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Nomane v Tomuriesa [2025] PGNC 287; N11433 (20 August 2025)

N11433

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


OS 152 OF 2025 (IECMS)


BETWEEN:
HON. JAMES NOMANE, MP
Plaintiff


AND:
HON. DOUGLAS TOMURIESA, MP
Defendant


WAIGANI: CAREY J
19, 20 AUGUST 2025

COURT ORDERS — Constitutional Interpretation — whether National Court has jurisdiction on Constitutional matters commenced by Originating Summons – whether Originating Summons is properly pleaded for referral to the Supreme Court by the National Court – Doctrine of Separation of Powers.


In the Originating Summons filed the Plaintiff sought declaratory orders pursuant to Section 64(2) of the Organic Law on Integrity of Political Parties and Candidates that he was the duly elected Leader of the Opposition. By way of Notice of Motion the Plaintiff wanted restraining orders against the Defendant from holding himself out to be the Leader of the Opposition. The Plaintiff also requested of the court to install him as Acting Opposition Leader pending the determination of these proceedings. Further, the Plaintiff sought that the Decision of the Speaker of the National Parliament made on Friday 8 August 2025 recognizing the Defendant as Leader of the Opposition be stayed pending the determination of the proceedings. Parties were invited by the Court to give submissions on the jurisdiction of the National Court to hear this matter.


Held:

  1. The National court does not have jurisdiction to hear this matter. Following Mopio v Speaker of the National Parliament [1977] PNGLR 420.
  2. The National court does not have jurisdiction to grant the declarations sought. Applying Israel Israel, Mining Registrar;The State;Mt Kare Holdings Pty Ltd; Gaudi Dadi, Acting Government Printer; Dibusa Mining Pty Ltd v Wapula Akipe, Simon Kambe, and Anton Pakena [1991] PNGLR 265; [1991] PNGLR 399.
  3. It is not necessary to apply legal doctrines from outside of PNG to correctly interpret the Constitution. Applying Supreme Court Reference (11 of 2008), Re Organic Law on the Integrity of the Political Parties and Candidates 2003.
  4. The Proceedings are dismissed in its entirety.
  5. The Plaintiff shall pay the Defendant’s cost to be taxed if not agreed.
  6. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Cases cited
Application pursuant to Constitution, Section 18(1) reference by the Honourable Belden Norman Namah MP, in his capacity as Leader of the Opposition in the matter of the Constitution, Sections 11, 32, 41,50,59,108,114,142 and 158(2) (2020) SC1934
Application Pursuant to Constitution, Section 18(1); Application by the Honourable Belden Namah MP (2021) SC2114
Haiveta, Leader of the Opposition v Wingti, Prime Minister; Attorney-General; and National Parliament of PNG [1993] PGNC 106; [1994] PNGLR 160
In the Matter of an Application Pursuant to Constitution, Section 18(1); Application by the Honourable Nomane MP, Member for Chuave Open & Deputy Leader of the Opposition (2025) SC2721
Israel Israel, Mining Registrar;The State;Mt Kare Holdings Pty Ltd; Gaudi Dadi, Acting Government Printer; Dibusa Mining Pty Ltd v Wapula Akipe, Simon Kambe, and Anton Pakena [1991] PNGLR 265; [1991] PNGLR 399
Mopio v Speaker of the National Parliament [1977] PNGLR 420
Namah v Poole [2015] PGNC 248; N6121
Roger Ketan v Comrade Trustee Services Ltd (2024) SC2545
Supreme Court Reference (11 of 2008), Re Organic Law on the Integrity of the Political Parties and Candidates 2003


Counsel
Mr. P Mawa, for the plaintiff
Mr. D Dotaona, for the defendant

JUDGMENT


  1. CAREY J: This is the decision in relation to whether the National Court has jurisdiction to hear this matter.
  2. It should be noted that there was a Notice of Motion filed on 12th August 2025 (the Motion) by Hon. James Nomane MP (the Plaintiff) seeking orders against Hon. Douglas Tomuriesa (the Defendant).
  3. The Plaintiff provided written submissions and made oral arguments as to whether the National Court has jurisdiction to hear the matter.
  4. The Defendant made oral arguments indicating that the National Court did not have jurisdiction to hear this matter.

BACKGROUND

  1. On 12th August 2025, the Plaintiff filed an Originating Summons in which he sought as follows:
    1. A DECLARATION that the show of support for the Plaintiff as the Leader of the Opposition by a simple majority of 10 out of 18 members of the Opposition, by individual letters dated 6 and 7 August 2025 to the Speaker of Parliament, satisfies the requirements of Section 64(2) of the Organic Law on Integrity of Political Parties and Candidate for purposes of electing the Leader of the Opposition in a democratic manner.
    2. A DECLARATION pursuant to Section 64(2) of the Organic Law on Integrity of Political Parties and Candidates that the Plaintiff is the duly elected Leader of the Opposition.
    3. The Defendant shall pay the Plaintiff’s costs of these proceedings on a solicitor and client basis.
    4. Such further or other orders this Court deems fit.
  2. The Plaintiff filed a Notice of Motion on 12th August 2025 and an Affidavit of Service filed on 14th August 2025.
  3. Further the Plaintiff relied on three Affidavits that he deposed on 11th August 2025 known as Document 3 filed on 12th August 2025, Document 4 filed on 12th August 2025 and Document 8 filed on 15th August 2025.
  4. The Defendant relied on an affidavit that he deposed on 14th August 2025 known as Document 10 filed on 15th August 2025.
  5. Parties were ordered to provide submissions for the court to determine whether it had jurisdiction to hear the matter.

ISSUES

  1. (a) Whether the National Court has jurisdiction on Constitutional matters?

(b) Whether the Doctrine of Separation of Powers would be infringed by this proceeding.


(c) Whether the matter is properly pleaded for a referral to the Supreme Court?

DETERMINATION

  1. The Plaintiff raises the question of fact and law as to whether the Defendant is the Leader of the Opposition.
  2. In Schedule 1.2.2 of the Constitution it states:

“the Leader of the Opposition” means the member of the Parliament (if any) recognized by the Parliament as being the principal speaker on behalf of those members of the Parliament who are not generally committed to support the Government in the Parliament;”


  1. Section 64 (2) of the Organic Law on the Integrity of Political Parties and Candidates indicates that:

“(2) The Members shall elect in a democratic manner one of their numbers to be the Leader of the Opposition who shall in turn then appoint one of the Members to be the Deputy Leader.”

  1. The question of whether the National Court powers can be invoked under Section 155(4) to stay a decision of the Speaker of Parliament, name an Acting Opposition leader pending the final determination of these proceedings or restrain the Defendant from acting as the Leader of the Opposition has to be answered before any deliberation with respect to the Motion.
  2. In Roger Ketan v Comrade Trustee Services Ltd (2024) SC2545 it was held that:

“2. The National Court has inherent jurisdiction, on its own volition, to consider jurisdiction or competency of any issue such as lack of compliance with statutory conditions at any stage of the proceeding. See cases: Arnold Amet v Peter Yama (2010) SC1064, Michael Keka v Pius Yafaet (2019) SC1673, Patterson Lowa and Ors v. Wapula Akipe and Ors [1992] PNGLR 399, Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112, and Chief Inspector Robert Kalasim v. Aina Mond and Ors (2006) SC828.”


  1. Applying logical reasoning to what is being asked of this National Court, I am constrained to evaluate and consider jurisdiction at this juncture of the proceeding.
  2. There have been numerous cases in relation to this question which will inform on how this matter is to proceed.
  3. In Haiveta, Leader of the Opposition v Wingti, Prime Minister; Attorney-General; and National Parliament of PNG [1993] PGNC 106; [1994] PNGLR 160 it states:

“The net effect of all this is that the proceedings within the Parliament are non-justiciable unless there is a procedure specifically provided by a Constitutional Law that must be followed in the conduct of any parliamentary action.”


  1. The Application Pursuant to Constitution, Section 18(1); Application by the Honourable Belden Namah MP (2021) SC2114 suggests that the proceedings of Parliament are non-justiciable.
  2. The Constitution states:

“18. ORIGINAL INTERPRETATIVE JURISDICTION OF THE SUPREME COURT.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.”


  1. In Mopio v Speaker of the National Parliament [1977] PNGLR 420, it indicates that proceedings seeking a declaration in relation to Parliament involving whether a procedure was complied with were non-justiciable under section 134 of the Constitution. Further, jurisdiction ought to be refused.
  2. In Section 134 of the Constitution it states:

“134. PROCEEDINGS NON-JUSTICIABLE.

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is nonjusticiable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it.”

  1. In Application pursuant to Constitution, Section 18(1) reference by the Honourable Belden Norman Namah MP, in his capacity as Leader of the Opposition in the matter of the Constitution, Sections 11, 32, 41,50,59,108,114,142 and 158(2) (2020) SC1934, it states:

“11. We are satisfied for the purposes of these proceedings, having heard extensive

argument on the issue, that Mr Namah became Leader of the Opposition on the day

that he was elected to that position by the Opposition caucus: 11 September 2019.

We reject the interveners’ argument that a member of the Parliament only becomes

Leader of the Opposition when he or she is recognised as such by the Parliament at

a meeting of the Parliament. In forming that opinion, we have taken into account:


· the Constitution makes no provision for appointment of a person as Leader of the Opposition;

· Schedule 1.2 is only an interpretation provision, which does not

purport to set a procedure for appointment of a Leader of the

Opposition, and the definitions it provides for are intended to

apply, by virtue of Schedule 1.1 (1), “unless the contrary

intention appears, in the interpretation of the Constitution and the

Organic Laws”.

the only Constitutional Law which has made any attempt to provide a

procedure for appointment and recognition of a member of the

Parliament as Leader of the Opposition is s 64 (office of

Opposition and election of Opposition Leader) of the Organic

Law on the Integrity of Political Parties and Candidates 2003,

which provided:


(1) There shall be established an Office of the Opposition which

is made up of Members of Parliament not in government.

(2) The Members shall elect in a democratic manner one of their

numbers to be the Leader of the Opposition who shall in

turn then appoint one of the Members to be the Deputy

Leader.

(3) Funds shall be provided in each year from the Consolidated

Revenue Fund for the maintenance and expenses of the

Office of the Opposition.
· there is no provision of any law, including the Standing Orders of

the National Parliament, which provides any process for formal

recognition as a member of the Parliament as Leader of the Opposition.”


  1. The preceding case therefore confirms what the Constitution clearly states which is the original jurisdictions lies with the Supreme Court in the interpretation or application of any matter related to the Constitution.
  2. The doctrine of the Separation of Powers prevents the concentration of power by ensuring that each branch of the Government exercises restraint of its authority to its own sphere.
  3. The National Court recognizes the importance of the Separation of Powers doctrine which is to uphold the rule of law and for all branches of Government to respect its boundaries and not to encroach unless afforded the powers to do so by the Constitution.
  4. For this court to adjudicate on matters in terms of making a determination that intrudes on Parliamentary proceedings would have been a breach of the Separation of Powers doctrine.
  5. It should also be noted that in Supreme Court Reference (11 of 2008), Re Organic Law on the Integrity of the Political Parties and Candidates 2003, it indicates that:

“The Constitution has unique and dynamic features as a complete code of law that is comprehensive and exhaustive on every aspect of good governance...The Constitution itself provides the principles of interpretation and the sources of aids to interpretation. Unless expressly provided for in the Constitution, recourse to doctrines of constitutional interpretation and materials developed or used elsewhere as aids should be discouraged.”


  1. The National Court should exercise restraint and resist potentially overreaching into Parliamentary matters unless expressly authorized to do so by the Constitution.
  2. Moreover, it would have been ultra vires to the Constitution given the National Court does not have original jurisdiction “as to any question relating to the interpretation or application of any provision of a Constitutional Law.” Section 18 of Constitution.
  3. With regard as to whether the matter was properly pleaded for a referral to the Supreme Court by the National Court, it is clear that was being sought in the Originating Summons was beyond the jurisdiction of this court.
  4. As such, the Originating Summons was not competent insofar as one cannot file a document with the court for which it has no jurisdiction nor the inherent power to grant what is being sought.
  5. In the Matter of an Application Pursuant to Constitution, Section 18(1); Application by the Honourable Nomane MP, Member for Chuave Open & Deputy Leader of the Opposition (2025) SC2721, it was held that the “the application was properly pleaded.”
  6. If the matter is properly pleaded then it should be heard before the court which has jurisdiction.
  7. In Namah v Poole [2015] PGNC 248; N6121 it indicates at paragraph 23 that:

“If the National Court is to make a reference under Section 18(2) it must base the questions it refers on findings of fact and the questions must be relevant to those facts (SCR No 3 of 1982, In re the Commissioner of Correctional Services [1982] PNGLR 405; SCR No 5 of 1982, Berghuser v Aoae [1982] PNGLR 379; Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60; Paul Tohian v Iova Geita (No 2) [1990] PNGLR 479; Lowa v Akipe [1992] PNGLR 399; Haiveta v Wingti (No 1) [1994] PNGLR 160; Isaac Lupari v Sir Michael Somare (2008) N3476; Alois Kingsley Golu v Regett Marum (2013) N5104).”

  1. As I am persuaded that this court cannot make a finding of fact on this matter as it is ultra vires to the Constitution to do so, and it is a requirement that a finding of fact be made for a referral to the Supreme Court.
  2. In Supreme Court Reference No 5 of 1985; REFERENCE PURSUANT TO THE CONSTITUTION, S18(2) CONCERNING THE JURISDICTION OF THE NATIONAL COURT IN RELATION TO MATTERS BROUGHT UNDER CONSTITUTION, S41; Joseph Lemuel Raz v Paulias Matane, John Giheno, Anthony Bais, Francis Pusal and Bebes Korowaro [1985] PNGLR 329, it was held that, “ (6) Where the National Court has no jurisdiction to interpret or apply a constitutional law and a question relating to the interpretation or application of a constitutional law arises, the National Court is bound to refer the question to the Supreme Court.”
  3. However, pleading the Constitutional Issue is not sufficient.
  4. The Plaintiff has sought declaratory orders on a Constitutional issue.
  5. In Israel Israel, Mining Registrar;The State;Mt Kare Holdings Pty Ltd; Gaudi Dadi, Acting Government Printer; Dibusa Mining Pty Ltd v Wapula Akipe, Simon Kambe, and Anton Pakena [1991] PNGLR 265; [1991] PNGLR 399, it states:

“In view of the foregoing the National Court should have struck out from the Writ of Summons paragraphs (i), (ii) and (iii) of the Plaintiffs' claim. They do not constitute actions that the National Court can deal with as part of its original jurisdiction.

Although the National Court had no jurisdiction to grant the declaration sought that is not the end of the matter. Issues relating to the interpretation or application of constitutional laws may arise or be raised during the hearing of the other claims in the Writ of Summons. In fact the pleadings raised the issue of constitutionality of ss 7 and 200 of the Mining Act (Ch No 195). These matters of law may be pleaded as Order 8 Rule 20 of the National Court Rules permits this to be done. However, simply pleading the constitutional issues or raising them during the proceedings does not automatically result in a s 18(2) reference. There are matters that must be ascertained to before a reference can be made under this provision. This Court has said already that a s 18(2) reference must arise out of a factual situation.

"We are of the opinion that a question which is referred to the Supreme Court must arise out of a factual situation established by the lower court or tribunal. We refer to SCR No 5 of 1982; Re Petition of Hugo Berghuser (1982) PNGLR 379." (SCR No 3 of 1982 (1982) PNGLR 405 at p 407).”

  1. In the present matter before this court, there has been no factual situation established by this court nor can it be established by this court given its jurisdiction and the failure of the Plaintiff to properly plead the matter and address what is being sought by way of Notice of Motion for the matter to be referred to the Supreme Court.
  2. The Plaintiff’s Notice of Motion does not indicate that there is a determination of Constitutional questions to be referred to the Supreme Court through these proceedings.
  3. I am therefore of the view that this is the end of the matter for this proceeding.
  4. I refuse to refer any constitutional questions to the Supreme Court based on the current form of the Pleadings.

ORDERS


  1. The Proceedings are dismissed in its entirety.
  2. The Plaintiff shall pay the Defendant’s cost to be taxed if not agreed.
  3. Time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.


Lawyers for the plaintiff: Mawa Lawyers
Lawyers for the defendant: Dotaona Lawyers

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