaintiff and a potential defendant: see also Thomson vs Lord Clanmorris [1900] 1 Ch.718 per Vaughan Williams L J at pp. 7 to 8-9; [1901-3] All E.R. 804 at 809.

44.	A petition pursuant to section 208 of the Organic Law is, with respect, no different in this regard to an ordinary civil action; its petitioner stands in the position of a plaintiff as it is him who seeks to be vested with the right to hold the Office and is aggrieved by certain facts constituting the ground in his petition upon which he seeks the court’s intervention to divest the successful candidate of the right to hold the Office.

45.	Such grievance in a petition could only be driven by its petitioner.

46.	Therefore, upon his death a constituent of the cause of action ceases to exist; it abates: it is no longer competently constituted, the result of which is that the petition abates.

47.	And, as substitution and amendment (Biri vs Ninkama (supra)) are not available, such petition is rendered incompetent.

48.	So when a petitioner dies, the appropriate order would be to dismiss the petition. If such an order is made, it brings the petition proceedings to finality albeit not in the ordinary course of the proceedings by a determination on its merits.

49.	For these reasons, in this instance, the Petition abated on the death of the Deceased Petitioner.

50.	As regards the jurisdiction for a dismissal order, Mr Nomane, supported by the Electoral Commission which adopted Mr Nomane’s submissions submitted before the primary judge that section 212(1)(i) of the Organic Law provides that jurisdiction.

51.	The primary judge held that it was available only upon the determination of a petition on merits following a trial.

52.	To get to that conclusion, the primary judge said:

In Mune’s case the Supreme Court stated that, “In our view the discretion lies in the choice of selecting and making any of the orders in order to reach a just and efficient result but there is no discretion to go outside the orders specifically mentioned like vacating an order dismissing a petition”.  
In the Powi case the Court said This list of relieves the Court can grant under subsection (1) is not an open licence for the court to grant any relief the court wishes to”.

53.	At page 3 of his reasons the primary judge said:

As to the relief sought, the court has power to grant one or more of the relieves prescribed by section 212 of the Organic Law. Subsection (1)(a)(b)(c) and subsections 2 & 3 of that provision provides procedural reliefs while the balance of subsections (1) & (4) are substantive orders the court can make.  The substantive orders under subsection (1) & (4) that the court can make can only be granted after a petition reaches finality. Therefore, to suggest that the petition in the present case should be dismissed under section 212(1)(i) is a misconception as the present petition is yet to reach its finality.

54.	Thereafter His Honour continued:

As to whether the Court can make any order outside those prescribed by s 212 subsection (3) states:
(3)        The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
 This provision confines the court to the powers given under s 212 only.  There is no grant of power to venture outside the parameters of s 212.  It is a misconception to assert that the Court also has discretionary power to make other decisions not listed under this section. 

55.	His Honour did not provide reasons for concluding that the dismissal power in section 212(1)(i) of the Organic Law only applies at the time of the decision determining the claim on its merits following trial.

56.	The relief which the applicants (as Petition respondents) sought was to dismiss the Petition, a relief whose description fell within section 212(1)(i) of the Organic Law.  By rephrasing the relief in the terms by which it was addressed, it differed from that as expressed in section 212(1)(i) of the Organic Law when in substance it was.  This is because the relief which was granted was by way of a direction that procedurally was unnecessary; without such direction, ordinarily a petition like any action or suit is determined on its merits at trial.  This disguised or clouded the issue as is reflected in certain parts of the submissions, some of the grounds in these reviews and the focus and extent of the inquiry into the issue.

57.	Section 212 of the Organic Law provides (Italics added in (1) (i)):
212. Powers of court.
(1) 	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things -
(a) 	adjourn; and
(b) 	compel the attendance of witnesses and the production of documents; and
(c) 	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) 	order are-count of ballot-papers in an electorate; and
(e) 	examine witnesses on oath; and
(f) 	declare that a person who was returned as elected was not duly elected; and
(g) 	declare a candidate duly elected who was not returned as elected; and
(h) 	declare an election absolutely void; and
(i) 	dismiss or uphold a petition in whole or in part; and
(j) 	award costs; and 
(k) 	punish contempt of its authority by fine or imprisonment.
(2) 	The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3) 	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) 	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.

58.	Section 109 (4) of the Constitution provides that “Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit …”. Under Schedule 1.2.5 (2) of the Constitution,  “All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”

59.	In Thompson vs Pokasui [1988] PNGLR 210, this Court, at page 211, said that the powers in sections 206 to 212 of the Organic Law are not exhaustive but did not include the power to dismiss a petition for failure to comply with a request for particulars. In that case, the National Court in the exercise of its powers on an application, dismissed a petition on account of the petitioner’s failure to comply with a request for particulars. As section 212 (1) of the Organic Law did not allow for the provision of particulars the dismissal was set aside on appeal. The case affirms that those powers are available prior to the determination on merits after trial.

60.	In Tulapi vs Luta (2000) SC653; [2000] PNGLR 120, whilst acknowledging the National Court’s powers under section 212(1) of the Organic Law, this Court held, at page 125, that those were procedural powers apply once the National Court commences to hear a petition to control the conduct of the proceedings and that the power to amend is not included in section 212 (1).

61.	In Mune vs Poto (1996) SC508 this Court held that the powers under section 212 (1) of the Organic Law did not include the power to vacate an order dismissing an order the same judge made by mistake.

62.	Powi vs Kaku (2022) SC2290 does not assist in addressing the issue as in that case section 212 (1) of the Organic Law was applied in the determination of the petition on its merits following trial.

63.	These cases were cited by the applicants (as Petition respondents) in support of their submissions before the primary judge. 

64.	Thompson’s case and Tulapi’s case establish that the relief set out in section 212(1) of the Organic Law apply at any stage of the proceedings after the commencement of trial up until its final disposition.

65.	His Honour did not refer to Thompson’s case and Luta’s case.

66.	On these case authorities, when the primary judge heard submissions and made the orders under review, the relief under section 212 (1) (i), in its application as reflected in Thompson’s case and Tulapi’s case was open to him to consider even though the issue as to the meaning and scope of such power as raised in these reviews was not specifically raised for determination in those cases.

67.	In my respectful opinion, the restricted application ascribed by the primary judge to the word “dismiss” in section 212(1)(i) of the Organic Law is not supported by its ordinary meaning and usage and section 109 (4) Schedule 1.2.5 (2) Schedule 1.2.5 (2) of the Constitution. There is nothing in section 212 (1) or elsewhere in the Organic Law which allocates each relief to a specific stage of a petition proceeding. It is apparent from the list of relief that its sequence follows in a general way the sequence by which such relief might ordinarily arise to be considered at the various stages of a proceeding during which, occasions may arise, for instance, when consideration for orders for costs or contempt may surface at any stage of a proceeding. Furthermore, giving that word the restricted scope and meaning as the trial judge has is not supported by the application of the provision by this Court as noted in the cited caselaw. In my respectful opinion, the power to dismiss under section 212 (1) (i) of the Organic Law was in law available to His Honour at the time he considered and determined the issue whether the trial should continue notwithstanding the death of the Deceased Petitioner.

68.	Leaving aside the view I have expressed on this provision, the primary judge, having  considered that section 212(1)(i) of the Organic Law did not include an order for dismissal of a petition at the stage where the trial was part-heard and therefore there was an absence of express power for such relief, could have, in my respectful opinion, invoked section 185 of the Constitution to dismiss the Petition, as the National Court availed itself of in dismissing an indictment: The State vs Cain Wosae (2017) N7652. 

69.	For the reason given, in taking a contrary position as to the law to that as applied in these case authorities, the primary judge erred in law.

70.	It is common ground that the jurisdiction under which such an application should be made is section 212(3) of the Organic Law.

71.	To arrive at the legal position upon the which primary judge ordered that the trial must continue, the primary judge exercised his discretion on the ground of the substantial merits and good conscience of the case under section 217 of the Organic Law when he said at page 5 of his reasons:

In the absence of any legislative framework and case law on what happens to a pending election petition on the passing of a petitioner, there is a wide discretion in the Court to be guided by the substantial merits and good conscience of each case under the prevailing circumstances pursuant to s 217 of the Organic Law when the Court is seized of what transpired when the petitioner gave evidence.  Section 217 states:
	
217.  REAL JUSTICE TO BE OBSERVED

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.

For real justice to be observed it is instructive to set out the prevailing circumstances in the petition which are as follows.
1.	The evidence for the petitioner has been received and concluded.
2.	The petitioner has passed on.
3.	The Court is seized of the evidence for the petitioner.
4.	The issues raised in evidence remain unresolved.
5.	The second respondent against whom the allegations were made, and evidence called remains a party.
6.	A no case submission proposed by the respondents is pending.
7.	It is in the public interest, especially the electors of Chuave electorate.
8.	In the absence of legislative framework and case law on what happens on the demise of a petitioner the discretion the court can exercise is wider than proceedings in standard election petitions.
Based on the prevailing circumstances the arguments of counsel are considered.

72.	The primary judge then considered these eight points and concluded that “it matters little whether the petitioner is physically present in Court after that.”

73.	As to the submissions of Mr Nomane and the Electoral Commission that the Petition abated as a petition could only be prosecuted by its petitioner, the primary judge held that the law was silent on it and therefore it depended entirely on the discretion of the trial court.

74.	The primary judge then considered the issue as he had framed it on the basis of the… “the substantial merits and good conscience…” of the case pursuant to section 217 of the Organic Law and addressed the submissions by reference to the public interest, the effect of the Deceased Petitioner’s death upon his counsel’s instructions; the utility of the evidence and costs.

75.	A similar submission of “substantial merit and good conscience” was advanced in Damena vs Lowa [1977] PNGLR 448 at 456 by Mr Lowa’s lawyer in asking the court not to declare the election of Mr Lowa void if it finds that Mr Lowa was not qualified to nominate and contest the seat for that electorate (as the court did) on the basis that Mr Lowa had won by a very substantial majority. This submission was rejected by the trial judge for the reason that to do so would be to ignore the purpose of the law to safeguard the integrity of elections recognized in sections 126 (7) (c) of the Constitution which requires strict compliance with the prescribed qualifications on the part of a candidate. 

76.	In my respectful opinion, the substantial merit must be consistent with the law.  In the exercise of his discretion, the primary judge did not consider the constitutional law provisions and their legal effect, as discussed earlier. From that legal standpoint, those considerations which he took into account were irrelevant as they were secondary to and dependent on the subsistence of the grievance or claim in the Petition.

77.	Therefore, when the primary judge ordered the trial to continue despite the death of the Deceased Petitioner, His Honour erred in law and the exercise of his discretion miscarried as it was adversely affected when he failed to take into account the relevant factors alluded to and by the irrelevant factors he considered.

78.	The outcome of those errors has resulted in a decision that is unsustainable in law and reason.

79.	For these reasons the review applications should be granted, the orders under review be quashed, and the Petition be dismissed.

80.	Given this outcome, it is not necessary to address and determine the other grounds of review.

81.	The orders I propose are that (a) the reviews herein be granted; (b) the orders under review and the decision granting those orders be quashed; and (c) the Petition be dismissed.

82.	LIOSI J: I agree with the reasons and the orders proposed by Frank J and Yagi J in their judgments and in their determination of these applications for review and the petition.  

83.	BY THE COURT: Given the circumstances in which the issue arose as to whether the trial of the Petition should continue on the death of the Deceased Petitioner and Mr Gagma’s participation in addressing it before the primary judge, no issue was raised for Mr Gagma’s participation in these reviews.

84.	As regards costs, the applicants in these reviews have been successful so, ordinarily, they should have their costs of these reviews and the Petition since 22 December 2023. Although the outcome of the Petition was determined by the death of the Deceased Petitioner, Mr. Gagma submitted that the applicants should be ordered to pay costs on an indemnity basis on the grounds, first, that these reviews is the eighth occasion or application after the applicants had failed in their 7 earlier applications without evidence of instructions to make those earlier applications, citing Rex Paki v Motor Vehicles Insurance Ltd (2010) SC1015 and Powi v Kaku (2010) SC1856; and, second, that the conduct of the applicants and their lawyers were malicious: to delay the proper and expeditious conclusion of the trial. 

85.	The factual basis, according to Mr Gagma’s submission, is said to be contained in his affidavit filed on 20 March 2024.  That affidavit, however, is not part of the materials in the review books to establish the facts alleged. 

86.	For the applicants, they submitted that Mr Gagma should be personally responsible for the costs incurred since the death of the Deceased Petitioner as he was the one who requested that the trial should continue on the basis of instructions of family members of the Deceased Petitioner when despite the opportunities to do so up until the orders under review were made, he failed to file an application for substitution with evidence to support his assertion of having been so instructed. Such representation was made and repeated on 22 December 2023, 15 February 2024 and on 22 February 2024. Evidence of the representation and request is summarised in paras 36 to 39 of the Applicant’s Supplementary Submissions filed by Mr Nomane’s lawyers on 10 July 2024 in SCREV (EP) 8 of 2024. 

87.	Without any evidence of the nature of the 7 applications alluded to by Mr Gagma, how they were determined and the reasons for their determination, Mr Gagma has not demonstrated either that the conduct of any of the applicant or its lawyer is so improper, unreasonable or blameworthy (Rex Paki case) or that any of these reviews is unmeritorious (Powi v Kaku) as he contends.

88.	As we have concluded, there was no basis in law to support the relief Mr Gagma had sought. And, because of his unfounded representation as to his instructions and the wish of certain family members of the Deceased Petitioner for substitution and continuation of the trial, the Petition proceedings has not been brought to a prompt end. In these circumstances, his conduct is an abuse of the process of the court. As a result of such conduct, the applicants have incurred costs since 22 December 2023. We therefore accept the applicants’ submissions that, except for the costs of the Petition from its institution to 21 December 2023 for which each party should bear its own costs, Mr Gagma be held personally responsible for their costs of the Petition proceedings since 22 December 2023 and in these reviews. 

89.	As regards the security deposit, it shall be paid out to the applicants in equal proportions in part payment of their costs.

90.	The orders of the Court are:

(1)	The Applications to Review in these proceedings are granted.
(2)	The decision and orders of 28 February 2024 in the election petition proceedings EP 56 of 2022:  Wera Mori v James Nomane, MP & The Electoral Commission are quashed.
(3)	The Petition is dismissed.
(4)	Mr Camillus Gagma shall pay the costs of the applicants in the Petition proceedings incurred after 21 December 2023 and in these reviews on a party and party basis to be taxed if not agreed.
(5)	Each party shall bear its own costs of the Petition proceedings from its institution to 21 December 2023.
(6)	The K5,000 security deposit for the Petition be refunded and paid out in equal proportions to the applicants forthwith in part payment of their costs in the Petition and these proceedings.

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Lawyers for the applicant, Electoral Commission:  Tame Lawyers
Lawyers for the applicant, James Nomane, MP:  Harvey Nii Lawyers